Title: State of Oregon, Department of Transportation,
Driver and Motor Vehicle Services Branch and Oregon Public Employees Union
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between Oregon Public Employees Union
("Union"), and State of Oregon, Department of Transportation, Driver
and Motor Vehicle Services Branch (“State,” “Department” or
"Employer"), under which LUELLA E. NELSON was selected to serve as
Arbitrator and under which her Award shall be final and binding upon the
was held on March 17 and 18, 1997, in Portland, Oregon, and on April 9, 1997,
in Salem, Oregon. The parties had
the opportunity to examine and cross-examine witnesses, introduce relevant
exhibits, and argue the issues in dispute.
The parties submitted the matter on closing oral argument on May 7,
behalf of the Union:
Susan Dobrof, Esquire, Swanson, Thomas & Coon, 621 SW Morrison,
Suite 900, Portland, OR 97205
behalf of the State:
Josephine Hawthorne, Esquire, Assistant Attorney General, Labor and
Employment Section, Department of Justice, 1162 Court Street NE, Salem, OR
Whether there was just cause for the discharge of Jose Mora; and, if
not, what should be the remedy?
RELEVANT SECTIONS OF AGREEMENT
Material reflecting caution, consultation, warning, admonishment, and
reprimand shall be retained for a maximum of three (3) years.
Such material may however be removed after twenty-four (24) months,
provided there has been no recurrence of the problem or a related problem in
that time. Earlier removal will
be permitted when requested by an employee and if approved by the Appointing
20--DISCIPLINE AND DISCHARGE
The principles of progressive discipline shall be used when
appropriate. Discipline shall
include, but not be limited to: written reprimands; denial of an annual
performance pay increase; reduction in pay; demotion; suspension; and
dismissal. Discipline shall be
imposed only for just cause.
has worked for the Department since 1981.
He initially worked in the Highway Division, then transferred to the
Forest Grove Branch of the Motor Vehicles Division (the “Division”) in
1989. He transferred to the
Northeast Portland Branch of the Division (“Northeast”) in November 1994.
He was dismissed effective January 29, 1996.
The dismissal letter enumerated incidents prior to his arrival at
Northeast and other events involving notice of workplace expectations,
described later herein. The
dismissal itself was based on the following allegations:
On numerous occasions, you have engaged in inappropriate behavior while
at work that is disrespectful of female co-workers. You touched them on the face, shoulder, and back.
You continued your inappropriate behavior despite repeated statements
directed to you by your co-workers that your behavior was unwelcome.
In late August or early September, 1995 you asked a female co-worker
“Can I spank you?” On a
continuing basis over the last several months, you touched this employee’s
shoulder or back as you walked past her.
You continued to do this despite the employee’s repeated directives
to stop it. Additionally, you
reached out and patted her face with your hand after she told you to “knock
In October or November, 1995, you entered the break room where
the same female employee was standing at the sink. In the presence of of [sic] another employee, you approached
her with your back to hers, pushed up against her, and rotated your buttocks
against hers two times. When she
said “Jose, stop it”, you laughed and continued on your route to your
On November 28, 1995, you entered the break room where the same
female co-worker and others were present.
When one of them remarked that you were wearing jeans, you responded
by loosening your belt buckle, grabbing the zipper of the jeans, and saying
something like “Oh, baby, I know you want it” or “I know you want some,
Baby” and laughing. One of the
women present believed that you were going to take off your pants and turned
her head away.
On that same day, November 28, 1995, you told the same female
co-worker “You’re such a troublemaker” as she left the Office Leader’s
Approximately in mid-November, 1995, you pushed your chair up
against that of a female co-worker and ran your hands down her back.
Since that event she has told you to leave her alone, that you were
rude, and that she didn’t want to talk to you.
She has avoided you. You
continued to throw paper clips in her direction, even after she told you that
she didn’t like it.
Despite repeated directives from management over a sustained period of
time, you continue to engage in behavior that is disrespectful of others,
disruptive to the work environment, and totally inappropriate and
Your actions created a work environment that is detrimental to a number
of female co-workers. Your behavior embarrassed some female co-workers and
made them uncomfortable. Some
female co-workers have avoided you rather than subject themselves to your
actions. At least one female
co-worker repeatedly made it known that your behavior was unacceptable to
her. Your characterization of her
as a troublemaker reflects retaliation for complaining about your behavior
Your failure to respond to your co-worker’s repeated requests to stop
your unwelcome behavior demonstrates disrespect in the extreme.
The Department reasonably expects its employees to establish and
maintain cooperative working relationships with others.
You have failed to meet the standards and expectations of appropriate
behavior and conduct of any ODOT employee, regardless of position,
classification, or level.
Department cannot continue to employ individuals whose conduct is contrary to
its values and detrimental to the well-being of others.
You have been directed many times over the last four years of standards
and expectations of appropriate behavior in the workplace, and of your need to
meet these expectations and behave appropriately.
You have received professional counseling regarding cooperation in the
workplace. You have been told
clearly that you would be dismissed unless your conduct changed.
Despite all of this, you continue to exhibit disrespectful behavior
bulk of these allegations involved Grievant’s interactions with co-worker
Phyllis Whitmore. Whitmore was
hired on August 1, 1995, as a temporary employee, working at the reception
desk. She later became a limited
duration employee, and was out of the office for training between September 11
and October 2. By all accounts,
Whitmore and Grievant were friendly and joked with one another at the office.
On a few occasions, Grievant gave Whitmore a ride home from work;
Whitmore testified Grievant was always a “perfect gentleman” in those
talked to co-workers Marianne Vandervort and Jeanette Curry about various
incidents with Grievant. She testified Curry told her she did not have to tolerate
that behavior and suggested she talk to Office Leader Eveline McGuire.
Although she believes the incidents were blown out of proportion, she
wanted the troublesome behavior to stop.
INITIAL COMPLAINT AND INVESTIGATION
November 28, McGuire gave Whitmore a packet of insurance materials and other
documents. Whitmore had only
recently become a limited duration employee.
As Whitmore went through the documents in the break room, she came
across a pamphlet on sexual harassment. She
commented to McGuire, “We should give this to [Grievant].”
Whitmore testified McGuire asked her if there was something they should
talk about. Whitmore later met
with McGuire in the office and told her of events with Grievant.
testified she did not inquire immediately into the reason for Whitmore’s
comment, but simply returned to
her office, intending to inquire later. Curry
sought her out in the office a few minutes later and said Grievant had been
harassing Whitmore. According to
McGuire, Curry began describing an incident between Grievant and Whitmore.
When McGuire asked whether Curry had witnessed the incident, Curry said
she had not, but that Vandervort had. McGuire
talked to Vandervort, who described an incident in which Grievant rubbed his
buttocks against Whitmore. McGuire
then called Whitmore in. Whitmore
described the buttocks incident, and also an incident involving Grievant’s
jeans. McGuire testified she did
not ask other employees about the matter.
Instead, on November 29, she contacted her superiors and requested an
a December 4 memo, McGuire summarized the steps she had taken. The memo
briefly recounted the November 28 reports from Curry, Vandervort and Whitmore,
including one of an incident involving Grievant’s jeans, which allegedly had
occurred “That morning while [Whitmore] was on break.”
Officer Joyce MacWilliamson began an investigation on
November 30. MacWilliamson
interviewed the witnesses identified in McGuire’s memo regarding the
specific events. She also asked those witnesses whether anyone else had
witnessed the conduct, and interviewed anyone identified in that process.
She testified she was unaware employee Gayle Watts was present for any
incident, and Watts was not at work that day.
She did not recall asking shop steward Betty Latimer about specific
incidents, and could not recall whether she asked employee Jennifer Davis
about specific incidents. She did
not interview Susan Dooley, a temporary employee who had worked for a few
months in the “dealer center.”
November 30, after MacWilliamson had finished interviewing for the day,
Grievant sought out McGuire. He
asked what was going on, and said he was sure it involved im.
He also said he had heard it involved “harassment.”
On the advice of Senior Personnel Officer Victoria Masengale, McGuire
told Grievant there was a sexual harassment complaint involving him.
