Discipline is Overturned in Harassment Case

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.