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IN THE MATTER OF ARBITRATION

between

CITY OF CLEARWATER, Florida

and

CLEARWATER FIRE FIGHTERS ASSOCIATION

IAFF, Local 1158

FMCS Case# 1753743

Issue: Termination

Grievant: Fire Lieutenant Nathaniel Brooks

Grievance: January 11, 2017

Hearing: February 20, May 3 and 4, 2018


Transcript: May 18, 2018
Briefs: July 5, 2018
Decision: August 20, 2018

CITY OF CLEARWATER, Florida CLEARWATER FIRE FIGHTERS ASSOC

Thomas M. Gonzalez, Esq James F Brantley, Esq


Thompson, Sizemore, Gonzalez, and Hearing, PA, Donnelly& Gross,

One City Center, 2421 NW 41St Street, Suite A- 1

201 N Franklin St., Suite 1600 Gainesville, FL 33901

Tampa, FL 33602

ARBITRATOR

Anthony Redwood, PhD


FAUUG272- 018

Naples, FL
The undersigned Arbitrator was selected by the parties and appointed by the
Federal Mediation and Conciliation Service ( FMCS Case No. 1753743).

The hearing was conducted in the City of Clearwater, Florida, on February 20,
May 3 and 4, 2018. The City of Clearwater ,
hereinafter the City, was represented by
Thomas M. Gonzalez, Esq., of Thompson, Sizemore, Gonzalez and Hearing, PA, Tampa,
Florida, Joseph Roseto, City of Clearwater Human Resources Director, and Nathan
Paulich, City Attorney. The Clearwater Fire Fighters Association, IAFF, Local 1158,

hereinafter the Union, was represented by James F. Brantley, Esq., of Donnelly Gross,
Gainesville, Florida and Sean M. Becker, President, Local 1158. The grievant, Fire

Lieutenant Nathaniel Brooks, was present throughout the hearings.

The parties stipulated that the matter was properly before the Arbitrator. The
four joint exhibits were:

Jt. 1 Collective Bargaining Agreement

Jt.2 Grievance dated January 11, 2017 and Grievance Responses.


Jt. 3 Dismissal and Termination Notice dated December 15, 2016, for termination
December 27, 2016

Jt.4 Administrative Policy Manual. Serious Incident Reporting Policy. No. 1003. 1
Witnesses were sworn and were subject to cross examination. The Union submitted
thirty five ( 35) exhibits, and the City twenty nine ( 29). The proceedings were
transcribed.

Prior to opening statements the Union advised the hearing that the Hillsborough
County Circuit Court had issued an Order for Expunction under Section 943. 0595,
Florida Statutes, on August 28, 2017, in relation to the second alleged criminal offense
solicitation, offense #
2) stated in the Dismissal and Termination Notice as one of the
reasons underpinning the discharge of the grievant. That case had been disposed of by
NOLLE PROSSE on November 15, 2016. The effect of the Order according to the Union is
to confirm that the grievant had no prior convictions in any state as of August 28, 2017,
that the case did not happen as a matter of law, and that the grievant is lawfully
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permitted to deny that the expunged offense ever occurred. Therefore the Arbitrator
should order that testimony concerning offense # 2 should not be permitted in this

arbitration.

The City contends that the issue before arbitration was whether the grievant
failed to disclose matters he was required to disclose as a condition of his application
and subsequent It Fla.
employment. cites Walley v Game and Fresh Water Fish

Commission, 501 So. 2d 671 ( Fla. 1St DCA 1987) when the Court rejected the state

employee' s argument that his 1974 arrest and discharge could not be used against him

in a hearing in 1984 because the conviction had been expunged in 1983. The Court

allowed the State to use the substance of the arrest, holding that the expungement
could not relate back, that is have retroactive effect.

The Arbitrator ruled that as this was an arbitration to determine whether there

was just cause to terminate the Grievant, it was necessary to examine the factors that
led to the City decision to terminate, and if offense# 2 was a factor in that decision then
basic details of that offense needed to be provided in evidence for a proper arbitration

decision. The key question for this Arbitration has to be what did the City consider
when it decided to discipline and terminate the Grievant, and an after the fact Order of
Expunction

does not interfere or preclude relevant information in this arena. The arbitration
hearing proceeded on that basis.

