Opinion
No. 443 C.D. 2013
10-11-2013
Snyder County Prison v. Teamsters Local Union 764, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Teamsters Local Union 764 (Union) appeals from an order of the Court of Common Pleas of the 17th Judicial District, Snyder County Branch (trial court) that vacated a labor arbitrator's award. The arbitrator's award sustained grievances filed by the Union against Snyder County Prison (Prison) challenging the discharge of two Prison employees, correctional officers William Griffith and Heather Rohrbach (Grievants), and reinstated Grievants with back pay. The sole ground for vacating the award was that it violated public policy against sexual harassment. Because the conduct found by the arbitrator does not constitute sexual harassment, we reverse the trial court and order that the arbitrator's award be reinstated.
The conduct for which Grievants were discharged consisted of sexual banter with other workers at the Prison that occurred on a single day and shift. On January 15, 2012, while a nurse employed by a third-party contractor at the Prison (Complainant) was distributing medications on the cell block, an inmate placed a love letter on her cart that contained romantic and sexual language. (Arbitration Award at 3-4, Reproduced Record (R.R.) at 5a-6a.) Grievant Griffith, who was accompanying Complainant on her rounds to provide security when she was in contact with the inmates, read the letter to himself while Complainant completed her rounds. (Arbitration Award at 3-4, R.R. at 5a-6a.) When Grievant Griffith and Complainant arrived at the wing of the Prison where Grievant Rohrbach was stationed, Complainant asked Grievant Rohrbach to read the inmate letter to her, and Grievant Rohrbach read the inmate letter out loud. (Arbitration Award at 4, 16, R.R. at 6a, 18a.)
Later in that shift, Complainant, Grievants and another Prison officer, Watch Commander Blessing, discussed the inmate letter while on a cigarette break outside. (Arbitration Award at 5, R.R. at 7a.) During that conversation, Grievants participated in joking that Complainant "likes radiator hoses now" and explained to Complainant that "radiator hose" is slang for a black penis. (Arbitration Award at 5, 17, R.R. at 7a, 19a.) Complainant did not indicate to Grievants that she was upset by the joking or language and did not ask them to stop. (Arbitration Award at 16-18, R.R. at 18a-20a.) Although sexual banter was common at the Prison, Complainant had not complained about sexual language and had participated in sexual banter herself in the past. (Arbitration Award at 14-18, R.R. at 16a-20a.)
At the end of the shift, when Grievants and other correctional officers were clocking out, Complainant heard Grievants singing songs with sexual lyrics and laughing. (Arbitration Award at 5, R.R. at 7a.) Grievant Griffith sang a song about a female corrections officer who was participating in the singing that included the line "She's saving her hymen for" a Prison Watch Commander and someone in the group sang that the Watch Commander's "c--k is c--ked." (Arbitration Award at 5, 18, R.R. at 7a, 20a.) Complainant, who was in another room, thought that the sexual lyrics referred to her. (Incident Report, R.R. at 81a, 86a.)
Complainant filed an Incident Report the next day, January 16, 2012, reporting the inmate letter, stating that Grievants laughed at the inmate letter and read it out loud over her objection, and stating that Grievants sang crude, sexually explicit songs about her. (Incident Report, R.R. at 81a-86a.) This report did not make any complaint concerning the "radiator hose" comment or any teasing during the cigarette break. On January 21, 2012, Complainant filed an additional report complaining that during the January 15, 2012 cigarette break, Grievant Griffith had made the "radiator hose" comment and both Grievants laughed about it. (Supplemental Memo, R.R. at 87a.)
The Prison has a policy prohibiting sexual harassment. (Prison Policy Statement No. PRSNL-8, R.R. at 75a-80a.) This sexual harassment policy provides that the following discipline is to be imposed for conduct alleged to be sexual harassment:
Based upon the determination of the investigation, the Warden, or the Prison Board in the appropriate case, shall take the following action:
* * *
• Only inappropriate conduct occurred, not unlawful, pervasive harassment. The investigation shall be closed, the complaint shall be retained in the investigation file, and the accused shall be warned that the Warden or the Prison Board will not tolerate sexually offensive conduct or sexual harassment and that retaliation or repeat conduct will result in further disciplinary action. The accused shall undergo
retraining on the Prison Board's and Prison sexual harassment policy.(Id., R.R. at 78a-79a) (emphasis added).
