Page 13 - PFFW December 2018
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Arbitrator’s Award of $620,000 Upheld in Favor of Two Wrongfully Terminated Local 311 Paramedics; Case Dates Back to 2014
By Timothy Hawks and Jason Perkiser, Hawks Quindel, S.C.
The City of Sun Prairie exhausted all legal appeals when the Supreme Court of Wisconsin declined to review an arbitrator’s award, exceeding $600,000, to two wrongfully terminated Local 311 paramedics.
Wisconsin paramedics are licensed by the Wisconsin Department of Health Services and go through a local approval process -- credentialing.
After an exceptionally difficult emergency medical call on January 18, 2014, the former Sun Prairie Emergency Medical Services Director, Kep Anderson, conducted an internal investigation into the patient care rendered by two Sun Prairie EMS paramedics. Piggy-backing on the internal investigation, former Medical Director, Dr. Elizabeth Tumpach, withdrew the paramedic’s credentials, and the city terminated the veteran paramedics.
The paramedics’ union (Local 311 of the International Association of Firefighters) grieved the termination under the
“just cause” provision of the collective bargaining agreement between the city and its paramedics, which provides that the city may “demote, suspend, discipline, discharge, or take appropriate disciplinary action against employees, for just cause ....” These paramedics’ termination
is covered by their union’s contract arbitration clause, not Sec. 62.13(5m) disciplinary procedure before the city’s Police and Fire Commission.
The parties selected an arbitrator who heard their arguments over the course of two days. The arbitrator issued his 46-page decision outlining that the city’s investigation was faulty and biased
and, as such, the city did not have just cause to terminate the two paramedics. Additionally, the arbitrator ordered the
city to make the paramedics whole for
the wages and benefits they would have earned if not for the wrongful discharge. The city moved to have the award vacated in the Dane County Circuit Court.
Courts will confirm arbitration awards unless there is clear and convincing evidence that the arbitrator exceeded his authority under the law. As to this
case, Circuit Judge Richard Niess wrote “[s]ummarizing the arbitrator’s decision in bullet points does not do justice to
his work product. It does not capture
the impressive depth, detail, sifting and winnowing of the facts, creditability assessments, and nuance of his 46- page decision.” Further noting, that the arbitrator found the city’s investigation “failed to distinguish between perception and reality” and “set out to confirm suspicion rather than to discover what, in fact, happened.” A separate investigation by the State found that the paramedics provided care within their standard of practice, did not violate state laws, nor Department of Health protocols.
Courts will confirm arbitration awards unless there is clear and convincing evidence that the arbitrator exceeded his authority under the law.
The city, however, argued that because Dr. Tumpach withdrew the paramedic’s credentials, the city was barred by
law from employing or reinstating
the paramedics and that the lack of credentialing was an additional “just cause” for termination.
The court was not persuaded by the city’s arguments. It found that Dr. Tumpach based her decision to withdraw the paramedics’ credential solely on the same flawed investigation that led to the wrongful termination. Thus, the court confirmed the arbitrator’s award.
The city appealed. It did not challenge the finding that the investigation was flawed and that the withdrawal of the paramedics’ credentials was improper. Instead, on appeal, the essence of the city’s argument was that the arbitrator exceeded his authority because he ordered the city
to reinstate the paramedics who lacked credentialing.
However, the appeals decision noted
that the city and the union addressed the reinstatement issue and the union agreed to forgo reinstatement, and in exchange, the city agreed not to challenge the arbitrator’s authority to award an alternate remedy of future damages known as front pay. Front pay compensates someone for the difference between what they would have received from his or her former employer and what he or she can expect to receive in future employment.
Examining the city’s argument, the court agreed with the union’s contention that the issue of the arbitrator’s authority to reinstate was moot. An issue is moot when it has no practical legal significance. According to the court “it is not apparent to us how we could decide the issue in favor of the city, and vacate the damages award, without subverting the alternative remedy the arbitrator awarded based
on the city’s flawed investigation, which
. . . was the cause of the paramedics’ termination.” Further rejecting the city’s additional arguments, the Wisconsin Court of Appeals affirmed the judgment of Circuit Court Judge Richard Niess.
On September 4, 2018, the Supreme Court of Wisconsin denied the city’s petition to review the appeals court’s decision thereby bringing the years’ long ordeal for the wrongfully terminated paramedics closer to closure.
After further litigation over the interest due on the judgment, the circuit court concluded that the paramedics are entitled to interest from the date of entry of judgment on April 10, 2017, nearly $44,000.
If you have questions regarding this case please contact Timothy Hawks or Jason Perkiser of Hawks Quindel, S.C. at 414-271-8650. f
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