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In re
City of Alton
and
Policemen’s Benevolent & Protective
Association,
Unit
#14
121
LA (BNA) 1288
FMCS Case
No. 05/53832
Geoffrey L. Pratte, Arbitrator,
selected by parties through procedures of the Federal Mediation and
Conciliation Service
Grievance
By his grievance filed on or
about January 10, 2005, which time is in keeping with Article 8, Section 2 of
the Agreement, the Grievant complained he had been discharged without just
cause and demanded to be reinstated and made whole.
Contract Provisions
Among the provisions of the contract
which are relevant to this dispute are the following:
Article 5 Rights of
management
Section
1. The City of Alton or its delegated
representatives retain and reserve the ultimate responsibilities for proper
management of the Police Department including but not limited to the
responsibilities for and the right to the following:
* * *
D. To discipline or suspend
employees for just cause.
* * *
Section
2. It is recognized that the City of
Alton normally exercise most of its powers, rights, authorities, duties and
responsibilities of the Police Department through the office of the Chief of
Police.
Article 8 Job requirements
& discipline
* * *
Section
2. No employee shall be disciplined or
discharged except for just cause. The employer acknowledges that progressive
and corrective disciplinary measures shall normally be followed.
The Chief of Police shall
have the authority to discipline employees up to and including discharge.
Employees may appeal disciplinary action resulting in suspension or discharge
through the disciplinary procedure contained herein. Any grievance so filed
shall be initiated at Step 3 of said grievance procedure. If the employee
and/or the Association is not satisfied with the Step
3 response, the Association may appeal the grievance to arbitration. The
parties hereto by mutual agreement may proceed with an expedited arbitration
procedure. The parties hereto agree that the grievance procedure contained
herein shall be the exclusive remedy for appeals of suspension and/or
discharge.
Article 28 Substance abuse
policy
* * *
Section
4. Employee Assistance Program
Any employee who feels that
he/she has developed an addiction to, dependence upon, or problem with alcohol
or drugs, legal or illegal, is encouraged to seek assistance.
Entrance into the Employee
Assistance Program can occur by self-referral, by the recommendation of a
Supervisor, or as a requirement of the terms and conditions of this Alcohol and
Drug Policy.
When a request is made for
assistance through self-referral, or by Supervisor recommendation,
confidentiality will be maintained between the employee seeking assistance and
the Employee Assistance Counselor.
Rehabilitation itself is
the responsibility of the employee. For an employee enrolled in a formal
treatment program which requires the employee to be off work on scheduled work
shifts, the City will grant leave at full pay up to the employee’s accumulated
sick leave. An employee using up accumulated sick leave will then be allowed to
use his/her vacation and accumulated compensatory time.
In addition, the following
provisions from the Manual of Rules and Regulations are also relevant:
300.16 Insubordination
Failure to or deliberate refusal
of any member or employee to obey a lawful order given by a superior officer
shall be insubordination. Ridiculing a superior officer or his order, whether
in or out of his presence, is also insubordination.
* * *
300.36 Conduct toward
superior and subordinate officers and associates
Members and employees shall
treat superior officers, subordinates, and associates with respect. They shall
be courteous and civil at all times in their relationships with one
another...
Issue
The issue may be phrased as
follows: Was the Grievant terminated for just cause, and if not, what should be
the appropriate remedy?
Statement of Facts
According to documentary evidence admitted at the hearing, the Grievant
had been employed for almost three years with the Sheriff’s Department of
Madison County, Illinois, but had been discharged in early 2000. The
investigator who followed up on his application for employment with the City of
Alton Police Department noted that he had positive references, but also had had
problems getting along with supervisors at the Madison County Sheriff’s
Department; and he recommended that the Grievant not be hired. The Grievant was
hired, however, by a predecessor of the present Chief of Police and began
employment on January 9, 2001.
