FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 06-55815

POAM No. 06-161
POLICE OFFICERS ASS’N OF MI,
Union,

and

COUNTY OF LEELANAU, MI, and

ITS SHERIFF,
Employer.
_________________________________/

SUPPLEMENTAL OPINION OF THE ARBITRATOR

June 11, 2007

After Receipt of Conflicting Reports

On Grievant’s Fitness for Duty

For the Union: For the Employer:

Douglas M. Gutscher, Esq. John R. McGlinchey, Esq.

Assistant General Counsel, POAM Cohl, Stoker, Toskey & McGlinchey
27056 Joy Road 601 N Capitol Avenue
Redford, MI 48239-1949 Lansing, MI 48933
 I. The Origins And Nature Of This Post-Opinion Dispute

Following a hearing on January 9, 2007, the arbitrator issued an opinion,

dated February 23, 2007 (“Opinion”),1 in which he ordered Grievant reinstated

with back pay. In an effort to mollify the Employer’s concerns over Grievant’s

job performance, the arbitrator also ordered Grievant to undergo a fitness for

duty examination (“FFDE”) by a psychologist who had examined him back in

1999, at the Employer’s direction. In particular, the arbitrator wrote:

Any disagreement as to Grievant’s fitness for duty is to be resolved as

provided in § 24.1. Opinion @ 50. … If Grievant finally is determined to
be unfit for duty, then he should be treated as terminated as of the date of
that final determination and paid through that date. … The arbitrator
retains jurisdiction to resolve any issues which may arise over
implementation of his award. Id. @ 52.

Section 24.1 of the CBA provides:

The County may require that employees submit to physical and medical
tests and examinations by a County appointed doctor when such tests and
examinations are considered necessary to the County in maintaining a
capable work force, employee health and safety, etc., provided, however,
that the County will pay the cost of such tests and examinations. In the
event there is a disagreement between the employee’s physician and the
County’s physician concerning the employee’s ability to do his job or
return to his job, at the written request of the employee, the employee will
be referred to a mutually agreeable physician for examination whose
decision shall govern the matter. The County and the employee shall
share the cost of the physician. JX 1.

Beginning in late April of this year, there has been a lengthy exchange of

letters, largely among counsel for each party and the arbitrator, which are

1
Terminology follows that used in the Opinion.

2
labeled serially for references purposes; the bracketed insertions in the text of

the letters, e.g., [L3], are by the arbitrator. In a 5-page letter dated May 8, 2007

(“L3”), addressed to the arbitrator and to the Employer’s counsel, Union

counsel stated:

… Unfortunately, a dispute has arisen between the parties regarding the

award. The dispute centers on what to do in the event of a disagreement
regarding the fitness for duty evaluation. L3 @ 1. …

It is, evidently, the County’s position that Mr. [Grievant] has no right to
seek a second opinion. The Sheriff has told the Business Agent, …
(“Union Agent”), that Article XXIV only applies to medical tests not
psychological tests. This, of course, ignores the fact that the first sentence
in §24.1 states “the County may require that employees submit to
“physical and medical test and examinations by County appointed
doctor when such tests and examinations are considered necessary to the
County maintaining capable workforce…” (Emphasis added). It is the
position of the Union that the clear and unambiguous language of §24.1
does apply to psychological examinations. When asked by [Union
Agent], the Sheriff would not confirm that section 24.1 in the future is
limited to physical exams.

The second and related issue is back pay. It is the Union’s position that
the award specifically awards back pay to Mr. [Grievant] until a point
when the grievant is finally determined to be unfit for duty only, at this
point should he be treated as terminated. Since Mr. [Grievant] has a right
to a second opinion (which was performed on May 7, 2007) he should
continue to be paid. In the event that the second opinion contradicts the
County’s psychologist, then he should continue to be paid until a third
and independent review is completed. The County, in a letter dated May
1, 2007, states:

The employer has complied with its legal requirements regarding

this matter. Therefore, the County will be taking no further action
and will be closing the file regarding this grievance.