When Grievant asked who had complained, McGuire responded she could
not tell him or discuss incidents. She
also declined to answer whether the complaint was from someone at the counter
or someone in the dealer center. Grievant
left mid-day on December 1 on sick leave caused by “stress and mental
anguish,” saying he would also be off work on the following Monday and
He remained off work until December 7.
and Systems Manager Michael Ward met with Grievant and his shop steward on
December 6. Grievant was asked about specific incidents, but was not
given the names of the people allegedly involved.
That information was provided to the Union on March 1, 1996.
By then, the Union had interviewed all the complaining witnesses.
mid-December 1995, MacWilliamson asked other employees in Northeast about
the general work atmosphere and whether they had witnessed any
incidents of inappropriate comments or touching.
She did not inquire into specific incidents raised in her
investigation, except where an employee had been identified as a witness to an
incident. She testified she
wanted to know whether the office culture was one in which there was a lot of
off-color humor, touching, or sexually-oriented behavior.
She testified Latimer told her there was not a lot of touching, there
were no backrubs, and there were few jokes.
took up the investigation after MacWilliamson left town in December 1996 due
to a death in the family. She
re-interviewed Whitmore and McGuire, spoke to Davis by phone, and interviewed
Watts. She and MacWilliamson both had input on the discharge letter.
THE “CAN I SPANK YOU” INCIDENT
testified that once, while she was in the break room, Grievant asked if he
could spank her. She responded, “What?”
He started laughing. She
testified she took the comment as a joke, and joined him in laughter.
She had not heard Grievant joking with other employees about being a
bad boy or needing a spanking. MacWilliamson’s
November 30 interview notes indicate this event occurred three months earlier.
denied asking to spank anyone. He
testified he sometimes pulled minor pranks on Dooley.
In response, Dooley would joke that she was going to tell his mother he
was a bad boy and needed a spanking. He
initially testified that was the only reference to spanking he ever heard in
the workplace. He later testified
to an occasion when Dooley offered to massage Whitmore’s shoulders and moved
toward her. According to
Grievant, Whitmore responded, “If you touch me, I’m going to spank the
shit out of you.” He considered
this a joking comment.
testified Grievant and Dooley joked with one another frequently.
On one occasion, Grievant commented he had been a bad boy.
In response, Dooley asked if he needed a spanking.
Davis did not hear Grievant ask to spank anyone.
allegation that Grievant rubbed his buttocks against Whitmore involves the
break room. The break room is a
small rectangular room dominated by a large rectangular table.
The coffee pot, a counter with a sink, and refrigerator sit at one end
of the room. At the time, a set
of lockers and a television sat at the other end of the room, near the door; a
large couch sat along one wall, blocking any movement along that side of the
table. To get to the sink or
coffee pot, one had to pass along the remaining side of the table, then walk
between the refrigerator and the end of the table.
If two people wanted to pass simultaneously behind someone seated at
the long side of the table, physical contact would be unavoidable.
A single person could pass behind someone seated or standing along that
side without making physical contact.
testified that, shortly after she returned from training, she was in the break
room talking to Vandervort. She
was standing at the sink, rinsing out her cup, when she felt something rubbing
against her buttocks. She turned
her head and saw it was Grievant, rubbing his buttocks against hers.
She asked, “What the f--- are you doing?”
He responded by laughing. She
testified there was no logical place for him to be going at that end of the
room. Other than Vandervort, no
one else was present. She
believed the event occurred in early December 1995.
MacWilliamson’s November 30 interview notes include this allegation;
those notes indicate the event occurred while Whitmore was at the sink rinsing
out a cup.
testified Whitmore was at the end of the table, coming from the lockers.
Grievant came in, on his way to the lockers. According to Vandervort, Grievant turned his back to Whitmore
and pressed her into the table, leaning backward and bending her almost flat
on the table.
Whitmore told him, “Jose, stop it,” and appeared surprised.
He laughed and pulled away from her, rubbing his buttocks on hers as he
did so. He then continued to the
lockers. Vandervort placed this
incident toward the beginning of December.
She testified no one else was present.
A written statement Vandervort prepared in mid-December recounts the
same incident, as do MacWilliamson’s November 30 interview notes.
Both indicate the event occurred while Grievant was walking to his
testified she was in the break room once with Whitmore, Vandervort, Curry, and
Grievant. Grievant was rinsing a
cup at the sink, and Whitmore was bending down to get something from the
refrigerator. When Grievant
finished at the sink, he brushed by Whitmore back to back, almost certainly
brushing buttocks briefly. According
to Davis, there was nothing inappropriate about the contact.
MacWilliamson interviewed Davis on December 7 and again by telephone on
December 11. The event appears
only in her December 11 notes. Those
notes indicate Davis later informed Grievant that Whitmore had thought he
touched her, and that Grievant denied it but said he was sorry if she thought
testified she was in the break room once when Grievant squeezed by Whitmore to
get to the coffee pot. At the
time, Whitmore was leaning to get something from the refrigerator.
Grievant did not linger, and no words were spoken.
testified he never intentionally pressed his buttocks against any employee,
including Whitmore. He acknowledged it would be inappropriate to do so.
He denied ever pushing Whitmore against a table.
He has passed Whitmore in the break room many times.
He had no recollection of any incident in which Whitmore was leaning
into the refrigerator. In late
September or early October, he heard rumors that he had been touching other
employees’ buttocks. At a
staff meeting, he mentioned the rumor and asked that anyone who had something
to say go ahead and say it, and otherwise to stop talking about him.
employees testified to the jeans incident, although their recollection of the
date, day of the week, and time of day differed. Whitmore, Reeves, and Latimer
believed it was in early December, at the start of a shift on a Wednesday.
Grievant and Watts believed it was at a morning break, and Watts
further believed it occurred on a Friday.
The incident is reflected in MacWilliamson’s November 30 notes from
interviewing Whitmore and Reeves and, as noted above, in McGuire’s memo
recounting the genesis of the investigation.
November 22 and 29, 1995, were both Wednesdays.
all accounts, on one occasion, Grievant came to work wearing jeans and a
sweater instead of his usual slacks, shirt and tie.
Whitmore testified that, as employees were getting ready for a routine
Wednesday morning meeting at the start of the shift, she commented on his
casual attire. In response, he raised his hand, grabbed his belt buckle, and
said something to the effect of “Do you want it?
I know you want it.” She
testified he called her “Baby” in this incident.
Whitmore looked at Reeves. Reeves
commented he must have other pants on underneath, and asked if he grabbed for
his zipper. Whitmore responded he
had only grabbed for his belt.
testified the event began when employees commented Grievant looked good in
“civvy clothes.” She did not hear all of Grievant’s response, because she
was talking to Whitmore and Grievant was mumbling.
She heard the word “Baby” and some reference to “it.”
Whitmore said, “My goodness, he’s taking off his pants.”
Reeves commented she had to be kidding, then looked and saw Grievant
had pulled up the front of his sweater and was unbuckling his belt.
She said Grievant must have other pants on underneath.
Whitmore responded he did not. Reeves
commented, “I don’t need this, I’m getting out of here.”
By this time, Grievant had fully unzipped his pants and was starting to
push them downward. Reeves
testified she went directly to McGuire and told her she would not put up with
that behavior. A written statement prepared by Reeves at the end of December
recounts most of this incident, but does not mention seeing Grievant’s pants
unzipped or seeing him starting to push them downward.
MacWilliamson’s November 30 interview notes indicate Reeves reported
Grievant began unbuckling his belt buckle and started to unzip his pants.
testified the jeans incident occurred in the morning before work, as they were
getting ready for a Wednesday morning meeting.
Whitmore made a series of comments about Grievant’s jeans, in a
teasing vein. He finally put his hands on his belt and asked, “Do you
want them?” Latimer testified
Whitmore responded, “No, Jose, I don’t want your jeans.” She testified Grievant did not ask if Whitmore “wanted
some” or suggest she “wanted it.” He
did not put his hands on his zipper or unzip his pants.
testified the jeans incident occurred on a Friday, an agreed-upon “casual
day.” According to her,
Whitmore made several comments throughout the morning about Grievant’s
jeans. At the morning break,
Whitmore commented again that she liked his jeans.
