AFSCME Council 18

Albuquerque Journal North Covers Cayetano Trujillo Story

Corrections Appealing Ruling
Worker Seeks Reinstatement
By T.S. Last
Journal Staff Writer
The New Mexico Department of Corrections is appealing an arbitrator’s ruling to reinstate a former state prison employee and union representative involved in an investigation into sexual harassment charges that led to the firing of the Penitentiary of New Mexico warden.
The department filed the appeal in 1st Judicial District Court on July 2, one month after an arbitrator ruled that Cayetano Trujillo should be reinstated to his position as a warehouse supervisor at the prison south of Santa Fe.
The department appealed a similar ruling in favor of another former prison employee and union leader, Lee Ortega, in district court in Albuquerque late last year. That appeal is still pending.
Trujillo and Ortega are plaintiffs in a whistle-blower’s lawsuit against the Corrections Department filed in September 2011.
Ortega, who is the American Federation of State, County and Municipal Employees’ state president for correction workers, was fired in June 2011 for distributing a confidential report to the news media regarding harassment charges against the warden.
Trujillo, who is secretarytreasurer and union steward for AFSCME Local 3422, was fired three months later for giving the same report to an unauthorized person and being untruthful during an investigation.
In their roles as union representatives, Trujillo and Ortega were involved in an investigation into complaints made by three women against former penitentiary warden Lawrence Jaramillo. The women claimed Jaramillo made inappropriate comments toward them, and Jaramillo was later fired for sexual harassment after failing to pass a polygraph test.
Rob Trombley of AFSCME Council 18, who represented both Trujillo and Ortega during arbitration hearings, said both men had unblemished records with the department before they brought their concerns about how the Jaramillo investigation was being handled to Corrections Secretary Lupe Martinez in spring 2011.
Ortega had worked for the department for 16 years, while Trujillo had been employed there for 28 years.
“The state’s employment actions against these two men are, without a doubt, retaliation for their exposing the Department of Corrections’ protection of a serial harasser,” Trombley said.
Jim Brewer, general counsel for Corrections, denied Trujillo’s dismissal was retaliatory.
“Trujillo was not treated differently because he was a union official. Trujillo was held to the same standard of conduct (to) which all employees, including bargaining unit employees, are held,” Brewer said in a written statement. “The New Mexico Corrections Department is appealing the arbitrator’s ruling because it is arbitrary, capricious, not in accordance with law, and not based on substantial evidence.”
According to the arbitrator’s report, the department contended that Trujillo was fired for just cause. The department’s investigation determined that Trujillo had given a copy of a confidential document to an unauthorized person — his union representative — and was uncooperative during the investigation. The department maintained that his conduct was “egregious” and appropriate discipline was imposed.
The arbitrator disagreed, though he indicated Trujillo hadn’t been completely forthcoming during the investigation. The arbitrator, Ira Epstein, wrote in his report that Trujillo was “quibbling” and “overly literal” when he told a department investigator that he did not possess the confidential report when, in fact, it was in his truck. Epstein also found it hard to believe that Trujillo didn’t know the report was confidential since, as a union officer, he had processed grievances related to discipline.
However, Epstein ruled that the department took too strict a line by firing Trujillo. He noted that the department had imposed five-day suspensions against officers who had committed offenses he deemed far more serious, including forgery, theft and filing false reports.
The arbitrator said that a written reprimand would have been the appropriate action.
“While there is evidence of a degree of misconduct, the discipline imposed was extremely excessive in light of the offense,” Epstein wrote.
Epstein’s decision states that Trujillo was fired without just cause, that his termination should be reduced to a written reprimand and his personnel file expunged of his previous suspension and discharge. The department was also directed to “make whole” any wage or benefit loss that resulted from his firing.
While the department claims the arbitrator’s ruling was flawed, Trujillo’s counsel doesn’t think so.
“We don’t believe the arbitrator’s decision was in any way arbitrary or capricious,” Trombley said. “The department’s appeal of Epstein’s decision about Trujillo was solely an attempt to hurt him personally for legal communication between him and his authorized union representative. The appeal was solely for the purpose of suppressing dissent and the exercise of free speech necessary for good government.”
 

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