They have informed the Union they will no longer pay Mr. [Grievant]

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 and consider the matter final. L3 @ 4.

The letter raises strenuous objections to the report of the County’s psychologist,

which the arbitrator addresses infra.

II. Continuation Of The Arbitration Proceedings

On May 10, 2007, the arbitrator responded with a letter addressed to both

counsel (“L4”):

I have received Mr. Gutscher’s letter and email of May 8, 2007 [L3].
While I am happy to continue jurisdiction over this matter (as it was
retained for just such occurrences), in light of the Employer’s position as
described on page 4 of Mr. Gutscher’s letter, the immediate issue which
must be addressed is the arbitrator’s compensation. If the Employer truly
has closed its books on this matter, presumably that means it will
contribute nothing further towards the costs of arbitration.

There appear to be at least two possible courses of action; if you can

think of others, please do suggest them.

(I) The Union could agree to pay the arbitrator’s bills in full as soon
as they are submitted and seek recourse against the Employer at a
later date. If the Union elects this alternative, I would require a
written promise from a duly authorized Union official.

(II) The Union could commence litigation against the Employer at

once, in a federal or state court of competent jurisdiction, seeking
to compel the Employer to comply with the award and to continue
to participate in the arbitration process until it is finally concluded
and to pay its share of the arbitration costs.

Please let me know how you wish to proceed.

Subsequently the arbitrator received a letter from the Union Agent (“L5”),

agreeing “to proceed under scenario (I) as proposed by the Arbitrator.”

4
 On May 24, 2007, the arbitrator wrote counsel the following letter

(“L6”):

I have received Mr. [Union Agent]’s letter of May 14, 2007 [L5],
indicating that the Union will pay the arbitrator’s bills and seek redress
from the Employer at a later date. Therefore the arbitration will proceed.
Please furnish me with the following:
(a) A copy of the psychologist’s report.
(b) A copy of Grievant’s doctor’s report.
(c) A copy of the booklet distributed to employees to explain the
benefits provided under the medical plan described in Section 11.1
of Article XI of the collective bargaining agreement.
(d) The name of “a mutually agreeable physician” to make the
ultimate decision as to Grievant’s fitness for duty. If the parties are
unable or unwilling to agree, then I request a list of five (5)
proposed doctors from each party. The doctors should be licensed,
practicing psychiatrists, whose practices are not connected to
Leelanau County. I respectfully suggest psychiatrists from the
Grand Rapids, Lansing, East Lansing, Ann Arbor, or Detroit areas.

I would like to receive this material at your earliest convenience.

In the interest of fairness, the Employer is afforded until Friday, June 1,

2007, to respond to Mr. Gutscher’s letter of May 8, 2007 [L3]. The
response should address the following issues:

(1) The facts as presented in Mr. Gutscher’s letter.

(2) Pursuant to what provision of the collective bargaining agreement
was Grievant ordered to undergo a “fitness for duty” examination
in 1999, per EX 1?
(3) What criteria were used to determine “fitness for duty”?
(4) If the Union did not agree to those criteria, under what provision of
the collective bargaining agreement were they established?
(5) Pursuant to what authority did the Employer send Grievant for his
most recent “fitness for duty” examination?
(6) Pursuant to which provision of the collective bargaining agreement
did the Employer contact the psychologist in advance of the

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 examination?
(7) What did the Employer tell the psychologist in advance of the
examination?
(8) What criteria were used to determine Grievant’s “fitness for duty”
and where in the psychologist’s report is each criterion addressed?
(9) If the Union did not agree to those criteria, under what provision of
the collective bargaining agreement were they established?
(10) Pursuant to which provision of the collective bargaining agreement
was Grievant’s employment most recently terminated?

Inferences may be drawn from a failure to respond. If the Employer does

not wish to respond, please notify me at once so that matters may proceed
expeditiously.