In response, he asked if she wanted them, and touched the top of his
jeans; he did not touch his belt buckle or his zipper.
Reeves said, “Oh, I don’t need this,” and left.
According to Watts, Grievant was more exasperated than amused, and
everyone was tired of hearing about the jeans.
She did not hear Grievant suggest Whitmore “wanted some” or
testified the incident occurred a few days after a Wednesday meeting in which
the team had agreed to relax the dress code in the office.
His recollection was that Whitmore expressed surprise at seeing him in
jeans and commented he looked good in them; he, in turn, reminded her of the
team’s decision. He testified
Whitmore continued to comment on his jeans all day.
He testified Whitmore was in the break room when he came in to go to
the lockers. She commented on his
jeans again, and he asked whether she wanted them.
He denied unbuckling his belt, unzipping his pants, or suggesting she
“wanted some” or “wanted it.” He
testified Whitmore continued to tease him about his jeans after this exchange.
He acknowledged it would be inappropriate to unzip his pants or to
suggest that a co-worker “wanted some” while touching his pants.
testified she encountered Grievant as she left McGuire’s office, after the
meeting that led to the investigation in this case.
She testified Grievant asked, “Are you making trouble for me?”
She reported that comment to MacWilliamson when she was interviewed on
testified he saw Whitmore near McGuire’s office, and may have called her a
troublemaker that day. However,
he testified the term was a common joke in the office.
According to Grievant, there had been an emphasis on having the team
resolve problems themselves rather than go to McGuire.
He testified several of his co-workers, including Whitmore, began
jokingly accusing one another of being a “troublemaker” whenever they
talked to McGuire or her assistant.
AND TOUCHING INCIDENTS
testified Grievant would rub against her as he passed by or massage her
shoulders. He would also stand
very close behind her as she worked, so that when she stepped back she would
make contact with him before she realized he was there.
She testified the issue was not whether the touch was friendly; it was
that he had no reason to touch her. She
testified she did not like being touched, but said nothing to him because she
was new. Whitmore testified Grievant also massaged Reeves’ arm and
shoulder. She did not see other
employees massaging one another.
testified she witnessed part of one exchange between Grievant and Whitmore.
She recalled walking past the counter as Whitmore was telling Grievant
her concerns about his customer service.
As Whitmore talked, Grievant put his hand on her cheek and caressed it,
smiling at her. Whitmore told him
to stop it. He removed his hand
from her cheek, and she continued talking.
Whitmore testified to this incident as well, but testified she did not
respond to the gesture. Reference
to the event appears in MacWilliamson’s November 30 interview notes of
Whitmore and McGuire.
testified Grievant often came into the dealer center to get coffee.
As he walked behind her, he would run his hands across her back or
press against her. She testified
he engaged in the same conduct in the break room.
She testified that, although space was tight, more portly employees
were able to pass behind her without touching her.
She testified she initially ignored the contacts; however, she
eventually began telling Grievant to quit touching her.
When she did so, he would laugh, in a manner she characterized as
almost a snicker. She testified
the touching stopped only when she began avoiding Grievant by leaving the room
or refusing to enter it if he was there.
testified that, at times when he touched her, Grievant said something half in
English and half in Spanish. When
she asked him to repeat what he had just said, he would snicker and refuse to
repeat it. Reeves testified she did not report the rubbing incidents to
anyone at first, and she was unaware others were experiencing similar events
until Whitmore mentioned it during a cigarette break.
November 30 interview notes indicate Reeves complained Grievant had “crossed
the line” 2-3 weeks earlier, after Reeves became a limited duration
employee. The notes indicate
Grievant pushed his chair against Reeves and ran his hands down her back.
The notes further indicate Reeves told Grievant to leave her alone and
began avoiding him, and that he had done nothing to her since.
provided a written statement on December 27.
In it, she commented there was room in the lunch room to walk around
chairs. She complained there was
“no need” for Grievant to “pretend he had to squeeze by + rub up against
the back of chairs + rub our backs or put his hands over our shoulders
[sic].” She also complained he
accompanied this conduct with “some kind of remark that you could not understand
[sic] + left you with the impression he was laughing at you not with you like
he had a secret.”
Paul Rich testified he and Grievant might greet one another with a pat on the
shoulder or a “high five.” He
did not see Grievant touch Whitmore, nor did he hear any complaints about
inappropriate touching. Watts
also recalled Grievant patting her shoulder in greeting, doing the same with
Rich, and giving Rich a “high five.”
She testified being patted on the shoulder did not bother her.
denied ever running his hands down anyone’s back.
He acknowledged he would squeeze or pat a shoulder or arm as a friendly
gesture. In particular, he identified Rich, Dooley, Watts, Davis,
Latimer, and some of the St. Vincent’s temporaries in the dealer center as
people who used physical gestures to greet one another.
He denied touching or patting anyone’s cheek, and particularly denied
doing so to Whitmore. He denied
ever touching or pressing against Reeves.
He testified Reeves did not talk to him about any discomfort she felt
about his conduct toward her. He
testified no one ever asked him to stop touching them or others, or suggested
the way he was touching them was inappropriate.
In particular, he testified Whitmore never asked him to stop touching
her or told him to “knock it off.”
testified he never spoke to anyone at work half in Spanish and half in
English. He testified he did
sometimes speak Spanish to Latimer and read Spanish newspapers with her,
because she was taking Spanish. He
testified Reeves never asked him to repeat what he said.
Other employees sometimes asked him to repeat things they did not
understand, and he always complied.
testified the only person he ever saw massage anyone was Dooley.
Davis testified Dooley once offered to give her a shoulder massage. When Davis declined the offer, Dooley desisted.
Reeves did not recall seeing Dooley massage others.
She did recall Dooley engaging in other attention-getting maneuvers and
spending a lot of time away from her work.
She testified giving massages would be consistent with Dooley’s
to Whitmore, Grievant began tossing paperclips at her and making comments to
her shortly after her arrival. She
testified she did not respond initially because she was new and did not want
to make waves. As the behavior continued, she told Grievant he was going to
have to stop making comments or she would have to file a sexual harassment
suit against him. Nonetheless, he
continued in the same vein.
testified Grievant would come into the dealer center on his break and throw
such items as paper clips, wads of paper, and rubber bands at them.
When she told him to stop, he would laugh and continue the behavior. She began telling him to leave the room after getting his
coffee, and finally told him he could no longer come into the dealer center.
testified she and Grievant threw paper clips at one another, and that Grievant
also threw paper clips at Gayle Watts. She
characterized it as kidding around and a way to get attention.
She did not tell Grievant to stop throwing paper clips, nor did she
hear other employees do so.
testified he and Whitmore commonly greeted one another with the term
“Baby” as a joke. Whitmore
testified Grievant used that term toward her, but denied calling him
“Baby.” Masengale’s notes
of an interview with Whitmore indicated Grievant would say, “good morning
baby,” and Whitmore would reply, “hey baby.”
Whitmore’s written statement, prepared December 21, 1995, notes:
I told the genlteman [sic] from the Union, [Grievant] and I would say
“flirtatious” things to each other, but I feel the touching was a bit too
testified that, on one occasion, she scheduled Latimer to work next to
Grievant. According to McGuire,
Latimer asked not to be scheduled next to him again because it made her feel
uncomfortable. She did not say
why this was so, and McGuire did not inquire.
Latimer testified that, within Grievant’s last two or three months,
she commented to McGuire that Grievant sometimes talked in a low voice, and
she thought it was kind of funny he did that.
She denied saying she was uncomfortable working next to him.
May 29, 1993, Grievant received a verbal warning for “inappropriate actions
towards a co-worker.” No grievance was filed over this warning.
Department suspended Grievant for one week effective July 20, 1993.
The specific charges underlying this action involved two encounters
with a fellow employee named Ray. In
one, Grievant was charged with engaging in persistent, negative questioning
that made Ray feel uncomfortable, and leaving the counter to stand closer to
him in an intimidating manner. In
the other, Grievant was charged with offering change to Ray, then pushing
Ray’s hand away so he could not take it; following Ray to the counter and
repeatedly turning his stool away from a customer; threatening physical harm
to Ray; and physically restraining Ray from using the telephone. In the latter incident, Grievant was also charged with saying
he “didn’t give a damn about the customers” and with blocking a
co-worker who attempted to intervene.
addition to the specific charges, the suspension letter summarized prior
counseling regarding various forms of unacceptable behavior.
