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Sexual Harassment

Posted on Wednesday, June 01, 2005 at 12:00PM
Posted by William R. Rapoport 

On July 12, 2001, Officer Gilbert Granado of the San Carlos Police Department (PD) came in to the department after a court appearance but before his evening shift began and noticed that one of the female records clerks (complainant) seemed to be despondent. He motioned for her to follow him to one of the sergeant’s offices and when they were both in the office and the door closed, he gave her a hug and asked what was wrong. To his surprise, and contrary to their prior interactions, both during and after work, she pushed him away and said, “What are you doing?” Based on her unusual reaction, he apologized and he said he did not mean anything by it, and both of them left the office. The complainant, a few hours later, complained to her supervisor about this matter and was advised of the department’s sexual harassment policy, which required a formal complaint, if she wished one, to be filed within five days. The complainant declined to file a formal complaint at that time. Six weeks later, and after encouragement (and no doubt, pressure) from the chief of police and a commander, the complainant filed a formal complaint of sexual harassment against Granado. This complaint was well beyond the mandatory five-day formal reporting period.

Prior to the date of this incident, Granado had been a sworn officer for 13 1/2 years with the Redwood City Police Department (PD) with an unblemished record except for a one-day suspension in 1989 for an accidental discharge of his duty weapon. He left the Redwood City PD for a change in career and became a general contractor specializing in HVAC. At the time, Granado left the Redwood City PD, Captain James Granucci was being considered for the job of chief of the San Carlos PD, which he eventually took. As soon as Granucci became the chief of the department, he called Granado and asked him to apply at the San Carlos PD. Granado was reluctant to go back into police work, but agreed to apply and was, shortly thereafter, hired as an officer with the department. Granado immediately was promoted to field training officer and soon became the vice-president of the Police Officers’ Association (POA). As the POA vice-president, Granado butted heads with one of the commanders of the department on numerous P.O.A. matters.

There was a family-like atmosphere at the San Carlos PD both before Granado arrived and after the July 2001 incident, where sworn and non-sworn personnel alike would hug each other at the police department, and at social events outside of work. Granado’s relationship with the complainant had always been friendly and she had sought him out for advice on personal matters relating to her dating sworn members of the police department, problems at home, and personnel matters at work. They had even shared information on dieting before the date of the incident. However, the complainant’s best friend at the department was a dispatcher who had suffered a D.U.I., and Granado was charged with overseeing the administration of the P.A.S. test to this dispatcher every shift when she came on duty. The dispatcher blamed Granado and developed a substantial animosity toward him, which she shared with the complainant in a time shortly before the date of this incident.

The complainant filed her formal complaint against Granado in September 2001, and Granado was terminated for sexual harassment on November 26, 2001. The parties selected Matthew Goldberg as the arbitrator, and the arbitration relating to Granado’s appeal of his termination was held on April 8, 9 and 22, 2002. Goldberg issued his decision and award in two parts. The first part found a factual basis for the conduct, but did not make a finding of the appropriate discipline. Goldberg’s reluctance in issuing a decision and award regarding actual discipline was remedied in a supplemental decision and award which imposed a 90-day suspension on Granado and ordered him returned to work with the balance of his back pay and benefits.

The city of San Carlos filed a “Petition to Vacate” the award and supplemental decision and award, claiming as it had from the outset, that the Memorandum of Understanding language prohibited any arbitrator from making a “just cause” finding, citing the applicable MOU provision which stated as follows:

“. . . . In the event the dispute is referred to arbitration and the arbitrator finds that the city had the right to take the action complained of, the arbitrator may not substitute his/her judgment for the judgment of management, and if he/she finds that the city had such right, he/she may not order reinstatement and may not assess any penalty upon the city.”

Based on that language, the city argued that the issue for the arbitrator was as follows:

“Was the factual basis supporting the discharge of Gil Granado reached honestly, after an appropriate investigation and for reasons that are not arbitrary or pretextual? If not, what remedy?”

Counsel for grievant argued that the issue was as follows:

“Whether just cause exists for termination. If not, what should the remedy be?”

