City of Springfield v. United Public Service Employees UnionCity of Springfield v. United Public Service Employees Union
A Superior Court judge properly confirmed the validity of an arbitrator’s award reinstating a terminated employee without loss of pay or other rights, even though the arbitrator had found that the employee had engaged in conduct amounting to sexual harassment where such an award did not offend public policy or require a result prohibited by statute, given that the mitigating circumstances identified by the arbitrator supported her determination that employer termination, the lacked just cause for and given that the award did not preclude appropriate remedial action to address the employee’s sexual harassment. [257-262]
CIVIL ACTION commenced in the Superior Court Department on January 2, 2014.
The case was heard by John S. Ferrara, J.
Gordon D. Quinn for the plaintiff.
Lan T Kantany for the defendant.
KAFKER, C.J. The issue presented is whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated without loss of pay or other rights, even though she found that he had engaged in conduct amounting to sexual harassment. Because the mitigating circumstances the arbitrator identified supported her determination that the employer lacked just cause for termination, and her order does not preclude appropriаte remedial action to address the employee’s sexual harassment, we conclude that her award does not offend public policy or require a result prohibited by statute. We therefore affirm the Superior Court judge’s decision confirming the validity of the award.
1. Background. The city of Springfield (city) discharged Gregory Ashe, a long-time employee, following an invеstigation and hear-
The city sought to vacate the award in the Superior Court under
2. The arbitrator’s award. The evidence before the arbitrator and the facts as she found them are as follows. The grievant, Gregory Ashe, is a twenty-two year employee of the Springfield office of housing (housing office), where he worked as a messenger, answering telephones and making dеliveries. Ashe was a member of the United Public Service Employees Union (union), the collective bargaining unit, at the time of his discharge. Prior to his discharge, he had a “blemish-free employment” record with no disciplinary history.
The arbitrator found that the forty-three year old Ashe has significant physical and mental health problems. He suffers from cerebral palsy, epilepsy, and depression. Clinical evaluators determined that Ashe has a “mildly impaired overall [intelligence quotient] of 74.”
The city based its decision to terminate Ashe on an incident occurring on December 12, 2012. On that date, Ashe was working at the main desk in the housing office. He received a telephone call that apparently upset him, and he went into Keleigh Waldner’s office with a “red face.” Waldner is another employee of the housing office, and she regularly interacted with Ashe throughout the course of their employment. That interaction included his bringing her food and gifts and following her around the office. He was described as having a “crush” on her. The arbitrator found, by a preponderance of thе evidence, that he
Geraldine McCafferty, the city’s director of housing and Waldner’s supervisor, testified during the arbitration hearing that Waldner was crying and upset after her encounter with Ashe. She also testified that Ashe told her minutes after the encounter that he had done “something bad.”
The arbitrator, in her factual findings, credited Waldner’s account of the event in question and found Ashe’s “blanket denials . . . unpersuasive, and sеlf-serving.” The arbitrator further found that “[w]hile [Ashe’s] actions may have been extremely upsetting to Waldner, she was aware of [Ashe’s] mental and physical challenges.”
The arbitrator concluded that Ashe’s conduct “was a single, short-lived episode of anti-social behavior by an employee who posed no reasonable threat to others.” She determined that his conduct was “caused by lack of medication and profound depression and explained, in part, by developmental delays.” She also concluded that Ashe’s “pliant demeanor makes him an appropriate candidate for progressive discipline.” The arbitrator concluded that Ashe’s termination “was an excessive reaction in light of [his] long and problem-free work history and his developmental delays.”
Finally, the arbitrator determined that Ashe was subjected to disparate treatment. The city had declined to terminate another employee who had, according to the arbitrator, “engaged in a six-month course of sexual harassment directed at a co-worker” and rеceived only a reprimand.
3. Discussion. “Consistent with policy strongly favoring arbitration . . . an arbitration award is subject to a narrow scope of review.” Lynn v. Lynn Police Assn., 455 Mass. 590, 596 (2010) (Lynn Police Assn.), quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). We uphold an arbitration award even if “it is wrong on the facts or the law, and whether it is wise or foolish, clear or ambiguous.” Boston v. Boston Police Patrolmen‘s Assn., 443 Mass. 813, 818 (2005) (Boston Police Patrolmen‘s Assn.).
