1997 NAC 122 City of Las Vegas and Las Vegas Police Protective Association

Title: City of Las Vegas and Las Vegas Police Protective Association
Date: January 13, 1997
Arbitrator: Allen Pool
Citation: 1997 NAC 122

This Arbitration arises pursuant to Agreement between the Las Vegas Police Protective Association, hereinafter referred to as the "Union" and the City of Las Vegas, hereinafter referred to as the "City", under which C. ALLEN POOL was selected to serve as Arbitrator through procedures of the FEDERAL MEDIATION AND CONCILIATION SERVICE. The parties agreed that the matter was properly before the Arbitrator and that his decision would be final and binding upon the parties.

The Hearing was held in the City of Las Vegas, Nevada on September 25 and November 7, 1996 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments. The witnesses were duly sworn and a written transcript was made of the Hearing. Posthearing briefs were timely filed with the Arbitrator and exchanged between the parties through the office of the Arbitrator.

Was the Grievant, William Fisher, terminated for just cause? If not what shall be the remedy?

Any of the activities listed below shall be considered valid grounds for disciplinary action. These grounds for disciplinary action are not deemed inclusive but merely descriptive, and any other acts of substance relating to character, fitness, or the work performance of an employee may be considered grounds for disciplinary action.

(2) Violation of the Civil Service Rules of the City of Las Vegas or of rules and regulations as are prescribed by the City Manager or a department director.

(10) Commission of an act which gives an indication of the existence of any good reason, personal to the employee, which the law or sound public opinion, or both, recognizes as good reason for disciplinary action. Such acts, referred to as "cause" herein, include, but are not limited to:

An employee whose conduct or performance is considered unsatisfactory shall be subject to the City's progressive discipline program. The progressive discipline program shall be developed and monitored by the Human Resources Department and shall include, depending on the nature and severity of the offense or performance problem, any one of, or combination of, the following:

Employees who do not correct unsatisfactory conduct or performance; or who commit offenses of such a serious nature that require immediate expulsion from work, are subject to the following:

One of the primary tasks of a supervisor is the administration of discipline. Discipline can be positive or negative; it may involve encouragement, inspiration, training, or imposition of negative sanctions. It has as its immediate purpose the channeling of individual effort into effective and productive action.

The exercise of positive discipline requires foresight and planning rather than merely reaction. It involves an evaluation of the human factor which, when combined with proper training, motivation, and recognition of individual and group effort, results in self-discipline.

Disciplinary means may range from a warning, where the immediate effect is on the individual, to termination, where the positive result derived is in the reassurance of other employees as to unacceptable limits of misconduct. In each case, care must be exercised to make the proper choice in obtaining a desired and just result.............

The city's positive discipline program emphasizes correcting the problem rather than punishing the offender. It requires the department to establish policies, procedures, work rules and performance standards that are easy to understand, easy to enforce, make sense, and that are accurately and consistently enforced. The department shall, to the greatest extent possible, utilize a positive approach to remedial training and discipline.

Prior to initiating any step in the positive discipline program, it is essential that the employee be made fully aware of what is expected of him or her............

A letter of employment is a written instrument designed to correct or train. It is non-disciplinary in nature.

The counseling session is used to correct a performance or disciplinary problem, usually initiated after an oral reminder and/or letter or professional development has failed to correct.

The counseling session is one of the most critical steps of the positive discipline process. It is used to correct a disciplinary or performance problem..... Supervisors must insure that the employee is fully aware of the supervisor's expectation. Desired changes should be discussed and documented during the counseling session, along with the consequences if the problem continues. Explain to the employee why a change is needed and the consequences of the continued behavior.

This is the first formal step of the positive discipline process. It is intended for employees who do not correct unsatisfactory performance/conduct or commit offenses of such a serious nature that require immediate action, the problem has been investigated, and the results indicate the need for disciplinary action. Disciplinary action may result in suspension, demotion, withholding merit increase, day of decision making leave, or termination.

