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The decision of the Authority follows:
52 FLRA No. 127
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
U.S. DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
NEW ORLEANS DISTRICT
April 30, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Stephen L. Hayford filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator sustained, in part, a grievance alleging that the Grievant's involuntary reassignment from Lake Charles, Louisiana to New Orleans was disciplinary and not implemented in accordance with the parties' collective bargaining agreement. As a remedy, he directed that the reassignment be rescinded and any record of the action be expunged. The Arbitrator denied the remainder of the grievance, including, as relevant here, claims that the Grievant was reassigned in retaliation for a sexual harassment complaint and whistleblower complaints filed by the Grievant against his immediate supervisor.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
Prior to 1990, the Grievant's "employment with the Agency was uneventful, with no indication of significant problems." Award at 2. The Grievant's employment difficulties began in 1990 when the individual who would later become the Grievant's immediate supervisor was selected to fill a vacancy for which the Grievant also applied. The Grievant "was angered by his non-selection." Id.
In May 1994, the Grievant reported to Agency officials two instances of his supervisor's alleged violations of law and Agency policy and rules. Neither "whistleblowing" allegation resulted in action against the supervisor. The Grievant also telephoned the Agency's Sexual Harassment Hotline complaining of an ongoing series of unwanted sexual touchings by his supervisor, culminating in an incident on May 26, 1994. In response to the Grievant's Hotline call, the Agency's Office of Internal Affairs investigated the complaint and concluded that it was without merit.
Following these events, the Grievant advised the supervisor, on several occasions, that he did not trust and could not work with him. The Grievant also informed the supervisor that he wanted him discharged. At this time, Agency officials held conversations with the Grievant during which the Grievant asserted that he would no longer work with his supervisor because he distrusted him, and reasserted that he wanted the supervisor fired.
Because of "the ongoing problems in the Lake Charles office, a decision was made in September 1994 to reassign [the Grievant] to the port of New Orleans, Louisiana." Id. at 5. In the letter effecting the involuntary reassignment, the District Director stated that she was ordering the action because of the work relationship between the Grievant and his immediate supervisor.
A grievance was filed contesting the reassignment. Among other remedies, the grievance sought discipline for those management officials "who retaliated against [the Grievant.]" Id. at 7. When the grievance could not be resolved, it was submitted to arbitration for resolution of the following general issue stipulated by the parties:
Did the Agency comply with the National Agreement and existing law in the reassignment of [the Grievant]?
As relevant here, the parties also stipulated to the following related sub-issues:
1. Was the reassignment of [the Grievant] effected in retaliation for protected activity under Title VII of the Civil Rights Act of 1964 and/or the National Agreement?
2. Was the reassignment of [the Grievant] in retaliation for protected whistle-blowing conduct in violation of 5 U.S.C. [§] 2302 and/or the National Agreement?
3. If any violation of relevant law, rule, regulation or the National Agreement occurred, what is the proper remedy?
Id. at 7-8.
The Arbitrator found that the Grievant was involuntarily reassigned for disciplinary reasons, and that the reassignment was not effected in accordance with Article 20, Section 3.C(1) and Article 28, Section 8.A (2) of the National Agreement. However, the Arbitrator rejected the Grievant's claim that he was reassigned in retaliation for his sexual harassment complaint. The Arbitrator noted, with regard to the elapsed time between management's becoming aware of the Grievant's complaint and his involuntary reassignment, that the "passage of three months time would not in all cases preclude the finding of a nexus" between the complaint and the reassignment. Id. at 41. The Arbitrator stated that, "[d]uring the months in question[,] the relationship between [the Grievant] and [his immediate supervisor] deteriorated markedly." Id. The Arbitrator characterized the Grievant's conduct during this period as "disruptive, confrontational and disrespectful." Id. The Arbitrator concluded that these factors, coupled with "the meager probative evidence of a retaliatory motive" on the part of the District Director, precluded his finding "a sufficiently clear nexus" to sustain the Grievant's claim of retaliation. Id. at 42.
The Arbitrator also rejected the Grievant's claim that he was reassigned in reprisal for whistleblowing complaints protected by 5 U.S.C. § 2302 and/or the National Agreement. In this connection, the Arbitrator noted that:
the employee claiming retaliation for protected whistleblowing must prove that activity actually triggered the challenged personnel action. Under the present statutory scheme for protecting whistle-blowing federal employees from retaliation, the employee alleging same need establish only that his protected disclosure activity was a contributing factor in the personnel action he takes issue with.