According to his last
evaluation, dated April 26, 2004, he had an overall score of 85, which placed
him at the lower end of the “excellent” category. He received favorable
comments on most of the criteria used to evaluate him, but was also noted to be
sometimes discourteous to citizens and argumentative and confrontational with
supervisors, even disrespectful. He had received a verbal reprimand in July,
2003 for a minor incident of insubordination (transporting prisoners to county
jail earlier than ordered so that he could go home early, which early leave had
been approved before the need for the transporting was realized). The next day,
he apologized for this incident.
In April, 2003 the Grievant received a one-day suspension for ridiculing
a superior officer to another officer; because he had apologized afterwards,
the suspension was limited to the one day. In
December, 2003 the Grievant was ordered to take a complaint form to a victim
concerning an incident initially worked up by another officer. He delayed in following this
order and complained about the other officer, calling him a “fucking moron.” He
received a suspension of nine days and was removed from eligibility for
“special details” and other overtime assignments for a month and a half. As a
result of a Step 3 grievance meeting, preceded by a written apology from the
Grievant, he was reinstated for eligibility for special details and overtime
upon written verification that he had voluntarily enrolled in a counseling
program designed to address his anger management issues; the suspension
remained in effect, however.
The Grievant undertook a
psychological evaluation on January 18, 2004 and went to follow-up sessions on
March 8 and April 15, 2004. He cancelled a visit on June 15, and was a no-show
for a rescheduled visit on July 1, 2004. He did not reschedule. The doctor he
had seen prescribed two medications, which the Grievant was able to have
refilled until October 1, 2004, when he learned from the pharmacy that his
doctor would no longer allow refills until he saw her again. On October 7 he
called the doctor, who phoned in a seven-day prescription and set up an
appointment for October 13. He said he had stopped at the pharmacy later on
October 7 but the prescription was not yet ready, and he was told to return in
a few hours. Although he felt agitated by the lack of his medications, he
believed he was still fit for duty. (He had not rescheduled visits after his
no-show on July 1 because he felt all right as long as he kept receiving the
prescriptions.)
On October 6 an Officer Gould
had asked Sergeant Carla Pruitt if he could take off on his scheduled shift on
October 7. After checking with her supervisors, she was able to grant Gould’s
request and routinely entered it in the shift book. The same day she was
requested to draw up assignments for the various districts for the next two
weeks, beginning October 7. Also on October 6, the Grievant had examined the
shift book and noted to her that Gould would be off the next day. When she
replied that she had granted Gould’s request, the Grievant expressed anger and
stated he did not want to be reassigned away from “his” District 3. She
reminded him that a more senior officer had been reassigned from Investigations
to Patrol, necessitating some reassignments, and that this had already been
discussed with the officers, who had been instructed to provide a list of their
preferred districts. He claimed that he had provided her with such a list, but
she had never seen it. Later she overheard him telling Officer Pulido that he
would take sick time if he did not receive the time off that he wanted; she
told him he had to be really sick, to which he rejoined that she couldn’t do
anything about it.
Sergeant G__ was the Grievant’s immediate
supervisor on October 7, 2004 for the 6:00 P.M. to 6:00 A.M. shift. The two had
known each other even before the Grievant had joined the force and had been
good friends. When G__ was promoted to sergeant in 2003, the Grievant told him
they couldn’t be friends until he too was promoted, and they gradually became
more distant.
Very early in the shift on
October 7, G__ saw the Grievant going through another officer’s mail; the
Grievant told G__ he did this all the time to see if anything pertained to him.
At roll call when the Grievant learned he had been moved from District 3 to
District 5, he openly questioned “Why are you taking my district away?” in the
presence of the entire shift of officers. A__ , who was G__ ‘s supervisor on
the shift, told the Grievant that because of the reassigned officer he had
switched Officer Pulido to District 3 and then the Grievant to District 5 to
make room for Pulido. The Grievant then openly questioned “What don’t you
understand about Pulido and District 3?” A__ inquired of Pulido, who said he
didn’t want District 3, whereupon A__ on the spot assigned Pulido to District 5
and put the Grievant back into District 3.
