IN THE ARBITRATION TRIBUNAL
of
DR. DAVID M. HELFELD
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, )
COUNCIL OF PRISON LOCALS )
FMCS CASE 02-13441
)
AND ) SEXUAL HARASSMENT
)
FEDERAL BUREAU OF PRISONS ) GRIEVANT: MEI-LING BURGOS
METROPOLITAN DETENTION )
CENTER, GUAYNABO, PUERTO RICO)
For the AFGE (Union) Lilliam E. Mendoza Toro, Esq.
For the Metropolitan Detention Center (MDC) Ken Hyle, Esq.
Arbitrator Dr. David M. Helfeld
Hearing December 4 and 5, 2002
Briefs March 3, 2003
Union’s Reply to Agency’s Supplemental Response March 13, 2003
Opinion and Award April 3, 2003
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OPINION
This sexual harassment case was submitted to arbitration by the AFGE (Union) on behalf of the grievant, Mei-Ling Burgos, a correctional officer employed by the MDC (Agency). Among other grievances, the Union charged that the MDC’s medical director, Dr. Wilfred Díaz-Romero, had abused his position to practice an unauthorized examination of grievant’s breasts. After hearing the case and studying the exhibits, documents and closing arguments submitted by the parties, I have reached two conclusions. First, this grievance could have been resolved short of arbitration if the Agency’s management officials had been sufficiently sensitive to grievant’s claim that she had been sexually harassed and if they had acted with due diligence to reassure her of the Agency’s firm commitment to rectify any act of sexual harassment and then had so acted. That, the record demonstrates, was not the course of action followed by the Agency. This brings me to my second conclusion: the manner in which Agency officials dealt with what amounted to a single act of sexual harassment was to exacerbate and extend its effects over subsequent months, creating what can only be described as a hostile, abusive and retaliatory environment attributable to the filing of the sexual harassment grievance and its subsequent submission to arbitration. After considering a number of preliminary issues dealing with the scope of this dispute, the factual findings and reasoning are given in support of the two conclusions.
I. The Scope of this Arbitration Case
A. The Issue of Retaliation
At the outset of the hearing, the Agency objected to any testimony or documentation related to alleged retaliation for having filed a sex harassment grievance. >From the Agency’s perspective, evidence of retaliation is inadmissible since it would amount to an amendment of the grievance submitted to arbitration which, under the terms of the Master Agreement, requires its consent. Since it did not and does not consent, the Agency insists that the hearing record must be limited to the grievance submitted to arbitration, that is, the alleged sexual harassment of grievant. In support of its objection to admitting evidence of retaliation, the Agency cites Article 32, Section a, of the Master Agreement:" the issues, the alleged violations, and the remedy requested in the written grievance may be modified only by mutual agreement." It then emphasizes that the arbitrator is bound by the terms of Section h: "The arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any of the terms of ...this Agreement". The Agency recognizes that if this case had been litigated following EEOC procedures, an amendment to the complaint would be considered acceptable, but since the Union has chosen to proceed under the Master Agreement, it argues that it is inescapably bound by that document’s procedural rules.
In the hearing a ruling on the Agency’s objection was deferred. Consequently, the record is replete with testimony, documentation and argument in the briefs filed by the parties, all related to alleged retaliatory conduct on the part of Agency officials and the denials and explanations of the Agency for its conduct. For multiple reasons the Agency’s objection to the admission of evidence of retaliatory action is denied. First, the Agency’s interpretation of what constitutes a modification of the written grievance is unduly restrictive, especially when applied to a sexual harassment case. Its interpretation makes entire good sense, for example, if in a disciplinary case for excessive absences, in the course of the arbitration proceedings, one of the parties unilaterally moves to include an issue of insubordination. Second, the Agency fails to consider that the Master Agreement in Article 37 provides that "Both parties endorse the prevention of sexual harassment in accordance with all law, rules and regulations." On the basis of this commitment it would be fair to infer that the parties intended for there to be no procedural impediment in processing a sexual harassment case under the Master Agreement that would not be allowed if the grievant had chosen to follow the route of the EEOC. Third, turning to the language of the written grievance in this case, it is by no means clear that the Union intended to exclude retaliatory conduct. The Union filed the grievance April 2, 2002. In response to the grievance form’s question of what Prison System Directive, Executive Order, or Statute was violated, it responded "the Civil Rights Act of 1964, P.S. 3713.17 Discrimination and Retaliation Complaint Process" and to the question of the remedy requested, it answered, after listing numerous remedies, "any other remedy deemed appropriate and necessary by the arbitrator." Obviously the Union on April 2, 2002, did not intend to limit the arbitration case solely to the February 21st alleged sexual harassment incident. It had no way of anticipating future Agency action which could be characterized as the creation of a hostile working environment, including retaliatory action taken by Agency officials against grievant because of the grievance filed by the Union on her behalf.
Fourth, the Agency did not insist in the hearing on a consistent application of its interpretation of what constituted a modification or amendment of the written grievance. It did not insist on limiting the hearing to evidence related to the sexual harassment incident in February of 2002. Without objection it permitted the introduction of Union evidence of Agency conduct in the months following the filing of the grievance bearing on the question on whether the Agency had complied with its responsibilities and it too introduced evidence to prove that a hostile environment had not been created. Rigorously applied, the Agency’s interpretation of a modification or amendment of the written grievance would have excluded all such evidence from the hearing record.
Fifth, acceptance of its procedural interpretation would frustrate all possibility of reasonable expedition in the implementation of the public policy for dealing effectively with sexual harassment and, in particular, with the Bureau of Prisons’ policy of effective enforcement. The present case has already taken a year to reach the stage of an initial arbitral award. Under the Agency’s procedural interpretation, evidence of retaliation is considered an amendment to the written grievance and therefor must be excluded from the hearing record because it did not pass through the pre-arbitration steps. It must be considered a separate and a second distinct case. The same would hold true if in the course of the second case there should be additional retaliatory actions; such actions would then have be dealt with as a third case. This simply would be to allow a possible procedural interpretation to delay indefinitely a final resolution of a pattern of conduct in violation of the prohibition of sexual harassment in the shape of a hostile environment and retaliatory action. Equally to the point, it would fail to recognize that sexual harassment very often, as in this case, manifests itself in more than a single incident, but even more so in the conduct of Agency officials in the creation of a hostile or offensive environment and by their taking retaliation against an employee for seeking to vindicate her right not to be sexually harassed. Under such circumstances it would be counterproductive to effective enforcement of the policy against sexual harassment to adopt the Agency’s procedural interpretation when there is a procedural interpretation consistent with effective enforcement and which is consistent with how in fact sexual harassment cases develop. The present case is an example of that reality: it is a single case consisting of an alleged incident of sexual harassment, followed by alleged patterns of Agency conduct which took the form of a hostile and abusive environment, including retaliatory action. Whether the Union proved the allegations to be true, is the question addressed in later parts of this opinion. At this point, it should be evident that fragmentation of what is in reality a single case is not in the parties’ mutual interest in the expeditious resolution of grievances grounded on claims of sexual harassment.
Sixth, there would only be one conceivable reason to accept the Agency’s procedural interpretation: if its capacity to defend against the Union’s case, i.e., that grievant was the victim of the Agency’s retaliation for initiating the filing of the sex harassment grievance, was somehow prejudiced. In the hearing itself that was certainly not true. For all evidence by the Union of retaliation, testimonial or documentary, the Agency was fully prepared, introducing evidence consisting of refutations and explanations to demonstrate its absence of culpability. The Agency was in no way taken by surprise by the Union’s proof of retaliation. Nor did it make any such claim in its brief in which it sought to refute point by point the evidence and arguments presented by the Union. Which side has the better case in the conflicting substantive contentions is analyzed later in this opinion.
For the six reasons, whether considered separately or as a whole, the Agency’s objection to the admission of evidence of retaliation into the record cannot and should not prevail.
B. The Sexual Harassment Arbitration Case of Migdalia Toro
The Union urges that arbitral notice be taken of the captioned arbitration case and of the opinion and award rendered by Arbitrator Marcia L. Greenbaum on July 19, 2002. In that case the Union filed a grievance on May 9, 2001, alleging sexual harassment of the grievant by her supervisor, an MDC lieutenant. The arbitrator upheld the grievance. Her opinion includes detailed factual and credibility findings which support the conclusions that the grievant had been victimized by a pattern of sexual harassment, a hostile working environment and by the insensivity of MDC officials to their enforcement responsibilities for assuring a working environment free of sexual harassment.
The Agency objects to any consideration being given to the Greenbaum award on the ground that it is not final. That is true with respect to the issues of pecuniary and non-pecuniary damages with respect to which her February 17, 2003 award gives either party the option to request further proceedings prior to April 15, 2003. Though
Arbitrator Greenbaum has yet to render a final award with respect to monetary damages, her award of July 19, 2002, is in all respects final on the questions of whether the Agency was responsible for the grievant’s sexual harassment and the creation of the hostile working environment. The same is true of the appropriate non-monetary remedies which are included in the July 19, 2002 award. Hence it is entirely legitimate to treat those parts of Arbitrator Greenbaum’s award which are final as indicative of how the highest officials of MDC understood their responsibilities for dealing with sexual harassment grievances in the period shortly prior to grievant’s claims of sexual harassment, hostile working environment and retaliatory conduct. The Agency’s objection to treating the final parts of Arbitrator Greenbaum’s award as having precedential weight in the present case is therefore denied.
C. Post Hearing Submissions of Claims and Arguments
A number of claims and arguments were presented for the first time after the close of the hearing. The question posed by such submissions is whether they can be considered in this opinion and award. There is first the Union’s claim that the Agency continues to retaliate against grievant in the form of an investigation based on the allegation that she has taken on outside employment without authorization. The Agency’s objection to consideration of this new claim is well taken. Obviously it was not the subject of examination or cross examination in the hearing. Consistent with due process, for this additional and new claim of retaliation to be evaluated would require reopening the hearing record. The Union has not requested reopening the hearing and, in my capacity as arbitrator, I see no reason to do so. In final analysis, whether this additional claim of the Union is meritorious, or not, would not in my opinion affect the outcome of this case.
The second matter has to do with the Agency’s failure to produce a sexual harassment complaint allegedly filed by Dr. Olga Grajales, former MDC medical director, against Dr. Wilfredo Díaz. The Agency’s brief states why it has not produced the document: "Agency Counsel double checked the records of the Agency’s EEO Office after the hearing...There was no record of a Dr. Olga Grajales filing an EEO Complaint with the Federal Bureau of Prisons." It may be that counsel was checking in the wrong agency and that the complaint could have been found in the records of the Public Health Service which is the government service to which both doctors belonged. There apparently was such a complaint against Dr. Díaz, known not only to the Union but also to Angel Morales, the Human Relations Director. He testified to having heard of a sexual harassment complaint being filed in the past, but had no knowledge of its precise content or date. Dr. Grajales herself could have cleared up the nature of her complaint, but she had left Puerto Rico and efforts to locate her by the Union proved to be fruitless. Nor could Dr. Díaz testify on the matter, since he was in the process of litigating his own claims against the Public Health Service.
Again, the question is whether the hearing record should be reopened, by ordering a further search for a document which apparently does exist and, assuming it were found, would then be examined in the reopened hearing. The basic reason for not doing so is that it would have no effect on the outcome of this case. That is because the Union’s purpose in seeking its production is to establish that the Warden and two Associate Wardens had knowledge of past sexual harassment behavior by Dr. Díaz and therefore should have been alert and decisive in dealing with his sexual harassment of grievant. However, the Warden and the two Associate Wardens testified in the hearing that they had no knowledge of any such complaint. On that point I found their testimony credible. Hence no useful probative purpose would be served if Dr. Grajales’ complaint were to surface and to be made part of the record.
No matter its content, it would not serve to prove that MDC ‘s highest officials had prior knowledge of any tendency of Dr. Díaz to sexually harass employees.
II. The February 21st, 2002 Act of Sexual Harassment
Mei-Ling Burgos, the grievant, is married, has one child, earned a bachelor’s degree in biology, with a minor in microbiology, has worked as a science teacher and as a lab technician prior to assuming the position of correctional officer at MDC beginning on March 6, 2002. She applied for the position during the latter months of 2001. On February 21, 2002, she reported to the hospital of MDC to take the physical examination which was the last requisite to be satisfied prior to being employed. The following is her sworn statement of what transpired during the physical examination and immediately thereafter, given on July 30,2002, in the course of the official investigation of the Agency, five months after the February 21st examination.
February 21, 2002, at approximately 10:00 a.m., I was examined by Dr. Diaz-Romero, for a pre-employment medical examination. This examination took place in the MDC Guaynabo Health Services Unit. During the examination several issues occurred which made me question the procedures of Dr. Diaz-Romero.
As the examination began, I removed my blazer, (I was wearing civilian clothes) so that Dr. Diaz-Romero could take my blood pressure. As soon as I removed my blazer Dr. Diaz-Romero stated, "With such a sweet face as yours, how could your husband let you work in this place." I immediately began to feel uncomfortable.
As we entered the examining room Ms. Lizbeth Vergara was the accompanying staff member. She was present from this point forward and throughout the examination.
When we entered the examining room Dr. Diaz gave me a gown and told me to get undressed and to put on the gown with the opening to the "front". I felt that this was a little strange or that maybe Dr. Diaz-Romero made a mistake. So after he left I got undressed, leaving on my panties and bra and put the gown on with the opening to the ""back".
Dr. Diaz-Romero re-entered the room and saw that my the gown was on with the opening to the "back", and that I was still wearing my bra and panties. At this time he again directed me to remove my bra and put the gown on with the opening to the "front". He again left the room. Although I felt very uncomfortable, I did as I was directed.
Upon re-entering the room, Dr. Diaz-Romero immediately began examining me. Again I felt very uncomfortable because I noticed that he was not wearing rubber gloves, and at no time did I observe him wash his hands prior to touching me (examining me).
Dr. Diaz-Romero began the examination by checking my knees and reflexes. Afterwards he examined the "fatty" portion of my breasts for lumps. Strangely, he then began to examine the nipples of my breasts. In doing so he gently squeezed each of them with his finger tips. This made me very uncomfortable. Being a new applicant and not familiar with the procedures for examinations, I did not protest. After he completed the examination of my breasts, he directed me to lay on my back where he then began to press my stomach and pelvic areas, above the panty line. While doing so he asked me if I felt any pain, to which I replied that I did not.
After he completed his examination, he advised me to get dressed, and then departed the area. While getting dressed I expressed my concerns and uneasiness to Ms. Vergara, who stated that when she was examined for her pre-employment examination she did not recall having her breasts examined, nor did she recall having to get completely undressed.
As I was departing the Health Services Unit, I was given the medical papers for the examination that I had just received. I immediately looked them over to review what Dr. Diaz-Romero had written concerning my examination. While reviewing these papers, I did not see anything which referenced his examination of my breasts, to include him checking my breasts for lumps, or him checking my breast nipples.
I reiterate that being a prospective employee and not aware of the procedures, I did not protest the procedures, nor did I express my concerns. However, as I stated above, I am very concerned about the procedures that Dr. Diaz-Romero exhibited while examining me.
There are a number of facts which should be noted about this statement. First, it is the first statement taken of the grievant, which was five months after what occurred on February 21st. Second, the grievant has never personally filed a sex harassment complaint against the Agency. She took her grievance to the Union which acted on her behalf. Third, what triggered this case was a report filed by Ms. Vergara who was present, acting as chaperon at the request of Dr. Diaz, during the examination of grievant’s breasts. Fourth, Ms. Vergara is grievant’s aunt, a fact almost certainly unknown to Dr. Diaz when he asked her to act as chaperon. Fifth, Ms. Vergara’s felt that it was her duty to file the report when she investigated and confirmed that a breast examination was not part of the pre-employment physical that she herself had taken some years earlier. Sixth, her report substantially states what grievant included in her July 30th sworn statement. Seventh, Ms. Vergara delivered her report, in Spanish, to her supervisor, Angel Morales, Director of Human Resources. Eighth, he in turn transmitted the report to Associate Warden Mejias who translated it into English and delivered the original and translated versions to Warden Pastrana.
The Agency denies that grievant’s breast examination can be characterized as sexual harassment. Its position rests essentially on three grounds: what took place on February 21st does not constitute harassment; Agency management officials acted expeditiously on the possibility that there might be some element of sexual harassment; and, finally, applying case law criteria to what occurred requires the conclusion that sexual harassment was not proved. The Agency’s first defense is that Associate Warden Mejias immediately translated Ms. Vegara’s report and transmitted it to Warden Pastrana. He also called another Detention Center to inquire whether breast examinations were appropriate in pre-employment physical examinations and, because there was uncertainty about the matter, he testified that he ordered Dr. Diaz not to conduct any further breast examinations of women correctional officers or applicants for employment until the propriety of such examinations had been fully investigated. Finally, it was testified, that Warden Pastrana had sent off a FAX to OIA in Washington, with a copy of Vergara’s report, requesting instructions on whether investigation of the issue was to be conducted by an officer sent from Washington or conducted by a local investigator designated by the Warden.
The Agency’s second line of defense is that the type of breast examination conducted by Dr. Diaz was well within his discretionary authority, stressing that in the examination nothing inappropriate went on. It emphasizes that present at all times was a chaperon to protect against possible sexual harassment. The Agency asks, how can grievant claim harassment, when she has regularly undergone similar type examinations by her gynecologist who is a man and she has done so without complaint. Finally, the Agency is skeptical of grievant’s claims of emotional suffering, noting her educational background as a biologist, science teacher and laboratory technician, concluding that it is reasonable to assume that she was well able to take the breast examination in her stride with no untoward emotional reactions.
The third Agency defense is that the February 21st breast examination does not satisfy the criteria which case law has established to prove a claim of sexual harassment in the hostile environment mode. Development of the general criteria for distinguishing the two categories of sexual harassment – quid-pro-quo -- and hostile environment – by the Supreme Court, can be examined in three normative cases: Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). In the present case, the Agency relies on the guidelines for determining sexual harassment within the context of a hostile working environment, as set forth in the recent decision of Crowley v. L.L. Bean, 303 F.3d 387, 395 (1st Cir. 2002),and concludes that the guidelines were not satisfied. As summarized in the Agency’s Brief, what has to be established to vindicate a claim of sexual harassment is accepted for purposes of resolving this arbitration case:
...a complainant must establish: (1) that she is a member of a protected class;
(2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff’s employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for liability has been established.
To the six guidelines, the Brief adds a seventh, also established in the Crowley case at page 401: "that the employer knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate action."
Using the seven guidelines as a check list, has the Union made its case or has the Agency successfully defended itself against the charge of sexual harassment? First, there can be no question about grievant being a member of a protected class: public and BOP policy stand for zero tolerance of sexual harassment in the work place. Second and third, grievant was subjected to unwelcome sexual harassment which was based on sex, if the Union’s claim is supported by the preponderance of the evidence. Whether the evidentiary record supports grievant’s claim, is analyzed infra in this opinion. Fourth, whether the harassment was sufficiently severe or pervasive as to alter the conditions of plaintiff’s employment and create an abusive work environment, will be evaluated principally in later sections of this opinion concerned with issues of hostile or abusive environment and retaliation. Fifth, however defined, if the evidence demonstrates that Dr. Diaz took advantage of his position as medical director to require grievant to disrobe, remove her bra and submit to a breast examination, under the pretext that it was for a bona fide medical examination, the abuse of medical authority qualifies unquestionably as sexually objectionable conduct and would be considered objectively and subjectively offensive, from the perspective of a reasonable person. The issue of bona fide medical conduct or abuse of medical authority depends in final analysis on the proof in the record. The same is true of the question of how in fact Dr. Diaz" conduct was perceived by the grievant. Sixth, there is a basis for finding the Agency liable, if the Union proves the harm done to grievant and seeks appropriate remedies. The seventh guideline also is at bottom an evidentiary issue: did the employer know or should it have known about the charged sexual harassment and did it fail to implement prompt and appropriate action? The application of a number of the guidelines to the factual record are considered in this section, while the remainder is dealt with in subsequent sections of this opinion.
To start at the beginning, in the hearing there was testimony that Warden Pastrana by FAX immediately referred the Vergara report to OIA in Washington for a determination of who would be responsible for investigating the matter. That is not borne out by documentary evidence in the record. Nor is there a record of a FAX being sent in April. The Warden claims that somehow it was not received in Washington which is his explanation for its being sent a second time, three months later. This resulted in delaying when the official investigation could begin, which was five months after the February 21st physical examination of the grievant. It is possible that the initial FAX somehow did not get communicated, but not credible that the message sent from MDC could not be presented in evidence, if it indeed it was drafted and sent. Southeast Regional Director R.E. Holt, in a letter to Union President Fernando Blanco, dated May 21, 2002, also refers to Warden Pastrana having notified OIA of the Vergara report in April, but again the vital point is that no written confirmation of the Warden having done so was presented for the record.
Similarly, Associate Warden Mejias testified that after reading Vergara’s report and checking out physical examination procedures at another detention center, he had ordered Dr. Diaz not to perform any further breast examinations on female staff or employee applicants, pending the outcome of an investigation. But on a matter of such importance nothing in writing was presented for the hearing record. He testified that he had given the order orally and gave no explanation for not keeping a record. Turning to Dr. Diaz’ sworn statement of July 30, 2002, given in the investigation conducted by Associate Warden Romero, there is no mention of there having been such an order. It is unlikely that Dr. Diaz would have forgotten an order which restricted the performance of his medical duties. On the record made in the hearing only one conclusion is possible, the Union met its burden of proof that the Agency had in the words of Crowley not taken "prompt and appropriate action." As to the other wing of the guideline, the evidence is indisputable that the Agency knew of the charged sexual harassment one day after it happened, as described in the Vergara report and as duly transmitted up the chain of command of the MDC. It is also indisputable that no investigation was conducted until five months after the Vergara report. On its side, the Agency offered no convincing justification for its inordinate delay in taking action.
Whether Crowley guidelines two, three, four and five are satisfied in this case turns on how the examination conducted by Dr. Diaz is evaluated, whether as an entirely appropriate medical examination, as the Agency contends, or as a pretext for carrying out an act of sexual harassment The objective evidence in support of the pretextual alternative is very strong that Dr. Diaz abused his authority as a doctor to have grievant disrobe, take off her bra and examine her breasts. First, there is nothing in the physical examination form which provides for a breast examination. Second, Dr.
Diaz in his sworn statement makes no effort to explain why he found it necessary to conduct such an examination. Third, nor does he explain why when filling out the form he made no annotation to record the results of the breast examination. It is reasonable to infer that his failure to follow regular recording procedures was motivated by his intention not to record his wrongful sexual conduct. Fourth, as Ms. Vergara determined from checking her own experience, pre-employment breast examination is not part of MDC medical examinations. Fifth, this was later confirmed in the interviews conducted by Associate Warden Romero in his investigation: not a single woman correctional officer had to undergo a pre-employment breast examination. The only exception is grievant’s breast examination. Hence, all the objective evidence, together with the Agency’s failure to offer any plausible explanation of a legitimate medical nature, leads to one conclusion: Dr. Diaz harassed grievant sexually in the medical examination which he carried out on February 21st, 2002.
Turning to the other Crowley guidelines, there can be no doubt that grievant was subjected to unwelcome sexual harassment by Dr. Diaz, that the harassment was sexual in nature, that his conduct was both objectively and subjectively offensive, that a reasonable person would find it hostile or abusive and that the grievant in fact did perceive it to be so. These conclusions are based on grievant’s testimony, describing her feelings on the date of the medical examination and immediately thereafter, testimony which I find to be entirely credible. Ten months after the February 21st sexual harassment, grievant’s suffering and her sense of having been victimized unjustly, was palpable and entirely believable. How there was created subsequently a hostile and abusive working environment sufficiently severe or pervasive so as to alter what the conditions of grievant’s employment should have been, is fully analyzed in a later section of this opinion. >From the findings of compliance with Crowley guidelines in this section, in combination with the findings in the later section related to a hostile or abusive working environment, it will be evident that the pain and suffering of grievant more than satisfies the guideline that the basis for employer liability has been established.
To sum up thus far, the breast examination of grievant, performed by Dr. Diaz on February 21st, 2002, was an act of sexual harassment in a two-fold sense: it meets the test of relevant legal criteria and it was proved by a preponderance of the evidence in the hearing record.
III. How Could This Case Have Been Resolved Short Of Arbitration?
The captioned question needs to asked and answered for at least two reasons:first, to set out a model of how the Agency could have reacted to Vergara’s report which would have limited the harm done by the sexual harassment committed February 21st and second, to use that model to compare how the Agency actually responded to the sexual harassment of the grievant and to the fact that the Union filed a grievance on her behalf. There is also a third reason which needs to be mentioned: the comparison could prove to be highly beneficial to the Agency and its employees when it becomes recognized that there is still much to do to genuinely implement the Agency’s stated policy against sexual harassment. There are lessons to be learned in this case about how Agency officials should deal with sexual harassment.
Associate Warden Mejias received Vergara’s report on February 22, 2002, one day after the February 21st sexual harassment of the grievant. In short order he could have verified that her facts were accurate, especially the fact that breast examinations were not part of pre-employment physical examinations. He then could have questioned Dr. Diaz to hear his explanation. Assuming that he was in doubt about whether sexual harassment had taken place, his doubts should have been resolved by taking at least some immediate tentative measures pending the outcome of a full-fledged investigation. One tentative measure could have been an order to Dr. Diaz to perform no further breast examinations until a full investigation had been completed and he should have documented his order and kept a written record of his treatment of what plausibly was a case of sexual harassment. He also could have ordered Dr. Diaz to keep his distance from the grievant. He then should have set in motion an OIA investigation, staying on top of the reference to the OIA and seeing to it that the ensuing investigation was implemented with all deliberate speed. The guiding principle which should have been followed is that sexual harassment complaints call for expedited and thorough investigation. If the investigation concludes that sexual harassment had occurred, remedial measures should be implemented without delay.
If the measures described are to be fully effective, it is essential that the reported victim of sexual harassment, or if she herself brings the complaint, be informed of the steps which the Agency has initiated and that she should be kept informed periodically as the case is processed. There should be no doubt in the mind of the employee that the Agency is fully committed to protecting victims of sexual harassment and that they can count on the Agency’s taking all remedial measures in cases of proven violations.
In the case of the grievant this is how the Agency could have acted. An official of high authority should have met with her within days, to explain how the Agency was dealing with the matter, in accordance with BOP anti-sex-discrimination policy. It would have been essential to do this with empathetic sensitivity so as to provide her with reassurance that she could rely on the Agency’s protection. This would have been especially required in grievant’s case, since at the time of her harassment she was a candidate for employment and almost certainly in a state of uncertainty and insecurity about what her rights might be. In addition, it would have been advisable to have assigned an official of high authority to keep track of her case and to be available to her should she have had doubts about how her case was progressing. Of course, talk would not have been enough. To be effective, it would have had to be accompanied by effective and expeditious action.
Had the Agency acted in the way described it is altogether improbable that the February 21st sexual harassment would have developed into a grievance terminating in arbitration. In the first place, it is very unlikely that grievant would have turned to the Union, seeking its support. It should be remembered that she testified that she sought out the Union’s help because she felt that the Agency was not dealing with her case in a serious and expeditious manner. Assuming serious and expeditious Agency action, it is very doubtful that the Union would have taken on the case. And even if grievant had decided on her own to file an EEOC charge, it is doubtful that the case would have gone very far. It was a single, unrepeated harassment for which the Agency would have had a convincing defense, that it had done everything feasible to limit the damage and would have taken all reasonable remedial measures. Of course, this was not the way in which the Agency acted. Rather it was quite to the contrary, as the next section demonstrates in detail.
