Federal Arbitration

Not all cases have to be decided on the merits; some cases are won based on procedural or constitutional due process issues such as whether the Agency’s action was timely.

That is just what happened in this case wherein the Union filed a grievance and went to arbitration on behalf of an employee who was removed from his position based on allegations of conduct unbecoming a federal employee, disorderly conduct, and failure to follow instructions.

The allegations mostly revolved around the employee’s daily interactions with a co-worker.

After a three-day hearing, and briefing, the Arbitrator issued a Decision in favor of the Union and overturned the Agency’s removal action. The Arbitrator found that the Agency violated law and the parties’ agreement when it failed to investigate and take timely discipline.

The Arbitrator ordered the Agency to reinstate the employee, but allowed the Agency to impose a five day suspension. As a result, the Agency reinstated the employee into his position, paid all backpay and benefits, and paid an additional $100,000.00 in lost overtime wages and attorney’s fees/costs.

New Toggle Test

Not all cases have to be decided on the merits; some cases are won based on procedural or constitutional due process issues such as whether the Agency’s action was timely.

That is just what happened in this case wherein the Union filed a grievance and went to arbitration on behalf of an employee who was removed from his position based on allegations of conduct unbecoming a federal employee, disorderly conduct, and failure to follow instructions.

The allegations mostly revolved around the employee’s daily interactions with a co-worker.

After a three-day hearing, and briefing, the Arbitrator issued a Decision in favor of the Union and overturned the Agency’s removal action. The Arbitrator found that the Agency violated law and the parties’ agreement when it failed to investigate and take timely discipline.

The Arbitrator ordered the Agency to reinstate the employee, but allowed the Agency to impose a five day suspension. As a result, the Agency reinstated the employee into his position, paid all backpay and benefits, and paid an additional $100,000.00 in lost overtime wages and attorney’s fees/costs.

Snider & Associates, LLC and AFGE Local 32 are pleased to announce the successful outcome of a grievance filed as a result of a wrongful termination.

In 2008, OPM removed the Grievant, a GS-13 Accountant and former Union President, for failing to submit to an allegedly required background check. For more than four years the Grievant had been contesting his designation in a public trust position which triggered the requirement for the background check.

In 2007, Arbitrator Joseph Sharnoff issued a decision that permitted the Agency to require employees with public trust designations to undergo background checks. However, he also found that the Agency had an obligation to discuss the designation with any employee that contested his or her public trust position status.

The grievance was filed, in part, as a result of the Agency failing to discuss the grievant’s public trust designation before requiring that he submit to a background check – a violation of Arbitrator Sharnoff’s decision.

In July 2012, Arbitrator Andrew Strongin ruled in the Union’s favor and overturned the removal. In doing so he awarded the Grievant make whole relief including: reinstatement, back pay with all emoluments, and attorney fees; a sum that totaled more than $150,000.00. He also required to Agency to engage in an interactive discussion with the Grievant before requiring him to undergo any background check.

Civil action – Circuit Court for Howard County, Maryland – Civil Case No. 13-C-11-086110

Ms. Freeman worked as a Medical Assistant and was subjected to on-going harassment and a hostile work environment that included name-calling based on her disability.

After filing an initial complaint of discrimination with the Howard County Human Relations Commission, Ms. Freeman filed a civil action in the Circuit Court for Howard County. A lengthy four-day trial was held, and the jury found that witness testimony and documentary evidence proved that she was subjected to continuous harassment and a hostile work environment based on her disability.

The jury issued a judgment in her favor and awarded $150,000 in compensatory damages plus attorney’s fees, costs and expenses.

An employee who suffered from several disabilities, including mobility issues, filed two complaints of discrimination after the Agency failed to provide reasonable accommodations for her disability and subjected her to on-going harassment.

The employee also challenged several non-selections for higher graded positions based on gender and disability discrimination, and in retaliation for engaging in prior protected EEO activity – she had filed prior EEOC complaints and participated as a witness in another employee’s EEOC complaint.