We do, however, vacate an award if “[a]n arbitrator exceeds his authority by granting relief beyоnd the scope of the arbitration
The city contends that the arbitrator erred in two respects. First, the city contends that the arbitrator violated public policy in not upholding the employee’s termination. Secоnd, the city argues that the arbitrator’s remedy — full reinstatement without loss of compensation or any other rights — thereby precluded the city from taking remedial action required by the State and Federal law governing sexual harassment. The union disagrees with both contentions, arguing that termination was not required on these facts and that the arbitrator’s award does not lеave the city without the authority to order appropriate remedial action such as counselling or training to address and correct the employee’s misconduct. We agree that termination is not required here and accept the union’s position that the city retains the right and responsibility to order counselling or training to address the emplоyee’s sexual harassment.
We first address the city’s contention that the award violates public policy. “There is a three-pronged test we apply to determine whether public policy requires the court to vacate an arbitrator’s award that has ordered the reinstatement of a public employee.” Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 700 (2008). First, the public policy must be well defined and dominant, and determined from laws and legal precedents, not general consideration of the public interest. Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, 420 Mass. 13, 16 (1995). Second, the “disfavored conduct” must be “integral to the performance of employment duties.” Id. at 17 (quotation omitted). Third, the employee’s conduct, as found by the arbitrator, must have required dismissal, and a lesser sanction would frustrate public рolicy. Boston Police Patrolmen’s Assn., 443 Mass. at 818-819. If all three parts of the test are satisfied, the award violates
The union makes much of the fact that the arbitrator did not explicitly find that Ashe’s conduct amounted to sexual harassment. We reject the union’s argument. Courts need not look for specific legal labеls to determine if the arbitrator’s findings constitute prohibited conduct. See, e.g., School Dist. of Beverly v. Geller, 435 Mass. 223, 231 (2001) (finding that employee engaged in conduct unbecoming teacher despite award’s lack of specific language to that effect, based on findings made in award). We conclude that the facts the arbitrator found here constitute sexual harassment. Despite his physical and mental limitations, Ashe approached a woman who was the focus of his attentions — a “crush” in the words of one witness — and grabbed his crotch, put his hand inside his pants, and started unbuckling his belt while referring to the fact that he was “not getting any.” This constitutes sexually harassing conduct. See Melnychenko, supra at 290 (“any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under
Second, the conduct at issue here is integral to Ashe’s job duties. His wоrk as a messenger requires him to interact with countless other city employees, both in person and over the telephone. His inappropriate remarks and physical gestures were precisely the kind of offensive workplace interaction the policy against sexual harassment seeks to prevent. See Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); College-Town, supra at 162 (explaining policy ratiоnale for prohibition of sexual harassment that results in hostile work environment).
Nevertheless, the third element of the public policy exception is not met on the record before us. Ashe’s conduct here, as found
We next turn to the city’s second argument: whether the arbitrator’s full reinstatement award, without loss of compensation or other employment rights, violated statutory requirements in
We agree with thе city that its authority to take corrective action against Ashe was substantially limited by the award, and that additional suspension, loss of pay, or loss of other employment rights for the December 12, 2012, incident would violate “industrial double jeopardy” provisions. See Zayas v. Bacardi Corp., 524 F.3d 65, 69 (1st Cir. 2008) (once initial sanction is final,
General Laws c. 151B requires an employer to take some remedial achon in cases of confirmed sexual harassment. Sеe College-Town, supra at 162 (employer who is notified of sexual harassment in workplace and fails to take adequate remedial action violates
Title VII similarly requires employers to take remedial achon when they become aware that one of their employees has engaged in sexual harassment. See
We thus recognize that an arbitration award that precluded the city from addressing and correcting Ashe’s sexual harassment might violate the State and Federal statutes. The arbitrator here, however, did not expressly go that far. We also intеrpret the arbitrator’s decision as avoiding such a statutory violation. Cf. Starr v. Fordham, 420 Mass. 178, 192 (1995), quoting from Re-
We affirm the Superior Court decision confirming the arbitration award.
So ordered.