Id. at 43. In the Arbitrator's view, the Union offered "no probative evidence" showing that the Grievant's allegations against his supervisor "in any way prompted the decision to reassign him." Id. He noted that the complaints did not result in any action against the supervisor, and that shortly following the first complaint, the same supervisor gave the Grievant an "excellent" summary performance rating. The Arbitrator also found that the "mere coincidence in time between [the Grievant's allegations] and the challenged personnel action does not alone prove that an illegal act of retaliation occurred." Id. The Arbitrator concluded that, based on the facts and circumstances, "the Union has not satisfactorily proven that [the Grievant's] whistle-blowing activity was a factor contributing to the decision to reassign him." Id. at 44.
As his remedy for the Agency's failure to follow the disciplinary provisions of the negotiated agreement, the Arbitrator directed the Agency to rescind the Grievant's reassignment and reinstate him to his former position. The Arbitrator also ordered that evidence of the reassignment be expunged from the Grievant's personnel file and any other Agency records.
III. Union's Exceptions
The Union filed four exceptions to the Arbitrator's award.
First, the Union argues that the Arbitrator's "central finding" that 3 months elapsed between the Grievant's sexual harassment complaint and the forced reassignment "is based on a gross mistake of fact, but for which the Arbitrator would have reached a different conclusion regarding proof of the nexus element." Exceptions at 16. In this regard, the Union argues that the Arbitrator's reliance on the Grievant's alleged "disruptive, confrontational[,] and disrespectful" conduct during the 3 months following the filing of the sexual harassment complaint is contrary to law because that conduct constituted protected activity. Id. at 20. According to the Union, the "unrebutted fact of record" is that only 1 day after the District Director learned of the sexual harassment complaint, she decided to reassign the Grievant. Id. at 18.
Second, the Union argues that the Arbitrator's failure to find that it established a prima facie case of unlawful retaliation under Title VII of the Civil Rights Act of 1964 is "contrary to law." Id. at 11. The Union asserts that to establish such a prima facie case of retaliation, an employee must show, among other things, a causal connection between the employee's protected activity and the disputed personnel action. The Union asserts that, under applicable Equal Employment Opportunity Commission case law, the required causal connection "may be inferred from circumstantial evidence such as the employer's knowledge of the protected activity and the proximity in time between the protected activity and the adverse personnel action." Id. at 13. The Union contends that it presented probative evidence that demonstrated an unlawful retaliatory motive in management's reassignment of the Grievant, and that the Agency failed to show a legitimate, nonretaliatory reason for reassigning the Grievant.
Third, the Union argues that the Arbitrator erroneously determined that it presented no probative evidence that the Grievant's whistleblowing disclosures were a contributing factor in the involuntary reassignment. That determination, according to the Union, was "a gross mistake of fact, but for which the Arbitrator would have reached a different conclusion." Id. at 37. Noting that the Whistleblowers Protection Act (WPA) permits consideration of circumstantial evidence as probative, the Union argues that it "offered into evidence a wealth of circumstantial evidence on the issue of contributing factor."(3) Id.
Finally, the Union argues that, under the WPA, the Union satisfied its burden of proof, "[a]s a matter of law," by demonstrating that the official directing the involuntary reassignment knew of the Grievant's whistleblowing complaints, and that the reassignment occurred within a time frame that could lead a reasonable person to conclude that the complaints were a "contributing factor" in the Agency's decision to reassign him involuntarily.(4) Id. at 27. In the Union's view, the Arbitrator applied an incorrect standard of proof in holding that an employee claiming retaliation for protected activity "'must prove that the activity actually triggered the challenged personnel action'" and must demonstrate that the protected disclosure "'prompted'" the action. Id. at 27-28 (quoting Award at 43, emphasis added by Union).
IV. Analysis and Conclusions
A. The Award As It Concerns Alleged Violations of Title VII of the Civil Rights Act of 1964 Is Not Based on a Nonfact
To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. E.g., U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993).
The "causal connection component of the prima facie case" of retaliation for a sexual harassment complaint "may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (Mitchell) (footnote omitted). Although the Union argues that the "unrebutted fact of record" is that 1 day after the District Director learned of the filing of the complaint, she decided to reassign the Grievant, it provides no support for that claim. Exceptions at 18. In particular, the Union provided no transcript of the hearing and no other basis on which to conclude that this alleged "fact" exists. The Union also provides no support for its argument that the Arbitrator erred in finding that, during the 3 months following the filing of the sexual harassment complaint, the Grievant engaged in "a course of conduct . . . that can reasonably be described as disruptive, confrontational and disrespectful." Award at 41. As such, this Union assertion does not establish that the finding was clearly erroneous.
The Arbitrator determined that 3 months elapsed between the complaint and the imposition of the involuntary reassignment. The Union has not established that this determination is clearly erroneous. As such, the Union has not demonstrated that the award is based on a nonfact. National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, Western-Pacific Region, John Wayne Air Traffic Control Tower, Costa Mesa, California, 52 FLRA 860, 864 (1997) (FAA).
B. The Award Is Not Contrary to Title VII of the Civil Rights Act of 1964
The Authority's review of the Union's exception that the award is inconsistent with Title VII of the Civil Rights Act of 1964 is de novo. E.g., Social Security Administration and American Federation of Government Employees, Local 3342, 51 FLRA 1700, 1705 (1996) (SSA).
In McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984) (McKenna), the court applied the framework governing Title VII disparate treatment cases set out in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) to a retaliation claim under Title VII. The D.C. Circuit stated that, to establish a prima facie case of unlawful retaliation under Title VII, a plaintiff must show: "1) that she engaged in a statutorily protected activity; 2) that the employer took an adverse personnel action; and 3) that a causal connection existed between the two." McKenna, 729 F.2d at 790 (footnote omitted). As relevant here, "[t]he causal connection component of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell, 759 F.2d at 86. However, "once a Title VII case has been 'fully tried on the merits,' the question whether the plaintiff has established a prima facie case 'is no longer relevant.'" Id. at 83 (quoting United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15 (1983) (Aikens)).
In Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274 (1990) (HCFA), the union contended that an award was deficient because the arbitrator failed to find that the grievant had established a prima facie case of discrimination. The arbitrator neither recited the applicable legal standard for establishing a prima facie case nor specifically stated a conclusion as to whether the grievant had established a prima facie case.(5) The arbitrator did, however, discuss the evidence upon which he relied in arriving at his findings, and based upon those findings, concluded that "the evidence as to the allegation of age discrimination was 'insufficient and unconvincing.'" Id. at 292. On review, the Authority found that the arbitrator's findings constituted his determination that the agency did not unlawfully discriminate against the grievant on the basis of age. The Authority stated that "[a]lthough the [a]rbitrator did not discuss whether the grievant had established a prima facie case or any of the other . . . burdens in an age discrimination case," it could find "no basis on which to conclude that he was required to do so." Id. at 293 (citing Aikens, 460 U.S. at 715).
The Arbitrator in this case did not expressly state whether the Grievant had established a prima facie case of unlawful retaliation. However, the Arbitrator stated that the Union presented "meager probative evidence of a retaliatory motive" and that the Agency's evidence showed that the Grievant, during the period between the complaint and the notice of reassignment, "engaged in a course of conduct directed toward [his supervisor] that can reasonably be described as disruptive, confrontational and disrespectful."(6) Award at 41, 42. The Arbitrator found that the evidence presented by the parties "preclude[d] [him] from identifying a sufficiently clear nexus between the Grievant's protected Title VII . . . activity and the decision to reassign him." Id. at 42. In so finding, the Arbitrator determined that management did not unlawfully retaliate against the Grievant for his sexual harassment complaint. As such, consistent with Mitchell, 759 F.2d at 83, determining whether the Union established a prima facie case "'is no longer relevant.'"
The record does not support a conclusion that the Arbitrator failed to apply the appropriate legal standard or that his conclusion was otherwise contrary to law. Accordingly, consistent with HCFA, this exception provides no basis for finding the award deficient. E.g., American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 33 (1995).
C. The Award As It Concerns Alleged Retaliation For Whistleblowing Disclosures Is Not Based on a Nonfact
The Arbitrator reviewed the Union's evidence concerning retaliation and determined that it was not probative. The determination that the Grievant presented no probative evidence that the whistleblowing disclosures contributed to his reassignment is not a nonfact, but, rather, constitutes a determination based on the facts presented. The Union's argument that the facts support a contrary conclusion does not establish that the Arbitrator's conclusion was clearly erroneous. As such, this exception provides no basis for finding the award deficient. See FAA, 52 FLRA at 864; U.S. Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 44 FLRA 1118, 1122-23 (1992).
D. The Award Is Not Contrary to the Whistleblowers Protection Act
As set forth above, the Authority's review of the Union's exception that the award is inconsistent with the WPA is de novo. See SSA, 51 FLRA at 1705.