* * *
• Sexual harassment occurred. In the case of a one-time, first offense, the investigation shall remain open for periodic checks with the harasser and complainant by the Investigation Team to make sure that the alleged conduct has stopped, the complaint and determination shall be noted in the harasser's personnel file for a period of one (1) year, and the harasser shall be warned that the Prison and Prison Board will not tolerate sexually offensive conduct or sexual harassment and that retaliation or repeat conduct shall result in termination of employment. At the discretion of the Warden, the harasser may be transferred to another department or shift within the prison. If no further incidents of sexual harassment or sexually offensive conduct occurs within one (1) year of the disciplinary action, the notation about the complaint and determination shall be removed from the harasser's personnel file, In the case of repeated, sexually offensive conduct or a second determination of sexual harassment, the investigation shall remain open for periodic checks with the complaining by the Investigation Team to make sure the alleged conduct has stopped, the complaint and determination shall be noted in the harasser's personnel file, the employment of the harasser with the Prison shall be terminated in accordance with any civil service requirements and any other applicable law or ordinance.
Snyder County's Sexual Harassment Review Committee investigated the Incident Report and concluded that Grievants had violated the Prison's sexual harassment policy by singing sexual songs that referred to Complainant, reading the inmate letter aloud over Complainant's objection and participating in the sexual joking about the inmate letter at the cigarette break. (Sexual Harassment Review Committee Letters to Grievants, R.R. at 88a-98a.) On February 14, 2012, the Prison terminated Grievants' employment for their January 15, 2012 conduct based on the Sexual Harassment Review Committee findings. (Warden's Termination Letters, R.R. at 99a-111a.) The Union, as Grievants' bargaining representative, filed grievances on their behalf pursuant to the collective bargaining agreement (CBA) governing Prison employees.
On June 4, 2012, the arbitrator conducted a hearing on the grievances at which Complainant, Grievants, and other corrections officers who were present at the singing incident testified. The testimony before the arbitrator conflicted significantly on the questions of whether Complainant objected to the reading of the inmate letter, whether Complainant indicated to Grievants that she was upset or offended by the joking about the letter, and whether any of the sexual songs referred to Complainant. (Arbitration Award at 4-5, 10, 16-18, R.R. at 6a-7a, 12a, 18a-20a.)
On July 10, 2012 the arbitrator rendered an Opinion and Award in favor of Grievants. In his Award, the arbitrator found Complainant and Grievants all to be credible witnesses. (Arbitration Award at 9-10, R.R. at 11a-12a.) The arbitrator resolved the conflicts in Complainant's and Grievants' testimony based on Complainant's admissions in other portions of her testimony, corroboration from other witnesses, opportunity to accurately hear what was being sung, and which version he believed was more likely under the evidence before him. (Id. at 10, 14-18, R.R. at 12a, 16a-20a.)
The arbitrator found that Complainant over the course of the evening became offended by the laughing and teasing about the inmate letter. (Arbitration Award at 9-10, 16, R.R. at 11a-12a, 18a.) The arbitrator, however, found that Complainant asked Grievant Rohrbach to read the inmate letter to her. (Id. at 16, R.R. at 18a.) The arbitrator concluded that Rohrbach's testimony that Complainant requested her to read the letter was more credible because it was more likely that Complainant would have wanted to know what was in a letter directed to her. (Id.) The arbitrator also found that Complainant did not act offended or upset when the inmate letter was read or the teasing occurred on the cigarette break, and that Complainant did not ask anyone to stop any of that conduct. (Id. at 16-18, 20, R.R. at 18a-20a, 22a.) The arbitrator found that Grievants did not realize that Complainant was offended and did not have reason to know that she would be offended by the teasing about the inmate letter because sexual banter was common at the Prison and Complainant had actively engaged in sexual banter herself. (Id. at 10, 14-18, 20, R.R. at 12a, 16a-20a, 22a.)
