You are on page 1of 27

FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 00-11934

AFGE LOCAL NO. 1985,


Union,

and

DEPARTMENT OF VETERANS AFFAIRS,


Agency.
______________________________________/

OPINION OF THE ARBITRATOR

December 29, 2000

After a Hearing Held November 3 and 9, 2000


At the Carl Vinson Medical Center in Dublin, Georgia

For the Union: For the Agency:


Dr. C. Wayne Buie Ellen M. Hastings, Esq.
AFGE Local 1985 Regional Counsel
PO Box 1874 Staff Attorney
Dublin, GA 31040 Department of Veterans Affairs
The Charge of Sexual Harassment

Grievant, a male, was fired from his position as a physician’s assistant

at the VA Medical Center, for touching the breast of a female coworker with

whom he had a flirtatious relationship. He was charged with the “hostile

environment” variety of sexual harassment, as described in 29 CFR §

1604.11(a)(3). See Meritor Savings Bank, FSB v Vinson, 477 US 57 (1986).

Because a single, minor incident of sexual misconduct is insufficient as a

matter of law to sustain such a charge,1 Grievant’s discharge must be set

aside.

Mr. Roland W. Sutlief, the EEO and affirmative employment program

manager at the Medical Center, testified that “repeated” is one of the key

words used to describe sexual harassment (TR @ 216), and Agency Exhibit

4 confirms that fact. The Agency’s own prerequisites for sexual harassment

(verbal, non-verbal or physical conduct which is deliberate, repeated and

unwelcome) include one of the circumstances at which the Supreme Court

has suggested that fact-finders look to determine the hostility of a work

environment, “the frequency of the discriminatory conduct.” Harris v

Forklift Systems, Inc, 510 US 17, 23 (1993).

1
See cases collected in 1 B. Lindemann & P. Grossman, Employment Discrimination Law (ABA/BNA, 3rd
ed 1996) 805-807, n 290. This footnote is cited by the Supreme Court in Faragher v City of Boca Raton,
524 US 775, 788 (1998), for examples of situations in which “the alleged harassment was not actionably
severe or pervasive.”

2
A frequency of one is insufficiently “severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment.” Id. @ 21.2 Indeed, if Rome was not built in a day and a full

six (6) days were required to complete the earthly environment, it is unclear

how Grievant could have created an entire hostile working environment in a

mere moment of thoughtlessness. It is undisputed that the victim

immediately warned Grievant that his conduct was unwelcome and that he

has not repeated or attempted to repeat that or any similar conduct. There is

no hostile working environment at the Medical Center.

Principal Findings and Conclusions and Award

After an inquiry by a Board of Investigation (“Board”), grievant, [SA]

(“Grievant”), a native of Eritrea, East Africa, and a member of Local No.

1985 of the American Federation of Government Employees (“Union”), was

discharged by the Department of Veterans Affairs (“Agency”), upon the

complaint of Angela Williams (“Complainant”), a social worker at the Carl

Vinson Medical Center in Dublin, Georgia (“Medical Center”). Based upon

the evidence presented at an arbitration hearing held on November 3 and 9,

2000, the arbitrator’s principal findings and conclusions are as follows:

2
The arbitrator is not unmindful that AX 7 provides in pertinent part: “A one-time incident, if sufficiently
egregious, may give rise to a claim.” However, the proposition is stated without citation to authority. A
single incident sufficiently egregious to create a “hostile environment” almost certainly would involve
violent criminal conduct and a very real threat of its repetition. That is hardly this case.

3
1. Grievant was not notified of his right to Union representation, as
required by the Master Agreement between the parties.

2. The Board was not properly trained, as required by the Master


Agreement.

3. Grievant was mislead about the Board’s function.

4. Grievant’s defense of implied consent was not investigated by the


Board, as required by the Master Agreement, EEOC regulations and
the Agency’s own EEO handbook.

5. The Agency’s insistence that Grievant confess guilt as a condition of


mitigation subverted Grievant’s right to maintain his innocence, under
the Master Agreement and the Constitution.

