The Appropriate Punishment for Actual and Perceived Threats in the Workplace-Take Two; the Appellate Court (Sensibly) Speaks

shutterstock_146730020Last year, I wrote about an unsuccessful attempt to vacate a puzzling arbitration award that overturned the termination of a school custodian who made threats of violence. In a decision that was officially  issued on October 13, 2015, the Connecticut Appellate Court has (sensibly) reinstated the original termination.

In Bridgeport Board of Education v. NAEG, Local RI-200, a school custodian (Adam Cleveland) was terminated from his employment after he sent a packet of written materials to various Bridgeport City officials, asserting that he had been a victim of a campaign of harassment by the School District’s Operations Supervisor. Among other things, the packet contained descriptions of the Columbine and Virginia Tech shootings, along with a prediction that the harassing behavior at issue might precipitate an incident.

Cleveland’s union filed a grievance to contest his termination. An arbitration panel acknowledged that 1) the incident constituted a “serious offense,” 2) certain individuals had cause to fear for their lives as a result of the materials, and 3) the conduct would normally justify termination. Notwithstanding these findings, the arbitration panel still determined that Bridgeport lacked “just cause” to terminate Cleveland’s employment. The arbitrators appeared to rely greatly upon the existence of an Employee Assistance Program [“EAP”] in the applicable collective bargaining agreement, and a belief that Cleveland’s actions were a “cry for help.” The arbitration panel ordered Cleveland to submit to the employer’s EAP for an evaluation and “psychiatric work up”; if Cleveland successfully completed the program, and was deemed by medical professionals to be capable of being reemployed, he would then be reinstated to his position.

Bridgeport sought to overturn the arbitration award in the courts, asserting that the arbitration award was in violation of a clear public policy against violence in the workplace. As we noted last year, the Superior Court denied Bridgeport’s application to vacate the arbitration award.  The Appellate Court now has reversed the Superior Court’s decision and vacated the arbitration award, essentially finding that nothing short of termination could vindicate the public policy against workplace violence.

The Appellate Court found it persuasive that 1) the conduct at issue was punishable as a crime, and 2) state law mandates that schools provide a safe learning environment. The Court noted that as an employee of a public school district that is required to provide a safe setting to students (and protect students from imminent harm), Cleveland’s job by its very nature implicates public safety and the public trust, both of which were jeopardized by his conduct. The Court acknowledged the risk of “substantial liability” to employers that fail to eradicate threats to the safety of employees.

The Court relied upon the arbitrators’ own findings regarding the seriousness of Cleveland’s misconduct, but rejected the arbitrators’ “cry for help” rationalization. The conduct itself was inexcusable; indeed, in the context of the Columbine and Virginia Tech shootings, such threats are intolerable. The Court noted that “a lesser sanction would send an unacceptable message to the public and other employees that a threat by an employee to commit random shootings in an educational setting is permissible or excusable.” Finally, the Court looked to Cleveland’s work history, which included past discipline, prior erratic and threatening behavior, and a failure to demonstrate remorse or a willingness to change his behavior. The Court concluded that the likelihood of recidivism was substantial if Cleveland was not terminated from employment, and that the discipline imposed by the arbitrators was not severe enough to deter future infractions.

Lessons Learned? The undisputed findings of serious misconduct, and the threat to safety, apparently grabbed the Appellate Court’s attention. It was logically inconsistent for the arbitrators to find that that the conduct was a “serious offense,” caused individuals to fear for their lives, and would normally justify termination, and then to rule that the employer could not fire this employee. Fortunately for employers, the Appellate Court rejected the arbitrators’ “cry for help” excuse, and noted that the existence of an EAP program or job stress should not serve to excuse the inexcusable.

As we noted previously, employers may face competing pressures of a) providing a workplace that is safe and free of harassment, and b) respecting employee rights in the disciplinary scenario (particularly in the unionized workplace). While employers must weigh these competing pressures on a case by case basis, the Appellate Court gave employers (particular those in the public sector) a basis to err on the side of protecting public safety. Note: this case may eventually be heard by the Connecticut Supreme Court, so stay tuned.