This is the most serious step of the positive discipline process as further infractions by the employee could result in suspension, demotion, termination, or other disciplinary action. At this point, the employee is fully aware of the rules, regulations, and performance standards, as well as what is expected by the supervisor, and the employee has failed to make desired changes. The employee is also aware of the consequences for further infractions.......... Upon return from decision making leave, the supervisor will meet with the employee to discuss the employee's future plans. If the employee wishes to remain with the city, the supervisor must explain in writing the changes that must be made in order for the employee to remain employed. The employee must be fully aware of the possible consequences of any further problems at the end of this meeting.......

Normally, the administration of discipline will begin at lowest level which is commensurate with the infraction. Steps in the process may be bypassed, however, if warranted by the severity of the offense. The director may decide such measures are necessary and impose disciplinary sanctions without referring the matter to the supervisor.

An employee may appeal any written reprimand, demotion, suspension, or other form of discipline through this grievance procedure, which shall be the exclusive remedy for the appeal of disciplinary action. Oral warnings may not be grieved. Written reprimands may grieved up to and through the step three - City Manager level of the grievance procedure. Serious disciplinary offenses may result in the disciplinary procedure starting at some level other than an oral warning.

1. Oral Warning - This disciplinary step puts an employee on notice that the employee's behavior or performance is not acceptable and that further unacceptable behavior or performance may result in more severe disciplinary action. The interview should be documented in writing with the employee being given the opportunity to make comments. This documentation should be maintained by the supervisor and employee only.

2. Written Reprimand - This level of discipline is documented on an employee interview form and placed in the employee's personnel file. The employee will be given a copy of the employee interview form at the time of the interview and may prepare a response to the allegations contained therein.

3. Suspension -Suspension may be used after a written reprimand has not corrected the unacceptable performance or behavior or rule violations, or the violation require more severe disciplinary action. Documentation is done on an employee interview form.

4. Other disciplinary actions - The employee may be subject to more serious discipline, as listed below, of the unacceptable performance, behavior, or rule violation continues, or if the employee's actions require more severe discipline action.

5. Termination - Termination is used when other efforts to correct a disciplinary situation have failed or when the offense committed by the employee is of a severe enough nature so as to warrant immediate separation from employment.

1. The record of any disciplinary action resulting in a written reprimand shall be removed form an employee's personnel file after a period of eighteen (18) months has elapsed. Any subsequent disciplinary action of a similar nature shall extend the period of retention of the original offense for twelve (12) months.

3. Provided that the above conditions are met, an employee may submit a written request to the Director of Human Resources to have an action removed from his/his personnel file.

4. These guidelines regarding the purging of records shall not apply in case of termination or resignation of the employee.

The Grievant in this matter was a six-year employee with City's Department of Detention and Enforcement He had been in law enforcement for a total of 27 years, the last six of which were with the City of Las Vegas. His date of hire was June 26, 1989. At the time of the incident on August 19, 1995 which led to his termination, he was serving as a corrections officer at the City's detention center, the jail, the site of the incident.

On August 24 or 25, 1995 a call was received at the detention center from a former inmate complaining that she had been physically assaulted by the Grievant while she was an inmate on the day of August 19th. Officer David R. Shattler, the Department's investigator interviewed the former inmate on August 20th. Her complaint, as briefly described by Investigator Shattler, was:

"The complainant alleged that when she suffered a seizure while an inmate in the City Hall Jail you (the Grievant) cursed at her, called her a 'bitch', grabbed her by the hair lifting her from the floor and then slamming her back on the floor, slapped her across the face 4 or 5 times with an open hand, grabbed her by the hair again and lifted her from the floor, slammed her against the wall and onto a bench, pulling hair from her head. This done without provocation from the complainant" (Joint Exhibit No. 10).

Investigator Shattler checked the Department files and could find no record of the incident. Through an Inter-Office Memorandum August 30, 1995, he notified the Grievant that a complaint alleging "Excessive Force and Conduct Unbecoming an Officer" had been made against him and that the complaint would be investigated. The notification included the above described complaint made by the former female inmate. Investigator Shattler interviewed the Grievant on the same day he gave the Grievant the notice (Joint Exhibit No. 10).

In the interview, the Grievant remembered the female inmate sitting on a bench in the hallway just outside the nurse's examining room, along with three other inmates, waiting to see the nurse. He recalled walking the few steps from the Intake Desk to the hallway area just outside the examining room and having a conversation with the nurse about the female inmate. The Grievant also recalled the nurse telling him that the female inmate's vital signs were all normal and that she could not possibly be having a seizure (Joint Ex. 11).