6. Grievant was denied his rights under the Master Agreement.

7. Grievant was denied his rights to due process and equal protection of
law.

8. Grievant is not guilty of sexual harassment.

9. Grievant’s treatment by the Agency is shocking to the conscience.

Because Grievant has “been affected by an unjustified or unwarranted

personnel action which has resulted in the withdrawal or reduction of all or

part of the pay, allowances, or differentials of the employee,” within the

meaning of § 702 of the Civil Service Reform Act of 1978, 5 USC §

5596(b)(1), Grievant is reinstated with back pay and benefits and is awarded

attorney’s fees. See Master Agreement, Art 40, § 2.G. Under 5 USC §

5596(b)(2), daily interest is mandatory on all amounts described in §

5596(b)(1)(A)(i).

4
The Master Agreement

The Master Agreement between the Department of Veterans Affairs

and the American Federation of Government Employees 1997 (“Master

Agreement”) was entered into evidence as JX 1. Because it is so voluminous

(201 pages), it is impractical to set forth all pertinent provisions. The

principal ones upon which the arbitrator relies are set forth below.

Article 13 is entitled “Discipline and Adverse Action”. Section 10 is

entitled “Investigation of Disciplinary Actions”. Subsection A provides:

Management will investigate an incident or situation as soon as


possible to determine whether or not discipline is warranted.
Ordinarily this inquiry will be made by the appropriate line
supervisor. The employee who is the subject of the investigation will
be informed of their right to representation before any questioning
takes place or signed statements are obtained. Other employees
questioned in connection with the incident who reasonably believe
they may be subject to disciplinary action have the right to Union
representation upon request. (Emphasis supplied.)

Subsection B provides in pertinent part:

Disciplinary investigations will be conducted fairly and impartially,


and a reasonable effort will be made to reconcile conflicting
statements by developing additional evidence.

Article 16 is entitled “Employee Rights”. Section 1 provides in

pertinent part: “Employees will … be afforded proper regard for and

protection of their … constitutional rights.” Subsection C continues, “… nor

will an employee be used as an example to threaten other employees.”

5
Article 21 of the Master Agreement is entitled “Investigations”. The

provisions most pertinent to this arbitration are the following:

§ 1.D: If any supervisor or management official of the Department, in


advance of or during the questioning of an employee, contemplates
the likelihood of disciplinary action, the employee shall be informed
of their right to union representation prior to further questioning. If an
employee in the bargaining unit requests Union representation,
management will reschedule the meeting as soon as possible, and the
Union will be given the opportunity to be present.

§ 2.A: The Department agrees that before employees conduct a


formal investigation, they shall be properly trained.

§ 2.B: The Department will inform the local union in advance of a


formal administrative investigation when a bargaining unit employee
is the subject of the investigation or inquiry.

§ 2.C: Investigations should consider all facts, circumstances, and


human factors. An investigation shall be conducted in an expeditious
and timely manner.

§ 2.D: Employees have the right to be represented by the Union while


being questioned in a formal investigation or while being required to
provide a written or sworn statement. Before such questioning begins
or a statement given, employees will be informed of the reasons they
are being questioned or asked to provide a statement.

§ 2.E: If an employee is the subject of an investigation, the employee


will be informed of the right to union representation prior to being
questioned or asked to provide a statement. The employee will also be
informed of the nature of the allegation(s). Once an employee requests
union representation, except in very rare and unusual circumstances,
no further questioning will take place until the Union is present.

Other sections of the Master Agreement are cited as needed.

References to the Master Agreement are illustrative, not exhaustive, as are

6
references to the evidentiary record.

The Incident and Its Aftermath

On January 19, 2000, Grievant and Complainant, a cancer survivor,

were in her office, discussing some good news she had just received from

her oncologist, who reported that there was no recurrence of her cancer.

When Grievant was ready to leave, he asked for a hug from Complainant,

who obligingly gave him one of the casual, side-to-side variety. As Grievant

was about to go out the door, he turned to Complainant and touched her

breast. She giggled and exclaimed, “I’m going to hit you.” They then walked

from her office and down the hall, past the office of Ram B. Singh, MD,

Grievant’s first line supervisor. Complainant asked Grievant if anyone was

with Dr. Singh, to which Grievant replied negatively. Complainant said

nothing to Dr. Singh.

The next day Complainant spoke to James W. Strickland, then

business manager of the hospital unit in which she and Grievant worked.

Although Mr. Strickland was Complainant’s second line supervisor, she

spoke to him as a friend of 13 years. He asked her if she were going to file

harassment charges, to which she replied negatively. She told him that she

had handled the situation by warning Grievant never to touch her again.

Also that next day, Complainant contacted at home a family friend

7
who had known her since childhood, William C. Chappell, the veteran

service manager at the Medical Center. Mr. Chappell asked if she had

warned Grievant about his behavior, and she assured him that she had. Mr.

