Executed on June 6, 2024, in Emeryville, California.
Angel Orinion
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GARRETT R. PORTER (SBN 249292)
MASTAGNI HOLSTEDT
A Professional Corporation
1912 I Street
Sacramento, California 95811
Phone: (916) 446-4692
Fax: (916) 447-4614
Email: [email protected]
Attorney for Appellants
LIUNA Local 792 and Jerod Balthrop
IN RE ARBITRATION OF
JEROD BALTHROP
LIUNA LOCAL 792 and
JEROD BALTHROP,
Union,
vs.
CITY OF MONTEREY
Employer.
Case No.:
APPELLANT’S CLOSING BRIEF
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TABLE OF CONTENTS
I. ISSUE ..................................................................................................................................... 1 II. INTRODUCTION & PROCEDURAL HISTORY............................................................ 1 III. STANDARD OF REVIEW .................................................................................................. 2 IV. STATEMENT OF FACTS ................................................................................................... 2 V. ARGUMENT......................................................................................................................... 5 VI. CONCLUSION...................................................................................................................... 9 AR 526
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TABLE OF AUTHORITIES
Cases
Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155 ........................................................... 2 California Teachers Association v. State of California (1999) 20 Cal.4th 327 ............................. 2 Department of Parks and Recreation v. State Personnel Board (1991) 233 Cal.App.3d 813....... 3 IBEW v. City of Gridley (1983) 34 Cal.3d 191............................................................................... 3 Layton v. Pomona, 60 Cal.App.3d 58, 64 (1976)........................................................................... 3 Los Angeles Police Protective League v. City of Los Angeles (2002)102 Cal.App.4th 85............ 2 Parker v. City of Fountain Valley, (1981) 127 Cal.App.3d 99 ...................................................... 2 Runyan v. Ellis (1996) 40 Cal.App.4th 961 ................................................................................... 2 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 .................................................................. 6 Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940.......... 2 Statutes
Govt. Code § 3304.......................................................................................................................... 2 Other Authorities
Discipline and Discharge in Arbitration, p. 65 (2nd Edition 2008)................................................ 6 Fulton Seafood Indus., Inc., 74 LA 620 (Volz, 1980).................................................................... 6 Just Cause: The Seven Tests, p. 3, Koven & Smith, 3rd Ed., 2006........................................... 6, 7 Sterling Drug, Inc., 67 LA 1296, 1299 (Draper, 1976).................................................................. 6 AR 527
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I. ISSUE
Appellants LIUNA Local 792 and Jerod Balthrop (hereafter, “Mr. Balthrop”) submit this closing brief presenting the facts and law supporting his appeal from termination as an Electrician for Respondent, the City of Monterey (hereafter, “City”).
The issue in this disciplinary appeal is whether there was just cause to terminate Jerod Balthrop.
II. INTRODUCTION & PROCEDURAL HISTORY
This case is an appeal from Jerod Balthrop’s November 8, 2023 termination from the City.
However, the City has failed to meet its burden of establishing that Balthrop violated Monterey City Code section 25-3.03 (JX-7), section 25-14.02 (JX-5) or the City of Monterey General Services Division: Standard Operating Procedures (JX-8), and thus, the City did not have just cause to terminate him. The evidence has shown; (1) the alleged violation of the policies is not sufficiently supported by the weight of the evidence and (2) that Balthrop’s admitted conduct does not support the proposed discipline since the City did not consider all of the mitigating factors present nor adhere to the progressive discipline model. Termination, therefore, is not supported by just cause.
On February 21, 2023, Mr. Balthrop was given a “Notice of Investigation and Request to Schedule Investigative Interview.” (JX-9). On March 6, 2023, Mr. Balthrop participated as a subject during an administrative interview with Union representative, Mr. Ryan Heron and investigating attorney, Joe Rose. (C-4). On October 13, 2023, the City issued Mr. Balthrop a “Notice of Proposed Discipline – Termination” to which the Union filed a timely appeal requesting a Skelly hearing. Also on October 13, 2023, the City placed Mr. Balthrop on “Administrative Leave with Pay” in light of the notice of proposed discipline recommending termination. (JX-3).
On October 27, 2023, Mr. Balthrop and Mr. Heron attended, while Public Works Director Ms.
Andrea Renny served as the Skelly hearing officer in a pre-disciplinary appeal. (C-5). On November 7, 2023, the City issued Mr. Balthrop a “Notice of Disciplinary Action – Termination.” (C-4). The Union filed a timely appeal requesting arbitration.
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III. STANDARD OF REVIEW
All parties are bound by the Monterey City Code and the Memorandum of Understanding between the City of Monterey and LIUNA/UPEC, Local 792. (JX-2). Prior to termination, Balthrop was a public and permanent employee. As an employee of the City, Balthrop maintained a vested property interest in his employment. He was entitled to a pre-disciplinary hearing and a post-discipline due process administrative appeal, which must be consistent with his constitutional right to procedural due process. (Govt. Code § 3304(b); Runyan v. Ellis (1996) 40 Cal.App.4th 961, 966.)
Because this post-discipline due process administrative appeal is Balthrop’s first opportunity for a trial-type hearing, it is axiomatic that the City bears the burden of proof and has the burden of going forward with the evidence. (Parker v. City of Fountain Valley, (1981) 127 Cal.App.3d 99, 103; Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 175-176; Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 949; Los Angeles Police Protective League v. City of Los Angeles (2002)102 Cal.App.4th 85; Layton v. Pomona, 60 Cal.App.3d 58, 64 (1976).) City bears the burden not only of establishing that the cause for discipline was sustained, but also that the cause was sufficient to justify the penalty imposed. (Department of Parks and Recreation v. State Personnel Board (1991) 233 Cal.App.3d 813, 827; IBEW v. City of Gridley (1983) 34 Cal.3d 191, 208.)
Therefore, in this proceeding, the City bears the burden of proof and has the burden of going forward with their evidence.
IV. STATEMENT OF FACTS
1. Balthrop’s Background as a City Employee
Mr. Balthrop has worked for the City of Monterey as an electrician for well over twenty years without any other discipline. He was hired by the City in June 2000 in an assistant position and was promoted to an electrician about a year later. (RT 134:22-25). During his time with the City, Balthrop served several different positions including street department; where he handled street lighting, underground locating, pole lighting, pole replacement and crane operating. (RT 135:5-10).
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Mr. Balthrop has received awards and recognitions for his service and commitment to the City. (Ex. B, C, D, E). Additionally, every evaluation Mr. Balthrop has ever received from the City, which were signed by his immediate supervisor, the General Service Superintendent, and the Deputy City Manager, has been positive and has specifically noted Balthrop as being friendly and respectful. (Ex. F). Prior to this incident, Mr. Balthrop had no prior discipline or issues. Further, in the entirety of Mr. Balthrop’s career, he has never received any corrective actions from the City regarding any form of harassment other than the termination at hand. (RT 126:18-127:1).
At the time this matter arose and the termination was issued, Balthrop was chief electrician for the Presidio complex where he dealt with power generation, day-to-day maintenance, and overseeing other electricians. (RT 135:20-25). Part of his duties as an electrician for the City was being able to immediately identify electrical issues in City property, write it up, call it in, and efficiently address the issue. (RT 137:1-4).
The Presidio of Monterey is a City owned Army installation where several businesses operate out of. One of these businesses in the Presidio is a Subway sandwich restaurant where Ms.
Leslie Fraide is the restaurant manager. Ms. Aysel Gan is the Army and Air Force Exchange Service manager who coordinates the provision of food and merchandise to military personnel and other people on U.S. Department of Defense installations like the Presidio. During his employment, Mr. Balthrop considered Ms. Leslie Fraide and the other Subway restaurant workers to be his friends. He never had any problems with Ms. Fraide nor any of the other employees at the restaurant. (RT 138:15-20). Prior to the incident in December 2022, Mr. Balthrop did not use any offensive language or gestures at the Subway restaurant or anywhere else while working. (RT 139:5-8).
On the day of the incident in December 2022, Mr. Balthrop was working and the weather was rainy and windy. Based on Balthrop’s training and experience, he identified that these were the conditions where a building in the Presidio complex might lose power. (RT 139:14-18).
Around 10:00a.m., Balthrop took his break and went to the Subway restaurant within the Presidio complex to buy a sandwich. (RT 139:19-22). As Balthrop pulled up to the Subway restaurant in his work truck, he noticed that the back door was opened and could see two lights shining through AR 530
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the doorway when he saw the lights flicker. (RT 139:23-25). Per his training and experience, Balthrop identified the lights flickering as a further indication that the high priority level building may lose power, resulting in the loss of the refrigerated goods kept in the Subway restaurant. (RT 140:5-19). So, Mr. Balthrop walked through the door to determine if the lights would continue to flicker two more times within a 20-second period. Per Balthrop’s training and experience, it is critical to observe the lights for 20-seconds in determining the consecutive flickering and whether the power might go out. If Balthrop had gone around to the front entrance of the restaurant, he would not have been able to observe any potential consecutive flickering. (RT 166:2-10).
Once Balthrop entered through the back door, he was inspecting the lights he had seen flicker when Ms. Leslie Fraide asked him what he was doing and informed him that Ms. Aysel Gan had stated that he could not go through the back door anymore. (RT 141:5-9). Balthrop explained what he observed with the lights that were flickering previously. However, Ms. Fraide did not believe he was being sincere and, alternatively, suggested that he was lying because Balthrop simply did not want to walk around the building to the public entrance. (RT 141:10-23).
Ms. Fraide restated to Mr. Balthrop that Ms. Aysel Gan said that he could not come through the back door anymore. Balthrop responded by saying, “Aysel can suck it.” Balthrop intended this comment to be lighthearted or understood in a joking manner and not be sexual. (RT 142:2-8).
Mr. Balthrop does not recall intentionally making any sort of gesture towards his groin or otherwise in conjunction when saying, “Aysel can suck it.” Due to Mr. Balthrop size, weight, and health, it is not possible for him to place his hands together to form a “V” shape over his groin area. (RT 143:3-15, Ex A). There were no other Subway workers at the restaurant at the time. Lt.
Jesus Sanchez and Officer Julius Brown, two military personnel, were present and were finishing up purchasing sandwiches during the incident. Mr. Balthrop then ordered his sandwich, paid, received his sandwich from Ms. Fraide, moved to the door, hit his leg with his hand, and left the restaurant. (RT 142:24-143:3).
At the time of the incident, Mr. Balthrop did not think or understand that Ms. Fraide was uncomfortable or offended by him saying “Aysel can suck it.” Since the incident, Mr. Balthrop feels remorse and regret for making a comment that made Ms. Fraide uncomfortable. (RT 149:4- AR 531
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8, 170:17-19). Mr. Balthrop has never had an incident like this at any point of his career with the City.
V. ARGUMENT
“No employee shall be disciplined or discharged except for just cause” is the basic, foundational tenant of disciplinary labor arbitrations. (Just Cause: The Seven Tests, p. 3, Koven & Smith, 3rd Ed., 2006.) The “Just Cause” seven-test analysis has been widely applied for over 50 years and a “no” answer to one or more of the tests “means that just cause either has not been satisfied or at least was seriously weakened in that some arbitrary, capricious, or discriminatory element was present.” (Id. at 27.) The seven tests ask whether there was notice, reasonable rule or order, investigation, a fair investigation, proof of misconduct, equal treatment, and a penalty reasonably related to the employee’s proven offense and the record of the employee’s service with the employer. (Id. at 27-28.) Just cause is a standard of reasonableness and fairness, and it requires that “the penalty imposed must fit the seriousness of the offense and must take into consideration the total circumstances, both those in aggravation and those in mitigation.” (Just Cause: The Seven Tests, p. 465-66, n.71, Koven & Smith, 3rd. Ed., 2006; Fulton Seafood Indus., Inc., 74 LA 620, 622 (Volz, 1980)).
