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15-P-742                                             Appeals Court

CITY OF SPRINGFIELD     vs.   UNITED PUBLIC SERVICE EMPLOYEES UNION.


                              No. 15-P-742.

        Hampden.       February 11, 2016. - March 25, 2016.

           Present:    Kafker, C.J., Rubin, & Agnes, JJ.


Arbitration, Collective bargaining, Authority of arbitrator,
     Judicial review. Employment, Sexual harassment,
     Termination. Public Policy. Public Employment, Collective
     bargaining, Termination, Reinstatement of personnel. Civil
     Service, Termination of employment, Reinstatement of
     personnel.



     Civil action commenced in the Superior Court Department on
January 2, 2014.

    The case was heard by John S. Ferrara, J.


    Gordon D. Quinn for the plaintiff.
    Lan T. Kantany for the defendant.


    KAFKER, C.J.      The issue presented is whether an arbitrator

exceeded her authority when she ordered a terminated employee

reinstated without loss of pay or other rights, even though she

found that he had engaged in conduct amounting to sexual
                                                                      2


harassment.    Because the mitigating circumstances the arbitrator

identified supported her determination that the employer lacked

just cause for termination, and her order does not preclude

appropriate remedial action to address the employee's sexual

harassment, we conclude that her award does not offend public

policy or require a result prohibited by statute.      We therefore

affirm the Superior Court judge's decision confirming the

validity of the award.

    1.      Background.   The city of Springfield (city) discharged

Gregory Ashe, a long-time employee, following an investigation

and hearing after a coworker complained of sexually

inappropriate conduct.     Ashe, through his union, grieved the

city's decision to terminate his employment.      Pursuant to the

parties' collective bargaining agreement (CBA), the case was

submitted to an arbitrator.     The parties presented the following

question:    "Was the termination of the Grievant Gregory Ashe

supported by just cause?     If not, what shall be the remedy?"

After two days of hearings, the arbitrator issued her award.

She determined that much of the alleged harassing conduct did

occur, but found that mitigating circumstances meant there was

not just cause for termination.     She concluded:   "As a remedy,

the Grievant is entitled to be reinstated to his position

without loss of compensation or other rights."
                                                                     3


    The city sought to vacate the award in the Superior Court

under G. L. c. 150C, § 11.    In its appeal, the city argued that

the arbitrator exceeded her authority under the CBA by

reinstating the employee in direct violation of the public

policy and statutory requirements governing sexual harassment.

The judge, in a written decision, resolved the case on opposing

dispositive motions, denying the city's appeal and affirming the

award.

    The arbitrator's award.    The evidence before the arbitrator

and the facts as she found them are as follows.     The grievant,

Gregory Ashe, is a twenty-two year employee of the Springfield

office of housing (housing office), where he worked as a

messenger, answering telephones and making deliveries.        Ashe was

a member of the United Public Service Employees Union (union),

the collective bargaining unit, at the time of his discharge.

Prior to his discharge, he had a "blemish-free employment"

record with no disciplinary history.

    The arbitrator found that the forty-three year old Ashe has

significant physical and mental health problems.     He suffers

from cerebral palsy, epilepsy, and depression.     Clinical

evaluators determined that Ashe has a "mildly impaired overall

[intelligence quotient] of 74."

    The city based its decision to terminate Ashe on an

incident occurring on December 12, 2012.    On that date, Ashe was
                                                                    4


working at the main desk in the housing office.   He received a

telephone call that apparently upset him, and he went into

Keleigh Waldner's office with a "red face."   Waldner is another

employee of the housing office, and she regularly interacted

with Ashe throughout the course of their employment.    That

interaction included his bringing her food and gifts and

following her around the office.   He was described as having a

"crush" on her.   The arbitrator found, by a preponderance of the

evidence, that he

    "told Waldner that 'the fucking pussy called again,' asked
    Waldner about the meaning of the word 'pussy [after she had
    previously told him not to use such language],' referenced
    'not getting any,' grabbed his crotch on the outside of his
    pants, put his hand inside his pants, started to unbuckle
    his belt, and said 'sorry babe' as Waldner exited the
    room."

    Geraldine McCafferty, the city's director of housing and

Waldner's supervisor, testified during the arbitration hearing

that Waldner was crying and upset after her encounter with Ashe.