With respect to the singing at the end of the shift, the arbitrator found that the sexual lyrics referred to a female correctional officer whose last name sounds very similar to Complainant's last name, and that the songs did not refer to Complainant at all. (Arbitration Award at 18, R.R. at 20a.) The arbitrator based this finding on the testimony of Grievants and other correctional officers, including the female officer to whom the songs referred, finding their testimony more accurate because they were present and in a better position to hear than Complainant, who was in another room and admitted that she could not hear all of what was being said and sung. (Id. at 5, 18, R.R. at 7a, 20a.) The arbitrator further found that the people present where the singing occurred, including the female officer to whom the songs referred, were not offended, and that Grievants had no reason to believe that Complainant, who was not with them, would hear the singing because she was not normally at the Prison at that time. (Id. at 18, R.R. at 20a.)
The arbitrator concluded based on these factual determinations that Grievants had not engaged in sexual harassment and that the Prison did not have "just cause" to terminate their employment. (Arbitration Award at 14-22, R.R. at 16a-24a.) The arbitrator reinstated Grievants to their previous positions with back pay and ordered that the complaint, investigation and discipline be expunged from Grievants' personnel files. (Id. at 22-24, R.R. at 24a-26a.) The arbitrator did not require that the Prison remove the complaint and other records concerning the incident from its non-personnel records. (Id.)
On July 18, 2012, the Prison filed a petition in the trial court to vacate the arbitrator's award. On February 22, 2012, the trial court, on cross-motions for summary judgment, vacated the arbitrator's award and upheld the terminations of Grievants' employment on the ground that the arbitrator's reinstatement of Grievants violated the public policy against sexual harassment in the workplace. On March 22, 2013, the Union timely appealed to this Court.
The standard of review of a labor grievance arbitration award to be applied by both this Court and the trial court is one of great deference. Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 660, 939 A.2d 855, 862 (2007); State System of Higher Education (Cheyney University) v. State College and University Professional Association (PSEA-NEA), 560 Pa. 135, 149, 743 A.2d 405, 413 (1999). The arbitrator's findings of fact are binding on the courts. Bethel Park School District v. Bethel Park Federation of Teachers, Local 1607, 55 A.3d 154, 159 n.4 (Pa. Cmwlth. 2012) ("Courts ... are prohibited from second-guessing the arbitrator's fact-finding") (quoting U.S. Postal Serv. v. Nat'l Ass'n of Letter Carriers, 839 F.2d 146 (3d Cir. 1988)); Tredyffrin/Easttown School District v. Tredyffrin/Easttown Education Association, 56 A.3d 17, 23 (Pa. Cmwlth. 2012) ("An arbitrator's findings of fact are not reviewable by an appellate court"); American Federation of State, County and Municipal Employees (AFSCME) District Council 47 v. City of Philadelphia, 53 A.3d 93, 97 (Pa. Cmwlth. 2012) (same). The court may not review the merits or reasonableness of the arbitrator's award. Westmoreland Intermediate Unit #7, 595 Pa. at 661, 939 A.2d at 863; Cheyney University, 560 Pa. at 149-50 & n.8, 743 A.2d at 413 & n.8; Tredyffrin/Easttown School District, 56 A.3d at 23.
A court may vacate an arbitrator's award only (a) if the award is so without foundation in or rational connection to the collective bargaining agreement that it does not draw its essence from the collective bargaining agreement or (b) if the award violates an established public policy. Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, District Council 33, Local 934, ___ Pa. ___, ___, 52 A.3d 1117, 1121 (2012); Westmoreland Intermediate Unit #7, 595 Pa. at 660-66, 939 A.2d at 862-66; Slippery Rock University of Pennsylvania, Pennsylvania State System of Higher Education v. Association of Pennsylvania State College and University Faculty, 71 A.3d 353, 358 (Pa. Cmwlth. 2013).
