Arbitration Award


In re

The City of Oklahoma City


AFSCME Local 2406


121 LA (BNA) 1048

FMCS Case No. 05/01502

July 22, 2005


Benjamin M. Shieber, Arbitrator *


I. Issues 


The Parties stipulated that the issues in this case are:  


Was the discharge of the Grievant, R__ for just cause? 


If not, what should the remedy be? 


II. Facts 


The City and the Union are parties to a collective bargaining agreement effective for the fiscal year 2004-2005. Grievant, who is represented by the Union, is a 35 year old, unmarried man who started working for the City in 2000 as a Customer Service Representative and who was a Customer Service Representative IV at the time he was discharged, on November 30, 2004. Grievant worked in the Utility Customer Services Division of the Water & Wastewater Utilities Department. This Division was staffed by 55 employees, 47 women and 8 men. While they could be and were assigned to different jobs within the Division as need arose, Customer Service Representatives rotated between the different major jobs in the Division for a year’s appointment. Thus, they would be assigned for one year to the Dispatch Section, or the Payment Section (which worked in a drive-in window similar to the drive-in window for a bank) or the Telephone section. 


In June 2003 Grievant was rotated into the Dispatch Section for one year. That section was manned by two employees who worked in close proximity to each other in a small room, which C__ , the Charging Party, described as “kind of like a closet of a room.” Just outside the door of the Dispatch room, which was always kept open, was a larger room in which employees who answered the telephones worked. One of the desks in the telephone room was so close to the door of the Dispatch Section that the conversations in the Dispatch Section could be heard at the desk and vice versa. From June to December 2003 Grievant’s partner in the Dispatch room was a male, Mr. Joe Reagan. In January 2004, C__ , a Customer Service Rep. IV, was rotated to work in the Dispatch room with Grievant. 


Grievant and C__ started off on a friendly co-worker relationship when C__ first entered the Dispatch room, but about “a month, month and a half’ thereafter the relationship disintegrated into a hostile and antagonistic one. They complained about each other in relation to work-related matters and personal friction between them to their immediate supervisor, Ms. Bettye Johnson. In May 2004, C__ started to complain about Grievant to other supervisors, Ms. Lisa Green, and Ms. Karen Moser, a higher level supervisor. On June 3, 2004, Ms. Moser discussed C__’s complaints about Grievant with her. In this conversation Ms. Moser pointed out to C__ that “none of the things were recent” and that “R__ is due to rotate out of the dispatch office at the end of the month. They have 11 days to work together.” C__ said “she had talked with her brother-in-law who is an Oklahoma City Police officer and he said, it was harassment.” C__ asked Ms. Moser “to handle the situation” and Ms. Moser decided “to have personnel look into her complaint.” 


On June 9, 2004, Management Specialist Sue Sixkiller referred the matter to Mr. Thomas Ray of the Personnel Department. In her memo to Mr. Ray, Ms. Sixkiller stated that “It appears that there is a problem with both C__ and R__ and that a hostile working environment is being created by both of them toward one another. From Bettye’s perspective, R__ was trying to resolve the problem and C__ appears to be unwilling. We do believe, however, that the problem will be resolved in a few days when the rotations are implemented and R__ and C__ are no longer working together.... Please let me know if you wish to discuss this situation further, or if you believe it can be resolved when R__ is transferred out of Dispatch [in a little over 2 weeks].” 


C__’s verbal complaint was investigated by Mr. Thomas Ray, Personnel Specialist, and Ms. Susan McCormick, Management Specialist. They interviewed or were provided written information by 27 employees including the Grievant and C__ . In their investigative report submitted on November 8, 2004, they determined “Based upon information obtained in the investigation, we conclude that R__ violated Personnel Services Bulletin 00-1 Policy Prohibiting Discrimination and Sexual Harassment.” They recommended “The Water & Wastewater Utilities Department should take the necessary steps to insure R__ does not continue to make comments and/or exhibit conduct or behavior that violates Personnel Services Bulletin (PSB) 00-1 Policy Prohibiting Discrimination and Sexual Harassment. R__ agreed in the Memorandum of Understanding, dated June 25, 2002, that “this discipline may be taken into consideration if R__ violates the City’s policy prohibiting discrimination and sexual harassment in the future.” PSB 00-1 clearly states, “Any employee found in violation of this policy, or who provides false information in the complaint or investigation procedures, is subject to disciplinary action. Disciplinary action may include any range of discipline, up to and including termination. It is recommended the Water & Wastewater Utilities Department exercise the options expressed in the policy referencing disciplinary action and consider a range of discipline, up to and including termination for R__’s violation of the policy....”  


