AFSCME Local 2406
121 LA (BNA) 1048
FMCS Case No. 05/01502
Benjamin M. Shieber, Arbitrator *
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?
The City and the
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
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
“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.”
“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....”
When the Parties were unable to resolve the dispute in the grievance procedure. This arbitration followed.
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:
Savings Bank v. Vinson, 477
Before turning to the merits of the case, the Arbitrator
must deal with the
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
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.”
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
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
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
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
“During this evaluation
period, R__ has assisted with BDI Adjustments, customer correspondence, and
return mail. He also continues to cover Dispatch daily. On
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
Grievant’s discharge was not for just cause.
Grievant shall be reinstated to his job on
* Selected by parties through procedures of the Federal Mediation and Conciliation Service.