There is no dispute here that the arbitrator's award satisfied the requirement that it draw its essence from the collective bargaining agreement, the essence test, and that the only issue is whether the award violated public policy. The trial court vacated the award solely on public policy grounds, and the Prison argues only that the award violated public policy. The essence test requires only that "the issue as properly defined is within the terms of the collective bargaining agreement," and that "the arbitrator's interpretation can rationally be derived from the collective bargaining agreement." Westmoreland Intermediate Unit #7, 595 Pa. at 661, 939 A.2d at 863 (quoting Cheyney University); Cheyney University, 560 Pa. at 150, 743 A.2d at 413. The award is both on an issue within the terms of the CBA and rationally derived from the CBA. The CBA provides that "[t]he Employer shall not demote, suspend, discharge or take any disciplinary action against an employee without just cause" and that employees may challenge a discharge through grievance arbitration. (CBA Art. 13, Art. 18, R.R. at 39a-40a, 42a.) Because the CBA does not define "just cause," the arbitrator was entitled to determine whether the conduct that he found constitutes "just cause" for discharge. Office of Attorney General v. Council 13, American Federation of State, County Municipal Employees, AFL-CIO, 577 Pa. 257, 268-71, 844 A.2d 1217, 1224-25 (2004).
The public policy exception to the essence test is a narrow one. Westmoreland Intermediate Unit #7, 595 Pa. at 665, 939 A.2d at 865; Bethel Park School District, 55 A.3d at 161. The public policy must be "well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." Westmoreland Intermediate Unit #7, 595 Pa. at 666, 939 A.2d at 866; City of Bradford v. Teamsters Local 110, 25 A.3d 408, 413 (Pa. Cmwlth. 2011) (en banc) (quoting Westmoreland); see also Philadelphia Housing Authority, ___ Pa. at ___, 52 A.3d at 1121-24. Whether the arbitrator's award violates an established public policy is a question of law subject to this Court's plenary, de novo review. Philadelphia Housing Authority, ___ Pa. at ___, 52 A.3d at 1121.
There is no question that the Commonwealth has a well-defined and dominant public policy against sexual harassment. Philadelphia Housing Authority, ___ Pa. at ___, 52 A.3d at 1123-24; Slippery Rock University of Pennsylvania, 71 A.3d at 363-65; Bethel Park School District, 55 A.3d at 161. Arbitration awards that require reinstatement where the employee has committed repeated acts of unwanted touching, sexual gestures or sexual propositioning violate this public policy. Philadelphia Housing Authority, ___ Pa. at ___, 52 A.3d at 1118-19, 1124-25 (arbitrator found that employee committed multiple acts of "lewd, lascivious, extraordinarily perverse" conduct, including grabbing co-worker and "grinding" himself against her, asking her if he could "eat her pussy" while she worked, and repeatedly "play[ing] with himself" while talking to her); Slippery Rock University of Pennsylvania, 71 A.3d at 355-56, 363-66 (professor had made sexual comments to students, including asking them how many sexual partners they had had and stating that a particular student "would be his favorite student if she s-----d his d---k," and had previously been disciplined for sexual harassment); Bethel Park School District, 55 A.3d at 155-57, 161-62 (arbitrator found that teacher had repeatedly engaged in unwelcome and inappropriate touching of seventh grade female students and violated restrictions on his contact with students).
The mere fact that the employer asserts a valid public policy, however, is not a sufficient ground to vacate an arbitration award. An arbitrator's award may be vacated for violation of public policy only if the grievant's conduct found by the arbitrator implicates the well-defined and dominant public policy and the award "poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator." Slippery Rock University of Pennsylvania, 71 A.3d at 364 (quoting City of Bradford); City of Bradford, 25 A.3d at 414.
The critical issue here, therefore, is whether the conduct found by the arbitrator constitutes sexual harassment. It does not. The conduct found by the arbitrator occurred on a single day and consisted only of Grievants' reading aloud at Complainant's request an inmate's letter that had sexual content, laughing at the letter and making one joke with sexual language referring to Complainant in her presence, and singing songs with sexual lyrics that were neither about Complainant nor sung to her. Moreover, there was no attempt to make Complainant uncomfortable. The arbitrator found that Complainant asked Grievant Rohrbach to read the letter to her and did not object or indicate that she was uncomfortable with respect to the lone instance of sexual language that related to her. While the crude and vulgar sexual language in the songs that Grievants sang at the end of the shift upset Complainant, the arbitrator found that those songs did not refer to Complainant, and Grievants did not seek to subject her to those songs, as she was not with them and they had no reason to believe that she was even at the Prison at that time.