The Employer’s counsel responded with a letter to the arbitrator dated

May 30, 2007 (“L7”), and copied to Union counsel:

… First, I initially note that it was after all the Arbitrator’s own Award
which ordered the Employer to send the Grievant for a fitness evaluation
“as was done in 1999.” This was based on the concerns formed by the
Arbitrator as a result of certain behavioral observations of the Grievant.
The Arbitrator further ordered that “if possible, the same PhD.
Psychologist who evaluated Grievant in 1999 should be used.” Award at
p 50. The Employer fully complied with these directives. Following the
Employer’s receipt of the psychologist’s evaluation and opinion that the
Grievant was not fit for duty, his employment was terminated
accordingly.

Next, it was for the first time in Mr. Gutscher’s May 8, 2007, letter to you
[L3], that the POAM states that Mr. [Grievant] has a “second opinion
which was performed [sic] on May 7, 2007.” The Arbitrator must know
that to date, the Employer has not received any second opinion from
[Grievant], much less one that contradicts the opinion of Dr. …
(“Psychologist”). There is no requirement for the Employer to wait
indefinitely for receipt of one. Unless and until such a second opinion is
submitted to the Employer (and, perhaps, a third opinion if necessary),
there is no need for any further proceedings. In other words, there is no
current bona fide dispute concerning Mr. [Grievant]’s unfitness for duty.

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 Finally, there are several matters raised in your May 24, 2007, letter [L6]
with which the Employer respectfully disagrees. I will list these
objections:

• The Arbitrator has no jurisdiction to order further compliance with

the Award.

• The Arbitrator is without authority to compel the Employer to

provide him copies of Dr. [Psychologist]’s report.

• The 1999 examination records of the Grievant cannot now be

challenged. Indeed, the Arbitrator himself, relied on this very
examination, and, consequently, directed that the current
evaluation be performed by the same psychologist.

• The criteria used by Dr. [Psychologist] in either 1999 or 2007

cannot now be challenged by the Union as part of this case. If the
Union desires some say in the criteria used by the practitioner, it
may negotiate for such terms in the labor contract. To date, no
such terms have been negotiated by the parties.

• The current psychological evaluation may not be collaterally or

directly attacked here. The sole remedy for a disagreement
concerning the evaluation is provided under the parties’ labor
contract. Once more, the Employer has received no second opinion
from the Grievant or Union to date.

In view of the foregoing, there is no need for further proceedings before

the Arbitrator. The Employer, therefore, respectfully declines to
participate in any additional arbitration proceedings at this time.

The next letter in this lengthy exchange was from the arbitrator to both

counsel, June 1, 2007 (“L8”):

I received Mr. McGlinchey’s letter of May 30, 2007 [L7], for which I
thank him. I was quite surprised to learn that the Union has not furnished
the Employer with a copy of the report of Grievant’s doctor, upon which
the Union relies in invoking the tie-breaker provisions of the collective

7
 bargaining agreement. That oversight should be corrected when the
Union responds to the requests in my letter of May 24, 2007 [L6], since
any materials sent to the arbitrator must be copied to the opposing party. I
will, of course, take no further action until the Employer has received and
been afforded a reasonable time within which to review the report.

To prevent further misunderstanding regarding the Employer’s position,

please send me a copy of the County’s letter of May 1, 2007 [L2], from
which Mr. Gutscher quoted in his letter of May 8, 2007 [L3]. …

The arbitrator received the following documents along with a letter from

Union counsel, dated June 4, 2007 and addressed to the arbitrator and Employer

counsel (“L8”):

(A) Letter April 27, 2007, to Sheriff and County Administrator, from
Union Agent (“L1”).

(B) Letter May 1, 2007, to Union Agent, from Employer counsel

(“L2”).

(C) Report on Grievant, May 7, 2007, to PhD, Incident Management

Team, by Psychiatrist, MD, Distinguished Life Fellow, American
Psychiatric Association (“Psychiatrist”), concluding “… I do not
find evidence of mental illness which would preclude [Grievant]
from returning to duty.” This report will be referred to as
“Psychiatrist’s Report”.

(D) Report on Grievant, March 30, 2007, by Psychologist, concluding,

“… I have no choice but to find him mentally unfit to carry out
the duties and responsibilities of a Deputy within the Leelanau
County Sheriff’s Department.” (Emphasis in original.) This
report will be referred to as “Psychologist’s Report”.

