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Off-duty police sergeant’s assault of woman at bar justified termination

October 12th, 2017  |  David Stephanides

One night, a 12-year, off-duty police sergeant was arrested and charged with third and fifth degree assault of a female following an evening of drinking at a bar. He was arrested after three witnesses identified him as the assailant. The victim suffered bruises, cuts, and abrasions. An employer investigation concluded that he was at fault, and the employer terminated him. He filed a grievance.

Subsequently, the sergeant was tried on the assault charges in criminal court, and he was acquitted. His successful defense had been based on the theory that his sister was the actual assailant. His acquittal in criminal court raised the question: Did the acquittal negate the employer’s conclusion that he was responsible for the assault? As a result, was he entitled to reinstatement following acquittal?

The arbitrator began by noting that arbitrations and criminal cases operate under different standards of proof. In the criminal trial, the standard of proof was beyond a reasonable doubt. In an arbitration involving termination, however, the standard of proof was clear and convincing evidence. The two standards, the arbitrator said, are not the same, although they are often equated.

The arbitrator, therefore, undertook his own analysis of whether the evidence established clear and convincing proof that the sergeant committed the assault. Direct evidence, which was unrebutted, implicated the officer. The sister testified, on the other hand, that she did not know how the woman received her injuries. The arbitrator characterized testimony from others supporting the officer as inconsistent and unreliable. As a result, the arbitrator concluded that this was an arbitration in which the facts established clear and convincing evidence of guilt, even if they did not establish proof beyond a reasonable doubt of criminal conduct. The arbitrator, therefore, was not bound by the acquittal, and he ruled that the employer had just cause to terminate. State of Minnesota Department of Corrections MCF-Rush City and AFSCME Council 5. July 15, 2017. A. Ray McCoy.

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