Chappell, who had experience in sexual harassment matters, suggested that

she not react hastily and offered to handle the situation himself, should any

future need arise. As will be seen, it is most regrettable that Mr. Chappell

was not called upon to bring his considerable expertise and abundant

common sense to bear upon this tempest in a teapot, which now has been

elevated to the status of federal case.

What transpired between January 21 and February 4, 2000, is a matter

of some debate. Complainant insists that as early as the day after the

incident, she told Grievant in a telephone conversation that what he did

amounted to sexual harassment. Grievant, on the other hand, contends that

she did not make that statement until February 3 or 4, in response to which

he sent her a well documented email, dated February 4, 2000 (part of JX 4,

the Agency’s 77-page investigative file). It is clear that during this interim

period, Complainant attempted to convey her displeasure with Grievant by

giving him the cold shoulder, to which Grievant was impervious. For

reasons explained below, the arbitrator credits Grievant’s testimony.

On the afternoon of February 4, 2000, Grievant sent Complainant the

8
following email:

SORRY FOR WHAT I DID. BUT YOU DON’T HAVE TO FROWN


AFTER YOU’VE FORGIVEN SOMEONE WHO HURT YOU.
TRY. GOOD WEEKEND. DIHAN KUNI (BYE IN TIGRINYA)3 JX
4.

Grievant’s email, although apologetic in tone, did not sit well with

Complainant. To her it demonstrated that Grievant just was not getting the

message. She went to see Mr. Strickland, her second line supervisor.

The Complaint Process

Mr. Strickland insisted that they talk to Dr. Singh, Grievant’s first line

supervisor. The three of them met that afternoon. During the discussion,

Complainant informed Mr. Strickland and Dr. Singh that she wanted to file a

sexual harassment complaint. She gave them the following written

statement:

On January 19, [SA] entered my office on 9A. We were discussing the


results of some recent test I had undergone. As he got up to leave and
congratulate me of the good news that I received, he hugged me and
then turned around and pinched my left breast. At that time, I
immediately told him to never do that again and pushed him away. He
smiled and walked down the hall. He called that afternoon and I
would not talk with him. He called the next morning and I proceeded
to tell him I could bring him up on Sexual Harassment charges. He
laughed and stated “provoked or unprovoked”. Then he said he was
sorry, he was just impulsive like that. He has continued to call and I
continue to state that I am busy. After the repeated phone calls and
attempts to visit my office I asked Mr. Jim Strickland, the Business
Manager of Geriatrics and Extended Care and Mr. William Chappell

3
Tigrinya is an African language.

9
of how to handle the situation. I felt I could handle it without going
through a formal process by explaining to him the seriousness of the
matter.

I have purposely not been in a room alone with him, nor do I carry a
conversation or speak to him in the hallways since this incident has
occurred. My contact at this point has only been professional and
during interdisciplinary team conference.

After his last attempt to reach me by phone on February 3 and I


informed him I was busy he then sent an E-mail on February 4, stating
he was sorry for hurting me and could I please forgive him. At that
time, I went back to Mr. Jim Strickland, Business Manager for
guidance, because I felt it was getting out of hand and he was not
going to leave me alone.

I met with Dr. Singh and Mr. Strickland to discuss how to file a
formal complaint. At this time those are my intentions to file a formal
complaint.4 JX 4.

Mr. Strickland notified the chief of staff, who referred him to human

resources for guidance. Because it was late Friday afternoon, Mr. Strickland

did not contact human resources until the following Monday.

On February 7, 2000, Mr. Strickland met with Deborah Blizzard,

employee relations specialist, and Karla McIntosh, supervisor of human

resources. At the arbitration hearing, Ms. McIntosh testified that she was a

past union president at other VA facilities and was quite familiar with the

Master Agreement. She stated that if she had known that Mr. Strickland and

4
As noted previously, the arbitrator does not credit Complainant’s chronology. It is certain that she spoke
to both Mr. Strickland and Mr. Chappell the day after the incident, yet neither reported being told by
Complainant that she had used the words “sexual harassment” in her conversations with Grievant. Those

10
Dr. Singh were going to meet with Grievant, she would have advised Mr.

Strickland to notify the Union. She then was forced to admit that she in fact

had known about their meeting and that she failed to advise him. TR @ 40-

41.

