Arbitrator suggests union acrimony played role in accusations
A Burlington, Ont., bus driver was accused of sexual harassment after she danced suggestively, rubbed her finger over a co-worker’s bald head and made lewd comments in the presence of another driver.
Susan Catherwood had worked at Burlington Transit since 2012. In 2015 or 2016, co-worker and transit operator Daniel Alfaro said Catherwood danced suggestively near him and then approached him while he was in the lunchroom.
He initially said the “front of her leg came in contact with his body,” but he later changed his story and said, “It could be that she just rubbed her feet against mine.”
In a statement he signed about the incident, he said: “I believed she was flirting with me because her movements towards me could be described as twerking.”
However, Catherwood testified it was a Friday and she was doing a “celebratory, happy dance” that was not directed toward Alfaro.
Soon after the dancing incident, Alfaro said Catherwood rubbed her wet finger over the back of his bald head, causing him to jump up because he said it startled him. Catherwood said “yummy,” and this caused other workers in the lunchroom to laugh.
Again, Catherwood testified the incident was overblown and not meant to be sexual. She said her hands were wet due to hand cream she had recently applied.
In the third incident — reportedly about a week later — Brad Lichty, union president, and Alfaro overheard Catherwood in conversation with Jennifer McGowan (who had a previous romantic relationship with Alfaro and had accused him of harassment) talking about an erection.
Catherwood then said, “This is how you clear the room,” as Alfaro and Lichty walked out.
After an investigation, the employer terminated Catherwood on June 15, 2016, because of the organization’s hard line against any sexual harassment. “I don’t know of anybody else found to have sexually harassed who hasn’t been terminated,” said Leanne Sneddon, the City of Burlington’s human resources manager.
The union, Canadian Union of Public Employees, grieved the firing and argued the city should have employed progressive discipline due to Catherwood’s previously unblemished discipline record.
Arbitrator Lorne Slotnick upheld the grievance and ordered Catherwood to be reinstated with a two-day suspension in lieu of the dismissal.
“I find that sexual harassment by Catherwood against Alfaro has not been established, although some of Catherwood’s behaviour was inappropriate. Catherwood testified that she will stop dancing in the workplace, and I believe she appreciates that running her finger over Alfaro’s head was wrong and unwelcome.”
Previous incidents may have further muddied the situation, suggested Slotnick.
“Catherwood was the complainant in two of the three sexual harassment allegations against co-workers that resulted in dismissals after the complaints were substantiated. One of those was the union local president. It is not a stretch to suppose that some of Catherwood’s co-workers might have a score to settle.”
And there were inconsistencies that clouded Alfaro’s credibility. “Alfaro’s story changed through the investigation process. His initial statement asserts that Catherwood came into contact with him while she was dancing. It says nothing about Catherwood saying ‘yummy’ when she touched his head. Both these important aspects of the story changed when he was interviewed by the investigator,” said Slotnick.
Alfaro may have been proactively trying to solidify his position within the union because there were two factions involved in local infighting. “These comments should have alerted the employer that Alfaro’s motives could well have been not as principled as he represented, and that he may have been motivated to embellish his story to portray Catherwood as a dissolute woman prowling around the workplace,” said Slotnick.
Reference: Corporation of the City of Burlington and Canadian Union of Public Employees, Local 2723. Lorne Slotnick — arbitrator. Jane Gooding and Megan Beal for the employer. Dean Mainville for the employee. May 24, 2017.
