The opinion of the court was delivered by: KENNEDY
This case concerns the termination of a male employee following an incident at a Bell Atlantic office in West Virginia. The incident also involved a female employee, who was reprimanded but not terminated. The Communication Workers of America ("the union") challenged the termination of the male employee. The collective bargaining agreement between Bell Atlantic and the union requires that such grievances be submitted for binding arbitration. The arbitrator rendered an opinion and award finding that Bell Atlantic did not have just cause for the termination and directing Bell Atlantic to reinstate the male employee. Bell Atlantic, however, has refused to do so. The union has brought this action to enforce the arbitrator's award. Bell Atlantic has counterclaimed for a declaration that the award is "improper, as it violates public policy."
Presently before the court are the cross-motions of the parties for summary judgment. After consideration of the motions, the responses thereto, and the entire record of the case, the court concludes that the union is entitled to summary judgment.
On September 24, 1994, the defendant Bell Atlantic Network Services, Inc. ("Bell Atlantic") terminated the employment of Michael Woody for violating the company's policy prohibiting sexually harassing conduct in the workplace. Arbitration Opinion and Award at 3. Pursuant to a January 25, 1996, collective bargaining agreement between Bell Atlantic and the union, see Grievances and Grievance Meeting Procedure, Complaint App. A, the union filed a grievance on Woody's behalf and processed it through all three steps of the grievance procedure without resolution. When the parties failed to resolve the matter, it was presented to an arbitrator, who decided in favor of Woody and directed that Bell Atlantic reinstate him. Bell Atlantic has refused to do so. The union now seeks an injunction from this court directing Bell Atlantic to comply with the arbitration award.
The arbitrator made numerous factual findings regarding the incident itself as well as the conduct of the principals both beforehand and afterward. To summarize: Michael Woody and Odarise Tyree were both longtime employees at a Bell Atlantic Office in Charleston, West Virginia. In the early evening of August 31, 1994, Woody asked Tyree to assist him with a new computer system. According to Woody, while assisting him Tyree deliberately rested her breasts on his shoulder and, upon departing, called out, "Look at this" and pulled down her top and bra revealing a generous portion of her breast. Tyree denies this account.
Some three quarters of an hour later, Woody went to Tyree's desk. According to Tyree, he called out "Look at this" while standing beside her, and was holding his penis in his hand. Woody denies this account, and asserts that he only made a zipping sound to make Tyree think he was retaliating for her earlier exhibition to him.
The arbitrator concluded that Woody did reveal his private anatomy to Tyree on the evening of August 31, but went on to examine facts indicating "the extent to which Ms. Tyree may have encouraged his advances and whether or not this mitigates Mr. Woody's culpability." Arbitration Order and Award at 19. For at least a year before the incident, for example, Tyree admitted that Woody had been fondling her breasts with his hand inside her dress and under her bra on a regular basis, in a "friendly" manner. See id. at 20-21. At the time of the incident, she "did not call for help" and "did not appear taken aback," id. at 22, but instead offered him oral sex. Id. at 23. After the incident, Tyree wrote Woody a letter demanding a "financial arrangement" or else she would "file a sexual harassment charge against you with a lawyer." Id. at 7. Tyree reported the incident to management only after "several weeks" had passed. Id. at 22. Given these facts, the arbitrator stated that he could not conclude that Tyree had given Woody any reason to believe that showing Tyree his own private parts would be a shocking or unwelcome event. Id. Accordingly, the arbitrator did not find just cause for dismissal on the grounds of sexual harassment. Id.
Despite reaching this conclusion, the arbitrator proceeded to describe the conduct of both Woody and Tyree as "repugnant and distasteful by any standard of office decorum or social mores." The arbitrator stated that he would have sustained a decision to terminate both Woody and Tyree, but could not find just cause to sustain the "disparate treatment" in terminating Woody only.
A. Summary Judgment Standard
A motion for summary judgment should be granted if and only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party's "initial responsibility" consists of "informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (internal quotation marks omitted).
If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322 n.3., 106 S. Ct. 2548 at 2552 n.3. If the evidence is ...