Holding: Management did not have just cause to discharge a firefighter charged with off-duty sexual contact, where the complainant did not testify and hearsay did not outweigh the firefighter’s credible sworn testimony that he did not engage in such conduct.
International Association of Firefighters Local 82
121 LA (BNA) 77
Stephen F. Befort, Arbitrator
Did the City have just cause to discharge the grievant for engaging in inappropriate sexual contact with a member of the public? If not, what is the proper remedy?
Article 17 Discipline
The City will discipline employees who have completed the required probationary period only for just cause.... Investigations into an employee’s conduct which do not result in the imposition of discipline shall not be entered into the employee’s official personnel file.
Article 18 Civil Service Rules
The City and the Union agree that they will actively support, for the term of this Agreement, before the Minneapolis Civil Service Commission and otherwise, the existing civil service rules relating to leaves of absence, discharges and appeals, layoffs and reemployment, and suspensions and demotions.
The grievant, B__, has been employed by
the City as a fire fighter since 1999. B__ is a native of
B__ has been the subject of one prior incident that resulted in discipline. The City contended that B__ acted in an inappropriate manner toward two female fire fighters in 2002. According to the findings of the City’s investigation, B__ kissed one fire fighter without her consent and asked another fire fighter inappropriate questions concerning her sexual orientation. B__ testified that he did not engage in the unwanted kiss, but acknowledged that he did ask the questions as alleged. He testified that he did not comprehend the import of the question he posed, and that he apologized once the meaning was explained.
The City imposed a “final warning” for this conduct. B__ did not contest this discipline.
incident leading to the grievance in question initially arose from a fire
assistance call on
first brought the allegation to the City’s attention in a telephone call to
Assistant Fire Chief Jim Clack on
City initiated an investigation led by Assistant Chief Clack and Assistant
chief Ulysses Seal in response to the police report. The City placed B__ on
paid administrative leave and then interviewed him on
The parties’ respective descriptions of the underlying events are very different. The two versions are set out below. The first version is taken from Chief Bleskachek’s interview of W__. B__’s version of events as based upon his testimony at the arbitration hearing then follows. W__, herself, did not testify at the arbitration hearing.
Interview Notes of meeting with Bonnie Bleskachek and W__
I met with W__ in Room 230 City Hall on
W__ briefly recounted the events that lead to her police complaint regarding B__. She stated she had a power line down in her back yard and the fire crew responded. The crew was very helpful and professional. She stated she spoke to the “crew leader” and did not speak to B__. She noticed he was watching her. She told the fire crew that her yard was unkempt and she had hired some men to help her clean it up but they had not done the work. She told them she was worried about being tagged by the city and the wires down made the situation worse. She said the crew was very friendly and calmed her when she was feeling quite “stressed out.”
The next afternoon B__ appeared at her gate and said he could help her clean up her yard. I specifically asked her if they had met at the Super America and she said no. She was certain that B__ had come to her gate, because when he left, her neighbor asked who he was and she had answered that he was one of the fire fighters from the night before. B__ stated he would help her clean up the yard, which she thought was very kind. They talked briefly and then B__ asked her if she would like to go out with him later that evening. W__ said she was flattered and said yes.
B__ picked W__ up at about in the evening, she did not say where they went, but did say he “did not even feed me.” According to W__, they were only out for approximately two hours and returned to her house. When they arrived at her house B__ asked for a kiss and they kissed. When she pulled away to end the kiss she realized B__ had “unzipped his pants and was stroking himself.” W__ stated she was surprised and began to lean to open the door to leave the car. B__ grabbed her arm and restrained her from leaving the car. W__ said she was very frightened and did not want to make him angry. She said B__ asked her to touch him. W__ said she did and looked away because she was disgusted. She felt she had been a fool to trust this man and if he thought cleaning her yard was worth this he was wrong. She said she did not state any of this as she felt if she just “did what he wanted she could get away without being beaten or raped.” She feared making him angry would only heighten his pleasure. Once B__ had ejaculated she yanked her arm away and ran out of the car saying, “I hate you, I hate you.”
* * *
A couple of days later, B__ showed up at W__’s door. She was shocked and frightened and wondered “what does he expect now.” She had been writing out bills and had the phone next to her. She pretended to be on the phone with the phone company. He asked if he could call her about when to do the work in her yard. She thought that talking to him on the phone was more safe and she would tell him to never bother her again via the phone. She turned to write down her number and when she turned back to the door
B__’s pants were unzipped and W__ stated “things were peeking out all over.” She quickly handed him the piece of paper pretending not to notice his erection and shut and locked the door.
W__ decided it was time to call the police. She spoke to a female officer at the fourth precinct. W__ stated the officer told her the behavior was criminal and urged her to file a report. W__ said she did not want to get B__ in trouble, she just wanted [him] to leave her alone, so she did not file a report then. She did call the fire department knowing B__ was a fire fighter to see if the department could do anything to keep him from bothering her.