She also testified that Ashe told her minutes after the

encounter that he had done "something bad."

    The arbitrator, in her factual findings, credited Waldner's

account of the event in question and found Ashe's "blanket

denials . . . unpersuasive, and self-serving."    The arbitrator

further found that "[w]hile [Ashe's] actions may have been

extremely upsetting to Waldner, she was aware of [Ashe's] mental

and physical challenges."
                                                                     5


    The arbitrator concluded that Ashe's conduct "was a single,

short-lived episode of anti-social behavior by an employee who

posed no reasonable threat to others."   She determined that his

conduct was "caused by lack of medication and profound

depression and explained, in part, by developmental delays."

She also concluded that Ashe's "pliant demeanor makes him an

appropriate candidate for progressive discipline."   The

arbitrator concluded that Ashe's termination "was an excessive

reaction in light of [his] long and problem-free work history

and his developmental delays."

    Finally, the arbitrator determined that Ashe was subjected

to disparate treatment.   The city had declined to terminate

another employee who had, according to the arbitrator, "engaged

in a six-month course of sexual harassment directed at a co-

worker" and received only a reprimand.

    2.   Discussion.   "Consistent with policy strongly favoring

arbitration . . . an arbitration award is subject to a narrow

scope of review."   Lynn v. Lynn Police Assn., 455 Mass. 590, 596

(2010), quoting from Plymouth-Carver Regional Sch. Dist. v. J.

Farmer & Co., 407 Mass. 1006, 1007 (1990).   We uphold an

arbitration award even if "it is wrong on the facts or the law,

and whether it is wise or foolish, clear or ambiguous."     Boston

v. Boston Police Patrolmen's Assn., 443 Mass. 813, 818 (2005).
                                                                     6


       We do, however, vacate an award if "[a]n arbitrator exceeds

his authority by granting relief beyond the scope of the

arbitration agreement . . . or by awarding relief prohibited by

law.    Arbitration, it is clear, may not award relief of a nature

which offends public policy or which directs or requires a

result contrary to express statutory provision."    Lynn Police

Assn., supra (quotations omitted).    See G. L. c. 150C,

§ 11(a)(3), inserted by St. 1959, c. 546, § 1 ("Upon application

of a party, the superior court shall vacate an award if . . .

the arbitrators exceeded their powers or rendered an award

requiring a person to commit an act or engage in conduct

prohibited by state or federal law").

       The city contends that the arbitrator erred in two

respects.    First, the city contends that the arbitrator violated

public policy in not upholding the employee's termination.

Second, the city argues that the arbitrator's remedy -- full

reinstatement without loss of compensation or any other rights

-- thereby precluded the city from taking remedial action

required by the State and Federal law governing sexual

harassment.    The union disagrees with both contentions, arguing

that termination was not required on these facts and that the

arbitrator's award does not leave the city without the authority

to order appropriate remedial action such as counseling or

training to address and correct the employee's misconduct.     We
                                                                     7


agree that termination is not required here and accept the

union's position that the city retains the right and

responsibility to order counseling and/or training to address

the employee's sexual harassment.

    We first address the city's contention that the award

violates public policy.   "There is a three-pronged test we apply

to determine whether public policy requires the court to vacate

an arbitrator's award that has ordered the reinstatement of a

public employee."   Sheriff of Suffolk County v. Jail Officers &

Employees of Suffolk County, 451 Mass. 698, 700 (2008).     First,

the public policy must be well defined and dominant, and

determined from laws and legal precedents, not general

consideration of the public interest.   Massachusetts Hy. Dept.

v. American Fedn. of State, County & Mun. Employees, 420 Mass.

13, 16 (1995).   Second, the "disfavored conduct" must be

"integral to the performance of employment duties."    Id. at 17

(quotation omitted).   Third, the employee's conduct, as found by

the arbitrator, must have required dismissal, and a lesser

sanction would frustrate public policy.    Boston Police

Patrolmen's Assn., 443 Mass. at 818-819.    If all three parts of

the test are satisfied, the award violates G. L. c. 150C,

§ 11(a)(3).   See Sheriff of Suffolk County, supra at 700-701.

    The first two requirements are satisfied here.     First,

Massachusetts maintains a well-defined and dominant public
                                                                     8


policy disfavoring sexual harassment, as is evident from the

statute prohibiting it and the case law applying the statute.