The violations of Grievant’s rights began in earnest on February 7,

2000. Before the Board, Mr. Strickland testified as follows:

A: … On February 7th again, Dr. Singh and I talked with Mr. [SA]
and told him that Ms. Williams stated that he was harassing her. We
asked him to give a written statement concerning the harassment
allegation. On February 8, 2000, Mr. [SA] stated that he would not
give a written statement because he didn’t know specifically what the
harassment charges were. On the same day we told him that he would
be moving to 19A, ward 19A from ward 10A. On February 9th, 2000,
which was a Wednesday, Mr. [SA] was transferred from 10A to 19A
in order to avoid contact between he and Ms. Williams for his and her
protection.

Q: What was Mr. [SA]’s response to the allegation once he was


confronted?

A: He wanted to know what the allegation of sexual harassment was;


and we did not tell him what the allegations were. We asked him to
give us a statement, ah, but he didn’t give us a statement. JX 4.

In light of the Agency’s announced policy of zero tolerance towards

sexual harassment and the zeal with which it is enforced, Grievant was

entitled to be informed of his right to Union representation at the very outset.

Moreover, he was entitled to know the nature of the charges against him.

explicit words seem to have struck a nerve with Grievant, who responded with his email of February 4,
2000.

11
Inasmuch as Complainant already had given the Agency a written statement

and that statement was the best evidence of the charges against Grievant, he

should have been given a copy of Complainant’s statement. The Agency’s

failure to inform Grievant of his right to Union representation and of the

nature of the charges against him violated Art 13, § 10.A; Art 16, § 1; and

Art 21, §§ 1.D, 2.D, 2.E of the Master Agreement.

Although Mr. Strickland and Dr. Singh refused to inform Grievant of

the nature of the charges against him, they did refer him to human resources,

where he met with Ms. McIntosh. She in turn failed to inform Grievant of

his right to Union representation but told him that he could submit a

statement to her, which he did on February 15, 2000. JX 4. This repeated

failure to inform Grievant of his rights further violated the Master

Agreement.

The Proceedings before the Board

It is difficult to determine a precise point at which the “investigation”

into Grievant’s conduct began in earnest, so as to trigger the protections of

the Master Agreement. Arguably under the language of Art 13, § 10.A, it

began with the involvement of Dr. Singh, Grievant’s first line supervisor.

Regardless of the investigation’s precise date of inception, it was in full

swing by February 16, 2000, the day after Grievant submitted his written

12
statement (JX 4) and the day the Medical Center director commissioned the

Board of Investigation. The director’s memorandum establishing the Board

does not reveal that a copy was sent to the Union. Thus, violation of the

Master Agreement continued. Id., Art 21, § 2.B (“in advance”).

Both Jerry Donald Farris, a vocational rehabilitation specialist at the

Medical Center and a Board member (TR @ 96-98), and the Medical Center

director himself (TR @ 323) testified that Board members received no

special training for their assigned task. By failing to provide them with

proper training in the investigation of sexual harassment charges, the

Agency violated Art 21, § 2.A of the Master Agreement. The Board began

its official proceedings on February 23, 2000, with an interview of

Complainant (JX 4). The record is devoid of evidence that either the Union

or Grievant was notified of Complainant’s interview. Certainly neither

Grievant nor any Union representative was present. Again, the Master

Agreement was violated. Both Grievant and the Union were entitled to

notice and the opportunity to attend.

The earliest evidence of notice to Grievant or the Union is a Statement

of Employee’s Rights and Obligations and a Designation of Representative,

which Grievant signed on February 24, 2000, over a month after the subject

incident (JX 4). On that date the Board began its interview of Grievant, who

13
was accompanied by two Union representatives. The initial session was

adjourned when the Union lodged technical objections to the Board’s

jurisdiction (JX 4).5

The Board’s interview of Grievant resumed the next day. The Union

reiterated its objections to the Board’s jurisdiction and sought to press the

Board as to the training of its members and the precise definition of sexual

harassment under which it was operating. The chairperson of the Board

made the following representation:

We are only here as fact-finders. We are not here to make a decision;


and whether or not that actually sexual harassment has happened, we
don’t know. JX 4; emphasis supplied.

Similar representations were made by other Board members (“Ours is a fact-

finding role only.” JX 4).