On November 30, 2004 Grievant was terminated for violating PSB 00-1. The termination notice stated,   


“The nature and specifics of the infractions cause us extreme concern. The repetitive nature of the complaints against you and the sustained allegations that your conduct causes intolerable workplace disharmony and unnecessary stress makes your continued employment unwarranted. Regardless of whether your conduct is “sexual” in nature, it does appear to be directed toward female co-workers and has created an unpleasant work environment for more than one employee, which prior corrective measures have been unable to abate. Your conduct does appear to create an unpleasant and hostile work environment in violation of PSB 00-1. Further conduct of this type of behavior cannot be tolerated. Therefore, your employment with the City of Oklahoma will end effective immediately.” 


On December 6, 2004, a grievance was filed which stated that  


“C__ accused R__ of several incidents which were initiated by C__ . She used strong, suggestive language while working with R__. She did not cooperate in maintaining a healthy and sound working environment. R__ informed management of his situation with C__ ; however, management took no action to correct the problem.” 


The relief requested was that Grievant be returned to work and made whole.  


In its reply to the grievance the City stated  


“R__ was not terminated for violating State and/or Federal law, nor was he terminated solely due to his conduct toward C__ . R__ was terminated for repeatedly violating Personnel Services Bulletin (PSB) 00-1: Policy Prohibiting Discrimination and Sexual Harassment. An internal investigation (November 2004) concluded that R__ continued to make comments and/or exhibit conduct or behavior toward a number of female co-workers that was unwelcome and unwanted.... In summary, R__ was warned in 2001, 2002, and 2003 that he could be terminated for future violations of PSB 00-1. Then in November 2004, a thorough investigation determined R__ again violated PSB 00-1....” December 14, 2004 letter from Marsha Slaughter to Mr. William Bryles (emphasis in original). 


When the Parties were unable to resolve the dispute in the grievance procedure. This arbitration followed.  


III. Decision 


The City bases its support for Grievant’s discharge on the contention that he violated PSB 00-1 by creating a hostile work environment through unwelcome conduct of a sexual nature that was so severe or persuasive that it unreasonably interfered with employment or created an intimidating, hostile or offensive environment. In its Brief, it states the basis for Grievant’s discharge as follows:  


Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986), established a two-part definition of what constitutes hostile working environment. The complainant must show that the conduct was (1) sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment and (2) unwelcome.” Elkouri and Elkouri, How Arbitration Works, 5th Edition (BNA Books: Washington 1997) page 1068 (emphasis added). PSB 00-01 sets out two definitions of harassment on page 2. Here, the definition of hostile work environment applies, which is defined as unwelcome verbal or physical conduct of a sexual nature that is so severe or pervasive that it unreasonably interferes with employment or creates an intimidating hostile or offensive environment.. In Harris v. Forklift Systems, 510 U.S. 17, 114 S.Ct. 367 (1993), the Supreme Court held that [w]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Elkouri and Elkouri, How Arbitration Works, 5th Edition (BNA books: Washington 1997) page 1068. The city called four (4) witnesses to show that R__’s actions created a hostile work environment by making unwelcome offensive comments and jokes (some of a sexual nature) that interfered with their ability to perform their job.”


Before turning to the merits of the case, the Arbitrator must deal with the Union’s contention that Grievant’s termination was improper because it was a violation of the contract and due process for the City to even conduct a sexual harassment investigation of Grievant. In its Brief the Union argues: “In response thereto the LOCAL and R__ respectfully assert it was a clear violation of Sections 1.1 & 7.2 of J-1, and of simple due process, for the City to conduct a sexual harassment investigation based on C__’s admittedly non-sexually based complaints, and to then terminate him based on the obviously flawed and biased contents of the report which resulted therefrom.” 


The Union’s argument is rejected. The Code of Federal Regulations clearly states that the employer is responsible for acts of sexual harassment in the workplace between fellow employees “where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.” 


