Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Guardian Ad Litem’s termination for insensitive remarks overturned, (Jan 8, 2025)

By WK Editorial Staff

Reducing the penalty to a long-term suspension without pay with reinstatement thereafter, the arbitrator stressed the need for proportional discipline and more thorough investigations in cases involving allegations of bias.

Partially sustaining a grievance filed on behalf of a Minnesota Guardian Ad Litem who was terminated following remarks made during a case discussion about the placement of a six-year-old African-American child, an arbitrator ruled that while the remarks demonstrated implicit bias and insensitivity, the penalty of termination was excessive. Reducing the penalty to a long-term suspension, the arbitrator explained that the investigation lacked thoroughness, as key witnesses were not called, and much of the evidence relied on hearsay. Nor were the Guardian Ad Litem’s long-term employment record and professional judgment in handling cases adequately considered (American Federation of State, County, and Municipal Employees, Council 5 and Minnesota Guardian Ad Litem Board (Daly, Arb. June 3, 2024)).

Fat kid with n-hair. The incident arose during a phone conversation in which the grievant described the child as a “fat kid with n-hair” and expressed concern about her moving to an “all-African American” environment with her father in Texas. The grievant also suggested the father travel to Minnesota to meet the child, dismissing the potential impact on his job by stating that he could “get another one tomorrow.” These comments, reported by the social worker involved, led to an internal investigation and the grievant’s termination for violations of workplace policies, including the Respectful Workplace Policy and Code of Ethics.

The employer asserted that the remarks reflected implicit bias and were incompatible with the expectations for a Guardian Ad Litem, particularly given the grievant’s role in advocating for diverse families. It argued that her continued employment could erode public confidence in the program and that termination was necessary to uphold professional standards.

The grievant acknowledged that her choice of words was poor, particularly describing the child as “fat.” She explained that her intent was not discriminatory but rather to reflect concerns about the child’s adjustment and well-being. She stated that she was quoting how the child referred to her own hair and advocating for a gradual transition to her father’s care. The union argued that the employer’s investigation was flawed, relying on hearsay without testimony from key witnesses, and that her 15-year service record with no prior discipline warranted a lesser penalty.

Incomplete investigation. The arbitrator found that the employer’s investigation was incomplete and was heavily reliant on a memo summarizing secondhand accounts of the grievant’s comments. Without direct testimony from the social worker or her supervisor, the evidence lacked sufficient reliability to justify termination. Additionally, the arbitrator noted that the grievant’s remarks, while insensitive, did not demonstrate malice or intent to harm.

Citing the grievant’s unblemished record and extensive experience, the arbitrator ruled that the employer should have applied progressive discipline. The arbitrator reduced the penalty to a suspension without pay from September 28, 2023, to June 2, 2024, with reinstatement thereafter. The grievant was not awarded back pay for the suspension period.

The grievance was sustained in part, with the arbitrator emphasizing the need for proportional discipline and more thorough investigations in cases involving allegations of bias.

Attorneys: Steven Gunn for Minnesota Guardian Ad Litem Board. Joseph Broge for American Federation of State, County, and Municipal Employees, Council 5.

Companies: Minnesota Guardian Ad Litem Board; American Federation of State, County, and Municipal Employees, Council 5

Cases: Labor Arbitration Discharge UnionsMembers PublicEmployees RemediesDamages