By Erica Shelley Nelson and Sarah E. Derry
In Island County Deputy Sheriff’s Guild, Arbitrator Gary Axon found that the Employer, Island County, lacked just cause to terminate a deputy sheriff who had 13 years on the job for sexually harassing a coworker. He instead ordered a 30-day suspension and a final warning notice that future sexual harassment will result in termination.
The Grievant was accused of sexually harassing a female colleague. There was testimony that the Grievant and his colleague, who were partners, “had mutual conversations about their personal lives and sexual history” and that both engaged in the razzing and teasing that was common among the Sheriff’s office. Eventually, she grew tired of the Grievant’s alleged behavior towards her and complained to her supervisors, but stated she wanted to handle it herself. Her command staff agreed, and she had a conversation with the Grievant and told him to knock it off. His behavior continued and she escalated her complaint, which led to an investigation and his subsequent termination.
The Guild, represented by Cline & Casillas attorneys Jim Cline and Erica Shelley Nelson, argued, among other just cause violations, that the Employer had not put the Grievant on notice that his behavior could result in termination, his behavior reflected the overall atmosphere of the Sheriff’s office, and that the investigation was deeply flawed. The Employer argued that the Grievant’s behavior justified his termination.
The Arbitrator agreed with the Employer that the investigation was fair and the Grievant should have known that his behavior could result in termination. He also found the Grievant’s testimony to be inconsistent and self-serving. Nevertheless, Arbitrator Axon found that
“management was inconsistent in its enforcement standards on sexual joking, horseplay, and teasing in the workplace. The Sheriff’s Office never instituted any discipline or meaningful corrective action against [Grievant] prior to the notice of investigation…even though it was widely known that [he] physically joked around with his colleagues.”
Because policies were not evenly enforced, “fundamental due process was denied…when the Sheriff meted out the penalty of summary termination on [Grievant] without prior warning or opportunity for correction.” Furthermore, the Employer did not engage in progressive discipline. The Arbitrator noted that the Grievant “was a well-regarded employee up until the point of his termination.” In light of these factors, the Arbitrator found there was no just cause to summarily fire him.
This case definitely involved sensitive issues and was challenging on multiple levels. There is no question from our perspective that the investigation was fatally flawed and that formed a large part of the narrative in our case. However, we also did not want to hyper-focus on one issue and not address the other problems with the way the termination was handled by the County.
This was the right strategy because at the end of the day the arbitrator found the investigation to be fair and reasonable, but overturned the discharge for the reasons explained above.
Also, credibility is generally very important. But while the arbitrator ultimately found the Grievant to be somewhat less credible in his description of events, the overwhelming evidence showing the multitude of just cause violations outweighed the central witness’s own credibility. Consequently, while credibility is important, a case may still ultimately prevail if the violations of just cause are so flagrant as to be undeniable to an arbitrator.