IV. The Elements of Hostility, Abuse and Retaliation in Grievant’s Working Environment
How the Agency responded to Vergara’s report on Dr. Diaz’ February 21st , 2002 conduct and to the Union’s grievance filed on behalf of the grievant is what transformed a single incident of sexual harassment into the ten months period of hostility, abuse and retaliation which was experienced by the grievant. In short, while the original harasser was Dr. Diaz, harassment was continued in the form of hostility, abuse and retaliation for which Agency officials and supervisors were responsible as manifested in their treatment of Vergara’s report and the grievance filed by the Union, and in their decisions related to grievant’s employment conditions. The actions of the officials and supervisors principally responsible are herewith set forth.
A. Original and Subsequent Agency Responses to the Union
On April 2, 2002, Union President Fernando Blanco notified Warden Jorge L. Blanco that it had received complaints of breast examinations of women correctional officers by Dr. Diaz in the case of pre-employment physical examinations and requested that the matter be referred to IOA for investigation. The Warden responded April 12: "In order for this to be pursued accordingly, it will be necessary for those staff members to address a memorandum to me describing their allegations." His answer was disingenuous. The Hearing Record makes clear that the Warden had received Vergara’s report from Associate Mejias within days of the February 21st incident of sexual harassment. This was precisely the moment when the Warden could have begun the process of settling the grievance, by calling in the Union President and informing him that he had evaluated the Vergara report and had concluded that it called for an IOA investigation and by reassuring him that the Agency was firmly committed to enforcing BOP policy against sexual harassment. Concretely, he should have referred the matter to OIA even before meeting with the Union President. The Union would probably not have become involved at all, if the Warden had acted immediately to notify IOA and had designated one of his subordinates to inform the grievant of the action he had taken. By ignoring the feelings of the grievant, who naturally would be anxious to know what Agency action was being taken with respect to the sexual harassment she had endured, the Warden initiated the climate of hostility on the part of the Agency which remained unchanged until November when she suffered a miscarriage. This is not to say that a policy of hostility was officially announced by the Warden, but rather that it is a reasonable inference which can be made from his conduct.
Consider, for example, the Warden’s testimony that he had referred Vergara’s report to OIA shortly after the February 21st sexual harassment for which no written documentary evidence was ever presented. In the absence of such proof, the Union filed a grievance on April 2 and submitted the dispute to arbitration on June 11. There is nothing in the hearing record to indicate that the Agency did refer the matter to the OIA prior to May 31. That is the date on the referral document submitted in evidence. No copy was given to the Union. If that had been done, it might have obviated the Union’s submission to arbitration on June 11, knowing that the Agency was finally following through on its responsibilities in processing sexual harassment cases. What the Union had been experiencing for three months was stonewalling by the Agency and it therefore chose to go forward to arbitration. From the Union’s perspective, hostility to grievant’s claim of sexual harassment could be reasonably inferred from the Agency’s lack of expedition in having the claim investigated. In my judgment, the Union’s inference is supported by the preponderance of the evidence in the hearing record.
B. From Grievant’s Perspective: Delay as a Manifestation of Hostility
As the person who had suffered the sexual harassment, grievant’s feelings, as she testified, were profoundly affected by what she perceived as inaction and delay on the part of the Agency in dealing with Vergara’s report on Dr. Diaz’ conduct on February 21st, 2002. Months went by and she was not informed by anyone in authority of what action had been taken, if any, with regard to Dr. Diaz, or whether an investigation had been instituted. Months went by and she remained in ignorance of what was being done, if anything, to resolve the abusive treatment to which she had been subjected by Dr. Diaz. Five months after having suffered sexual harassment, grievant learned that an investigation was being conducted by Associate Warden Romero and has the opportunity to tell her story on July 31 in a sworn statement. There is no way that grievant could have interpreted the delay of five months to give her the opportunity to testify as to Dr. Diaz’s conduct as anything but a reflection of the Agency’s attitude toward her claim of sexual harassment. To her, the delay in taking action reflected indifference and, in final analysis, hostility to her claim for just treatment. Her testimony was to the effect that she became convinced that the Agency had no appreciation of the humiliating experience she had experienced, of its continuing impact in her life and had no interest in vindicating her claim to have suffered from a gross act of sexual harassment. In my opinion, that would be how any reasonable woman, or for that matter, any reasonable person, subject to the same circumstances would see it.
C. The Investigative Report: Insensitivity and Denial of Reality
Grievant’s conviction that she could not get just treatment from the Agency was doubly confirmed by the investigative report, rendered by Associate Warden Romero on her claim to have suffered sexual harassment in the physical examination conducted by Dr. Diaz on February 21st, 2002. His report reached no conclusion on her claim. Its conclusions encompassed two findings of unprofessional conduct in "failing to wash his hands or wear gloves prior to conducting the examination and examining her breasts, in great detail, without documenting his findings of the examination." His report simply leaves the issue of sexual harassment up in the air and in so doing in effect denies grievant’s claim as unsubstantiated, as neither proven or disproved. The report is part of the hearing record and, as the arbitrator, it is for me to decide how it should be evaluated, whether as strengthening the Agency’s defense, as weakening grievant’s claim, or some third option.
My basic finding is that Associate Warden Romero’s report is seriously flawed precisely because it failed to investigate fully critical aspects of grievant’s claim of sexual harassment, because it failed to ask relevant questions, because of its resistance to drawing logical inferences from the facts the investigation gathered and its evident insensitivity to what was palpably sexually harassing behavior and, finally, there is the avoidance of credibility findings in the effort to give the appearance of being even-handed. To cite some of the more egregious flaws, there is first the failure to draw any conclusion from one of the key findings, that is, that the investigation failed to identify a single MDC woman employee who had been required in their pre-employment examination to disrobe, remove their bra, submit to a breast examination and to having their nipples squeezed, except in the case of grievant. Second, Dr. Diaz was not asked to explain why he found it necessary to examine grievant’s breasts and why he failed to annotate his findings in the medical examination form. Third, the report failed to decide who was telling the truth when Dr. Diaz claimed not to remember whether he had commented to grievant on her sweet face, asking her how her husband could let her work in a place like the MDC, as compared with grievant’s testimony that he spoke to her in that fashion immediately prior to asking her to go to the examining room, to disrobe and to remove her bra. Associate Warden Romero’s report reflects patent insensitivity to what most people would recognize as sexually harassing behavior by an official of high authority toward a particularly vulnerable woman who was anxious to secure employment. In my opinion, the report’s insensitivity contributed to the hostile or abusive working environment which grievant had to endure. That certainly was her perspective, as she testified, and that too would be the reaction of any reasonable woman who might be exposed to similar working conditions. In my opinion, it would be fair to construe the insensitivity in Associate Warden Romero’s report as disguised hostility. It has the indicia of a cover-up, of having been undertaken to demonstrate the reasonableness of the Warden’s judgment.
With such characteristics it obviously cannot serve to strengthen the Agency’s defense. Even so, the report does contain material facts which strengthen grievant’s claims, such as the fact that grievant is the only case of a woman employee having to submit to a pre-employment breast examination and the fact that at no time did Dr. Diaz explain why he felt it necessary to deviate from established practice in the case of the grievant.
There has yet to be considered whether Associate Warden Romero should have been assigned the responsibility of directing the investigation. The question needs asking because of certain key dates. The OIA authorized a local investigation June 27, 2002.
