FOR IMMEDIATE RELEASE January 13, 1997

CONTACT: Michael Orenstein (202) 606-1800 mworenstein@opm.gov

Washington, D.C. -- Characterizing a decision of the U.S. Merit Systems Protection Board in a sexual harassment case as outrageous, the U.S. Office of Personnel Management has appealed the Boards action to overturn a federal departments removal of a high-ranking senior executive. In its place, the board has substituted a 90-day suspension. This latest decision of the Board comes four years after it initially decided that no sexual harassment existed in this case.

Upon hearing the latest decision in the appeal originally brought against the Department of the Army by the plaintiff challenging his removal, OPM Director Jim King said the Merit Systems Protection Boards (MSPB) erroneous action is a major step backward in the struggle against sexual harassment in the federal government. King added that the decision gives cover to all those who would violate the mores of our society, and again victimizes those who come forward to report such abhorrent behavior.

King further added: The Boards rejection of the agency-imposed penalty is not only a slap in the face to the agency, but an affront to our code of decency and each agencys obligation to act in the best interest of its employees. The Boards decision sends the message that the ultimate price of creating a hostile and intimidating work environment will be small and affordable--a mere cost of doing business. As a civilized nation, we cannot accept this message to the work force.

In the 1996 decision, by a 2-1 vote the MSPB struck down the penalty imposed by the Department of the Army. Board Member Antonio Amador concurred with the departments removal of Mr. Philip G. Hillen on the grounds that the Board had no authority to overturn it. In the 1992 decision, he had concurred that Mr. Hillen was not guilty of any sexual harassment. Board Chair Ben Erdreich and Vice Chair Beth Slavet voted to overturn the separation in favor of the 90-day suspension.

In Hillen v. Department of the Army and Office of Personnel Management, the plaintiff, who supervised five major agency components from the Armys Military Traffic Management Command headquarters in Falls Church, VA, had been removed by the department for the unwelcome and deliberate touching of the thighs, buttocks and breast of a co-worker. Hillen also was charged with other acts of harassment that persisted for more than a year. These acts included giving sexually suggestive looks and engaging in sexually suggestive conversations involving several female employees with whom he worked.

Four years ago, Board members, who are appointed by the President to serve seven-year terms, initially ruled that the conduct exhibited by Hillen did not constitute sexual harassment. In June 1992, OPM appealed the Boards decision to the U.S. Court of Appeals for the Federal Circuit. By law, only OPM has the authority to appeal erroneous decisions of the MSPB to the Court of Appeals for the Federal Circuit.

With its landmark decision in April 1994 in King v. Hillen, the appeals court agreed with Director King that the Board improperly applied sexual harassment law. The court sent the matter back to the Board, instructing it to decide the case based on the totality of Hillens conduct, which included other acts of harassment over several years. Compelled to find that his egregious conduct constituted sexual harassment under law, the Board then proceeded to second-guess the Department of the Armys termination of Hillen, and substituted a mere 90-day suspension.

The Boards decision in Hillen suggests that, in a case like this, it considers any penalty in excess of a 90-day suspension, including removal or demotion, to be unreasonable and, therefore, unlawful.

In December 1996, OPM appealed the Boards imposition of the 90-day suspension to the Federal Circuit, arguing that the Board exceeded its authority in reducing the penalty.

Director King expressed concern that the Boards latest action would inhibit and intimidate victims of sexual harassment from speaking up. Even after employers discipline the perpetrators of sexual harassment to the fullest extent of the law, it will come as a shock to courageous victims who report this offensive conduct that the Merit Systems Protection Board may restore the perpetrators to their positions of authority and power at the end of the day.

Director King said there is no room in the federal government for conduct of this kind. He added that OPM will do everything in its power to end the cancer of sexual harassment in the workplace, and fervently hopes this philosophy will carry over to our society as a whole.

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