(E) Union’s List of Police Psychologists.

III. Grievant Is Entitled To A Third, Tie-Breaking Opinion

Section 6.3.B, CBA, Article VI, provides in pertinent part:

8
 An employee shall lose his seniority and the employment relationship
shall end for any of the following reasons:

B. If he is discharged or terminated and is not reinstated pursuant to

the terms of this Agreement. (Emphasis supplied.)

The arbitrator interprets the phrase “pursuant to the terms of this Agreement” to

apply to any action taken to discharge, terminate, or reinstate an employee; i.e.,

an employee may be discharged, terminated, or reinstated only if and as

provided in the collective bargaining agreement. Thus it is encumbent upon the

Employer to point to a specific provision of the CBA to justify the firing of

Grievant.

In the arbitrator’s letter of May 24, 2007 (L6), he sought to ascertain the

Employer’s position with respect to three crucial issues:

(2) Pursuant to what provision of the collective bargaining agreement

was Grievant ordered to undergo a “fitness for duty” examination
in 1999, per EX 1?

(5) Pursuant to what authority did the Employer send Grievant for his
most recent “fitness for duty” examination?

(10) Pursuant to which provision of the collective bargaining agreement

was Grievant’s employment most recently terminated?

The Employer’s response (L7) essentially sidestepped the CBA issues by

merely pointing to the arbitrator’s decision, Opinion @ 50. It also is important

to note that the response failed to take issue with “[t]he facts as presented in Mr.

Gutscher’s letter [L3],” despite the arbitrator’s explicit invitation to do so in

9
paragraph (1) of L6.

The arbitrator’s Opinion was based upon the language of Article XXIV, §

24.1, which is the only provision of the CBA which could reasonably be

interpreted to justify a fitness for duty examination. But for that provision, the

Employer has no express contractual authority to force employees to submit to

such an exam, much less the authority to fire them for failing one.

The arbitrator is not unmindful that the heading of Article XXIV reads

“Physical Examination” and is mindful of the fact that, on the very first page of

the CBA, § 0.2 announces:

The headings used in this Agreement and exhibits neither add to nor
subtract from the meaning, but are for reference only.

Moreover, § 0.1 provides:

Unless otherwise expressly defined in this Agreement, all words shall

connote their common meaning.

The CBA contains no definitions of the words used in § 24.1, so they are to be

given their common meaning.

Modernly, there no longer is any mind/body dichotomy. Words such as

“physical” and “medical” subsume and include concepts such as “mental” and

“psychological”, because the brain is an organ of the body and the seat of

mental/emotional/psychological/psychiatric disorders. It would do violence to

the intent of the collective bargaining agreement, and be an unreasonable

10
restriction on the Employer’s ability to maintain “a capable work force,

employee health and safety, etc.”, to read “physical” and “medical” in § 24.1 so

narrowly as to preclude mental or psychological testing.

According to the most authoritative arbitration treatise, Elkouri &

Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003), such enabling

language is construed very broadly:

[E]ven where the contract does not contain the physical ability
requirement, it has been said that the term “ability” includes physical
(and mental) ability.383
383
See J.R. Simplot Co., 53 LA 1181, 1193 (Simon, 1969); Pittsburgh
Plate Glass Corp., 37 LA 1047, 1050 (Siciliano, 1962); Fairbanks Co., 32
LA 772, 774 (Jenson, 1959); Doehler-Jarvis Corp., 12 LA 896, 897
(Stashower, 1949). The terms “fitness” and “qualified” also include
physical and mental fitness or ability. See Reichhold Chems., 49 LA 952,
955 (Williams, 1967); Kilgore Inc., 35 LA 391, 394 (Dworkin, 1960);
Lockheed Aircraft Corp., 34 LA 67, 70 (Tatum, 1959). Cf. National
Dairy Prods. Corp., 34 LA 426, 427 (Cahn, 1960) (involving past
practice). Elkouri & Elkouri, supra, @ 909; emphasis supplied.