The letter summarized those behaviors as follows:
brushing up against co-workers; aggressive, unwelcomed touching of co-workers;
talking to co-workers in an intimidating, hostile, and offensive manner;
blocking the way so that co-workers must walk around you; threatening to slap
your supervisor; and refusing to help co-workers when asked.
suspension letter admonished Grievant to refrain from “rude, discourteous,
intimidating, or inappropriate touching or comments toward customers,
co-workers, or supervisors.” It
was characterized as a “final warning” and concluded, “If you do not
change your inappropriate behaviors you will be terminated.”
No grievance was filed over this suspension.
was suspended for one month without pay, effective February 25, 1994, based on
three charges. The first was that he had been rude and made comments
insulting to the intelligence of a title clerk from a car dealer.
The second was that he destroyed the front of a cabinet by ripping the
cross-board off a locked drawer instead of using a spare key to open the
drawer. The third was that he
moved too quickly through the numbering sequence for waiting customers;
implied the written test would be given, then told the customer it was too
late to take the test (without advising the customer that she could take the
test as long as she was finished by 5:00), and asked inappropriate questions
about studying for the test.
suspension letter admonished Grievant regarding treating others with courtesy
and respect, as well as damaging state property.
The letter was characterized as a final warning, and again warned that
Grievant would be terminated if he did not change his “inappropriate
1994 suspension initially was processed as a pre-dismissal.
As part of a negotiated non-precedential settlement, it was reduced to
a one-month suspension, with the remainder of his time off work to be
considered leave without pay. The
settlement also included a transfer to Northeast starting in November 1994.
Grievant also agreed to complete five counseling sessions focused on
improving his communication and cooperation skills in the workplace.
He completed those sessions by March 15, 1995.
NOTICE OF STANDARDS OF BEHAVIOR
WITHIN THREE YEARS BEFORE GRIEVANT’S DISCHARGE
February 1995, Northeast held “safety net” training, intended to encourage
cooperative teamwork within the workplace.
As part of that training, employees jointly developed written
expectations. One of the written
expectations was to “maintain professional relationships at work, regardless
of personal differences.” A new
position description for Grievant, developed around that time, also included
an expectation of “participative decision making and cooperative
interactions among employees.”
December 5, 1994, Grievant signed a copy of the “Rules of Conduct.”
Those rules included admonitions to “Be courteous, pleasant and
conscientious in the performance of your duties;” “Work in harmony with
fellow employees;” and “Conduct
yourself, on and off duty, in a manner that will reflect favorably on yourself
and the Motor Vehicle Division.”
May 1993 evaluation included cryptic comments about Grievant’s “negative
encounters” with four of his fellow employees.
It commented there had been no inter-staff incidents in the office that
did not involve Grievant. It
concluded that, “As long as the negative encounters with co-workers do not
occur, [Grievant] is a helpful addition to this office.”
MORE THAN THREE YEARS BEFORE GRIEVANT’S DISCHARGE
November 12, 1992, Dan Dlugonski, who was then Manager of the Forest Hills
office, co-authored with Region Manager Jay Bosse a memo to Grievant regarding
“Expectations.” The memo
referred to “recent incidents involving interpersonal relationships between
you and other members of the Forest Grove office staff.”
It reiterated the following expectations from the “Rules of
all employees will work in harmony with their fellow employees.
This means that each employee will treat all other employees, including
subordinates, peers, and superiors, with respect at all times.
Treating other employees in a manner that intimidates, belittles,
embarrasses, or in any other way causes them to be uncomfortable, will not be
memo warned of discipline “up to and including dismissal” for breach of
its expectations. Dlugonski
testified this memo followed employee expressions of concern involving
physical blocking, some physical contact, and some perceived lack of respect.
Dlugonski testified one incident involved Grievant tossing paperclips
at a co-worker. When Dlugonski
asked Grievant about the paperclips, Grievant said he intended to be humorous. Dlugonski informed him the co-worker found it irritating, and
Grievant agreed to stop.
June 1992 evaluation did not mention concerns over inter-personal relations.
The evaluation commented approvingly on Grievant’s help with
Hispanic customers and his community activities.
It noted his
challenge is in helping staff teamwork and morale.
Since we are a small staff usually operating under significant customer
demand, teamwork and a good sense of humor are important to working in this
office. [Grievant’s] awareness of helping more than the customer in front of
him has increased over the past three months.
August 9, 1991, Poole, who was then Manager of the Forest Hills office,
notified Grievant of a sexual harassment complaint from a female customer.
The customer felt Grievant asked probing personal questions unrelated
to the purpose of her visit and made lingering eye contact.
Poole testified he could not sustain the claims, so he focused his
efforts on explaining the nature and potential consequences of the complaint.
In a meeting with Grievant and a follow-up memo, he asked Grievant to
“evaluate your conduct toward all customers, especially female, to ensure
that your behavior is professional and above reproach.”
testified another of the customer’s concerns was Grievant’s use of a soft
voice. Co-workers who spoke to
Grievant on the phone also mentioned to Poole that Grievant spoke very softly,
so they had trouble understanding him. Poole
testified he discussed with Grievant whether he should speak more loudly.
February 27, 1991, field employees, including Grievant, received a memo
discussing recent incidents in which other employees received severe
discipline. Attached to the memo
were the Department’s Rules of Conduct and the Code of Ethics for Oregon
Driver Examiners. The memo
included the following admonishments regarding workplace behavior:
or sexist remarks are offensive and out of place in the work place, if not out
of place in the world. As our
customers become more culturally diverse and we increase our multi-cultural
work force, the sensitivity to our workplace atmosphere becomes even more
important. Accordingly, I assure you that racist and sexist remarks will
result in discipline.
testified he heard no complaints from female co-workers in Forest Grove.
He testified he received no counseling regarding inappropriate touching
or comments to females in Forest Grove.
RUMORS ABOUT GRIEVANT
testified it was common knowledge Grievant had been transferred from Forest
Grove as a result of a settlement. She
testified it struck her as odd that someone with employment problems would be
transferred into an office with personnel problems, such as Northeast had.
She had heard rumors about Grievant’s problems at Forest Grove.
She had heard he hit or threatened to hit a manager, and that he threw
paper on the floor for others to pick up.
testified she had heard rumors about Grievant before his arrival at Northeast.
She had heard he was charged with improper conduct at Forest Grove, but
got no specifics. Davis testified
McGuire told her Grievant had gotten in trouble in Forest Grove for throwing
paper and throwing things on the floor, and that a woman had left her job.
The next day, McGuire told her she had not meant to tell her that, and
had not meant to imply the woman left her job because of Grievant.
testified Curry and another employee (now deceased) told her Grievant had been
fired in Forest Grove for being a troublemaker.
She quoted Curry as saying “We don’t need his kind here.”
testified the prior Office Leader, Maggie Robles, told him Grievant was coming
from Forest Grove, and that he had some personnel problems there.
all accounts, Grievant was a productive worker.
McGuire testified he had one of the highest document counts in the
office (referring to the number of transactions processed).
He participated actively in the team meetings, offering suggestions and
comments. He received extra pay
for using his bilingual skills to assist with Spanish-language concerns.
the investigation, four employees (Rich, Watts, Davis, and Latimer) signed a
petition on Grievant’s behalf. The
petition praised Grievant’s technical skills and his interactions with
customers and co-workers. Watts
also wrote a letter to Masengale on Grievant’s behalf, praising his
helpfulness and competence.
initially received monthly evaluations after moving to the Division in 1989.
Each of the monthly evaluations in evidence found he met or exceeded
expectations regarding “Maintains harmonious working relationships with
other employees” and “Maintains courteous and pleasant attitude in dealing
with the public.” In an
evaluation dated April 7, 1989, Supervisor Harley Poole wrote Grievant “has
an excellent personality for this job which helps him to work well with fellow
employees and to serve the public.” A
June 1991 merit rating report commented approvingly on Grievant’s work in
helping both the police and the Division improve relationships with the
Hispanic community, and described him as “an exceptional representative of
the State and DMV.” Concerns over inter-personal relations began to be raised
POSITION OF THE STATE
is a classic progressive discipline case.