A disciplinary penalty must be just and proper. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194.) Primary factors to be taken into consideration are the circumstances surrounding the event, the likelihood of reoccurrence, and the harm to public service. (Ibid.) (Emphasis added.) Moreover, just cause requires a “reasonable proportionality between the offense and the penalty” and the consideration of any mitigating factors or extenuating circumstances that are reflected in the record, such as employee’s length of service, performance, prior disciplinary history, and management fault. (Discipline and Discharge in Arbitration, p. 65 (2nd Edition 2008).) Termination is the ultimate penalty in employment matters and often deemed industrial capital punishment, as “[d]ischarge in industrial life is comparable to the electric chair in criminal law.” (Just Cause: The Seven Tests, p. 449, n.17, Koven & Smith, 3rd. Ed., 2006; Sterling Drug, Inc., 67 LA 1296, 1299 (Draper, 1976).) As such, termination should only be reserved for the most serious offenses and when an employer is not relying on progressive discipline.
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For the following reasons, it is the Union’s position that the weight of the evidence supports termination is inappropriate in this matter.
1. City’s Failure to Adhere to Progressive Discipline
Here, the City argues that general preemptive trainings sufficiently replace the need for any progressive discipline or corrective actions whatsoever for Mr. Balthrop. That understanding is flawed and deeply unfair to Mr. Balthrop and works to circumvent the progressive discipline model. The City has performance improvement programs and other corrective tools at its disposal. (RT 128:12-24). Further, the City has the burden of demonstrating that a lesser form of discipline would not sufficiently correct the behavior at issue.
However, the Skelly hearing officer, Ms. Renny, testified that Mr. Balthrop had never received any other corrective actions from the City. (RT 126:23-127:1). Now, after no patterns, related behavioral concerns, or even unrelated behavioral concerns with Mr. Balthrop, the City argues that his comment, “Aysel can suck it” leaves them with no other choice but to end his over twenty year long career as a City electrician. Further, Mr. Balthrop has acknowledged that his comment was inappropriate and offensive and, if given even a single opportunity, would be able to demonstrate that he can adjust this single instance of discourteous behavior. The City’s decision to afford Mr. Balthrop with zero opportunities to correct this behavioral anomaly from a long-time employee is unfair and cannot be upheld.
2. Mitigating Factors
Leading up to the incident, the City had been short two electricians for two years, who were supposed to work with Mr. Balthrop. Mr. Balthrop was the only licensed certified electrician of the two electricians the City had working at the Presidio complex during that time. Mr. Balthrop and the other electrician continuously asked for additional staffing in order to alleviate the fact that they had been doing the work of four electricians. (RT 137:5-17). The stress of doing the work of multiple electricians, the lack of sleep due to sleep apnea, and the perception of being called a liar by Ms. Fraide caused Mr. Balthrop to have a temporary lapse of his ordinarily respectful and friendly behavior with Ms. Fraide and make the off-handed comment that “Aysel can suck it” in AR 533
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December of 2022. However, if he could go back, Mr. Balthrop would not make the comment and would never make a comment like that again. (RT 147:15-25).
While Mr. Balthrop regrets the comment and understands how and why it offended Ms.
Fraide, the comment was not directed at anyone who was present or meant to be threatening or sexual. Further, the comment stating that a person “can suck it,” is a pop culture reference that is more commonly identified as an immature insult rather than an actual demand for some kind of sexual favor or threat. Provided the context of the conversation, the fact that Ms. Aysel Gan was a supervisor who oversaw or burdened both Mr. Balthrop and Ms. Fraide instructions and orders, it is reasonable to understand that Mr. Balthrop was intending to make light of the fact that he and Ms. Fraide both might think that Ms. Aysel Gan is “a pain in the butt” by saying that “Aysel can suck it” in response to yet another instruction Ms. Gan provided that affects both Mr. Balthrop and Ms. Fraide.
In light of these considerations, the City’s position that this single interaction constitutes an especially “egregious” example of harassment where termination is appropriate is entirely unreasonable and unfair. As previously stated, some other corrective action could and should be utilized in order to fairly protect Mr. Balthrop’s interest in his job while accomplishing the goal of addressing the behavioral issue.
3. City’s Evidentiary Shortcomings
The City argues that Mr. Balthrop’s testimony is not credible because it is inconsistent with the other witnesses. However, it is impossible for Mr. Balthrop to be consistent with all of the City’s witnesses because they all have critical differences and discrepancies between each other. Some of these contradictions between the City’s witnesses include that fact that Lt. Sanchez testified that Mr. Balthrop told Ms. Fraide that he had the keys to all places on the Presidio and he threated that she could not keep him out, while Ms. Fraide did not recount anything about keys in the interaction. (RT 44:17-22). Further, Lt. Sanchez and Ms. Fraide describe the alleged gesture that Mr. Balthrop might have made with significant differences in which part of Mr. Balthrop’s body he might have motioned towards. Each of these differences are underlined by Mr. Rose’s testimony that Lt. Sanchez seemed exasperated by Mr. Balthrop for reasons unrelated to the AR 534
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incident at Subway. (RT 45:8-10). This observable “exasperation” or frustration with Mr. Balthrop colors both Lt. Sanchez’s testimony as a witness in the investigation and as a witness in this hearing. Lt. Sanchez’s recollection of the incident is more exaggerated, inconsistent, and unreliable than Ms. Fraide or Mr. Balthrop’s documented recollections of the incident.
Additionally, Lt. Sanchez’s testimony that Mr. Balthrop made a “V” shape his both his hands contradicts Ms. Fraide, Mr. Balthrop, and the doctor’s note detailing Mr. Balthrop’s physical limitations. (Ex. A).
Additionally, neither Ms. Fraide nor Officer Brown were called as witnesses. Therefore, insofar that witnesses Mr. Rose, Lt. Sanchez, and Ms. Renny testified on behalf of Ms. Fraide or Officer Brown, the Union was unable to cross examine the hearsay assertions that the City presented through the witnesses who did testify. Thus, the arguments the City makes solely relying on the alleged testimony’s of Ms. Fraide or Officer Brown should be discounted as hearsay.
4. Balthrop was Honest Throughout the Disciplinary Process The City has argued that the fact that Mr. Balthrop has tried to minimize his actions throughout the appeal process or that he did not recall the exaggerated details of the incident exactly as the complainant equates to dishonesty. This is an example of the City looking to punish or dismiss Mr. Balthrop’s efforts in utilizing his due process rights by presenting mitigating evidence or his own alternative recollection of his personal perceptions of the incident.
During Mr. Balthrop’s fact finding interview with Mr. Rose, more than three months after the incident, Mr. Balthrop did not initially recall the comment he had made to Ms. Fraide that “Aysel can suck it.” At the suggestion of Mr. Rose, Mr. Balthrop took a break to recollect his thoughts and recount the incident by discussing the matter with Mr. Herron, his Union representative. With his memory refreshed and being given an opportunity to recall the incident, he returned and articulated that he did make the comment and took accountability for saying it.
However, according to Mr. Rose’s investigation notes, the fact that Mr. Balthrop only recalled this information halfway through the interview and after a break, it is somehow less credible. It would appear, that Mr. Rose was merely offering Mr. Balthrop the opportunity to recollect himself for the purposes of impeaching his earlier denials of making the comment. Ultimately, the City is AR 535
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unfairly leaning on both of the contradictory arguments that Mr. Balthrop “admitted to the alleged harassing comment” while, at the same time, Mr. Balthrop “was dishonest and did not fully admit to the alleged harassing comment” all within one administrative statement.
The fact that Mr. Balthrop, or any public employee, cannot accurately recall specific details of an incident while in the midst of a stressful administrative interview without a break is not an indication of dishonesty. Further, regarding what kind of gesture Mr. Balthrop might have made and when he might have made it during the incident, each witness, Mr. Balthrop, Lt. Sanchez, and Ms. Fraide recall and describe it differently. It is unfair to determine that Mr. Balthrop “gesturing towards his knee” might not reasonably seem like, according to Ms. Fraide, “gesturing towards his lower body,” or, according to Lt. Sanchez, “gesturing towards his groin.” These sorts of differences in perspective are reasonable and the City’s position that Mr. Balthrop was dishonest in recalling that he was motioning to his knee rather than motioning to his groin is unfair and unreasonable.
VI. CONCLUSION
In conclusion, Mr. Balthrop is an exemplary employee known for his strong work ethic, proactiveness, and commitment to the community.
In light of the totality of the circumstances and mitigating evidence, the City has failed to meet its burden of proof that by a preponderance of the evidence just cause existed to terminate Jerod Balthrop’s employment.
DATED: June 6, 2024 Respectfully Submitted,
MASTAGNI HOLSTEDT, A.P.C.
GARRETT R. PORTER
Attorney for LIUNA Local 792 and Jerod Balthrop
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Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 540, Packet Page 785 Andrea L. Dooley, Arbitrator
953 W. MacArthur Blvd. #12
Oakland, CA 94608
(510) 719-3089
[email protected]
IN THE ADVISORY FACT-FINDING PROCEEDINGS
BETWEEN THE PARTIES
GENERAL EMPLOYEES OF MONTEREY,
LIUNA, LOCAL 792,
Union,
and
CITY OF MONTEREY,
Employer.
(Grievance re: Termination of Jerod Balthrop)
Case No. LA-120723-01
FINDINGS OF FACT AND
RECOMMENDATIONS
INTRODUCTION
This dispute involves the application and interpretation of city policies and the Collective Bargaining Agreement (“CBA” or “Agreement”) between CITY OF MONTEREY (“Employer” or “City”) and GENERAL EMPLOYEES OF MONTEREY, LIUNA, LOCAL 792. (“Union” OR “GEM”). Pursuant to the Agreement between the parties, the parties selected the undersigned Arbitrator to serve as the neutral factfinder in this case. The matter came for hearing via video conference on April 24, 2024. The parties submitted this matter to the Arbitrator after presentation of evidence, oral arguments, and written briefs.
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APPEARANCES
For the Union: Garrett Porter, Esq.
Mastagni Holstedt, APC
1912 I Street
Sacramento, CA 95811
For the Employer: Arcelia Hurtado, Esq.
Sloan Sakai Young & Wong, LLP
695 Town Center Drive, 15th Floor
Costa Mesa, CA 92626
ISSUE
The issue in this case is whether the City had just cause to terminate grievant Jerod Balthrop; If not, what is the appropriate remedy?
RELEVANT CONTRACT PROVISIONS
SECTION 48 ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
48.1 The City and GEM agree to an alternative dispute resolution procedure (grievance and discipline appeals) where GEM may opt for non-binding advisory factfinding at the appeal step between the Department Head and City Manager. The cost of the factfinder to be paid by GEM. The City Manager will have discretion to implement any or no part of the fact-finder’s recommendation.
JX 2.
CITY OF MONTEREY
CITY CODE AND POLICIES
SECTION 25 – 3.03 – HARASSMENT/DISCRIMINATION.RETALIATION/
ABUSIVE CONDUCT/ BULLYING PLICY
a. Policy. The City of Monterey is committed to providing a work environment that is free of discrimination, harassment, abusive conduct/bullying, and retaliation and will take all reasonable steps to prevent discrimination, harassment, abusive conduct/bullying and retaliation from occurring. This rule describes the City regulations designed to achieve this goal.
The City will not tolerate or condone discrimination, harassment, bullying/abusive conduct or retaliation prohibited by law, or as defined by this policy, of employees, applicants, unpaid interns, and volunteers, by any persons, including supervisors, coworkers, and third parties. This policy prohibits retaliation against individuals AR 538
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The City will take disciplinary action, up to and including termination, against an employee who violates this policy.