See College-Town, Div. of Interco, Inc. v. Massachusetts Commn.

Against Discrimination, 400 Mass. 156, 162 (1987); Melnychenko

v. 84 Lumber Co., 424 Mass. 285, 290 (1997).    We also conclude

that Ashe's conduct, as determined by the arbitrator,

constitutes sexual harassment prohibited by Massachusetts law

and public policy.

    The union makes much of the fact that the arbitrator did

not explicitly find that Ashe's conduct amounted to sexual

harassment.   We reject the union's argument.   Courts need not

look for specific legal labels to determine if the arbitrator's

findings constitute prohibited conduct.    See, e.g., School Dist.

of Beverly v. Geller, 435 Mass. 223, 231 (2001) (finding that

employee engaged in conduct unbecoming teacher despite award's

lack of specific language to that effect, based on findings made

in award).    We conclude that the facts the arbitrator found here

constitute sexual harassment.    Despite his physical and mental

limitations, Ashe approached a woman who was the focus of his

attentions -- a "crush" in the words of one witness -- and

grabbed his crotch, put his hand inside his pants, and started

unbuckling his belt while referring to the fact that he was "not

getting any."   This constitutes sexually harassing conduct.      See

Melnychenko, supra at 290 ("any physical or verbal conduct of a
                                                                    9


sexual nature which is found to interfere unreasonably with an

employee's work performance through the creation of a

humiliating or sexually offensive work environment can be sexual

harassment under G. L. c. 151B").     The woman he harassed was

understandably upset and concerned despite her knowledge of

Ashe's physical and mental limitations.

    Second, the conduct at issue here is integral to Ashe's job

duties.   His work as a messenger requires him to interact with

countless other city employees, both in person and over the

telephone.     His inappropriate remarks and physical gestures were

precisely the kind of offensive workplace interaction the policy

against sexual harassment seeks to prevent.     See Meritor Savs.

Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); College-Town,

supra at 162 (explaining policy rationale for prohibition of

sexual harassment that results in hostile work environment).

    Nevertheless, the third element of the public policy

exception is not met on the record before us.     Ashe's conduct

here, as found by the arbitrator, did not require dismissal

because a lesser sanction, progressive discipline, would not

violate public policy.     In light of her findings regarding his

significant mental and physical limitations, his pliant

demeanor, and his twenty-two year problem-free work history,

Ashe's misconduct, despite its severity, did not require

termination.    It was within the arbitrator's ample authority to
                                                                 10


conclude that these factors made progressive discipline rather

than termination an appropriate remedy.   The CBA, which she

interpreted, incorporates the city's sexual harassment policy,

and clearly contemplates progressive discipline; both parties

stipulated to the city's long history of using progressive

discipline.   We therefore do not agree with the city that public

policy requires termination on these facts.   Compare

Massachusetts Hy. Dept., supra at 20-21 (public policy

implicated but did not require termination), and Bureau of

Special Investigations v. Coalition of Pub. Safety, 430 Mass.

601, 606 (2000) (public policy did not require dismissal of two

employees who used investigatory access to view tax records of

local celebrities not under investigation), with Boston Police

Patrolmen's Assn., supra at 819 (public policy required

discharge of police officer who "falsely arrested two

individuals on misdemeanor and felony charges, lied in sworn

testimony and over a period of two years about his official

conduct, and knowingly and intentionally squandered the

resources of the criminal justice system on false pretexts").

    We next turn to the city's second argument:    whether the

arbitrator's full reinstatement award, without loss of

compensation or other employment rights, violated statutory

requirements in G. L. c. 151B and Title VII of the Federal Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2012) (Title
                                                                      11


VII), mandating that sexual harassment be addressed and

corrected.     As the Supreme Judicial Court has explained,

"[a]rbitration . . . may not 'award relief of a nature . . .

which directs or requires a result contrary to express statutory

provision.'"    Lawrence v. Falzarano, 380 Mass. 18, 28 (1980),

quoting from Eager, The Arbitration Contract and Proceedings

§ 121.6 (1971).

