Title: Clark County, Washington and OPEIU Local 11
Date: February 12, 2001
Arbitrator: Michael E. Cavanaugh
Citation: 2001 NAC 105

IN ARBITRATION BEFORE
MICHAEL E. CAVANAUGH, J.D.

OPEIU, LOCAL 11,                                      )
                                                                        )
                                    Union                          )
                                                                        )
            and                                                      )
                                                                        )
CLARK COUNTY, WASHINGTON,            )           ARBITRATOR’S DECISION
                                                                        )                       AND AWARD
                                                                        )          
                                    Employer.                   )
                                                                        )
(Discharge of R.)                                           ) 

For the Employer:

Steve Foster, Human Resources Director
Clark County, Washington
1013 Franklin Street
P.O. Box 5000
Vancouver, WA 98666-5000

  For the Union:

Michael J. Wynne
Attorney at Law
P.O. Box 26
Vancouver, WA 98666

I.          INTRODUCTION

            The Grievant was employed by Clark County, Washington as an Offender Crew Chief supervising crews of persons sentenced by the court to perform various tasks within the community upon conviction of a criminal offense. The daily work, which in Grievant’s case often involved “water quality” issues such as cleaning public parks and streams, was typically performed out of doors but was assigned out of an “office” facility known as the Mabry Center in Vancouver, Washington. On two occasions during the year 2000, Grievant is alleged to have committed acts of “harassment” of co-workers at Mabry Center. After the first incident, in May 2000 (involving persistent questioning of a female co-worker about her personal life) Grievant received a written warning that similar acts in the future would result in additional discipline up to and including suspension and/or termination. Exh. C-4. The Employer alleges that approximately two months later, Grievant committed another act of harassment (derogatory racial comments directed at a co-worker) during a meeting attended by several supervisors as well as Grievant’s fellow employees. In addition, the Employer alleges that after the second incident, Grievant “mocked” his Employer’s concerns about conduct “offensive” to others in the workplace, and did so in front of the person who had complained about his racial comments.

            The Employer contends that Grievant’s conduct constitutes just cause for discharge. Grievant, while conceding that his actions were wrong, contends that the Employer’s treatment of similar transgressions by other employees demonstrates that he should have received a four-day suspension and a referral to “counseling” to enable him to understand and meet his Employer’s expectations regarding workplace relationships with co-workers.

            At a hearing held December 14, 2000 at Hazel Dell, Washington, the parties had full opportunity to argue the issues and to present documentary and testimonial evidence, including the opportunity to cross-examine witnesses. The parties filed simultaneous post-hearing briefs by mail on January 12, 2000,[1] and upon the Arbitrator’s receipt of the briefs, the record closed.

II.          STATEMENT OF THE ISSUE

            At the hearing, the parties stipulated to the following statement of the issue to be determined:

Did the termination of Grievant violate the collective bargaining agreement? If so, what shall the remedy be?

Although the Union proposed a more detailed statement of the issues in its brief, I find that the general statement of the question before me, as stipulated at the hearing, fairly encompasses the Union’s concerns. Essentially, the issue is whether the County had “just cause” to terminate Grievant. Exh. J-1, § 18.2.

III.         FACTS

            On or about May 20, 2000 Grievant approached co-worker G. O. after noticing that she was wearing what appeared to be an engagement ring. Although O. protested “my personal life is nobody’s business down here,” Grievant persisted in  “congratulating” her and questioning her about her engagement, wedding plans, etc. until O. broke down in tears.[2] She later told Lead Crew Chief S. L. that she intended to “file a complaint on him if he doesn’t leave me alone.” When L. passed that information along to Grievant, he responded “I don’t give a fuck.” Supervisor D. P. had to come in from off duty[3] to deal with the situation. P. told L. to keep the two employees separated for the rest of the weekend. After L. pointed out how upset O. was, Grievant took her a “bouquet” of dead flowers and “apologized.” And although Grievant seemed remorseful at first, he later said “If they can’t take the kidding, then they’re just pussies.” In fact, P. testified Grievant was angry that the situation was even being discussed. During a formal meeting to review the issues, Grievant maintained that he had “just asked some questions and she got upset.”

For this conduct, Grievant received a written warning that his behavior was “absolutely inappropriate and must cease immediately.” Exh. C-4. Further, the warning provided that “future behaviors of this type may result in further disciplinary action, which could include suspension and/or termination.” Id.