After extensive discovery revealed several facts that supported the employee’s case, and after several years of litigation on the eve of one of the hearings, the parties engaged in a successful settlement conference which resulted in a six-figure payout for the Complainant.

Federal EEOC Complaint – OFO Appeal No. 0720150015

An employee who suffered from several disabilities, including ADHD, requested a reasonable accommodation to adjust her workstation and to allow her to telework from home. When the Agency denied her requests for reasonable accommodation the employee filed a complaint of discrimination based on disability.

After an initial hearing on liability resulted in a finding of discrimination, and a two-day damages hearing after which the Administrative Judge awarded compensatory damages and attorney’s fees/costs totaling about $100,000, the Agency appealed the decision to the Office of Federal Operations (OFO).

The employee filed a cross appeal, and after briefing the matter, the OFO issued a favorable decision that increased the monetary award owed to Selma D. In the end, the Agency paid more than $144,000.00 to the employee for compensatory damages, emotional pain and suffering, and attorney’s fees/costs.

A copy of the decision can be read at https://www.eeoc.gov/decisions/0720150015.pdf

Federal EEOC Complaint – OFO Appeal No. 0720100011

An employee suffered an on the job injury to her back and subsequently requested a reasonable accommodation to adjust or alter her job duties to meet her medically related work restrictions.

The ADA Amendments Act of 2008 requires an employer to make adjustments to job duties and working conditions as a reasonable accommodation so long as the employee suffers from a physical or mental impairment that substantially limits one or more major life activities and can perform the essential functions of the position with or without accommodation.

When the Agency denied her requests for reasonable accommodation, Kathy D. filed a complaint of discrimination. After an initial two-day hearing on liability resulted in a finding of discrimination by the Administrative Judge, and a damages hearing that awarded compensatory damages and attorney’s fees/costs, the Agency appealed the decision to the Office of Federal Operations (OFO).

The employee filed a cross appeal, and after briefing the matter, the OFO issued a favorable decision, leading the Agency to agree to settle.
As a result, the Agency paid over $40,000 to the employee for lost wages, compensatory damages, emotional pain and suffering, and attorney’s fees/costs.

A copy of the decision can be read at https://www.eeoc.gov/decisions/0720100011.txt

Federal Arbitration – 66 FLRA No. 80

The Union filed a grievance and went to arbitration on behalf of a Multifamily Housing Representative who had never received a disciplinary action, until he was issued a ten day suspension after sending a joking email that included a photograph of a gun.

The employee was subsequently subjected to an investigation and interrogation by a Federal Protective Service (FPS) Inspector and Special Agent. Even though the investigation was closed shortly after it began, and there was no finding that the employee was a threat, the Agency issued the ten day suspension.

After a two-day hearing, the Arbitrator issued a decision that found the Agency did not have just cause to issue a ten day suspension, and ordered the Agency to reduce the suspension to one day, pay all backpay and interest per the Back Pay Act (BPA), and as the losing party, to pay all of the arbitrator’s fee and expenses, per the parties’ agreement.

The Arbitrator subsequently denied the Union and Grievant reimbursement for attorney’s fees/costs. The Union appealed the denial of the attorney’s fees and costs. In a decision that was referred to as one of the ten most influential Federal Labor Relations Authority (FLRA) decisions in Federal Sector labor law in 2012, the FLRA reestablished the standard for attorney’s fees in cases where the Agency knew or should have known that its discipline would not be upheld.

The FLRA ordered that the Agency was required to pay attorney’s fees and costs, and remanded the matter back to the parties and Arbitrator. On remand, the parties reached a confidential settlement agreement that resolved the matter.

A copy of the decision can be read at https://www.flra.gov/decisions/v66/66-80.html.

Federal Arbitration – 69 FLRA No. 158

The Union filed a grievance and went to arbitration on behalf of an employee who challenged her annual performance rating. After a one day hearing, and briefing, the Arbitrator issued a decision in favor of the Union and held that the Agency’s rating violated the parties’ contract and law concerning performance management.

The Arbitrator ordered the Agency to cancel the annual performance rating for two critical elements, to raise the rating of one of the critical elements to “Outstanding,” to re-evaluate the rating of the second critical element, and then issue a new overall annual performance rating.