With the kind of deficiency involved here, it is not unusual for an
employee to work without problems at first.
As Grievant established relationships and got to know other people in
Forest Grove, problems began to arise. The
Department dealt with those problems, initially with counseling and entries in
his performance evaluations. These
early documents establish that the issues involved here were already beginning
to develop. Grievant received
further notice from the 1992 memo of expectations that such behaviors would
not be tolerated. The May 1993
evaluation repeated the concern over the impact on office morale from
Grievant’s behavior. This is a
traditional mechanism to help Grievant understand he was not working well with
had another incident very close to the time he received the May 1993
evaluation. He had a major
conflict in early July 1993, and engaged in behaviors he had been specifically
warned to avoid. As a result, in
July 1993, he had received a one-week suspension, which is very serious
discipline. The suspension notice
gave very specific notice of the kinds of behaviors that the Department found
troublesome. Those behaviors
included brushing, unwelcome touching, talking in an offensive manner,
blocking an employee’s way, threatening to slap a supervisor, and refusing
to help co-workers. This was
further notice of expectations and a warning of possible termination if the
behavior continued. Since he did
not grieve the discipline, it must be accepted as valid.
Some of the same issues
came up again in this case.
November 1993, Grievant again showed serious problems in his interactions at
work. This time, the focus was
primarily on his interactions with customers rather than co-workers.
The negotiated settlement from the initial dismissal demonstrated the
Department’s willingness to give Grievant another chance to conform his
behavior to expectations. The
facts underlying this negotiated settlement cannot be disputed.
Grievant received a final warning, further notice of expectations, and
a threat of termination if he did not meet those expectations.
November 1993 incident took Grievant out of the workplace for a year, so there
were no incidents in that time. To
give him another chance, the Department was willing to send Grievant to
counseling and transfer him to another office.
Upon his arrival at Northeast, he received notice of the team-oriented
environment and the need to establish productive relationships at work.
He worked without incident for eight or nine months. This period is not surprising in view of the counseling he
had received and the nature of the behaviors.
one eliminates the year Grievant was off work due to the suspension, there is
a smooth progression from his second final warning to the discharge.
Although no complaint was made until November 1995, the events that led
to his discharge began several months before his discharge, in September or
of the principal complainants began work in the summer of 1995 as temporary
employees. It is not surprising
some other employees were unaware of the incidents, or that they disagree on
some details. Employees had other
things to do. Whitmore and Reeves
were the least involved in the office. Both
had just started, and Reeves worked in a separate part of the office doing
separate work. No evidence exists that they had any reason to collude to
make up allegations against Grievant, or that they did so.
did not complaint to McGuire; instead, she made a passing comment.
Her reports of the incidents have been consistent throughout this case.
She admittedly liked Grievant and permitted him to give her rides home.
If she was going to concoct false allegations of improper conduct, she
would have done so about those rides. She
has consistently said she did not want to get Grievant in trouble. That is typical where an employee reports misconduct and
management does what it must do. It
is typical for witnesses to be uncomfortable in testifying. Whitmore’s discomfort is no indicator of untruthfulness.
incidents reported by Whitmore were consistent with Grievant’s problems in
Forest Grove. Most of the
incidents had to do with touching. Although grabbing or slapping a hand is a different kind of
touching, the message Grievant received was that he should keep his hands off
co-workers. It does not matter
whether the touch is overly familiar, as in this case, or hostile, as in
Forest Grove. Engaging in
unwelcome touching is a form of domination.
The fact that some employees might find it acceptable to have Grievant
touch their arm or shoulder did not mean other employees would find it
acceptable to have him rub their shoulder or back.
That is not the same kind of touch.
The throwing of paperclips and other items was another form of
domination. Although some people
might not mind having such items thrown, Reeves had asked Grievant to stop. Continuing in those circumstances was not a friendly
is undisputed that Grievant made some comment about his jeans and some
gesture. Whitmore and Grievant
were the most involved in that conversation; they were the ones paying
attention. Other employees were
peripheral to the event. The
people most likely to recall what was said were the people involved in the
conversation, not others who were standing around and not paying attention.
Reeves has consistently described what she saw, which motivated her to
leave the room. The differences
in recollection are typical of a spontaneous event such as this.
It is a minor point whether Grievant used the term “Baby” in this
exchange. Whitmore reported the
comment at the outset, closer in time to the actual event.
evidence supports the claim that Grievant called Whitmore a “troublemaker”
in response to her discussion with Whitmore.
Grievant had reason to know the interview concerned him.
McGuire had talked to Curry, Vandervort, and Whitmore.
He left the workplace shortly thereafter due to “stress” from the
investigation. In the context
of a complaint to higher authority, his use of the term “troublemaker” has
more significance than it would have as an ordinary workplace comment.
witnesses corroborated portions of the reports from Whitmore and Reeves.
McGuire saw the cheek patting incident.
Vandervort corroborated the buttocks-rubbing incident, and Davis saw
something similar. This was not
an inadvertent contact. This was
consistent with Reeves’ report that Grievant brushed her in circumstances
where other employees could pass without touching.
Grievant used these events as an opportunity to make physical contact.
Employees did not report having had similar contacts with others.
The Arbitrator should discredit the claim that Dooley was giving
backrubs. When MacWilliamson
interviewed employees, none of them reported such conduct.
behavior is repeated, it is difficult to identify the dates of specific
events. Employees tend not to
know what to make of the behavior initially, then eventually fit it into a
pattern; what they remember is the pattern. It is also common not to bring matters to management’s
attention until a pattern has been identified.
Until then, employees do not recognize the pattern, or consider other
explanations for the behavior.
was not a member of management and had no business investigating the case.
If she had investigated the case, the Union would have had grounds for
complaint. It is irrelevant
whether she disliked Grievant or did not want to work with him.
She gathered enough information to report to management, which
conducted the investigation. MacWilliamson
talked to appropriate witnesses. Masengale
later followed up with more interviews, including witnesses who had not been
available for the first interviews. The
State did not rely on Curry’s hearsay comments; it talked to the identified
recipients of the behavior. By
the time of the investigation, Dooley was gone.
An interview of her would not have changed the result.
received the substance of the charges against him in his December 6 interview.
He denied everything except the paperclip throwing, then claimed to
have apologized for his behavior. There
was only one time when Grievant allegedly wore jeans to work and grabbed at
his belt buckle. Grievant had
enough information to know what event that was.
He could have done more than denied this incident; he could have
offered information about the only incident he was aware of.
December 6 interview of Grievant was a delicate matter.
The Department had to avoid prompting retaliation at an early stage
when the investigation might not result in any formal charges against him.
Withholding the identity of the complainants was done as much to
protect Grievant from himself as to protect the complainants. Employees’ names and written statements were provided to
the Union later in the process. The
Union knew Whitmore was the primary complainant, and contacted her early in
Union confuses the issue of Grievant’s accent and soft tone of voice.
The alleged difficulty in understanding what Grievant says does not get
him off the hook. Latimer’s
request not to work next to Grievant was a legitimate matter to raise in this
object of Grievant’s misconduct were temporary employees, who could be fired
for any reason. Rather than
direct his behavior toward permanent employees, he selected the most
vulnerable employees. The only
other employee identified as engaging in any similar behavior was another
temporary employee, Dooley. It
was inappropriate for Grievant to model his conduct on her.
He should have conformed his behavior to the expectations laid out for
him in prior discipline. He was placed on notice that he should keep his hands off
others because they did not like such contact--in this context or that in
Department gave Grievant notice of its expectations, progressive discipline,
and one more chance to work without these kinds of concerns and interactions.
Nonetheless, these behaviors continued.
The Department had good reason to believe the complaints it received.
But for the past behavior and progressive discipline, discharge might
not have occurred. However, just
cause existed for discharge.
was not a good employee. He was
an employee who had been terminated, then brought back to work with a final
warning. It was unnecessary to give him notice not to engage in each
new type of misbehavior before he could be disciplined.
