*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-60459

Summary Calendar

____________________

TEREX CORP,

Plaintiff-Appellant,

v.

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW AND ITS LOCAL

1004,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(2:97-CV-243-D-B)

_________________________________________________________________

March 23, 1999

Before KING, Chief Judge, JOLLY and DUHE’, Circuit Judges.

PER CURIAM:*

Terex Corp. filed suit in the district court seeking a

vacatur of an arbitral award in favor of the appellee. The

district court granted the appellee’s cross-motion for summary

judgment seeking enforcement of the award, and Terex Corp.

appealed. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
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This case concerns the discharge of an employee, Michael

Stump, by Terex Corp. (Terex). On January 23, 1997, another

Terex employee, Jean Hodge, complained to Terex of unwelcome

sexual contact and conduct by Stump. Terex conducted an

investigation of Stump’s conduct, and, on February 7, 1997, Terex

terminated Stump pursuant to a collective bargaining agreement

for violating an employee work rule which prohibited “[h]arassing

another employee because of that employee’s . . . sex.” 

The collective bargaining agreement between Terex and

appellee International Union of United Automobile, Aerospace,

Agricultural Workers of America (UAW) contained a four-step

grievance procedure culminating in binding arbitration. 

Ultimately, the matter was presented to an arbitrator, who, after

holding a hearing during which he heard sworn testimony from

numerous witnesses, issued an opinion on November 12, 1997. The

arbitrator found that Stump’s conduct did not “rise to the level

of sexual harassment” and concluded that Terex lacked “just

cause” for the termination. The arbitrator ordered that Stump be

reinstated with full back pay and existing benefits.

Specifically, the arbitrator made the following findings

(with citations to the arbitration record omitted):

It appears of record that Hodge and the grievant

were once on rather friendly terms having routinely

exchanged e-mail messages of a personal nature. But,

what Hodge complains of herein is that, on January 23,

“. . . (Stump) lunged towards me and grabbed me by my

arms and attempted to kiss my neck.” (emphasis added) 

Hodge also complains that soon after that encounter,

Stump sent to her, via computer, a “wiz-mail” reading

as follows:
3

i wish you’d let me!!!! pleeeeeasssssssssee let

me!!!!!!

to which she replied:

I DO NOT EVEN THINK SO!!!!!!

followed by another from Stump:

I ‘will’ get you!! and i’d appreciate your not

calling me those ugly names too... Got it???

you know what you called me when i was talking

about our walk..are you ready and or able to go out and

play yet???

. . . 

According to Hodge, following the wiz-mail she

“saw him on the packing floor and told him that I did

not want him to put his hands on me again . . . he has

not bothered me again.” (emphasis added) Nothing

further of record transpired between Hodge and the

grievant. There has been no further offensive conduct. 

Indeed, there is no showing that this similar encounter

ever “permeated Hodge’s workplace with discriminatory

intimidation, ridicule, and insult . . . sufficiently

sever or pervasive” to alter her conditions of

employment such as to “create an abusive working

environment.” The grievant’s conduct on January 23,

1997 was not “severe or pervasive enough to create an

objectively hostile or abusive work environment . . .”

such as to offend the senses of a reasonable person. 

In fact, it appears that following grievant’s attempt

to kiss her, Hodge continued to work the rest of her

shift that day, and there is nothing of record showing

that she ever lost any time due to the events at issue.

Referring to the U.S. Supreme Court’s standard of

review noted earlier [referring to Harris v. Forklift

Sys., Inc., 510 U.S. 17 (1993), and Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57 (1986)], it is observed that

the grievant’s action in “attempting” to kiss Hodge

occurred once and was not severe, nor was it physically

threatening or humiliating, and the grievant’s actions

have not been shown to have interfered with Hodge’s

work performance. “Harass” means “to disturb

persistently; torment; pester; persecute; to trouble by

repeated attacks.” Random House Webster’s College

Dictionary, McGraw-Hill, 1991, p. 609. Here, there are

no disturbingly persistent, troubling, tormenting and

repetitive actions. While the grievant’s lonesomely
4

aberrant behavior was aggressive, and most certainly

inappropriate, it does not rise to the level of sexual

harassment.

