By Deborah Hopkins, May 17, 2017

Last week, Bill and I were in Denver providing training to a bunch of supervisors from agencies across the country. One of the things we regularly discuss during training classes is why so many agencies don’t take disciplinary action against people who deserve to be disciplined. A warning: the situation I’m about to describe is crass, so read at your own risk.

Let me give you an example of one such conversation; I’ll call it a hypothetical even though it’s not. Agency employee (let’s call him Jimmy) is retirement-eligible but hasn’t yet retired. A couple of times a day, Jimmy walks in to a closet, strips down completely naked, and masturbates during his normal work hours.

The closet is one that other agency employees commonly access for supplies. There have been several instances of employees going to the closet for paper, staples, etc., and opening the door to find Jimmy in the middle of his routine.

And the agency has done NOTHING to discipline Jimmy.

Jimmy is spending quantifiable government time, paid by the taxpayers (that’s you, and that’s me), to masturbate – and the agency doesn’t take action because the supervisors “hope” he will just decide to retire. Now, I don’t know Jimmy personally but I think it’s a pretty good bet that he’s not motivated to retire because he is getting paid to pleasure himself on the clock.

If you’ve been in this business longer than five minutes, then it is not a surprise to you that many agencies have dealt with employees masturbating on government time. Here’s the deal: masturbation at work, on government time, is a removable offense. If you want to read a case involving shock and awe related to this type of inappropriate sexual conduct in the workplace, check out Jardim v. Army, CH-0752-08-0147-I-2 (July 22, 2008). In Jardim, the appellant’s removal for “immoral, indecent, or disgraceful conduct” was affirmed after evidence showed he masturbated at work and in the process exposed himself to a coworker and got semen on her jacket.

In another case, an employee’s removal was sustained after he was seen by others masturbating in a government vehicle; at a different time he masturbated in front of a female coworker. The charge there? “Ejaculating or releasing bodily fluids in a government office, while on duty.” Ever have to charge someone with that? It works. Lee v. OPM, CH-844E-06-0525-I-1 (September 18, 2006).

Need more? I’ve got them. How about Venneri v. Navy, PH-0752-05-0389-I-1 (October 19, 2005), where the appellant exposed himself to a female coworker and started masturbating in front of her? Fired and removal upheld. What about the supervisor who ejaculated onto his employee’s desk after work hours and the next morning told her he had “left a present” on her desk? Charge him with “conduct unbecoming a supervisor” = see ya later, Supervisor Wagner. Wagner v. DOJ, DE-0752-03-0466-I-2 (September 14, 2004).

Plenty more still, but I think you get the idea. Masturbating at works is serious misconduct, particularly when others are exposed to the conduct.

It’s a problem too because, in addition to being a poor management decision, refusal to discipline this misconduct puts other employees at risk and creates the potential for an EEO claim of a hostile work environment. A hostile work environment is created when the victim is subjected to unwelcome conduct that is based on a protected category, and the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). An agency can absolve itself of liability only if it shows it took immediate corrective action and the complainant does not take advantage of any corrective measures. See Quinn v. U.S. Postal Service, EEOC Appeal No. 05900546 (1990).

In our non-hypothetical hypothetical above, we run into a liability problem because the agency is on notice of Jimmy’s conduct and has not done a darn thing to put a stop to it. There’s no question this is unwelcome conduct and there’s no question that it’s sexual, so the only thing we need to consider is whether the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. How many times does another employee have to go to the closet in search of paper clips and discover a stark-naked Jimmy masturbating, in order for it to affect the terms or conditions of her employment? If every time I need office supplies, I hesitate before opening the closet door because of what I’m afraid I might find inside, I’m thinking that it doesn’t have to happen a whole lot of times to meet that legal standard of “severe or pervasive.” I guarantee you that if I see that once, I’m never ever going back for more paper clips.

Just one isolated instance of unwelcome sexual conduct can be found to be severe enough to create a hostile work environment – even if the agency does not discipline the conduct. See Weaver v. U.S. Postal Service, EEOC Appeal No. 0120065324 (2008) (a male employee ground his pelvis into a female coworker’s buttocks and EEOC found a hostile environment even though the agency did not discipline the male employee).

If you follow the news, you may have noticed last week that DOJ is in the process of making a $20 million settlement with a class of female corrections officers who were exposed to harassment based on sex for a number of years, and Bureau of Prisons officials did not do enough to correct and prevent the harassment from continuing. Among the conduct? You betcha, males masturbating in front of the women or in places they knew the women might be at any given time. See also Lemons v. BOP, EEOC Appeal No. Appeal No. 0120081287 (April 23, 2009); Wilson v. BOP, EEOC Appeal No. 01A23614 (February 3, 2004); EEOC v. Indiana Bell, No. 99-1155 (S.D. Ind. 2000).

There are times when agencies win the liability argument. In a recent case form the Federal Bureau of Prisons, a female corrections officer informed the agency of inappropriate sexual conduct by inmates (including inmates masturbating in her presence), on 17 occasions in a one-year period. The EEOC found that the inmates’ conduct did rise to the level of sexual harassment, but that the agency was not liable because it took immediate corrective action in 16 of the cases to sanction the inmates’ conduct and to protect the employee from further instances. Larae S. v. BOP, EEOC Appeal No. 0120143209 (March 9, 2017).

In another instance, employees at FAA would commonly take “dumpster breaks” at the agency facility; “dumpster breaks” were widely known among employees as code language for people masturbating behind the dumpster in back of the agency facility. Shalon C. v. FAA, EEOC Appeal No. 0120141603 (July 21, 2016). The agency won this one because employees never made management aware that the conduct was occurring and the “dumpster breaks” were routinely taken after the supervisors had left for the day – so the agency was not on notice and had no opportunity to investigate and correct it, until after the complaint was filed.

Let me be clear: even though the agencies were not liable because, as in Larae S., the BOP took immediate action, or like in Shalon C. the FAA was not aware of the conduct and could not have reasonably known it was occurring, this liability defense is NOT an excuse to allow this type of conduct at work. EEO cases are not the same as MSPB cases, and EEOC notes in most of the decisions that the conduct should be addressed in a separate forum. In Jimmy’s case, the agency leadership knows about the conduct, and has chosen not to charge anything. I hope someone from that agency reads this article and realizes it’s a situation that’s too dangerous to leave alone with the hope that Jimmy decides to finally retire.

Bottom line: why would you ever refuse to discipline someone for such serious misconduct when the conduct might create a hostile work environment for your other (good, hard-working) employees? I just don’t get it.

Hopkins@FELTG.com

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