Chryslеr Motors Corporation (“Chrysler”) discharged Ronald Gallenbeck from his position as a fork lift operator after he sexually assaulted a female co-worker. The facts of the assault are undisputed. On January 5, 1989, during a telephone conversation, Gal-lenbeck put down the telephone receiver, approached the female co-worker from behind, and grabbed her breasts. He then returned to the telephone and stated, “Yup, they’re real.” Pursuant to its collective bargaining agrеement with Chrysler, the International Union, Allied Industrial Workers of America, AFL-CIO, and its union local (“Union”) filed a grievance protesting Gallenbeck’s discharge. Chrysler denied the grievance and the matter proceeded to arbitration. Although Chrysler presented evidence to the arbitrator that on four other occasions Gal-lenbeck intentionally grabbed and/or pinched female co-workers, the arbitrator refused to consider these four incidents because Chrysler became aware of them only after it had discharged him. 1 Aftеr examining 18 arbitration decisions involving sexual harassment, the arbitrator concluded that discharge *762 was too severe a sanction for Gallenbeck’s single transgression that the arbitrator considered, reduced the penalty from termination to a 30-day susрension, and ordered Chrysler to reinstate Gallenbeck with back pay.
Chrysler then filed an action in the district court requesting that the arbitration decision be vacated as contrary to the public policy against sexual harassment in the work placе. The district court affirmed the arbitration award, ruling that Chrysler “failed to meet its burden of identifying the existence of a well defined, dominant and explicit public policy sufficiently grounded in federal or state laws and legal precedents with which the award conflicts.”
“Pursuant to the evidence uncovered during preparation for the arbitration hearing in this matter which revealed other acts of harassment on your part directed at female co-workers, the decision has been made to terminatе your employment effective immediately. However, in lieu of returning you to work only to then effect your discharge, enclosed is cheek 62306, in the amount of $47.20, less standard deductions, representing compensation for reinstatement for one day.”
In resрonse, the Union requested that the district court hold Chrysler in contempt for attempting to evade the district court’s order enforcing the arbitrator’s award. The district court refused to find Chrysler in contempt, on the ground that the filing of Chrysler’s appeal had divested it of jurisdiction. The Union then filed a motion to dismiss Chrysler’s appeal in an attempt to clear the way for the district court to consider the contempt motion. In response to the motion, we held that the district court’s order to reinstate Gallenbeck was аppealable, and that the district court had jurisdiction to consider the contempt motion.
Chrysler Motors Corp. v. International Union, Allied Industrial Workers,
“A district court’s decision on a contempt petition is discretionary in character and is not to be reversed except for abuse of discretion or unless clearly erroneous.”
Stotler v. Able,
The central issue in this case is whether Chrysler’s almost simultaneous rein *763 statement and discharge of Gallenbeek violated the district court’s affirmance of the arbitration award requiring Chrysler to reduce Gallenbeek’s discharge to a 30-day suspension. The district court denied the Union’s contempt motion because it concluded that Chrysler had complied with its order by reinstating Gallenbeek through its March 6,1990 letter. The court reasoned that the subsequent discharge was not covered by the arbitration award that the court had ordered enforced because the other four incidents of harassment were not considered by the arbitrator in ordering the reduction in punishment to a 30-day suspension and Gallen-beck’s return to work with backpay.
When an arbitrator evaluating a discharge examines only the evidence against the employee known to the employer at the time of the discharge, and does not consider evidence against the employee discovered by the employer after the discharge, the employer is not “forever foreclosed] ... from using [the] evidence [acquired after the discharge] as the basis for a [subsequent] discharge.”
United Paperworkers International Union v. Misco,
In this case, Chrysler maintains that the arbitrator refused to consider four incidents of sexual harassment it claims Gallenbeek committed, but about which Chrysler was unaware when it discharged Gallenbeek. The Union claims that the arbitrator did take into account all the evidence Chrysler had gathered during its post-discharge investigation against Gallenbeek. While it is true that Chrysler presented all of its evidence to the arbitrator, it does not necessarily follow, as the Union asserts, that the arbitrator considered all the evidence presented when he fashioned the award. In fact, the arbitrator’s order makes clear that he did not consider the four other incidents of sexual harassment alleged by Chrysler. In his decision the arbitrator explained that
“[njothing in the record suggests that [Chrysler] looked into any of the allegations of prior sexual harassment introduced in evidence bеfore the decision to discharge the Grievant was made. A discharge decision must generally stand or fall on the evidence which the employer had in possession at the time it acted.... Arbitrators expect the charge [for] which the employer offers proof to be the charge for which discipline was originally imposed, not something the employer cites for the first time at the arbitration hearing....
“The discharge notice to the Grievant specified only the incident involving [his coworker] on January 5 [, 1989]. Nothing was said about any other sexual harassment incidents.... Thus, it appears that the Employer did not consider evidence of any other incidents when it decided that discharge was the appropriate penalty in this case.”
(emphasis added). The arbitrator then noted that of “18 [sexual harassment arbitral] cases reviewed, in only one of them ... did the arbitrator uphold the discharge where the employee had not previously been warned or disciplined or where the harassment did not involve multiple incidents or persistent harassment.” The arbitrator then explained that discharge was too harsh a sanction in Gallenbeck’s case:
“Although not a long term employee, the Grievant had a blemish free disciplinary record prior to his discharge and was considerеd to be a good employee. Furthermore, the Grievant was charged with and *764 dismissed for one incident . of sexual harassment compared with the numerous incidents present in those cases in which summary discharge was upheld_ Because the penalty here was too severe under all the circumstances, it is concluded that there was not good cause to discharge the Grievant. However, there was good cause to suspend the Grievant for 30 workdays.”
This language makes clear that the arbitrator trеated Gallenbeck’s case as involving but one single incident of sexual harassment, and refused to consider the other incidents Chrysler learned about after the discharge but before the arbitration hearing. Thus, Chrysler had “fresh evidence” upon which to base its second discharge of Gallenbeck.
The Union’s protestations that Chrysler intentionally dragged out this litigation by withholding from the arbitrator its complete knowledge of Gallenbeck’s misconduct are unsupported in the record. Chrysler presented all its evidence to the arbitrator, but was unable to persuade him to consider anything other than the evidence Chrysler possessed at the time of the first discharge. Once the district court affirmed the arbitral award, Chrysler reinstated Gallenbeck and then, acting pursuant to the еvidence its post-discharge investigation had uncovered, again discharged Gallenbeck. Chrysler’s conduct was thus entirely appropriate.
The Union also argues that Chrysler should have informed this court during the litigation which culminated in
Chrysler II
that it had already reinstatеd Gallenbeck in accordance with the arbitrator’s award, thus mooting its argument that the award was in violation of the public policy against sexual harassment. The Union maintains that Chrysler’s pursuit of its public policy argument judicially estops it from claiming in this appeal that it did reinstate Gallenbeck in compliance with the district court’s order. We disagree. “Judicial estoppel precludes parties from abandoning positions taken in earlier litigation. The principle is that if you prevail in Suit # 1 by representing that A is true, you are stuck with A in all later litigation growing out of the same events.”
Witham v. Whiting Corp.,
The district court’s action in denying the Union’s contempt motion was proper.
Affirmed.
Notes
. The crux of the Union’s appeal is that the arbitrator did consider these four incidents in ordering Gallenbeck’s reinstatement. We consider and reject this contention below.