For conduct of non-supervisor co-workers to constitute sexual harassment, it must be so severe or pervasive that it creates an abusive working environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see also Clark County School District v. Breeden, 532 U.S. 268, 270-71 (2001); Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, 956 A.2d 477, 484 (Pa. Cmwlth. 2008), aff'd, ___ Pa. ___, 52 A.3d 1117 (2012); Infinity Broadcasting Corp. v. Pennsylvania Human Relations Commission, 893 A.2d 151, 158 (Pa. Cmwlth. 2006) (adopting federal harassment standards with respect to Pennsylvania law racial harassment claims). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)" do not constitute sexual harassment. Clark County School District, 532 U.S. at 271 (quoting Faragher); Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)) (citation omitted); Infinity Broadcasting Corp., 893 A.2d at 158 (quoting Faragher). The statutory prohibitions against discrimination are not "a 'general civility code.'" Faragher, 524 U.S. at 788 (quoting Oncale). Mere isolated vulgar and sexual language therefore does not implicate the public policy against sexual harassment. Cf. Philadelphia Housing Authority, ___ Pa. at ___, 52 A.3d at 1125 (noting that the conduct found by the arbitrator was "neither an isolated incident nor confined to words" and that it "went well beyond mere talking or unwelcome 'banter'").
The only non-isolated, arguably pervasive conduct that the arbitrator found was that "the general atmosphere at the Prison is ... an occasionally ribald environment in which sexual banter is common." (Arbitration Award at 15, R.R. at 17a.) The arbitrator, however, also found that Complainant was not offended by the overall atmosphere of sexual banter as she "was generally an active and willing participant in the discussion of sexual matters, and in sexual banter, in the workplace." (Arbitration Award at 14-15, R.R. at 16a-17a.) To constitute sexual harassment, the conduct must be both objectively offensive and subjectively offensive to the complainant. Faragher, 524 U.S. at 787 (to violate the statutory prohibitions against discrimination, "a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so"); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). Moreover, there is no finding or even allegation by the Prison that either Grievant had subjected anyone to any unwanted vulgar or offensive language outside the one day in question.
The trial court held that "[i]f the sexual conversations and banter are as commonplace in the Snyder County Prison as the arbitrator has portrayed, Prison is statutorily required to take steps to address what may be reasonably perceived as an offensive and marginally hostile workplace," and that "[e]nforcing the arbitrator's award herein prevents [the Prison] from fulfilling its legal obligations to its employees" because it "mandates inter alia reinstatement of offending participants." (Trial Court Op. at 8.) We do not agree that the award prevents the Prison from taking adequate steps to eliminate sexual harassment. The arbitrator did not hold that the Prison could not impose any discipline for sexual banter, and suggested that the Prison could and should deal with sexual banter through progressive discipline, such as warnings and monitoring. (Arbitration Award at 11-12, R.R. at 13a-14a.) The award did restore all of the lost wages, employment benefits and seniority that had been imposed on Grievants as a result of the discharge and ordered expungement of their personnel records. (Id. at 22-24, R.R. at 24a-26a.) The charges that the arbitrator ordered expunged, however, had been found by him to be inaccurate, and only expungement from Grievants' personnel records was ordered. (Id. at 22-24, R.R. at 24a-26a.)
Moreover, the contention that the award prevents adequate steps to eradicate sexual harassment is contradicted by the Prison's own sexual harassment policy. For the type of conduct found by the arbitrator here, the Prison's sexual harassment policy does not permit suspension or any loss of employment benefits or status, let alone discharge. Rather, the policy provides that where "[o]nly inappropriate conduct occurred, not unlawful, pervasive harassment," the only discipline that can be imposed is a warning and sexual harassment retraining with no record kept in the employee's personnel file. (Prison Policy Statement No. PRSNL-8, R.R. at 79a.) The arbitrator's award did not prevent the Prison from imposing the very sanctions that it had determined were sufficient to prevent sexual harassment.
For the foregoing reasons, we conclude that the arbitrator's award does not violate public policy. Accordingly, the order of the trial court must be reversed and the arbitrator's award must be reinstated.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of October, 2013, the Order of February 22, 2013 of the Court of Common Pleas of the 17th Judicial District, Snyder County Branch is REVERSED and the Arbitration Award rendered on July 10, 2012 in this matter is REINSTATED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge