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Title: Sacramento Regional Transit District and Division 256 Amalgamated Transit Union
Date: May 18, 2001
Arbitrator: R. Douglas Collins
Citation: 2001 NAC 121



In the Matter of a Dispute

– between –


– and –


Discharge of Eddie James McKinnie.
CSMCS Case No. ARB-00-0206.






For the District: 

Palmer Disario Kazanjian Holden
980 Ninth Street, Suite 2000
Sacramento, California 95814
(916) 442-3552

For the Union:

Neyhart, Anderson, Freitas, Flynn & Grosboll
600 Harrison Street, Suite 535
San Francisco, California 94107-1370
(415) 495-4949



            This arbitration arises under the collective bargaining agreement (“Agreement”) between the SACRAMENTO REGIONAL TRANSIT DISTRICT (“District”) and DIVISION 256 OF THE AMALGAMATED TRANSIT UNION, AFL-CIO (“Union”). I was jointly selected by the parties as the impartial chairman of the Board of Arbitration (“Board”). The District designated LARRY M. KAZANJIAN and the Union appointed WILLIAM J. FLYNN as their partisan members of the Board. Article 7 of the Agreement provides that the decision of a majority of the Board is final and binding on the parties.

            The evidentiary hearing in this matter was held January 31, 2001, at the Sutter House Hotel in Sacramento, California. At the outset of the hearing, the parties stipulated that this matter was properly before the Board for final and binding arbitration. Each party had a full and adequate opportunity to call, examine, and cross-examine witnesses and to introduce relevant evidence. All witnesses testified under oath. Grievant was present throughout the hearing. A certified shorthand reporter attended the hearing to record the proceedings and testimony and subsequently produced a verbatim transcript thereof. Each party submitted a post-hearing brief, completing the record herein.


            The parties stipulated that the issue to be decided is as follows:

Did the District have just cause to discharge the Grievant?
If not, what is the appropriate remedy?



Effective March 1, 2000, through February 29, 2004.

. . .


. . .

SECTION 4 – Notations of one (1) year’s standing, or more, on service records of employees will not be considered in disciplinary cases, provided, however, that consideration of notations older than one year but not older than three (3) years will be allowed in disciplinary cases involving preventable accidents, drug or alcohol abuse which is clearly related to job performance.

. . .

SECTION 6 – If, upon review of a suspension or a discharge, it is found that an employee was improperly suspended or discharged, he or she shall be reinstated to his or her former position without loss of seniority and with all of the wages he or she would have earned had he or she not been suspended or discharged paid to him or her. If the review should show that a penalty was justified but the penalty imposed was too severe, the employee shall be returned to duty as above, and that portion of his or her lost wages which was determined to be excessive shall be paid to him or her. It is agreed that, if it is found that the discipline was improperly assessed, no entry shall be made on the employee’s record of such discipline; if the discipline was properly assessed, but found to be excessive, proper notations shall be made in the employee’s records.


. . .

SECTION 4 – The issue to be submitted to the Arbitration Board shall be limited to the grievance as submitted in writing and, unless otherwise agreed in writing, the jurisdiction of the Board shall be limited to the determination of said issue. The Board shall have no authority to modify, vary, alter, amend, add to or take away from, in whole or in part, any of the terms or provisions of this Agreement.

. . .

SECTION 10 – The decision of the majority of the Board shall be final and binding on the parties.


SECTION 1 – All matters pertaining to the management of operations including the type and kind of service to be rendered to the public and the equipment used, the maintenance of discipline and efficiency, the hire, promotion, and transfer of employees and their discharge or discipline for just cause, are the prerogatives of the DISTRICT, subject always to such limitations thereon as are set forth elsewhere in this Agreement.

. . .

SECTION 3 – Any claim that the DISTRICT’s exercise of any prerogative of management or promulgation or enforcement of any rule is violative of any provisions of this Agreement may be made the subject or a grievance or dispute.

. . .


SECTION 1 – The DISTRICT may require any of its employees to submit at any time to a physical examination by a physician duly licensed to practice as such. SECTION 2 – The employee shall be referred to one member of a mutually agreed to panel of physicians specializing in the care and treatment of the illness or injury of the employee. . . .