            On July 24, 2000 Grievant attended a meeting at Mabry with co-workers and several supervisors. During the meeting, co-worker R. S. asked a question that had apparently just been answered (S. had been conferring privately with another worker and had not heard the answer). Grievant then said “Clean out your Puerto Rican ears” and “We’re speaking English here.”[4] There was testimony that several people in the meeting laughed, and there was no testimony that anyone rebuked Grievant for his comments. S. complained to supervisor I. G. after the meeting, however. She asked him to put his complaint in writing, which he did. Exh. C-6. Others complained as well. Exh. C-5.

            Grievant took some vacation days to travel out of state to be with a dying brother. When he returned in August, G. presented Grievant with a possible termination letter (Exh. C-3) which she regarded as a sort of “show cause” communication, i.e., an opportunity for Grievant to provide any information he wished the County to consider in determining the appropriate discipline, if any. Exh. J-1, § 18.2.1. Grievant provided G. a letter that contained his commitment to refrain from behavior that might be offensive to anyone. Exh. U-22. G. thought Grievant’s commitment was sincere, and she welcomed it. G. Test. That same afternoon, however, Grievant commented to a co-worker (while the two were looking at a Sports Illustrated “swimsuit issue”) “I hope I’m not offending you.” It was reported to G. that this exchange occurred in front of S. (Exh. C-12, G.’s notes dated August 17), which if true, would support the notion that Grievant was intentionally deriding S. for having complained.[5] Grievant, however, claimed that he was merely having a “quiet” conversation with the co-worker (whose magazine they were discussing), and he testified that he does not recall whether S. was in the room at the time. Grievant Test.

            In any event, whether he was present or not,[6] S. angrily complained to G. and said he was “prepared to take his own independent action” to deal with Grievant. When the issue was brought to Grievant, he also reacted angrily, saying that he had only been joking. G. considered the prior warning, the repeated offense, the “I hope I’m not offending you” comment, Grievant’s “volatile” responses when questioned about his conduct, and the likely effect on co-workers (particularly minorities) if Grievant remained in the workforce. Taking all these factors into account, Gerstenberger decided that termination was the appropriate penalty. Gerstenberger Test.

            Although Grievant did not dispute the essence of the charges against him, he testified that he, too, was the target of “ethnic” comments from co-workers, e.g. “little Leprechaun,” “Mick,” and “Irish Midget.” Some of these comments were made by S., Grievant claims.[7] Grievant also testified that S. and others frequently mocked his stature, making jokes such as Grievant “needed to sit on a phone book to see over the steering wheel.” Given the atmosphere of the workplace, Grievant contends that it was reasonable for him to believe that ethnic “teasing” or “jokes” were acceptable as long as they were not “mean spirited.”[8]

            Grievant also notes that he was under considerable stress at the time of the precipitating events because of the serious illness of his brother. Nor was there adequate training on harassment issues, he contends, because the training consisted of approximately one hour a year or so prior to the incident, and there was nothing posted on the bulleting board to remind workers of the Employer’s expectations.

Moreover, Grievant argues that he was treated differently from others who made offensive comments. For example, one employee, who the parties agreed should remain nameless in the record, handed a female co-worker a dildo and asked if it belonged to her. He then made comments of a graphic sexual nature to her. That employee received a four-day suspension and a referral to counseling.[9] Similarly, several witnesses, including Grievant, testified that crew chief L.V. once commented, in response to a discussion about the difficulty of finding low-wage workers, “Hire Mexicans – they’ll work for next to nothing.” Concededly, V. received no discipline or counseling for this comment. Because V. was not disciplined, Grievant again argues that he was led to believe that ethnic comments were not forbidden if they were just “jokes.”

Finally, Grievant contends that he should have received “progressive discipline,” i.e. a suspension, prior to termination. Nor, argues the Grievant, did the Employer’s discipline here meet the commonly applied “Seven Tests” often used to determine if discipline is supported by just cause. Thus, Grievant argues, he should be reinstated and made whole.[10]

IV.        DECISION

            The County bears the burden here of establishing that Grievant was terminated for just cause. In evaluating whether the Employer has met that burden, I am mindful of the County’s legal obligation to maintain a workplace free from unlawful harassment, as well as the expense, disruption, and potential political fallout that can result from employee claims that they have been victimized by “harassment.” Even claims ultimately determined to be without legal merit can expose an employer to significant attorneys’ fees, unfavorable publicity, and lost productivity because public servants are forced to devote their attention and energies to responding to claims of mistreatment instead of doing the public’s business.[11] In addition, once an employer has notice that an employee has engaged in harassment, that knowledge results in a heightened obligation to take effective measures to prevent further incidents. Thus, it is appropriate that just cause be measured with reference, at least in part, to the employer’s increased exposure to legal liability if an employee repeats unlawful harassment. At the same time, however, the notions of procedural and substantive due process embodied in evolving concepts of “just cause” apply even to those accused of “harassment.” I take seriously, therefore, the Union’s arguments that Grievant should have been accorded “progressive discipline” and that others who engaged in similar behavior were disciplined either not at all or less severely than he was.[12]

