IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-60459
Summary Calendar
____________________
TEREX CORP,
Plaintiff-Appellant,
v.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW AND ITS LOCAL
1004,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(2:97-CV-243-D-B)
_________________________________________________________________
March 23, 1999
Before KING, Chief Judge, JOLLY and DUHE’, Circuit Judges.
PER CURIAM:*
Terex Corp. filed suit in the district court seeking a
vacatur of an arbitral award in favor of the appellee. The
district court granted the appellee’s cross-motion for summary
judgment seeking enforcement of the award, and Terex Corp.
appealed. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
This case concerns the discharge of an employee, Michael
Stump, by Terex Corp. (Terex). On January 23, 1997, another
Terex employee, Jean Hodge, complained to Terex of unwelcome
sexual contact and conduct by Stump. Terex conducted an
investigation of Stump’s conduct, and, on February 7, 1997, Terex
terminated Stump pursuant to a collective bargaining agreement
for violating an employee work rule which prohibited “[h]arassing
another employee because of that employee’s . . . sex.”
The collective bargaining agreement between Terex and
appellee International Union of United Automobile, Aerospace,
Agricultural Workers of America (UAW) contained a four-step
grievance procedure culminating in binding arbitration.
Ultimately, the matter was presented to an arbitrator, who, after
holding a hearing during which he heard sworn testimony from
numerous witnesses, issued an opinion on November 12, 1997. The
arbitrator found that Stump’s conduct did not “rise to the level
of sexual harassment” and concluded that Terex lacked “just
cause” for the termination. The arbitrator ordered that Stump be
reinstated with full back pay and existing benefits.
Specifically, the arbitrator made the following findings
(with citations to the arbitration record omitted):
It appears of record that Hodge and the grievant
were once on rather friendly terms having routinely
exchanged e-mail messages of a personal nature. But,
what Hodge complains of herein is that, on January 23,
“. . . (Stump) lunged towards me and grabbed me by my
arms and attempted to kiss my neck.” (emphasis added)
Hodge also complains that soon after that encounter,
Stump sent to her, via computer, a “wiz-mail” reading
as follows:
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i wish you’d let me!!!! pleeeeeasssssssssee let
me!!!!!!
to which she replied:
I DO NOT EVEN THINK SO!!!!!!
followed by another from Stump:
I ‘will’ get you!! and i’d appreciate your not
calling me those ugly names too... Got it???
you know what you called me when i was talking
about our walk..are you ready and or able to go out and
play yet???
. . .
According to Hodge, following the wiz-mail she
“saw him on the packing floor and told him that I did
not want him to put his hands on me again . . . he has
not bothered me again.” (emphasis added) Nothing
further of record transpired between Hodge and the
grievant. There has been no further offensive conduct.
Indeed, there is no showing that this similar encounter
ever “permeated Hodge’s workplace with discriminatory
intimidation, ridicule, and insult . . . sufficiently
sever or pervasive” to alter her conditions of
employment such as to “create an abusive working
environment.” The grievant’s conduct on January 23,
1997 was not “severe or pervasive enough to create an
objectively hostile or abusive work environment . . .”
such as to offend the senses of a reasonable person.
In fact, it appears that following grievant’s attempt
to kiss her, Hodge continued to work the rest of her
shift that day, and there is nothing of record showing
that she ever lost any time due to the events at issue.
Referring to the U.S. Supreme Court’s standard of
review noted earlier [referring to Harris v. Forklift
Sys., Inc., 510 U.S. 17 (1993), and Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57 (1986)], it is observed that
the grievant’s action in “attempting” to kiss Hodge
occurred once and was not severe, nor was it physically
threatening or humiliating, and the grievant’s actions
have not been shown to have interfered with Hodge’s
work performance. “Harass” means “to disturb
persistently; torment; pester; persecute; to trouble by
repeated attacks.” Random House Webster’s College
Dictionary, McGraw-Hill, 1991, p. 609. Here, there are
no disturbingly persistent, troubling, tormenting and
repetitive actions. While the grievant’s lonesomely
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aberrant behavior was aggressive, and most certainly
inappropriate, it does not rise to the level of sexual
harassment.
On November 25, 1997, Terex filed suit in the United States
District Court for the Northern District of Mississippi seeking
vacatur of the arbitration award. UAW filed a counter-claim
seeking enforcement of the award. Ruling on cross-motions for
summary judgment, the district judge granted summary judgment to
UAW and ordered Terex to comply with the arbitrator’s order.
Terex timely appealed.
Terex raises three arguments on appeal. First, Terex
asserts that the district court improperly considered only the
facts as found by the arbitrator, and that, even assuming only
the arbitrator’s version of the facts, Stump’s conduct
constituted sexual harassment. Second, Terex argues that the
arbitrator’s award should be set aside as against public policy.
Third, Terex argues that the district court erred in determining
that the arbitrator’s award drew its essence from the collective
bargaining agreement, and thus that the arbitrator did not exceed
his jurisdictional bounds. We consider these arguments in turn.
II. DISCUSSION
We review the district court’s grant of summary judgment de
novo. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
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is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Although we review the district court’s grant of summary
judgment de novo, our review of the arbitrator’s award is
extremely circumscribed. “A court may not review the merits of
an award--it must accept the facts found by the arbitrator and
the arbitrator’s interpretation of the contract and applicable
law.” Manville Forest Prods. Corp. v. United Paperworkers Int’l
Union, 831 F.2d 72, 74 (5th Cir. 1987) (citing W.R. Grace & Co.
v. Local Union 759, 461 U.S. 757, 764 (1983)).
