The opinion of the court was delivered by: Berman, District Judge.
On or about August 27, 1999, Brookdale Hospital Medical Center
("Petitioner" or "Brookdale" or "Employer") commenced this action
against Local 1199, National Health & Human Service Employees
Union ("Respondent" or "Union") to vacate an Opinion and Award
issued on July 12, 1999 ("Award") by labor arbitrator Lois A.
Rappaport ("Arbitrator"). The Award reinstated five employees
("Grievants") that Petitioner had discharged because they had
allegedly engaged in sexual harassment in the workplace.*fn1 The
Union contends that the Grievants were discharged without just
cause and that the Award reinstating them should be confirmed.
For the reasons set forth below, this Court remands the Award to
Arbitrator Rappaport for further clarification as to her
Grievants Freeman Williams, Leslie Culzac, Angelo Brown, Sean
Brown and Dale Kelly all worked for Petitioner as part-time or
full-time transporters. (Mr. Williams worked as the Lead
Transporter and, on weekends, as Dispatcher.) The Petitioner had
hired Mr. Williams on January 29, 1990; Mr. Culzac in October,
1995; Mr. Angelo Brown in July, 1994; Mr. Sean Brown in 1991; and
Mr. Kelly in January, 1989. (Award at 5).
Petitioner contends that over a period of six months the
Grievants sexually harassed and created a hostile work
environment for a female co-worker, Transporter LaTisha Ellis.
Ms. Ellis, hired as a Transporter in November 1997, testified
that she was "treated fine" at first by the Grievants but then it
"got out of hand." (Id., at 9).
Ms. Ellis described several alleged incidents involving one or
more of the Grievants. Ms. Ellis testified that Mr. Williams
"would approach her, make comments about her physical appearance,
and ask her when she was going to sleep with him" and that Mr.
Williams "would bump her and push up against her in the elevator
and would continue to touch her even after she told him to stop."
(Id.). She also described an alleged incident in which "Mr.
Williams dragged her down the hall to the bathroom . . . pushed
her in, turned off the light and had her against the wall
[trying] to get her pants off." (Id.). Though Ms. Ellis could
not recall when this occurred, she testified that she "pushed
[Mr. Williams] away, turned on the lights and told him to stop."
(Id.). Ms. Ellis described another incident which
presumably occurred on March 28, 1998, in which she told Mr.
Williams, who was sitting in her lap, to "get the fuck off me,"
to which Mr. Williams replied that he "`does not disrespect her'
as she had just done to him and he hit her on the shoulder with
his open hand." (Id., at 10). According to Ms. Ellis, Mr.
Culzac also "asked her for sex and had kissed her behind the
staircase," and when she found out that he was married, she "told
him to stop, but he did not." (Id.).
Ms. Ellis also described an incident which allegedly occurred
on Sunday, March 29, 1998, which involved her, Mr. Sean Brown,
Mr. Angelo Brown and Mr. Kelly. Ms. Ellis testified that, in this
incident, "Mr. Kelly unzipped his pants, put jelly on his pants
and then made a bet with [Mr.] Sean Brown and [Mr.] Angelo Brown
that Ms. Ellis would lick it off of him." (Id.). George
Nicholas, who, according to Ms. Ellis, was in the room at the
time, "held the money" that the others put down. (Id.). Ms.
Ellis testified that she was upset and "did not make it known"
that she was going to perform the act and then "took the money
and left." (Id.). She testified that when Mr. Angelo Brown
later asked Ms. Ellis for his money back and she said she did not
have it, he said "I am not playing with you, I will kill you."
She then said that "the money was on the desk . . . and she threw
the $20 on the desk." (Id., at 10-11). Ms. Ellis testified that
she "was romantically interested in Mr. Williams and that she and
Mr. Culzac had had a romantic relationship." (Id., at 11). She
also said that after Susie Williams [another Transporter] "told
her that both men were married, she was no longer interested in
them and told them to leave her alone."*fn3 (Id.).