The word “ability” plainly appears in § 24.1. For these reasons, the arbitrator

concludes that § 24.1 governs the situation before him and includes mental and

psychological testing.

The Psychologist opined that Grievant is not fit for duty. The Psychiatrist

opined that Grievant is fit for duty. In this situation, the plain language of § 24.1

calls for “the employee [to] be referred to a mutually agreeable physician whose

decision shall govern the matter.” (Emphasis supplied). That is to be done in

11
this case. Indeed, even without an express contractual provision, it would be

within the arbitrator’s discretion to order an examination by a neutral physician.

Elkouri & Elkouri, supra, @ 398.

IV. Grievant Is Entitled To Be Put Back On The Payroll

It is difficult to understand how the issue of back pay could have been

addressed any more clearly than it was in the Opinion:

If Grievant finally is determined to be unfit for duty, then he should be

treated as terminated as of the date of that final determination and paid
through that date. Opinion @ 52; emphasis supplied.

Inasmuch as there has been no final determination of Grievant’s fitness, he must

be put back on the payroll until there is one.

While it may be true, as Employer counsel stated in his letter of May 30

(L7), that “[t]here is no requirement for the Employer to wait indefinitely for the

receipt of [a second opinion],” the Employer at least twice was notified that

Grievant was seeking one, in the Union Agent’s letter of April 27 (L1), and

again in Union counsel’s letter of May 8 (L3). The Employer acted

unreasonably in terminating Grievant for a second time without just cause.

In concluding his Opinion, the arbitrator cautioned:

The parties are urged to be reasonable and agree upon the amount owed
Grievant. If they return to the arbitrator on this issue and he finds that
one of them has been unreasonable, that party will pay. Opinion @ 52.

Because the arbitrator finds that the Employer has acted unreasonably,

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Grievant is awarded statutory interest on all back pay, dating from his most

recent termination. Elkouri & Elkouri, supra, @ 1219-1221; MCL 438.7 &

438.31.

V. Obiter Dicta: Do Not Make A Federal Case Out Of This

The arbitrator respectfully urges the parties to settle this case, as the

whole situation is spiraling downward. From his perspective, the animosity

between the Employer and Grievant appears to be so great as to cast doubt upon

their ability to work together effectively. It seems that Grievant may be in the

Employer’s crosshairs and that it could be just a matter of time before Grievant

is terminated again for some real or imagined infraction.

Moreover, even if the opinion of a third physician is obtained, and even if

that tie-breaking physician were to side with the Employer, all manner of

Americans with Disabilities Act and Medical and Family Leave Act issues

might arise. See Rostow & Davis, A Handbook for Psychological Evaluations in

Law Enforcement (Haworth Presses 2004), chs 14 & 15. The case could take on

a life of its own.

There may be several bases for federal jurisdiction in this case, such as a

challenge to the Psychologist’s Report on 1st and 14th Amendment grounds.

Indeed, Rostow & Davis observe:

As with all areas of public life, constitutional challenges are to be

expected regarding FFDE procedures. FFDEs of public safety officers

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 have been challenged on several constitutional grounds, including
invasion of privacy and violations of First and Fourteenth Amendments
(including religious, political, social, familial, and sexual rights). Id. @
97.

Union counsel already has launched a vigorous attack against the conduct

of the examination and on the Psychologist’s Report itself, alleging that “the

County spoke with Dr. [Psychologist], in advance of the fitness for duty exam

and the Union has serious issues regarding the psychological evaluation.” L3 @

2. The Psychologist’s Report concedes only:

Prior to the evaluation the Department presented the following

information for my review “as I saw fit” in the course of my evaluation.
Id. @ 15

However, much more must have transpired between the Department and

the Psychologist, because @ 16 is found the following:

The Sheriff’s explanation that he gave numerous letters including making

Deputy [Grievant] Officer of the Year in an attempt to motivate him
based on the good work he did sometimes and hoping that would get him
to abandon the impulsive acts that have gotten him in trouble. (Italics in
Psychologist’s Report.)