RELEVANT CONTRACTUAL PROVISIONS

AGREEMENT

Article 3, Section 1 Management Rights

The City reserves and retains exclusively all of its normal and inherent rights with

respect to the management of its operations... including its rights... to suspend, discharge
or otherwise discipline employees for proper cause...

Section 4 No discrimination

The parties) specifically agree that the provisions of this Agreement shall be equally
applicable to all employees herein without regard to race...

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Article 11 Performance and Discipline

All discipline will be for just cause and consistent with due process...

RELEVANT STATUTORY PROVISIONS

State of Florida Statute. Title XLVII Criminal Procedure and Corrections. 943. 0585

Court- ordered expunction of criminal history records.


CITY OF CLEARWATER -
Administrative Policy Manual. Serious Incident Reporting Policy
excerpts included in the text.

FACTUAL BACKGROUND

Lieutenant Nathan Brooks graduated from High School in 1985 and served in the

US Army from that date to 1989, at Fort Bliss, EI Paso, Texas. He received an Honorable
Discharge. He qualified as a state certified paramedic in 1995 and worked for two

private ambulance companies in the Tampa/ St. Petersburg area. At the end of 2004 he

worked for Hillsborough County Fire Department, then went to Texas from January to
May 2005 for family reasons, and then returned to the Tampa area. He applied for a

Firefighter ( Fire Medic) position with the City of Clearwater Fire Department on June 6,

2005, and was hired on September 6, 2005. At his orientation he was given a copy of
the City' s Serious Incident Reporting Policy. He was promoted to the Firefighter/ Driver
Operator position on January 2, 2010, and then to Fire Lieutenant on October 20, 2012.

His overall annual performance evaluations were rated as Meets Standards or higher.
He had a clean disciplinary record over 11 years of service, and had received

commendations including a Certificate of Commendation for saving a resident who was


suffering cardiac arrest.

The grievant was terminated on December 27, 2016.

When the grievant completed the Application Form of the City, he answered " NO"
to the following questions:

Have you ever been convicted of any offense against the law or entered a plea of nolo
contendere to an offense against the law...?; and

Are you now under any current charge for any offense against the law?

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In a preamble preceding the questions, the Application Form states that
Convictions will not be an arbitrary bar to your employment; factors such as age at the
time of offense, how long ago the offense occurred, serious and nature of offense,
relationship between offense and position applying for, and rehabilitation efforts will
be taken into account. Falsification of your answers may result in loss of employment
opportunities".

In his Termination and Dismissal Notice of December 15, 2016, the City Manager,
acting upon the recommendation of the Fire Chief, stated the the dismissal was due to
the following reasons.
First the grievant had not disclosed in his Employment

Application that he had incurred a misdemeanor conviction relating to a 1987 charge of


unlawfully carrying a weapon. This information had become available in a Lexis/ Nexis
Report generated by the Clearwater Police Department at the request of the Fire Chief,
who was responding to an anonymous citizen complaint, on or around September 15,
2016, that alleged the grievant had multiple convictions and charges.
Second, when he had submitted his application,
he had an outstanding
misdemeanor charge of soliciting another to commit prostitution on November 7, 2004.

And thirdly, between the date he submitted his Job Application ( June 6, 2005) and the
date of his hire ( September 6, 2005),
he was charged in Pinellas County with a
misdemeanor charge of four counts of obtaining property with worthless checks. This
was not reported upon hire, as required by the Serious Incident Reporting Policy.
Furthermore a warrant was issued for his arrest on December 6, 2005, and he

surrendered to the police on February 10, 2006, to satisfy the warrant. And lastly he did
not report the disposition of the checks matter through restitution. The conclusion of
the City is that this behavior represents personal responsibility and integrity issues of
such a serious nature as to warrant termination.

In arriving at its conclusion to terminate, the City followed a due process protocol
in its investigation and determination. This involved Formal Notices of Investigation,
dated October 2, 2016, October 29, 2016, and November 2, 2016, interviews with the
grievant on October 14 and November 7, 2016, and a Discipline Determination Meeting
on December 8, 2016. The grievant was accorded full opportunity to explain the
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situation and status of each of referenced incidents that were listed as the basis for his

termination, and his explanations were included in reporting documents ( and later in
grievance responses).