SECTION 3 – As a condition of continued employment with the DISTRICT, any physical examination above provided for must reveal the physical and/or mental fitness of the employee involved to perform his or her duties.

SECTION 4 – Should any physical examination above provided for reveal physical or mental unfitness caused by disease, defects or disabilities of a temporary and curable nature, and the employee involved is willing to have the cause or causes of such unfitness treated or rectified, then, and in the event, depending upon the particular circumstances of each case:

  1. The employee involved may continue working while undergoing medical treatment if the examining physician shall certify to his or her ability to safely do so, or
  2. The employee involved shall be taken out of service and given a leave of absence for the purpose of undergoing medical treatment until such time as the examining physician shall certify to his or her physical and mental fitness to perform again the duties for which he or she was employed. The seniority of the employee involved shall be unaffected thereby. Such leave of absence shall be subject to the provisions of Article 9, Section 4.

. . .


Effective 3/1/2000 through 2/29/2004


  1. A member who becomes permanently disabled physically or mentally through illness or injury to the extent that he is physically or mentally disqualified from performing his employment with RT for reasons not constituting cause for discharge, shall be eligible for a disability benefit. The determination of the employee’s disability will vest with the Retirement Board and they will make their determination based upon medical evidence of permanent disqualification from the job classification held at the time of such disability.
  2. To be eligible for disability retirement, a member must be so disabled and have had at least ten (10) years of service. . . .

. . .


            Grievant’s Employment History: Eddie James McKinnie, herein called “Grievant,” began working for the District in March 1989. Except for one year during which he worked as a light-rail operator, Grievant was a full-time or part-time bus operator until August 31, 2000, when his employment was terminated as a result of the events described below.

            The record shows that Grievant was disciplined on four occasions prior to the events at issue here.[1] On December 1, 1998, Grievant received a two-day suspension for failure to make ADA announcements. On March 18, 1999, he received a reprimand for passing a coach at a bus stop. On June 16, 1999, he received a reprimand for using a cellular telephone while in revenue service. On November 9, 1999, Grievant was suspended for 30 days for failing to follow his supervisor’s instructions, insubordination, and unnecessary delay of schedule. There is no evidence that Grievant filed a grievance to protest any of the prior discipline. The record also shows that Grievant received a commendation on July 30, 1999.

            Fitness-For-Duty Examination: In November 1999, the District investigated Grievant for allegedly threatening Bus Operator Adelia Clark. Purportedly, Grievant had yelled at Clark, calling her a “snitch,” and threatened to blow up Clark’s house with her and her family in it. As a result of the incident, the District terminated Grievant’s employment effective November 26, 1999. However, the District later determined that it had failed to meet the contractual time limit for processing the termination. It therefore reinstated Grievant effective January 5, 2000. Grievant testified that he was convicted of disturbing the peace, a misdemeanor, and placed on informal probation as a result of this incident.

            On January 10, 2000, Grievant was placed on paid administrative leave pending a fitness-for-duty examination by a psychiatrist selected from the panel of physicians mutually agreed on by the District and Union in accordance with Article 38 of the Agreement. According to Transportation Manager Deidre Brown, this action was taken because of complaints about Grievant by other employees and because of Grievant’s threat against Clark. Brown testified that the District was concerned that Grievant might threaten or harm Clark.

            On February 3, 2000, Dr. Charles B. Schaffer, a psychiatrist, conducted a clinical interview of Grievant. On February 7, 2000, Dr. Schaffer administered two psychological tests (MMPI-2 and MCMI-III) to Grievant. He also reviewed the position description for part-time bus operator in the District, Grievant’s personnel records, and the records of Robert Bittle, M.D., who conducted a work-fitness evaluation of Grievant in 1995. Dr. Schaffer also spoke with Sylvia Newberry, MSW, PhD, who had provided counseling to Grievant in the past, and with Supervisors Melvin Ross and Jim Schwandt. On February 22, 2000, Dr. Schaffer issued the following findings:

  1. Mr. McKinnie is not experiencing a major psychiatric disorder at the current time which is impairing him from performing the duties as a Bus Operator for Regional Transit.
  2. Based on all of the sources of information listed above, there is sufficient evidence to conclude that Mr. McKinnie has significant difficulties in his interactions with some passengers and coworkers at work as a Bus Operator for Regional Transit. This problem with interpersonal relations seems to be a result of his personality style in the setting of his job as a Bus Operator rather than from a disabling psychiatric disorder.
  3. Although there is insufficient evidence to conclude that Mr. McKinnie is an imminent threat to harm himself or others at work, his history of contributing to or having difficulty defusing antagonistic interactions with some passengers and coworkers makes him at risk to lose control and harm others or be harmed by others during any future similar altercations at work.
  4. Mr. McKinnie is probably more suitable for a position at RT which does not involve much direct interaction with passengers. If such a position exists, he might benefit from retraining and reassignment to this position.

            Brown testified that she and other senior managers believed that Dr. Schaffer’s findings were contradictory, particularly findings one and four. On April 10, 2000, Brown and Mark Spangler, an attorney for the District, met with Dr. Schaffer to seek clarification of his opinion. During the meeting, Dr. Schaffer agreed to reconsider his diagnosis if the District provided him additional information about Grievant’s problems with coworkers.

            On July 14, 2000, Brown sent Dr. Schaffer a letter identifying other purported incidents in which Grievant had confrontations with passengers, supervisors, and coworkers. Dr. Schaffer responded by letter dated July 21, 2000, stating that after reviewing the additional information, he had revised his opinion regarding Grievant’s ability to function as a bus operator. Specifically, Dr. Schaffer made the following revised findings:

  1. Mr. McKinnie is impaired from performing the duties as a Bus Operator for Regional Transit as a result of a psychiatric disorder.
  2. Mr. McKinnie would probably not benefit from reasonable accommodation of any kind to his disabling psychiatric disorder.
  3. There is insufficient evidence to conclude that Mr. McKinnie would be less impaired from performing his usual duties as a Bus Operator for Regional Transit if he were to be transferred to another supervisor or reassigned to another unit or working environment with RT.

            Dr. Schaffer testified that the additional information provided by Brown led him to conclude that Grievant had problems dealing with people in general. However, he conceded that he did not speak with Grievant following his receipt of Brown’s letter. Moreover, Dr. Schaffer admitted that much of the information in Brown’s letter concerned events of which he was aware prior to the issuance of his initial report. He also stated that he did not consider whether Grievant was fit to work as a light-rail operator.

            After receiving Dr. Schaffer’s letter, Brown requested clarification as to whether Grievant would be helped by treatment. Dr. Schaffer responded in a letter dated August 4, 2000, that Grievant’s “disabling psychiatric disorder has not sufficiently responded to treatment and will probably not respond to treatment in the foreseeable future.” He concluded that Grievant’s “vocational disability as a bus operator from his psychiatric disorder is permanent.”

            Based upon the information provided in Dr. Schaffer’s letters of July 21, 2000, and August 4, 2000, the District determined that Grievant could no longer be a bus operator. On August 23, 2000, District representatives Don Jeffries and Steve Peppers-Johnson met with Grievant and Union President Don Delis. At that meeting, Grievant was informed that Dr. Schaffer had concluded that he was permanently unfit to work as a bus operator. The District’s representatives also told Grievant that he did not have the minimum qualifications for openings in the classifications of light-rail mechanic A, contract administrator, financial administrator, or administrative supervisor. Grievant was informed that the District intended to terminate his employment at the end of August 2000.

            In a letter to Grievant dated August 30, 2000, Brown confirmed that she intended to medically separate him from employment with the District effective August 31, 2000. She also informed Grievant in the letter that for six months he would remain eligible for consideration for any vacancy for which he qualified. Brown advised Grievant that he was entitled to apply for disability retirement benefits in accordance with Section 8 of the District’s Retirement Plan.

            On August 24, 2000, Grievant filed the instant grievance, which the District denied at each step of the grievance procedure. On October 10, 2000, the Union notified the District by letter of its intent to submit the grievance to final and binding arbitration.