The City has a duty to investigate instances of sexual harassment between employees even if no employee complains of the sexual harassment. As the United States Court of Appeals for the Sixth Circuit stated in a recent case:  


“The law is clear that an employer may not stand by and allow an employee to be subjected to a course of racial and/or sexual harassment by co-workers or supervisors. Rather, once an employer has knowledge of the harassment, the law imposes upon the employer a duty to take reasonable steps to eliminate it.”... Thus, regardless of whether the victimized employee actively complained, prong one of the defense ensures that an employer will not escape vicarious liability if it was aware of the harassment but did nothing to correct it or prevent it from occurring in the future.... See Clark v. United Parcel Service, Inc., 95 FEP Cases (BNA) 513, 517 (6th Cir. 2005). 


The Arbitrator therefore finds that the City acted properly in investigating complaints concerning Grievant’s conduct in order to determine whether Grievant was guilty of sexual harassment. 


On the merits, based on his review of all the evidence in the case and his opportunity to observe the witnesses during the hearing, the Arbitrator finds that the City has failed to sustain the burden of proving that Grievant was guilty of sexual harassment warranting discharge. 


The Supreme Court has made it clear that the rules against sexual harassment do not provide “a general civility code” for the workplace. In the Oncale case, the Court stated:  


“And there is another requirement that prevents Title VH from expanding into a general civility code: As we emphasized in Meritor and Harris, the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality or androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.” Harris, 510 U.S. at 21, citing Meritor, 477 U.S. at 67. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory “conditions of employment.” See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). 


While the evidence proved that Grievant was a busy-body and a nosy-Parker who in Ms. Whitlock’s terms “tries to be sincere but doesn’t know when to stop playing”, it failed to prove that he created a “hostile or abusive work environment” by sexually harassing his co-workers. 


The City relied on the testimony of four witnesses. That testimony and the other evidence in the case did not prove that Grievant’s discharge was for just cause. The first witness was C__ , the Charging Party. C__’s allegations against Grievant must be discounted. She was antagonistic to Grievant from almost the beginning of their working together in the “closet” size Dispatch office. Until June 1, 2004, none of her complaints to her supervisors contained allegations of sexual harassment. Instead, they were work-related or involved Grievant “always listening to her conversation and in her business” or that “he is always making comments when she is speaking with other representatives and interrupting their conversations.” On one occasion when Grievant complained to the supervisor that C__ “said he was gay”, C__ said that “she told him the bag he carried looked feminine.” Some time before May 2004, when C__ started to complain to Ms. Lisa Greene, rather than her own supervisor, C__ even told Ms. Johnson “it was better.” Ms. Johnson’s conclusion was “I honestly feel that her [C__’s] unwillingness to try to be cordial and work with R__ created a hostile environment for him. She has previously stated that she knew him before he came here and she did not think well of him.”. 


One co-worker who worked with both Grievant and C__ said that “I think they just had a personality clash” and that “he believed that what was going on in the Dispatch room was “was as much C__’s fault as R__’s”. 


The City’s second witness was P__, whose last contact with Grievant occurred about August 2003. P__ testified that while she was working as a Customer Service Representative Grievant would ask her to go out to lunch or to go out and have a drink with him. She testified that she took offense at the fact that Grievant gave her a shirt with a City logo when she first began working for the City and was in difficult economic circumstances. She also took offense when other employees took up a collection to buy diapers for her children at the same time. The only sexual comment that Grievant made to P__ was to tell her a joke about Tweety Bird and “pussycat” after P__ urged him to tell the joke. 


Grievant has made no effort to see or talk to P__ since some time in August 2003. The few contacts that they had prior to that time and the telling of one off-color joke do not support the conclusion that Grievant was creating a hostile work environment by sexual harassment. 


