By Jim Cline and Peter Haller
In, Town v. Dade County Police Benevolent Association, a police officer was reinstated without back pay after he was discharged for allegedly harassing peer officers through a pattern of antisemitic and misogynistic comments. Arbitrator David Mudrick held that the harassment did not rise to the level of discharge and ordered the Employer to convert the discharge to an unpaid suspension and allow the officer to maintain his seniority.
Multiple officers lodged complaints against the unnamed Sergeant, alleging a pattern of offensive or discriminatory remarks towards protected classes. One complaint alleged that the Sergeant said he was bothered his daughter was dating a Jewish man. The statement was uttered in the presence of a Jewish officer. Another complaint alleged a series of comments that female officers perceived to be reflect an “anti-woman” perspective. On one occasion, the Sergeant allegedly said, “I would have to shoot myself in the head if more females were hired.”
Several other offensive comments, including “anti-Hispanic” remarks, were also alleged in complaints against the Sergeant. An internal affairs investigation concluded that the Sergeant violated the Town’s policies regarding discrimination, derogatory ethnic remarks, harassment, and courtesy. The Sergeant filed a grievance over his discharge which ultimately made its way to arbitration.
The Arbitrator first noted that the factual record demonstrated that some of the allegations were more than likely true. He opinioned that the comments uttered by the Sergeant were discourteous, disrespectful, and clearly unwelcome. The Arbitrator further noted that some of these comments created a hostile work environment that warranted substantial discipline.
However, while the Arbitrator clearly expressed his distaste for the pattern of comments, he also noted that consideration must be given to the overall weight of the evidence when determining whether discipline is excessive. The Arbitrator reasoned that,
The Town proved only some of the many charged violations, while persuasive proof was lacking for other violations… While the Town clearly proved just cause for a very lengthy suspension, it did not prove just cause for discharge.
The Arbitrator also noted that the Sergeant’s record was overall clean except for a previous suspension unrelated to the present allegations so there was a lack of progressive discipline. Thus, the Arbitrator concluded that the discharge of the Sergeant was excessive and ordered reinstatement.
In determining the award, the Arbitrator noted that denying backpay is common in sexual harassment cases. Therefore, it can also be an appropriate remedy in gender-based harassment cases as well. The Arbitrator concluded that due to the nature of the misconduct, the Sergeant shall not receive back pay, but shall retain seniority status.
This Sergeant benefitted from a favorable arbitrator. Many, if not most, arbitrators would have sustained the termination based on the reported facts.
This case demonstrates the importance of progressive discipline. Progressive discipline is an especially important factor in harassment cases. Many arbitrators have reinstated harassers where the employer moved directly to termination without intervening progressive discipline. On the other hand, where the harassment is severe, and on this occasion, it seemed to be, many arbitrators would waive the progressive discipline step.
This case clearly was a “compromise result.” The arbitrator at least recognized the severity of the situation by not limiting the pay docking to a suspension. By reinstating without any back pay he was making a statement about his disdain for the proven conduct.
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