Shipyard Worker Challenges His Removal for Inappropriate Conduct Before Arbitrator

A welder removed for inappropriate conduct of a sexual harassment nature took his appeal to an arbitrator. See how the case turned out.

The case is Ensley v Puget Sound Naval Shipyard and Intermediate Maintenance Facility, (CAFC No 2021-2082 (nonprecedential) 12/8/2021). The facts are as reported in the appeals court decision.

Some seven years into his work as a welder, several PSNS employees raised concerns about Ensley’s actions towards them. Following an investigation involving taking statements from several witnesses, the boss proposed Ensley’s removal. The charge was “Inappropriate Conduct” and six specifications were listed in the notice. The court’s opinion quotes these specifications in full (Opinion pp. 2-3). Each involved incidents of Ensley’s interactions with various female coworkers. One example was Specification 3: “Around approximately the summer of 2018, you and a female employee were walking to the smoke shack when you told her ‘I had a wet dream about you’ or words to that effect.” (P. 3)

Ensley replied to the proposal disputing the various specifications. The final decision upheld his removal and he and his union invoked arbitration. Arbitrator Lawrence E. Little found that the agency had presented “‘extensive’ corroborating evidence that Ensley had engaged in problematic conduct;” that this had a adverse affect at work; and removal was appropriate given the “egregious, inappropriate, and repetitive conduct.” (Pp. 3-4)

On appeal, the court has sustained the arbitrator’s decision and upheld Ensley’s removal. Responding to Ensley’s argument that the notice of removal did not contain enough details for him to understand and respond to the charges against him (his words were “incredibly vague”), the court found that it was sufficient to allow him to defend himself in his reply: “…Ensley had no trouble understanding the charge or defending himself…he addressed several of the allegations in detail.” (P. 5) 

As to Ensley’s argument that the arbitrator did not weigh the evidence offered in his defense, the court did not agree. Many witnesses helped to prove a pattern of Ensley putting many women in “uncomfortable” positions when he was alone with them. Further he did not offer witnesses at arbitration who refuted the charges. Finally, as the court notes, “even more fatal to Ensley’s argument, he admitted to some of the misconduct,” for example his admission that he had texted a coworker to “come take a bubble bath” with him. (P. 6)

The court found Ensley’s argument that there was no nexus between his conduct and the performance of his work unit “not persuasive” since evidence showed his conduct occurred while at work and the conduct interfered with his coworkers efficient performance of their work. (P. 7)

Ensley’s final argument before the appeals court was that the arbitrator committed legal errors. While the court found it true the arbitrator cited state legal requirements rather than federal, the court declined to reverse on this basis, calling it “harmless or extraneous.” (P. 8) As to the contention that PSNS was required to show that Ensley’s behavior violated Title VII of the Civil Rights Act in order to sustain his removal, the court disagreed and rejected the argument because he was not charged with violating Title VII. The agency need only prove that his behavior constituted “Inappropriate Conduct.” (P. 8)

The appeals court has sustained the arbitrator’s decision.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.