Casebook on Sexual Orientation and the Law — Police Officers Federation of Minneapolis v. City of Minneapolis

Police Officers Federation of Minneapolis v. City of Minneapolis
Minnesota Court of Appeals
2000 WL 719860
June 6, 2000

KALITOWSKI.

Appellant Police Officers Federation of Minneapolis and respondent City of Minneapolis arbitrated their dispute over whether respondent properly issued a written reprimand to one of appellant's members. Appellant contends the arbitration award should be vacated because the arbitrator exceeded his authority by manifestly disregarding the law. We affirm.

DECISION

The question before the arbitrator in this case was whether respondent properly reprimanded a police firearms instructor for violation of respondent's sexual harassment policy. Respondent's police department requires its police recruits to complete a two-week firearms course. The last two days of this course are spent conducting firearms qualifications tests. In September 1997, a police recruit made a sexual harassment complaint to the police department after the recruit failed her qualifications tests. The recruit complained that the instructor of her firearms course had initiated personal conversations with her and gave her extra attention during class. Evidence was presented that the instructor: (1) asked the recruit where she lived and requested her phone number; (2) invited the recruit to her gun club; (3) gave the recruit a business card with her personal phone number written on it; and (4) during a testing break called the recruit out of the room to make an additional request for the recruit's phone number. Respondent reprimanded the instructor for violation of its sexual harassment policy. Appellant filed a grievance over the reprimand of the instructor and the grievance was arbitrated.

The arbitrator found that the instructor's conduct (1) was "unusual and persistent" regarding the recruit; and (2) implied that the instructor was sexually interested in the recruit. The arbitrator determined that the instructor's behavior constituted a "sexual advance" under the policy and concluded that the sexual advance created a hostile working environment based on findings that the instructor's conduct (1) raised "substantial stress" in the recruit causing the recruit's hands to shake; and (2) impacted the recruit's ability to shoot accurately.

Appellant argues that the arbitrator deliberately disregarded the law because the findings do not support a determination that the instructor violated the sexual harassment policy. Respondent's sexual harassment policy provides:

Sexual advances, requests for sexual favors or other verbal or physical acts of a sexual nature constitute sexual harassment when:

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3. such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment.

This definition is substantially similar to the definition of sexual harassment in the Minnesota Human Rights Act (MHRA).

In a MHRA claim, sexual harassment must be so severe or pervasive that it alters the conditions of employment and creates an abusive working environment. Johns v. Harborage I, LTD, 585 N.W.2d 853, 861 (Minn.App.1998). In order to be "hostile," the environment must be

both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.

The requirement that the conduct be severe enough to create an objectively hostile environment ensures that ordinary socializing such as horseplay or flirtation is not mistaken for sexual harassment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). To determine the effect of the alleged harasser's language and conduct, a court may consider its "nature, frequency, intensity, location, context, duration, and object or target." Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn.App.1986). The objective severity of harassment should be judged from the perspective of a reasonable person in the alleged victim's position, considering "all the circumstances." Oncale, supra. In same-sex harassment cases, the inquiry requires "careful consideration of the social context in which particular behavior occurs and is experienced by its target." It is not necessary to prove that the alleged harasser's conduct was motivated by an actual interest in sexual activity with the alleged victim. Cummings, supra.

Appellant argues that the arbitrator manifestly disregarded the holding in Oncale that ordinary flirtation is not sexual harassment. We disagree. The arbitrator found that the instructor's conduct would be inconsequential flirting in most circumstances but that it was sexual harassment "in the circumstances of this case." The arbitrator's reference to flirtation does not indicate manifest disregard of Oncale because Oncale makes clear that courts should consider all the circumstances. Here, the arbitrator noted the unequal relationship between the instructor and recruit and that the recruit's nervousness and embarrassment greatly affected her ability to pass the firearms tests. The arbitrator was persuaded that the circumstances of this case were particularly sensitive. This is relevant under Oncale and under respondent's sexual harassment policy, which provides that "[s]upervisors shall be held to a higher standard of conduct and shall be subject to a higher level of discipline for engaging in sexual harassment."

Appellant also contends the arbitrator deliberately disregarded the statement in Cummings that an alleged harasser's subjective motivation for the conduct is not controlling. We disagree. First, considering the instructor's subjective motivation is not contrary to Cummings. While under Cummings it is not necessary to prove subjective motivation, the court also noted that "[e]vidence that the harasser was actually interested in sexual contact with the plaintiff may help to show that the conduct was 'of a sexual nature.'" Second, although the arbitrator stated that the instructor's conduct "impl[ied] a motivation to establish a close relationship because she was sexually interested in the Recruit," the arbitrator was properly considering the recruit's interpretation of the conduct and whether it was reasonable, rather than the instructor's subjective intent.

Finally, appellant argues the arbitrator deliberately disregarded the reasonable-person standard in determining whether the conduct created a hostile work environment. But the mere fact the arbitrator cited the reasonable-person standard and then considered the subjective effect of the conduct on the recruit does not indicate manifest disregard of the law. The arbitrator attempted to distinguish the statement in Oncale about flirting and considered the particular circumstances of this case. We conclude that appellant has not established a ground for vacating the arbitrator's award because appellant's allegations at most indicate the arbitrator erred by misunderstanding or misapplying the law.

Affirmed.