            Dr. Rosenthal’s Evaluation of Grievant: In November 2000, the Union asked Psychiatrist Fred Rosenthal[2] to evaluate Grievant’s fitness for duty as a bus operator or as a light-rail operator. In early December 2000, Dr. Rosenthal conducted a clinical interview of Grievant and administered a psychological test (MMPI-2) to him. Dr. Rosenthal testified that he also reviewed the following documents: the reports from Dr. Schaffer dated February 22, July 21, and August 4, 2000; the job descriptions for bus operator and light-rail operator; various letters from the District to Grievant; and Brown’s letter to Dr. Schaffer.

            Dr. Rosenthal testified that he found that Grievant did not appear to have any significant emotional disorder and that the results of the MMPI-2 did not reveal any serious psychopathology. Dr. Rosenthal further stated that there did not appear to be any serious problem with Grievant’s mental state that would justify considering him to be disabled. He added that if Grievant tends to be easily irritated by job stresses, it might be possible to place him in a position where he would not experience such pressures. Dr. Rosenthal also concluded that Grievant was psychiatrically able to perform the duties of a light-rail operator.

            Dr. Rosenthal testified that he disagreed with Dr. Schaffer’s opinion that Grievant had a disabling psychiatric disorder that would permanently preclude Grievant from employment with the District. According to Dr. Rosenthal, Dr. Schaffer apparently based his opinion on vague and undetailed information contained in Brown’s letter. Moreover, Dr. Rosenthal opined that it would be hazardous to use this information to establish a diagnosis of a serious mental illness without any further psychiatric examination of the patient. He also stated that in his opinion Dr. Schaffer’s finding that Grievant’s unspecified psychiatric disorder would not respond to treatment was “surprising” from a clinical perspective since Grievant appeared to have no psychiatric illness only five months earlier. Dr. Rosenthal further opined that Dr. Schaffer’s conclusions about Grievant’s mental condition were difficult to understand since psychological testing as well as Grievant’s ability to work successfully at another job[3] weigh against the existence of a severe and untreatable mental illness.


The District contends that it acted within its contractual rights in terminating Grievant’s employment. It points out that under Article 38 of the Agreement, it can refer an employee for a fitness-for-duty examination at any time or for any reason. Moreover, the District argues that it fully complied with the Agreement by referring Grievant to a physician who is on the parties’ mutually agreed panel of professionals.

            The District also contends that Grievant’s evaluation was open for further consideration after Dr. Schaffer rendered his initial opinion because there was a discrepancy between the conclusion that Grievant did not suffer from a psychiatric disorder and the conclusion that he posed a risk of violence and would be better suited for a different job. Moreover, the District maintains that regardless of the psychiatric diagnosis, it was clear from Dr. Schaffer’s initial report that Grievant was not fit to work as a bus driver.

            The District asserts that Brown’s submission of additional information to Dr. Schaffer was not prohibited by the Agreement. It contends that the additional information reinforced Dr. Schaffer’s concerns that Grievant was a potential risk to others and enabled him to determine that Grievant had a psychiatric disorder.

            The District disputes the relevance of Dr. Rosenthal’s testimony challenging the conclusions reached by Dr. Schaffer. It argues that although the Agreement does not directly provide that the panel physician’s determination is final, the parties mutually intended that such findings would be conclusive. Further, it asserts that under the terms of the Agreement, it may refer employees only to physicians who are on the panel agreed to by the parties. The District argues that the Union should not be permitted to circumvent that requirement merely because it dislikes the results in a particular case. Although it concedes that both psychiatrists testified honestly as to their professional opinions, it maintains that the Agreement requires that deference be given to the testimony of Dr. Schaffer.

            The District points out that even though he disagreed with Dr. Schaffer’s conclusions, Dr. Rosenthal agreed that Grievant has anger-control problems, that he could benefit from therapy, and that Grievant needs adjustments to his job. It contends that Dr. Rosenthal’s testimony thus supports Dr. Schaffer’s opinion that Grievant is not fit to perform the job of a bus driver as it is presently structured.

            Finally, the District rejects the Union’s suggestion that Grievant be assigned as a light-rail operator, pointing out that transfers are governed by the Agreement. It maintains that the Board’s sole authority in this matter is to decide whether Grievant was improperly discharged.

            For the foregoing reasons, the District asks that the grievance be denied in its entirety. In the alternative, assuming that the Board finds that Grievant was improperly discharged, the District requests that the issue of the appropriate remedy be revisited by the Board in executive session since questions of back pay, reinstatement to an alternative position, and referral to a third physician were not adequately explored in this proceeding.