…
c. Prohibited Conduct
…
4. Abusive Conduct/Bullying. In addition to prohibited harassment and discrimination based on protected class status, the City is committed to protecting its employees from abusive conduct/bullying. Abusive conduct/bullying means, as defined in Government Code Section 12950.1, as may be amended from time to time “…conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.” Abusive conduct/bullying may occur in, but is not limited to, the following forms:
a. Verbal behavior, which may include written or email communications, ridiculing or maligning a person or his/her family; persistent name calling which is hurtful, insulting, or humiliating; using a person as the target of jokes; abusive and offensive remarks;
b. Physical behavior, such as pushing, shoving, kicking, poking, tripping, assaulting, or threatening physical assault; or damaging a person’s work area or property;
c. Gestures, such as nonverbal, threatening or insulting movements or excessive staring; and
d. Exclusion, such as socially or physically excluding or isolating a person from work-related activities.
JX 7.
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25-14.02 REASONS FOR DISCIPLINE
Disciplinary action may be taken against an employee for misconduct, including but not limited to:
a. Willful disobedience and insubordination, a willful failure to submit to duly appointed and acting supervisions or to conform to duly established orders or directions of persons in a supervisory position;
…
d. Failure to perform work in a satisfactory manner;
e. Inefficiency or inexcusable neglect of duty, i.e., failure to perform duties required by the employee’s position;
…
h. Dishonesty, involving employment;
…
o. Discourteous treatment of the public or other employees within the scope of employment; …
…
w. Willful violation of any of the provisions of the ordinances, resolutions or any rules, regulations or policies which may be prescribed by the department or City [including violation of the MCC 25-3.03 and General Services Division Standard Operating Procedures]. JX 5.
25-14.06 NOTICE OF PROPOSED DISCIPLINARY ACTION
…
e. Any employee may be immediately suspended with or without pay by a department head pending proposed discipline in any situation where the employee is accused of misconduct which constitutes job related moral turpitude or where the employee’s presence at the workplace could result in a disruption or interruption. The determination of whether the suspension will be without pay shall be made by the City Manager and shall be based on the severity of the misconduct alleged, the conclusiveness of the evidence of misconduct, and the level of discipline proposed by the department head.
JX 6.
AR 540
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 544, Packet Page 789 V. RELEVANT PROVISIONS OF THE CITY OF MONTEREY GENERAL
SERVICES DIVISION: STANDARD OPERATING PROCEDURES
Expectations on Courtesy
• Employees of the City of Monterey are expected to maintain courteous and respectful behavior at all times towards Building Maintenance Workers, Craftsworkers, Seniors, the General Services Superintendent, other coworkers, fellow employees, citizens, military personnel, tourists and the public in general (Personnel Rules and Regulations
15.14.02)
JX 8.
STIPULATION OF THE PARTIES REGARDING RECORD ON APPEAL
The evidentiary record created during the Dooley Fact-Finding Hearing, including exhibits, witness testimony, and the transcript of proceedings, will be the evidentiary record that will be relied upon all subsequent disciplinary appeal steps provided for under the Monterey City Code (“MCC”), including any appeal to the City Manager under MCC Section 25-14.09 and any FACTUAL STIPULATIONS OF THE PARTIES appeal to the City Council under MCC Section 25-14.10.
The City and Balthrop waive any right to present any further evidence, including exhibits and witness testimony, during either the City Manager appeal hearing under MCC Section 25-14.09 or the City Council appeal hearing under MCC Section 25-14.10. However, this stipulation does not prohibit either the City or Balthrop and/or their representatives from presenting additional oral argument during either of these disciplinary appeal steps provided that the oral argument is limited to the evidentiary record created during the Dooley FactFinding Hearing. The duration of any oral argument will be limited to 30 minutes for each party. JX 10.
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FACTUAL STIPULATIONS OF THE PARTIES
The parties have stipulated to the following facts regarding Mr. Balthrop:
1. Jerod Balthrop’s date of hire is June 2000.
2. Mr. Balthrop’s position/title/duties was Electrician performing maintenance services for the United States Army located at the Presidio of Monterey.
3. Mr. Balthrop’s date of termination is November 8, 2023.
4. Mr. Balthrop’s supervisor at the time of his termination was Christopher Dwight.
FINDINGS OF FACT
1. In December 2022, Lieutenant Jesus Sanchez and a colleague were in the food court.
Lt. Sanchez was in the Subway restaurant to purchase lunch and in conversation with Leslie Fraide, a Subway employee. Tr. 83.
2. Jerod Balthrop pulled up in his truck behind the Subway, intending to get a sandwich, and saw that “the back door to Subway was wide open.” Tr. 138-9.
3. Mr. Balthrop believed that he saw lights flicker in the store. Lt. Sanchez believed that the lights did not flicker. Tr. 139.
4. Mr. Balthrop entered through the rear of the store, and Ms. Fraide informed him that he was no longer allowed to enter through the back. She stated, “Aysel says you can’t come through the back anymore” (Tr. 141) or “I don’t have a work order for you to be back here.” (Tr. 83).
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5. Mr. Balthrop said, “Aysel Gan can suck it.” (Tr. 85, 175) or “You can tell Aysel Gan she can suck it.” (Tr. 86).1
6. Lt. Sanchez recalled that Mr. Balthrop pointed both hands at his groin when he made the remark; Mr. Balthrop denied doing so.
7. Mr. Balthrop recalls gesturing toward his knee, and presented evidence that, due to his girth, his hands would not reach his groin. Tr. 142-3. UX A.
8. Mr. Balthrop was wearing the City uniform, a navy blue jacket with a Monterey emblem, at the time this occurred. Tr. 129, 164.
9. Aysel Gan is the manager for Army and Air Force Exchange Program (AAFES), which runs the shops including the Subway. Tr. 83.
10. Lt. Sanchez stated to Mr. Balthrop that Ms. Fraide, “knows what she’s talking about.
Do her the common courtesy.” Tr. 86. In his complaint, Lt. Sanchez reported that he said, “Look man, she’s asking nicely, she doesn’t want to get in trouble.” CX 3.
11. Lt. Sanchez sent an email to Christopher Dwight on January 19, 2023, that stated:
I went up to Subway for lunch and as I was conversating with the cashier, Leslie, Jerod came in using the back door to Subway. She greeted him, then asked if he could start going around instead of cutting through the restaurant/kitchen. She mentioned she got talked to by the AAFES manager about it so now she needs to secure the door. Jerod mentioned he has keys regardless.
Jerod then said he’s “checking the lights” looks up pretending to look at lights and preceded to walk to the front of the restaurant. Leslie said she appreciated it but without a work order proving he needs to be back there she can get in trouble, and she wouldn't 1 Mr. Balthrop denies saying the word, “tell.” For the purposes of this record, I find that there is a distinction without difference between the two statements recalled by witnesses.
AR 543
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 547, Packet Page 792 want Aysel Gan, AAFES manager, to get her in trouble. Jerod then in a stern voice says “tell Aysel she can suck it” while slapping both arms towards his groin.
CX 3.
12. Lt. Sanchez attributes the delay in time between the incident (December 2022) and his report to Mr. Dwight (January 19, 2023) to his schedule, along with his efforts to determine who the new supervisor was so that he could report the matter. Tr. 91.
13. Joe Rose of Rose Law was hired in February 2023 to conduct an investigation for the City of Monterey Public Works Department into Mr. Balthrop’s conduct. Tr. 28.
14. Mr. Rose conducted interviews of Jesus Sanchez, Leslie Fraide, Jerod Balthrop, and Charles “Chuck” Howard in February and March 2023. He also reviewed documents and finalized his report in September 2023. Tr. 28, 30.
15. Andrea Renny, Public Works Director, recalled receiving the report on August 8, 2023.
Tr. 100. The final report is dated September 13, 2023. CX 1.
16. Lieutenant Sanchez and Ms. Fraide told Mr. Rose that Mr. Balthrop said, “Aysel can suck it,” and gestured toward his groin.2
17. Mr. Balthrop testified that Mr. Rose did not ask him about the incident until 45 minutes into his interview and that he didn’t remember the incident when Mr. Rose asked him about it. Tr. 149.
2 The parties were advised at hearing that hearsay was admissible but that it could not be the basis for a finding of fact as to the underlying assertion. For example, in this case, the Finding of Fact is that Mr. Rose heard these allegations in the course of his investigation, not that the allegations are true.
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18. Mr. Balthrop initially denied telling Mr. Rose that he said, “Aysel can suck it,” but then “left open the possibility that he said it.” Mr. Balthrop admitted that he made the remark after he took a break to consult with his union representative. Tr. 54-55.
19. Mr. Balthrop asserted that sleep apnea and sleep trouble meant that “my thinking is not as clear sometimes during the day as it should be if I was rested.” Tr. 151.3
20. Mr. Balthrop was placed on Administrative Leave With Pay on October 13, 2023, JX 3.
21. Mr. Balthrop continued to work between the time of the incident and his administration leave date. Tr. 128.
22. Mr. Balthrop was sent a Notice of Proposed Discipline on October 13, 2023. JX 4. The Notice was written by Ms. Renny. Tr. 102.
23. Ms. Renny acted as the Skelly officer at Mr. Balthrop’s appeal. Tr. 111.
24. Mr. Balthrop was sent a Final Notice of Termination on November 7, 2023. CX 4.
25. Mr. Balthrop had no prior discipline in his personnel record. Tr. 116.
26. Mr. Balthrop has taken at least seven (7) sexual harassment or anti-harassment trainings while employed by the City. CX 2.
27. Mr. Balthrop received commendations during his employment with the City of Monterey. UX B, C, D and E.
28. Mr. Balthrop provided a performance evaluation from 2013 (UX F) and recalled that his last evaluation was 2017.
3 There was no medical documentation in the record to support this diagnosis or its impact on Mr.
Balthrop’s memory.
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DISCUSSION
The City has argued that the appropriate standard of review in this case is guided by Cotran v. Rollins Hudig Hallt Int, (1998) 17 Cal.4th 93. This is incorrect. Cotran is applicable in the at-will employment context. “At will” employment means that an employer may discharge an employee for any cause other than one which is unlawful. In a unionized workplace, the employees are not at-will. Most CBAs require that an employer have “just cause” for discharging an employee. Even in cases where a CBA is silent on the level of review, most arbitrators will assume that the just cause standard is the applicable standard of review.
In this case, the City bears the burden of demonstrating that just cause exists for discipline. The quantum of proof is preponderance of the evidence. In other words, the City must demonstrate that it was more likely than not that the alleged misconduct occurred and that the discipline was warranted.
The just cause standard typically requires progressive discipline, when appropriate, because discipline is expected to be corrective in nature if the circumstances warrant it. An employer need not impose progressive discipline where the conduct is more serious. However, when a serious charge is made against an employee it should be narrowly construed, because of the long-lasting effects of such an accusation on an employee’s career.
Acknowledging this, the City has asked that Arbitrator Carroll Daugherty’s Seven Tests of Just Cause be the test of whether there was just cause to discharge Mr. Balthrop. The City’s reliance on this test is somewhat misplaced; While Arbitrator Daugherty’s methodology provides a useful framework for evaluating grievances, it is not binding, and very few arbitrators adhere to its rigid application. The facts of each case are better evaluated in the AR 546
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 550, Packet Page 795 context of the particular workplace, with some consideration for the factors that Arbitrator Daugherty also relied upon.
In this case, the City asserts that there is just cause to discharge Mr. Balthrop for violations of City policies when he made the statement, “Aysel can suck it” to Ms. Fraide and made a gesture which observers interpreted as obscene. The City also alleges that Mr. Balthrop was dishonest in his investigatory interview because he denied making the statement above.
Ultimately, Mr. Balthrop admitted making the statement, but denied making the physical gesture, and the City decided that this conduct was egregious enough to warrant summary dismissal.
Mr. Balthrop’s statement, which is undisputed, and for which he has expressed remorse, undoubtedly violates Section 25-14.02(o):
o. Discourteous treatment of the public or other employees within the scope of employment.
The City had just cause to discipline Mr. Balthrop for this rule violation.
Whether Mr. Balthrop violated Section 25-3:03(c)(4) Abusive Conduct/Bullying is less apparent. The policy states, in relevant part:
Abusive conduct/bullying means, as defined in Government Code Section 12950.1, as may be amended from time to time “…conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.” (emphasis added).
The policy clearly contemplates that abusive conduct and bullying is a pattern behavior, for which a single incident does not rise to the level of seriousness unless it’s demonstrated to AR 547
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 551, Packet Page 796 be severe and egregious. Mr. Balthrop has just one documented “derogatory remark,” along with one disputed physical action, that form the basis of discipline in this case. “Aysel can suck it” is an undeniably rude and inappropriate remark. Standing alone, however, it is not “severe and egregious.” It’s an expression that is unfortunately common even among young people, and the fact that the witnesses and counsel all felt comfortable repeating the phrase suggests that it doesn’t rise to a level warranting summary discharge.
The City alleges that Mr. Balthrop accompanied his remark with a gesture toward his crotch which was referred to by Mr. Rose as a “crotch chop,” a move from professional wrestling.4
Lt. Sanchez testified that he saw the action, but Mr. Balthrop denies making the gesture. Lt. Sanchez is credible on this point. However, I do not think that Mr. Balthrop was dishonest in denying the gesture. The time between the incident and the time of his investigatory meeting was at least two months, and his memory of the fleeting event had likely deteriorated at that point. Mr. Balthrop had no reason to memorialize the incident at the time it occurred, or even when Lt. Sanchez made his complaint, because no one notified Mr. Balthrop which of his actions were under investigation.
Again, a “crotch chop” is a rude and inappropriate gesture to make in the workplace.
The City has just cause for some discipline related to this gesture. However, it’s also an acknowledged physical action in professional wrestling. That doesn’t justify its use on this occasion, but it does suggest that a single “crotch chop” is not severe and egregious. 4 Mr. Rose was referring to a hearsay statement made during the investigatory meeting.
AR 548
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 552, Packet Page 797 The time between Lt. Sanchez’s complaint (January 19, 2023) and the date Mr.
Balthrop was put on administrative leave (October 13, 2023) was nine (9) months, during which time Mr. Balthrop continued to work without incident. This strongly suggests that the City did not in fact think his conduct was severe and egregious. Typically, “severe and egregious” misconduct warrants the employee’s immediate removal from the workplace because of the high likelihood of further harm. That doesn’t seem to be an issue in this case. It seems like “severe and egregious” was invoked in order to shoehorn the conduct into an alleged violation of the Abusive Conduct/Bullying policy.
The City did not have just cause to terminate Mr. Balthrop for a violation of Section 25-3.03(c)(4) because this was a single incident which was not severe and egregious.
Finally, the City alleges that Mr. Balthrop violated Section 25-14.02(h) because he was dishonest in his investigatory interview. This is not supported by the evidence. The investigation took place two months after the event, and Mr. Balthrop was unaware of the alleged misconduct. Once given the opportunity to understand the allegations, he admitted that he made the statement at issue. It was clear from the disparities in Lt. Sanchez’s own testimony compared to his written complaint that the passage of time impacts witness memory.
There is some danger in disciplining employees for the statements they make in an investigation. Witnesses will not be forthcoming or cooperative if they have to fear that their failures of memory will be construed as dishonesty. People recall events differently; memories degrade. Mr. Balthrop admitted the underlying comment and expressed remorse. This is a hoped-for outcome in an investigation. To layer on a charge of dishonesty fails to account for factors outside of Mr. Balthrop’s control or recollection.
AR 549
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 553, Packet Page 798 The City did not have just cause to terminate Mr. Balthrop for dishonesty.
As noted above, the City has demonstrated that there is just cause to discipline Mr.
Balthrop for the event that occurred with Ms. Fraide and Lt. Sanchez in Subway in December 2022. The question remains whether summary discharge is the appropriate level of discipline.
The Employer asserts that termination is the only appropriate level of discipline for misconduct of this sort. In the City policies, sexual harassment is subject to discipline “up to and including termination.” It is not necessarily the case that discharge is the only level of discipline available in this case.
“The principles of just cause allow an employee to be terminated in two types of situations: a single incident of very serious misconduct or the final step in the progressive disciplinary process.”5
The types of serious misconduct which warrant summary discharge do not need to be specified in the Agreement. Examples of serious misconduct include stealing, workplace violence, selling or using drugs or alcohol on company property, timecard fraud, possession of a weapon, or destruction of company property. These types of misconduct are often implied in collective bargaining agreements. In other words, the CBA need not list these serious infractions in order for an employer to impose termination for a first-time offense. The unifying theme of these types of misconduct is that they are also the type of action which could result in licensure revocation or criminal charges. Any employee would know that such actions would have grave consequences, and an employer does not need a written rule that they have promulgated to employees in order to take disciplinary action, including discharge. 5 Brand, Norman, Discipline and Discharge in Arbitration, 1998, at p. 68.
AR 550
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 554, Packet Page 799 Because of their “zero tolerance” policy, the Employer believes that harassment or inappropriate behavior that results in an unwelcome work environment warrants summary discharge. I disagree. Although the Employer had just cause to discipline Mr. Balthrop, his behavior does not rise to a level warranting discharge. Zero tolerance policies that demand discharge are still subject to the just cause provisions of the CBA. In this case, the Harassment policy itself does not require discharge, while the principle of progressive discipline does flow from the just cause provision implied in the Agreement.
Discipline short of discharge would have put Mr. Balthrop on notice that his conduct was unwelcome and would be subject to discharge if further violations of the policy occurred.
Progressive discipline is expected to be corrective in nature. Hopefully, once notified, Mr.
Balthrop could have changed his behavior to conform with workplace standards. If he did not, he would be aware that discharge was the likely outcome. He was not given the opportunity to correct his behavior, which undermines the just cause provision in the agreement.
There were other factors in this case. First, Mr. Balthrop made a number of allegations about other individuals in the case that were distracting and irrelevant. Mr. Balthrop had a difficult time sticking to the questions asked of him in the hearing, and the fact-finder could easily see that his obstreperous and voluble manner might be difficult to manage. It is possible that the City is using this isolated incident to let go of an employee that has been an irritant in the past. If that is the case, it would not be appropriate. Mr. Balthrop has not had a performance evaluation since 2017. If the City has reason to feel that Mr. Balthrop’s manner in dealing with fellow employees, members of the military community, and the general public is not in compliance with their expectations, performance management and progressive discipline are the appropriate avenue for handling that issue.
AR 551
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 555, Packet Page 800 Second, Mr. Balthrop is a long-time employee with no prior record of discipline. He should be entitled to some benefit of the doubt and an opportunity to correct his behavior in a situation that is not, in fact, severe and egregious. His tenure should have been a mitigating factor in determining the level of discipline.
RECOMMENDATION
Based on the foregoing, the undersigned recommends that the City Manager find:
1. The City had just cause to discipline Mr. Balthrop for violation of Section 25-14.02(o) – discourteous treatment.
2. The City did not have just cause to discipline Mr. Balthrop for violation of Section 25-
3.03(c)(4) – Abusive Conduct/Bullying.
3. The City did not have just cause to discipline Mr. Balthrop for violation of Section 25-
14.02(h) – dishonesty.
4. Summary discharge is not the appropriate level of discipline under the circumstances.
5. The appropriate level of discipline is a three day suspension.
6. Mr. Balthrop should be reinstated and made whole minus interim earnings.
Dated: June 28, 2024
Andrea L. Dooley, Arbitrator
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IN THE MATTER OF THE EMPLOYEE DISCIPLINE APPEAL
JEROD BALTHROP,
Employee,
vs.
CITY OF MONTEREY,
Employer.
_____________________________/
ORAL ARGUMENTS BEFORE THE CITY MANAGER
DATE: TUESDAY, AUGUST 6, 2024
TIME: 11:06 a.m. - 12:00 p.m.
LOCATION: CITY MANAGER'S OFFICE
580 Pacific Street
Lord Nelson Room - Room 1
Monterey CA 93940
REPORTED BY: RETTA PARSONS, CSR #6122
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1 APPEARANCES:
2 3 CITY MANAGER'S OFFICE
4 HANS USLAR, CITY MANAGER
5 580 Pacific Street
6 Monterey CA 93940
7 831 646-3760
8 [email protected]
9 10
11 Advisor to CITY MANAGER:
12 CITY ATTORNEY'S OFFICE
13 BY: KARIN KRATTLI SALAMEH, ESQ.
14 City Hall
15 Monterey CA 93940
16 831 640-3915
17 [email protected]
18 19
20 21
22 23
24 25
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1 For the Employee:
2 MASTAGNI HOLSTEDT
3 BY: GARRETT PORTER, ESQ.
4 1912 I Street
5 Sacramento CA 95811
6 916 491-4217
7 [email protected]
8 9
10 For the Employer:
11 SLOAN SAKAI
12 BY: ARCELIA HURTADO, ESQ.
13 (Appearing via videoconference)
14 2200 Powell Street
15 Suite 450
16 Emeryville CA 94608
17 415 640-3735
18 [email protected]
19 20
21 22
23 24
25 AR 555
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1 AUGUST 6, 2024
2 MONTEREY, CALIFORNIA
3 11:06 a.m.
4 MS. KRATTLI SALAMEH: So this is the employee
5 discipline appeal of Jerod Balthrop being heard today 6 before City Manager Hans Uslar. I am Karin Salameh, the 7 Assistant City Attorney. I am here today advising
8 Mr. Uslar.
9 There has been an ethical wall set up in my
10 office and I have not communicated with the Public Works 11 Department or any other attorney regarding this matter 12 and will solely be advising Mr. Uslar. There was a
13 stipulation between the parties that the City Manager 14 Appeal would be based on the Administrative Record
15 before the Arbitrator, Miss Dooley, and there would be 16 30 minutes allotted to each side for oral argument
17 before the City Manager but no additional evidence would 18 be introduced.
19 So unless I got anything wrong there or anyone
20 has any questions, we can jump in.
21 MR. USLAR: Yes, go ahead. So who starts off
22 first?
23 MS. KRATTLI SALAMEH: So the City has the
24 burden of proof. I'd suggest that they proceed -- or 25 the Department does.
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1 MS. HURTADO: Yes, we're ready. Okay. I will
2 try to speak slowly but, Madam Court Reporter, please 3 let me know if it's too fast.
4 So good morning, everyone. My name is Arcelia
5 Hurtado, and I'm an attorney with the firm Sloan Sakai 6 Yeung and Wong. I'm here representing the City of
7 Monterey in the disciplinary hearing for Jerod Balthrop. 8 So as you know, Mr. Balthrop opted for
9 nonbinding advisory fact-finding arbitration of the
10 appeal step between Department Head and City Manager. 11 Per the dispute resolution procedures outlined in
12 Section 49 of the MOU, the City Manager will have
13 discretion to implement any or no part of the
14 fact-finder's recommendation.
15 I represented the City at the arbitration
16 hearing held on April 24th, 2024 and I'm here to urge 17 you to exercise your common sense and the discretion 18 granted to you under the MOU and uphold the Public Works 19 director's determination that there was just cause to 20 terminate Mr. Balthrop for his abusive conduct towards 21 the public while on duty and in uniform at the Presidio 22 of Monterey in December of 2022 because that conduct was 23 severe and egregious and because his conduct violated 24 multiple City of Monterey policies.
25 So by now, you're probably familiar with the
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1 facts at issue here, so I won't repeat them at length. 2 But what I will say about the arbitrator's fact finding 3 is that it is flawed because she failed to take into
4 account and into consideration the totality of the
5 circumstances surrounding Balthrop's actions to reach 6 her recommendations.