This was some two weeks after the Union invoked arbitration and seven weeks had passed prior to the submission of Associate Warden Romero’s report on August 3. If the report had found that Dr. Diaz had sexually harassed the grievant, as claimed on February 21st, that would have weakened the Agency’s defense against the claims of the Union. It is a fundamental principle of fairness that an investigator should not have any conflict of interests, but should only be bound by the search for the truth. That principle was certainly violated in this case. In the interest of fairness, once the Union invoked arbitration on June 11, 2002, the Agency was dutybound to inform the OIA in Washington that the investigation required a neutral investigator and should have requested that one be so provided. Given his position of Associate Warden, appointed to carry out the investigation by Warden Pastrana who already had denied grievant’s claim, Mr. Romero did not qualify to be a neutral investigator. It is altogether improbable that the OIA would have approved of Associate Warden Romero’s appointment, if it had been informed that it was made after the arbitration process had taken hold. The OIA would surely have recognized that an investigative report rendered under such circumstances would be questioned as being a self serving document to strengthen the Agency’s position which had been taken prior to the outset of the arbitration proceedings.
Two additional comments need to be made. Though the report concludes that there is sufficient evidence to sustain the charge of unprofessional conduct, it does not recommend either corrective or disciplinary action. With respect to corrective action, it is strange that the report does not pass judgement on whether a breast examination should be part of the pre-employment physical examination. That issue is simply left unresolved, although it is at the heart of the grievance. The only issues resolved are that a doctor should wash his hands or wear gloves before touching a patient and should record his observations in the examination form. It is as if Associate Warden Romero were blind to what was one of the central issues of the investigation he was assigned to conduct.
In contrast, there may be an explanation for why the report did not recommend disciplinary action, though it is not explicitly mentioned. The explanation may be that the Warden had already removed Dr. Diaz from service with MDC on June 11, 2002, more than a six weeks before Associate Warden Romero submitted his investigative report. The process of Dr. Diaz’ removal was initiated in November of 2001 for a breach of BOP’s regulations having nothing to do with grievant’s case or with sexual harassment. However, it did have to do with his character, involving as it did an interchange of kisses with an inmate of MDC. Given Dr. Diaz’ status at the time of Associate Warden Romero’s investigation, as an official who had been removed for a serious breach of regulations, it is difficult to understand why the fact of his removal was not mentioned in the report and, even more perplexing, was not used to make credibility findings with respect to his testimony.
D. What Constitutes Light Working Conditions?
The captioned question refers to how the grievant was treated by the Agency after she became pregnant in June of 2002. At that time she was acting as a correctional officer responsible for the care of between 80 to 100 inmates. It is undisputed that the physical demands of the position would have been harmful after the initial period of pregnancy. On August 9, 2002, grievant informed Captain Jose Alberto Barat of her condition and requested that she be assigned to another post for the remaining stages of pregnancy. At that time she gave him the certificate of her physician recommending that she be assigned "light duties". Grievant testified that his response was that at MDC there were no positions of light duty and instructed her to return to her physician and have him eliminate his recommendation for light duties. Her testimony was denied by Captain Barat. As between the two, I found grievant’s testimony to be credible because I found her to be serious and consciously careful to be accurate in all her testimony. In the case of Captain Barat, in contrast, I found him to be less than forthcoming in his response to questions about adverse conditions affecting grievant on her job.
At the time that Captain Barat had to decide on changing grievant’s working position, these were the options: the front lobby, telephone monitor or keeping time records. Grievant requested the position of telephone monitor because it entailed no physical stress, because it would permit her to be seated while she worked and would only require her to keep a record of telephone conversations between inmates and their outside contacts. Her request was also based on her knowledge that some years earlier a correctional officer, immediately after employment had informed her superiors of being pregnant and had been assigned for the last six months of her pregnancy to the duties of telephone monitor. Captain Barat denied her request and instead assigned grievant to the front lobby position, a position which involved far more stress, both physical and emotional, than would have been true in the case of telephone monitor. His reasons were that grievant was probationary, that phone monitoring was more complex and highly stressful, that the phone monitor had to have knowledge of who the inmates were and that grievant might have to serve as a witness in a criminal case. I find his reasons to be unconvincing to justify his decision to assign grievant to the front lobby position. The latter is clearly more stressful than monitoring phone calls, involving as it does the responsibility for checking all that enter the Detention Center to make sure that they do not have on their person drugs or weapons for delivery to inmates, for lifting and carrying a metal box with keys weighing upward of thirty pounds, and for having to stand and bend for long periods of time when there were large numbers of visitors to be inspected. To this there should be added grievant’s testimony that she had on occasion had to work for six and more hours without being relieved to go to the bathroom or to have the opportunity to eat and to rest. Captain Barat’s response was that he had no knowledge of such conditions. Similarly, he testified that he knew nothing about the decision to transfer a co-worker who for a time had been of great help to grievant and who was not replaced.
Grievant testified in great detail about her superior officers’ failure to assure her a regular lunch break, to see to it that she could be relieved regularly to urinate and to have some short rest breaks. Her description of how she was treated has all the earmarks of hostility, abuse and retaliation. That is how she perceived it and in my judgement that is how a reasonable woman would view it, or for that matter any reasonable person. Her testimony was entirely credible and it was reinforced by the fact that the Agency failed to call any of the three lieutenants she named as responsible, lieutenants Rivera, Carlos and Rosa, to refute her descriptions of the working conditions which she endured. Captain Barat testified that he knew nothing about her working conditions and those who were in a position to deny grievant’s testimony, or to give their version, simply failed to make an appearance. Given grievant’s overall credibility, together with the Agency’s decision not to call witnesses in refutation, it is fair to conclude that in the months prior to her miscarriage she was regularly subjected to a pattern of conduct which can only be described as hostile and abusive. It is also fair to conclude that the most probable motive for the conduct of Agency officials was retaliation for grievant’s claim of sexual harassment and the Union’s submission of the claim to arbitration.
Those two conclusions would not hold up if the hearing record had demonstrated that MDC officials had been uniformly hard and inconsiderate with pregnant correctional officers. But the only case introduced into the hearing record was that of a pregnant correctional officer who had been treated with great consideration during her probationary period and who was assigned the telephone monitoring position precisely because it was a reasonable accommodation which could be made without adversely affecting efficient operations. By acting in that way in that case the MDC was in full compliance with public policy as set forth in the Pregnancy Discrimination Act of 1978, 42 USCA Sec. 2000e(k) and the Americans with Disability Act of 1990, 42 USCA Sec. 12101 et seq. As determined earlier, Captain Barat’s reasons for not accommodating grievant were unconvincing and, in my opinion, were pretextual in nature to avoid the appearance of hostility and retaliation. If the Agency had made a showing that following its earlier precedent would have adversely affected the effectiveness of its operations, it would have been a convincing justification for denying grievant’s request for assignment to the position of telephone monitor. But no such showing was made, certainly not in terms of "undue hardship" as is required by ADA. Hence, there was no legitimate motive proven for denying her request and every basis for concluding that grievant was subjected to a pattern of hostile and abusive treatment.
If there was any doubt about that conclusion, it is more than belied by how grievant was treated on the day she had to be hospitalized, which is considered in the following section.
E. The Culmination of The Pattern of Abusive Treatment
Grievant reported for work on November 17, 2002, at 6:15 a.m., her regular starting time. She then called her supervisor, Lt. Rosa, to inform him that she felt sick and needed help. She testified that she did not dare to ask to be relieved because in the past Lt. Rosa had always responded negatively or with indifference to her requests for help or relief. He promised to send help, but no help ever came. Some four hours later grievant observed a fellow employee leaving early and when she asked him if anything was the matter, he replied that he felt sick and was authorized to go home. Because of the abusive treatment that grievant had experienced under Lt. Rosa’s supervision, she testified that she did not dare to ask to leave. Uppermost in her mind was that she was vulnerable, as a probationary employee, and was concerned that asking to leave might be held against her. On that day grievant did not have a lunch break. At 12:15, after six hours on the job, grievant was able to go to the bathroom to urinate. She discovered that she was bleeding and notified Lt. Wanda Rodriguez who in turn informed Lt. Rosa. Arrangements were then made for an ambulance which took grievant to a hospital. The facts of what transpired in the front lobby on November 17 are a summary of grievant’s hearing testimony. They are adopted as findings of fact because I found her testimony to be entirely credible. Her credibility was reinforced by the fact that the Agency did not call Lt. Rosa to explain or refute any part of grievant’s testimony. It is therefore fair to conclude that the Agency implicitly accepted her testimony as true.
At the hospital she was informed that she had begun to dilate and that there was a danger of losing her child. An operation was performed to try to postpone the premature birth of the fetus. After three days the effort to postpone birth failed and the baby was born dead. The question to be decided in this case is whether the Agency should be held responsible for grievant’s loss of her child. The hearing record does not provide a medically certain answer. That was the testimony of grievant’s attending physician, her gynecologist, Dr. Hector Cintron Principe. He testified that contributing causes could have been the fact that the Agency failed to assign grievant a position with light duties, light duties being defined as work not requiring long periods of time standing, heavy lifting, repeated bending and, positively, as work permitting rest periods every two hours. Light duty in her case, he testified, was required because she had a small hematoma, an accumulation of blood below the placenta. Thus, in his opinion, her working duties in the front lobby, combined with the abusive disregard of her need to rest periodically, to have a regular lunch break and to regularly go to the bathroom, could have contributed to the miscarriage. On the other hand, he recognized that grievant had been in an automobile accident in October, some six weeks prior to the miscarriage, and this too might have been a contributing factor. Dr. Cintron Principe qualified that comment by stating that immediately after the accident he checked grievant and noted no damage to the fetus. He found that she and the fetus were in good health.
The fact that there is no scientific certainty about the factor or factors which caused grievant to suffer a miscarriage, does not, in my opinion, relieve the Agency of all responsibility. If the Agency had agreed to the request for light duties, implementing its duty to accord grievant a reasonable accommodation, the possibility of a miscarriage would certainly have been reduced. If the question in a civil suit were put to a jury, there is sufficient evidence in the record for a finding of contributory responsibility by the Agency for the miscarriage. Since this is an arbitration case, the determination must be made by the arbitrator. In my opinion, the evidentiary record supports a finding that the creation of a hostile and abusive working environment by the Agency was in all probability a contributing factor in causing grievant to lose her child. In addition, I conclude that the Agency must bear a part of the responsibility for the post partum depression which her physician testified she has been suffering as a consequence of the miscarriage and, as well, for the fact, as testified by her physician, that at least for a year it would be advisable to avoid becoming pregnant.
F. Hostile and Abusive Environment Proven by the Preponderance of the Evidence
There is without question a preponderance of the evidence in the record considered as a whole to satisfy the Crowley guideline: that the harassment for which the Agency was responsible "was sufficiently severe or repressive as to alter the conditions of plaintiff’s employment and create an abusive work environment". As the record demonstrates, the Agency created a climate of hostility and abuse through the actions of Warden Pastrana, Associate Warden Mejias, Associate Warden Romero, Captain Barat and Lieutenants Rivera, Carlos and Rosa. The objective evidence is that their conduct created an abusive working environment which was institutional in nature. Institutional because it was created and enforced by the highest officials of the MDC and influenced the conduct of the entire structure of supervision. Nor is the present case unique. There are findings of fact in the earlier arbitration case of grievant Migdalia Toro which also substantiate the creation of a hostile working environment
in the context of a claim of sexual harassment. What is essential to recognize in the present case is that the Union satisfied its burden of proof in the two-fold sense required by the evidentiary standards established in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981). First, the Union established by a preponderance of the evidence that the Agency had created a hostile and abusive working environment, accompanied by retaliatory action, growing out of Dr. Diaz’ Februrary 21st sexual harassment of the grievant. Second, it again proved by a preponderance of the evidence that the Agency’s justifications and defenses were pretextual in nature and therefor in no way weakened the proof of sexual harassment and the creation of a hostile and abusive working environment.
Notable throughout the nine months that encompass the elements of this case are the interactions from time to time of hostility and abuse, on one side, and retaliatory action on the other. The most clear cut example is Associate Warden Romero"s August 3rd report which did not find sufficient evidence to sustain the charge of sexual harassment and. approximately a week later, Captain Barat’s denial of grievant’s request to be assigned to the telephone monitor position. As analyzed earlier, his denial is a compelling instance of retaliatory action, as are the numerous instances of plain meaness by supervisors in not responding to the physical needs of a pregnant employee whose welfare they should have considered an integral part of their responsibility. In a real sense it doesn’t matter whether the label used to characterize such conduct is hostile, abusive or retaliatory, it is the harmful effect on grievant’s working environment which the law outlaws. That is the general purpose of Title VII, but it should be remembered that Section 704(a) specifically protects employees against retaliation for having "made a charge, testified or assisted or participated in any manner in an investigation" involving sexual harassment.
Throughout this opinion how grievant perceived the conditions created by Agency officials has been used at times as the test of illegality, that and how a reasonable woman would perceive the same circumstances. Cases like Crowley have formulated the test in terms of the perception of a reasonable person. In doing so, it was following the lead of the Supreme Court’s thinking in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that the test ought to be made extensive to persons, to human beings in general. Applying the perception test in this case, without regard to sexual distinctions, it is my conclusion that any person, subjected to the conditions created and imposed on the grievant by the Agency, would have felt as she did: that he or she was the victim of a pervasive and sustained environment of hostility, abuse and retaliation.
V. The Appropriate Remedies for Sexual Harassment in This Case
As noted at the outset, if Agency officials had from the beginning dealt with Dr. Diaz’ February 21st sexual harassment of the grievant with empathy and firmness, fully complying with their responsibility to enforce the norms of Title VII, in all probability this case would not have been submitted to arbitration and, if it had, the Agency would have been exonerated of all fault in the matter. No remedial action would have been required of the Agency. Even if the Agency had failed to take expedited and corrective action, because of a good faith difference of opinion about how Dr. Diaz’ conduct should be evaluated, but otherwise had not created a hostile and abusive working environment to grievant’s prejudice, the formulation of appropriate arbitral remedies would have been fairly straightforward. There are a multitude of cases of that type and the determination of the appropriate remedies has not been an especially difficult problem either for arbitrators or courts. See the discussions on what constitutes appropriate relief in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) and Rolstad v. American Dental Ass’n., 527 U.S. 526 (1999).