Another Corrections Officer, Treva Johnston, was present at the time of the incident. She was positioned at the doorway to the Nurse's examining room in such a manner that she could observe both the inside of the examining room and the hallway where the female inmate and the other three inmates were waiting on the bench to see the nurse. The Grievant told Investigator Shattler that following the conversation with the Nurse, he walked away to return to the Intake Desk. As he turned away, he looked back and saw the female inmate sliding from the bench, feet first, to the floor. He said he stepped back and picked her up underneath her arms and sat her back on the bench. As he sat her on the bench, he told her that the nurse had already said there was nothing wrong her and that she should behave herself. The Grievant told Investigator Shattler that the female inmate said nothing at the time but that her eyes were fluttering (Joint Ex. 11).

The Grievant turned to walk away and the female inmate, again, slid down to floor. He said that, for the second time, he picked her up and sat her on the bench. This time, however, he said she stood up, called him a "mother-fucker", and said she was going to have his ass. When asked by Investigator Shattler if he called the nurse out, he said he did not "Cause that's when she got up, started screaming and acting normal". When questioned, he told Investigator Shattler he did not document the matter because there was nothing unusual about it and there was nothing to document, "I mean in reality I tried helping her up. I mean there was nothing to document". The Grievant told Investigator Shattler that at this point he walked away and had no further contact with the female inmate, that she would have probably been taken back to either Female Holding or A tank by Officer Johnston. Investigator Shattler asked the Grievant if he had, as alleged, pulled her hair, slammed her on the floor, slammed her against the wall, pulled hair from her head, and slapped her across the face four or five times. The Grievant said he had not (Joint Exhibit No. 11).

A short time later and just following the interview, the Grievant encountered Officer Treva Johnston whereupon he asked her if he had hit the female inmate four or five times and slammed her head down. Officer Johnston told him no, he had not (Trans. p. 187-188). The Grievant then left town that same day or the next morning on a scheduled vacation trip to the East. His date of return was not part of the record. After his return, the Grievant came again to Officer Johnston and asked her, "Well, did I hit her?" Officer told him yes, that he had hit the inmate once. She also testified that she heard the Grievant say, at

The investigation continued with Investigator Shattler focusing on four potential witnesses. Three were the other inmates sitting on the bench along with the female inmate at the time and the fourth was Officer Treva Johnston. Investigator Shattler was able to locate only one the three inmates who had witnessed the incident. That person corroborated the Grievant's story. He told Investigator Shattler that he only saw the Grievant pick up the female inmate by the armpits and place her on the bench. He said he did not see the Grievant slap the female inmate, grab her hair, nor slam her head against the wall. Shattler's investigation therefore could find no support for the specific allegations made against the Grievant by the inmate. What his investigation did uncover was that Officer Johnston said she saw the Grievant hit the inmate (Joint Ex. 4 and Trans. p. 187-190).

Following the Grievant's return from his trip to the East, Investigator Shattler interviewed him a second time on September 27, 1995. He told the Grievant that he had a witness, Officer Johnston, who saw him slap the female inmate. The Grievant said he had talked with a few people and was told he had slapped the inmate but that he could not honestly remember doing it. He told Investigator Shattler, "... I am going to say I did do it for the simple reason that I have been told that I did do it. Then, I don't know why I did it except other than to get a response of being, uh, semi-unconscious or whatever she was supposed to be done at that time" (Joint Exhibit No. 4). During this interview, Investigator reminded the Grievant that the notification of charges (Joint Ex. 4) included a sentence at the bottom the page ordering him not to talk with anyone during the investigation "so that the investigation doesn't get tainted". The Grievant told Investigator Shattler that on the first occasion he asked Officer Johnston one question, "Did I hit this person?" On the second occasion, he asked Officer Johnston "What I, if I, what I did? Absolutely?" Investigator Shattler told him "you are not supposed to do that" (Joint Ex. 4).

The following day, on September 28, 1995, Investigator Shattler gave the Grievant a Notification of Disposition. The Notification informed the Grievant that three (3) charges against him had been sustained: (1) Inappropriate method (a slap) of reviving a person from a possible seizure, (2) Neglect of duties, and (3) Interference with the investigation (Joint Exhibit No. 3). Investigator Shattler's findings were forwarded, without recommendations, to the Director of the Department of Detention and Enforcement, Michael Sheldon.