    We agree with the city that its authority to take

corrective action against Ashe was substantially limited by the

award, and that additional suspension, loss of pay, or loss of

other employment rights for the December 12, 2012, incident

would violate "industrial double jeopardy" provisions.        See

Zayas v. Bacardi Corp., 524 F.3d 65, 69 (1st Cir. 2008) (once

initial sanction is final, subsequent sanction would violate

industrial double jeopardy principles); Elkouri & Elkouri, How

Arbitration Works ch. 15.3.F.vii (7th ed. 2012).     We do not,

however, for the reasons explained below, interpret the award to

preclude appropriate remedial action required by statute,

including training and counseling, to address Ashe's sexual

harassment.

    General Laws c. 151B requires an employer to take some

remedial action in cases of confirmed sexual harassment.        See

College-Town, supra at 162 (employer who is notified of sexual

harassment in workplace and fails to take adequate remedial
                                                                  12


action violates G. L. c. 151B, § 4); Modern Continental/Obayashi

v. Massachusetts Commn. Against Discrimination, 445 Mass. 96,

104-108 (2005) (holding that employer who failed to take

remedial action could be held liable for sexual harassment of

employee by subcontractor's employees); Trinh v. Gentle

Communications, LLC, 71 Mass. App. Ct. 368, 376 (2008) ("An

employer may be found directly liable for discrimination under

G. L. c. 151B, § 4, if it is notified of sexual harassment in

its workplace and fails to take adequate remedial action").     See

also Massachusetts Commission Against Discrimination Guidelines:

Sexual Harassment in the Workplace § VI.6 (2002) ("When an

employer concludes that sexual harassment has occurred, the

employer must take prompt remedial action designed to end the

harassment and prevent future harassment.   What constitutes

appropriate remedial action depends upon the circumstances").

    Title VII similarly requires employers to take remedial

action when they become aware that one of their employees has

engaged in sexual harassment.   See 42 U.S.C. § 2000e; Faragher

v. Boca Raton, 524 U.S. 775, 807 (1998) (holding that employers

are vicariously liable for harassment of employees unless

employer "exercised reasonable care to prevent and correct

promptly any sexually harassing behavior" [emphasis supplied]).

See also 29 C.F.R. § 1604.11(d) (1999) (imposing responsibility

on employer for Title VII violations if it "knows or should have
                                                                   13


known of the conduct, unless it can show that it took immediate

and appropriate corrective action").

     We thus recognize that an arbitration award that precluded

the city from addressing and correcting Ashe's sexual harassment

might violate the State and Federal statutes.   The arbitrator

here, however, did not expressly go that far.   We also interpret

the arbitrator's decision as avoiding such a statutory

violation.   Cf. Starr v. Fordham, 420 Mass. 178, 192 (1995),

quoting from Restatement (Second) of Contracts § 203(a) (1981)

("an interpretation which gives a reasonable, lawful, and

effective meaning . . . is preferred to an interpretation which

leaves a part unreasonable, unlawful, or of no effect"); Lynn

Police Assn., 455 Mass. at 599 ("The arbitrator's order is

therefore not invalid and, in keeping with general principles of

avoiding interference with municipal managerial prerogative,

appropriately leaves the manner of payment . . . to the city's

discretion" [citation omitted]).   The union does not argue that

the award prohibits all measures that would satisfy the

statutory remediation requirement here.1   The union contends (and


     1
       Our conclusion that her award did not directly violate
statutory requirements does not suggest that we agree with the
arbitrator's resolution of the matter without loss of
compensation or other employment rights, as "even our strong
disagreement with the result [would] not provide sufficient
grounds for vacating the arbitrator's award." Bureau of Special
Investigations, 430 Mass. at 606.
                                                                  14


concedes) that the city remains free, for example, to provide

Ashe with counseling and training regarding his sexual

harassment.   In the absence of any argument to the contrary, we

conclude that providing such required counseling and training

does not constitute a loss of employment rights in violation of

the arbitration award.2   We therefore interpret the award as

preserving these rights and responsibilities and avoiding a

result contrary to G. L. c. 151B and Title VII's requirements

mandating appropriate actions to address and prevent sexual

harassment.

     We affirm the Superior Court decision confirming the

arbitration award.

                                    So ordered.




     2
       Indeed, at oral argument, as well as in its brief, the
union referenced the city's sexual harassment policy, integrated
through art. 6 of the CBA, which appears to contemplate
corrective action that would not necessarily be considered
discipline.