The City’s third witness was Ms. Janet H. McCuddy. The only time Ms. McCuddy worked with Grievant was for three days in the drive-through payment center in July 2003. Ms. McCuddy testified that she felt uncomfortable about Grievant from the time that he walked in the door of the payment center those three days. She gave no reason for feeling uncomfortable and testified “I don’t know how I can explain it to you, but he has just a presence about him. It’s just a feeling you get. I don’t know how else to explain it.” On the end of the last of the three days while they were working together, Grievant was standing near the partially open door of the vault where the employees placed their cash drawers after the close of business. Grievant offered to put McCuddy’s cash drawer in the vault and Ms. McCuddy refused. Ms. McCuddy did not ask Grievant to move out of the way so that she could open the vault door and place her cash drawer inside. Instead, she reached in to the partially open door of the vault and put her cash drawer away in an uncomfortable manner because “I was afraid I was going to brush him in his crotch area” even though she testified that she did not know whether Grievant “intentionally put himself in that position”. A year and a half later, in August or July or September of 2004, Ms. McCuddy was upset by the fact that while she was working in the phone office when Grievant was also working there he stood near her desk two times. About 40-45 other people were working in the phone center at the same time. 


Ms. McCuddy’s testimony proves only that she had a groundless aversion to Grievant. Balanced against that groundless aversion are the statements of other female employees about Grievant. One woman stated that she had known Grievant for about four years. She described him as “really a sweet person who wants everybody to like him.” Another stated that Grievant was “a hard-working young man ... he’s dependable, ready to work and always pleasant and very helpful with customers.” And that she “never saw any flirtatious behavior from R__” and never received any complaints from co-workers or customers about Grievant. Another stated that she had known Grievant for about 3 years and characterized him as “very polite ... very concerned” and that he would walk with female co-workers to the garage. Yet another who had known Grievant for about 3 years stated that he is “polite and kind to females.” Still another stated that she and Grievant joked with each other and that he was “upbeat, friendly and helpful” and that she had “no reservations working with R__.”A retired worker who had worked with Grievant described him as “a perfect gentleman ... always polite.” 


Ms. McCuddy’s dislike for Grievant does not support a finding of just cause for his discharge. 


The City’s fourth and last complaining employee was W__ . W__ testified to three verbal comments with sexual content by Grievant that offended her. One took place on a snack day when there was a drawing for gifts using folded numbers in a cup. W__ told an employee “put your hand in the hole, draw a number.” She testified “of course R__ is always listening. He said, “Did you say put”—”did you tell her to put her hand in your hole?” The other occurred some time between July 2003 and October 2004. W__ had eaten an ice cream sundae. She testified that she ate “all the ice cream,” threw it in the [trash], typing, and R__ said, “You didn’t save me any?” And I said, “No, but you can lick the bowl,” kind of putting my hand down, you know, pointing to the trash. He said, “Did you say lick my balls?”  


The third and most serious sexual comment by Grievant to W__ occurred when she had brought a salad to work and put it on her desk. W__ was working in the cubicle right outside the Dispatch office doing telephone work, involving customer service and billing inquiries. Grievant took the salad from her desk and placed it on his desk in the Dispatch room. Grievant looked into the Dispatch office. “He [Grievant] had it at his desk.” I griped, said, “Don’t touch my stuff,” grabbed the salad, got it back, sat down and started eating it and he said, “Did you taste the special sauce I put in your salad?” “Grossed me out, threw it in the trash, was angry. Very angry about it.” W__ testified that even though she knew that Grievant had not actually masturbated on the salad she thought that Grievant was implying “That he masturbated in it.” Grievant admits making the statement and states that he was referring to saliva when the statement was made. These three are the only “off-colored or vulgar jokes” that W__ could “think of.” 


Grievant apologized profusely to W__ for the statement and offered to buy her a salad to replace the one that she’d thrown away, but she refused his offer. “After that, actually I was very angry, and I felt disgusted. I didn’t want to be looked at. I didn’t want him in my business so I hung up a big sheet of paper, which maybe sound childish, but I wanted to be alone.” 


Two days later W__ complained to her supervisor about the incident. She told her supervisor that she did not wish to file a complaint. “She said she felt she had made it plain that she did not like his playing and asked him to stop. He apologized and said he would. However, she stated she felt she had warned him and she wanted us to be aware of this. She also requested to move. I said I would document her conversation and I felt sure she could move.” 


The Arbitrator finds that Grievant was guilty of misconduct in that his three verbal statements to W__ constituted instances of sexual harassment in violation of PSB 00-1. However, the fact that an employee has been found guilty of misconduct does not automatically require a finding that the employee’s discharge was for just cause. A discharge which is excessively harsh discipline under all the circumstances in a particular case is not for “just cause.” 