In applying those principles here, I would likely agree with the Union that discharge is too harsh a penalty had Grievant’s misdeeds ended with the offensive comments to S. in the July 24 meeting. Grievant’s expressed willingness to alter his behavior, and his declared interest in attending some form of counseling that could assist him in controlling his emotions and in being sensitive to the feelings of others, would normally earn Grievant a “last chance.” In other words, I would be strongly inclined to find that a suspension and referral to counseling could “rehabilitate” Grievant and salvage an otherwise good employee of the County.

It is very troubling to me, however, that shortly after being told that his repeated incidents of harassment put his continued employment in grave danger, Grievant openly made fun of the idea that he should act so as not to offend others. Whether or not S.—a person who had just complained about his offensive behavior—was present in the room when Grievant poked fun at the idea of “offensive conduct,” he soon found out about Grievant’s comments. He then notified the County that he was seriously considering “taking his own independent action” to deal with Grievant. Interpreted least favorably to Grievant, Grievant’s actions could be seen as a deliberate and continuing[13] attempt to criticize and retaliate against S. for complaining. At best, his actions call into serious question whether Grievant’s expressions of remorse were sincere, and thus whether he could truly benefit from counseling and from some form of discipline short of termination.

As noted above, the record is unclear as to whether S. was in fact present at the time Grievant made the “I hope I’m not offending you” comment. It is the County’s burden to establish just cause, however, so I will assume that Mr. S. was not present. Grievant therefore argues that he was “quietly” and “privately” joking with a fellow employee who owned the magazine,[14] someone who obviously could not have been offended because the Sports Illustrated swimsuit issue belonged to him.

With all due respect, I believe this argument misses the mark. The issue in my mind is whether—despite repeated instances of offensive comments to co-workers—it could reasonably be expected that Grievant would benefit from counseling and from another chance to meet his employer’s expectations. Thus, the importance of the “I hope I’m not offending you” comment is what it reveals about Grievant’s attitude, not whether the particular person to whom he made the comment would be offended by the material they were viewing. Grievant’s attitude seemed to be that the County’s concern about his “offensive” conduct was unworthy of being taken seriously. Given that attitude, I do not find that the County violated principles of just cause by terminating Grievant for continuing his pattern of inappropriate interaction with fellow employees shortly after having been warned that such conduct could result in discharge.

Nor do I find that notions of “progressive discipline” require that Grievant should have been suspended prior to termination. After the O. incident, Grievant was notified in writing that similar conduct in the future could result in termination. Exh. C-4. Even after being told that the County was seriously considering termination for his comments to S.—and after Grievant professed to understand the error of his ways—Grievant made the comment about not “offending” a co-worker, demonstrating that he still viewed “offensive” workplace behavior as appropriate material for humor.  Under the circumstances, I cannot fault the County for concluding that a suspension and counseling would in all probability prove futile in changing Grievant’s workplace conduct.

Moreover, in the absence of specific contract language to the contrary, progressive discipline does not require a lockstep progression through escalating forms of discipline—oral warning, written warning, and suspension—prior to termination. Rather, the appropriate level of discipline for misconduct will depend on the specific circumstances involved. Thus, “serious” violations may call for summary termination or for skipping some progressive discipline steps, while less serious offenses, especially when combined with a generally good record, will usually indicate that a more linear advancement through the various forms of discipline is appropriate. In essence, the concept of progressive discipline is based on the notion of “rehabilitation.” Brand, Discipline and Discharge in Arbitration at 57 (BNA, 1998). That is, discipline should be designed to change employee behavior, if possible. But if the record establishes a serious offense (or repeated less serious offenses) and makes clear that a change in behavior is not reasonably to be anticipated, accepted notions of “progressive discipline” do not require a mechanical climb up the ladder of disciplinary options.

Here, Grievant had received prior counseling about his interactions with co-workers. Exhs. U-19, 20, and 21. He had received a specific written warning that future instances of “harassment” could result in discharge. Exh. C-4. Nevertheless, some two months later he engaged in similar misconduct. Even then, the County was prepared to suspend him and send him for counseling until his own conduct made clear that this escalating discipline had been ineffective in getting Grievant’s attention. On this record, I cannot find that progressive discipline required the County to take the chance that another round of discipline short of termination could be “rehabilitative,” especially when the risk of being wrong involved a heightened level of legal exposure to anyone who might fall victim to Grievant’s actions in the future.

