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City of Richmond v. Service Employees International Union

October 25, 2010

CITY OF RICHMOND, PLAINTIFF AND RESPONDENT,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1021, DEFENDANT AND APPELLANT.



(Contra Costa County Super. Ct. No. N091830). Honorable Thomas M. Maddock.

The opinion of the court was delivered by: Sepulveda, J.

CERTIFIED FOR PUBLICATION

A city employee was terminated for alleged sexual harassment of a subordinate. The employee denied harassment and challenged his termination as lacking just cause. The dispute was submitted to arbitration, as mandated by the terms of a collective bargaining agreement between the city and the employee's union. The arbitrator ordered the employee reinstated upon concluding that the sexual harassment charge was time-barred because the collective bargaining agreement required any disciplinary action to be implemented within six months of the city learning of the alleged misconduct, and the city did not act in time.

The city petitioned the court to vacate the award on public policy grounds, and the court did so. (Code Civ. Proc., § 1285.) The court held that the arbitrator violated public policy against sexual harassment in the workplace by relying upon the contractual limitation provision to award reinstatement "on purely procedural grounds" without a determination of whether the employee actually harassed his subordinate.

We reverse the trial court's order and remand with instructions to confirm the arbitration award. Arbitral finality is the general rule, and the public policy exception permitting courts to vacate an arbitration award arises in only limited and exceptional circumstances. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 373; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 32 (Moncharsh).) While there is a strong public policy against workplace harassment, the city has not established that public policy precludes arbitral enforcement of a reasonable limitation period contained in a collective bargaining agreement barring stale claims of misconduct.

I. Facts

Dean Vigil was employed by respondent City of Richmond (City) for 28 years, from January 1980 until June 2008, when he was terminated upon allegations of sexual harassment and dishonesty in denying the allegations. Vigil was employed as a Recreational Project Coordinator for the City's Recreation Department and is a member of appellant Service Employees International Union, Local 1021 (Union). The Union represented Vigil during the internal grievance, arbitration, and trial court proceedings. The Union continues that representation on appeal where it contests the trial court's ruling vacating the arbitration ruling.

The claims of sexual harassment were formally investigated by the City in September 2007, when the City retained an attorney to conduct a fact-finding investigation concerning allegations of sexual harassment made by Tamika Cooper, a Program Recreation Leader who reported to Vigil. During the course of the investigation, allegations of sexual harassment by another one of Vigil's subordinates, Jasmine Harris, were included in the investigation. In April 2008, the investigator concluded that Vigil engaged in the behavior the two women alleged. Later that same month, the City gave notice to Vigil that it proposed to terminate his employment and gave him an opportunity to respond to the charges of misconduct contained in the notice of adverse action. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206.)

Specifically, the City charged defendant with sexual harassment of Harris and dishonesty in denying harassment of Cooper when interviewed by the investigator. The charge of sexual harassment was stated in the notice to Vigil as follows: "On or about December 5, 2007, a City employee you formerly supervised, Ms. Jasmine Harris, Recreation Leader, informed the City that you had sexually harassed her between June 2007 and August 2007 when you were her supervisor. Specifically, you spoke to Ms. Harris about her 'shape' stating that she 'has a nice body.' Additionally, you commented on her nipples and told Ms. Harris that you liked to 'please women' and 'eat pussy.' Ms. Harris reported that you made these comments on several occasions. Further, you invited Ms. Harris to accompany you to Japan and offered to take her and her daughter to Marine World. Your comments made Ms. Harris uncomfortable and caused Ms. Harris to request a transfer to another community center. An independent investigation was conducted into Ms. Harris's allegations and the investigator concluded that you did make the statements delineated above."

The charge of dishonesty was stated in the notice to Vigil as follows: "On or about October 24, 2007 and March 19, 2008, you were interviewed by an investigator, Ms. Karen Kramer, retained by the City to investigate the allegations of sexual harassment brought forth by Ms. Tamika Cooper and Ms. Jasmine Harris. You were dishonest during the investigatory interviews. Ms. Kramer concluded in her April 3, 2008 investigatory report that you were 'not honest with [her] when (you) denied sending text messages of a personal nature' and that you made 'a blatant lie about the text messages.' " The investigator had credited Cooper's claim that Vigil sent Cooper text messages saying " 'Yep, u r da 1, a sexy 1 to [sic],' " " 'Yeah I want u,' " and other personal messages, and rejected Vigil's assertion that he sent Cooper only work-related text messages.

The City's notice of adverse action stated that it was disciplining Vigil for his dishonesty in denying sexual harassment of Cooper, and not for the sexual harassment itself, because the memorandum of understanding (MOU) between the City and Union "states that no disciplinary action can be taken 'more than six months after the alleged inappropriate behavior has come to the attention of a management representative.' " In contrast to Cooper's claims of sexual harassment, Harris's claims were supposedly not reported to the City until December 2007, just four months before the April 2008 notice of proposed termination. The City thus proceeded on Harris's claim of sexual harassment, and relied upon Cooper's claims to show a pattern of harassing behavior and dishonesty in denying the behavior to the investigator.

At the Union's request, a hearing was held in May 2008 on the City's proposed termination of Vigil. At the hearing, Vigil disputed the charges of sexual harassment and dishonesty. The City was not persuaded and, on June 10, 2008, formally notified Vigil that he was terminated effective the following day. The Union asked that the employment grievance be referred to arbitration, as provided in the MOU, and the City agreed to arbitration.

The City states, without contradiction, that the arbitration hearing was held over the course of two days in June and July of 2009. We do not have a transcript of the arbitration hearing, only the parties' post-hearing briefs and the arbitrator's decision dated October 15, 2009. The partial record we have indicates that several City employees testified at the hearing, including Vigil and Harris. Cooper did not testify.

The arbitrator concluded that the claim that Vigil sexually harassed Harris was time-barred because the City learned of the alleged misconduct in August 2007 (not in December 2007 as it said) yet took no disciplinary action until April 2008, after the six-month contractual limitation period expired. The arbitrator also concluded that the claim that Vigil was dishonest in denying harassment of Cooper was unsupported by the evidence because Cooper never testified at the hearing and thus never established that there was any ...


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