By Barbara Haga

Last December I wrote about several MSPB decisions that included “Christmas party” in the text.  I thought it would be reasonable this year to follow up to see what other decisions had been issued in the last year or so.  I expanded the search to include EEO cases and “holiday party.”  There was a lot to work within those results!

Who are these People?

In the case of Margorie L. v. Department of the Army, EEOC No. 0120142868 (January 8, 2015), the Army attempted to dismiss a complaint that included issues based on sexual harassment and reprisal.  The events on which the sexual harassment charges were based took place at a holiday party.  The holiday party took place on December 13, 2013.  When you read the information below I hope you are thinking what I did – who are these people and how could this kind of behavior be going on at an official function today?

The complainant was an Environmental Protection Specialist.  At the holiday party, a coworker introduced her to the audience at the event as a girl “who I know really likes to ‘Ride ‘em Hard.’”  The coworker also hung a sign around her neck that said “Ride ‘em Hard.”  The complainant asserted that agency managers were present at the event and no one intervened.  There were photographs of her wearing the sign that were posted on the agency intranet.  After the event, the complainant stated that numerous coworkers continued to make comments to her such as she would get promoted because she liked to “ride ‘em hard.”

The Army dismissed the complaint.  The agency’s position on the sexual harassment issue was that it was a single incident and that it took immediate and appropriate corrective action when it removed the photos from the intranet.  The EEOC reversed the decision dismissing the complaint.

In its most positive light I suppose one might think that the comments meant that she was tough on enforcing environmental regulations, but I think there’s enough double entendre there that most of us would understand that this also could mean something quite different.

That’s just Cat being Cat”

Leevine “Cat” Williams worked as a Physical Science Technician at the Navy Drug Screening Laboratory facility in Jacksonville, FL.  The Navy removed him for conduct unbecoming with a list of specifications related to inappropriate contact with female coworkers.  The main issues in the case, and the specifications that were ultimately sustained, involved his behavior at a Christmas party on December 19, 2014 and other interactions with a coworker named Christine Bastin.

At the party a picture was taken of a group of employees.  Cat was standing behind the female coworker.  Christine reported that he grabbed and fondled her left buttock.  Cat testified that she was upset after the photo was taken and said to him, “Really, Cat, really?”  Immediately after the photo was taken Christine was crying and upset.  She reported to two coworkers what had happened and this information was shared with her supervisor who spoke to Christine personally.

After the party there was an investigation and several other employees gave statements about what they judged to be Cat’s inappropriate conduct.  One male coworker noted that he saw Cat’s hand on Christine’s waist while the picture was being taken and thought that was inappropriate.  Another female coworker reported that some months earlier Cat had brushed up against her, had come up behind her at one point, and had licked her ear.

The troubling part of this case was in the documentation regarding the second specification.  Christine had relayed a variety of complaints about Cat to her supervisor before the party.  She reported that he would look her up and down and make kissy faces to her; she also told her supervisor that Cat had said that “she needed to get laid” and that she needed to “find a sugar daddy.”  When she reported these things to her supervisor, her supervisor said “it was just Cat being Cat.”  Christine’s supervisor did offer to speak with Cat about his behavior and also explained that Christine could file a formal complaint, basically putting the onus on Christine if she wanted the supervisor to do something.  Christine said that she did not push the matter because she was probationary and was afraid of losing her job.

The supervisor’s reaction here is much too common.  The supervisor had a duty to act to inform Cat that his behavior was inappropriate.  From the other specifications in the action, it appears that there was ample evidence that his behavior was out of line not just with Christine, so the supervisor could have had the discussion without mentioning what she said.  Just because an employee doesn’t want to be identified doesn’t relieve the supervisor of responsibility for taking action to correct the misconduct.  Once you know about it, it’s on management to deal with it.

On another note, the agency’s removal included several specifications about old incidents and other complaints that were not substantiated.  There’s a lesson in this case about what should have been included as specifications and what should have been left out.  To wit, the judge found six of the eight specifications not sustained, upholding only those that related to the incidents discussed above.  They had two good specifications with good evidence and recent misconduct.  They muddied the waters with six that were weak –one didn’t even have the name of the person complaining about Cat.  Needless to say, with that many specifications not sustained, the removal was mitigated to a 90-day suspension.

It wasn’t just the failure of six of the eight specifications.  The judge’s decision points up that the supervisor’s failure to act had consequences down the road.  I don’t think I can say it any better:

“While the appellant’s conduct toward Ms. Bastin at the Christmas party was troubling and warranted disciplinary action, there are several mitigating factors which must be considered. First in my mind is the extent to which the agency’s failure to adequately address or correct the appellant’s pattern of behavior toward Ms. Bastin during the several months before this incident contributed to his behavior at the Christmas party. It is unfortunately the case that despite the appellant creating an uncomfortable and unwelcome environment toward Bastin for several months, no one within the agency had told him that his conduct was becoming a serious problem and may lead to discipline if it continues. This vacuum of leadership was made worse by the agency’s culture where workplace hug greetings among co-workers were an expected daily ritual and sexual banter was commonplace among co-workers. In my view, the agency’s permissive, hugging culture, along with management’s apathy toward “Cat being Cat” in the face of Ms. Bastin’s complaints about him sent the appellant exactly the wrong message about what sort of conduct he could likely get away with in the future. While such agency missteps in no way excuse the appellant’s behavior, especially at the Christmas party, such factors did send a confusing message to the appellant about acceptable conduct in the workplace and the impact of what he was doing toward Ms. Bastin.” (Williams v. Department of the Navy, AT-0752-15-0550-I-1 (2016)

Lesson for Management

If you are a manager or supervisor, you have some things to think about while you are making brownies for the party, wrapping the gift exchange package, or putting on your holiday finery.  If you see something happening at a holiday get together that isn’t appropriate, you need to step in to stop it.  You don’t need to be a jerk about it, but you do need to make clear that it is not acceptable and may not continue.  It won’t mean that an EEO complaint can’t be filed on the matter, but it will help reduce the agency’s liability in the case.  That’s the lesson from Margorie L.

If you haven’t dealt with issues like those reported in the Williams case, it’s not too late.  Management needs to be able to show under Douglas that the employee knew or should have known that what he was doing was not acceptable.  The Navy fell short there because they knew about the behavior and never told him it was not acceptable.  In other words, when you don’t enforce the rule, the rule doesn’t mean anything.

If you work in an environment where inappropriate conduct has taken place previously, just remember that when people are partying, potentially with alcohol involved, the likelihood of it happening again is going to go up.  So, get the word out to the group, or to individuals if there are just a few you worry about, that this year’s holiday party is going to be different.   Haga@FELTG.com

[Editor’s Note: Thanks to Barbara for bringing Williams to our attention. To get the facts straight, Williams:

  1. Grabbed a woman’s butt, and
  2. Licked another woman’s ear.

Yet the agency could not fire him because it had never told him that such behavior was inappropriate? Also, there was a “hugging culture” within the office? Each of these acts is a battery, the butt-grabbing being additionally a criminal sexual assault here in the great state of California.

No wonder people get elected who think that civil servants cannot be held accountable. Yes, management could have done more, but the greater fault in this case lies with the US Merit Systems Protection Board.]

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