FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 00-13956

Grievant Michele Albright
AFGE LOCAL NO. 1858,
Union,

and

U.S. ARMY AVIATION AND MISSILE COMMAND,

Agency.
______________________________________________/

OPINION OF THE ARBITRATOR

March 4, 2003

After a Hearing Held November 26, 2002

At Redstone Arsenal in Huntsville, Alabama

For the Union: For the Agency:

Vicki L. Fuller David C. Points, Jr.

Chief, Labor Relations Attorney
AFGE Local 1858 Department of the Army
Building 3202, Mauler Road US Army AMCOM
Redstone Arsenal, AL 35898-0001 Redstone Arsenal, AL 35898-5000
 Background

At the arbitration hearing held November 26, 2002, at Redstone

Arsenal in Huntsville, Alabama, the U.S. Army Aviation and Missile

Command (“Agency”, “AMCOM”, or “Employer”) did not deny that, on at

least two occasions, Grievant’s then supervisor, Tammie D. Newby

(“Supervisor”), stated to employee groups:

Michele ha[s] sexual needs that need to be taken care of, and Earl [a
coworker and Union vice president] [i]s supposed to take care of it.
TR @ 44.

Thus, the issue is not so much whether Grievant has been a victim of a

breach of the “fairness and dignity” provision of the collective bargaining

agreement (JX 1, “CBA”), but what the remedy should be, based upon the

evidence presented at the hearing and the arbitrator’s authority to make an

award against the federal government.

Grievant is employed by the Agency as a programmer information

management specialist in its Corporate Information Center (“CIC”) at

Redstone Arsenal. She began her career with the Agency 32 years ago as a

secretary, GS-3, and worked her way up the promotion ladder to GS-11.

Following the third step of her grievance, she was promoted from GS-11 to

GS-12. She is a member of Local 1858 of the American Federation of

Government Employees, AFL-CIO (“Union”).

2
 On March 25, 1999, Grievant filed her first step grievance (JX 2 @

19, as numbered by the arbitrator), which the Supervisor denied in a

memorandum dated May 10, 1999 (JX 2 @ 15). Grievant completed her

second step grievance form on May 17, 1999 (JX 2 @ 4). A second step

meeting was held June 14, 1999 (JX 2 @ 8). The grievance was denied at

the second step by memorandum dated June 25, 1999 (JX 2 @ 5), from

James M. Ivey, chief information officer of AMCOM (“CIO”).

Grievant’s third step letter was dated July 14, 1999 (JX 2 @ 3). The

third step grievance was supplemented by a Union position paper dated

October 18, 1999 (JX 2 @ 11), and denied in a letter dated April 5, 2000 (JX

2 @ 1), from Major General Julian A. Sullivan, Jr., the commander of

Redstone Arsenal. The Union invoked arbitration via letter dated April 27,

2000 (JX 2 @ 20). In September of 2000, Grievant was promoted to GS-12,

as she requested in her grievance.

The Union’s Position

In each written presentation of the grievance, Grievant and the Union

alleged discrimination in violation of CBA, Art 7 Sec 3.a (fairness and

dignity), Art 9 (EEO), Art 24 (merit principles), Army Regulation 690-300

Ch 335 (promotion and internal placement), and AMCOM Regulation 690-

28 (referral and selection of candidates). On the second step grievance form,

3
Grievant sought only immediate promotion to GS-12. However, as the CBA

makes clear, the information on the second step form “is not necessarily all

inclusive.” Art 69, Sec 3.b(1). In Grievant’s third step letter, she sought to

make the promotion retroactive to 18 months prior to her initial filing, i.e.,

back to September 25, 1997.

As noted above, Grievant was promoted to GS-12 in September of

2000, over two years before the hearing in November of 2002, so that the

issue of her elevation to a GS-12 position is moot. At the hearing, the Union

representative stated that the remaining issue is whether Grievant should

have received an earlier temporary promotion to GS-12 (TR @ 8-9), and

Grievant confirmed the scope of the arbitration in her testimony (TR @ 72).

She seeks 18 months’ back pay, based upon the differential between GS-12

and GS-11 compensation.

The Agency’s Position

The Agency’s position consistently has been that no discrimination

occurred. At the hearing, it argued vigorously that the arbitrator has no

authority under the Back Pay Act, 5 USC § 5595 (AX 3), to award back pay

for any period prior to Grievant’s actual promotion to GS-12, introducing

copies of United States v Testan, 424 US 392 (1976) [AX 1] and Wilson v

United States, 229 Ct Cl 510 (1981) [AX 2].