The Sheriff said nothing remotely to this effect before the arbitrator. The

Psychologist’s Report reads as if one of its purposes was to supplement the

record with information which the Employer failed to introduce at the

arbitration hearing.

On page 18 of the Psychologist’s Report appears additional information

obtained from the Sheriff, which was not presented at the arbitration hearing:

14
 The Sheriff noted that his first task when elected was to deal with sexual
harassment, in particular, 17 memos by Deputy [Grievant] calling
another officer a “homo”. The Sheriff dropped the charge from sexual
harassment to conduct unbecoming an officer “so as not to hurt his
career.” (Italics in Psychologist’s Report.)

It would take far too long to discuss all of the “new evidence” which was

presented to the Psychologist but not to the arbitrator; suffice it to say that the

Psychologist’s Report itself seems to give credence to the Union’s allegations of

impropriety and might provide evidence for a challenge on due process grounds.

The Union’s attack on the Psychologist’s Report continues:

The psychologist is not to critique or rewrite the award. The doctor

attempts to substitute his own judgment for that of the arbitrator’s. This
is, of course, inappropriate and renders the evaluation as worthless. L3
@ 3.

Again, it would take too long to discuss each of the instances in which the

Psychologist sought to contradict the arbitrator’s findings, but one area in which

he strayed so far out of his field and so greatly exceeded the scope of his

assignment that comment is necessary, is that of sexual harassment.

Having remarked about Grievant’s “verbal comprehension” and “critical

thinking skills” (Psychologist’s Report @ 21), the PhD himself may have

experienced a lapse in such comprehension and thinking skills while attempting

to assess the arbitrator’s discussion of sexual harassment. The arbitrator

anticipated that anyone with a college education, much less a PhD, would

realize that much of what he wrote on pages 35-38 of his Opinion was said

15
tongue in cheek. It was simply satire,2 written to chide the Employer for making

a mountain out of a molehill.

But failing to exhibit a sense of humor may not be the worst of the

Psychologist’s shortcomings. Far more serious is imposing his own politically

correct notion of “sexual harassment” to judge conduct which the arbitrator

already had indicated was not sexual harassment, as a matter of law (Opinion

@ 37). In the face of the arbitrator’s lengthy explanation, the Psychologist

wrote:

One gets the feeling on reading this section carefully, that the arbitrator
is giving a defense for what is commonly considered sexual harassment
and inappropriate sexual remarks on the basis of free speech. Id. @ 17;
italics in Psychologist’s Report.

This was a clear violation of Grievant’s right to have the sexual harassment

allegations against him decided upon the basis of law, instead of professional

biases.

On page 37 of the Opinion, the arbitrator set out Michigan law on the

subject, the only provision of which that could possibly apply to Grievant’s

conduct being MCL 37.2103(i)(iii), providing in pertinent part:

Sexual harassment means … verbal … communication of a sexual nature

under the following conditions: … The … communication has the
purpose or effect of … creating an intimidating, hostile, or offensive
employment … environment.

2
How anyone could seriously believe that President Clinton issued an executive order on oral sex is beyond the
arbitrator’s comprehension. Opinion @ 36. Yet the PhD may have swallowed it, hook, line and sinker.

16
The arbitrator found that Grievant’s purpose was playful and that his

communication had no effect whatsoever on the workplace, except perhaps to

amuse the Male Dispatcher, who replied in kind. In fact, the repartee went

wholly unnoticed until the Undersheriff went digging for dirt on Grievant, and

no one except the Employer has ever complained about it.