7 First, the Arbitrator found that Balthrop's
8 conduct was discourteous treatment of the public or
9 other employees during the course of employment in
10 violation of City policy and that the City indeed had 11 just cause to discipline him for that violation. The 12 Arbitrator found that, and Balthrop admitted that, he 13 made the comment, quote, I told... can suck it, unquote. 14 The Arbitrator acknowledged that this remark
15 was undeniably rude and inappropriate and that the City 16 had just cause to discipline Balthrop for that alone. 17 However, the Arbitrator, while she found that the
18 conduct was undeniably rude and inappropriate, she found 19 that it did not rise to the level of severe and
20 egregious so as to violate City policy. Therefore, the 21 City did not have just cause to terminate him for this 22 single incident. And this is regarding the serious-- 23 severe and egregious language comes from the City's
24 anti-bullying and harassment policy.
25 Now the Arbitrator found that the comment and
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1 the gesture towards his groin more likely than not
2 happened. However, the Arbitrator found that the
3 comment alone was not severe and egregious enough to
4 justify termination under the policy. She found that
5 the gesture towards his genitals alone was also not
6 severe and egregious to justify termination. Her
7 reasoning was that because wrestlers do it, that it's a 8 wrestling move, that it is not severe and egregious.
9 She also reasoned that because counsel and witnesses at 10 the hearing repeated the comment, that suggests it is 11 not egregious.
12 You, as the decision-maker here, can disagree
13 with the arbitrator's assessment of whether Balthrop's 14 conduct was severe and egregious so as to violate the 15 policy. In other words, you can make your own
16 independent assessment. And you, as a member of the
17 City's leadership team, can set the tone for the level 18 of civility and professionalism that is required of City 19 Employees. And I ask you to do that here guided, of
20 course, by the language and the spirit of the
21 anti-bullying and harassment policies. So I will go
22 through some of that policy.
23 The Monterey City Code Chapter 25, Article 3,
24 Section 25 is very clear that the City will not tolerate 25 or condone discrimination, harassment, bullying or
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1 abusive conduct by its employees directed towards
2 anyone. Equally clear is that the City will take
3 disciplinary action up to, and including, termination 4 against an employee who violates this policy.
5 So the standard for you to consider in deciding
6 whether the conduct was severe and egregious is this. 7 And this is language from the policy itself:
8 "...conduct of ... an
9 employee in the workplace, with
10 malice that, a reasonable person
11 would find hostile, offensive and
12 unrelated to an employer's legitimate
13 business interests."
14 The policy also goes on to include as example
15 "verbal or physical conduct that a reasonable person 16 would find threatening, intimidating, or humiliating..." 17 And it also specifies "gestures, such as nonverbal,
18 threatening or insulting movements." And this is under 19 Monterey City Code Chapter 25, Article 3, Section 25, 20 Subsection (c)(4)(c).
21 Now, Balthrop's lewd comment and obscene
22 gesture were certainly done with malice toward Aysel 23 Gan. Balthrop admitted he did not like Miss Gan and he 24 was upset that he had to comply with her directive not 25 to enter through the back door of the Subway restaurant.
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1 In addition, two reasonable people, Leslie
2 Frade and Lieutenant Sanchez, found Balthrop's conduct 3 hostile and offensive.
4 And finally, it was certainly conduct that was
5 unrelated to the City of Monterey's legitimate business 6 interests. Balthrop's conduct was beyond any doubt
7 serious and egregious under the City's anti-bullying and 8 harassment policy.
9 Now, in regard to the Arbitrator's finding
10 regarding dishonesty, she found that Balthrop was not 11 dishonest during the investigation; rather, that he
12 failed to recall details of the incident and, therefore, 13 the City did not have just cause to terminate him for 14 dishonesty. She found that he did not lie; rather, that 15 he just did not remember the incident when he was
16 interviewed by Mr. Rose, the independent attorney
17 investigator, because two months had passed since the 18 incident and the investigative interview and because 19 Balthrop was unaware of what the investigation was
20 regarding.
21 Now, it's not accurate that he did not know
22 what the interview was about. First of all, Balthrop 23 received a notice of investigation, dated February 21st, 24 2023 which clearly informed him of the subject of the 25 investigation, his bullying and harassing conduct in AR 561
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1 December of 2022 while on duty as a City employee at the 2 Presidio of Monterey.
3 Second, Mr. Rose told him at minute 5, 34
4 seconds of the investigative interview what the
5 interview topic was about: His conduct at Subway in
6 December of 2022.
7 And then thirdly, Balthrop's own conduct during
8 the investigative interview indicates a consciousness of 9 guilt that he knew what the incident was regarding, that 10 he was being interviewed about.
11 What the recorded interview shows is that
12 Balthrop lied to the investigator for one hour and
13 20 minutes. He spent all of this time trying to deflect 14 any responsibility for his actions and to spin an
15 unbelievable conspiracy against him by security guards 16 and Subway employees to make up lies about him. He
17 never once said "I don't remember" when asked questions 18 about the incident. Instead, he tried to deflect
19 attention from his conduct and on to the conduct of
20 others. It strains common sense to believe that he
21 simply forgot about his conduct in December of 2022. 22 And it was only after he took a break at the
23 one hour and 20-minute mark of the interview, that he 24 came back and finally admitted that he did say "tell 25 Aysel she can suck it" but he still denied gesturing AR 562
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1 towards his groin though he finally admitted that he
2 motioned towards his knee.
3 This is not someone who does not remember facts
4 or events. This is someone who is lying to avoid
5 getting in trouble and refusing to admit his serious and 6 egregious conduct. What is important here is that he
7 lied even when confronted by testimony of two
8 independent and unbiased witnesses. He even went so far 9 as to say they lied, making up nonsensical theories for 10 why they would lie about his conduct.
11 And even if the Arbitrator was correct in
12 finding that Balthrop did not remember the incident at 13 the time of the investigative interview, this does not 14 explain why he would not have contacted Mr. Rose after 15 the interview when he remembered it more clearly and had 16 some time to think about it. But he never did so.
17 In fact, he continued to lie and minimize his
18 conduct through the Skelly hearing and the arbitration 19 hearing where he testified under oath that he never made 20 the lewd gesture. Balthrop was evasive and untruthful, 21 and I ask that you use your common sense here.
22 There is a jury instruction that juries get to
23 help them judge the credibility of a witness and I think 24 it will be useful to you here. Mr. Rose, the attorney 25 independent investigator, used this as a guiding post AR 563
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1 and included it in his report and in deciding that
2 Balthrop was not credible. The jury instruction states 3 in relevant part:
4 "In deciding whether
5 testimony is ... accurate, use your
6 common sense and experience...
7 "If you decide that a witness
8 deliberately lied about something
9 significant in this case, you should
10 consider not believing anything that
11 witness says."
12 Balthrop lied about so many things during this
13 investigative interview, at his Skelly hearing and at 14 the arbitration hearing, you should use your common
15 sense and not believe anything that he said.
16 Now, a note about remorse. The Arbitrator
17 found that he was remorseful in part. But I would argue 18 to you that he had no remorse. He said he could not
19 believe 19-year-old Leslie Frade was offended by his 20 conduct because she looked like someone who had just 21 gotten out of prison. He was sorry but only that he was 22 caught in severe and egregious conduct making a lewd 23 comment and gesture in the workplace in the presence of 24 two members of the public in clear violation of City of 25 Monterey policies. He was sorry he got caught and
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1 reported to his supervisor, not that he engaged in the 2 conduct.
3 Finally, the Arbitrator failed to make a
4 finding on the other bases for termination, which were 5 willful disobedience and insubordination, failure to
6 perform work in a satisfactory manner, inefficiency or 7 inexcusable neglect of duty, failure to perform duties 8 required by the employee's position. I urge you to find 9 that he violated these City policies as well because it 10 is nowhere in his job description or in a
11 well-performing employee's realm to do something like 12 this in the workplace towards two members of the public. 13 Now, the Arbitrator also found that the
14 termination was not the appropriate level of discipline 15 given that he is a long-time employee with no prior
16 discipline. However, the issue is his severe and
17 egregious conduct in December of 2022 and his subsequent 18 and continued dishonesty and lack of real remorse.
19 You can make your own independent assessment of
20 the facts here. You can find that for all of the
21 multiple violations of City policy, his continued
22 dishonesty, his lack of remorse -- you have more than 23 sufficient grounds to find that there was just cause to 24 terminate Balthrop.
25 Now it is primarily the function of management
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1 to determine appropriate discipline, and that is what 2 the director of Public Works did. The law says that the 3 penalty imposed by management should not be overturned 4 unless it can be shown that management has abused its 5 discretion in imposing it. There has been no abuse of 6 discretion shown here and to allow an Arbitrator to
7 substitute her own judgment and discretion to the
8 judgment and discretion of management would abdicate the 9 functions of management and result in every case being 10 taken to arbitration.
11 I ask that based on the entire record before
12 you that you uphold the Department and the City's
13 decision to terminate Balthrop. And I'm happy to answer 14 any questions that you may have at this point because it 15 looks like I have a little bit of time left.
16 MR. USLAR: Thank you so much.
17 I saw in the record that Mr. Balthrop attended
18 regularly the training as required by state law. What 19 do you make out of that training and the ability of
20 being educated about what is appropriate behavior and 21 what is not appropriate behavior?
22 MS. HURTADO: Yes. He admitted that he
23 attended all of those trainings and that he might have 24 attended additional trainings that were not on that
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1 that Miss Renny took into account in making her
2 determination and we also presented that information to 3 the Arbitrator.
4 I think what that signifies is that he's had
5 the opportunity to learn about sexual harassment, about 6 appropriate behavior in the workplace, and he still
7 chose to make this lewd comment and this gesture towards 8 a 19-year-old young woman in front of other people. So 9 obviously it's a situation where he did not learn from 10 his training and he continued to engage in this type of 11 behavior that puts the City, honestly, at risk of future 12 liability if he continues to be in the workplace with 13 this type of conduct.
14 MR. USLAR: How many years have you been in
15 practice in dealing with cases like that?
16 MS. HURTADO: I have been an attorney for like
17 going on for 28 years now, primarily in labor and
18 employment as well as criminal law, other areas of the 19 law. I have litigated dozens of jury trials and so I 20 have a lot of experience in evaluating situations like 21 this. And so what I present to you is my evaluation of 22 the case and the way that I see the evidence and the way 23 that I interpret the witnesses' testimony and also the 24 way that Mr. Rose, more importantly, being the
25 independent investigator who is also an attorney who AR 567
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1 investigated the case, what he determined.
2 And I urge you to look at his report. It's a
3 very well-balanced, very thorough report. He did a
4 thorough investigation. He took everything into
5 consideration. He heard all of the witnesses -- both of 6 the witnesses, Miss Frade and Mr. Sanchez, and he found 7 them to be more credible at all levels than
8 Mr. Balthrop. So that's what we present to you from our 9 experience.
10 MR. USLAR: I read in the record that
11 Mr. Balthrop after the one-hour, 20-minute break I think 12 returned and shared that he now remembered certain
13 details. And part of that interview I believe was also 14 mentioning the gesture coming from the World Wrestling 15 Foundation. How credible do you find that and what can 16 you tell me about that argument?
17 MS. HURTADO: Yes. He did enthusiastically
18 agree with that after his Union representative suggested 19 it. He enthusiastically endorsed that that's what he 20 meant by that gesture, that's what it signified.
21 I think that it goes towards his credibility
22 that he was not able to come into that interview and 23 admit from the start that he did make that comment and 24 he did make that gesture and he should have done that 25 from the get-go rather than wait an hour and 20 minutes AR 568
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1 and then come up with some sort of excuse. But it's
2 kind of -- it's par for the course with his testimony. 3 If you read the hearing transcript, you will also find 4 that he presented evidence -- or he didn't present
5 evidence. He alleged that he didn't have a good memory 6 during the investigative interview because of his sleep 7 apnea and his stress. Of course, there was no
8 documentation of that, as the Arbitrator noted in her 9 decision. But, again, it goes towards his back lack of 10 credibility that he's, again, making excuses for his 11 behavior and not taking responsibility at all.
