Teacher's use of N word "under his breath" found insufficient to revoke tenure
Arbitrator Peter Adomeit rejected tenure charges against a teacher in a New Jersey school district who was alleged to have used the word while in class. The tenure specification asserted that the teacher "quietly said to himself something to the effect of 'I’m done with these n...s' or 'I’m not trying to deal with these n...s' while walking away from certain students who were disruptive in the class.” Arbitrator Adomeit rejected the teacher's denial that he had used the word, but found the denial was understandable since he had said it "under his breath" and it was therefore stored only in his short term memory.
Nevertheless, finding the tenure charges unwarranted, Arbitrator Adomeit concluded:
The Charges relate to a single incident, not a pattern of misconduct. His conduct will have no harm or serious effect on the maintenance of discipline or the school system. It leaves open the ability of the District to discipline other teachers for direct and open and intentional verbal belittling of students. No student was injured. He did say it to the students. He made the comment under his breath under provocation from a student who refused his request to move the Chrome Book off the pile, challenged his authority, called him “lazy”, and when [grievant] walked over to take the Chrome Book, the student slid it over to another student. At the same time, [grievant] was trying to control other students and had to raise his voice. (This was the seventh period of the day. The students had been in school for a long time.) The impact on [grievant's] career would be devastating. He has good teaching ability, has good evaluations, is initiates regular contact with parents of struggling students, tries to help the students improve, hold all students to high standards, sets limits and adheres to them, and encourages students to meet the standards, regardless of background. Prior to this event, his record shows no discipline. The incident was not premeditated. He did not intend for his thoughts expressed to himself be heard by students; he did not intend to communicate to students. He was muttering to himself, under his breath.
He ordered the teacher's reinstatement and found he should be made whole for any losses. His award can be found here.
The School Board has indicated its intention to seek to vacate the award. Teacher who allegedly used n-word must leave, parents and school board agree at contentious meeting
Officer's racially charged Facebook postings justified employer's two week suspension
Arbitrator Phillip LaPorte issued an award denying a grievance filed on behalf of an Orlando, Florida police officer who had challenged an 80 hour suspension arising from his Facebook activity.
Grievant had joined a Facebook exchange already in progress discussing Black Lives Matter, violence against police officers, and the protest activity of certain professional athletes, including Colin Kaepernick, Michael Bennett and LeBron James. The Arbitrator describes grievant's entry into the discussion:
At the point where the grievant entered the Facebook discussion, the Facebook posting exchange went from an open and cordial discussion between two individuals, ... about violence against police officers and treatment of Blacks in America, to a tirade by the grievant, that included insults, name calling, and inappropriate dialogue laced with degrading and insensitive comments directed toward Blacks, women and people with disabilities. The grievant's comments could be categorized into four different areas: (1) racially based statements; (2) gender-based statements; (3) statements directed toward the disabled; and (4) generally profane and improper comments to citizens.
Arbitrator Phillip LaPorte issued an award denying a grievance filed on behalf of an Orlando, Florida police officer who had challenged an 80 hour suspension arising from his Facebook activity.
Grievant had joined a Facebook exchange already in progress discussing Black Lives Matter, violence against police officers, and the protest activity of certain professional athletes, including Colin Kaepernick, Michael Bennett and LeBron James. The Arbitrator describes grievant's entry into the discussion:
At the point where the grievant entered the Facebook discussion, the Facebook posting exchange went from an open and cordial discussion between two individuals, ... about violence against police officers and treatment of Blacks in America, to a tirade by the grievant, that included insults, name calling, and inappropriate dialogue laced with degrading and insensitive comments directed toward Blacks, women and people with disabilities. The grievant's comments could be categorized into four different areas: (1) racially based statements; (2) gender-based statements; (3) statements directed toward the disabled; and (4) generally profane and improper comments to citizens.
After complaints were filed about grievant's comments, an Internal Affairs investigation was conducted which resulted in grievant being suspended for 80 hours. The suspension was grieved. Grievant acknowledged he had engaged in a "serious" violation of the Department's Social Media Policy but denied it was "extremely serious" within the meaning of the Department's policy. Instead, he argued that a suspension of 16 hours was more appropriate and consistent with actions taken against other individuals . Arbitrator LaPorte rejected grievant's reliance on alleged disparate treatment, finding that the instances cited were not comparable. He also rejected grievant's explanation that his comments were triggered by the recent shooting deaths of two police officers in a neighboring town. While recognizing g that grievant was "an outstanding police officer" the Arbitrator found no basis to disturb the Department's decision on the length of the suspension.
Grievant's Facebooks posts during his exchange included a reference to the three athletes as thugs and "savages". Arbitrator LaPorte found that this language, "aimed at prominent Black athletes" could reasonably be found to express bias in contravention of the Department's policies.
