Back pay – Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

By John H Curley on November 15, 2020

The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. City ordered to rehire ‘proven racist’ cop; status uncertain

The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator’s award on the merits as well as a subsequent award on back pay issues.

Arbitrator Gary Altman overturned the termination, finding the penalty too severe. He converted the discipline to a thirty day suspension and ordered grievant’s reinstatement. He further ordered that:

… grievant shall not be awarded back pay for the period of this thirty day suspension. Under this award the grievant is to be made whole for lost compensation until he returns to work pursuant to this Award, minus thirty days’ pay for the period of the suspension. In addition, his back pay shall be offset by any compensation that the grievant received during this time period.

The Department refused to reinstate the grievant, and also claimed that grievant had failed to mitigate his damages by failing to make reasonable efforts to find seek employment after his termination. It was undisputed that grievant had failed to seek alternative employment during the period he was no longer working for the City of Manchester. Grievant noted that following this termination he assumed primary caregiver responsibility for his two sons, providing the opportunity for his wife to increase her hours and, presumably her income. According to grievant:

“My wife adjusted her work hours and schedule following termination, no longer being able to serve as primary caregiver for them”, and that his wife now “works as a nurse practitioner and adjunct professor of nursing. Those employment responsibilities combined, having been adjusted post termination, have her now working 7 days a week.”

The dispute between the Department and the Union concerning the appropriate calculation of back pay due grievant was submitted to the arbitrator for resolution. Manchester Police Patrolman’s Association and City of Manchester.

Arbitrator Altman separated the back pay period into three district time periods. Initially he noted that at the time of grievant’s termination the Department also sought to have the County Attorney pursue criminal charges against grievant. The County Attorney ultimately did not pursue those charges. For this initial period, Arbitrator Altman concluded that the pendency of potential criminal charges seriously limited grievant’s ability to find employment in a substantially equivalent position. He observed:

Considering the totality of circumstances, including the position held by the grievant, and the fact that he was under criminal investigation, Mr. Brown was not required to have sought employment during the time period he was under criminal investigation. In other words, it was reasonable for Mr. Brown to have waited until the criminal investigation was concluded for him to make any attempt to look for substantially similar employment.2

___
2 The obligation to seek employment is not for any and all positions. Rather, an employee’s obligation is to seek employment in a position suitable to his background and experience, and one that provides comparable pay and benefits.

The second time period encompassed the period between the time the County Attorney’s office advised that it would not pursue criminal charges and the date of the Arbitrator’s award. For this period, Arbitrator Altman concluded that grievant had failed to mitigate, and denied back pay:

Circumstances changed after it was clear that the County Attorney decided not to pursue criminal charges. Undoubtedly, it would have been difficult for Mr. Brown to find work in the field of law enforcement after his discharge, but the difficulty of finding such position does not excuse him from making at least some effort, to look for work. It is the general rule in back pay cases that an employee must make at least reasonable efforts to find new employment, which is substantially equivalent to the position lost and is suitable to a person of his or her background and experience.
It is not as if Mr. Brown had to actually find employment but he must, at least, have made an effort to search for employment. It would be inappropriate to allow an employee to collect back pay during a period when the employee made no effort to mitigate damages by seeking employment and essentially dropped out of the labor market.

Arbitrator Altman rejected the claim that grievant’s assumption of increased child care responsibilities provided a basis for his failure to seek other employment. He noted:

The fact that Mr. Brown stayed home with his minor children while his wife worked additional hours does not satisfy the duty to mitigate. By this decision, Mr. Brown totally removed himself from the workforce. I know of no cases in which a discharged employee is excused from attempting to search for work because he decides to stay home with his children.

Finally, the Arbitrator found grievant was eligible for back pay for the period following the merits award ordering his reinstatement until the City actually returned him to employment:

The City has the right to challenge the Arbitrator’s Decision directing the reinstatement of Mr. Brown, as it deems appropriate. If the City complied with the Award, however, Mr. Brown would have been reinstated and would have begun to be paid the wages and benefits due to him under the parties’ Collective Bargaining Agreement. I know of no cases in which an employee’s obligation to mitigate continues after an award of reinstatement.