At the end of the roll call, G__
told the officers they should not look into other officers’ mailboxes; A__ knew
nothing about this and asked what was happening. The Grievant volunteered that
he had been looking and did it all the time because he was nosey.
October 7, 2004 was a Thursday, and that particular Thursday evening
was anticipated to be active for the police because of certain events taking
place. A__ had told G__ to contact him regarding any request by an officer for
early leave. The Grievant had phoned G__ at his home between 2:00 and 3:00 P.M.
about an early release that night, for around 2:00 A.M. G__ relayed the request
to A__ after the roll call, but A__ said no one could go home early that night.
G__ did not tell the Grievant until around 11:30 that no one could get off
early. The Grievant said he would have to take his request up with A__ ; G__ called A__ to advise him that the Grievant would be
calling him. A few minutes later the Grievant called A__ ,
and they arranged to meet at the police station’s parking lot. They went back
and forth on the matter until the Grievant said “Fuck you, I’ll take sick
time.” A__ told him he wasn’t sick and could not leave early. The Grievant
replied “watch me” and drove off farther to the rear of the parking lot, where
he began removing his duty gear. A__ followed him and told him to remain on duty.
The Grievant said G__ had tried to embarrass him at roll call, A__ was trying
to take away his district, and he had a headache. A__ told him to report to the
Chief the next day.
G__ had heard some of this on
radio and could see the final part of the incident on video; the Grievant
appeared visibly agitated, A__ entered the station and told G__ what had
happened. The Grievant knocked on the door and handed G__ a comp-time sheet.
A__ reminded him to report to the Chief’s office at 9:00 A.M. the next morning.
A__ wrote a memorandum on the incident and gave it to Chief Sullivan on October
8.
Chief Sullivan ordered an
investigation and placed the Grievant on administrative leave. He reviewed the
investigator’s report and accompanying statements and then the Grievant’s work
and disciplinary histories, as well as his past apologies, including one for
the incident of October 7. A disciplinary hearing was held on October 21, with
the Grievant present. Believing that the Grievant’s conduct had become irremediable,
Chief Sullivan discharged the Grievant on January 7, 2005.
Chief Sullivan agreed at the present hearing that some insubordination
might be minor, and that he could not recall any other officer being fired for
insubordination. He had learned before he
discharged the Grievant that he had gone to St. Anthony’s Hospital after
leaving work on October 7, where he was discharged around 2:30 A.M., and that
he had obtained his short-term refill of his prescriptions a few minutes later.
He agreed that the Grievant could have called in sick ahead of time on October
7.
G__ emphasized that he had not
told the Grievant to take up the matter of leave with A__ ,
but that the Grievant had simply informed him he would see G__ . A__ viewed the
Grievant’s insubordination as having begun at the roll call, but he had let
that pass; had nothing else occurred, probably no discipline would have
followed. Later that night, however, the Grievant had again been insubordinate,
first to G__ and then to A__ , both in words and in
deeds, culminating with the Grievant disobeying A__ ‘s order and leaving
work.
Positions of the Parties
The Department’s
arguments may be summarized as follows:
1. The Department’s rule
concerning insubordination, including the definition of it, is reasonable; the
Union has not attacked it.
2. The Union has not disputed the essential
facts and has not claimed that the Department did not accord the Grievant due
process.
3. The record establishes the
Grievant on October 7 was insubordinate while on duty to G__ and twice to A__ , the last two incidents involving outright refusals to
obey lawful orders. His conduct was also insubordinate in that it also
manifested open disrespect for authority.
4. There was no unequal
treatment of the Grievant. The Union’s attempts to show comparable incidents
with disparate disciplines were either not substantiated by any evidence or
were actually met with heavier discipline than the Grievant had received for
his two prior instances of insubordination.
5. The Agreement does not
require progressive discipline in all cases; some offenses are so serious they
warrant discharge for a single violation.
