0220070001
01-14-2009
Agency.
Eugene F. Polite,
Grievant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0220070001
Agency No. 0-AR-3921
DECISION
Grievant filed a timely appeal with this Commission from a decision of
the Federal Labor Relations Authority (FLRA) dated October 27, 2005,
concerning his grievance alleging unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission REMANDS the case
for a supplemental investigation, in accordance with this decision.
BACKGROUND
The record reflects that grievant is employed by the agency as a
Laborer and that, in July 2002, grievant suffered a severe head injury
during a robbery. Grievant alleged that the head injury caused him to
experience memory loss, equilibrium difficulties, and migraine headaches.
Grievant further alleged that medication he was required to take as a
result of his injury caused him to suffer various side effects, including
fatigue and diarrhea.
On March 23, 2003, grievant was given a written reprimand for failure to
follow proper leave procedures and for excessive absences he had incurred
since February 2002. The grievant was also notified by memorandum that
he had been placed on leave restriction for six months. In October
2003, the leave restriction was extended for an additional six months.
The Union then filed a grievance on behalf of the grievant. The agency
denied the grievance, and the Union invoked arbitration.
Following a hearing, an arbitration decision was issued in September 2004,
finding that the grievance was arbitrable and sustaining the grievance.
The Arbitrator found that the agency improperly issued grievant a
reprimand and subjected him to a leave restriction in violation of
the collective bargaining agreement. The Arbitrator also found the
agency had discriminated against grievant based on his disability (head
injury) because he was denied a reasonable accommodation and subjected to
disparate treatment based on his disability. The Arbitrator held that
grievant was an individual with a disability substantially limited in
"one (1) or more" major life activities, "which include his ability to
take care of himself, and his performance of manual tasks, as well as
learning and working." The Arbitrator further found that the agency
had not discriminated against grievant based on his race. Based on
these findings, the Arbitrator ordered that the reprimand and the leave
restriction be expunged and that the grievant "be made whole with back
pay plus interest, compensatory damages and attorney's fees."
The agency subsequently filed exceptions to the arbitrator's decision to
the Federal Labor Relations Authority (FLRA) regarding the Arbitrator's
finding of disability discrimination.1 In October 2005, the FLRA
found that the arbitrator's finding of disability discrimination was
deficient. Specifically, the FLRA found that there was insufficient
evidence in the record to establish that grievant was an individual
with a disability under the Rehabilitation Act. As a result, the FLRA
set aside the Arbitrator's award of back pay, compensatory damages,
and attorney's fees. On August 17, 2006, the FLRA denied the Union's
motion for reconsideration.
CONTENTIONS ON APPEAL
On appeal, through their representative, grievant and the union argue
that the FLRA erred in determining that the Arbitrator's finding
of disability discrimination was deficient because grievant is an
individual with a disability for purposes of the Rehabilitation Act.
Grievant further argues that the award of back pay with interest was
independently appropriate "because it was based either in whole or in
part upon the contractual violations of the bargaining agreement."
In response to the appeal, the agency argues that the appeal should
be dismissed because it was filed by the Union rather than grievant,
and the Commission has no jurisdiction over a Union appeal. In the
event that the case is not dismissed, the agency urges the Commission
to affirm the FLRA's decision because the decision "correctly applies
the applicable standards of law."
ANALYSIS AND FINDINGS
As an initial matter, we must address whether the Commission has
jurisdiction to adjudicate the instant appeal. EEOC regulation 29
C.F.R. � 1614.401(d) provides that a grievant may appeal to the Commission
from a final decision of the agency, the arbitrator, or the FLRA on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
The Commission will only review that portion of the decision which
pertains to the grievant's employment discrimination claim, as it does
not have jurisdiction over any alleged violations of the collective
bargaining agreement. See 29 C.F.R. � 1614.301(a).
The agency argues on appeal that the Union's attorney filed the instant
appeal, on behalf of the Union, in violation of EEOC regulations requiring
an appeal to be filed by the aggrieved party. See Pulido v. Department
of the Air Force, EEOC Appeal No. 02850009 (January 15, 1987) (finding
that the Commission has no jurisdiction over appeals from grievances filed
by a union). Upon review, we find that the appeal was properly filed by
grievant's representatives to contest the FLRA's decision regarding his
claim of disability discrimination. Grievant's appeal submissions clearly
indicate that grievant and the Union, acting on grievant's behalf, are
appealing the FLRA's decision "by and through their undersigned attorneys"
(emphasis added). We find that grievant, rather than the Union, filed the
appeal, and, therefore, the Commission has jurisdiction over the appeal.
With respect to grievant's disability discrimination claims, the
Commission determines that the record is insufficient to allow a
determination on the merits of grievant's claims. The record contains
copies of the arbitration hearing transcript, the Arbitrator's decision,
a copy of the agency's exceptions to the arbitration award, and the
FLRA's decision. However, the record does not contain copies of
the grievance(s); the grievance decision(s); documents pertaining to
grievant's reprimand and leave restriction(s); medical documentation
grievant submitted to the agency; or leave slips grievant had submitted
to his supervisors indicating that he had "severe headaches/migraines"
and medical appointments during the relevant time period. As a result,
we are unable to discern from the record what grievant's claims were
in his initial grievances or whether grievant is an individual with
a disability under the Rehabilitation Act. Because of the lack of
relevant evidence and our inability to render a determination on the
merits of grievant's disability discrimination claims, we remand the case
to the agency for the production of documents relevant to grievant's
disability claims. See Mullen v. Department of the Army, EEOC Appeal
No. 02A40008 (September 15, 2005); Foster v. Department of the Army,
EEOC Appeal No. 02970017 (September 3, 1999); Ricks v. Department of
Health and Human Services, EEOC Appeal No. 02960014 (June 16, 1997).
Finally, because we are remanding the case, the Commission will not
address the issue of remedies at this time.
Accordingly, we REMAND this matter to the agency for production of all
relevant documents which were relied upon by the Arbitrator and the FLRA
in rendering their decisions.
ORDER
The agency is ORDERED to take the following actions:
(1) The agency shall compile an evidentiary record regarding grievant's
disability discrimination claim, including copies of the grievance(s)
submitted; the agency's grievance decision(s); a copy of the Arbitrator's
hearing record; documents pertaining to grievant's reprimand and leave
restriction(s); grievant's medical documentation; leave slips submitted
by grievant to his supervisors; and any other relevant information and
documentation regarding grievant's allegations that he was discriminated
against based on his disability when he was denied a reasonable
accommodation, issued a reprimand, and placed on leave restriction.
(2) The agency shall complete the actions described above within sixty
(60) calendar days of the date this decision becomes final. The agency
shall provide a copy of all requested documents to grievant and his
representatives, and provide grievant with the right to appeal the
FLRA's decision to the Commission, pursuant to 29 C.F.R. � 1614.403,
within thirty (30) days of grievant's receipt of the requested documents.
(3) The agency shall provide documentary confirmation of the completion
of these actions to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the grievant.
If the agency does not comply with the Commission's order, the grievant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The grievant also has the right to file a civil action to
enforce compliance with the Commission's order prior to or following an
administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the grievant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the grievant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 14, 2009
Date
1 The agency did not dispute the Arbitrator's determination that the
reprimand and leave restriction violated the collective bargaining
agreement. Additionally, the Arbitrator's finding that grievant was
not discriminated against based on his race was not contested.
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0220070001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0220070001