The following attempts to summarize the basic elements of the factual situation

in relation to the three criminal charges cited in the Termination and Dismissal Notice

dated December 15, 2016 referenced above. Concerning the 1987 charge, when the

grievant was stationed in EI Paso, Texas, and was 19 years old, while on military service,

he states that he was sitting in his car at a friend' s house when a Police Officer

approached and told him that one of his tail lights was out. The Officer used the

opportunity to sweep his flashlight through the interior of the vehicle and he noticed a

set of nun- chucks under the back seat of the car. The grievant was arrested and charged

with a misdemeanor unlawful possession of a concealed weapon.

The LexisNexis Report provided by the City Police Department and relied upon by
the City shows two references to this arrest. The first indicates a Court Disposition of
Conviction - Guilty by the Court, Status Disposed and the second shows a Court
Disposition of Probation on 02/ 01/ 1988. The LexisNexis Report does not however show

the ultimate disposition of the charge in the form of a Dismissal of Deferred

Adjudication dated February 6, 1989, which contains in part-


It appearing to the Court that the adjudication of guilt was deferred under Article

42. 13, Sec 3d, of the Texas Code of Criminal Procedure, that the probationary period

imposed has expired, and that the Court has not proceeded to adjudication of guilt in

the above entitled and numbered cause:

It is therefore ordered that these proceedings against the Defendant are dismissed and

the Defendant is discharged and released from all penalties and disabilities resulting
from the offense to which the defendant pleaded guilty...." ( U16).

Turning to the second criminal incident, the grievant testified to the following
circumstances relating to the charge of soliciting prostitution in Hillsborough County,

Florida, on November 7, 2004. He and his brother were approaching the dog track in a

vehicle when they were approached by a women soliciting sex, who told them to turn
left ahead to go to the meeting place. They went right, and were soon thereafter

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stopped and issued with a soliciting prostitution ticket in the name of the grievant at his

request, as his brother was a school teacher. It turns out that the solicitor was an
undercover police officer and that it was a" sting". The Court required that the grievant

complete a Misdemeanor Intervention Program, which he claims he did, though it is in

dispute as to when that occurred, so that by March, 2005, he was led to understand
that the case was closed. However in December, 2005, after having commenced
employment with the Clearwater Fire Department, a capias warrant was issued and he

reported to the Police Department in response in February 8, 2006. Apparently his


attorney, a Public Defender, had not attended a court hearing in the spring of 2005 to
report fulfillment of the court requirements and this gave rise to the Court' s

subsequent action in reopening the case. As reported in the LexisNexis Report the

disposition of the charge was NOLLE PROSSE on November 15, 2006.

The failure of the grievant to report the issue of the capias warrant to his

supervisor, which occurred after he commenced employment with the City, was seen
by the City as a breach of the Serious Incident Reporting Policy.
The third criminal incident cited in the Termination notice related to the passing
of four worthless checks. On July 14, 2005, after the date of his Application for

employment, the grievant was charged with four misdemeanors of passing worthless
checks dated October 8 and 9, 2004, in Pinellas County, Florida. He did not disclose this
in the time period from his application to his hiring, nor after he had commenced
employment. The grievant believed that the checks came from an old checkbook left in

his glovebox when his pickup was vandalized while attending training in November,
2004, with the Hillsborough County Fire Department, but the City cast doubt on that
assertion by claiming that the checks were dated before the alleged theft. The grievant

made restitution for the amounts of the worthless checks over a period of time up to
February 13, 2006. Whatever the factual situation was, the grievant pleaded guilty on
May 22, 2006, and was issued probation. Again, he did not notify his supervisors of the
charges, pleas, and outcomes as required by the City Serious Incident Reporting Policy.
He had understood that the four charges were resolved when he made the restitution

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agreement and completed probation. The final disposition of the four check charges by
the Court was Adjudication Withheld.