In contrast, the chairperson informed Complainant as follows:

We will be taking a deposition tomorrow from Mr. [SA], and once


that has been taken, this Board will sit down and come to some
conclusion, some finding, some recommendation. Those will be put in
written form, and as soon as the depositions are typed and ready to put
in the evidence file that we will build, this could be to the Director by
Monday or Tuesday of next week. JX 4; emphasis supplied.
5
Although the Master Agreement expressly contemplates investigations into alleged employee
misconduct, the Board was commissioned under VHA Directive 1051 and Handbook 1051, which the
Agency concedes pertain only to patient complaints. Although the Agency is correct that management may
establish a committee or board to inquire into any Agency business, it is unclear that, without regulatory
authority, the Agency may cloak an investigative body with the power “to require all employees of the
Medical Center to cooperate with you; to require employees having any knowledge of the issue to furnish
testimony under oath without a pledge of confidence.” JX 4. Because the arbitrator concludes that the
Board’s proceedings were so irregular as to render them nugatory, it is unnecessary to decide that issue for
purposes of this arbitration. Inasmuch as the subject incident and its ramifications are being pursued in a
least two other forums, resolution of the issue can be left for others.

14
From these contrasting explanations, the arbitrator finds that Grievant and

the Union were mislead about the Board’s function.

Grievant furnished the Board with the names of coworkers

knowledgeable about the nature of his relationship with Complainant, but

the Board failed to interview any of them, insisting that it was concerned

solely with the events of January 19, 2000 (JX 4). Inasmuch as there were

sharply “conflicting statements” over those events, it was error for the Board

not to interview the employees whom Grievant identified. Master

Agreement, Art 13, § 10.B. Moreover, information about Grievant’s prior

relationship with Complainant is “obviously relevant” to the issue of the

welcomeness vel non of Grievant’s advances. Meritor, 477 US @ 69.

In Meritor, the female accuser admitted to having had intercourse

with the accused male “some 40 or 50 times.” She further testified that he

“fondled her in front of other employees, followed her into the women’s

restroom when she went there alone, exposed himself to her, and even

forcibly raped her on several occasions.” Id. @ 60. In this context the

Supreme Court wrote in pertinent part:

While “voluntariness” in the sense of consent is not a defense to such


a claim [of sexual harassment], it does not follow that a complainant’s
sexually provocative speech or dress is irrelevant as a matter of law in
determining whether he or she found the particular sexual advances
unwelcome. To the contrary, such evidence is obviously relevant. The

15
EEOC Guidelines emphasize that the trier of fact must determine the
existence of sexual harassment in light of “the record as a whole” and
the “totality of circumstances, such as the nature of the sexual
advances and the context in which the alleged incidents occurred.” 29
CFR § 1604.11(b) (1985). Id. @ 69.

Both the Master Agreement (Art 21, § 2.C) and the Agency’s own

EEO handbook (JX 7) reflect concern for the totality of circumstances.

Indeed, the later states in pertinent part:

In determining whether alleged conduct constitutes sexual harassment,


ORM, Field Offices, OEDCA, and EEOC will look at the record as a
whole and at the totality of the circumstances, such as the nature of
the sexual advances and the context in which the alleged incidents
occurred. Whether an incident or incidents constitute harassment is a
determination to be made from the totality of the circumstances, on a
case-by-case basis.

The Board’s failure to contact Grievant’s witnesses in order to ascertain the

totality of circumstances was fatal error and reflects the members’ lack of

training.

The Testimony of Grievant’s Witnesses

Although the Board failed to contact Grievant’s witnesses, the Union

called several of them at the arbitration hearing. They told a rather different

story than Complainant, who stated the following to the Board, about her

relationship with Grievant:

We don’t even have … no we have conversation routinely. But as far


as off-hand conversations, we don’t have that kind of conversations.
There are people you can joke with and there are some that you

16
cannot. I don’t know him well enough to joke with him. So he’s one
of those people that I do not. JX 4.

At the arbitration hearing, the Union called Cynthia Diane Walker,6 a

nursing assistant at the Medical Center, who described herself as a friend of

Complainant. After having been read Complainant’s statement quoted

immediately above, Ms. Walker was asked if she thought that the statement

was an accurate characterization of the relationship between Complainant

and Grievant, to which she replied, “No. I do not.” TR @ 79-80. She

described them as talking, laughing, joking, gesturing, touching, and

surmised, “I think they were a little closer than just co-worker ….”

