By Anthony Rice
In Orange County, an Arbitrator ruled that the severity of a Fire Inspector’s sexually harassing conduct against subordinates for which he was terminated, outweighed any mitigating factors in his employment record.
The Fire Inspector was employed by the Orange County Fire & Rescue Department for ten years before being terminated for sexual harassment. His termination followed a lengthy investigation which revealed that he had repeatedly engaged in blatant violations of departmental policies regarding sexual harassment and other inappropriate behavior:
The evidence clearly establishe[d] that numerous employees reported and confirmed that the grievant made racially charged comments, pointed and stared at female employees’ breasts, made sexually provocative comments about female employees’ breasts and anatomy, and touched female subordinates inappropriately and intentionally. Further, he threatened multiple employees about speaking out against him in the ongoing investigation and bragged that he would “get away with it,” and that he would “crush” those who spoke out against him.
As described by the Arbitrator, the Inspector’s actions were severe. Although some facts were in disputed, even the Inspector admitted the following:
• He told various subordinates that they should not “get their panties in a bunch”, or words of similar import;
• He would point towards the chests of female employees and raise his finger up when they looked down;
• He used demeaning and inappropriate nicknames including “Iron Maiden”, “Stuttering Stanley”, “Dumb Ass Dan”, “Mr. Clean”, “dumbass”, “dumbass loser,” and “redneck”;
• He referred to himself as “Supreme Commander”, “Superman”, “Most Powerful Supervisor”, and referred to his subordinate employees as “Minions”;
• He told co-workers that he had x-ray vision and could see through clothing;
• He threw paperclips and other objects at other employees on a daily basis
• He made reference to dating family members of subordinate employees, including O__’s mother;
• He told O__ that she had “nice melons”;
• He told T__ that she had “nice pears”;
• He spoke about the investigation to Angela Hurst, S__, and Delores Miranda despite a direct order not to do so.
After finding that “[t]he County clearly had just cause for disciplining the Grievant,” the Arbitrator turned to the Union’s assertion that discharge is an inappropriate penalty in light of the mitigating factors (the Grievant’s commendations and work record). However, after extensive witness testimony at the hearing, the Arbitrator quickly disposed of this argument.
In the grievant’s case, the seriousness and circumstances of his particular conduct clearly outweigh any mitigating factors in his employment record.
. . .
[A]s the County has aptly noted, placing the Grievant back in the same work environment in which he had displayed such odious behavior toward his subordinates, with little more than a slap on the wrist as a punishment, would be a complete travesty of justice.
Editor’s Note (Jim Cline): Progressive discipline is an essential element of just cause and normally harassment is not exempt from that requirement. The Employee here claimed the lack of prior notice that his behavior was unacceptable, which apparently was true, but the Arbitrator was unmoved.
It appears that there were two primary factors which likely influenced this Arbitrator. First, this did not involve isolated or minor acts of harassment. Second, Arbitrators have revealed a tendency to be much less lenient on those Employees who appear to tamper with investigations, as this one reportedly did.
