City of Springfield v. United Public Service Employees Union , 89 Mass. App. Ct. 255 ( 2016 )

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15-P-742 Appeals Court
CITY OF SPRINGFIELD vs. UNITED PUBLIC SERVICE EMPLOYEES UNION.
No. 15-P-742.
Hampden. February 11, 2016. - March 25, 2016.
Present: Kafker, C.J., Rubin, & Agnes, JJ.
Arbitration, Collective bargaining, Authority of arbitrator,
Judicial review. Employment, Sexual harassment,
Termination. Public Policy. Public Employment, Collective
bargaining, Termination, Reinstatement of personnel. Civil
Service, Termination of employment, Reinstatement of
personnel.
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
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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
appropriate 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 investigation
and hearing after a coworker complained of sexually
inappropriate conduct. Ashe, through his union, grieved the
city's decision to terminate his employment. Pursuant to the
parties' collective bargaining agreement (CBA), the case was
submitted to an arbitrator. The parties presented the following
question: "Was the termination of the Grievant Gregory Ashe
supported by just cause? If not, what shall be the remedy?"
After two days of hearings, the arbitrator issued her award.
She determined that much of the alleged harassing conduct did
occur, but found that mitigating circumstances meant there was
not just cause for termination. She concluded: "As a remedy,
the Grievant is entitled to be reinstated to his position
without loss of compensation or other rights."
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The city sought to vacate the award in the Superior Court
under G. L. c. 150C, § 11. In its appeal, the city argued that
the arbitrator exceeded her authority under the CBA by
reinstating the employee in direct violation of the public
policy and statutory requirements governing sexual harassment.
The judge, in a written decision, resolved the case on opposing
dispositive motions, denying the city's appeal and affirming the
award.
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 deliveries. 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
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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 the
evidence, that he
"told Waldner that 'the fucking pussy called again,' asked
Waldner about the meaning of the word 'pussy [after she had
previously told him not to use such language],' referenced
'not getting any,' grabbed his crotch on the outside of his
pants, put his hand inside his pants, started to unbuckle
his belt, and said 'sorry babe' as Waldner exited the
room."
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 self-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."
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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 received only a reprimand.
2. 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), 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).
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We do, however, vacate an award if "[a]n arbitrator exceeds
his authority by granting relief beyond the scope of the
arbitration agreement . . . or by awarding relief prohibited by
law. Arbitration, it is clear, may not award relief of a nature
which offends public policy or which directs or requires a
result contrary to express statutory provision." Lynn Police
Assn., supra (quotations omitted). See G. L. c. 150C,
§ 11(a)(3), inserted by St. 1959, c. 546, § 1 ("Upon application
of a party, the superior court shall vacate an award if . . .
the arbitrators exceeded their powers or rendered an award
requiring a person to commit an act or engage in conduct
prohibited by state or federal law").
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.
Second, 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 leave the city without the authority
to order appropriate remedial action such as counseling or
training to address and correct the employee's misconduct. We
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agree that termination is not required here and accept the
union's position that the city retains the right and
responsibility to order counseling and/or training to address
the employee'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 policy. Boston Police
Patrolmen's Assn., 443 Mass. at 818-819. If all three parts of
the test are satisfied, the award violates G. L. c. 150C,
§ 11(a)(3). See Sheriff of Suffolk County, supra at 700-701.
The first two requirements are satisfied here. First,
Massachusetts maintains a well-defined and dominant public
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policy disfavoring sexual harassment, as is evident from the
statute prohibiting it and the case law applying the statute.
See College-Town, Div. of Interco, Inc. v. Massachusetts Commn.
Against Discrimination, 400 Mass. 156, 162 (1987); Melnychenko
v. 84 Lumber Co., 424 Mass. 285, 290 (1997). We also conclude
that Ashe's conduct, as determined by the arbitrator,
constitutes sexual harassment prohibited by Massachusetts law
and public policy.
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 labels 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
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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 G. L. c. 151B"). The woman he harassed was
understandably upset and concerned despite her knowledge of
Ashe's physical and mental limitations.
Second, the conduct at issue here is integral to Ashe's job
duties. His work 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 rationale 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 by the arbitrator, did not require dismissal
because a lesser sanction, progressive discipline, would not
violate public policy. In light of her findings regarding his
significant mental and physical limitations, his pliant
demeanor, and his twenty-two year problem-free work history,
Ashe's misconduct, despite its severity, did not require
termination. It was within the arbitrator's ample authority to
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conclude that these factors made progressive discipline rather
than termination an appropriate remedy. The CBA, which she
interpreted, incorporates the city's sexual harassment policy,
and clearly contemplates progressive discipline; both parties
stipulated to the city's long history of using progressive
discipline. We therefore do not agree with the city that public
policy requires termination on these facts. Compare
Massachusetts Hy. Dept., supra at 20-21 (public policy
implicated but did not require termination), and Bureau of
Special Investigations v. Coalition of Pub. Safety, 430 Mass.
