HARRISBURG – Per a recent ruling from the Commonwealth Court of Pennsylvania, the City of Philadelphia was unsuccessful in its attempt to overturn the reinstatement of a police lieutenant who had been fired for alleged sexual harassment towards female officers more than three years ago.
On Jan. 8, Commonwealth Court Judge Anne E. Covey authored a majority opinion on the Court’s behalf, which denied the City’s appeal petition to reverse the reinstatement of Lt. Marc Hayes. Commonwealth Court Judge Renee Cohn Jubelirer dissented from the majority.
“On Aug. 13, 2018, Lt. Hayes was responsible for supervising the officers assigned to his squad in the Department’s 24th District (24th District). Over the course of that day, Lt. Hayes sent multiple, highly inappropriate messages to two female officers under his supervision – Officer 1 and Officer 2 (collectively, officers) – including texts with sexually suggestive comments, innuendos and sexual content, culminating in a graphic, disturbing video depicting bestiality between a woman and a dog,” Covey said.
“On Oct. 30, 2018, the City found an anonymous letter in the 24th District Headquarters stating that, during work hours on Aug. 13, 2018, Lt. Hayes ‘sent videos of bestiality pornography involving a female and a dog engaged in sexual acts’ to two female officers on his squad and that his conduct ‘should and must be addressed.’ The City forwarded the letter to its Internal Affairs Division (IAD), which commenced investigations through both its Investigative Support Services team (ISS) and its Equal Employment Opportunity team (EEO). On Oct. 30, 2018, ISS and EEO interviewed both officers.”
The following day, Oct. 31, 2018, Hayes approached both officers and asked if they still had the video he sent them. One officer maintained she would not lie in the subsequent investigation and the second officer, upon hearing from Hayes that he had submitted her name for a promotion, emphasized that she did not owe him anything.
“On July 9, 2020, based on IAD’s investigation results, the City filed charges against Lt. Hayes for violating the following provisions of the Department’s Disciplinary Code: Section 1-§024-10 (any act, conduct or course of conduct which objectively constitutes sexual harassment); Section 1-§021-10 (any incident, conduct or course of conduct which indicates that an employee has little or no regard for his/her responsibility as a member of the Department); Section 1-§025-10 (on-duty or job-related inappropriate, sexually based communication(s) conveyed in any manner); and Section 8-§003-10 (failure to properly supervise subordinates). After reviewing the charges and the supporting evidence, Department Commissioner Danielle Outlaw determined that Lt. Hayes committed each offense and that his violations warranted dismissal. Commissioner Outlaw directed that, effective July 9, 2020, Lt. Hayes be suspended for 30 days with the intent to dismiss,” Covey said.
“On July 13, 2020, Lt. Hayes filed a grievance challenging his employment termination and, on Sept. 25, 2020, the Fraternal Order of Police, Lodge No. 5 (FOP) demanded arbitration pursuant to the Policemen and Firemen Collective Bargaining Act, commonly known as Act 111.1. The Arbitrator conducted hearings on June 17 and June 22, 2022. On July 22, 2022, the Arbitrator sustained the grievance in part, and ordered Lt. Hayes’s reinstatement. The Arbitrator agreed that Lt. Hayes violated certain City policies and that his actions were highly inappropriate, but concluded that the City failed to prove sexual harassment and converted his dismissal to a 50-day suspension without pay. The City appealed from the Arbitrator’s Award to the trial court. On Dec. 13, 2022, the trial court affirmed the Arbitrator’s Award, concluding that the Arbitrator acted within his authority by modifying Lt. Hayes’s discipline. The City timely appealed to this Court.”
The Court granted the City’s request for an en banc review of the case.
“The City argues that the Arbitrator acted outside his authority under narrow certiorari review because he did not merely misinterpret the collective bargaining agreement, but fully reformed it. Specifically, the City contends that an individual commits sexual harassment under Section 1-§024-10 of the Disciplinary Code if his misconduct ‘objectively constitutes sexual harassment,’ if a reasonable person would deem the conduct to be unwelcome. The City asserts that Lt. Hayes’s misconduct objectively constituted sexual harassment; however, the Arbitrator, without any interpretation or even consideration of Section 1-§024-10 of the Disciplinary Code, found that Lt. Hayes did not commit sexual harassment because there was no subjective harassment from the specific perspective of Officers 1 and 2,” Covey said.
“The City claims that the Arbitrator created a subjective requirement under the Disciplinary Code, which he was not authorized to do. The City also declares that the Arbitrator acted outside his authority because the determination of the Department’s sexual harassment policy is an inherent matter of managerial prerogative, and is not a term and condition subject to collective bargaining. The FOP rejoins that the parties in this matter specifically authorized the Arbitrator to determine whether the City had just cause to discharge Lt. Hayes, and, if not, the appropriate remedy. The FOP further maintains that simply because a provision within a collective bargaining agreement constitutes a managerial prerogative does not preclude an arbitrator hearing a disciplinary grievance from rendering a decision about the meaning of such a provision; nor does it prohibit that arbitrator from deciding an issue concerning the provision.”
Covey, in reference to the City’s claim that the Arbitrator acted outside his authority by ruling on a matter of managerial prerogative, cited the Arbitrator’s own ruling.
“Clearly, the propriety of [Lt. Hayes’s discharge] was submitted to the Arbitrator…All matters of discipline are grievable pursuant to the parties’ CBA. Thus, [this Court] concludes that the Arbitrator addressed not only an issue put before him, but one which was arbitrable as well pursuant to the CBA, Act 111 and our case law,” according to the Arbitrator.
Per this rationale, the Commonwealth Court found that the Arbitrator did not exceed his authority and that it would not be able to modify the narrow certiorari test.
“Next, the City argues that even if the Arbitrator did not exceed his authority by reforming the CBA, this Court should modify narrow certiorari review to allow reversal because the Arbitrator’s Award failed the JNOV test or the essence test, or was repugnant to public policy. The City concedes that this Court is constrained by Supreme Court of Pennsylvania precedent, which clearly holds that in Act 111 cases our scope of review is limited to narrow certiorari. However, the City declares that it briefed the question to preserve the issue for our Supreme Court’s review, and to seek agreement from this Court that the test should be modified,” Covey stated.
“The FOP agrees that this Court may not modify the narrow certiorari test as it is bound by the long-established Supreme Court of Pennsylvania decisions. This Court declines to accept the City’s invitation to re-evaluate the narrow certiorari review as it is bound by our Supreme Court’s precedent. Because the City is only making this argument to preserve it for appeal to the Supreme Court of Pennsylvania, this Court need not further address this issue. For all of the above reasons, the trial court’s order is affirmed.”
Commonwealth Court of Pennsylvania case 39 C.D. 2023
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com