AFGE Local 1985 and Dept of Veterans Affairs Medical Center, Dublin, GA 12-29-00
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Transcript of AFGE Local 1985 and Dept of Veterans Affairs Medical Center, Dublin, GA 12-29-00
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
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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.”
3
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.
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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).
5
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.”
6
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
7
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
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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
9
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.
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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
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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.
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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
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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
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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.
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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
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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
17
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
18
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.
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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
20
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.
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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.
22
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.
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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
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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
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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.
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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
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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