Key
points:
·
Agency
committed
several
violations
in
administering
discipline
·
'Flagrant
violations'
result
in big
damages
·
FLRA
precedent
runs
against
punitive
award
Agency
missteps
add up
to $50K
in comp
damages,
discipline
rescission
By Sean
Hurley,
cyber
FEDS®
Legal
Editor
HOTLAW:
Agencies
should
take
note of
a recent
award by
arbitrator
Ed W.
Bankston,
in which
he
awarded
the
grievant
$50,000
in
compensatory
damages
and
ordered
the
agency
to
rescind
the
discipline
taken
against
her. The
dispute
centered
on a
90-day
suspension
for the
grievant's
role in
approving
fraudulent
payments.
The
arbitrator
found
that the
agency
failed
to
inform
the
grievant
of her
right to
union
representation
in the
investigatory
interview,
allowed
a year
to lapse
before
taking
disciplinary
action,
gave
more
severe
discipline
to
African-American
employees
and a
Hispanic
employee
than to
a white
coworker,
and
failed
to grant
a union
president
travel
and per
diem
costs as
outlined
in the
agreement.
Finding
that
this
series
of
missteps
"flagrantly
violated"
the
agreement
and
"trampled
upon"
the
grievant's
rights,
Bankston
awarded
$50,000
in
compensatory
damages
for the
agency's
discrimination,
and
$50,000
in
punitive
damages
due to
the
agency's
"gross
and
repugnant"
handling
of the
situation.
The case
is
Social
Security
Administration
and AFGE,
Local
3291,
110 LRP
31508
(Fed.
Arb.
05/28/10).
Punitive
damages
Although
the
arbitrator
awarded
punitive
damages
in this
case,
the
Federal
Labor
Relations
Authority
has
previously
held
that
such
damages
are
impermissible.
In a
case
involving
the same
agency,
Social
Security
Administration
and AFGE,
Local
3627,
109 LRP
26002
(FLRA
2009),
the FLRA
vacated
as
deficient
the
portion
of an
arbitration
award
that
granted
back pay
to
grievants
as a
punitive
measure
against
the
agency.
The FLRA
explained
that
according
to
precedent,
an award
of
punitive
damages
against
the
government
is
contrary
to law.
Compensatory
damages
The
Civil
Rights
Act of
1991
provides
for
compensatory
damage
awards
against
federal
agencies,
for
"intentional
discrimination"
(not an
employment
practice
that is
unlawful
because
of its
disparate
impact)
in
violation
of Title
VII. In
Department
of
Veterans
Affairs
Medical
Center,
Richmond,
Va. and
AFGE,
Local
2145,
110 LRP
25391
(FLRA
2010),
the
agency
argued
unsuccessfully
that an
award of
compensatory
damages
was
contrary
to the
statute.
The FLRA
noted
that the
award of
compensatory
damages
was not
made
pursuant
to the
statute,
but
rather
pursuant
to EEO
authority.
The FLRA
stated
in
IRS,
Wage and
Investment
Division
and NTEU,
Chapter
72,
109 LRP
55328
(FLRA
2009)
that the
amount
of
compensatory
damages
awarded
should
reflect
the
extent
to which
the
agency's
discriminatory
action
caused
harm to
the
grievant.
Additionally,
an award
of
compensatory
damages
must be
based on
objective
evidence,
consistent
with
damages
in
similar
cases,
and not
"monstrously
excessive."
The
arbitrator
also
awarded
travel
and per
diem
costs to
the
union
president
who
appeared
as a
witness.
This
remedy
was
based on
the
arbitrator's
interpretation
of the
bargaining
agreement.
Also on
cyber
FEDS®
:
·
Quick
Start
Guide:
EEO's
Impact
on Labor
Relations
·
Quick
Start
Guide:
Remedies
in
Arbitration
·
Union
president
wins
grievance,
but
can't
secure
comp
damages
(02/13/09)
·
FLRA
can't
judge
$200K
damages
award on
available
record
(10/09/09)
Also,
see
The ABCs
of
Federal
Labor
Relations
Law
in our
online
store
.
June 4,
2010
Copyright
2010©
LRP
Publications