But the present case is categorically different from the general run of sexual harassment disputes. That is because of how it changed over the nine months of its development. It began like a typical sexual harassment suit, different only in the fact that the harasser sought to hide his intentions behind his position as a doctor. Deviation from the typical case commenced with the way the Warden dealt with the Union’s presentation of the grievance, unproven assertions of FAX’s being sent and of an oral order to Dr. Diaz, and a five month delay in initiating an investigation of Vergara’s February 22nd report. From the time of Associate Warden Romero’s August 3, 2002 report, indicia can be discerned of a pattern of hostility and retaliation toward grievant which was made manifest in Captain Barat’s denial of grievant’s request for the position of telephone monitor. Thereafter, the record is replete with evidence of an abusive working environment which can only be characterized as institutional in nature. It is that characteristic which makes this case so exceptional. Forty years after passage of Title VII, to find a federal agency in which the chief executive officer of a detention center and the entire structure of authority created a climate of hostility and abuse in retaliation against an employee for having submitted a sexual harassment grievance to arbitration, is nothing less than shocking. Even more appalling is the fact that the victim was pregnant. What possible justification can there be for the kind of mean spirited treatment to which grievant was subjected in the later stages of her pregnancy?
The principal problem of appropriateness of remedy in this case has to do with shaping a prescription for corrective action that will be institutional in nature. It would make no sense to instruct the Warden and the officials he directs to undergo a program of sensitivity and administrative responsibility in dealing with sexual harassment. They have taken such programs in the past, as has the entire staff. What has not taken, as evidenced by this case, is a genuine sense of commitment to full fledged, meaningful implementation. I conclude, therefore, that there would be little point to include in the award a prescription to the Warden to institute a program of sensitive awareness to problems of sexual harassment and of corrective measures to be taken when needed. Instead, there will be included in the award instructions to the Agency’s legal representative to transmit my opinion and award to the Director of the Bureau of Prisons to implement the corrective and disciplinary measures which she deems appropriate. That in my judgment is the best hope of meaningful reform.
An institutional remedy has been mentioned first because corrective action is clearly needed to change MDC’s environment, to achieve full enforcement of Title VII and thus to prevent repetition of the sexual harassment and the climate of hostility, abuse and retaliation which grievant has had to endure. Equally important is to make amends to her personally. As a consequence of the treatment she received, grievant has understandably lost confidence in the Agency’s capacity to protect its women correctional officers against sexual harassment and hostile and abusive actions by officers in supervisory positions. The Agency has the obligation to do all in its power to win grievant’s trust, by disavowing the abusive conduct to which she has been subjected in a letter of apology which should be delivered to her by the Director of Bureau of Prisons on behalf of the Agency and which should reassure her that she can count on all the legal protections to which she is entitled. This should be done for multiple reasons: to vindicate grievant’s rights by an honest acknowledgment of the wrongs committed, to earn the confidence of a correctional officer who has the qualities which the Agency should be encouraging and to clear the air so that all women employees at MDC can feel confident that they can be sure of Agency protection and support against sexual harassment. Most basic of all reasons is the need to vindicate the rule of law. The letter of apology to grievant should make plain that the Bureau of Prisons will not tolerate at MDC continuation of the sharp difference between the official law against sexual harassment and its denial in actual practice.
Attention is now in order to consider the remedies requested by the Union in the grievance it filed and in the brief containing its closing argument. This is the relief requested in the grievance:
...relief to the fullest extent available under the law...to include but
not limited to ...compensatory damages for the affected employees, posting of violation in accord with EEOC guidelines had they found such discrimination and issued the order, reimbursed attorney fees, training for the supervisors responsible, disciplinary action against supervisors responsible for the discrimination, any other remedy deemed appropriate and necessary by the arbitrator.
In its brief the Union requested that the arbitrator order the Agency to pay grievant "at least $300,000.00 in compensatory damages and attorney’s fees."
The institutional reform remedy and the personal apology which are to be awarded fall within the list of remedies requested by the Union. The request to post the "violation in accord with EEOC guidelines" needs clarification. In my judgement, whatever is posted should be a balanced presentation of past violations and the measures which have been taken and will be implemented to keep MDC free of sexual harassment. Phrased in that way it should be one of the remedies included in the award.
The reason is obvious: for the good of the institution and those who work in it, emphasis should not be on past violations, but rather on the readiness to correct them and to move on to an employment climate which Title VII was passed to achieve.
The remedies thus far considered will be included in an initial award. The hearing record does support, generally, a claim for compensatory damages and attorney’s fees, but at this juncture there is no basis for such an award in precise monetary terms.That is because neither remedy were issues considered in the arbitration hearing. The Union’s brief requests an order directing the Agency to pay grievant $300, 000.00 in a lump sum which would include compensatory damages and attorney’s fees, without indicating how that amount would be divided. Even more to the point, there is no detailed account of the items to be included in fees for attorney services, nor is there any breakdown or justification spelled out for the amount being requested for compensatory damages. Fairness requires that both parties have the opportunity to make their respective cases with respect to attorney’s fees and compensatory damages. Accordingly, the initial award will include instructions to the parties on the information needed for the arbitrator to pass judgment on the appropriate amounts to be awarded for attorney’s fees and compensatory damages in a final award. In preparing the information, the parties should proceed as they would in a Title VII case before the Federal District Court. On the question of determining damages, guidance can be found in the case of Memphis Community School District v. Stachura, 477 U.S. 299 (1986). Prior to the dates for submission of the material being required and the subsequent hearing, the parties are encouraged to meet for settlement talks.
INITIAL AWARD
1. The Union’s grievance is upheld.
2. The Agency’s legal representative is instructed to deliver this opinion and award to the Director of the Bureau of Prisons.
3. The Director is instructed to take such disciplinary and remedial measures as she deems necessary to remedy the violations committed in this case by officials of the MDC in Guaynabo, Puerto Rico, and to prevent future violations.
4. The Director is instructed to deliver to the grievant, Ms. Mei-Ling Burgos, a letter of apology on behalf of the Agency for the suffering she has endured as the victim of sexual harassment and a hostile, abusive and retaliatory working environment. The letter should also reassure the grievant that she can count on the Agency to enforce her rights as guaranteed by Title VII of the Equal Employment Opportunities Act.
5. There will be posted on MDC bulletin boards a notice of the violations which were found in this arbitration case and the remedies which were and are to be taken to keep the institution free of sexual harassment.
6. The arbitrator retains jurisdiction over issues of implementation of the above five remedies.
7.The arbitrator also retains jurisdiction to resolve in a final award the issues of compensatory damages and attorney’s fees, if the parties are unable to settle their differences through negotiation.
8. If settlement talks prove to be fruitless, the parties will submit simultaneously to the arbitrator their respective briefs on compensatory damages and attorney’s fees. In doing so, Federal District Court guidelines should be followed. The date for submission of the briefs is May 30, 2003. The date for the hearing is June 23, 2003, which is the opening day of a week of hearings on other cases between the parties.
OPINION AND INITIAL AWARD
by
David M. Helfeld
Arbitrator