This was not the first time grievant's use of the term "savages" resulted in his discipline. In a prior arbitration, Arbitrator Joseph Schneider sustained a grievance, overturning grievant's suspension for his comment to a crowd, (including a large number of minorities) he was trying to disperse "come on, you savages, its time to go home". (here)Arbitrator Schneider found "[w]hile no other person knows what [grievant's] inner thoughts were, based upon his past record, there was no indication that he intended to disparage any minority group or groups. He certainly could have used the term 'savages' to describe any group or groups engaging in such unruly behavior."
Arbitrator finds firefighter's use of N word didn't justify demotion
Another Orlando case arose from a meal among firefighter. As dessert brownies were served, one of the firefighters, mimicking a scene from a movie, said that grievant should have the last one since "he needs it". Grievant responded "Let the N**** have it." Shortly thereafter he apologized to the other firefighter, who accepted the apology.
Despite the apology, the Department followed up on the incident and ultimately disciplined grievant with a demotion from his Engineer position to a firefighter position. The Union grieved the discipline, arguing that a demotion was inappropriate and that it should be converted to a written reprimand.
Arbitrator Mary Greenwood sustained the grievance in part. (here) She found that, applying progressive discipline, the appropriate penalty should be a 24 hour suspension. Rejecting the Union's position that the discipline should be reduced to a written reprimand she noted:
I disagree with the Union that [grievant] should only have a written reprimand. He has had a written reprimand, even though not for bad conduct. The conduct deserves more discipline than a written reprimand. One of the employees who made vile comments about Hispanics got a 24 hour suspension. I think that sends the right message, but is not so severe to affect his total career. In setting aside the demotion, I have considered all the mitigating factors and the fact that the joking and teasing in this case may have gone too far. If [grievant] had not been mocked and likened to Milton in Open Spaces, this might never have happened.
Arbitrator finds firefighter's use of N word didn't justify demotion
Another Orlando case arose from a meal among firefighter. As dessert brownies were served, one of the firefighters, mimicking a scene from a movie, said that grievant should have the last one since "he needs it". Grievant responded "Let the N**** have it." Shortly thereafter he apologized to the other firefighter, who accepted the apology.
Despite the apology, the Department followed up on the incident and ultimately disciplined grievant with a demotion from his Engineer position to a firefighter position. The Union grieved the discipline, arguing that a demotion was inappropriate and that it should be converted to a written reprimand.
Arbitrator Mary Greenwood sustained the grievance in part. (here) She found that, applying progressive discipline, the appropriate penalty should be a 24 hour suspension. Rejecting the Union's position that the discipline should be reduced to a written reprimand she noted:
I disagree with the Union that [grievant] should only have a written reprimand. He has had a written reprimand, even though not for bad conduct. The conduct deserves more discipline than a written reprimand. One of the employees who made vile comments about Hispanics got a 24 hour suspension. I think that sends the right message, but is not so severe to affect his total career. In setting aside the demotion, I have considered all the mitigating factors and the fact that the joking and teasing in this case may have gone too far. If [grievant] had not been mocked and likened to Milton in Open Spaces, this might never have happened.
She ordered grievant returned to his former position and made whole for any losses less the 24 hour suspension.
Court confirms Arbitrator's award upholding demotion of Sheriff's Department employee for Twitter posts
The Minnesota state District Court confirmed an award of Arbitrator Jeffrey W. Jacobs. Judge affirms arbitrator's decision endorsing deputy's demotion. Arbitrator Jacobs upheld the demotion of a Rice County, Minnesota employee from Sergeant to Deputy because of his postings on a newspaper's Twitter page and subsequent statements to the press. This was an arbitration under the Minnesota Veterans Preference Act, but the standards are essentially the same as a traditional labor arbitration.
After reading an article about the settlement paid to Diamond Reynolds as a result of the police shooting of Philandro Castile, grievant posted on the newspaper's Twitter page "She'll have that spent in six months on crack cocaine." A few seconds later he posted "I hope she loses all her State and County Aid now that she has this cash." Grievant repeated essentially the same comments again approximately 20 minutes later. When contacted about the postings later by a local newspaper grievant claimed they had contacted the wrong person and denied he was a police officer and City councilman and claimed to be a contractor.
After an investigation, the County demoted grievant for violation of several County policies, including the policy on "Employee Speech, Expression & Social Networking." The dispute was submitted to Arbitrator Jacobs who upheld the demotion. The Arbitrator rejected grievant's assertion that his speech was protected by the First Amendment.
The Arbitrator found the employees conduct:
added to the already present perception by some that many law enforcement officers harbor racially negative views. Whether that is true or not is by no means the issue here but it demonstrates the disruptive nature of the impact of his actions here. As noted, the damage done to his department and to law enforcement in general was not merely “de minimus” as the veteran alleged. It was far greater than that and the Sheriff and Chief Deputy testified credibly and persuasively to that effect. The veteran’s actions here cannot be minimized or shrugged off as “no big deal.” The impact on his department was a very big deal and the damage to the public perception may be hard to judge by any objective measure and may well last long into the future. Clearly, the actions he took and the decision he made in this matter caused considerable disruption within the meaning of Pickering and its progeny.
