Post termination conduct, just cause and public policy

The saga involving a sheriff's deputy first dismissed for allegedly stealing two potted plants continues.

As discussed here (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension) the deputy was accused of stealing the plants from a city park. Grievant claimed she believed they had been abandoned. Arbitrator Dennis McGilligan, applying a "clear and convincing" burden of proof standard, concluded that the City had failed to establish grievant intended to steal the plants. However he found that she had failed to follow the department's policy on abandoned property and deemed a thirty day suspension appropriate. Reacting to testimony concerning grievants admitted post termination conduct of retail theft (shoplifting) the arbitrator noted that while there was little information in the record concerning the incident he deemed a sixty day suspension appropriate.

The Sheriff's office sought to vacate the award, arguing that the arbitrator utilized the wrong standard of proof and improperly ruled on the shoplifting incident. The court remanded the matter back to Arbitrator McGilligan for reconsideration under a preponderance of the evidence standard, and also agreed with the Sheriff that the shoplifting incident had been improperly considered. On remand the arbitrator again found a thirty day suspension warranted for the claimed plant theft.

The Sheriff's office reinstated grievant in accord with the award but dismissed her for the shoplifting incident.

The propriety of that  termination was submitted to Arbitrator Timothy Tobin. Arbitrator Tobin found that the second termination was also without just cause. (Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination). He found that since grievant was not employed by the Sheriff at the time of the incident there was no basis for discipline. He ordered her reinstatement.

The Sheriff's Office also appealed this decision and, according to press reports, the Sangamon County court has overturned the award. (Decision upholds termination, Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft). According to the reports, Judge John Schmidt concluded that the arbitrator's award "is repugnant to the firm, clear and resolute public policy against retail theft" He observed that such acts "are more disturbing when committed by law enforcement officers sworn to uphold the law." Accordingly he found that required grievant's reinstatement would be contrary to public policy.

Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension

Background

Arbitrator Dennis McGilligan has sustained a grievance filed by the Illinois FOP on behalf of a Sheriff's Deputy whose employment was terminated following the alleged theft of two plants from a local park.

Grievant was on duty the night of May 4, 2012. When she stopped at a local park to use the rest room she noticed two plants near the entrance. Grievant testified she assumed they had been abandoned after some function in the park. She place one in her patrol vehicle, drove back to her residence and placed the plant in her driveway. Several days later grievant returned to the park, saw the other plant still there, picked it up and placed it by her front door. In fact, the plants had not been abandoned, but had been placed in the park as part of beautification project.

Following an investigation, grievant's employment was terminated, and she was subsequently prosecuted criminally for theft. At trial, she was acquitted of all charges.

The arbitrator's award

 The standard of proof 

 In reaching his decision, Arbitrator McGilligan first addressed the proper standard of proof to be applied. Agreeing with the Union, he concluded that the appropriate standard was one of "clear and convincing evidence." He found that this was the "appropriate standard of proof when the charges involve theft by a police officer" and that "Such a conclusion is consistent with the standard adopted by most arbitrators in disciplinary cases."

The taking of the plants  

Turning to the merits, the Arbitrator concluded that the Sheriff's Department had not met this test with regard to the allegation of theft. He found no basis to discredit grievant's testimony that she believed the plants had been abandoned, and noted that she had made no attempt to hide them. However, he did conclude that grievant had failed to demonstrate "common sense" in exercising her discretion to determine whether or not to report the plant as abandoned property, and in so doing had violated the Department's Policy on handling abandoned property. Accordingly, and noting she had appeared to have been treated more harshly than male employees who had committed infractions, Arbitrator McGilligan reduced the termination to a thirty day suspension

The post termination conduct

Approximately a year after her termination, (but prior to the arbitration hearing)  grievant entered an "Open Plea" to a charge of "retail theft" for an unrelated incident. The parties jointly described an open plea as an admission of guilt by the defendant, but a withholding of any judgment until the expiration of a period of supervision. If the defendant successfully completes a period of supervision, the underlying charge is dismissed.

