47 N.E.3d 447
Mass. App. Ct.2016Background
- Gregory Ashe, a 22‑year employee of Springfield's housing office with no prior discipline, was terminated after a coworker complained of sexually inappropriate conduct on December 12, 2012.
- Arbiter found Ashe did engage in the conduct alleged (crude sexual remarks, grabbing crotch, attempting to unbuckle belt) but credited mitigating factors: significant physical and mental impairments (cerebral palsy, epilepsy, depression, low IQ), lack of medication, long clean record, and pliant demeanor.
- The arbitrator concluded the conduct was a single, short‑lived episode and that progressive discipline, not termination, was appropriate; she ordered reinstatement with full back pay and no loss of rights.
- The City sought vacatur under G. L. c. 150C § 11, arguing the award violated public policy and statutory duties to remediate sexual harassment under G. L. c. 151B and Title VII.
- The Superior Court confirmed the award; the Appeals Court affirmed, holding that (1) public‑policy exception did not compel termination given mitigating facts, and (2) the award need not be read to bar employer‑required remedial steps (e.g., counseling/training).
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Union/Ashe) | Held |
|---|---|---|---|
| Whether arbitrator exceeded authority by reinstating an employee found to have sexually harassed a coworker | Award violates public policy and sexual‑harassment statutes; termination required | Termination not required given mitigating factors; reinstatement permitted under CBA | Denied: public‑policy exception not met because dismissal was not required on these facts |
| Whether the reinstatement order bars statutory remedial measures required by G. L. c. 151B and Title VII | Full reinstatement (no loss of pay/rights) precludes additional corrective action and creates industrial double jeopardy | Award does not preclude non‑disciplinary remedial measures (training/counseling) | Denied: award interpreted not to preclude appropriate remedial measures; counseling/training allowed |
| Whether arbitrator’s factual findings could be treated as sexual harassment despite lack of explicit legal label | N/A (City accepts conduct is sexual harassment) | Union argued arbitrator did not explicitly find statutory harassment | Held: arbitrator’s factual findings constitute sexual harassment under Massachusetts law |
| Whether inconsistent treatment of other employees supports non‑termination | N/A | Arbitrator found disparate treatment (another employee got reprimand for longer harassment) | Held: disparate treatment supports arbitrator’s mitigation analysis and remedy |
Key Cases Cited
- Lynn v. Lynn Police Assn., 455 Mass. 590 (arbitration awards receive narrow judicial review)
- Plymouth‑Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006 (policy favoring enforcement of arbitration)
- Boston v. Boston Police Patrolmen's Assn., 443 Mass. 813 (courts uphold awards even if wrong; public‑policy exception discussed)
- Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698 (three‑pronged test for public‑policy vacatur of reinstatement)
- College‑Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156 (statutory prohibition and remedial duties for sexual harassment)
- Melnychenko v. 84 Lumber Co., 424 Mass. 285 (definition of sexual harassment in workplace)
- Lawrence v. Falzarano, 380 Mass. 18 (arbitration cannot require results contrary to statute)
- Starr v. Fordham, 420 Mass. 178 (interpretation preferring reasonable, lawful meaning)
- Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601 (court will not vacate award solely because it disagrees with result)