From April 3, 1998 to April 15, 1998, Grievants individually
received disciplinary notices from Petitioner suspending them
"indefinitely pending investigation for a violation of the
Employer's sexual harassment policy."*fn4 (Id., at 5). On May
8, 1999, Petitioner terminated Grievants, following an
investigation conducted by Senior Vice President Margaret
Johnson. Ms. Johnson stated that "in accordance with the
Employer's policy against sexual harassment, [she] began an
investigation" and "questioned the credibility of those
questioned." Ms. Johnson found Ms. Ellis to be "credible" and a
"simple, immature, timid woman who was the victim of daily
intimidation by people who would make fun of her." (Id. at 15).
Ms. Johnson concluded that "termination was the appropriate
penalty for all five individuals because they `participated in
inappropriate conduct, use of offense [sic] language.'" (Id.,
citing Employer Ex. 9). These termination actions gave rise to
the instant arbitration.*fn5 Ms. Johnson also included in her
report to the Employer's human resources department a "charge"
that Mr. Angelo Brown "threatened the life of two Brookdale
employees"*fn6 and a "charge" against Mr. Culzac for "failure to
cooperate with the Hospital's investigation." (Id.).
The Employer contends, among other things, that the actions of
the Grievants created "a hostile work environment for Ms. Ellis
and subjected her to unwanted sexual, physical and verbal abuse."
(Id. at 9). Petitioner does not oppose the reinstatement of Mr.
Culzac but does oppose the reinstatement of the other four
Grievants as violative of the public policy against sexual
harassment in the workplace.*fn7 Respondent cross-moves this
Court to confirm the Award. Respondent argues that "summary
affirmance of arbitration awards is the rule, and the public
policy exception the Employer seeks to invoke is very narrow."
(Resp't Mem. in Opp'n to Pet'r Pet. to Vacate ("Resp't Mem.") at
1). Respondent contends that Petitioner has failed its burden to
prove that there is a "well-defined and dominant public policy
calling for the industrial equivalent of capital punishment for
every incident which an employer characterizes as sexual
harassment." (Resp't Reply Mem. In Supp. of Cross-Pet. to Confirm
("Resp't Reply Mem.") at 1).
II. Arbitrator's Findings
The Arbitrator rendered her decision on July 12, 1999. While
the Arbitrator seems to have concluded that some of the
allegations were not conclusively proven, the following was
Mr. Williams. "It is undisputed that there was an interaction
between Ms. Ellis and Mr. Williams on March 28, 1998 in the
Transportation Office." (Id., at 24). However, the Arbitrator
found "most of the testimony given by Mr. Williams, Ms. Ellis and
Ms. Susie Williams to be in conflict." (Id.). The Arbitrator
"credit[ed] the testimony of Ms. Ellis and Ms. Williams," (Id.,
at 25), and concluded that "regardless of whether Mr. Williams
was sitting on Ms. Ellis' lap or sitting next to her and touching
her under the table, Mr. Williams was engaging in inappropriate
conduct." (Id.). The Arbitrator further stated that she was
"supported in reaching the conclusion that Mr. Williams was
engaged in inappropriate conduct and was `playing' with [Ms.
Ellis] given his testimony that he told Ms. Ellis `I will not
play with you no more and you will not play with me. I will
dispatch and you will take them and that's it.'" (Id.). The
Arbitrator did not "find Mr. Williams' testimony to be
believable, that is, that he was merely having a discussion with
Ms. Ellis and she became upset because of a work assignment and
his mention of Richie Williams." (Id.). The Arbitrator did
"credit Mr. Williams' testimony that after Ms. Ellis told him to
leave her the `fuck' alone, he stated to her, `You are being
disrespectful now. I don't curse at you, so I would appreciate it
if you don't curse at me.'" (Id.). The Arbitrator was
"persuaded that it was Ms. Ellis who hit Mr. Williams in her
attempt to dislodge him from her lap or to get him to stop
touching her. Accordingly, the Arbitrator [found] no reason there
in for Mr. Williams to have hit Ms. Ellis, as she claim[ed]."