After speaking with the fire department, she decided to file a report and had a very negative experience with an officer of the fourth precinct. She said he was reluctant to file a report and seemed more interested in the fact B__ was a fire fighter. W__ said she did not feel the officer believed her and she left feeling worse than when she went in.
W__ spoke with her therapist about these events and was encouraged to tell B__ to leave her alone in a very firm manner. W__ stated her therapist thought it was essential for her healing to say no very loud and clear. B__ came to her house a few days later and she met him at the gate. She told him she never wanted to see him again and he should leave her alone. B__ has not contacted her since.
I asked if she had ever asked B__ for money. She said no she had not. I asked if B__ had offered to give her $2000.00. She said no, the only time she had mentioned money or anything to do with money, was when the entire crew was at her house for the fire. She had told the entire crew she was unemployed.
B__ confirmed the initial fire call to W__’s home residence on September 13. He testified that the yard was very messy, with long grass and a considerable amounts of dog feces.
B__ testified that he saw W__ the next day at the local Super America station near her house and near his child’s school bus stop. B__ stated that he was picking up some throat lozenges because he had a cold. They recognized each other and chatted. According to B__, W__ stated that she had a lot of work to do to clean up her yard and that she seemed to be very “down” in terms of her mood. B__ told her that it was his night out that evening (B__ testified that he and his wife each get a “me” day once a month), and he asked her if she would like to come along. He testified that this was not meant as a romantic date, but as a kind gesture to a fellow human being.
B__ picked W__ up around , and they went to Bennegan’s
restaurant where they each had two drinks. According to B__, W__ talked about
her poor health, her trouble sleeping, the fact that her husband had left her,
and that she had lost her job. W__ also mentioned that she had a number of
bills coming due at the end of September and asked B__ if he could give her
$2,000. B__ replied that was rather steep, but that he might be able to arrange
such a sum by the end of October. When
questioned as to why he would give such an amount to a virtual stranger, B__
stated, “it is because I am a humanitarian.” B__
supported this statement with testimony concerning his support of an orphanage
B__ testified that they returned to W__’s residence at about that evening. He stated that he parked his van in W__’s back alley and parked for about three minutes. He denied any sexual contact with W__ and testified that he did not even take off his seat belt before she exited the vehicle.
B__ testified that he stopped by W__’s house on a subsequent occasion while on his way to pick up his son at a nearby school bus stop. W__ was on the phone, and when B__ inquired, she stated that she needed financial help soon. B__ denied any sexually inappropriate conduct during this visit.
Following the completion of the investigation, the City issued Findings of Fact and Conclusions. The Findings of Fact essentially adopted Chief Beskachek’s interview notes with W__ as its version of the relevant facts. The investigative report determined that B__’s conduct violated the following civil service rules:
• Subdivision 4. Insubordination (disobedience, abusive language or behavior).
• Subdivision 10. Discourtesy to public or fellow employees.
• Subdivision 11. Physical abuse, brutality or mental harassment.
• Subdivision 13. Criminal or dishonest conduct unbecoming a public employee, whether such conduct was committed while on duty or off duty.
• Subdivision 18. Violation of department rules, policies, procedures, or City ordinance.
• Subdivision 19. Knowingly making a false material statement to the City’s representative during an investigation into employment related misconduct.
In addition, the report determined that B__ had violated the following fire department rules:
• Rule 3. Criminal, disgraceful or dishonest conduct unbecoming a public employee is prohibited.
• Rule 9. Personnel are subject to the lawful orders of their superior officer at all times.
• Rule 16. Interfering with the work of others or failure to treat the public or fellow employees with courtesy.
City terminated B__’s employment on
Positions of the Parties
The Employer contends that the Employer’s termination of B__ should be upheld because substantial evidence supports Fire Chief Bleskachek’s decision to discharge the grievant for engaging in sexually-related misconduct. Even though the purported victim of this misconduct did not testify at the hearing, the Employer maintains that it has carried its burden of persuasion for three reasons. First, Chief Bleskachek conducted a fair investigation and her decision is entitled to deference. Second, B__’s explanation of the incidents in question are not credible. Third, B__’s conduct resulting in discipline in 2002 is similar in nature to that alleged in this instance. The Employer further maintains that the alleged misconduct, if established by competent proof, warrants the penalty of discharge.
Discussion and Opinion
accordance with the terms of the parties’ collective bargaining agreement, the
Employer bears the burden of establishing that it had just cause to support its
disciplinary decision. This inquiry typically involves two distinct steps. The
first step concerns whether the Employer has submitted sufficient proof that
the employee actually engaged in the alleged misconduct or other behavior
warranting discipline. If that proof is established, the remaining question is
whether the level of discipline imposed is appropriate in light of all of the
relevant circumstances. See Elkouri & Elkouri, How Arbitration Works
948 (6th ed. 2003). In
this case, the
It is important initially to be clear about the question at issue. The Employer argues that its termination decision should be upheld because substantial evidence supports Fire Chief Bleskachek’s decision to discharge B__. This, however, is not the pertinent standard. The question posed under the collective bargaining agreement is whether the Employer has carried its burden to show that it had just cause to discharge the grievant. Even though Chief Bleskachek appeared to be sincere and credible in her belief that B__ should be terminated, that belief, by itself, does not constitute direct evidence of B__’s misconduct.