Finally, by way of background, the grievant, an African American, filed two EEOC

complaints, and a grievance, that alleged discrimination and retaliation, on the part of

the City in the two year period leading up to his termination. In 2014 the grievant had
begun working on qualifying for promotion to a Rescue- Lieutenant ( LR) position. One

element was gaining practical experience, which involved first riding with an Rescue
Lieutenant for ten shifts and then serving as an acting LR. It was in relation to the latter
and the difficulty he had getting acting opportunities that prompted his complaints up
the ladder and then the EEOC complaint. He was then transferred from his shift and
station to another, without his concurrence, which precipitated a grievance, and

subsequently a second EEOC complaint when he was passed over for promotion

multiple times prior to his termination on December 27, 2016.

THE ISSUE

Was there just cause and due process to justify the termination of the Grievant? If yes,
what is the remedy?

POSITIONS OF THE PARTIES

CITY OF CLEARWATER

The underlying premise to the City' s Policy and actions with respect to hiring is
that firefighters are held to a higher standard than other employees, given the public
trust associated with the position.

The onus is on the City to meet the burden of proof by a preponderance of


evidence that there was just cause for the termination of the grievant. The City believes
that it has met that burden. The core elements of the City position are summarized
below.

In applying for the firefighter position the grievant was untruthful when he

denied that he had any prior convictions, and any pending charges. There was the 1987
EI Paso Texas conviction, the solicitation of prostitution charge that was pending, and
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the worthless checks misdemeanor charges that arose after his employment application

and continued after he had been hired, through arrest, restitution, and disposition. The
latter two were a breach of the Serious Incident Reporting Policy that requires
disclosure. If the City had been aware of these criminal events the grievant would not
have been hired.

The grievant continued his misrepresentation pattern during the investigative


process. His explanation of events was not supported in any way by credible evidence.
Clearly the pattern of deceit shows that the grievant does not meet the higher standard
expected of firefighters.

The Union provided evidence that claimed to show that other City employees,
including some from the Fire Department, who had committed substantially similar
offenses under similar conditions, were disciplined at a lower level of punishment than

the grievant. The City notes that the comparators chosen were mostly in different
occupations, they worked in dissimilar employment contexts, and department heads

varied in their approaches to discipline. Most of all, most City employees are not held to
higher than normal standards as firefighters are. None of the comparators, including
the small group from the Fire Department, had engaged in a pattern of deceit and
withholding of information.

UNION

Article 3 of the Agreement provides that the City has the management right to
suspend, discharge or otherwise discipline employees for proper cause" and Article 11
provides that " all discipline will be for just cause and consistent with due process". The

Union contends that the City did not meet its burden of proof to establish just cause
and due process.

The Union believes that this grievance should be upheld for the following
reasons:

1) the penalty of termination was grossly disproportionate to the alleged offenses;


2) the grievant had an excellent job performance record over the 11 years of
employment in the Fire Department;

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3)
the grievant had been promoted twice to achieve a leadership position;
4) he had no prior discipline; and
5)
he had no criminal history during his period of employment.

In addition, the termination process and decision took place in a context of racial

animus, the grievant having filed two EEOC complaints against the City in the preceding
two year period. And the City did not serve the Notice of Termination on him until
December 15, 2016,
some 12 weeks after the anonymous citizen complaint on
September 15, 2016,
and thus had his services conveniently available over the
Thanksgiving and Christmas holidays.

Specifically the Union contends that the City failed to substantiate the alleged
rule violations, failed to consider the actual outcomes of the dated misdemeanour
charges, and failed to consider its past disciplinary practice and penalty pattern with
respect to its employees, including its normal application of progressive discipline. It
submitted ten examples of City long-term past practice with respect to the discipline
imposed on employees who had misrepresented their qualifications and criminal
history on their employment applications, or had failed to report criminal charges, or
had like incidents, and which had resulted in discipline at the level of written reprimand
or one day suspension.
The City assertion that the grievant was untruthful when he answered " no" to

both question one ( Have you ever been convicted of any offense against the law?) and

question two ( Are you now under any current charge for any offense against the law?)
is not sustained by the facts. In its Notice of Termination the City cited a misdemeanor
conviction in El Paso, Texas, for the unlawful possession of a weapon, but as noted
above the Texas Court issued a Dismissal of Deferred Adjudication dismissing the
charge on February 6, 1989. There was no conviction, so that the answer given was
truthful.