            The Union argues that the District did not have just cause to discharge Grievant. It contends that even though the Agreement clearly prohibits consideration of events that are more than a year old, the District improperly gave Dr. Schaffer information about incidents in which Grievant was allegedly involved more than a year earlier. It points out that Dr. Schaffer admitted that he considered those stale allegations in reaching his ultimate findings.

            The Union also contends that the Retirement Plan applies in circumstances where an employee is unable to continue working for reasons that do not constitute grounds for discharge. The Union argues that the decision regarding disability is therefore properly made by the Retirement Board rather than by a physician under the provision of Article 38 of the Agreement. The Union reasons that since Grievant had more than 10 years of seniority, the District should have requested the Retirement Board to determine if Grievant was permanently disabled and eligible for disability retirement rather than simply terminating his employment. Moreover, it contends that the District failed to establish a prima facie case of disability since Dr. Schaffer was not asked to consider placing Grievant in a light-rail operator position. The Union points out that light-rail positions involve significantly reduced public contact because the operator works in a booth and is thus separated from passengers.

            The Union further contends that Dr. Schaffer’s psychiatric testimony was not convincing. It argues that Dr. Schaffer’s conclusions should be questioned because he initially found that Grievant was not disabled but later changed his opinion based solely on hearsay accounts of alleged incidents. The Union maintains that Dr. Rosenthal correctly criticized that conclusion from a psychiatric perspective in that the change in Dr. Schaffer’s opinion was based solely on the letter from Brown and the vague and undetailed allegations contained therein. Moreover, it contends that Dr. Schaffer failed to adequately consider treatment for Grievant, pointing out that Grievant’s therapist, Dr. Newberry, believed that Grievant would benefit from treatment.

            For the foregoing reasons, the Union asks that the instant grievance be sustained. To remedy the asserted violation of the Agreement, it asks that the District be ordered to reinstate Grievant with full back pay and benefits, including interest on the back pay. As an alternative remedy, the Union contends that it is within the Board’s authority to order Grievant reinstated with conditions. In the Union’s view, the Board could properly order that Grievant be transferred to a light-rail position to lessen his contact with passengers.


            Having carefully reviewed and weighed all the testimony and evidence presented at the hearing, and after considering each of the parties’ arguments, it is my conclusion that the District did not have just cause to discharge Grievant. While Dr. Schaffer’s initial opinion was reasonably based on appropriate psychiatric criteria, his subsequent opinion rested largely on vague and unsupported hearsay. Moreover, his revised conclusions were inconsistent with both his initial findings and with the persuasive testimony of Dr. Rosenthal. Dr. Schaffer’s revised opinion is thus questionable. It is therefore insufficient to justify the termination of Grievant’s employment.

            The District’s contention that the opinion rendered by a physician on the parties’ panel of physicians should be considered conclusive is not persuasive. As I noted at the hearing, nothing in the Agreement specifically states that such medical opinions are final or otherwise beyond review. Moreover, as also noted on the record, the District has conceded that the termination of an employee resulting from such a medical opinion remains subject to the tests of just cause. While the opinion of a panel physician is generally entitled to great weight, where, as here, the opinion is base on demonstrated irregularities that raise reasonable questions as to the validity of the findings, just cause mandates that a dismissal based on such findings be set aside.

            Dr. Schaffer’s initial opinion was appropriately based on sound medical evidence obtained through his personal interview and psychiatric testing of Grievant. He reasonably concluded that Grievant does not suffer from a major psychiatric disorder and does not present an imminent threat of harm to himself or others. However, Dr. Schaffer also concluded that Grievant has significant difficulty with interpersonal relations, including problems interacting with passengers and coworkers, and is at risk of losing control. He reasoned that Grievant’s problems stem from his “personality style” in the setting of his job as a bus driver. Because of this, Dr. Schaffer concluded that Grievant is more suited for a position that does not involve much direct interaction with passengers. In simpler terms, Dr. Schaffer initially found that while there was nothing wrong with Grievant, his personality makes him better suited for another job. That conclusion is neither inconsistent nor illogical. Moreover, it is essentially consistent with Dr. Rosenthal’s findings, which lends weight to Dr. Schaffer’s initial conclusion.[4]

            Nothing in Dr. Schaffer’s initial report justified the termination of Grievant’s employment. Dr. Schaffer did not find that Grievant was psychologically or medically unfit to continue working as a bus operator. Moreover, Grievant’s difficulty in dealing with others could have been addressed in a number of ways, including counseling, anger-management therapy, reassignment, and progressive discipline.