Similarly, Dorothy Hutcheson, Dr. Singh’s secretary, who also

described herself as a friend of Complainant, said of Complainant’s

statement, “I can’t say that’s entirely accurate,” because she, too had

witnessed Complainant and Grievant laughing and joking. TR @ 91-95.

Rosetta W. Edmonds, a staff nurse on ward 10A, expressed difficulty

believing that Grievant would have acted “without encouragement.” TR @

90. According to her, he worked primarily with female coworkers and never

was involved in any other incident like this one.

In light of the testimony of these neutral witnesses, it is difficult for

the arbitrator to accept Complainant’s characterization of her relationship

17
with Grievant. She did not deny touching him, rubbing his back, giving him

rides to and from work, telling him her home phone number, eating off his

plate, or walking with him about the Medical Center grounds. When

Grievant told her that he was sexually attracted to her, she did nothing to

discourage him. TR @ 281. At the time of the incident, they were discussing

the highly personal subject of her cancer. Even when queried about whether

she giggled when he touched her breast, she replied weakly, “I don’t think

so.” TR @ 262, 280. By contrast, the arbitrator found Grievant’s testimony

effectively consistent, albeit tedious because of his foreign accent and

fractured English.

Grievant’s Firing

Without the benefit of testimony from any of Grievant’s witnesses

other than himself, the Board had no difficulty issuing a memorandum to the

director and chief of staff, dated March 13, 2000, in which it reported:

Findings. It is the opinion of the board that Mr. [SA] displayed


inappropriate sexually oriented behavior by deliberately grabbing Ms.
Williams breast. This incident would be addressed as severe behavior
in that a “reasonable person” would find the behavior objectionable in
this incident or similar circumstances. We also find that Mr. [SA]
continued to exhibit behavior that created a hostile work environment
for Ms. Williams by repeated attempts to contact her by telephone,
visit and VISTA (E-mail). He further implicated himself by ignoring
his supervisor’s instructions that he was not to be on Ward 10A. Mr.
[SA] testified that he had “deep feelings” for Ms. Williams and he
6
By the time of the hearing, Miss Walker had married and taken the name of Brown. Because she is
identified as Cynthia Walker throughout the Board’s proceedings, the arbitrator uses her maiden name.

18
thought the “feelings” were mutual. He also stated that he knew the
“sexual feelings” were unhealthy. The board finds the testimony given
by Mr. [SA] established a Prima Facie case of Sexual Harassment.

Conclusions. The investigative board concludes that Sexual


Harassment occurred in the case of Ms. Angela Williams and Mr.
[SA].

Recommendations. It is the recommendation of this board that prompt


corrective action be taken. The board further recommends that
provisions be made for Mr. [SA] to talk with someone who can bridge
the gap culturally and reinforce the actual meaning of the harassment
training he receives. JX 4.

No definition of sexual harassment was set out in the Board’s memorandum,

which was not copied to either Grievant or the Union.

In a memorandum to Grievant, dated April 11, 2000, Dr. Singh,

Grievant’s first line supervisor, proposed that he be fired, based upon the

following reason:

On January 19, 2000 as you were leaving Ms. Angela Williams’


office, you grabbed her left breast. Your conduct is in direct violation
of VHA Directive 10-95-055.

You are charged with sexual harassment. JX 2; emphasis in


original.

Dr. Singh’s memorandum does not show a copy to the Union.

Grievant and the Union were afforded the opportunity to make written

and oral presentations to the director, who confirmed Grievant’s firing by

memorandum dated April 28, 2000 (JX 3). The arbitrator adopts the Union’s

written presentation to the director (UX 1) as a fair presentation of the issues

19
in the case. The Union filed a grievance on April 28, 2000 (JX 9), which the

Agency denied on May 16, 2000 (JX 10). After hearing and briefing, the

matter is ripe for decision.

The Agency’s Handling of the Matter

The supreme irony of this entire matter is that, for four (4) years,

Complainant was an EEO counselor, who gave sexual harassment training to

other employees at the Medical Center, including to Grievant himself.

Despite her extensive training in the subject, she utterly failed to take the

basic steps required to head off unwelcome advances. Even when Grievant

told her explicitly that he was sexually attracted to her and asked if she were

similarly attracted to him, she replied coquettishly, “Infer from what I do.”