Director Sheldon issued the Grievant a Notice of Proposed Disciplinary Action dated October 13, 1995. The City cited violation of Civil Service Rules as grounds for the action:

Section 4 a. (10) - 'Cause,' said cause being conduct unbecoming an employee and insubordination.

1. That on August 19, 1995, you used unnecessary, excessive force on an inmate of the facility.

2. That you failed to submit proper reports regarding the above incident in accordance with Department policy.

3. That you failed to secure proper medical attention for the inmate involved in the above incident.

4. That you interfered with the investigation of the above incident by confronting a witness to the incident.

In addition to the above-stated grounds, the City will relay on your overall employment history with the City of Las Vegas to arrive at a decision in this matter."

The notice informed the Grievant that an informal meeting had been scheduled for October 19 where he would have an opportunity to provide whatever information desired regarding the grounds for the disciplinary action. The notice also informed him that following the informal meeting a decision regarding the appropriate disciplinary action would be made (Joint Exhibit No. 5).

The day following the informal meeting on October 20, Director Sheldon issued the Grievant a Notice of Termination effective the close of the business day, October 19, 1995. The notice stated, "As a result of this meeting, it has been determined that there is no justifiable reason to preclude termination; therefore, you are being terminated" (Joint Exhibit No. 6). The grounds for the termination and what they stemmed from were the same as those expressed in the Notice of Proposed Disciplinary Action: Violation of Civil Service Rules (Joint Ex. 6).

A grievance was filed on November 3, 1995. This was followed by a City Manager Level Hearing on November 29th. The hearing was conducted before Deputy City Manager Lynn Macy. Following the hearing, the termination action was sustained by Deputy City Manager Macy. The grievance then proceeded to this Arbitration.

The City had just cause to terminate the Grievant. He violated the City's Civil Service Rules. His conduct was unbecoming an employee and he was insubordinate. He (1) used unnecessary, excessive force on an inmate of the correction facility: (2) failed to submit proper reports regarding the use of force; (3) failed to secure proper medical attention for the inmate; and (4) interfered with the investigation by confronting a witness to the incident. Considering these violations, along with his overall employment history, the only appropriate and the only prudent decision the City could arrive at was termination. Therefore, the Grievance should be denied.

The City did not have just cause to terminate the Grievant's employment. The charges levied against him by the City were not supported by the evidence record: (1) His conduct was reasonable & necessary or otherwise excusable under the circumstances; (2) His failure to report the incident was in good-faith; (3) The inmate received immediate medical attention; and (4) He was not insubordinate because he did not interfere with the investigation. The City acted overzealously in terminating the Grievant and in doing so abrogated its own declared policy of progressive discipline. The City is also estopped from taking action against the Grievant because the City violated his rights under Nevada state law. Therefore, the Grievance should be sustained.

It was a matter of record that the Grievant slapped the inmate, that he did not file the proper reports, and that he violated the directive not to talk with anyone during the investigation. However, it was clear to me that the decision to discharge the Grievant was not based on the charges cited in the Notice of Termination (Joint Ex. 6). Instead, the City based its decision to terminate on the Grievant's alleged untruthfulness plus a prior discipline for a similar matter. The transcript of the City Manager Level Hearing illustrated this point quite clearly (City Ex. 1). In the transcript, Deputy City Manager, Lynn Macy, made it known that the Grievant's slapping the inmate and the other cited grounds, in combination or alone, were not serious enough to warrant termination, but that the critical factors were the Grievant's alleged untruthfulness and a prior discipline. Pertinent statements made by Deputy Macy to the Grievant were:

"... Our main problem here, I think from our City Management position, and the main problem because apparently there's been problems with this in the past, is that we cannot get one answer out of you that is consistent. And in your chosen field, and you know how I feel about this, and I've made it crystal clear to the union, that failure to be truthful is one of, you know, we may not fire you for what you did, slapping somebody, but we're sure as hell going to fire you for not telling the truth. And the truth in this matter has been all over the place. No, you didn't slap her, well maybe you did slap her, well if somebody said you slapped her, well then you must have slapped her, now today, your representative said you did slap her and right now you're telling me I can't remember if I slapped her. You're being terminated for this, and you can't seem to recall what happened...... (Emphasis added) (City Ex. 1, p. 8)"

