C4-99-2041

Police Officers Federation of Minneapolis, petitioner,

Appellant,

vs.

City of Minneapolis,

Respondent.

Filed June 6, 2000
Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. EM998663

Ann E. Walther, James P. Michels, Best & Flanagan LLP, 4000 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for appellant)

Jay M. Heffern, Minneapolis City Attorney, Karen S. Herland, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

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.

D E C I S I O N

A reviewing court will exercise every reasonable presumption in favor of the finality and validity of an arbitration award. State, Office of the State Auditor v. Minnesota Ass’n of Prof’l Employees, 504 N.W.2d 751, 754 (Minn. 1993). In the absence of an agreement limiting an arbitrator’s authority, an arbitrator is the final judge of both law and fact. Id. An arbitrator’s award will not be

set aside for mistake of either law or fact in the absence of fraud, mistake in applying his or her own theory, misconduct, or other disregard of duty.

Cournoyer v. American Television & Radio Co., 249 Minn. 577, 580, 83 N.W.2d 409, 411 (1957). It is “immaterial” whether an arbitrator erred in interpreting the applicable law. In re Arbitration between City of Saint Paul v. AFSCME Council 14, Local 2508, 567 N.W.2d 524, 527 (Minn. App. 1997).

Appellant argues that the arbitration award should be vacated because the arbitrator manifestly disregarded the law. We disagree. Minnesota has not adopted manifest disregard of the law as a test for reviewing arbitration awards. See In re Arbitration between Hunter, Keith Indus., Inc. v. Piper Capital Management Inc., 575 N.W.2d 850, 851 (Minn. App. 1998) (stating that because the facts did not establish manifest disregard of the law, it was “unnecessary to decide whether Minnesota should adopt the ‘manifest disregard doctrine’ as a basis for overturning arbitration awards”). We similarly decline to adopt the doctrine here. A court will vacate an arbitration award only upon proof of one or more of the grounds provided in Minn. Stat. § 572.19 (1998), Hunter, Keith Indus., 575 N.W.2d at 854, and it is not for this court to adopt a new ground for vacating an arbitration award.

Moreover, even if Minnesota recognized the doctrine, we would not vacate the award in this case. Manifest disregard of the law provides a narrow basis for vacating an arbitration award. Id. at 855. Manifest disregard of the law is demonstrated where an arbitrator commits an error that is “obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” Id. (citations omitted). “The term ‘disregard’ means the arbitrator ‘appreciates the existence of a clearly governing legal principle’ but chooses to ignore it.” Id. “Manifest disregard” is more than an error or misunderstanding of law. Id.

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:

* * * *

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). See Minn. Stat. § 363.01, subd. 41 (1998).

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.

Id. (quotation omitted). 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, 118 S. Ct. 998, 1003 (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), review denied (Minn. Feb. 13, 1987), abrogated on other grounds by Cummings v. Koehnen, 568 N.W.2d 418, 420 n.2 (Minn. 1997). 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, 523 U.S. at 81, 118 S. Ct. at 1003 (quotation omitted). 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.” Id. 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, 568 N.W.2d at 423.

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. See Oncale, 523 U.S. at 81, 118 S. Ct. at 1003. 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. See Cummings, 568 N.W.2d at 423. 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.’” Id. at 423. 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.