At the arbitration hearing, Complainant conceded that a victim has a

responsibility to tell her harasser that his attentions are unwelcome (TR @

282), and the Agency’s sexual harassment materials confirm that

responsibility (AX 3, 4). Nevertheless, the record is devoid of convincing

evidence that she ever told Grievant that his attentions were unwelcome,

other than immediately following the subject incident, and that warning was

limited to touching her breasts. Even after the incident, it does not appear

that she expressly told him to leave her alone. When that question was posed

to her, she replied, “I don’t know if I did or didn’t.” TR @ 264, 266.

20
The human male has developed a Darwinian denseness toward

rejection by the opposite sex; it is in his self-interest to interpret reactions to

his romantic attentions in a favorable light. In a rut, he may not even

understand what “is” means. As a result, contrary information must be

conveyed in a manner which is very direct, extremely simple, and

unmistakably clear. Any communication more subtle than praising Lorena

Bobbitt to his face will prove ineffectual. In Grievant’s case, the task is

complicated by his quaint usage of English, which the Board itself

recognized in its reference to the cultural gap.

Far from discouraging Grievant, Complainant may have let him touch

her breast on a previous occasion, at least he so testified. She, of course,

vigorously denied any such earlier incident, but then she denied even

innocent behavior like laughing and joking with Grievant and was

resoundingly contradicted by her own friends. Whatever the true parameters

of their relationship, at least in Grievant’s mind, he had no reason to believe

that she would react so negatively to what he perceived as little more than an

impish gesture.7 He testified that he would not have made advances in the

face of discouraging words.

7
Nothing in this opinion should be construed as approving the type of boorish behavior in which Grievant
engaged. Even if it were welcome, it occurred on government time, and absolutely no good came of it. In
its brief, the Union concedes that Grievant could be subject to some disciplinary action. However, the
arbitrator concludes that the abuse to which Grievant has been subjected is lesson enough.

21
In addition to failing to take into account the totality of circumstances

in which the incident occurred, the Agency failed to consider the perspective

from which courts and arbitrators view comparable incidents and instead

imposed upon Grievant, who had an otherwise unblemished work record, the

capital punishment of the employment world. In Elkouri & Elkouri, How

Arbitration Works (ABA/BNA, 5th ed 1997 and 1999 Supp), the authors

point out that “[t]he lower courts have been unable to reach any agreement

on what constitutes a ‘hostile environment,’” and cite for its negative

holding the case of Scott v Sears, Roebuck & Co, 798 F2d 210 (CA 7, 1986)

(no hostile environment where a female was repeatedly propositioned and

winked at by her supervisor, buttocks were slapped, and comments made

that she must moan and groan during sex).8 See also note 1, supra. When

put into perspective with other reported incidents, the one under

consideration seems rather tame.

The Medical Center director, who made the final decision to fire

Grievant, testified at the arbitration hearing. He confirmed that Grievant was

fired for touching Complainant’s breast but cited no definition of sexual

harassment, and insisted that their prior relationship had no relevance. He

interpreted most negatively the refusal of Grievant and the Union to admit to

8
Elkouri & Elkouri @ 1067, n 338. This treatise contains a good discussion of the 1981 MSPB Report
prepared at the request of Congress by the Merit Systems Protection Board.

22
the charge of sexual harassment. He found Grievant beyond redemption and

incapable of rehabilitation. He therefore viewed discharge as the only viable

option.

At the arbitration hearing, Board member Farris appeared as appalled

as the arbitrator at the notion that Grievant could not be rehabilitated. It was

Mr. Farris’ understanding that the “corrective action” which the Board was

recommending in its report pertained to counseling about sexual harassment.

More distressing was the notion that Grievant had to confess to being guilty

as charged in order to be considered for leniency, an insistence that comes at

a time when each week seems to bring new press reports of prisoners on

death row who are innocent of the capital crimes of which they have been

“convicted”. Grievant, too, is innocent.

The Agency has continued its unbalanced presentation of Grievant’s

behavior right through the briefing process. On page 4 of the Agency’s brief

appears the following:

Mr. [SA] asks you to believe, that approximately a year prior to this
incident, he was sitting in Ms. Williams’ office, reached across her
desk and touched her breast while she was on the telephone. Ms.
Williams emphatically denied this incident ever happened. (Transcript
pg 267) He also wants you to believe this story even though it was not
presented to the Board of Investigation when he testified not once, not
twice, but three times on February 24, 2000, February 25, 2000 and
March 2, 2000. One can only conclude this detailed incident was not
presented to the Board of Investigation, because it is merely a
fabrication in Mr. [SA]’s mind of a relationship he desperately wanted

23
to become his reality! This relationship never began, because one
party, Ms. Williams, was not willing. She is still not willing.