"I just, you know, this is our main concern, or my main concern, I won't speak for Mike and Morgan but what we're going to have to wrestle with here is whether or to uphold Mike's (decision for) termination. One of the issues is, we can't seem to get a straight answer out of you and in law enforcement, if we keep on people who have shown to be not truthful, if they should be brought up in a court of law and it's found that they, you know the community finds that they have not been truthful in the past, our goose is cooked. This is a huge liability for us. If somebody is, if something terrible serious happens to somebody and you're involved in it and we have shown that in the past we cannot show that you were truthful, you put the City in terrible jeopardy" (Emphasis added) (City Ex. 1, p. 8).

"Well, I'm not real sure how we're supposed to sort it out when we can't rely on the information we've been given from you" (City Ex. 1, p. 9)

"..... I'd like to take his (the Grievant's) word for the version of the incident but that aside, my main problem, if we said everything that the witnesses, including the inmate said were true, now my main problem that I'm faced with is I have a law enforcement officer who can't tell the truth" (Emphasis added) (City Ex. 1, p. 9).

"Well ... I'll tell you the other problem I'm having here, I think we don't mind giving you a second chance ...... but we have given you a second chance. You had a similar incident like this a year ago, so if you don't think that we've followed progressive discipline, we don't think you are showing any kind of understanding. We showed understanding a year ago, something similar where we had the same problem getting a straight answer out of (the Grievant)" (City Ex. 1, p. 12).

"I can tell you that everyone who has gotten to this level while I have been getting grievances, who was not truthful, is not here anymore, ..... " (City Ex. 1, p. 16).

The evidence record was also clear that the truthfulness issue was a significant factor that the Director of the Department of Detention and Enforcement, Michael Sheldon, wrestled with in arriving at his decision to terminate the Grievant (City Ex. 1, p. 11 and Trans. p. 151).

It should also be noted that the evidence record did not support the charge that the inmate was not provided with proper medical attention. The inmate was just outside the nurse's examining room and the nurse came out of the room within a minute of the incident. The nurse had already checked the inmate's vital signs and found them to be normal and, after the incident, the inmate refused the offer to be examined. Therefore, the

two critical questions in this arbitration came down to whether the Grievant lied and, if not, whether the City followed the required progressive discipline procedures.

My review of the evidence record convinced me that the Grievant's version of what occurred was consistent throughout the proceedings and that he did not lie. Throughout the proceedings, he maintained that he could not recall, remember slapping the inmate but acknowledged that he must have done so if Officer Johnston saw him do it. After Officer Johnston told him he had slapped the inmate, he never denied slapping the inmate. He was consistent, however, in saying he could not remember the actual act itself, but readily acknowledged that he must have slapped her.[1]

The Grievant maintained that when he saw the inmate sliding the floor, he returned to render assistance believing she was experiencing a seizure. Finding her on the floor and with her body stiffened, he slapped her bring to her out of the seizure. His contention was that after the slap was when he realized she was faking the seizure. The City's contention was that the Grievant lied, that he knew the inmate was faking when he slapped her and that the slap was punitive in purpose. Did the Grievant know at the time of the slap that the inmate was faking? This was a pivotal question.

The City based its belief the Grievant was lying on the assertion that the Grievant admitted knowing the inmate was faking when he slapped her (Emphasis added). The Grievant, however, maintained that he never made such an admission. According to the City, the alleged admission by the Grievant was "on record" and had been made by him at the informal hearing before the Director of the Department of Corrections and Detention, Michael Sheldon ( Macy & Sheldon; City Ex. 1, pages 1, 7, 11 & 17).

The City was not persuasive. No record of the alleged admission made at the Director's informal hearing was offered into evidence at the arbitration. It was significant, in my review and analysis of the evidence record, that a copy of the transcript of the informal hearing conducted before Director Sheldon on October 19, 1995 was not put into evidence (Fraser, trans. p. 231). This was in contrast to the submission into the evidence record of a copy of the transcript of the two interviews conducted by Investigator Shattler and of the hearing before Deputy City Manager Lynn Macy, at the City Manager Level Hearing. Therefore, there was nothing "on record" to support the City's contention that the Grievant admitted knowing the inmate was faking at the time of the slap.