(Id., at 25-26). With respect to Ms. Ellis' allegation that Mr.
Williams dragged her down the hallway and into the bathroom, the
Arbitrator found that Ms. Ellis' testimony "strain[ed] credulity
. . . [and] her answers [were] . . . vague and inconsistent,"
(Id., at 26-27), and therefore "[did] not find Ms. Ellis'
testimony . . . to be believable . . . [and concluded] that [the]
incident did not occur." (Id., at 27). The Arbitrator also
found it "incredible" that "Ms. Ellis could not remember when
this event occurred, nor did she report it" and
that "the record indicates that even after this calamitous event,
Ms. Ellis continued to speak to, and be friendly with, Mr.
Williams." (Id., at 27). The Arbitrator concluded that "Mr.
Williams did not engage in a sexual assault of Ms. Ellis,"
(Id.), but "that Mr. Williams engaged in unwanted touching of
Ms. Ellis which constitutes sexual harassment" and that "the
charges terminating Mr. Freeman Williams [were] sustained in
Mr. Angelo Brown. "It is undisputed that an interaction
occurred between Ms. Ellis, Mr. Kelly, Mr. Angelo Brown and Mr.
Sean Brown on March 29, 1998 in which a money wager was made."
(Id., at 27). The Arbitrator found that "Ms. Ellis admitted
that she threw a packet of jelly" and that "a packet of jelly
landed in Mr. Kelly's lap, although how it got there is in
dispute," and that "a money bet was made by Mr. Angelo Brown and
Mr. Sean Brown . . ." (Id., at 28). The Arbitrator also found
that "both Mr. Sean Brown and Mr. Angelo Brown engaged in
inappropriate behavior when they participated in the bet
regardless of whether or not they thought it was all a joke."
(Id., at 29). The Arbitrator concluded that "while Ms. Ellis'
behavior in throwing the jelly can be questioned, . . . it was
Mr. Kelly, Mr. Angelo Brown and Mr. Sean Brown who engaged in
inappropriate conduct." (Id., at 30). "It is undisputed that
Mr. Angelo Brown asked Ms. Ellis for his money back." (Id., at
31). Ms. Williams testified that she "observed the interaction
between Mr. Brown and Ms. Ellis" and stated that "when Ms. Ellis
started to walk away from him, Mr. Angelo Brown grabbed her arm."
(Id.). The Arbitrator found "Ms. Williams' testimony to be
believable." (Id.). The Arbitrator was "persuaded that Mr.
Angelo Brown did grab Ms. Ellis' arm in an effort to prevent her
from walking away." (Id.). The Arbitrator was "not convinced
that Mr. Angelo Brown threatened to kill her." (Id.).
"Nevertheless, this action by Mr. Angelo Brown and his
participation in the bet constitute inappropriate conduct."
(Id.). The Arbitrator concluded that "Mr. Angelo Brown also
engaged in inappropriate conduct which included the unwanted
touching of Ms. Ellis" and found that "this physical conduct
[fell] within the Employer's definition of sexual harassment."
(Id., at 33-34).
Mr. Sean Brown. As noted, the Arbitrator concluded that "an
interaction occurred between Ms. Ellis, Mr. Kelly, Mr. Angelo
Brown and Mr. Sean Brown on March 29, 1998 in which a money wager
was made." (Id., at 27). The Arbitrator also found that "both
Mr. Sean Brown and Mr. Angelo Brown engaged in appropriate
behavior when they participated in the bet regardless of whether
or not they thought it was all a joke." (Id., at 29). The
Arbitrator concluded that "while Ms. Ellis' behavior in throwing
the jelly ...