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and
at the VA Medical Center, for touching the breast of a female coworker with
aside.
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
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
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
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
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.
7. Grievant was denied his rights to due process and equal protection of
law.
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)(1)(A)(i).
4
The Master Agreement
principal ones upon which the arbitrator relies are set forth below.
5
Article 21 of the Master Agreement is entitled “Investigations”. The
6
references to the evidentiary record.
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,
business manager of the hospital unit in which she and Grievant worked.
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.
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.
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
of some debate. Complainant insists that as early as the day after the
she did not make that statement until February 3 or 4, in response to which
the Agency’s 77-page investigative file). It is clear that during this interim
giving him the cold shoulder, to which Grievant was impervious. For
8
following email:
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.
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
statement:
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.
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
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.
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.
sexual harassment and the zeal with which it is enforced, Grievant was
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
nature of the charges against him violated Art 13, § 10.A; Art 16, § 1; and
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
Agreement.
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.
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
does not reveal that a copy was sent to the Union. Thus, violation of the
Medical Center and a Board member (TR @ 96-98), and the Medical Center
special training for their assigned task. By failing to provide them with
Agency violated Art 21, § 2.A of the Master Agreement. The Board began
Complainant (JX 4). The record is devoid of evidence that either the Union
Grievant nor any Union representative was present. Again, the Master
Agreement was violated. Both Grievant and the Union were entitled to
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
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
14
From these contrasting explanations, the arbitrator finds that Grievant and
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
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
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
totality of circumstances was fatal error and reflects the members’ lack of
training.
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
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.
immediately above, Ms. Walker was asked if she thought that the statement
surmised, “I think they were a little closer than just co-worker ….”
statement, “I can’t say that’s entirely accurate,” because she, too had
90. According to her, he worked primarily with female coworkers and never
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
fractured English.
Grievant’s Firing
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:
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.
Grievant’s first line supervisor, proposed that he be fired, based upon the
following reason:
Grievant and the Union were afforded the opportunity to make written
memorandum dated April 28, 2000 (JX 3). The arbitrator adopts the Union’s
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
The supreme irony of this entire matter is that, for four (4) years,
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.”
responsibility to tell her harasser that his attentions are unwelcome (TR @
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
20
The human male has developed a Darwinian denseness toward
Bobbitt to his face will prove ineffectual. In Grievant’s case, the task is
Far from discouraging Grievant, Complainant may have let him touch
vigorously denied any such earlier incident, but then she denied even
innocent behavior like laughing and joking with Grievant and was
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
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
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
holding the case of Scott v Sears, Roebuck & Co, 798 F2d 210 (CA 7, 1986)
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
The Medical Center director, who made the final decision to fire
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
option.
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
More distressing was the notion that Grievant had to confess to being guilty
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
behavior right through the briefing process. On page 4 of the Agency’s brief
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.
2000:
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
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
24
matter truthfully was viewed.
threats of formal charges against it. Once the Agency became aware of those
services of Mr. Chappell to defuse the situation, the Agency set into motion
to which the arbitrator can add only—and sacrificed on the alter of political
The Award
Art 40, § 2.G of the Master Agreement provides that “[t]he arbitrator
fees, pursuant to the provisions of Section 702 of the Civil Service Reform
same position he would have occupied had the Board correctly concluded
25
Under 5 USC § 5596(b)(2), Grievant is entitled to interest on all “pay,
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;
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
postmarked by January 31, 2001. It is expected that the parties will not
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
herself testified that, prior to the subject incident, Grievant never had
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
27