6. The Grievant’s claim that his
conduct on the evening in question was a momentary lapse caused by his lack of
prescribed medication is belied by his ample history of contempt for
authority.
A.
The Grievant told
Pruitt on October 6 exactly what he was going to do on October 7.
B.
The Grievant’s failure
to call his counselor, Dr. Webster, as a witness justifies the inference that
her testimony would have been adverse to him.
C.
The Grievant’s
testimony concerning his medication is inconsistent.
D.
Before October 7 the
Grievant did not notify anyone about a heightened agitation level beginning on
October 1, making his post-discharge efforts at rehabilitation shallow and
irrelevant.
E.
By stopping his
counseling with Dr. Webster and relying only on medication, the Grievant
created his own so-called “agitated” condition, if it really existed at all,
and waited too long for any mitigation of damages.
F.
The Grievant, if he
was in a heightened agitated condition, was not fit for duty if he could not
control his behavior, and should not have reported for work at all. Even if the
agitated condition were viewed as a “disability” under the Americans with
Disabilities Act, he is to be held to the same standards of performance and
behavior as other employees.
G.
If one assumes that
the Grievant’s behavior resulted from some mental condition (which at times
might be a mitigating factor), the Department, nevertheless, can only respond
to what it actually knew or reasonably should have known, which here was
nothing.
i.
The Grievant had not
informed the Department about his medication, that he
had discontinued seeing his counselor, or that he was unfit for duty.
ii.
The Department could
not affirmatively have made inquiries under law, because there was no objective
evidence which would have provided a reasonable belief that the Grievant could
not perform his essential job functions until his behavior on October 7.
7. The grievance should be
denied.
The Union’s
arguments may be summarized as follows:
1. Discharge was too severe a
penalty.
i.
In none of the prior
disciplines for insubordination did the Department require the Grievant to take
any counseling.
ii.
It was the Grievant
who voluntarily enrolled himself in the Employees’ Assistance Program.
2. The Department did not
consider mitigating circumstances.
3. The Grievant is the victim of
disparate treatment, according to a formula enunciated by one arbitrator in
2000.
4. An appropriate penalty would
be conversion of the discharge to a 30 calendar-day suspension, with the
Grievant’s reinstatement conditioned on his taking his medication and on his
continuing his treatment with Dr. Webster until she certifies that he either no
longer needs treatment or needs treatment from another health care
professional.
5. The grievance should be
sustained.
Discussion
It is important to remember that
the Department discharged the Grievant for insubordination shown on October 7,
2004, and not for failing to keep up with his doctor’s appointments and
pursuing his voluntary counseling program. Possibly if he had followed through
on the anger management program, his conduct on the late night of October 7
might not have occurred, but the Arbitrator cannot state that with any
certainty. The Department has pointed out that if he truly believed himself
unfit for duty on October 7, he should have stated so. It is clear that on
October 6 he was making remarks to another officer about taking sick leave on
October 7 if he could not get the time off that he wanted for that day.
Although the Union urges the Arbitrator to find that the Department’s real
motive in discharging the Grievant was his failure to follow up with his
counseling, and that the Department may not fire him for that reason, the
Arbitrator cannot make that leap from the evidence produced, and must conclude
the discharge was rooted in his insubordinate conduct of October 7.
The Grievant had already had two disciplines for insubordination, the
last of which was a nine-day suspension. In view of this, he had to know that
the insubordinate behavior he displayed late on October 7 was so glaring that
no express notice need be given that discharge could be a consequence. Koven and Smith, Just
Cause: The Seven Steps, 2d ed./revised by Donald
Farwell, p. 42 (1992). Summary discharge is typically upheld by arbitrators in
cases of gross insubordination. Koven and Smith, supra, p. 399, n. 68.
(Interestingly, this same authority at 79-80 states that lack of prior notice
of consequences or penalty might call in some cases for discharge to be
overturned.)
The Union essentially does not
dispute what happened insofar as the Grievant’s conduct is concerned. It argues
that the Department was at fault in its prior disciplines of the Grievant for
insubordination because these disciplines were punitive and not corrective, in
that the Department did not require the Grievant to undergo any counseling. The Arbitrator’s understanding
of progressive discipline is not only that it be fair and just from a
substantive level (the punishment should fit the crime) and a due process
level, but that the basic aim is to assist the employee in rehabilitating
himself by putting him on notice that he must cease continued misconduct or
face discharge. This is sought to be achieved by a succession of
penalties which impress upon the employee the idea that he must obey reasonable
rules as part of his duty under the Agreement.
The notion that an employer, in
addition to imposing progressively severe disciplinary steps to get a wayward
employee’s attention, must also require the employee to undergo counseling,
seems to push the envelope quite a bit and to confuse matters by mingling
elements of the so-called “Modified Just Cause Standard” for “troubled”
employees with the normal elements of progressive discipline, even though
traditional progressive discipline is seen as ineffective in correcting improper
behavior of a troubled employee. See The
Common Law of the Workplace: The View of Arbitrators, ed. Theodore J. St.
Antoine, p. 227 (1998).
If this Grievant were to be viewed as a “troubled” employee, things
might be different. The concept of “troubled” employee, however, is applied to
an employee who is addicted to drugs or alcohol, or who has a serious mental
illness. Only the last part would conceivably be applicable to the Grievant
here. The available evidence, however, does not convince the Arbitrator that
the Grievant suffers from a serious mental illness. His problem is in poor
management of his anger, which is not shown by any medical evidence here to
have risen to the level of a serious mental (or personality) disorder under
categories established in the Diagnostic and Statistical Manual III or IV.
Nothing in the records provided by Dr. Webster indicates a serious mental
illness, nor does the condition reflected on the sheet from his emergency room
visit the day following his blowup (anxiety with a headache and stomach ache)
appear to rise to the level of a serious mental illness. Additionally, the
Grievant admitted at the end of the hearing that he had considered himself fit
for work. Mental illness must be well established before an employee is
considered “troubled.”
The parties have negotiated into
this Agreement provisions for an Employees’ Assistance Program, but this covers
drug and alcohol addiction by its terms. The Arbitrator does not believe he can
write an additional provision into the Agreement.
The program the Grievant began was voluntary. It is noteworthy that even in the context of the Employee
Assistance Program established in the Agreement for alcohol/drug addiction, in
cases of either self-referral or supervisor
recommendation, confidentiality “will be maintained between the employee ...
and the Employee Assistance Counselor” and also “Rehabilitation itself is the
responsibility of the employee.” Article 28, Section 4.
The spirit of the provision, if not the explicit language used, seems to put
the employee in control of dissemination of information about his treatment.
The Union claims the Grievant had been performing well while on his medication,
lending support for the Department’s assertion that his behavior up to October
7 had given the Department no objective basis to believe reasonably that the
Grievant was having problems and, accordingly, to compel him to sign a release
so that it could check up on his progress. The onus for the rehabilitation and
for keeping the employer aware of progress in treatment must lie with the
employee.
Finally, the Grievant himself must bear the responsibility for becoming
“increasingly agitated,” as the Union’s brief states. It was the Grievant who missed two appointments with Dr.
Webster, and who did not reschedule in July, August, or September. Dr.
Webster’s letter of October 8 can be read as voicing disapproval for his
conduct in this regard: “refills can only be given if patient shows up for their
scheduled appointments”; “He only called yesterday...”; “no refill can be
authorized until he shows compliance with his office visits.” The phrases
quoted hardly show approval of his failure to maintain appointments.
The Grievant chose not to call
Dr. Webster to testify about his condition; instead he rather flippantly stated
on cross-examination that “You’ll have to ask her that” in reply to a question
about why Dr. Webster had scheduled him to return for treatment twice in the
summer of 2004. Dr. Webster is a witness easily more “available” to the
Grievant than to the Department, and his failure to call her does justify an
inference that her testimony would be adverse to him.