Clark County School District v Breeden, 532 US 268 (per curiam), reh

den 533 US 912 (2001), fully supports the arbitrator’s ruling and is so

instructive that it merits quoting at length:

On October 21, 1994, respondent's male supervisor met with respondent

and another male employee to review the psychological evaluation
reports of four job applicants. The report for one of the applicants
disclosed that the applicant had once commented to a co-worker, "I hear
making love to you is like making love to the Grand Canyon." Brief in
Opposition 3. At the meeting respondent's supervisor read the comment
aloud, looked at respondent and stated, "I don't know what that means."
Ibid. The other employee then said, "Well, I'll tell you later," and both
men chuckled. Ibid. Respondent later complained about the comment to
the offending employee, to Assistant Superintendent George Ann Rice,
the employee's supervisor, and to another assistant superintendent of
petitioner. Her first claim of retaliation asserts that she was punished for
these complaints. …

Title VII forbids actions taken on the basis of sex that "discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment." 42 U. S. C. §2000e-2(a)(1).
Just three Terms ago, we reiterated, what was plain from our previous
decisions, that sexual harassment is actionable under Title VII only if
it is "so 'severe or pervasive' as to 'alter the conditions of [the victim's]
employment and create an abusive working environment.' " Faragher
v. Boca Raton, 524 U. S. 775, 786 (1998) (quoting Meritor Savings
Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (some internal quotation
marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524

17
 U. S. 742, 752 (1998) (Only harassing conduct that is "severe or
pervasive" can produce a "constructive alteratio[n] in the terms or
conditions of employment"); Oncale v. Sundowner Offshore Services,
Inc., 523 U. S. 75, 81 (1998) (Title VII "forbids only behavior so
objectively offensive as to alter the 'conditions' of the victim's
employment"). Workplace conduct is not measured in isolation;
instead, "whether an environment is sufficiently hostile or abusive"
must be judged "by 'looking at all the circumstances,' including the
'frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work
performance.' " Faragher v. Boca Raton, supra, at 787-788 (quoting
Harris v. Forklift Systems, Inc., 510 U. S. 17, 23 (1993)). Hence, "[a]
recurring point in [our] opinions is that simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the 'terms and conditions of
employment.' " Faragher v. Boca Raton, supra, at 788 (citation and
quotation marks omitted).

No reasonable person could have believed that the single incident

recounted above violated Title VII's standard. The ordinary terms and
conditions of respondent's job required her to review the sexually
explicit statement in the course of screening job applicants. Her co-
workers who participated in the hiring process were subject to the
same requirement, and indeed, in the District Court respondent
"conceded that it did not bother or upset her" to read the statement in
the file. App. to Pet. for Cert. 15 (District Court opinion). Her
supervisor's comment, made at a meeting to review the application,
that he did not know what the statement meant; her co-worker's
responding comment; and the chuckling of both are at worst an
"isolated inciden[t]" that cannot remotely be considered "extremely
serious," as our cases require, Faragher v. Boca Raton, supra, at 788.
… 532 US @ 269-271.

Perhaps the Psychologist is unfamiliar with the Clark County case and

the guiding principles enunciated in it by the Supreme Court. He could be

unaware of the distinction between protected sexual speech (“mere offensive

18
utterance” as characterized by the High Court) and unprotected sexual

harassment outlawed by Congress and Michigan’s General Assembly.

Regardless of the Psychologist’s understanding, Grievant is entitled to be judged

according to established legal standards, not the prejudices of political

correctness.

Most assuredly, Drs. Rostow & Davis are attuned to the free speech

issues:

The use of obscene language by an officer, which is limited to fellow

officers who are willing to accept such language, appears to be a case in
which it is advisable to avoid FFDEs in favor of other remedies.
Although general agreement exists among LE executives and
psychologists that obscene or vulgar verbal conduct is distasteful and
may presage more destructive emotional and character difficulties, the
courts have taken a very broad First Amendment interpretation of
objectionable language, per se. The use of obscenities with superior
officers is usually seen as insubordinate and a matter that brings disrepute
upon a department. When unremitting, especially in the face of repeated
warnings or disciplinary procedures, continued use of vulgarities with
superiors may be a good reason to order an FFDE. This, however, does
not appear to be the case when such language is used with fellow officers
only. … Id. @ 153; emphasis in original.

In the instant case, fellow officers Grievant and Male Dispatcher were just

engaging in free speech, as was their constitutional right. AFGE, Local 1629

and Veterans Administration, Medical Center, Battle Creek, MI, 87 FLRR 2-

1190, LAIRS 17778 (Arb 1987).

The Psychologist’s apparent failure to recognize the arbitrator’s

facetious treatment of frivolous sexual harassment charges quite possibly led

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to the former’s entanglement in the irrelevant on/in distinction

(Psychologist’s Report @ 17-18) which was addressed by Shakespeare

hundreds of years ago in Othello: “With her, on her; what you will.” Iago,

Act IV, Scene I. The Male Dispatcher certainly understood that it’s a

distinction without a difference: “[Y]ou gotta do what you gotta do,” he

retorted to Grievant. Opinion @ 35. It begins to look like Grievant was fired

over semantics, not sex.

Not only did the Psychologist fail to specify the non-standard definition

of “sexual harassment” which he was employing, he also failed to state the

standard of proof which he was using to convict Grievant. As best the arbitrator

can discern, it was somewhat akin to Iago’s rule of thumb for judging marital

infidelity:

I know not if't be true;

But I, for mere suspicion in that kind,
Will do as if for surety. Othello, Act I, Scene III.

Today, the emotive charge of “sexual harassment” may prove to be little

more than a ruinous concoction stirred up to poison the arbitral atmosphere:

Work on,
My medicine, work! Thus credulous fools are caught;
And many worthy and [skilled workers] even thus,
All guiltless, meet reproach. Iago, Othello, Act IV, Scene I; liberty taken.

When combined with prejudices of political correctness, the pernicious effect of

sexual harassment allegations on an employee’s career is greatly magnified.

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 Despite a lack of evidence, Grievant has now been fired twice for alleged

sexual harassment, first by the Employer directly and a second time indirectly

by the Psychologist, who improperly superimposed his own notions about the

subject over the arbitrator’s legal findings of fact and conclusions of law. The

Psychologist’s place in private practice in no way diminishes the Employer’s

duty to see that that practice is carried out consistently with controlling law

when a public employee is the subject of the psychological evaluation. See

Smith v Maryland, 442 US 735 (1979) (private party may be agent of public

entity for purposes of establishing state action).

Cited in the Employer’s arbitration brief @ 27, n 4, is Blankenship v

Parke Care Centers, 123 F3d 868 (6th Cir 1997); cert den, 522 US 110 (1998), a

federal sexual harassment case, so it seems that Grievant may have been

charged with violations of federal law. Opinion @ 38. Were he to file suit for a

declaratory judgment that he has not violated that law, a federal court might

accept jurisdiction over this and any other federal issues which he might raise.

Still other issues might get swept in under the doctrines of pendant and ancillary

jurisdiction, including specific enforcement of the arbitration award.

The arbitrator’s suggestion, and it is only that, is for the parties to settle

the case before it literally becomes a federal one. He respectfully urges them to

explore all possibilities, from accepting the Psychiatrist’s Report, to a severance

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package, to another position with the County—whatever it takes to bring this

matter to an end. Otherwise it threatens to drone on like Jarndyce & Jarndyce,

which “still drags its dreary length before the Court, perennially hopeless.”3

VI. Order

(A) Grievant is to be put back on the Employer’s payroll forthwith and paid
back pay with interest.

(B) On or before Friday, June 22, 2007, the parties are to decide upon a
mutually agreeable physician for examination whose decision shall
govern the matter. The parties shall further agree upon the documents to
be transmitted to the physician, the individuals whom the physician is to
interview, and the scope of the physician’s examination and written
report. Neither party is to have any contact with the physician except as
mutually agreed. The physician’s report is to be transmitted
simultaneously to Union counsel, Employer counsel, and the arbitrator. If
the parties fail to agree, the arbitrator will make the necessary decisions.

(C) The County and Grievant shall share the cost of the physician.

(D) The Employer is responsible for one-half of the continuing costs of this
arbitration.

VII. Jurisdiction Retained

The arbitrator retains jurisdiction to resolve any issues which may arise

over implementation of his award.

Dated June 11, 2007 _____________________________

E. Frank Cornelius, Arbitrator

3
C. Dickens, Bleak House, ch 1.

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