With respect to the 2004 misdemeanor charge of solicitation, the grievant was
led to understand that this case was closed in early 2005 once he had completed his
court requirements, and therefore was not a " current" charge at the time he completed

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the application form. As far as he was concerned his " no" response to both questions
was truthful.
Upon being recalled by the Court in early 2006, he complied with a
relatively pro forma arrest processing and ultimately in November, 2018, a Nolle Prosse
dismissal of the charge occurred.

Concerning the misdemeanor worthless checks charge, it occurred on July 14,


2005, after the job

Application had been filed. At the Court hearing he had agreed to pay the total value of
the checks, $ 430, plus court costs of $
300 per check, and he was led to believe and
understood that this restitution action would resolve this matter. The Court disposition
of this charge was one of Adjudication Withheld, on May 22, 2006. The fact that the
hearing and restitution process was going on after he was hired does raise the question
as to whether he should have reported the matter under the Serious Incident Reporting
Policy, but if he should have, it does not rise to the level of terminable offense.
Testimony by a legal expert made it clear that for misdemeanor charges, a plea of
guilty does not equate to a conviction if the Court Withholds Adjudication in the case.
The same holds for a Nolle Prosse. A criminal conviction occurs when a court
adjudicates an accused to be guilty.

The Union provided overwhelming evidence that the grievant was treated more
harshly than other City employees in similar circumstances and that this amounted to
unfair disparate treatment.
Just cause requires consistent enforcement of rules.
Furthermore it requires the application of progressive discipline, which the City

normally does, but did not do here. In assigning such a harsh penalty the City did not
factor in his long service of 11 years, his exemplary employment record, and his no prior
discipline record.

Finally, the claim of just cause is undermined by the City pattern and practice of
race discrimination and retaliation. This pattern is evident from the data for the period
2005 to 2015 that shows the Fire Department promoted or appointed 66 internal and
external candidates to Officer positions of Lieutenant or above and only two were
African American. Second the grievant is the only fire lieutenant who was involuntarily
assigned from his station and shifted to another. Third the City terminated the grievant
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and another Officer Duane Anderson, both African American, after they had filed EEOC
charges and grievances claiming discrimination in promotion. In both instances the
actions were precipitated by anonymous citizen complaints.

ANALYSIS

The burden of proof is on the City to establish that there was just cause for the
termination. The standard that must be met in this regard, according to the City, is a
preponderance of evidence. The first step in meeting this burden is to establish that the
offenses that gave rise to the discipline imposed actually occurred. Once this is done,
management has the discretion to determine what the proper penalty might be. There
is a presumption that " if management acts in good faith upon a fair investigation and
fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator
should not disturb it" ( Stockham Pipe Fittings, Co, 1 LA 160 ( McCoy, 1945)). If however

there is an abuse of discretion, " where discrimination, unfairness, or capricious and


arbitrary action are proved" (
ibid), the penalty can be rightfully set aside.
As an aside, it can be noted that Arbitrators differ over the standard of proof
required in termination cases. Whereas the preponderance of evidence standard is
considered appropriate in non- termination situations,
the majority of Arbitrators,

including this one, normally require the more stringent beyond a reasonable doubt
standard in termination cases in most circumstances, because of the severity of the
penalty that is often equated with the death penalty. The Union did not address this
issue however, undoubtedly believing that the City did not meet the lower standard,
and therefore the less demanding standard will be applied in this case.
As indicated in the Termination and Dismissal Notice, the discipline was based on
three misdemeanor offenses. The City loosely made repetitive references to three
convictions, but the truth of the matter is that there were no convictions. This was
confirmed by the issuance of the Order of Expunction in relation to the second criminal
charge ( solicitation) in 2017,
as this Order could only occur after the Florida
Department of Law Enforcement has certified, after a national and state level search

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and review, that no convictions exist for that person. A more thorough search and
review by the City at the time of its investigation would have revealed this fact.
The only possible offense that could carry a conviction at the time of the Job
Application ( June 6, 2005) was the EI Paso, Tx unlawful possession of a firearm case. As
indicated earlier, the outcome of this case was a Dismissal of Deferred Adjudication,
issued June 2, 1989. Clearly the " no" answer by the grievant was a truthful answer to
Application Form question one.

