Soft on Harassment?

In a rare challenge to the Merit Systems Protection Board, the Office of Personnel Management is appealing a board decision to overturn the firing of a high-ranking senior executive for sexual harassment.

OPM said MSPB's decision to reduce the punishment of Phillip Hillen, a former senior civilian manager at the Army's Military Traffic Management Command, from dismissal to a 90-day suspension was "outrageous." OPM Director Jim King called it a "major step backward in the struggle against sexual harassment in the federal government.

"The Board's 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."

The Merit Systems Protection Board had no comment on the OPM appeal because it is a pending case.

The ultimate decision in the case will have no effect on Hillen's job status, since he is now employed in the private sector. But OPM said it would appeal the decision to the U.S. Circuit Court of Appeals to challenge the precedent the decision sets.

In 1985, Hillen was fired after five women accused him of actions ranging from sexually suggestive looks to telling dirty jokes to touching a woman on her buttocks, thigh, and breast. Hillen denied the charges, saying that his actions may have been misunderstood. The Army's inspector general reviewed the case and concluded that sexual harrassment had occurred.

Hillen appealed to the Merit Systems Protection Board and appeared before an administrative judge three times. Each time the judge found that there was no sexual harassment and ordered that Hillen be reinstated. Each time the decision was appealed. The full MSPB reviewed the case and upheld the administrative judge's decision. OPM then appealed to the circuit court.

In 1994, the appeals court ruled in King v. Hillen that the board had improperly applied sexual harassment law. The court found that Hillen had committed sexual harassment, ruling that an action constitutes harassment if a "reasonable person" and the victim would consider it offensive or abusive. The court also questioned the board's decision to look at each charge of sexual harassment separately, rather than as a pattern of misconduct.

The court sent the case back to MSPB. The Board reversed its decision and found Hillen guilty of misconduct, but struck down the Army's termination of Hillen, ruling that he deserved only a 90-day suspension. So last month OPM again appealed the case to the circuit court.

The reduced punishment suggests that MSPB is easy on sexual harassers, King said. "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," he said.

OPM Legal Counsel Lorraine Lewis said her agency believes the board should defer to decisions made by agencies that have followed due process properly. The Army did so in this case, she said. Lewis said this is the first time she knows of that MSPB has challenged an agency termination of a senior executive.

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