601, 606 (2000) (public policy did not require dismissal of two
employees who used investigatory access to view tax records of
local celebrities not under investigation), with Boston Police
Patrolmen's Assn., supra at 819 (public policy required
discharge of police officer who "falsely arrested two
individuals on misdemeanor and felony charges, lied in sworn
testimony and over a period of two years about his official
conduct, and knowingly and intentionally squandered the
resources of the criminal justice system on false pretexts").
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 G. L. c. 151B and Title VII of the Federal Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2012) (Title
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VII), mandating that sexual harassment be addressed and
corrected. As the Supreme Judicial Court has explained,
"[a]rbitration . . . may not 'award relief of a nature . . .
which directs or requires a result contrary to express statutory
provision.'" Lawrence v. Falzarano, 380 Mass. 18, 28 (1980),
quoting from Eager, The Arbitration Contract and Proceedings
§ 121.6 (1971).
We agree with the 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, subsequent sanction would violate
industrial double jeopardy principles); Elkouri & Elkouri, How
Arbitration Works ch. 15.3.F.vii (7th ed. 2012). We do not,
however, for the reasons explained below, interpret the award to
preclude appropriate remedial action required by statute,
including training and counseling, to address Ashe's sexual
harassment.
General Laws c. 151B requires an employer to take some
remedial action in cases of confirmed sexual harassment. See
College-Town, supra at 162 (employer who is notified of sexual
harassment in workplace and fails to take adequate remedial
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action violates G. L. c. 151B, § 4); Modern Continental/Obayashi
v. Massachusetts Commn. Against Discrimination, 445 Mass. 96,
104-108 (2005) (holding that employer who failed to take
remedial action could be held liable for sexual harassment of
employee by subcontractor's employees); Trinh v. Gentle
Communications, LLC, 71 Mass. App. Ct. 368, 376 (2008) ("An
employer may be found directly liable for discrimination under
G. L. c. 151B, § 4, if it is notified of sexual harassment in
its workplace and fails to take adequate remedial action"). See
also Massachusetts Commission Against Discrimination Guidelines:
Sexual Harassment in the Workplace § VI.6 (2002) ("When an
employer concludes that sexual harassment has occurred, the
employer must take prompt remedial action designed to end the
harassment and prevent future harassment. What constitutes
appropriate remedial action depends upon the circumstances").
Title VII similarly requires employers to take remedial
action when they become aware that one of their employees has
engaged in sexual harassment. See 42 U.S.C. § 2000e; Faragher
v. Boca Raton, 524 U.S. 775, 807 (1998) (holding that employers
are vicariously liable for harassment of employees unless
employer "exercised reasonable care to prevent and correct
promptly any sexually harassing behavior" [emphasis supplied]).
See also 29 C.F.R. § 1604.11(d) (1999) (imposing responsibility
on employer for Title VII violations if it "knows or should have
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known of the conduct, unless it can show that it took immediate
and appropriate corrective action").
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 interpret
the arbitrator's decision as avoiding such a statutory
violation. Cf. Starr v. Fordham, 420 Mass. 178, 192 (1995),
quoting from Restatement (Second) of Contracts § 203(a) (1981)
("an interpretation which gives a reasonable, lawful, and
effective meaning . . . is preferred to an interpretation which
leaves a part unreasonable, unlawful, or of no effect"); Lynn
Police Assn., 455 Mass. at 599 ("The arbitrator's order is
therefore not invalid and, in keeping with general principles of
avoiding interference with municipal managerial prerogative,
appropriately leaves the manner of payment . . . to the city's
discretion" [citation omitted]). The union does not argue that
the award prohibits all measures that would satisfy the
statutory remediation requirement here.1 The union contends (and
1
Our conclusion that her award did not directly violate
statutory requirements does not suggest that we agree with the
arbitrator's resolution of the matter without loss of
compensation or other employment rights, as "even our strong
disagreement with the result [would] not provide sufficient
grounds for vacating the arbitrator's award." Bureau of Special
Investigations, 430 Mass. at 606.
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concedes) that the city remains free, for example, to provide
Ashe with counseling and training regarding his sexual
harassment. In the absence of any argument to the contrary, we
conclude that providing such required counseling and training
does not constitute a loss of employment rights in violation of
the arbitration award.2 We therefore interpret the award as
preserving these rights and responsibilities and avoiding a
result contrary to G. L. c. 151B and Title VII's requirements
mandating appropriate actions to address and prevent sexual
harassment.
We affirm the Superior Court decision confirming the
arbitration award.
So ordered.
2
Indeed, at oral argument, as well as in its brief, the
union referenced the city's sexual harassment policy, integrated
through art. 6 of the CBA, which appears to contemplate
corrective action that would not necessarily be considered
discipline.