Two other arguments on behalf of Grievant deserve mention. First, Grievant contends that others regularly made derogatory ethnic comments without being subjected to discipline. To the extent Grievant’s contention is that “lax enforcement” of the County’s policy against “harassment” failed to alert Grievant to the seriousness of his conduct, I cannot accept the argument. The written warning in the O. incident, and the proposed termination letter in the S. situation, should have made clear to Grievant that abusive comments to co-workers (even if Grievant intended them to be “joking”) were a serious violation of County policy. Yet Grievant apparently still thought the idea that offensive conduct could get him in trouble was a joke. In sum, Grievant’s argument about an atmosphere of ethnic joking might carry more weight had he not been so plainly reminded, shortly before the precipitating events, about the seriousness with which the County viewed such conduct.

Second, based on the same factual allegations of an atmosphere of inappropriate banter, Grievant contends that the County policy was not uniformly enforced. To the extent he relies on the “dildo” incident, the guilty employee there, unlike Grievant, had not previously been disciplined for offensive behavior. Nor is there evidence that the employee was insincere in his commitment to take the prohibition against offensive conduct seriously. Grievant’s “I hope I’m not offending you” comment, on the other hand, gave the County substantial reason to doubt that Grievant intended to and was capable of changing his behavior. Thus, I do not find that the “dildo” employee was similarly situated to Grievant. Arbitrators uniformly hold that “Inconsistent treatment will not be found where the cases being compared are dissimilar.” Brand, Discipline and Discharge in Arbitration at 81.

Nor is there any evidence that Grievant complained about the “Irish” jokes allegedly made at his expense. But see, footnote 7, supra. If the comments were made and they offended Grievant, he had means available to make those feelings clear. There is no evidence he did so. Even if he were offended, however, he had no right to make derogatory comments about Mr. S.’s Hispanic heritage or to treat the County’s concerns on that score as unimportant. In sum, even if I found that others made comments about Grievant’s Irish heritage, those comments were not equivalent to Grievant’s conduct.

The apparent comment of crew chief L. V. (“Hire Mexicans – they’ll work for next to nothing”) is more troubling. I do not find that this evidence prevents a finding of just cause to discharge Grievant, however. There is no evidence that anyone complained about V.’s comment, so the record does not establish that anyone was “offended.” Nor was the comment apparently directed at anyone who was present (unlike Grievant’s comment). It may well be that no one complained about V.’s statement because, in context, everyone understood the comment to be “ironic,” i.e. a parody of an attitude that V. himself found stereotypical and offensive. Even if V. intended this single comment to convey a discriminatory attitude, however, it does not seriously aid Grievant. I have found just cause for Grievant’s discharge not just because he repeatedly made offensive comments, but also because Grievant made fun of the notion that such conduct should be taken seriously by his Employer. And he did so immediately after having been told that the County was considering termination. In other words, V. was not similarly situated to Grievant, either.

In sum, even if I accepted that Grievant believed abusive comments were somehow acceptable because others had made them, he should not have been under any misimpression about the seriousness of his actions after being notified that the County contemplated discharge because of his conduct. Indeed, Grievant demonstrated that he understood the gravity of his situation and what was expected of him by committing, in writing, to treat his fellow employees with respect.[15] He even requested counseling to assist him in meeting those expectations. Nevertheless, the very same afternoon—while his possible discharge was still formally under consideration—he publicly mocked the idea that he should refrain from offending others in the workplace, thus giving the County ample reason to view his “contrition” as feigned. Nor can I find that the County treated Grievant differently from others who were similarly situated.

Finally, Grievant suggests that his behavior should be treated with leniency because he was upset by the serious illness of his brother. Grievant’s pattern of treating fellow workers with insensitivity, however, apparently did not arise with the illness in his family, nor did it seem to change when he became aware of that illness. Rather, over a period of several years, Grievant abused co-workers both before and after learning that his brother was near death. Thus, I do not see a factual basis for finding a causal relation between the illness and Grievant’s alleged inability to grasp his Employer’s expectation that he treat his co-workers with respect.

The County had just cause to discharge Grievant. The grievance therefore must be denied.

AWARD

            Having carefully considered the evidence and the arguments of the parties, I hereby issue the following Award:

The County had just cause to discharge Grievant;

The grievance is denied; and

The Union will bear the fees and expenses of the Arbitrator as provided in the collective bargaining agreement (Article 20.7).

Dated this 12th day of February, 2001

              Michael E. Cavanaugh, J.D.

              Arbitrator

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