Arbitrator Harry H. Platt stated this well settled industrial relations rule. Arbitrator Platt said:  


“Under a contract which limits an employer’s right of discharge to “just cause” an arbitrator’s determination of the required cause depends on more than a consideration of the facts bearing on the employee’s guilt or innocence of the misconduct charged. Such a determination calls for an appraisal of the substantiality of the reasons for the action taken and a judgment on whether the discharge penalty is fair and reasonable under all the circumstances and not disproportioned to the offense.... Indeed, it is an essential element of “just cause” that the penalty in a discipline case be fair and reasonable and fitting to the circumstances of the case. For although an employee may deserve discipline, no obligation to justice compels imposition of the extreme penalty in every case or a penalty that is more severe than the nature of the offense requires....” See Wolverine Shoe and Tanning Corp., 18 LA 809 at 812 (H. H. Platt 1952). 


And the courts agree that when deciding whether a discharge was for “just cause” arbitrators have “the authority to review the penalty imposed” and conclude that mitigating circumstances prevent the penalty from being for “just cause”. See General Truck Drivers v. Dayton Newspapers, Inc., 190 F.3d 434, 437-438 [162 LRRM 2001] (6th Cir. 1999). For example, in Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 121 S.Ct. 465 (2000) the Supreme Court ordered enforcement of an arbitrator’s award which held that because of mitigating circumstance “just cause” did not exist for the discharge of a recidivist employee’s violation of the employer’s drug policy. In another case the United States Court of Appeals for the 11th Circuit reconfirmed an arbitrator’s discretion to find that an employee’s discharge was not for “just cause” even though the employee was guilty of a “major infraction.” The Court opined that the arbitrator  


“Concluded that even though Whitely had engaged in a major infraction as defined by IMC-Agrico’s rules, that did not automatically mean that discharge was a “just” sanction. Instead, he construed the agreement to allow him to review the appropriate sanction for rule violations considering, among other things, the seriousness of the offense and the employee’s work record.... We hold that the arbitrator adopted a reasonable interpretation of the just cause provision of the agreement....” See IMC-Agrico Co. v. International Chemical Workers Council, 171 F.3d 1322, 1327-1328 [160 LRRM 2961] (11th Cir. 1999). 


Accord Weber Aircraft Inc. v. General Warehousemen and Helpers Union, Local 767, 253 F.3d 821, 823-825 (5th Cir. 2001); Columbia Chemicals Co. v. International Chemical Workers Union, 331 F.3d 491, 494-495 (5th Cir. 2003); Hill v. Staten Island Zoological Society, 147 F.3d 209, 213-214 (2nd Cir. 1998); Midwest Coca-Cola Bottling Co. v. Allied Sales Drivers, Local 792, 89 F.3d 514, 518 (8th Cir. 1996); Trailmobile Trailer, LLC v. IUE, 223 F.3d 744, 746-749 (8th Cir. 2000); Westvaco Corp v. UPIU, Local 676, 171 F.3d 971, 975-976 (4th Cir. 1999); Local No. 7, UFCW v. King Soopers, Inc., 222 F.3d 1223, 1227-1229 (10th Cir. 2000); Merchants Fast Motor Lines Co., 103 LA 396, 398-400 (B. M. Shieber 1994). 


That the Arbitrator has discretion to modify the penalty of discharge in cases involving sexual harassment when he/she finds that it is not for just cause was confirmed by Chief Judge Wilkinson of the United States Court of Appeals in the Westvaco Corporation case. In that case Chief Judge Wilkinson said: 


“While it is certainly true that there is a public policy against sexual harassment ... There is no public policy that every harasser must be fired. Instead, a company must ‘exercise [ ] reasonable care to prevent and correct promptly any sexually harassing behavior.’ Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998); see also EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. Section 1604.11(d) (1998) (requiring employers to take ‘immediate and appropriate corrective action’). Nowhere in this litany of prevention and correction is there the suggestion that every employee who makes a mistake must automatically lose his or her job. And because misconduct often differs in degree, there is no universal punishment that fits every case. We therefore agree with those circuits that have concluded the general public policy against sexual harassment is not sufficient to supplant labor arbitration of employee disciplinary sanctions. [citing cases] In this case, Westvaco agreed to let an arbitrator review its decisions to discharge. The arbitrator found that a nine-month suspension without pay—and not discharge—was the appropriate sanction. We cannot say that the imposition of such strict punishment prohibits an employer from exercising reasonable care to promptly correct harassing behavior.’ See Westvaco Corp. v. United Paperworkers International Union, 171 F.3d. 971, 977 (4th Cir. 1999).”