The Agency appealed the Decision and filed Exceptions with the FLRA. The FLRA denied the Agency’s appeal and upheld the Arbitrator’s Decision and Award. As a result, the parties entered into a settlement agreement that resulted in the employee receiving a rating of “Outstanding” for the two critical elements and the overall rating, an appropriate performance bonus and interest, and payment for all attorney’s fees/costs.

Federal EEOC Complaint and MSPB appeal

Not all cases result in continued employment with the Agency or employer; sometimes the parties need a clean break. In this case, an employee had filed an EEOC complaint of discrimination over the Agency’s failure to provide reasonable accommodation.

While that case was pending, the Agency removed the employee based on excessive absences and her inability to maintain a regular work schedule. Before engaging in protracted litigation, the parties were able to reach a mutually agreeable resolution.

In the end, the employee voluntarily resigned from her job and the Agency paid the employee $50,000 for compensatory damages and attorney’s fees/costs, provided a clean record, expunged and removed the negative disciplinary actions and references thereto, and provided a neutral reference.

Federal EEOC Complaint No. 570-2011-0059X

An employee who had been subjected to a hostile work environment had filed a timely complaint, which the Agency failed to investigate within the requisite time.

After an Administrative Judge filed an Order to Show Cause, the Agency failed to answer; and the Complainant successfully moved for sanctions. The Judge awarded the Complainant $100,000.00 in compensatory damages plus attorney’s fees and other equitable relief.

An employee alleged that she had been subjected to a hostile work environment. After an extensive multi-day hearing on the liability portion of the case the EEOC issued an interim finding of liability against the Agency. Prior to the damages portion of the hearing the parties entered into a confidential settlement agreement.

After an employee was terminated for retaliatory reasons, the parties entered into a settlement agreement. Shortly thereafter, the Agency abrogated the agreement by terminating the employee again, based upon issues pertaining to the previous case.

The Agency also relocated the employee to a distant, inconvenient location. The Administrative Judge, in fact, held that the Agency had abrogated the agreement, ordered the employee’s reinstatement to her previous duty station, and awarded attorneys’ fees.

Civil Action No. 06-1441; Appeal No.: 09-5315

Employee claimed that she had been denied selection for a position for which a less qualified applicant was selected. After the Federal District Court ruled against the employee, she successfully appealed the non-selection. The parties settled for $250,000.00 plus backpay and interest from the time of the non-selection.

EEOC Case No. 443-08-00115X

Employee claimed that he had been subjected to a hostile work environment, based upon reprisal for prior EEO activity. The Commission held that the employee had, in fact, been subjected to reprisal, and awarded compensatory damages and attorneys’ fees.

EEOC No. 443-2012-0008LX and 443-2013-00057X

Employee alleged that that she had been subjected to a hostile work environment, based upon reprisal for prior EEO activity. After a multi-day hearing on the liability and damages portion of the case, the EEOC held that the employee had, in fact, been subjected to reprisal, and awarded compensatory damages and attorneys’ fees.

EEOC Nos. 410-2008-400X and 410-2008-00401X

After an employee had filed a complaint based upon a hostile work environment, and after the Commission had reached an interim decision on liability in favor of an employee in the same unit, the parties settled.

An employee was denied a reasonable accommodation when she when the Agency unduly delayed in providing her with an alternative working location. After a hearing, an Administrative Judge claimed that the Agency had in fact denied the reasonable accommodation.

The employee was awarded $36,000 in non-pecuniary compensatory damages, attorneys fees of $59,089.50 (with an additional $1,169.37 for expenses); and pecuniary damages in the amount of $53,762.72 for back pay; the restoration of 152 hours of re-credited sick leave.

Employee contested a failure to promote and a forced relocation. After the first stage of the hearing, and a statement by the administrative judge that he viewed the forced relocation to constitute disparate treatment, the parties entered into a settlement agreement in which the Complainant received a two-step within-grade increase, and in which the employee was allowed to remain at his venue. The employee also received attorneys’ fees.