At the arbitration hearing, the Department argued that the plea was relevant to grievant's credibility. According to the Arbitrator's award, the employer also maintained that the plea:

...is also relevant to the appropriate discipline in this case. The Employer believes that without question the conduct in question is more than sufficient to sustain the discharge. However, the Employer opines the subsequent theft conviction for conduct that occurred about a year later simply underscores that the Grievant is unfit for duty ever again as a Department Deputy. The Employer also opines that it will have a negative impact on her ability to testify in the future and will need to be disclosed to criminal defense attorneys.

In contrast, the Union argued that the plea should be given no consideration, and the decision should be limited to the reasons given at the time of discharge

After discussing the general principles concerning the impact of post termination conduct, the conditional nature of an open plea and the grievant's general reputation for honesty, the Arbitrator concluded:

...the Arbitrator believes that the Grievant should be disciplined for her post-discharge retail theft. While there is little in the record as to the circumstances of this theft, nevertheless, her behavior is disappointing. ... Therefore, the Arbitrator will impose a sixty (60) day suspension for her post-discharge misconduct. If she does not successfully complete the court supervision then she should serve a suspension from the date of her open plea to the date of her reinstatement.

The Employer's Appeal

According to a report in the Illinois Times (here), The Sheriff's Office has filed suit seeking to overturn the Arbitrator's award. The Sheriff's office claims that the Arbitrator "overstepped his bounds" when he ordered discipline in the shoplifting case. It claims it only brought up the shoplifting issue as a factor in assessing grievant's credibility. The report also notes that the Sheriff had apparently sought to have the Arbitrator reconsider his decision and limit back pay only to the period between the initial termination and the open plea, a request the Arbitrator denied.  It is now seeking to overturn the entire award because it believes the Arbitrator's decision in the plant case and the shoplifting case are "inexplicably intertwined."

The Illinois Times reports on the Arbitrator's decision here, and links to the Arbitrator's award here.

Update: According to a report in  the Illinois Times, a judge has overturned in large part the decision of Arbitrator McGilligan. The court remanded the dispute to the arbitrator with instructions to apply a preponderance of the evidence standard rather than a clear and convincing one. The court also determined that the Arbitrator erred in considering the shoplifting issue as a basis for discipline. Sticky-fingered deputy Judge overturns decision to keep her on the job.

Arbitrator erred in failing to consider post removal events

The U.S. Court of Appeals for the Federal Circuit has found that an arbitrator erred in failing to consider evidence of post-removal events offered in mitigation of the grievant’s alleged offenses. Norris v. Securities and Exchange Commission.

Grievant was employed as a trial attorney with the SEC. He was removed from service based on three emails he sent from his SEC email account. One was sent to the Washington Post in which he identified himself as a Senior Trial Counsel and expressed certain political views, a second was sent to two supervisors and members of the support staff in which he allegedly demeaned the staff, and the third transmitted a confidential SEC report in claimed violation of SEC policies.

Grievant claimed that the conduct alleged was mitigated by his personal circumstances, including his own AD/HD, and medical conditions affecting his wife and daughter. He also presented evidence , including testimony of his psychiatrist, that since the removal his personal circumstances had improved and his conduct was unlikely to recur.

Arbitrator Daniel Winograd upheld the removal. While noting that grievant had presented a sympathetic case, the issue before him was whether the decision to remove grievant “based upon the facts known to [the Agency] at the time, was within ‘tolerable limits of reasonableness” He declined to consider post-removal events in rendering his decision.

On review, the Court of Appeals noted that the standard of review was the same as if the dispute had been heard by the Merit Systems Protection Board. The Court noted that a hearing (either before an arbitrator or the MSPB) may include new evidence regarding either the merits of the underlying claimed misconduct or the appropriateness of the penalty.

The court concluded:

     Thus, we hold that where new evidence in mitigation of the penalty imposed is presented to the Board (or the arbitrator), the evidence must be considered in determining whether the agency's imposed penalty was reasonable.

     In this case, the arbitrator erred in holding that "post-removal ... good conduct is not relevant to the issue before the arbitrator...." In assessing the reasonableness of the penalty imposed, the arbitrator should consider post-removal evidence that was brought to his attention.

Accordingly, the Court remanded the matter to the arbitrator for his consideration of the mitigation evidence, but left to his discretion whether, in light of all the evidence, the penalty was within the “tolerable limits of reasonableness.”