The city argued to the Superior Court of San Mateo County that the provisions of the MOU should be interpreted pursuant to three cases: (1) Cotran v. Rollins Hudis Hall Internat, Inc. (1998) 17 Cal. App. 4th 93, (2) Advanced Micro Devices, Inc. v. Intel Corporation (1994) 9 Cal. App. 3rd 362, and (primarily) (3) California Faculty Association v. Superior Court (1998) 63 Cal. App. 4th 935. Using the California Faculty Association case, the Superior Court vacated the arbitration award and in its minute order stated as follows:

“The motion to vacate the August 19, 2002 award is granted. The finding in the October 25, 2002 order that the city did not have a right to take the action at issue is inconsistent with the findings or the original order and award that there was a factual basis for the city’s action . . . . The matter is remanded for another hearing with a different arbitrator . . . . “

Outside counsel for the city of San Carlos has, in other arbitrations (one of which is presently pending) argued the California Faculty Association holding again, and it is anticipated that this is a matter that may find its way into other arbitrations in California being raised, erroneously, by other municipalities as guiding authority in contravention of the well established principles of arbitrable authority established in this state for many decades. Counsel should be alert to the inappropriateness of the California Faculty Association case, as well as the Cotran and Advanced Micro Devices cases should they come up in arbitrations. These cases are all easily distinguishable. Unfortunately, because of the conflict between the original and supplemental decision and award, the matter again returned to arbitration in front of a new arbitrator, Arbitrator Emily Maloney. The case was submitted based on transcripts of the prior proceeding, the exhibits in the prior proceeding, and one additional witness called by Granado to support the family atmosphere in the San Carlos PD at the time of this incident, as well as the lack of any anti-fraternization policy within the department which allowed ranking officers to date employees both sworn and non-sworn. That witness also completely disputed many of the allegations of the complainant regarding Granado not helping complainant with a personnel complaint by another employee against the complainant. The city argued, again, the applicability of the California Faculty Association case, as well as arguing that the matter was not before Maloney for a de novo review, but only a review to determine if there was a factual basis for the city’s decision, i.e. raising the same issues that were raised in the first arbitration. Maloney found that the city and its management, were responsible for insuring compliance with the sexual harassment policy, and that the city abused this discretion by pursuing the complainant’s action when she had acknowledge that Granado, from the date of the incident to the date of the formal complaint, said nothing about what happened nor ever said or did anything that she considered to be harassment. Maloney also found that the one incident relating to the “hug” was not actionable sexual harassment either under established case law or the atmosphere at the San Carlos PD, citing numerous cases to support her conclusion. In the end, the award by Maloney was as follows:

“There was not just cause of the termination of the grievant. The grievant shall be reinstated to employment with full back pay and benefits for the period from termination effective November 29, 2001 to the date of his reinstatement . . . . “

That decision was rendered on October 15, 2004.

The arbitrator found, in her opinion and award that:

“The impetus for terminating the grievant (Granado) appears quite clearly to have been the influence of the camaraderie of (complainant) with (the dispatcher) and the (dispatcher’s) strong dislike of the grievant, as well as the influence of (the commander with whom Granado had butted heads as POA vice-president) on (the chief). (The chief’s) testimony that ‘We encouraged her to file a formal complaint at the time so we could take action’ clearly suggests that pressure was put on (the complainant) to file the formal complaint in September 5, 2001.”

That decision was rendered on October 15, 2004.

The parties filed cross-petitions, the city filing in Superior Court in San Mateo County another petition to vacate the arbitration award, and Granado filing a petition to confirm the arbitration award. The same Superior Court judge who heard the initial matter sided with Granado and determined that the core issue was whether its initial ruling vacated only the supplemental award of the first arbitrator (as requested in the initial moving papers of the city) or the original and supplemental award. As requested by Granado, the court fount that since the two awards were inextricably linked, nothing in the arbitration award from Maloney violated the MOU. Accordingly, the arbitrator did not exceed her authority. Judgment was entered in favor of Granado and against the city of San Carlos on February 8, 2005 confirming the award of Maloney in all respects and without limitation, and awarding costs pursuant to CCP Section 1293.2 to Granado’s counsel.

In an attempt to continue to forestall the reinstatement of Granado, the city has filed a notice of appeal to the Court of Appeal. Throughout this four-year ordeal, the PORAC Legal Defense Fund has given Granado and his counsel unwavering support, without which none of these successful efforts could have been undertaken. Both Granado and his counsel expressed their deepest gratitude for this continued support in the past and continuing through the appeal of this matter, should that actually proceed.

Granado has been represented from the outset by myself, an LDF panel attorney from Redwood City. I am also counsel for the primary defendant in the “Oakland Riders” case, which it has just completed its re-trial following five months of presenting evidence in Alameda County Superior Court. I’ve been an LDF panel attorney since 1975, representing hundreds of officers from Crescent City (by the Oregon border) to Central California.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.