On November 25, 1997, Terex filed suit in the United States

District Court for the Northern District of Mississippi seeking

vacatur of the arbitration award. UAW filed a counter-claim

seeking enforcement of the award. Ruling on cross-motions for

summary judgment, the district judge granted summary judgment to

UAW and ordered Terex to comply with the arbitrator’s order. 

Terex timely appealed.

Terex raises three arguments on appeal. First, Terex

asserts that the district court improperly considered only the

facts as found by the arbitrator, and that, even assuming only

the arbitrator’s version of the facts, Stump’s conduct

constituted sexual harassment. Second, Terex argues that the

arbitrator’s award should be set aside as against public policy. 

Third, Terex argues that the district court erred in determining

that the arbitrator’s award drew its essence from the collective

bargaining agreement, and thus that the arbitrator did not exceed

his jurisdictional bounds. We consider these arguments in turn.

II. DISCUSSION

We review the district court’s grant of summary judgment de

novo. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party
5

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 

Although we review the district court’s grant of summary

judgment de novo, our review of the arbitrator’s award is

extremely circumscribed. “A court may not review the merits of

an award--it must accept the facts found by the arbitrator and

the arbitrator’s interpretation of the contract and applicable

law.” Manville Forest Prods. Corp. v. United Paperworkers Int’l

Union, 831 F.2d 72, 74 (5th Cir. 1987) (citing W.R. Grace & Co.

v. Local Union 759, 461 U.S. 757, 764 (1983)). 

Based on this standard of review, we have no trouble

disposing of Terex’s first point of error. Terex argues that the

arbitrator’s factual findings are clearly erroneous, and that we

should adopt a different set of factual findings it insists are

“appropriate to be found from the record.” It is clear that

“[w]e may not reconsider an award based on alleged errors of fact

or law or misinterpretation of the contract.” Exxon Corp. v.

Baton Rouge Oil, 77 F.3d 850, 853 (5th Cir. 1996). As the

Supreme Court stated in United Paperworkers International Union

v. Misco, Inc., 484 U.S. 29, 38 (1987),

Courts thus do not sit to hear claims of factual or

legal error by an arbitrator as an appellate court does

in reviewing decisions of lower courts. To resolve

disputes about the application of a collectivebargaining agreement, an arbitrator must find facts and

a court may not reject those findings simply because it

disagrees with them.

We therefore decline Terex’s invitation to review the

arbitrator’s factual findings and adopt its version of the events
6

concerning Stump’s termination.

As this court has noted, there are some limits to the

deference we must afford an arbitrator’s award. We will not

enforce an arbitration award “if it stems from fraud or

partiality; if it concerns a matter not subject to arbitration

under the contract; if it does not ‘draw its essence’ from the

contract; or if it violates public policy.” Manville, 831 F.2d

at 74 (quoting W.R. Grace, 461 U.S. at 764-65) (brackets

omitted). Terex argues on appeal that two of these exceptions

apply, contending that the award violates public policy and that

it did not “draw its essence” from the contract.

“[A]s with any other contract, arbitration awards are

subject to challenge if they violate public policy.” Gulf Coast

Indus. Workers Union v. Exxon Co., U.S.A., 991 F.2d 244, 248 (5th

Cir. 1993). A court’s refusal to enforce an award found to be

contrary to public policy is a corollary to the “‘more general

doctrine, rooted in the common law, that a court may refuse to

enforce contracts that violate law or public policy.’” Id. at

248-49 (quoting Misco, 484 U.S. at 42). When reviewing whether

the public policy exception applies, we must defer to the

arbitrator’s fact findings, but “review[] his conclusions de

novo.” Id. at 249.