            However, District management was apparently confused if not dissatisfied with Dr. Schaffer’s initial report and sought clarification. Even though nothing in the Agreement permits such reconsideration of a medical opinion, Dr. Schaffer met unilaterally with management representatives to listen to their concerns. Neither Grievant nor any representative of the Union was present to dispute whatever assertions may have been made, and Dr. Schaffer agreed to consider any additional information that management might provide without giving the same opportunity to Grievant or to the Union. Brown testified that management then began asking other employees if they had any problems with Grievant. Accusations thus gathered were then summarized in a letter from Brown to Dr. Schaffer.

            Brown’s letter consists entirely of vague, unsupported second- and third-level hearsay. The alleged incidents described therein were not witnessed by Brown or by any other person identified in her letter. Those alleged incidents purportedly occurred as much as seven years earlier even though Article 5 of the Agreement prohibits the District from considering incidents that are more than a year old when imposing discipline.[5] Moreover, Dr. Schaffer conceded on cross-examination that he was previously aware of and considered some of the incidents cited in Brown’s letter in reaching his initial conclusions. Remarkably, he also conceded that he did not discuss either the letter or any of the new allegations with Grievant to get his side of the story. Such unquestioning reliance on vague hearsay as a basis for revising a medically sound opinion cannot reasonably be justified. Any removal that flows entirely from such an obviously flawed analysis is thus arbitrary and capricious and without just cause. I therefore find that the District did not have just cause to discharge Grievant.

            The Union’s suggestion that Grievant be reinstated as a light-rail operator is reasonable in that Grievant has both the seniority and experience to fill such a position. Moreover, such an assignment would be consistent with both Dr. Schaffer’s initial recommendation and with Dr. Rosenthal’s conclusions. However, as such reassignments and transfers are properly governed by the Agreement, it would be inappropriate to require such a remedy here. Rather, the question of the reassignment of Grievant is best left to the parties.


            The District did not have just cause to discharge Grievant. To remedy that violation of the Agreement, the District shall reinstate Grievant to his former position or to any other position for which Grievant is qualified, subject to the concurrence of the District and the Union. As a condition of returning to work, the District may require Grievant to submit to a fitness-for-duty examination by a physician mutually agreeable to the parties. In addition, the District may require Grievant to comply with any requirements established by said physician, including but not limited to therapy and anger-management counseling. Finally, the District shall make Grievant whole for all lost wages, benefits, and seniority, less his actual interim earnings, including interest at the legally mandated rate on all monies thus owed to him. In the event that Grievant fails or refuses to comply with any of the conditions herein, the District’s back-pay liability will be deemed to have terminated on the date of this award. Finally, the Arbitration Board shall retain jurisdiction over this matter for the sole and limited purpose of resolving any disputes that may arise between the parties concerning the interpretation, application, or implementation of this award.

It is so ordered.



Impartial Chairman
Board of Arbitration

Dated: May 18, 2001
Los Angeles, California

[] I concur.

[] I dissent.

[] Opinion attached.


District Member
Board of Arbitration


[] I concur.

[] I dissent.

[] Opinion attached.


Union Member
Board of Arbitration


[1] The record does not reference disciplinary actions that occurred before December 1998

[2] Dr. Rosenthal was not then on the panel of physicians mutually agreed on by the District and Union.

[3] Dr. Rosenthal testified that Grievant worked as truck driver for Wesco distributing company following the termination of his employment by the District.

[4] While disagreement between physicians regarding a diagnosis is not sufficient to discredit one opinion or the other, concurrence tends to lend credence to both.

[5] 5 Article 5 permits consideration of discipline up to three years old in cases involving preventable accidents or drug and alcohol abuse that is clearly related to job performance. Those exceptions are not relevant here.

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