ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
Wendy Jo Brown was an exchange detective at the Army and Air Force Exchange Service (AAFES) regional exchange in Fort Meade, Md., when she first met William Boyd, chief of safety and security for AAFES's Eastern region. Boyd was not directly involved in decisions affecting Brown's employment, but he did supervise at least one of her direct managers.
She next ran into Boyd during a required AAFES conference almost a year later. Boyd hosted a party in his hotel room for his colleagues on the first night of the conference. By 11:30 that night Brown was the only one left at the party and Boyd took the opportunity to express his desire for her. After some attempted advances, Brown escaped back to her own hotel room.
She reported the incident to one of her co-workers in a managerial position, but ultimately decided not to do anything about the incident. All was fine until the next AAFES conference in September. Brown again went to Boyd's non-mandatory party. According to Brown, her supervisors stressed to her that she should attend to further her career.
Once again, Brown was the last person there. She and Boyd left the hotel and went to a pub and then to a reggae bar until midnight. Brown accompanied Boyd back to his hotel room under the condition that he would not touch her in any way. But he broke his promise, and Brown felt sexually harassed again.
She told her supervisors about the incident after the conference and later filed an EEO complaint. Boyd was prohibited from having any contact with her. He issued a formal apology and received a 30-day suspension. But things went downhill for Brown. In January 1994 she was diagnosed with post-traumatic stress disorder and depression. She divorced her husband and left her job.
Three years later, on January 5, 1996, Brown filed a sexual harassment suit against the Secretary of Defense, alleging that the department should be vicariously liable for her supervisor's sexual harassment. A federal district court ruled against Brown. She suffered no tangible employment action as a result of her harassment, the judge said, and the agency met its burden of trying to prevent and correct the sexual harassment, based on what they were told.
Brown, on the other hand, "utterly failed to avoid harm," the court ruled. In fact, she put herself in a situation that allowed the same advances to occur again. As such, the agency cannot be held responsible for the sexual harassment, the district court ruled.
Lesson: The bar is higher if you want to hold an agency accountable for a manager's harassment.
Wendy Jo Brown v. William J. Perry, Secretary of Defense, Equal Employment Opportunity Commission (97-1501, 4th CIR 99), July 14, 1999.
Per Diem Debacle
Two Army civilian employees traveled to St. Petersburg, Fla., in January for a training trip. Patricia Liegey stayed at a hotel that cost $99 per day, while Linda B. Webb opted for a hotel with a daily rate of $87.67. Both rooms were under the St. Petersburg per diem rate, which was $103 per day for lodging. Or so Liegey and Webb thought, until mid-way through the training week, when they discovered the lodging per diem for St. Petersburg had been reduced to $59 per day as of Jan. 1. When they got back both women asked to be reimbursed for the actual cost of their rooms, but their requests were denied.
Upon review, the General Services Board of Contract Appeals said the Army's refusal to reimburse the women at the actual rate of their rooms was an "abuse of its discretion." The Army had the authority to approve the request and the travel orders the women received authorized a per diem for lodging of $103 per day.
GSBCA also noted that the women proved that lower rates were not available in St. Petersburg at the time they were there. Five months later, the January lodging per diem for St. Petersburg was raised to $105. Such a drastic switch in rates proves that the $59 rate was inadequate, GSBCA said. As such the Army's decision was "arbitrary, capricious and clearly erroneous," the judge ruled.
Lesson: Don't deny your employees a reasonable per diem, if you can help it.
E. Patricia Liegey and Linda B. Webb vs. Department of the Army, General Services Board of Contract Appeals (GSBCA 14964-TRAV), July 19, 1999.
Butting In
In May 1997, the General Services Administration decided to make the cafeteria at the Bolling Federal Building in Kansas City, Mo., a non-smoking area. All the agencies housed in the building, including the Social Security Administration, approved the smoking ban. But SSA didn't discuss the proposal with its union, Local 1336 of the American Federation of Government Employees, before making its decision.
The union filed a grievance against the agency for not bargaining over the no-smoking decision. SSA pointed out that its labor-management agreement with the union established a no-smoking policy in all SSA facilities. The union countered that the Bolling building is a GSA building, not an SSA facility.
On June 30 of this year, The Federal Labor Relations Authority sided with the union and ordered SSA to retract its support of the two-year-old smoking ban until it bargained over the issue with the union.
Lesson: When it comes to deciding where employees can smoke, don't tell the union to butt out.
SSA v. AFGE, Federal Labor Relations Authority (55 FLRA No. 95), June 30, 1999.