4
 Discussion Of The Hearing Testimony

In general, the testimony at the hearing was not very specific as to the

dates of incidents and the circumstances surrounding them. For example,

dates were not provided for even those outrageous events described at the

outset, although Grievant’s principal complaints were placed generally in the

1997-1999 time frame, and there were few specifics as to circumstances. As

a result, it is difficult for the arbitrator to make very specific findings.

Grievant and the Union must bear the brunt of that difficulty, because the

burden of proof is on them in this non-disciplinary case. Elkouri & Elkouri,

How Arbitration Works (ABA/BNA 5th ed 1997) @ 447-449; Hill &

Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 43.

The thrust of Grievant’s complaints is that information about

opportunities for promotion was not widely circulated but disseminated only

to favored candidates. She alleges that she would inquire about opportunities

and be informed about qualification requirements, only to discover after the

fact that the requirements had changed. She charges favoritism in the

selection process and even pre-selection of candidates.

In particular, Grievant claims that several positions to which she

aspired required experience with all three tiers of CIC’s computer

operations, PC, Unix, and mainframe. She claims that, while she had the

5
requisite experience, those selected did not. She specifically named Lynn

Eubanks, Barbara Parr, and Steven Phillips. TR @ 71. However, none of

these individuals was called as a witness, and none of their work records was

introduced.

Noticeably lacking from Grievant’s testimony were descriptions of the

temporary positions, the precise dates when she applied for them, the

durations of the appointments, any job requirements other than 3-tier

experience, and the educational backgrounds and work experiences of the

successful candidates. There is simply insufficient evidence from which to

conclude that, but for a breach of the CBA or other actionable misconduct,

Grievant would have received one of the temporary promotions which she

only vaguely describes.

Because of a lack of hard evidence, it is unnecessary for the arbitrator

to analyze CBA Art 24, AR 690-300 Ch 335, or AMCOMR 690-28 or to

determine the limits of his authority under the Back Pay Act. Although

during the grievance process, the Union repeatedly cited CBA Art 24, AR

690-300 Ch 335, and AMCOMR 690-28, neither party discussed them in its

brief.

The arbitrator does, however, note that much has transpired since

Testan, supra, most notably passage of the Civil Service Reform Act of

6
1978 and entry of the Agency and Union into their collective bargaining

agreement in 1981; see CBA Art 24 Sec 9, “Corrective Actions”. Neither

Testan nor Wilson, supra involved collective bargaining. For a more recent

perspective, see Hill & Sinicropi, Remedies in Arbitration (BNA 2nd ed

1991) @ 414-417.

Nor did Grievant and the Union make out a case of age discrimination

or sexual harassment. With respect to age discrimination, she testified as

follows:

Q. Also you have stated discrimination based on age. Were these

employees under the age of forty?
***
A. … I think the one that I finally filed the grievance on, I think there
were five or six temporary promotions, and only one was over forty.
Q. Okay. So of the five or six temporary promotions that the
grievance is on, out of the five or six there was one that was over forty
besides you?
A. [Yes]. TR @ 71-72.

Mere counting arguments do not make out a case of age

discrimination, especially with such a small sample. No evidence was

presented as to the demographics of the Agency’s workforce. There simply

is no basis on which to conclude that selection of only one out of six

candidates over age 40 has any statistical significance, or that age was even

a factor in Grievant’s non-selection for temporary promotion. To the extent

that Grievant alleges age discrimination, her grievance must be denied.

7
 Neither can her allegation of sexual harassment be sustained. Henry

Earl Smith, the Union’s AMCOM vice president and the gentleman who the

Supervisor suggested should take care of Grievant’s sexual needs, testified

that he thought the Supervisor’s remark was intended to intimidate him,

because she saw him as a potential competitor for a GS-14 position to which

she aspired. TR @ 45. He went own to state that “[i]t had no sexual content

….” TR @ 46. Grievant testified that she filed an EEO complaint against the

Supervisor for the remark but did not want any action taken other than

counseling for the Supervisor. TR @ 74.

The Supervisor’s conduct cannot be excused because she and

Grievant are both female, as same-sex harassment is unlawful. Oncale v

Sundowner Offshore Services, 523 US 75 (1998). Nor can it be excused

because it offended both sexes. Hutchinson v Amateur Electronics Supply,

Inc, 42 F3d 1037 (7th Cir 1994). Rather, the evidence presented fails to make

out a case of sexual harassment, as that term is defined in EEOC regulations,

29 CFR § 1604.11(a), and the case law. Clark County School District v

Breeden, 532 US 268 (per curiam), reh den 533 US 912 (2001); Veterans

Administration, 115 LA 198, 02-1 ARB ¶ 3067, 166 LRR 168, 101 FLRR 2-

1107 (Cornelius Arb 2000).