The Employer’s evidence of misconduct in this instance is supported solely by hearsay evidence. W__ was not called to testify. Her allegations against B__, instead, were presented by Chief Bleskachek who summarized the contents of her interview with W__.
The Employer argues that this evidence should be sufficient because hearsay evidence generally is accepted in labor arbitration cases. While it is true that hearsay evidence frequently is admitted as evidence in arbitration cases, it is quite a different thing to justify a discharge decision only on hearsay evidence.
The leading treatise on labor arbitration—Elkouri & Elkouri, How Arbitration Works (6th ed. 2003) —summarizes the pertinent arbitral principles as follows:
In discharge or discipline cases, witness testimony concerning the facts that led to the disciplinary action comprises the most important evidence.... An employer’s decision to rely solely on hearsay evidence in a case where it has the burden of proof has been deemed insufficient to sustain its case.
... In many cases very little weight is given to hearsay evidence, and it is exceedingly unlikely that an arbitrator will render a decision supported by hearsay evidence alone. Further, hearsay evidence will be given little weight if contradicted by evidence that has been subjected to cross-examination. In IBP, Inc., the arbitrator agreed “that hearsay evidence has a place in the arbitration setting, [but] it cannot outweigh otherwise apparently credible live testimony such as that given before the Arbitrator at hearing by a Grievant.”
... Where an employer failed to have the single accusing witness appear, however, the arbitrator expressed concern because of the accuser’s absence and found insufficient evidence to support the employee’s discharge.
... arbitrators are careful in the admission and consideration and the giving of weight to hearsay because of its inherent unreliability and to insure that it does not result in a lack of due process and a fair hearing to the grievant. This is particularly so when the offered hearsay evidence is critical, essential and material to a determination of the case and is not of a peripheral character, and also particularly so when there is no corroborating evidence of any substance to support the truth of the hearsay evidence.
Arbitrator Berquist found that it was unfair to deny
the union and the grievant the opportunity to test the credibility of the
statements through cross-examination, he ruled that he would only consider the
grievant’s testimony in determining whether the employer had carried its burden
of proof. See also
In another case, an employer terminated a Head Start teacher for two instances of alleged misconduct. At the arbitration hearing, the employer did not call the complaining parties to testify, but instead elicited their information through the testimony of the investigator. Arbitrator Gallagher ruled that the grievant’s sworn testimony outweighed the hearsay evidence and sustained the grievance. AFSCME Council 14 and Ramsey Action Programs, Inc., BMS Case No. 99-RA-7 (Gallagher, 1999).
In this case, it is not necessary to invoke a blanket rule that hearsay evidence alone cannot support a just cause determination. Instead, following Arbitrator Gallagher’s example, it is sufficient to find that the hearsay evidence in question is insufficient to outweigh the grievant’s own sworn recitation of events.
B__, in his testimony under oath, denied that he engaged in any sexual improprieties with W__. His description of the pertinent events is plausible and consistent with his previously transcribed investigatory interview. His demeanor during the hearing appeared to be credible.
The City argues that B__’s version of events is not believable. In particular, the City maintains that it is not credible that B__ would offer to give $2,000 to a virtual stranger. When asked why he would do so, B__ indicated that he felt sorry for W__ and stated, by way of explanation, “I am a humanitarian.”
B__’s anticipated loan, admittedly, is somewhat curious, but does not necessarily undercut his testimony. I found B__ to be somewhat naive, and not fully cognizant of some American customs and terminology. B__’s testimony also depicted him as someone who has concerns for the less fortunate and who has a history of engaging in charitable activities. In this light, it is not implausible that B__’s interactions with W__ were motivated by compassion. In any event, it is not clear how fabricating a money-lending story would assist in masking inappropriate sexual behavior.
It also is noteworthy that the record is essentially devoid of any evidence to bolster W__’s hearsay complaints. The record contains no transcript of W__’s interview or any signed statement of her allegations. The City elicited no testimony from any character witness who could vouch for W__’s veracity. And, the City submitted no evidence to explain why W__ did not testify other than counsel’s statement that it was a “tactical” decision. In the end, the City’s case primarily is premised on the secondhand story of what appears to be a troubled individual.
The grievance is sustained. The Employer is directed to reinstate B__ and to make him whole for any resulting loss in pay or benefits less any compensation that B__ earned in mitigation. The Employer also is directed to correct B__’s personnel records to reflect this determination.