The liability associated with sexual harassment
claims has caused many police agencies to adopt the "sustain,
suspend and arbitrate" approach whenever such allegations are
raised. Since both California and federal law require an employer to
take "prompt and effective remedial action" for complaints of
sexual harassment, agencies will often ignore the context of the
communications and impose discipline simply because of the nature of the
exchange.
Many agencies feel that even though the discipline
might not withstand scrutiny at arbitration, such a tactic will protect
the agency in a civil suit brought by the employee who alleged sexual
harassment.
This is precisely what happened to Oakland Police
Officer Ralph Nuno. When a civilian employee complained about specific
comments made by Nuno, the department refused to consider the general
banter that occurred between all the employees in Nuno's unit and the
fact that the atmosphere was both well-known to and condoned by the
supervisors.
On appeal, Arbitrator William Ward overturned
a 10-day suspension and found that the city treated Nuno differently
than it treated other employees. Nuno achieved this successful result
through the representation provided by the PORAC Legal Defense Fund and
Carroll, Burdick & McDonough partner, Alison Berry-Wilkinson.
The case began when Nuno was sitting at his desk
while the female complainant was having a conversation with Nuno's
assigned partner, another female civilian employee, six feet away. The
two women were discussing recent experiences in having been fitted for
bullet proof vests, which included bra size measurements.
Nuno overheard the conversation, which was held in
normal tones of voice, and asked the female complainant about the
"size" of her vest. The complainant was offended by this
comment because she interpreted the question as asking about her bra
size.
Immediately after making the comment, Nuno noticed
that the female complainant looked uncomfortable and offended. Nuno,
realizing that the kind of normal banter he may engage in with his
female civilian partner was not acceptable with the complainant,
apologized 20 minutes later.
More than six months later, the female
employee approached another officer claiming that she was upset because
Nuno constantly made joking comments when she was late to line-up. That
officer mentioned it to Nuno, who immediately stopped making those
joking comments about her not being on time.
Several weeks later the complainant mentioned to the
same officer that she was "uncomfortable" working special
assignment with Nuno because she felt he was sexually harassing her. She
told the officer that she did not want to make a formal complaint of
harassment, but rather, that she simply did not want to be assigned with
him any more.
That officer then advised Nuno of his conversation.
Knowing he had not done anything wrong, Nuno self-initiated an
investigation into her allegations by advising his sergeant the very
next day that the female employee had accused him of sexual harassment.
The evidence clearly showed that the joking comments
made by Nuno were not sexual or made because the employee was female,
but rather consisted of jokes that were evenly distributed to all
employees in the unit, regardless of gender or rank.
Numerous witnesses testified that not only
themselves, but other officers made joking comments about the
complainant and other people being late to lineup.
Further, numerous witnesses testified that Nuno
teased not just the complainant, but anyone who was late to lineup,
including the lieutenant and sergeant.
The complaining employee attempted to bolster her
claim of sexual harassment with allegations concerning other jokes and
comments that were made by Nuno around the office. The arbitrator
rejected these additional incidents by noting that the complainant
seemed to read a negative sexual connotation into completely innocent
comments.
For example, one such comment concerned a photograph
another employee had brought to the office depicting herself dressed in
fancy clothes. Nuno commented upon the background for the photograph,
saying "nice paintings." The complainant claimed that Nuno was
not referring to the paintings, but to the breasts of the individual
depicted.
Similarly, the complainant alleged that Nuno had made
a sexual reference when he stated: "Guess how my wife woke me up
this morning." Because the complainant did not stick around to hear
the answer, the arbitrator concluded that the complainant read a
"negative sexual connotation" into what was said when the
"complete story could have been something innocent, such as his
wife bringing him breakfast in bed to celebrate some special
event."
The city introduced evidence of other sexual banter
that Nuno participated in around the office as support for the fact that
Nuno created a hostile working environment.
But, after Berry-Wilkinson introduced evidence that
almost everyone else in the unit, both male and female, engaged in
similar banter, instigated similar jokes, and that the sergeant was
aware of all this, the arbitrator determined that Nuno could not be
singled out for discipline.
The arbitrator placed responsibility for the alleged
sexual banter where it belonged - on the city.
Since the city permitted that atmosphere to exist and
it was not exclusively Nuno, but rather, virtually everyone who engaged
in this type of banter, the arbitrator held that the city had not
provided adequate notice that the conduct could result in any
discipline, let alone a 10-day suspension.
The arbitrator declined to determine whether the
overall atmosphere in the unit constituted a hostile work environment
for the complaining party.
He simply determined that it would be unfair to
single out Nuno for discipline when virtually everyone in the unit
engaged in similar conduct and the supervisors permitted the atmosphere
to exist.