Troubling too was his reaction to being questioned about the post by the press. Instead of admitting to it, talking responsibility about it, trying to somehow explain it or even apologize for it, he lied to the reporter about his identity and claimed he was a general contractor. It was only later, when it was apparent that he indeed had sent the post that he acknowledged that the post was his. At that point, again instead of apologizing, he doubled down on the message and claimed that “history” supported his claims. It was clear that he had no intention of apologizing for his statements or acknowledging the damage they were doing and had done to the department.
Arbitrator overturns termination Hartford Detective for use of racial slurs during his off day arrest for drunk driving - City appealing award
According to newspaper reports, the City of Hartford Connecticut is seeking to vacate an award of Arbitrator Elizabeth Neumeier reinstating a city detective who had been terminated for allegedly making racist slurs while being arrested on drunken driving charges. Hartford fights rehiring of detective who used racial slurs. I'm attempting to obtain a copy of Arbitrator Neumeier's award and will update this post if I can get a copy. The report indicates that Arbitrator Neumeier found termination too severe, and ordered grievant reinstated without back pay.
Similar issues are addressed in:
Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment
Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay
Termination of police officer for Facebook post overturned - City prematurely released information to media
Mayor improperly interfered with discipline of Fire Captain
Court confirms Arbitrator's award upholding demotion of Sheriff's Department employee for Twitter posts
The Minnesota state District Court confirmed an award of Arbitrator Jeffrey W. Jacobs. Judge affirms arbitrator's decision endorsing deputy's demotion. Arbitrator Jacobs upheld the demotion of a Rice County, Minnesota employee from Sergeant to Deputy because of his postings on a newspaper's Twitter page and subsequent statements to the press. This was an arbitration under the Minnesota Veterans Preference Act, but the standards are essentially the same as a traditional labor arbitration.
After reading an article about the settlement paid to Diamond Reynolds as a result of the police shooting of Philandro Castile, grievant posted on the newspaper's Twitter page "She'll have that spent in six months on crack cocaine." A few seconds later he posted "I hope she loses all her State and County Aid now that she has this cash." Grievant repeated essentially the same comments again approximately 20 minutes later. When contacted about the postings later by a local newspaper grievant claimed they had contacted the wrong person and denied he was a police officer and City councilman and claimed to be a contractor.
After an investigation, the County demoted grievant for violation of several County policies, including the policy on "Employee Speech, Expression & Social Networking." The dispute was submitted to Arbitrator Jacobs who upheld the demotion. The Arbitrator rejected grievant's assertion that his speech was protected by the First Amendment.
The Arbitrator found the employees conduct:
added to the already present perception by some that many law enforcement officers harbor racially negative views. Whether that is true or not is by no means the issue here but it demonstrates the disruptive nature of the impact of his actions here. As noted, the damage done to his department and to law enforcement in general was not merely “de minimus” as the veteran alleged. It was far greater than that and the Sheriff and Chief Deputy testified credibly and persuasively to that effect. The veteran’s actions here cannot be minimized or shrugged off as “no big deal.” The impact on his department was a very big deal and the damage to the public perception may be hard to judge by any objective measure and may well last long into the future. Clearly, the actions he took and the decision he made in this matter caused considerable disruption within the meaning of Pickering and its progeny.
Troubling too was his reaction to being questioned about the post by the press. Instead of admitting to it, talking responsibility about it, trying to somehow explain it or even apologize for it, he lied to the reporter about his identity and claimed he was a general contractor. It was only later, when it was apparent that he indeed had sent the post that he acknowledged that the post was his. At that point, again instead of apologizing, he doubled down on the message and claimed that “history” supported his claims. It was clear that he had no intention of apologizing for his statements or acknowledging the damage they were doing and had done to the department.
Arbitrator overturns termination Hartford Detective for use of racial slurs during his off day arrest for drunk driving - City appealing award
According to newspaper reports, the City of Hartford Connecticut is seeking to vacate an award of Arbitrator Elizabeth Neumeier reinstating a city detective who had been terminated for allegedly making racist slurs while being arrested on drunken driving charges. Hartford fights rehiring of detective who used racial slurs. I'm attempting to obtain a copy of Arbitrator Neumeier's award and will update this post if I can get a copy. The report indicates that Arbitrator Neumeier found termination too severe, and ordered grievant reinstated without back pay.
Similar issues are addressed in:
Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment
Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay
Termination of police officer for Facebook post overturned - City prematurely released information to media
Mayor improperly interfered with discipline of Fire Captain
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