With respect to Application Form question two, the second charge ( solicitation)
occurred prior to the date of the employment application and were substantively
processed in the six months
preceding that date ( June 6, 2005). In this case, the public

defender representing the grievant was supposed to report to the Court in spring 2005
the completion of the Court' s requirements ( Misdemeanor Intervention Program), so

that closure of the case would occur. He did not advise the grievant that he had not
done so. The grievant believed, and had every right to do so, that the case was closed,
when he answered " no" to question #
2. The reopening of the case after the hiring date
was essentially a technicality leading to final closure of that case on November 15, 2006,
with a disposition of NOLLE PROSSEE. So technically there was a live charge, but de
facto there was not.

Concerning the bad check charge, which occurred on July 14, 2005, after the date
of the employment application, the City asserted that the charge, Court hearing, and
restitution arrangements should have been reported under the Serious Incident

Reporting Policy. The grievant staunchly maintained that the checks that were written
were stolen, but decided on counsel advice to dispose of the matter through restitution
rather than to contest it. The key question therefore is whether or not the grievant was
obligated to report the matter, as it unfolded, to the City.
First it is timely to make some observations about the charges invoked in
justifying the termination. The initial reaction of a reasonable person would be that
over the spectrum of criminal charges, all three are somewhat minor. Their disposition
by the respective Courts reflects this. Secondly all of them were old, one of them
occurring 30 years ago and the other two 10 years ago. The Union used the term " stale".
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Thirdly the grievant was simply unlucky, in that he was the victim of the old " broken tail
light" excuse to put a person in harm' s way for charge #
1, and the victim of a police

sting" for charge #


2, practices seen by many as odious. In neither situation was the
grievant up to mischief. The third charge conjures up Shakespeare' s
comedy" Much ado about
nothing". Does it rise to the level of" Serious Incident"?

The Serious Incident Reporting Policy states that any serious incident is to be
reported to the City Manager, and states that an incident is serious or not on the basis
of its severity, its potential for adverse publicity, the potential consequences of the
incident, and the effect of the incident on the City (Administrative Policy Manual, Policy
No. 1003. 1). Neither offense (#
2 and 3) could be characterized as severe, what possible

adverse publicity could occur, potential consequences are hard to imagine, the effect of
the two incidents on the City would be close to zero.
It goes on to state that reportable serious incidents include 1. a) serious

disturbances, demonstrations, or riots...( b) significant vandalism, sabotage or

destruction... but minor vandalism need not be reported, ( c) workplace mishaps that

could pose a potential danger...( d) explosions or other catastrophic events..., ( f) theft....,


and 2( a) bribery, graft...,( b) workplace violence...( c) threats against an employee..., ( d)

criminal acts, and so on. Finally it states that " 4. It is not the intent of this Policy to
report minor incidents...", and that " common sense and good judgement should be

used when determining if a report is appropriate".


The Dictionary defines the word " serious"
in such terms as meaning " grave in
character, causing critical, dangerous" ( The
anxiety, American Heritage Dictionary).
Clearly then the bad checks charge (# 3), and for that matter the solicitation charge (# 2),

do not meet that definition, and do not meet the characterization of " serious incident"
stated in the Policy.

The admonition in the Policy to use " common sense and good judgement" dictate
that these relatively insignificant criminal charges need not be reported. Furthermore
the grievant, and any similarly placed employee, is faced with a Hobson' s choice or
dilemma, namely two bad outcomes to choose from. City witnesses made it clear in
their evidence that placing a " yes" answer on the application question 2 would result in
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the person not being considered for hire in the Fire Department ( Charge # 2),
and that

the reporting of an incident during the probationary first year would lead to automatic
dismissal ( Charge # 3). Answering " no",
or not reporting, risks ultimate discovery and
loss of a career in which the employee, and the employer, have invested human capital.
It can be concluded that these " stale" and minor incidents do not rise to a level of
being reportable. The grievant exercised common sense in not reporting, on its merits,
but also given the consequences of doing so.
This pressure to be " untruthful" would be less so if the City had adhered to the
preamble it placed preceding the two questions on the Application Form. This was the
City' s promise in return for honest answers to its questions. Specifically " convictions
will not be an arbitrary bar to your employment; factors such as age at the time of
offense, how long ago the offense occurred,
seriousness and nature of offense,