In contrast, when the arbitrator examines the record of the Board

proceedings, he finds that Grievant testified as follows on February 25,

2000:

A: This was not my first time to touch her breast. …

Q: So you’re saying, [SA], that you had touched her breast prior to
January 19th?

A: That’s correct. JX 4.

The arbitrator further finds that this particular testimony of Grievant was

brought to the Agency’s attention in the Union’s written presentation to the

Medical Center director, UX 1, ¶ 8. It clearly appears to the arbitrator that

Grievant has not been treated fairly.

The Union accuses the Agency of bypassing the normal complaint

process and taking draconian measures against Grievant, in an effort to

protect itself against Complainant’s sexual harassment charge. Although the

best defense may be a good offense, an alternate avenue open to the Agency

was the legally correct one, namely, that Grievant’s behavior did not rise to

the level of sexual harassment. The fact that absolutely no one involved,

including Complainant herself, took any affirmative action for over two

weeks is compelling evidence of the degree of seriousness with which the

24
matter truthfully was viewed.

The Agency did nothing until Complainant began bandying about

threats of formal charges against it. Once the Agency became aware of those

threats, instead of employing its onsite EEO mediator or enlisting the

services of Mr. Chappell to defuse the situation, the Agency set into motion

the ponderous machinery of a Board of Investigation, the chairperson of

which assisted Complainant in filing her charge against the Agency. TR @

303-304. The Union likens Grievant’s treatment to a lamb led to slaughter—

to which the arbitrator can add only—and sacrificed on the alter of political

correctness. The Agency corrupted a policy of zero tolerance toward sexual

harassment into one of intolerance towards the rights of the accused.

The Award

Art 40, § 2.G of the Master Agreement provides that “[t]he arbitrator

has full authority to award appropriate remedies, including reasonable legal

fees, pursuant to the provisions of Section 702 of the Civil Service Reform

Act, in any case in which it is warranted.” Grievant is to be placed in the

same position he would have occupied had the Board correctly concluded

that he was not guilty of sexual harassment. He is entitled to back pay,

uninterrupted benefits, and all other incidents of employment which he

would have enjoyed had the Board acted properly.

25
Under 5 USC § 5596(b)(2), Grievant is entitled to interest on all “pay,

allowances, or differentials” owed him. In particular, 5 USC § 5596(b)(2)(B)

provides:

Such interest—

(i) shall be computed for the period beginning on the effective date of
the withdrawal or reduction involved and ending on a date not more
than 30 days before the date on which payment is made;

(ii) shall be computed at the rate or rates in effect under section


6621(a)(1) of the Internal Revenue Code of 1986 during the period
described in clause (i); and

(iii) shall be compounded daily.

Because the arbitrator finds that the Agency’s unconscionable

treatment of Grievant “was clearly without merit,” Grievant is entitled to

reasonable attorney’s fees in accordance with standards established under 5

USC § 7701(g). See 5 USC § 5596(b)(1)(A)(ii). Payment by the Agency is

warranted in the interest of justice.

On or before January 12, 2001, the parties shall meet and attempt to

agree upon the various amounts owed to Grievant. If they are unable to

agree on a particular issue, they shall file with the arbitrator legally sufficient

affidavits and briefs in support of their respective positions, which must be

postmarked by January 31, 2001. It is expected that the parties will not

return to the arbitrator unless there is a bona fide disagreement as to an issue

26
on which there is no controlling authority.

Finally, the arbitrator notes that Grievant was reassigned from ward

10A to ward 19A for “protection”. Based solely upon the arbitral record, no

one, including Complainant, needs “protection” from Grievant, who presents

the demeanor and manners of Mr. Peepers or Mr. Rogers. Complainant

herself testified that, prior to the subject incident, Grievant never had

behaved inappropriately. TR @ 278-279. The arbitrator finds her professed

fears of him, allegedly emanating from this incident (TR @ 272), to be

factitious and fictitious. Although the Agency is free to reassign her, there is

no basis for restricting his movements about the Medical Center. He must be

offered the choice of remaining on ward 19A or returning to 10A. His future

work assignments should be made without regard to her work assignments.

For all the foregoing reasons, the grievance is SUSTAINED.

Dated December 29, 2000


_______________________________
E. Frank Cornelius, Arbitrator

27

You might also like