APD Commander Gets Job Back
What happens when you don't report a comment you thought discriminatory, and then the comment itself is deemed not discriminatory after all? You get fired – but not for long.
An independent arbitrator has concluded that Austin Police Cmdr. Larry Oliver should have his job back. Oliver was fired in March for failing to report a comment by colleague Cmdr. Calvin Smith in which he wondered whether there were too many lesbian officers working at the police academy. Oliver had thought the comments discriminatory based on sexual orientation yet had not reported it. Arbitrator Norman Bennett concluded that Chief Art Acevedo's decision to terminate Oliver was not an appropriate discipline. "As a remedy, the discipline in this case must be reduced to a 20-day suspension," Bennett ruled – in addition to reinstatement, Oliver must be given back pay for all but 20 days.
Oliver argued at his arbitration hearing in July that he was the victim of disparate treatment by Acevedo. Specifically, he said that Acevedo and the Fifth Floor management team hammered him for a failure to report Smith's comment, while former Assistant Chief Leo Enriquez got off clean after making remarks last summer to a group of officers and civilians that many thought were racist. Enriquez had told the officers that they were ordered to wear their uniforms to work the day that a grand jury was to no-bill former Sgt. Michael Olsen for the deadly shooting of Kevin Brown, "so you white people won't get beat up," Bennett recalled in his written opinion. Oliver alleged that Acevedo's decision to "counsel" Enriquez about his racially insensitive remarks while firing Oliver for failing to report Smith's comments was disparate and unfair. (Enriquez was just joking, Acevedo had said – an explanation that didn't exactly satisfy Bennett, who noted that "joking is the usual excuse for discriminatory statements.") Bennett agreed with Oliver: "The evidence supports a finding of inconsistent treatment as alleged by [Oliver], and such treatment is relevant on the issue of appropriate discipline in [Oliver's] case."
Ultimately, though, Bennett agreed with Acevedo's determination that as a commander Oliver should be held to a higher standard than a rank-and-file officer. Noting that two sergeants were previously handed 15-day suspensions and that Smith was handed only a 20-day suspension for making the allegedly discriminatory comments not reported by Oliver – but which Acevedo ultimately said might not have been discriminatory in nature – Bennett concluded that Oliver also should be handed 20 days. For more on the story, see "Acevedo Stumbles," July 11.