relationship between offense and position applying for, and rehabilitation efforts will
be taken into account. Falsification of your answers MAY ( my emphasis) result in loss of
employment opportunities".
The City did not exercise the discretion that it promised
applicants and employees, which is at best unfair and at worst dishonest. In the instant
case it would have had to recognize that the grievant was 19 years old at the first
charge, that the offenses occurred 1)
thirty (# and ten years ago (# 2 and # 3), that the

offenses were somewhat minor, and that he was a victim, and not a mischief maker, in
at least two, if not three, of the offenses ( broken tail light and police " sting").

Concerning rehabilitation, the grievant had a good, indeed commendable, career

oriented employment record with the Fire Department, with a clean disciplinary record
and zero criminal history.

While on the surface it looks like the City undertook a disciplinary process that
passes muster with respect to due process,
in that it received the anonymous

information, it did an investigation that produced confirmatory evidence ( LexisNexis


Report),
it formally interviewed the grievant and gave him the opportunity to explain
his version of events, it followed with another meeting concerning the discipline to be
imposed, and then issued a Dismissal letter with explanation. The problem is that there
is zero evidence that the City ( 1)
made any effort whatsoever to look into the

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explanations provided by the grievant, or ( 2) spent any time whatsoever considering
the service record of the grievant and his disciplinary record. Concerning the former, for
illustration here, questions that come to mind to followup include a further LexisNexis
report, Hillsborough County police records of a " sting" operation the date of the

solicitation charge, and the car break in and check writing sequence of dates and
handwriting comparisons, and so on. The search might not have produced much, or it
might have, but the point is the grievant was entitled by virtue of his long service to a
fair investigation, and he was not accorded it.

In its Termination and Dismissal Notice of December 15, 2016, the City stated
that the actions of the grievant violated Citywide and Fire Department standards and
deemed these to be failures of personal responsibility and integrity of such a magnitude
as to warrant termination. Specifically in relation to offense # 3 ( bad checks) it stated

that "The above offense represents personal responsibility and integrity issues of such a
serious nature that termination of your employment is warranted".
The underlying

assumption used to justify the harsh discipline of termination was stated in evidence
that firefighters are held to a higher standard of conduct than other City employees and
that acts of dishonesty or criminal mischief can undermine that trust. Because of this
the City can, for firefighters, be automatic in imposing the harshest penalty, namely
termination, regardless of the circumstances.

The problem with that conclusion is that it is contrary to the specific provisions of
the Agreement that require just cause for the imposition of discipline. Article 3, Section
1,
stipulates that management has the right to impose discipline on employees,
including discharge, for proper cause, and Article 11 mandates that "all discipline will be
for just cause and consistent with due process".
The principles underlying just cause

and due process were articulated in Stockham Pipe Fittings Co ( ibid) in the opening
paragraph of this Analysis, namely that management acts in good faith upon fair
investigation, that the penalty it determines is not inconsistent with other like cases,
and that there not be an abuse of discretion through unfair, arbitrary or discriminatory
action. Thus action taken by the City based on the above assumption and policy is
contrary to just cause,
in that it lacks good faith and a fair investigation basis.

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Associated with this has been an abuse of discretion both in relation to the treatment
of Application Form answers to the criminal history questions and in relation to
assessing and recognizing the work performance and
unblemished disciplinary
performance of the grievant, both of which have been identified above.

The Union presented the circumstances and outcomes of quite a few employees

who were disciplined for the same or like offenses. For most the penalty was a one day
suspension and for some the practice of progressive discipline had been apparent. The
City debunked the comparators as being in too unlike circumstances to be valid

comparisons and argued that most were regular City employees, with only a few being
from the Fire Department. Be that as it may, the overall impression from this review of
comparators is that the City perceived of discipline as being a correcting behavior tool
rather than being punitive, which is an admirable and best practice approach on its part.
A second impression is that its disciplinary action in the instant case is an aberration,
and this raises the question of why that might be.

