On CyberFeds: http://www.cyberfeds.com/CF3/index.jsp?contentId=17206947 (June 4, 2010)

          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

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