City of Springfield v. United Pub. Serv. Emps. Union

• Decision Date: 25 March 2016
• Docket Number: No. 15–P–742.,15–P–742.
• Citation: 47 N.E.3d 447,89 Mass.App.Ct. 255
• Parties: CITY OF SPRINGFIELD v. UNITED PUBLIC SERVICE EMPLOYEES UNION.
• Court: Appeals Court of Massachusetts

89 Mass.App.Ct. 255

47 N.E.3d 447

CITY OF SPRINGFIELD

v.UNITED PUBLIC SERVICE EMPLOYEES UNION.

No. 15–P–742.

Appeals Court of Massachusetts, Hampden.

Argued Feb. 11, 2016.

Decided March 25, 2016.

Gordon D. Quinn, Springfield, for the plaintiff.

Lan T. Kantany, Springfield, for the defendant.

Present: KAFKER, C.J., RUBIN, & AGNES, JJ.

Opinion

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 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.”

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 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.”

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, 919 N.E.2d 158 (2010)

, quoting from Plymouth–Carver Regional

Sch. Dist. v. J. Farmer & Co.,

407 Mass. 1006, 1007, 553 N.E.2d 1284 (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, 824 N.E.2d 855 (2005).

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 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, 888 N.E.2d 945 (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, 648 N.E.2d 430 (1995). Second, the “disfavored conduct” must be “integral to the performance of employment duties.” Id. at 17, 648 N.E.2d 430 (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, 824 N.E.2d 855. 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, 888 N.E.2d 945.

The first two requirements are satisfied here. First, Massachusetts maintains a well-defined and dominant public 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, 508 N.E.2d 587 (1987)

; Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290, 676 N.E.2d 45 (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, 755 N.E.2d 1241 (2001)

(finding that employee engaged in conduct unbecoming teacher despite award's lack of specific language to that effect,...