There is, of course, no suggestion that the Supervisor’s conduct

8
constituted sexual harassment1 of the quid-pro-quo type. It could be

classified, if at all, in the hostile environment category of sexual harassment,

but was not so severe or pervasive as to alter the conditions of Grievant’s

employment and create an abusive working environment. Clark County,

supra, 532 US @ 270.

The arbitrator concludes that the Supervisor’s conduct constituted “a

mere offensive utterance”. Id. @ 271; citations omitted. Indeed, Mr. Smith

himself interpreted the remark as being not so much sexual in nature as

insulting and demeaning, commenting, “There was nothing going on to even

deserve that whatsoever.” TR @ 45.

The CBA’s “Fairness and Dignity” Provision

The fact that the Supervisor’s crass comment did not rise to the level

of sexual harassment does not mean that it did not otherwise violate the

CBA, Art 7 Sec 3.a of which provides:

All employees shall be treated with fairness and dignity.

Beyond peradventure, the Supervisor violated this contractual provision by

speaking of Grievant and the Union vice president in a singularly demeaning

manner before their coworkers. While concluding that a violation occurred is

easy, determining the arbitrator’s authority to make an appropriate award is

1
Curiously, neither Grievant nor the Union cited Art 66 of the CBA on Sexual Harassment.

9
not.

Mitigating Factors

Before discussing the limitations on the arbitrator’s authority to make

an award against the federal government, the arbitrator notes that the

Agency addressed some of Grievant’s major concerns prior to the hearing.

Like most dates in this case save those appearing on documents, the date the

current CIO took over is uncertain, but it appears to have been about the

time Grievant filed her first step grievance.

While the CIO denied her second step grievance, he did set new

guidelines for temporary promotions (JX 2 @ 17) in response to her

concerns. She was promoted on his watch, and Grievant and her Supervisor

separated so that the Supervisor no longer is over her, although the reason

for the separation is unclear. The Agency hardly has been unresponsive to

Grievant’s concerns. The Agency’s genuine efforts to appease Grievant

factor heavily into the arbitrator’s conclusion about his authority in this

matter. The major issue not clearly addressed is the Supervisor’s demeaning

remark.

Also affecting the decision is the fact that Grievant did not present

evidence of any financial loss as a result of the Supervisor’s repeated

remark. While Grievant certainly suffered some degree of emotional injury,

10
she was not so severely affected as to require medical treatment or

counseling. At no stage of the grievance procedure did she seek

compensation specifically for these incidents, and the Union’s brief requests

none. What Grievant suffered was insults to her dignity, which are largely

non-compensable.

Remedial Limitations

Grievant’s complaints may lack precision, but they do not lack

substance. Even the Supervisor admitted that information about temporary

positions was not widely circulated before the CIO’s reforms. TR @ 122-

123. Grievant has been promoted as she requested and so arguably has

prevailed in that respect. What remains are the issues of back pay and a

remedy for violation of the CBA’s “fairness and dignity” provision. As

decided above, the evidence regarding the Agency’s failure to promote

Grievant sooner is insufficient to carry her heavy burden under the Back Pay

Act.

Although the arbitrator feels that Grievant ought to be compensated

for the embarrassment and humiliation heaped upon her by her Supervisor,

he has searched in vain for authority to sustain such an award. As usual, the

CBA is of little help. He reviewed Elkouri & Elkouri, supra; Hill &

Sinicropi, Remedies, supra; and “Remedies Available and Not Available in

11
the Federal System”, Federal Civil Service Law and Procedures (BNA 2nd

ed 1990) @ 383-391, to no avail. The Union has produced no citation on

point. As a result, the arbitrator concludes that he is without authority to

award Grievant relief beyond that which she already has obtained from the

Agency.

Caveat

The result in this case should not be viewed as insulating the Agency

from liability for scabrous remarks made about Union employees. In a future

case, an arbitrator may find evidence of financial injury or insults so

pervasive as to create a hostile working environment. Forewarned is

forearmed.

Award

For all the foregoing reasons, the grievance is SUSTAINED as to the

charged violation of the “fairness and dignity” provision of the collective

bargaining agreement but OTHERWISE DENIED.

Dated March 4, 2003

_____________________________
E. Frank Cornelius, Arbitrator

12