12 MR. USLAR: Okay. I have no further questions.
13 Thank you very much.
14 MS. HURTADO: Thank you.
15 MR. USLAR: All right.
16 MR. PORTER: Well, again, my name is Garrett
17 Porter. I'm an attorney from Mastagni Holstedt and I'm 18 representing the Union, LIUNA, and Mr. Balthrop in this 19 matter. I represented him during the arbitration which 20 Miss Hurtado referenced.
21 First of all, I want to articulate a few things
22 about the hearing and about the level of discipline
23 that's being preposed and about the level of discipline 24 that Miss Hurtado is proposing. First of all, based on 25 the evidence presented at the evidentiary hearing in AR 569
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1 accordance with the Monterey City Code before the
2 Arbitrator who was mutually selected as a third-party 3 fact-finder to build the administrative evidentiary
4 record for this as well as make a nonbinding
5 recommendation. And reiterating, which I know you're
6 aware, the Arbitrator recommended that the City did have 7 just cause to discipline Mr. Balthrop for violation of 8 Section 25-14.02(o) which is discourteous treatment.
9 Now, throughout the arbitration, Mr. Balthrop
10 admitted to this conduct. He admitted to making the
11 comment, and he said he could not remember the gesture 12 specifically. It's not accurate to say that he, in the 13 evidentiary hearing, which is the evidence we're looking 14 at here -- that he denied making that allegation. And 15 frankly, the distinction between making an offensive, 16 rude comment and then making an offensive comment
17 alongside a gesture, I don't think would be the
18 difference between termination and a three-day
19 suspension.
20 Also, the Arbitrator found that the City did
21 not have just cause to discipline Mr. Balthrop for
22 violation of Section 25-3.03(c)(4), which is abusive 23 conduct and bullying. Now, that was the primary policy 24 and issue and rule that we focused on during the
25 arbitration. The Arbitrator accurately pointed out a AR 570
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1 few different things about the policy itself.
2 While Miss Hurtado did read from the policy
3 itself and referenced some of the things looked at, the 4 section does continue on and references repeated conduct 5 or kind of speaking about patterns of behavior and
6 continued issues with this. Mr. Balthrop has no prior 7 discipline at all. This isn't a pattern of behavior or 8 some kind of uncorrectable issue that he's been
9 wrestling with or management has been indicating
10 throughout his career.
11 In fact, once the investigation began, it took
12 nine months before the City decided to remove
13 Mr. Balthrop from his position. If the City really felt 14 that this was abusive, intolerable conduct that cannot 15 be tolerated in the workplace for another moment for 16 risk of some major liability, civil liability issue, 17 Mr. Balthrop should have been taken -- removed from the 18 workplace during the meantime. The fact that the City 19 hadn't done that indicates that this sort of conduct 20 that's being investigated isn't severe to that degree. 21 Now, like I said Mr. Balthrop did admit that it
22 was discourteous and he ultimately recognized that the 23 individuals who observed and heard his comments and may 24 have witnessed his conduct were offended. And
25 ultimately during the arbitration if given the
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1 opportunity, he would apologize to those individuals. 2 Additionally, the Arbitrator found that the
3 City didn't have just cause to discipline Mr. Balthrop. 4 For violation of Section 25-14.02(h), which is
5 dishonesty. As Ms. Hurtado mentioned, this dishonesty 6 is based on the first hour or so of his investigative 7 interview with Mr. Rose. Now, I think it's interesting 8 that the dishonesty is based on some incident that
9 occurred many months before the investigation interview 10 even took place and then ultimately during that very 11 same interview, he ultimately admitted to the misconduct 12 once he remembered it. He admitted, yes, I remember
13 making a comment, I must have said that.
14 Nonetheless, Mr. Rose inaccurately and wrongly
15 said he was dishonest during this entire investigation. 16 How can he both admit to the misconduct and not remember 17 the misconduct and then at the interview he's found to 18 have been dishonest when ultimately he did disclose and 19 admit I remember making that comment?
20 Now, continuing on, the Arbitrator ultimately
21 recommends that summary discharge is not the appropriate 22 level of discipline under these circumstances and that 23 the appropriate level of discipline for discourteous 24 treatment like in this situation is a three-day
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1 and made whole minus his interim earnings. Mr. Balthrop 2 is willing to accept this level of discipline.
3 A three-day suspension is an appropriate level
4 of discipline for a rude and discourteous comment or
5 gesture made during an over 20 years career with the
6 City. There has been no other disciplinary action taken 7 against Mr. Balthrop, and Miss Hurtado and the City's 8 attempt to supplant progressive discipline with training 9 that's proactive and issued to all employees is
10 ultimately unfair. That's not progressive discipline. 11 And providing training doesn't circumvent the City's 12 ability to -- or the City's obligation to follow
13 progressive discipline.
14 Now, since Arbitrator Dooley's recommendation
15 was based on the entirety of the evidentiary record
16 which was created concurrently during the arbitration 17 process per the parties' stipulation that was issued 18 on -- or agreed to on March 13th, 2024,
19 arbitrator Dooley provides a logical analysis and a
20 reasonable basis for the recommendation. The final
21 decision of the City Manager should be identical to that 22 of Arbitrator Dooley's recommendation in this matter. 23 Further, in accordance with the policies and
24 procedures in place, the Arbitrator had an opportunity 25 to see and hear all the evidence and assess the
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1 credibility of each witness and review each piece of
2 evidence that was presented in its entirety.
3 Miss Hurtado now is trying to convince you that
4 regarding the levels of credibility of the specific
5 witnesses when that was -- Arbitrator Dooley's job was 6 to evaluate the credibility. She reviewed all the
7 evidence, looked in the eye of the witnesses as they
8 testified, listened to their tone. All these different 9 things were assessed by Miss Dooley, who like I said is 10 a third-party neutral who was mutually selected by both 11 parties. Further, she was able to ask clarifying
12 questions and carefully evaluate all of the evidence 13 from a place of neutrality.
14 So, therefore, the Arbitrator's decision, while
15 not binding, should be heavily considered and used as a 16 reasonable gauge in determining the outcome of further 17 appeals taken after this if necessary or even in this 18 very hearing today.
19 Like I said before, I also want to discuss the
20 level of discipline in the Arbitrator's decision. A
21 three-day suspension is an appropriate level of
22 discipline for a rude or discourteous comment but it is 23 still a lower level of discipline which Mr. Balthrop, as 24 I said, is willing to accept for his violation of
25 discourteous treatment.
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1 However, a three-day suspension is not at all
2 in the same ballpark as termination. Had the Arbitrator 3 recommended say a 30-day suspension or some other
4 heightened level of discipline that is just a step below 5 termination, it would be reasonable or even appropriate 6 for the City to consider termination as an appropriate 7 adjustment or kind of taking into consideration the
8 Arbitrator's decision or just chalking it up to a
9 difference of opinion. However, since the Arbitrator's 10 recommended level of discipline is so much lower than 11 termination, for the City to ignore the mutually
12 selected neutral Arbitrator's decision after that
13 Arbitrator reviewed all of the evidence of the record, 14 it would be unfair and unreasonable for them to
15 completely disregard it and move up to termination which 16 is, like I said, not at all in the same ballpark as a 17 three-day suspension.
18 Lastly -- I'm gonna not take very much time at
19 all -- as Mr. Balthrop testified during his arbitration, 20 he takes accountability for his admitted misconduct. He 21 regrets offending the people who observed his behavior 22 and, if given the opportunity, will prove that he can 23 adjust his behavior. Further, as noted in the
24 Arbitrator's recommendation, Mr. Balthrop has no other 25 documented instances of misconduct, negative evaluations AR 575
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1 or other discipline.
2 And like I said before, during the nine months
3 when Mr. Balthrop was working for the City after the
4 City had received the initial complaint, he was --
5 before he was placed on admin leave, there were no
6 issues at all. Showing that even before any corrective 7 action or discipline was implemented, this was already 8 just a one off that hadn't occurred a single other
9 instance during his 23-year career with the City.
10 Therefore, Mr. Balthrop should be reinstated
11 and made whole minus the interim earnings and be issued 12 a three-day suspension for his violation of the
13 discourteous treatment policy.
14 And if not, the Union is prepared to move with
15 the next steps of the appeal process. But we do hope 16 and urge you to use your discretion, take into account 17 all the evidence that's been presented, evaluate the 18 record and the testimonies of everybody involved here 19 and uphold the recommendation that the Arbitrator
20 issued.
21 And if you have any questions I would, again,
22 be more than happy to discuss or respond to some of
23 those things.
24 (Discussion held off the record.)
25 MR. USLAR: Would you be so kind and repeat the
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1 one sentence when you said he needs to be reinstated. I 2 want to hear that one more time, please.
3 MR. PORTER: Yes. So Mr. Balthrop, based on
4 all of the evidence and everything, should be reinstated 5 and made whole minus his interim earnings. It doesn't 6 matter for these purposes, but I think he's been living 7 off of his retirement, I think is what he's done. So he 8 hasn't been working in the interim. He opted for
9 retirement, which I think is not too far away from him 10 if he is brought back on by the City. And that he just 11 be issue the three-day suspension for his violation, 12 which is a reasonable and appropriate level of
13 discipline for the discourteous treatment.
14 MR. USLAR: Thank you.
15 I have one or two questions for you as well.
16 MR. PORTER: Okay.
17 MR. USLAR: So one of your key arguments and
18 also one of the elements that the Arbitrator picked up 19 is that there was no dishonesty involved. How do you 20 define being caught in a lie and then changing your
21 testimony? And then does this count as honesty or does 22 this count as I'm caught in a lie or in this particular 23 case, he was, if I understand correctly, confronted
24 with, hey, do you want me to write all this down or do 25 you want to take your time now to really consider what's AR 577
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1 going on. So how would you explain to me the difference 2 between caught in a lie and then declaring a person
3 honest or dishonest?
4 MR. PORTER: Yes, that's a good question. So
5 when Mr. Rose interviewed Mr. Balthrop, that was his
6 first internal affairs fact-finding interview,
7 administrative interview, that he'd been part of, either 8 as a subject or as a witness in his entire career. Now 9 needless to say -- and maybe for Miss Hurtado and
10 myself, it's kind of old hat, but for a lot of
11 individuals, especially somebody like Mr. Balthrop who 12 hasn't experienced that before, it's a nerve-racking and 13 anxiety-rising kind of experience. You don't want to 14 jump the gun and misremember something and admit to
15 something that you didn't even do or you weren't a part 16 of.
17 Now, I can't tell you and Miss Hurtado can't
18 tell you what is going on exactly in Mr. Balthrop's
19 mind. Mr. Rose made an assessment. The Arbitrator made 20 an assessment. I discussed at length with Mr. Balthrop 21 what he was thinking at the time and trying to get into 22 his head but, honestly, going through a situation like 23 that when your 23-year long career is on the line, it's 24 a nerve-racking experience.
25 And that's why these interviews oftentimes go
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1 for a pretty long time. We want to make sure that all 2 the facts are derived by the end of it, which is what 3 happened here. By the end of the evidentiary
4 fact-finding, he provided his full recollection. He was 5 able to recall as much as he was able to recall about 6 the incident.
7 Now, having it happen several months before and
8 having this incident not really stand out in his mind, 9 both -- each of the testimonies of the different
10 individuals who were at the Subway restaurant on the day 11 indicated and expressed that Mr. Balthrop didn't seem to 12 follow-up a lot, he didn't really change his behavior 13 after he made the comment. He just bought a sandwich 14 like normal and ended up leaving and continuing on with 15 his work. So there was nothing really here that
16 indicated to him that it was a large incident or that 17 there was lot to kind of commemorate in his memory.