The Union asserted that the grievant was employed in a racist environment and
was the victim of racial animus. It points out that the Agreement has a No
Discrimination clause ( Article 3, Section 4), yet in the period 2005 to 2015, of the 66

promotions and appointments into officer positions ( Fire Lieutenant and above), only 2

were African Americans. The grievant had been handicapped and thwarted from 2014
onwards in gaining the practical experience needed to fulfil the preconditions for

gaining acting Fire Rescue Lieutenant opportunities and subsequent promotion to that
position.
He was passed over five times for promotion, despite having passed the
required tests. He had complained on multiple occasions about race discrimination and
retaliation in this process, and had lodged grievances and two EEOC complaints.

Precipitated by an anonymous citizen complaint the grievant was subjected to the


disciplinary process and terminated on December 27, 2016.
In the same year that the grievant had been terminated, Fire Prevention

Inspector Duane Anderson, also an African American, had also been terminated on July
18, 2016, as the result of another anonymous citizen complaint. In the preceding period
he had also complained to his superiors about being passed over for promotional
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opportunities to the position of Fire Marshal and had also lodged a grievance and EEOC

complaint alleging discrimination. The parallels are obvious.

There was not enough evidence to be able to conclude with certainty that the
grievant was discriminated against. This would require further statistical analysis,

interviews with decision makers, and the like, that was not available at this hearing. On
the other hand there is was no evidence that would suggest another theory as to why
the City and Department took this harsh stance against the grievant.

If there is no certainty, there is certainly an " odor" about elements of this case.
While recognizing that the City was obligated to deal with the anonymous complaint,

nevertheless it is also obligated to deal with it in good faith because such methods of

complaint are usually not driven by altruism but by vindictiveness, that can include

racism. This is the coward' s way of sticking it to somebody, and even if not successful its
legacy is often harmful. Furthermore complaints of this nature usually emanate from
within the organization, a way of settling grudges and work place interpersonal conflict,

or a way of expressing racial animus, and are thus harmful to the work environment.

The findings in this case are not dependent on their being a finding of race
discrimination and retaliation. But it is important to recognize that while not proven

there is a likelihood that racial animus played a role in the harsh treatment accorded

Fire Lieutenant Nathanial Brooks. When a moving object looks like a dog, walks like a
dog, barks like a dog, and smells like a dog, there is a strong chance it is a dog.This issue
will be for the EEOC to decide.

For the reasons stated above, it is found that the City did not meet its burden of
proof in establishing that there was just cause and due process in the termination of the

grievant, Lieutenant Nathaniel Brooks. Contrary to the assertion that the grievant had
been convicted of an offense in Texas, it turns out that there was no conviction. With

respect to the two charges that the City states should have been reported under its all

embracing Serious Incident Reporting Policy, it is dubious that any reasonable person
would consider them " serious"
and therefore reportable. But even if they were, the

respective Courts were processing them towards non- conviction, undoubtedly in part
because of their minor nature. Thus it can be said that the City did not establish by a
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preponderence of evidence that the offenses that were the basis of the discipline

actually occurred.

The investigation by the City was not a fair one. While the City' s disciplinary
process and protocol is a good one, its implementation faltered on this occasion. Yes,
the grievant was given full opportunity to provide an explanation of the circumstances
of each charge and the City included those explanations in its reports and

documentation, but it never investigated them and it gave no credence to the

explanations that if verified could have mitigated the discipline proposed. Had this been

combined with a review and recognition of his work history and length of service it may
have constrained what appears to be a determined imposition of a totally unreasonable
penalty. Just cause requires that management act in good faith based on a fair

investigation, and that did not happen here. Similarly the imposition of the harsh
penalty of termination in the circumstances of this case without regard to the grievant' s

work history and impeccable disciplinary record can only be described as arbitrary and
capricious.

DECISION

1. The grievance is upheld.

2. The grievant is to be made whole

a)
He is to be returned to his position and duties effective immediately; and
b)
He is to be made whole, so that he is to be recompensed for net loss of salary, and
of benefits and entitlements, as if this termination had not occurred.

3. The Arbitrator will retain jurisdiction for thirty days to resolve any dispute in the
implementation of this order.

Anthony Redwood, PhD


FMCS Arbitrator

August 20, 2018

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