Based on this standard of review, we have no trouble
disposing of Terex’s first point of error. Terex argues that the
arbitrator’s factual findings are clearly erroneous, and that we
should adopt a different set of factual findings it insists are
“appropriate to be found from the record.” It is clear that
“[w]e may not reconsider an award based on alleged errors of fact
or law or misinterpretation of the contract.” Exxon Corp. v.
Baton Rouge Oil, 77 F.3d 850, 853 (5th Cir. 1996). As the
Supreme Court stated in United Paperworkers International Union
v. Misco, Inc., 484 U.S. 29, 38 (1987),
Courts thus do not sit to hear claims of factual or
legal error by an arbitrator as an appellate court does
in reviewing decisions of lower courts. To resolve
disputes about the application of a collective-
bargaining agreement, an arbitrator must find facts and
a court may not reject those findings simply because it
disagrees with them.
We therefore decline Terex’s invitation to review the
arbitrator’s factual findings and adopt its version of the events
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concerning Stump’s termination.
As this court has noted, there are some limits to the
deference we must afford an arbitrator’s award. We will not
enforce an arbitration award “if it stems from fraud or
partiality; if it concerns a matter not subject to arbitration
under the contract; if it does not ‘draw its essence’ from the
contract; or if it violates public policy.” Manville, 831 F.2d
at 74 (quoting W.R. Grace, 461 U.S. at 764-65) (brackets
omitted). Terex argues on appeal that two of these exceptions
apply, contending that the award violates public policy and that
it did not “draw its essence” from the contract.
“[A]s with any other contract, arbitration awards are
subject to challenge if they violate public policy.” Gulf Coast
Indus. Workers Union v. Exxon Co., U.S.A., 991 F.2d 244, 248 (5th
Cir. 1993). A court’s refusal to enforce an award found to be
contrary to public policy is a corollary to the “‘more general
doctrine, rooted in the common law, that a court may refuse to
enforce contracts that violate law or public policy.’” Id. at
248-49 (quoting Misco, 484 U.S. at 42). When reviewing whether
the public policy exception applies, we must defer to the
arbitrator’s fact findings, but “review[] his conclusions de
novo.” Id. at 249.
The parties agree that “there is a public policy against
sexual harassment in the workplace.” However, recognition of
this public policy does not require us to vacate the arbitrator’s
award. The public policy exception is limited to situations
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where “the contract as interpreted would violate ‘some explicit
public policy’ that is ‘well defined and dominant.’” Misco, 484
U.S. at 43 (quoting W.R. Grace, 461 U.S. at 766) (emphasis
added). The relevant question is thus whether the arbitrator’s
interpretation of the collective bargaining agreement explicitly
conflicts with established legal precedents. See id.; Gulf Coast
Indus. Workers Union, 991 F.2d at 250.
The arbitrator found that Terex lacked “just cause” in
firing Stump because Stump’s conduct did not rise to the level of
sexual harassment. The Terex employee handbook further defined
the term “sexual harassment” as
unwelcome sexual advances, explicit or implied requests
for sexual favors, and other verbal and physical
conduct of a sexual nature when (1) submission to such
conduct is explicitly or implicitly a term or condition
of an individual’s employment (2) submission to or
rejection of such conduct by an individual is used as
the basis for an employment decision or (3) such
conduct has the purpose or effect of substantially
interfering with an individual’s work performance or
creating an intimidating or hostile work place.
The arbitrator considered whether Stump’s conduct
constituted “sexual harassment,” and thus whether Stump was
terminated for just cause, with reference to Supreme Court case
law interpreting that phrase under Title VII. As the district
court noted, Terex did not allege that Stump’s conduct
constituted “quid pro quo harassment, so the application of the
first two provisions of Terex’s definition are inapposite here.”
An employee’s conduct results in a hostile work environment
only when the conduct “has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an
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intimidating, hostile, or offensive environment.” Meritor Sav.
Bank, 477 U.S. at 65 (internal quotation marks omitted). Whether
an environment meets this criteria must be assessed through the
eyes of a reasonable person in the plaintiff’s position, see
Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1003
(1998), and depends on the totality of the circumstances, see
Harris, 510 U.S. at 22.
Based on the facts as found by the arbitrator, we conclude
that the district court did not err in refusing to vacate the
arbitrator’s award based on the public policy exception. The
arbitrator found that Stump had only “attempted” to kiss Hodge,
that the conduct giving rise to Stump’s termination was an
isolated occurrence, that it was not severe or pervasive, that it
did not interfere with Hodge’s work performance, and that, after
Hodge told Stump to stop, he never bothered her again. We agree
with the district court that enforcement of the arbitration
award, based on the arbitrator’s interpretation of “sexual
harassment,” would not violate the public policy against sexual
harassment in the workplace.
Lastly, we reject Terex’s contention that the arbitrator’s
award did not draw its essence from the collective bargaining
agreement and thus that the arbitrator exceeded his
jurisdictional bounds. For a decision to have drawn its essence
from the collective bargaining agreement, the award “must have a
basis that is at least rationally inferable, if not obviously
drawn, from the letter or purpose of the collective bargaining
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agreement. . . . [T]he award must, in some logical way, be
derived from the wording or purpose of the contract.” Bruce
Hardwood Floors v. UBC, S. Council of Indus. Workers, 103 F.3d
449, 451-52 (5th Cir.), cert. denied, 118 S. Ct. 329 (1997)
(internal quotation marks omitted). As we discussed above, the
arbitrator expressly considered whether Terex had just cause to
terminate Stump with reference to the collective bargaining
agreement between UAW and Terex, including the Terex employee
handbook. We agree with the district court that it is clear that
the arbitrator’s award was derived in a logical way from his
interpretation of “harassment” under the contract and therefore
that the arbitrator did not exceed his jurisdictional bounds. We
therefore affirm the district court on this ground.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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