18 So it's fairly common for individuals to go
19 through an interview and have the interview start out, 20 their mind may be fixated on something else or they are 21 worried about admitting to something that they may have 22 done or may not have done. And that's why it's
23 important to take breaks. That's why the Union
24 representative was there. And Mr. Rose prudently
25 suggested, hey, you seem to be stumbling, you seem to be AR 579
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1 kind of repeating yourself, how would you like to take a 2 break and talk with the Union rep and collect your
3 thoughts. That's exactly what he did. He talked with
4 his Union rep, collected his thoughts. He was able to 5 kind of slow down one on one with his Union rep.
6 He was able to remember more clearly what this
7 issue was about and then rightfully so, he went back in 8 and then he said, oh, I do remember the misconduct now. 9 Let me explain and testify about that. Now, Mr. Rose
10 and Miss Hurtado are spinning this good thing that he 11 did, not digging his heels down saying no, I didn't
12 remember at the beginning and I'm not going to remember 13 now, he remembered when he spoke with his Union rep, 14 came back in and reexplained and straightened out his 15 testimony.
16 Now, they're taking that, frankly, admirable
17 trait of admitting you are wrong, admitting you didn't 18 remember something, and treating it like a dishonesty 19 saying this alone, you fessing up and remembering things 20 accurately, admitting you were wrong in your testimony 21 prior is enough for us to terminate you, which is unfair 22 and I hope you consider and kind of see it that way. 23 Now, I will say that during the arbitration and
24 Arbitrator's recommendation, Mr. Balthrop isn't -- you 25 know, I'm not arguing he's the most personable person.
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1 Sometimes he can speak over an individual. Sometimes he 2 can, you know, not understand instructions the best way 3 sometimes. But that's not what's at issue here. It's, 4 you know, his specific misconduct here. So I think some 5 aspects of Mr. Balthrop's personality don't lend
6 themselves well to being interviewed and I think that is 7 why there was this misunderstanding and miscommunication 8 at some of these prior investigation steps.
9 But ultimately at the arbitration, he was able
10 to articulate accurately how he feels about the issue 11 and what he wants moving forward, and I think that is 12 what should be considered here rather than taking
13 advantage of him admitting to his wrong during the fact 14 finding.
15 MR. USLAR: Staying on that topic, during the
16 interview with the fact finding, doesn't it strike you 17 as peculiar that Mr. Balthrop had this gate conspiracy 18 story ready and how can you connect the dots for me that 19 he has this elaborate story with the gate guard ready 20 but he couldn't remember the incident at some point? 21 That gives me pause. And as the attorney for the
22 Department stated, use common sense. Here is my common 23 sense. That does not make sense. How would you explain 24 that on his behalf?
25 MR. PORTER: Right. Well, during the
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1 evidentiary hearing, he didn't elaborate or put on the 2 evidentiary record what his gut reactions or wild
3 conspiracies were about why somebody might have made a 4 complaint or whatnot. Ultimately, during the
5 fact-finding interview with Mr. Rose, Mr. Balthrop, like 6 I said, was nervous and eager to try to give
7 explanations, which is something not just Mr. Balthrop 8 but many individuals I've represented in his situation 9 do. They will try to grasp at things or try to grapple 10 in their own mind, especially if they don't remember. 11 If it's something that's never happened during his
12 entire 23-year career, it doesn't sound like something 13 he would do. It doesn't mesh with his character and
14 with how he normally speaks and behaves. It makes sense 15 that an individual would try to externally process:
16 What's the explanation for this, why would I have done 17 this, this was a mistake.
18 And ultimately, by the time we went to the
19 arbitration, he did away with those kind of
20 conspiracies. Now, ultimately, during the fact-finding 21 interview, it was a fact-finding interview, and those 22 things that Mr. Balthrop articulated about possibilities 23 or conspiracies about guards, those aren't facts. You 24 can't say they're dishonest if it's something that
25 Mr. Balthrop was just trying to rationalize and
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1 externally process.
2 Mr. Rose's job was to assess credibility and
3 find facts. Now Mr. Balthrop's guesses, which is what 4 they were, about why this might have happened or what 5 could have caused this situation shouldn't be taken to 6 kind of -- used to discredit him. That's just
7 Mr. Balthrop's mind racing, trying to figure out what's 8 happening in the situation.
9 What should be considered are the facts that
10 came out of that fact-finding interview, which was that 11 he admitted to the misconduct and that he did say that 12 offensive and rude comment. But, again, during the
13 arbitration, he was not leaning on those things. Those 14 were not our theories of defense. Those are not what we 15 are trying to prove. We're not trying to show that
16 there was some kind of conspiracy and this was
17 fabricated. It's impossible for it to be -- for him to 18 admit that he made the comment and for it to be some 19 kind of conspiracy. Those things don't align.
20 The fact that he ultimately admitted that he
21 did make the comment, his wild guesses that he made
22 before he recalled all the facts should be just tossed 23 out because it's not factual and it's not worthwhile in 24 determining what the facts of this situation are.
25 MR. USLAR: As an attorney for LIUNA, you're
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1 mostly representing public agencies. Is that correct? 2 MR. PORTER: Yes. Public associations and
3 unions who work for public entities, yes.
4 MR. USLAR: Have you ever represented private
5 companies as a LIUNA person?
6 MR. PORTER: So not as LIUNA. I have
7 represented private unions -- unions that work for
8 private employers. I have done that, yes.
9 MR. USLAR: So my question is going to the
10 standard of conduct. Again, the attorney for the
11 Department talked about what is the standard for the 12 City. The contract that we have with the Department of 13 the Army for base operations employs a membership of 14 about 35 to 45 employees. The reflection of "Aysel can 15 suck it" can jeopardize the employment of 35 to 45 other 16 employees if the Army takes the contract away for
17 whatever reason. But they don't need to expose their 18 own employees to our employees walking around and saying 19 "Aysel can suck it." What is your opinion about that 20 jeopardizing other Union member's income and living and 21 they will not be taken over by LIUNA or by the City of 22 Monterey. They will be laid off then if we lose the
23 contract. So the question about standards is a real
24 question I will have to wrestle with.
25 MR. PORTER: Yes, no. That's definitely a good
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1 question and something that attorneys argue about all 2 the time where that standard is. So I do think that,
3 and Mr. Balthrop, by the end of the arbitration,
4 admitted that some level of discipline is appropriate. 5 And the Arbitrator's recommendation of a three-day
6 suspension for somebody's career that has been unmarred 7 by any other sort of discipline I think and I would
8 argue is an appropriate level of discipline and an
9 adjustment.
10 Having a zero tolerance policy, any sort of
11 discipline -- or the double discipline should be
12 termination even though Mr. Balthrop has had no
13 discipline during his entire career, is excessive and 14 unfair ultimately. If that is the kind of standard
15 we're going with is, hey, you know, if you make one rude 16 comment, one gesture, that "Aysel can suck it," which 17 like the Arbitrator pointed out, is rude and
18 discourteous definitely -- but is it profane or heinous 19 to the level that we wouldn't repeat it here? Or that 20 we would just -- some kind of racial expletive or
21 something that is really intolerable and even one
22 instance of it can indicate somebody's mind and they're 23 not a good employee. They're somebody who could be
24 depraved and have values that are wildly different than 25 an employee we would want to employ here.
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1 Mr. Balthrop's comment of "Aysel can suck it" is
2 definitely rude and should be addressed and I think a 3 three-day suspension is an appropriate level of
4 discipline. From what I've seen, comments made by
5 various other individuals besides our public employees, 6 when they make one instance of a verbal comment that
7 isn't a threat or some kind of expletive so egregious we 8 wouldn't repeat, some kind of suspension or even a
9 letter of reprimand oftentimes is the appropriate
10 remedy. Termination is the most severe level of
11 discipline.
12 Think, for example, about other employees that
13 have been terminated from the City. I don't have the 14 whole record in front of me, but showing up to work
15 drunk or getting somebody killed. You know,
16 documenting -- or embarrassing the City, writing in a 17 document something that is horrific and intolerable, 18 those are the sorts of individuals that there's no real 19 hope for and they should be terminated.
20 Mr. Balthrop making a comment, even if it is
21 rude and discourteous, doesn't rise to that sort of
22 level and being -- using your discretion and just
23 providing progressive discipline, a three-day
24 suspension, is a severe level of discipline I think for 25 a verbal comment. That affects his wages. That's
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1 something that would stay in his record forever and then 2 if the conduct continues jeopardizing the other workers 3 with LIUNA, the contract we have with the military, then 4 maybe a higher level. Maybe indicating that this is a 5 repeated offense, that's the whole kind of practice and 6 principal of progressive discipline.
7 MR. USLAR: So you lost the content of what the
8 actual question was because you were repetitive when you 9 explained again how three days is okay. Can you do me a 10 favor and just focus on the question which was: I have 11 to look out also for the employment of 35 to 45 other 12 employees with their families who are also Union members 13 and I'm just curious what your opinion is that one
14 employee potentially can derail an important contract, 15 narrow that against the Armed Services' attitude towards 16 really looking out for the employees and also being sure 17 that the rules with respect to courtesy, sexual
18 harassment, bullying, are being applied internally as 19 well.
20 MR. PORTER: Right. So focusing just on that,
21 issuing some kind of discipline is going to make a
22 difference. Progressive discipline is proven to work. 23 Issuing a lesser level of discipline like a suspension 24 is fair and appropriate and still corrective. It gives 25 Mr. Balthrop an opportunity to prove that he can be
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1 adjusted as he's shown from the whole rest of his
2 career.
3 But on a larger scale, for all of the other
4 LIUNA members, the 32 or 34 that you said with the
5 contract, it shouldn't be an issue if discipline is
6 regularly and appropriately issued as it is there.
7 Now, a termination, Mr. Balthrop has a family
8 as well. And that's one individual that if we have a
9 zero tolerance policy, how is that showing an
10 opportunity for individuals to change or improve? We'll 11 be cycling through and then fire somebody for making a 12 rude comment and hire a new person and then if that
13 person makes a rude comment, fire them. It ends up
14 having the same effect as -- um --
15 MS. KRATTLI SALAMEH: You have another minute
16 and a half.
17 MR. PORTER: That's what the main issue is.
18 The issue should be resolved through suspension, which 19 is an appropriate level of discipline.
20 MR. USLAR: All right. I appreciate your
21 response. Thank you.
22 MR. PORTER: Okay.
23 MR. USLAR: Thank you both.
24 MS. KRATTLI SALAMEH: Thank you.
25 THE COURT REPORTER: And then I just have one
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1 question for the attorneys, since many firms don't want 2 paper anymore.
3 Do you want an electronic copy, hard copy, or
4 both?
5 MS. HURTADO: Electronic is fine for me. Thank
6 you.
7 MR. PORTER: Electronic is fine.
8 (END PROCEEDINGS.)
9 * * *
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1 State of California )
)
2 County of Monterey )
3 4
5 I, Retta Parsons, Court Reporter, do hereby
6 certify:
7 That I was present at the time of the above
8 proceedings;
9 That I took down in machine shorthand notes all
10 proceedings had and testimony given;
11 That I thereafter transcribed said shorthand notes
12 with the aid of a computer;
13 That the above and foregoing is a full, true, and
14 correct transcription of said shorthand notes, and a 15 full, true and correct transcript of all proceedings had 16 and testimony taken;
17 That I am not a party to the action or related to a
18 party or counsel;
19 That I have no financial or other interest in the
20 outcome of the action.
21 Dated: SEPTEMBER 1, 2024
22 23
24 Retta Parsons, CSR No. 6122
25 AR 590
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CITY OF MONTEREY CITY MANAGER
Personnel Matter - Confidential
IN RE: JEROD BALTHROP APPEAL
FROM NOTICE OF TERMINATION
ISSUED BY PUBLIC WORKS
DIRECTOR
DECISION
The above matter came before the City Manager for oral argument on August 6, 2024, with Arcelia Hurtado, Esq. representing the employer, the City of Monterey Department of Public Works, and Garrett Porter, Esq. representing the appellant, Jerod Balthrop Balthrop Prior to the hearing, the Parties stipulated that in lieu of a full evidentiary hearing, the City Manager would be provided with the evidentiary record from the factfinding arbitration proceeding before Arbitrator Andrea Dooley and then hear oral arguments from counsel. (AR 098-099.)