It was unnecessary to wait until he had offended each employee in the
workplace before taking action. Grievant
had offended two employees; one would have been enough.
early disciplinary notices were properly retained in the file, because they
were referenced in later discipline. Had
there been no further disciplinary incidents after 1991, they would have been
removed. They were referred to repeatedly as Grievant engaged in more
behaviors. It was unnecessary for
the Department to tell Grievant again not to engage in such behaviors.
It had given him notice in prior discipline and tried to work with him.
POSITION OF THE UNION
State did not meet its burden of demonstrating that the charged events
actually happened. It also did
not conduct a proper investigation. Grievant
was not given specific information about the accusations, and not all the
possible witnesses were interviewed. Moreover,
the State has not shown that it administered progressive discipline.
is undisputed that Grievant touched employees of both genders on the arm or
shoulder as a friendly gesture. He
never received any indication that such actions were unwelcome.
Whitmore admitted she had a friendly relationship with Grievant.
Reeves did not dispute Grievant’s testimony that, until near the end,
he also had a friendly relationship with her.
Reeves gave no clear testimony that Grievant rubbed against her.
Although she asked him to stop throwing paperclips, she did not
complain about his touching her until all of the allegations in this case were
discharge letter gives the impression that multiple female employees asked
Grievant not to touch them. The
written statements discussed one incident in which Grievant allegedly pushed
his chair against Reeves and ran his hand down her back, and allegations
regarding squeezing by in the lunchroom with no specific allegation that he
touched Reeves. There is no evidence that Reeves told Grievant to stop doing
anything other than throwing paper clips.
Any physical contact must be understood in the context of the friendly
relationships in this office. Unless
Grievant was told such contact was unwelcome, he had no way to know.
Whitmore testified she never said anything to Grievant about his
touching her back or shoulder. No evidence exists that anyone ever told Grievant it made
them uncomfortable for him to stand close to them.
The discharge letter tracks Curry’s hearsay claim that Whitmore told
Grievant to stop.
only alleged instance of touching a co-worker’s face allegedly involved
Whitmore. Grievant denies this
incident. The evidence in support
of the charge includes the information that Whitmore told Grievant to stop.
No evidence exists that he touched her face again.
one other than Whitmore heard the alleged “spanking” comment, and Grievant
denies it. Whitmore’s initial
statement did not mention this allegation.
Given this inconsistency, the lack of corroboration, and Grievant’s
denial, this allegation should be rejected.
The more convincing evidence is that Dooley used this term jokingly.
Even if the event occurred as Whitmore alleged, it was an isolated
incident which was understandable within a teasing, friendly relationship.
buttocks-rubbing incident demonstrates the problem with this case.
Whitmore and Vandervort gave very different accounts of the event, and
Grievant denies it. Vandervort’s
statement suggests a degree of exaggeration and is inconsistent with
Whitmore’s statement. Whitmore’s
statement could not have been describing an incident in which she was forced
into a table. Her description of
her comment to Grievant is also inconsistent with Vandervort’s.
It is more likely that any contact was the incidental contact in
squeezing by to which Grievant, Watts, and Davis testified. The Department’s view of the incident was colored by
Curry’s hearsay description.
Department’s witnesses gave vastly differing accounts of the jeans incident.
No one talked to Grievant or other witnesses, such as Watts and
Latimer. When Grievant was asked
about one version of this event in his interview, he was not given the time,
place, or persons present. He
therefore could only deny the event. Later,
when he learned more information about the incident, he was able to recall
what actually happened. As the
Union’s witnesses corroborate, Grievant did not unbuckle his belt or unzip
his pants, and he did not make the comment alleged.
Instead, he put his hands to waist and asked “Do you want them?”
Grievant has a heavy accent, and can be difficult to understand.
Some witnesses could have thought he said something different from what
he said. Whitmore did not testify
that Grievant said, “I know you want some, Baby.”
The State’s witnesses do not agree on what he did say. Therefore, that part of the charges must be rejected.
In any event, his comment occurred in the context of a teasing,
friendly relationship. Whitmore
continued to tease him about his jeans that day.
If she had believed he said something inappropriate, she would not have
continued to joke about the jeans.
“troublemaker” allegation should be rejected.
Grievant had no reason to know Whitmore and other employees had met
with McGuire about him. His joking comment to her should be seen in light of the
safety net training and team building efforts.
He did not know she was coming from McGuire’s office, and he was not
informed of the investigation until later.
The fact that he knew in early December that something was going on
does not mean he knew what the charges were.
His comment therefore could not have been retaliation.
paper clip-tossing allegation should be rejected.
Reeves did not mention it in her written statement; it came up only
later in the investigation. There
is no dispute that some employees, including some in the dealer center,
playfully tossed paper clips at one another.
This is not a serious dischargeable offense.
The claim was added in by Reeves after she stopped being friendly to
gave inconsistent statements about touching, bantering, and sexual innuendos.
There is considerable evidence they joked around and teased one
another. From Grievant’s
perspective, the relationship was friendly.
Other employees heard Whitmore tell Grievant to “cut it out,” but
that could be serious or goofing around.
Whitmore denies saying anything to Grievant.
Given the inconsistencies, the evidence does not support the charge
of repeated inappropriate touching despite notice the touch was unwelcome.
was obviously uncomfortable in testifying, and said events were blown out of
proportion. If the events
actually occurred as she indicated, she had no reason to be uncomfortable
testifying. Her discomfort could
be the result of the inconsistencies or being at the hearing.
was well known in the office that Grievant transferred in because of prior
difficulties. Some of his
co-workers would not give him a chance because of his problems and their
difficulty in understanding him. Reeves
assumed he was saying bad things because she could not understand him.
In contrast, Latimer worked with him.
McGuire admitted she did not like him and did not get his side of the
story. Management did not give
him a chance, and took the opportunity to discharge him.
testimony must be evaluated in light of the clear dislike for Grievant she has
developed. Until that change in
attitude, she and Grievant had a friendly joking relationship.
McGuire did not like Grievant and would not tell him he was under
investigation at first. When he
called in sick due to stress, MacWilliamson wrote a memo suggesting he was
abusing sick leave. MacWilliamson
distorted Grievant’s account of the meeting in which Grievant asked
employees to talk to him about rumors of inappropriate touching.
She referred to him as a “perpetrator” before ever talking to him.
Department has engaged in a smear attempt with McGuire’s testimony that
Latimer was uncomfortable working with Grievant.
The Arbitrator should credit Latimer’s explanation that Grievant
speaks softly and is hard to understand, but that she never indicated she did
not want to work with him.
investigation in this case was not conducted to determine what happened.
It was conducted to get stories from some employees to support the
discharge of someone the Department wanted to discharge.
Management was not interested in getting stories that would cast
serious doubt on the allegations. The
incidents in the discharge letter were pulled together in an attempt to get
rid of Grievant.
investigation was flawed. McGuire
did not follow up on Whitmore’s off-hand comment until after talking to
Curry and Vandervort. She did not
talk to Grievant or other witnesses. Later
investigators heard from only some of the witnesses to events.
Eventually, Watts, Davis, and Latimer were talked to, but only on
general matters rather than the specific allegations. Although Dooley was identified as a possible witness, no
effort was made to track her down to determine whether she had any
information. The Union therefore
was unable to bring her in as a witness.
Grievant did not model his behavior on Dooley; the only point is that
the Department did not try to contact her.
did not get all the allegations in his interview, nor were copies of the
investigative notes or complaints provided.
Grievant could only deny the allegations because he had no specifics.
The Union could not have done anything to rebut these allegations prior
to the dismissal, because it did not have names, dates, or specific events.
Grievant had a right to the specifics and the chance to respond in the
investigation, not just at arbitration.
all of the evidence was disclosed to the Union prior to this hearing.
McGuire’s memo was disclosed only after Ward admitted such a memo
existed. If the discharge was
reasonable, the State should have had nothing to hide.
Department relied on improper evidence. The
1991 complaint was not substantiated, and should not have been in Grievant’s
file. The 1992 discipline should
have been removed from the file under Article 19, Section 5.
Progressive discipline is not an exception to the contractual
requirement to purge the files after three years.
It was not appropriate to use or consider that discipline.
In any event, the prior discipline is not relevant.
