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BROOKDALE HOSP. MEDICAL CENTER v. LOCAL 1199

July 14, 2000

BROOKDALE HOSPITAL MEDICAL CENTER, PETITIONER,
V.
LOCAL 1199, NATIONAL HEALTH & HUMAN SERVICE EMPLOYEES UNION, RESPONDENT.



The opinion of the court was delivered by: Berman, District Judge.

ORDER

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 findings.*fn2

I. Background

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 established:

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 part." (Id.).

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 ...


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