The parties agree that “there is a public policy against

sexual harassment in the workplace.” However, recognition of

this public policy does not require us to vacate the arbitrator’s

award. The public policy exception is limited to situations
7

where “the contract as interpreted would violate ‘some explicit

public policy’ that is ‘well defined and dominant.’” Misco, 484

U.S. at 43 (quoting W.R. Grace, 461 U.S. at 766) (emphasis

added). The relevant question is thus whether the arbitrator’s

interpretation of the collective bargaining agreement explicitly

conflicts with established legal precedents. See id.; Gulf Coast

Indus. Workers Union, 991 F.2d at 250.

The arbitrator found that Terex lacked “just cause” in

firing Stump because Stump’s conduct did not rise to the level of

sexual harassment. The Terex employee handbook further defined

the term “sexual harassment” as

unwelcome sexual advances, explicit or implied requests

for sexual favors, and other verbal and physical

conduct of a sexual nature when (1) submission to such

conduct is explicitly or implicitly a term or condition

of an individual’s employment (2) submission to or

rejection of such conduct by an individual is used as

the basis for an employment decision or (3) such

conduct has the purpose or effect of substantially

interfering with an individual’s work performance or

creating an intimidating or hostile work place.

The arbitrator considered whether Stump’s conduct

constituted “sexual harassment,” and thus whether Stump was

terminated for just cause, with reference to Supreme Court case

law interpreting that phrase under Title VII. As the district

court noted, Terex did not allege that Stump’s conduct

constituted “quid pro quo harassment, so the application of the

first two provisions of Terex’s definition are inapposite here.” 

An employee’s conduct results in a hostile work environment

only when the conduct “has the purpose or effect of unreasonably

interfering with an individual’s work performance or creating an
8

intimidating, hostile, or offensive environment.” Meritor Sav.

Bank, 477 U.S. at 65 (internal quotation marks omitted). Whether

an environment meets this criteria must be assessed through the

eyes of a reasonable person in the plaintiff’s position, see

Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1003

(1998), and depends on the totality of the circumstances, see

Harris, 510 U.S. at 22. 

Based on the facts as found by the arbitrator, we conclude

that the district court did not err in refusing to vacate the

arbitrator’s award based on the public policy exception. The

arbitrator found that Stump had only “attempted” to kiss Hodge,

that the conduct giving rise to Stump’s termination was an

isolated occurrence, that it was not severe or pervasive, that it

did not interfere with Hodge’s work performance, and that, after

Hodge told Stump to stop, he never bothered her again. We agree

with the district court that enforcement of the arbitration

award, based on the arbitrator’s interpretation of “sexual

harassment,” would not violate the public policy against sexual

harassment in the workplace.

Lastly, we reject Terex’s contention that the arbitrator’s

award did not draw its essence from the collective bargaining

agreement and thus that the arbitrator exceeded his

jurisdictional bounds. For a decision to have drawn its essence

from the collective bargaining agreement, the award “must have a

basis that is at least rationally inferable, if not obviously

drawn, from the letter or purpose of the collective bargaining
9

agreement. . . . [T]he award must, in some logical way, be

derived from the wording or purpose of the contract.” Bruce

Hardwood Floors v. UBC, S. Council of Indus. Workers, 103 F.3d

449, 451-52 (5th Cir.), cert. denied, 118 S. Ct. 329 (1997)

(internal quotation marks omitted). As we discussed above, the

arbitrator expressly considered whether Terex had just cause to

terminate Stump with reference to the collective bargaining

agreement between UAW and Terex, including the Terex employee

handbook. We agree with the district court that it is clear that

the arbitrator’s award was derived in a logical way from his

interpretation of “harassment” under the contract and therefore

that the arbitrator did not exceed his jurisdictional bounds. We

therefore affirm the district court on this ground.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.