Given that the Grievant did, in fact, slap the inmate, and acknowledged the act, the next question was whether the City followed the required progressive discipline procedures? According to Bill Fraser, Operations Commander, who consulted with the Director of the Department, Michael Sheldon, as to the appropriate penalty to be given, the Grievant's overall employment history and his prior discipline were considered in arriving on termination as the appropriate penalty (Trans. p.223, 237-239, & 11). Relying on these two elements, Director

Sheldon, according to Commander Fraser, made the decision to terminate because "We felt (the Grievant had) exhibited behavior he was going to keep on repeating, and the department and the City wasn't willing to accept the fact that he may do this again" (Trans. p. 238). Deputy City Manager Macy told the Grievant at the City Manager Level hearing that the City had followed progressive discipline, that the City had already given him a second chance, and that the City had shown understanding the previous year when there was similar problem (City Ex. 1, p. 12).

The Grievant's performance evaluations for the 1989 through 1995 all reflected an employee of satisfactory or better evaluations. There were no negative citations in the evaluations (Grievant Exhibits C-1 through C-8). Obviously, these favorable evaluations had not been given any real weight by Director Sheldon in arriving at the decision to terminate the Grievant. It was clear, though, that when his overall employment record was considered, it was the prior discipline for a similar problem that the City gave weight to in deciding to terminate his employment. The prior discipline the City referred to was given to the Grievant on November 24, 1993. The original discipline was a two-day suspension without pay. Following a hearing on the matter, the suspension was reduced by Director Sheldon to a Written Reprimand (Joint Ex. 13).

Article 14 of the Collective Bargaining Agreement enumerated five (5) steps in the progressive discipline procedure for violations or misbehavior of a similar nature. They were: (1) Oral Warning, (2) Written Reprimand, (3) Suspension, (4) Other disciplinary actions, and (5) Termination. Contrary to its assertion, the City did not follow progressive discipline. For a similar problem in the Fall of 1993, the Grievant was given a Written Reprimand. In the instant case, the City by-passed steps in the progression and went directly to the last step, Termination. This was a clear violation, by the City, of the Collective Bargaining Agreement and their own Positive Discipline Policy.

The evidence record was conclusive. The Grievant did slap the inmate, he did not file the proper reports, and he violated a directive not to talk with others during the investigations. He was not, however, untruthful and the City did not follow progressive discipline as required by the Collective Bargaining Agreement. Therefore, the City did not have just cause to terminate the Grievant. However, his misbehavior did warrant a lessor penalty.

The question then turned to what should be an appropriate lessor penalty, a suspension or a written reprimand? Since the Grievant had been given a Written Reprimand for the prior misconduct, the next step in the progression would normally be a suspension. Not so in this instance, though. Article 14 (J) (1.) of the Collective Bargaining Agreement was very specific where it stated:

"The record any disciplinary action resulting in a written reprimand shall be removed from an employee's personnel file after a period of eighteen (18) months has elapsed..... " (Emphasis added).

The Written Reprimand for the prior misconduct was issued on November 23, 1993. The Notice of Termination in the instant case was issued to the Grievant on October 20, 1995. Since the Written Reprimand was required to have been purged from his personnel file after eighteen (18) months, which would have been after May 23, 1995, the Written Reprimand no longer existed and could not be an item for consideraton. Therefore, my decision in this instance is that the appropriate lessor penalty shall be a Written Reprimand

The Grievance is sustained. The City did not have just cause to terminate the Grievant, William Fisher. However, the City did have just cause to discipline the Grievant. Therefore, in accordance with the Collective Bargaining Agreement, the penalty is reduced to a Written Reprimand.

The City is directed to immediately restore the Grievant to his former position and to make him whole for all lost wages (less other income earned), and all benefits, which shall include his time in service toward retirement.

Implementation of the remedy is remanded to the parties with the Arbitrator retaining jurisdiction in the event the parties cannot agree.

[1]It was interesting that Officer Johnston, when she testified at the arbitration hearing, did not use the the word "slap". She testified that the Grievant "smacked" the inmate.