The Union argues the affirmative
defense of unequal and discriminatory treatment of the Grievant. In doing so,
it bears the burden of proof that the Grievant was treated differently than
others and that the circumstances surrounding his offense were substantially
like those of employees who received lesser penalties. Elkouri
and Elkouri, How Arbitration Works,
6th Ed., 996-97 (2002). Variations in penalties are allowed if there is
a reasonable basis for the variations, and factors to be considered include the
nature of the offense, degree of fault, mitigating circumstances, length of
service, and work record. Elkouri and Elkouri, supra, 996, n. 378.
Some of the incidents which the
Union attempted to use as instances of disparate treatment lacked any
evidentiary support and were simply not established at all. In its brief, the Union
refers briefly to a thirty-day suspension given to an officer who signed
another officer’s name to a payroll check; there was little evidence about
this, however, and without more the Arbitrator cannot conclude there was
disparate treatment.
The other incident mentioned by
the Union involved a situation in which several of the Department’s officers
had been accused of using excessive force in making an arrest. Evidently as
part of an overall settlement among the attorneys for the officers, the Department,
and the State’s attorney’s office, these officers received suspensions but were
not subject to criminal charges nor to formal charges
by the Department.
The Union argues that this
incident is evidence of disparate treatment, relying on a decision by
Arbitrator Moore in In re Metropolitan Washington Airports Authority,
114 LA (BNA) 589, 594 (2000). Arbitrator Moore posited four elements to be
satisfied for disparate treatment:
A.
the compared offense
should be equally or more serious than that of the grievant;
B.
the penalties for the
compared offense should have been significantly less severe;
C.
the compared offense
should be reasonably contemporaneous with the grievant’s (he found five years
to be reasonable); and
D.
the rank of the person imposing or failing to impose the
penalty for the compared offense should be comparable to that of the present
deciding officer.
Obviously the Union cites this
case for its formulation; Arbitrator Moore himself had little difficulty in
finding that the alleged comparable incidents offered by the union were not
well established by the evidence as being true comparables, since “files were
not produced” and witnesses had little recall of the facts. In re
Metropolitan Washington Airports Authority, supra, 595.
Ironically, that case involved
suspension of an officer who called his supervisor officer a “fucking moron”
and then refused to obey orders, claiming that he was sick; the grievant had
over eleven years of service, a consistent good performance rating, and no
evident disciplinary problems. The arbitrator upheld the thirty-day suspension.
The formulation used by
Arbitrator Moore evidently rests in various decisions from cases before a Merit
System Protection Board, which evidently is a special system set up to handle
grievances concerning local employees in the Washington, D.C. Metropolitan
Area. The decision is not cited in the Sixth Edition of Elkouri and Elkouri, supra, although that edition came out in
2003, nor is the formulation as laid out mentioned there. Nevertheless, this
Arbitrator has no objection to the formulation and believes it generally
useful. That said, however, he does not believe it helpful for the Grievant
here, for much the same reasons Arbitrator Moore did not find it helpful in the
case before him.
In the alleged comparable, we know nothing about the prior disciplinary
records of the officers involved, nor do we know anything about their
respective seniority or work records. We also do not know the length of the suspensions,
nor do we know if the disciplinary settlement had any interplay with the
possibility of a civil action. We do not know
in what the excessive force consisted. As in the grievance before Arbitrator
Moore, the Union has not carried its burden of proof to establish a comparable
for purposes of showing disparate treatment.
The Union’s representative,
faced with a rather strong case against the Grievant, employed some skillful
and imaginative tactics on his behalf, as well as forceful cross-examination.
That excellent representation cannot be successful here, however. The Grievant has had his
chances, and his written apologies, which aided him in the past, now only serve
to show that his offensive behavior has run its course and the termination is
proper.
Award
For the reasons given above, the grievance is denied.