In the instant case the Arbitrator finds that mitigating circumstances make the penalty of discharge one that is not for just cause. Grievant’s misconduct consisted of three gross and vulgar statements made to an employee with whom he had a joking relationship over a period of two years, and who once told him he “could lick the bowl” after she threw a bowl in the trash. Grievant did not touch W__ or any other of the female employees in any way, much less an inappropriate way. Compare Alumnitech, Inc., 114 LA 1584 (F. E. Kindig 2000) (discharge sustained when male employee grabbed female employee’s crotch and tried to kiss her); Dominick’s Finer Foods, Inc., 101 LA 982 (D. M. Winnograd 1993) (discharge sustained of male employee who fondled breasts and genital area of female employee twice). Nor did Grievant make abusive and insulting comments to W__ or any other female employee. Compare Torres v. Pisano, 116 F.3d 625, 632 (2nd Cir. 2005) (supervisor called employee a “dumb cunt” and suggested that she was in the habit of performing oral sex for money). 


Moreover, Grievant is a very good employee who was never rated less than “Fully Competent” and regularly improved his Performance Evaluation since beginning work for the City. In Grievant’s latest Performance Evaluation, dated September 30, 2004, just two months before his discharge, he was singled out for praise for his work during a critical period in the Division’s operations.  


“During this evaluation period, R__ has assisted with BDI Adjustments, customer correspondence, and return mail. He also continues to cover Dispatch daily. On September 10, 2004, we experienced a disturbance with our phone system. All incoming calls had to be routed to one phone. R__ was assigned to this phone. He answered all of the calls and acted as a receptionist, transferring calls to different reps. R__ handled approximately 700 calls on this day. He was professional and courteous on every call and he never complained. R__ is always receptive when asked to assist a co-worker or take on a new job assignment. I greatly appreciate his willingness to help out when needed.” 


In that September 30, 2004 evaluation Grievant was rated “Commendable”, which is defined as “Exceeds full requirements of the job” and is just one rating below the highest possible rating of “Superior”. The Division Head testified that Grievant was a “very good employee.”  


Grievant’s verbal statements in this case are similar to the statements made by the defendants in Baskerville v. Culligan International Co., 50 F.3d 428, 430-431 (7th Cir. 1995); and Clark v. United Parcel Service, Inc., 95 FEP Cases (BNA) 513, 519 (6th Cir. 2005). In both, the Courts held that the defendants’ statements did not support a finding of sexual harassment that created a hostile or abusive work environment. And see R. F. Gregory, Unwelcome and Unlawful—Sexual Harassment in the American Workplace, pp. 49-53 (Cornell U. P. 2004). 


The statements in Grievant’s Personnel Evaluations and the favorable comments of female co-workers about Grievant indicate that progressive discipline less than discharge will result in correcting Grievant’s behavior and that as Grievant testified, he has learned his lesson and will avoid making vulgar comments with sexual content in the future. The Arbitrator believes that Grievant knows that he is on thin ice and that any future violation will result in his discharge. 


While Grievant’s verbal comments were not severe or pervasive sexual harassment, sufficient to provide just cause for discharge, they do require that a severe penalty be imposed upon Grievant, especially since Grievant has been counseled and disciplined for sexual harassment in the past. Grievant’s awareness of the sexual harassment policy and his disregard of it warrant a severe disciplinary penalty. The Arbitrator will therefore order the reinstatement of Grievant without back pay, reducing the discharge to a disciplinary suspension of more than eight months, to July 31, 2005. Grievant’s personnel records will be modified to show that Grievant was suspended for the period that he was off work for violation of PSB 00-1. This long suspension will bring home to Grievant and to other employees that the City’s policy against sexual harassment is and will be strictly enforced. 




Grievant’s discharge was not for just cause. 


Grievant shall be reinstated to his job on August 1, 2005. A disciplinary suspension without pay but with full seniority and all other benefits shall be served by Grievant and entered on his record for the period beginning November 30, 2004 and ending on the date that Grievant returns to work in compliance with this Award.


* Selected by parties through procedures of the Federal Mediation and Conciliation Service.