On July 12, 2024, Legal Secretary Alicia Salas transmitted to the City Manager and counsel for the parties the Administrative Record, comprised of:
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There were no objections by either party to the content of the Administrative Record and it was considered by the City Manager in its entirety. Ms. Hurtado and Mr.
Porter each presented oral arguments at the hearing and answered questions from the City Manager.
Having reviewed the Administrative Record and heard the arguments of counsel for the respective parties, and good cause appearing, the City Manager finds that a preponderance of the evidence establishes the following:
In December of 2022, while Balthrop was on duty and in a City uniform, he entered through the back door of the Subway sandwich shop located at the Presidio of Monterey without permission and in defiance of directives from the Army & Air Force Exchange Service Manager Aysel Gan, not to enter through the rear door. The manager of Subway, 19-year-old Leslie Fraide saw him and told him not to enter through the back door. In response, Balthrop made a lewd gesture towards Fraide by placing his hands in a V-shape towards his genitals, lifting up his pelvis and stating that Aysel could His actions were also witnessed by a Presidio security guard, Lieutenant Jesus Sanchez. Fraide was reasonably and understandably embarrassed and want his own daughter to have to witness such conduct. Both Fraide and Sanchez were .
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As part of the investigation, the independent investigator interviewed the employees involved, including Balthrop. Prior to the investigation, Balthrop was questions candidly, truthfully, and honestly during the investigative interview. Despite acknowledging that he received this clear admonishment, Balthrop was dishonest with Mr. Rose during the interview.
At minute 5:34 of the investigative interview, Mr. Rose explained that the City complaint relating to an episode that occurred allegedly. In a Subway sandwich shop in sometime around December of 2022 at the Presidio. And then there was some other complaints received from security officers that work at the Presidio. So the the main thrust of what I'm going to ask you about is this instance that's alleged to have occurred at the Subway (AR 149.)
Balthrop did not say that he could not remember a Subway incident from December. Instead, he immediately responded that following the Subway incident, a Presidio guard who had been
female Subway employee. (AR 150.) He also recalled that he entered the Subway through the back door and that Ms. Fraide told him that Aysel had said he could not go through there. (AR 156-157.) After Balthrop expanded on feeling that Ms. Fraide was rude to him even though
Balthrop did not mention saying then denied it when
questioned directly:
Rose: Did you say anything else about Aysl?
Balthrop: No.
(AR 192.)
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Rose: She [Leslie] said that she [Aysel] was getting upset about people coming in through the back door and that you responded and said tell Aysl she can suck it.
And then you referenced your penis area and your genitals and you made a V shape like this. Tell Aysl she can suck it.
Balthrop: Really?
Rose: So are you, are you denying that that happened?
(AR 205-206.)
Rose: There were two witnesses present Leslie and another guy Sanchez, Balthrop, including that Balthrop
. ]
And then the other thing is the guards left. They
even around . All this stuff is fabricated they made
(AR 209-214.)
Towards the end of the interview, Rose asked Balthrop:
Rose: W ? That you deny
saying Aysl can suck it and you deny motioning to your groin. Is that an accurate way of characterizing your statement or not? Or do you want to take a break and talk to Ryan about it?
Balthrop: Let me take a break on that. Talk to Ryan.
(AR 225.)
After returning from the break, Balthrop admitted that he said that he motioned to his knee rather than his groin. (AR 229.) At the arbitration Balthrop described the interaction as follows:
Anyway, I started walking in and [Leslie] said Aysel said you can't come through the back door no more. I briefly laughed and AR 594
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I go -- I didn't say "tell Aysel she can suck it," I said "Aysel can suck it." Like that. Joking around like that. She can kiss my butt.
It wasn't nothing sexual towards her at all. It wasn't even directed at her.
So that's when I got a sandwich. I asked her to make a
sandwich. And then she rang me up and I paid for it. As I was walking away, I went with my hand, I gestured to the outside of my leg and said I'm out. Like that. I did no gesture to my groin at all.
Q. Let me just ask to kind of clarify. Do you remember making a gesture at all when you said she can suck it? Referring to Aysel Gan.
A. No. Absolutely not. And I didn't say to tell her she can suck it. I said "Aysel can suck it" and I walked through. I didn't do any kind of gesture to my groin at all.
(AR 415-416.)
However, also at the arbitration hearing, Lt. Sanchez testified that Balthrop said,
can suck it R 359-
Finally, when told by the investigator that Leslie Fraide was offended by his oo all
(AR 223.) Balthrop reiterated these comments at the arbitration hearing. (AR 461.) Discussion
Both parties agree that or a close variation
thereof, but dispute (1) whether Balthrop made a lewd gesture in addition to the comment, (2) whether he was dishonest in the investigative interview, and (3) whether his conduct merits termination. Applying common sense and viewing the totality of the circumstances and evidence, all three questions must be answered in the affirmative.
First, t
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record, I agree. Further, it should be noted that Lt. Sanchez did not view this as merely a professional wrestling move and both he and Ms. Fraide found it offensive. Given that onable person would
Second, the argument that Balthrop was not dishonest in his investigative brushes aside
opportunity to understand the allegations, he admitted that he made the statement at Balthrop was asked by the investigator point blank whether he said gestured to his groin and Balthrop unequivocally responded that he did not do this and that the allegations had been fabricated. It was only after the investigator confronted Balthrop with the statements of two witnesses and Balthrop took a break to speak with his representative that Balthrop changed his story and admitted to saying it is being caught in a lie.
During oral argument, counsel contended that Balthrop did not answer the investigative interview questions dishonestly, but rather that the inconsistencies in his testimony were due to the incident not standing out in his mind. If telling someone , this
raises serious concerns regarding the tenor of his work conversations. It also suggests that Balthrop has neither learned from nor taken seriously the multiple anti-harassment trainings that he has received.
Therefore, the evidence discussed herein and in more detail in the Investigative Report and Notice of Disciplinary Action, establishes that Balthrop told a female Subway while making a motion with his arms towards his groin, and then lied about this during the investigation, despite having been ordered to be truthful. (AR001-097.) conduct violated the following subsections of Monterey City Code section 25-14.02: (b) AR 596
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willful disobedience and insubordination; subsection; (d) failure to perform work in a satisfactory manner; (e) inefficiency or inexcusable neglect of duty and failure to public or other employees within the scope of employment; (w) willful violation of rules, regulations or polices which may be prescribed by the department or City, including violation of City Code section 25-3.03; and (h) dishonesty, involving employment. appeal also focused on the level of discipline imposed. He urged the City Manager to set aside the termination as excessive and impose the lower level of discipline suggested by the factfinding arbitrator. I seriously considered the factfinding t ultimately found its reasoning unpersuasive. As a
longtime employee, Balthrop had received extensive training regarding City policies and expectations for a respectful workplace, including sexual harassment training in 2009, 2011, 2014, 2016, 2019, and 2022. (AR 235-236.) Making sexual comments and gestures at work is in direct contradiction of City policies and training and carries with it the high risk of creating a hostile work environment. Using the phrase severe and egregious. Such
actions are offensive and disrespectful to other City employees and the public and are not to be tolerated. I to decide the correct level
of discipline.
termination, respectfully, I believe that determination exceeded her authority.
Termination was the only appropriate level of discipline under the circumstances -standing tenure with the City does not mitigate his severe and egregious conduct, particularly in light of his failure to take responsibility for his actions, his continued dishonesty, and the numerous sexual harassment courses that he took during the course of his employment, but which utterly failed to prevent his abusive conduct.
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Conclusion
Based on all of the foregoing and the entire administrative record, Mr. termination is affirmed. Pursuant to City Code section 25-14.10, Mr. Balthrop may appeal my decision to the City Council. This appeal shall be in writing and filed with the City Clerk within ten (10) City working days of receipt of this decision. The appeal shall be signed by Mr. Balthrop and shall set forth the reasons for the appeal.
Dated: By:
Hans Uslar
City Manager, City of Monterey
AR 598
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Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 603, Packet Page 848 City Clerk
Re: Appeal to the City Council
September 3, 2024
September 3, 2024
Via Electronic Mail
City Clerk
580 Pacific St.
Monterey, CA 93940-2806
Email: [email protected]
Re: Jerod Balthrop - Appeal to the City Council
City Clerk:
I will be representing Jerod Balthrop in all post-disciplinary proceedings. In accordance with the City of Monterey - City Code and Policies Section 24-14.10, please accept this letter as a timely request by Mr. Balthrop for a post-disciplinary hearing before the City Council regarding the City Manager’s Decision to uphold the termination, dated August 19, 2024.
Per Section 24-14.10 of the City Code, the reasons for the appeal are:
A. The termination is not supported by just cause;
B. The termination is not supported by the concepts of progressive discipline; C. The City did not have just cause to discipline Mr. Balthrop for violation of Section 25-3.03(c)(4) – Abusive Conduct/Bullying.
D. The City did not have just cause to discipline Mr. Balthrop for violation of Section 25-14.02(h) – dishonesty.
E. The City has failed to consider mitigating factors—including reliability of witness statements and faulty investigation;
F. The City has failed to consider Mr. Balthrop’s employment history and service to the community as mitigating factors;
G. The termination constitutes disparate treatment.
//
//
AR 600
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 604, Packet Page 849 City Clerk
Re: Appeal to the City Council
September 3, 2024
If you feel that this appeal request is inefficient or defective in any way, I can be reached at 916-491-4217 or [email protected].
Sincerely,
MASTAGNI HOLSTEDT, A.P.C.
GARRETT R. PORTER
Attorney at Law
GP
cc: Alicia Salas
Arcelia Hurtado
Ryan Heron
Jerod Balthrop
AR 601
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 605, Packet Page 850 September 17, 2024
Via Electronic Mail
Garrett R. Porter, Esq.
Mastagni Holstedt, A.P.C.
[email protected]
Counsel for Appellant/Employee (Jerod Balthrop)
Arcelia Hurtado, Esq.
Sloan Sakai Yeung & Wong, L.L.P.
[email protected]
Counsel for the City Manager / Department of Public Works Thais Alves, Esq.
Colantuono, Highsmith & Whatley, P.C.
[email protected]
Counsel for the City of Monterey (City Council)
Subject: Jerod Balthrop Termination Appeal to the City Council Dear Counsel:
Please be advised that pursuant to Jerod Balthrop’s appeal of the City Manager's Final Decision on Termination, which was received on September 3, 2024, an appeal hearing before the City Council has been scheduled for Tuesday, October 15, 2024, at 7:00 p.m. or as soon thereafter as the matter may be heard. At the request of Mr. Porter, the appeal will be heard in an open (public) session.
I have enclosed Monterey City Code Section 25, 14.10, "Appeal to the City Council." The March 13, 2024 Stipulation of the Parties Regarding the Record on Appeal governs the conduct of this hearing process before the City Council. Accordingly, you will each have 30 minutes to summarize your arguments before the City Council, and the City Council will be provided with the enclosed administrative record on appeal in advance of the hearing. You may appear in person or via Zoom.
Thais Alves, Esq., is an attorney with the law firm Colantuono, Highsmith, & Whatley. She has been retained as independent counsel to represent the City Council on this matter.
Should you have any questions concerning this hearing, please email me at [email protected] or call 831-646-3935.
Sincerely,
Clementine Bonner Klein
City Clerk
AR 602
Council Regular Meeting, 10/15/2024, Item No. 9., Item Page 606, Packet Page 851 Enclosures: Monterey City Code section 25-14.10
Administrative record
e: Hans Uslar, City Manager
Nat Rojanasathira, Assistant City Manager
Christine Davi, City Attorney
Brette Neal, Human Resources Director
Andrea Renny, Public Works Director
Ryan Heron, GEM / UPEC - LiUNA Local 792, [email protected] AR 603
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