Académique Documents
Professionnel Documents
Culture Documents
and
March 4, 2003
Michele ha[s] sexual needs that need to be taken care of, and Earl [a
coworker and Union vice president] [i]s supposed to take care of it.
TR @ 44.
Thus, the issue is not so much whether Grievant has been a victim of a
agreement (JX 1, “CBA”), but what the remedy should be, based upon the
Redstone Arsenal. She began her career with the Agency 32 years ago as a
secretary, GS-3, and worked her way up the promotion ladder to GS-11.
Following the third step of her grievance, she was promoted from GS-11 to
2
On March 25, 1999, Grievant filed her first step grievance (JX 2 @
memorandum dated May 10, 1999 (JX 2 @ 15). Grievant completed her
second step grievance form on May 17, 1999 (JX 2 @ 4). A second step
meeting was held June 14, 1999 (JX 2 @ 8). The grievance was denied at
the second step by memorandum dated June 25, 1999 (JX 2 @ 5), from
Grievant’s third step letter was dated July 14, 1999 (JX 2 @ 3). The
October 18, 1999 (JX 2 @ 11), and denied in a letter dated April 5, 2000 (JX
Redstone Arsenal. The Union invoked arbitration via letter dated April 27,
3
Grievant sought only immediate promotion to GS-12. However, as the CBA
makes clear, the information on the second step form “is not necessarily all
inclusive.” Art 69, Sec 3.b(1). In Grievant’s third step letter, she sought to
make the promotion retroactive to 18 months prior to her initial filing, i.e.,
2000, over two years before the hearing in November of 2002, so that the
issue of her elevation to a GS-12 position is moot. At the hearing, the Union
Grievant confirmed the scope of the arbitration in her testimony (TR @ 72).
She seeks 18 months’ back pay, based upon the differential between GS-12
authority under the Back Pay Act, 5 USC § 5595 (AX 3), to award back pay
copies of United States v Testan, 424 US 392 (1976) [AX 1] and Wilson v
4
Discussion Of The Hearing Testimony
In general, the testimony at the hearing was not very specific as to the
dates were not provided for even those outrageous events described at the
Grievant and the Union must bear the brunt of that difficulty, because the
opportunities for promotion was not widely circulated but disseminated only
to favored candidates. She alleges that she would inquire about opportunities
fact that the requirements had changed. She charges favoritism in the
operations, PC, Unix, and mainframe. She claims that, while she had the
5
requisite experience, those selected did not. She specifically named Lynn
these individuals was called as a witness, and none of their work records was
introduced.
temporary positions, the precise dates when she applied for them, the
conclude that, but for a breach of the CBA or other actionable misconduct,
Grievant would have received one of the temporary promotions which she
determine the limits of his authority under the Back Pay Act. Although
during the grievance process, the Union repeatedly cited CBA Art 24, AR
690-300 Ch 335, and AMCOMR 690-28, neither party discussed them in its
brief.
The arbitrator does, however, note that much has transpired since
Testan, supra, most notably passage of the Civil Service Reform Act of
6
1978 and entry of the Agency and Union into their collective bargaining
Testan nor Wilson, supra involved collective bargaining. For a more recent
1991) @ 414-417.
Nor did Grievant and the Union make out a case of age discrimination
follows:
candidates over age 40 has any statistical significance, or that age was even
7
Neither can her allegation of sexual harassment be sustained. Henry
Earl Smith, the Union’s AMCOM vice president and the gentleman who the
because she saw him as a potential competitor for a GS-14 position to which
she aspired. TR @ 45. He went own to state that “[i]t had no sexual content
….” TR @ 46. Grievant testified that she filed an EEO complaint against the
Supervisor for the remark but did not want any action taken other than
Inc, 42 F3d 1037 (7th Cir 1994). Rather, the evidence presented fails to make
29 CFR § 1604.11(a), and the case law. Clark County School District v
Breeden, 532 US 268 (per curiam), reh den 533 US 912 (2001); Veterans
Administration, 115 LA 198, 02-1 ARB ¶ 3067, 166 LRR 168, 101 FLRR 2-
8
constituted sexual harassment1 of the quid-pro-quo type. It could be
mere offensive utterance”. Id. @ 271; citations omitted. Indeed, Mr. Smith
The fact that the Supervisor’s crass comment did not rise to the level
of sexual harassment does not mean that it did not otherwise violate the
1
Curiously, neither Grievant nor the Union cited Art 66 of the CBA on Sexual Harassment.
9
not.
Mitigating Factors
an award against the federal government, the arbitrator notes that the
Like most dates in this case save those appearing on documents, the date the
current CIO took over is uncertain, but it appears to have been about the
While the CIO denied her second step grievance, he did set new
concerns. She was promoted on his watch, and Grievant and her Supervisor
separated so that the Supervisor no longer is over her, although the reason
for the separation is unclear. The Agency hardly has been unresponsive to
factor heavily into the arbitrator’s conclusion about his authority in this
matter. The major issue not clearly addressed is the Supervisor’s demeaning
remark.
Also affecting the decision is the fact that Grievant did not present
10
she was not so severely affected as to require medical treatment or
compensation specifically for these incidents, and the Union’s brief requests
none. What Grievant suffered was insults to her dignity, which are largely
non-compensable.
Remedial Limitations
positions was not widely circulated before the CIO’s reforms. TR @ 122-
123. Grievant has been promoted as she requested and so arguably has
prevailed in that respect. What remains are the issues of back pay and a
Grievant sooner is insufficient to carry her heavy burden under the Back Pay
Act.
for the embarrassment and humiliation heaped upon her by her Supervisor,
he has searched in vain for authority to sustain such an award. As usual, the
CBA is of little help. He reviewed Elkouri & Elkouri, supra; Hill &
11
the Federal System”, Federal Civil Service Law and Procedures (BNA 2nd
award Grievant relief beyond that which she already has obtained from the
Agency.
Caveat
The result in this case should not be viewed as insulating the Agency
from liability for scabrous remarks made about Union employees. In a future
forearmed.
Award
_____________________________
E. Frank Cornelius, Arbitrator
12