It involved conduct toward other employees, not specifically directed
at female employees or bordering on sexual harassment.
conduct with which Grievant is charged in this case was not unwelcome, and no
complaints were made prior to November 28.
Grievant received no direction from a supervisor that his behavior was
a problem or needed to be corrected. Grievant
was a good, productive employee, and no evidence exists that his conduct
affected his productivity or that of other employees.
No effort was made to give him notice or to retain this productive
employee. Instead, the effort was
made to pull together serious charges, using accounts from employees who did
not like him, and with no effort to get the real story.
The Department ignored contrary evidence and refused to give Grievant
and the Union details of the allegations.
discipline requires letting the employee know of the problem and giving a
chance to correct it. It was not
enough for Whitmore to tell him to stop his behavior; management must know of
the problem and take steps to correct it.
No employee went to management to request action to stop his conduct. Whitmore believed that would happen, but found events were
blown out of proportion. Her
discomfort with management’s response does not necessarily mean no
discipline was warranted; it does show how the information was used.
Grievant had engaged in the conduct with which he is charged, it would have
been inappropriate. He was never
given a chance to respond to the charges or to correct any substantiated
behavior. There was no chance to
stop the march toward discharge. Disclosing
evidence for the first time at arbitration ensured there would be no fair
evaluation of the evidence prior to arbitration.
The prior discipline gave notice of expectations, but through a very
different process. Presumably, Grievant had a chance to respond to those
charges, and the Union was involved. Here,
he received no specific information and no statement before his discharge that
he was not conforming to standards. The
missing link here is involvement of supervision in correcting the behavior.
State bears the burden of establishing just cause for discharge. It must show, by clear and convincing evidence, both that
Grievant engaged in misconduct and that discharge was within the range of
reasonable penalties for that misconduct.
the initial report from McGuire, the State had a justified concern over
Grievant’s workplace behavior. This concern was heightened by his very serious disciplinary
history. It had not only the
right, but the obligation to investigate the allegations and take reasonable
steps to stop any misconduct. The
principles of just cause required a full and fair investigation before
disciplinary action could be taken.
it is inappropriate to graft all of the judicially-recognized complexities of
due process onto the arbitration process, it has long been recognized that
certain basic due process rights apply in the workplace.
One such due process right is the right to be confronted with the
alleged misconduct. Omission of
this step both offends the due process concern of fairness and calls into
question the thoroughness of the investigation.
this case, Grievant was not apprised of the identity of his accusers at the
outset of the investigation. However,
he was given considerable details of the allegations against him in his
interview--details which reasonably should have led him to identify the
events. He therefore had the
opportunity to give his differing perspective of those events.
Further, by December 21, the Union had already interviewed Whitmore,
the principal source of most of the allegations.
Thus, on this record, Grievant was not prejudiced by the relatively
brief delay in identifying her as an accuser.
did not testify to one specific allegation--that Grievant pushed his chair
against hers and ran his hand down her back.
As there was no corroboration of the hearsay report in
MacWilliamson’s notes, this allegation has not been sustained.
Grievant admits the gist of the remaining allegation involving Reeves,
that he threw paper clips at her. Accordingly,
it is of no moment, for purposes of this decision, when Grievant or the Union
first learned Reeves was the source of these allegations.
is irrelevant that McGuire did not get Grievant’s version of events when
Whitmore’s concerns came to her attention.
She passed the issue on very quickly to management; it would have been
inappropriate for a unit member to do otherwise.
Thereafter, employees were interviewed extensively, and sometimes
repetitively. The State went
beyond a minimal investigation by seeking input from other employees in
addition to identified witnesses to specific events.
By inquiring into the general office atmosphere as well as specific
incidents, the State’s investigation made it possible to put the specific
incidents into context. Thus, the investigation was thorough and appropriate.
the clear language of the Agreement, records of past discipline were to be
removed from Grievant’s personnel record after three years.
That does not mean, however, that the fact of such past discipline
could not be considered for any purpose.
Grievant has called into question the nature and extent of the notice
he received regarding what constituted appropriate workplace conduct.
All forms of notice, including prior discipline, are relevant to
resolve the credibility of his testimony on the issue of notice.
issue of notice is particularly significant because of the varying kinds of
misconduct with which Grievant has been charged over the years.
Ordinarily, except where the misconduct is of a nature that any
reasonable employee would know was improper,
employees are entitled to notice that they have breached workplace standards
and an opportunity to conform their behavior to those standards.
However, where an employee has received discipline and counseling for a
succession of behaviors, an employer is entitled to expect the employee to
apply common sense and recognize that other behaviors, of similar gravity but
differing details, are likely to be as unacceptable as those for which
discipline has already been imposed. To
hold otherwise would permit an employee to continue to disrupt the workplace
with no real remedy, as long as the employee was careful never to repeat
exactly the same behavior. Thus,
the fact that Grievant’s prior discipline involved hostile and somewhat
violent encounters did not require that the State begin at the lowest level of
progressive discipline for suggestive and overly-familiar encounters.
turning to the specific incidents alleged in the discharge letter, the
Arbitrator notes that the propriety of the alleged misconduct here is
dependent on context. Any
physical contact could be a friendly touch or an unwelcome battery, depending
on the relationship between the participants.
Similarly, a raucous comment could be a joke or verbal harassment.
However, context provides only limited shelter from discipline. The workplace is not a playground. Where an employee chooses to make physical contact or make
comments beyond those required by the job, s/he must take care to respect
other employees’ personal dignity. The
more forward the behavior, the greater the burden on the employee to do a
“reality check” and desist at the slightest hint that the behavior is
unwelcome or unexpected.
to the specific allegations against Grievant, Whitmore credibly testified to
the incident in which Grievant asked to spank her.
Grievant’s denial of the comment was not convincing, nor does this
allegation tie into his description of Dooley’s somewhat different comments.
However, by Whitmore’s account, she concluded the comment was a joke
and shared a laugh with Grievant over the incident. Thus, at the time it occurred, the conduct was not unwelcome.
In this context, it therefore did not constitute misconduct.
credibly testified that Grievant stood closely behind her while she worked and
rubbed her shoulders. The
Arbitrator does not doubt that Whitmore found this conduct irritating.
However, by her own account, she said nothing.
The reasons for her silence are understandable and not uncommon,
particularly for a new employee anxious to fit in. However, in the context of a friendly and, in her words,
“flirtatious” relationship, it was incumbent on her to let Grievant know
when he had been too forward. Only
after such notice would continued contact demonstrate his unwillingness to
comply with her wishes. The
charge that Grievant persisted despite such notice came from other
employees’ reports that they had overheard Whitmore’s remarks, not from
anything Whitmore herself reported at any point.
Such reports cannot stand in the face of Whitmore’s contrary
first-hand testimony. Accordingly,
the State has not sustained its burden of establishing that Grievant touched
Whitmore “despite ... repeated directives to stop it.”
allegation regarding the incident in which Grievant touched Whitmore’s face
does not track the evidence. Both
McGuire and Whitmore testified that Grievant touched Whitmore’s face before,
not after, she told him to stop. Whitmore
testified she did not respond, and McGuire testified Grievant removed his hand
when told to stop. The contact
was unnecessary and, perhaps, somewhat uncalled for.
However, by either account, he did not persist in physical contact
despite a request to desist; on the contrary, he complied with the request.
The State therefore has not sustained its burden of proof as to this
buttocks-rubbing incident is another matter.
As an initial matter, intentionally rubbing buttocks is quite an
intimate contact, even among close friends.
Any employee knows, or should know, that in most workplaces, one does
not expect such an intimate encounter. It
is therefore unnecessary to give notice that it is unwelcome.
Instead, an employee who initiates such a contact at work must show
good reason to believe it would be welcome.
No such evidence exists here; instead, Grievant denies that the contact
troublesome aspect of the buttocks-rubbing allegation is that even the reports
close in time to the alleged event differed so greatly. The
event Whitmore described occurred at the opposite end of the room from the one
Vandervort described, and in quite a different manner.
Whitmore’s account of her verbal response was also quite different
from the comment Vandervort reported.
carefully reviewed the written reports, interview notes, and the testimony in
this proceeding, the Arbitrator concludes that Vandervort witnessed an
encounter in the break room that caused her concern.
However, on this record, Vandervort exaggerated the incident.
The suggestion that Whitmore would look as if she would break in two is
difficult to credit. Whitmore is
relatively young and trim; no evidence exists that she is physically incapable
of bending forward at the waist. Since
Grievant had his back to Whitmore, he would have shown remarkable backward
flexibility in executing the maneuver Vandervort described, particularly in a
manner capable of forcing Whitmore to bend forward beyond normal limits.
this record, there is some doubt whether an incident roughly corresponding to
Vandervort’s account was the same incident to which Whitmore testified.
Had Whitmore been forced to bend over the table near the lockers, it is
difficult to believe she would have recalled the incident as merely feeling a
rubbing against her buttocks while she stood at the sink at the other end of
the room from the lockers. It is
thus concluded that any encounter that occurred did not occur in the severe
manner described by Vandervort. However,
for the reasons that follow, clear and convincing evidence of misconduct does
is one of the very rare cases in which demeanor plays an important role.
Whitmore’s reluctance to cause Grievant’s discharge was quite
evident throughout her testimony. At
the same time, her demeanor in describing this incident, in particular, made
it obvious that she found Grievant’s conduct both very aggravating and
somewhat perplexing--the latter because Grievant had been a “perfect
gentleman” in potentially more compromising circumstances.
Given Whitmore’s impressive demeanor and her consistent reports of
the incident, the Arbitrator cannot credit Grievant’s denial that he rubbed
or brushed his buttocks against Whitmore’s.
buttocks-rubbing incident, as credibly described by Whitmore, was not merely
an incidental contact to squeezing by her.
As the more innocuous events to which the Union’s witnesses testified
illustrate, Whitmore was capable of discerning when such an incidental contact
occurred, and letting it go by without comment.
Her indignant response to the contact on this occasion demonstrated
that she recognized it as a very different kind of contact.
Accordingly, the State has sustained its burden regarding this
dispute exists that some exchange involving Grievant’s jeans occurred in the
break room. It is less clear when
it occurred. It had already
occurred by the time McGuire talked to Whitmore on November 28; indeed, if
McGuire’s written report is accurate, it happened on November 28.
However, since November 28 was a Tuesday, it could not have been in
conjunction with the regular Wednesday morning meeting, despite the testimony
from Whitmore, Reeves, and Latimer. However,
the timing of the incident is a minor point.
this record, it is more likely than not that Grievant made some gesture toward
his waist, but did not unbuckle his belt or unzip his pants.
Had he gone that far, one would expect that Whitmore would have
recalled and reported that very troublesome conduct in her initial report to
McGuire, her written statement, and/or her testimony.
She was the one most involved in the conversation, and therefore most
likely to notice such outrageous behavior.
Moreover, it would have been both out of character and extraordinarily
risky for him to go that far in a room full of employees waiting for a staff
meeting. It is therefore concluded that Reeves’ account
exaggerated his physical conduct on this occasion.
The gesture toward his jeans, if unaccompanied by other behavior, thus
would have been unobjectionable.
closer issue is Grievant’s verbal comment on this occasion. Whitmore has
consistently reported that Grievant said something along the lines of “you
know you want it;” whether he used the term “Baby” in that comment is of
little significance. As the
person most involved in the conversation, it is unlikely that Whitmore
misunderstood his comment. Moreover,
Reeves’ reaction to his comment lends credence to Whitmore’s version.
Several witnesses agree that Reeves was sufficiently offended by the
incident that she left the room abruptly.
Even given her conclusion that Grievant had “crossed the line” a
few weeks earlier, this reaction would be quite extreme if Grievant had merely
asked if Whitmore wanted his jeans. It
is therefore concluded that Grievant’s comment was substantially as reported
by Whitmore, and not the more innocuous inquiry he and the Union’s witnesses
comment was tasteless and inappropriate in the workplace, but went only
slightly beyond the joking and flirtatious exchanges he had with Whitmore in
the past. Absent other
misconduct, it would not have been sufficient to warrant serious discipline,
even given his disciplinary history. However,
when coupled with his physical gesture, it demonstrate a lack of common sense
and propriety. The State thus
properly took it into consideration in determining the appropriate discipline
for the reported incidents.
has conceded that he probably called Whitmore a troublemaker.
Had this comment occurred after Grievant confronted McGuire on November
30, the remark would have been somewhat intimidating.
However, on November 28, he did not yet have reason to believe Whitmore
had reported his conduct to McGuire. The
State therefore has not sustained its burden regarding the charge of
was not charged with unwelcome touching of Reeves, other than a single alleged
instance of pushing his chair against her and running his hands down her back.
As noted above, Reeves did not testify to this specific event; only
hearsay interview notes suggest this occurred.
Accordingly, the State has not sustained its burden regarding this
noted above, Grievant concedes that he threw paper clips and other objects at
Reeves. The Arbitrator credits
Reeves’ testimony that this conduct continued even after she told Grievant it
was unwelcome, until she banned him from the dealer center.
Such conduct was minor in and of itself, and it is quite likely that some
employees were not bothered by it. However,
Dlugonski had specifically cautioned Grievant as early as 1992 that such conduct
could be irritating to others. In
this context, therefore, Grievant knew, or should have known, that he should
desist from throwing objects at co-workers who protested this behavior.
summary, Grievant engaged in one very distasteful incident with Whitmore, and
another tactless incident primarily directed at Whitmore.
He also persisted in annoying behavior toward Reeves.
But for his disciplinary history, these events would have warranted some
discipline, but not discharge. However,
when these incidents began, Grievant had been back on the job less than a year
after his reinstatement with a lengthy suspension and final warning.
Given this recent serious disciplinary history, discharge was within the
range of reasonable responses to a resumption of disrespectful and disruptive
conduct. Accordingly, just cause
existed for his discharge.
There was just cause for the discharge of Jose Mora.
DATED: June 8, 1997
E. NELSON - Arbitrator[COMMENT1]
The Office Leader position has been in and out of the bargaining unit
at various times. At the time
of the events in question, the Office Leader was a unit position.
The dealer center was set up to permit dealers to handle their
business with the Division without having to stand in line.
It was staffed by temporary employees provided by St. Vincent de
Paul, who could be removed summarily. At
least one dealer center employee, Lorrainne Reeves, went on to become a
regular employee. The dealer
center was in a separate room. Employees
there had their own coffee pot, from which Grievant sometimes took coffee on
On December 1, Masengale wrote a memo suggesting Grievant’s absence
constituted abuse of sick leave, asking “How does he know on Friday
morning that he will not be well until Wednesday morning.”
In a December 4 response, MacWilliamson commented Grievant “was the
perpetrator” but that she had not yet spoken with him.
She questioned why Grievant would “be sufficiently stressed to have
to miss work for several days” based on the pending investigation.
No disciplinary action was taken based on a claim of abuse of sick
Vandervort testified she thought Whitmore was going to “break in
two,” but that she would not expect any bruises from the incident.
Only disciplinary actions within the three years prior to
Grievant’s discharge are covered here.
Earlier actions which gave Grievant notice of workplace standards of
conduct will be considered only as such notice.
Earlier, a monthly evaluation form prepared by Poole in June 1989 had
also set as one of Grievant’s goals “To speak more clearly &
Familiar examples include fighting on the job and theft.
The additional events described by the Union’ witnesses, while also
differing in detail, are irrelevant to this allegation.
The Arbitrator does not doubt that inadvertent contact occurs in the
close confines of the break room. Such
inadvertent contact would not be the basis for discipline.
However, neither of the versions reported by Vandervort and Whitmore
could have been inadvertent.
Reeves’ credibility in this regard is buttressed by the uncontested
fact that she became less friendly--or, from her perspective, that she
stopped tolerating his behavior--over time.
If he had not been engaging in behaviors that she found distasteful,
no reason appears why she would have had such a change in attitude.
The Arbitrator does not credit the suggestion that her change in
attitude stemmed from a bias against Grievant’s accent.
Had such a bias motivated her, she would have been unfriendly from
Make sure the first address on page 1 is the right address for
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address for Californians.
Date Text on the date case is actually completed, to replace the Date