To establish a prima facie case of unlawful retaliation for a disclosure under the WPA, an employee must demonstrate, inter alia, that the disclosure was a "contributing factor" to the adverse personnel action taken against him or her.(7) The employee may prove that the disclosure was a contributing factor through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure, and that the personnel action occurred within a time frame such that a reasonable person could conclude that the disclosure was a contributing factor in the adverse personnel action. 5 U.S.C. § 1221(e)(1)(A) and (B). In this regard, the court in Clark v. Department of Army, 997 F.2d 1466, 1469 (Fed. Cir. 1993) (Clark), cert. denied, 510 U.S. 1091 (1994), acknowledged that the WPA "simplified the nexus standard for employees by providing that the employee need only show that the whistleblowing disclosure was a 'contributing factor,' rather than a significant or predominant factor" in an adverse personnel action.
As the Union asserts, the Arbitrator stated that the Grievant must demonstrate that the disclosure "actually triggered" and/or "prompted" the reassignment, rather than merely showing that it was a contributing factor in the action. However, the Union fails to add that, immediately following his use of the term "actually triggered," the Arbitrator stated that an employee alleging unlawful retaliation "need establish only that his protected disclosure activity was a contributing factor in the personnel action he takes issue with." Award at 43. Moreover, following his determination that the Union "offered no probative evidence to show that [the Grievant's complaints] in any way prompted the decision to reassign him[,]" the Arbitrator concluded that "the Union has not satisfactorily proven that [the Grievant's] whistleblowing activity was a factor contributing to the decision to reassign him." Id. at 43, 44.
We conclude that, when read in context, the Arbitrator's use of the terms "actually triggered" and "prompted" does not reflect a failure to apply the "contributing factor" standard required by 5 U.S.C. § 1221(e)(1). The award clearly articulates the correct legal standard and plainly states that the Grievant has not met that standard. Consequently, the Arbitrator did not apply the wrong legal standard in determining that the reassignment did not violate the WPA.
The Arbitrator concluded that the "mere coincidence in time between [the whistleblower complaints] and the challenged personnel action does not alone prove that an illegal act of retaliation occurred." Award at 43. He prefaced that conclusion with the statement that the Grievant "offered no probative evidence to show that [the Grievant's complaints] in any way prompted the decision to reassign him" and determined that "[s]everal factors indicate otherwise." Id. We determine, based on this statement, that the Arbitrator found that the proximity in time, when weighed against other evidence, was insufficient to establish the requisite contributing factor. The Arbitrator's finding is consistent with the second step of the 3-step framework set forth in Clark for analyzing an employee's whistleblower defense to an adverse personnel action: the plaintiff must establish the contributing factor element by a preponderance of the evidence and the defendant may counter that evidence with any relevant and competent evidence.(8) Clark, 997 F.2d at 1473.
In Caddell v. Department of Justice, 66 MSPR 347, 350 (1995) (Caddell III),(9) aff'd, 96 F.3d 1367 (Fed. Cir. 1996), involving the WPA, the MSPB found that the administrative judge's failure to make findings concerning the timing of management's reassignment of the appellant was not reversible error where he determined that the agency proved that it would have reassigned appellant absent whistleblowing disclosures. Here, the Arbitrator determined that the Union proffered insufficient evidence to show that the whistleblower complaints were a contributing factor in the reassignment, and that management introduced evidence showing that the Grievant was reassigned for other reasons. Accordingly, based on Caddell II, Caddell III, and Clark, the award is consistent with the WPA.
As noted above, a grievant may establish that a whistleblowing complaint was a contributing factor in an adverse personnel action "through circumstantial evidence[.]" 5 U.S.C. § 1221(e)(1). However, the Union does not identify the basis for its allegation that the Arbitrator did not "allow" the Grievant to meet his burden by presenting circumstantial evidence, and such action by the Arbitrator is not otherwise apparent from the record. Exceptions at 46. The record shows that the Arbitrator evaluated the evidence presented on the Grievant's behalf and determined that it was not "probative." Award at 43. That finding neither reflects that the Arbitrator excluded any evidence because it was circumstantial nor shows that he failed to consider circumstantial evidence in reaching his determination.
Consistent with the forgoing, the award is not deficient as contrary to the WPA.
The Union's exceptions are denied.
1. Article 20, Section 3.C of the National Agreement provides, in pertinent part:
Directed Reassignments: The Employer retains the right to identify and direct the reassignment of an Employee based on the needs of the Service, including but not limited to the following:
(1) . . . .
(2) for disciplinary reasons.
When such reassignments are made for disciplinary reasons, the provisions of Article 28 will govern.
Award at 35-36.
2. Article 28, Section 8.A of the National Agreement provides:
Section 8.A. An employee will, in any disciplinary action, be furnished a copy of those portions of all written documents which contain information or evidence relied upon by the Employer as the basis for the disciplinary action. The Employer will also provide the employee with a copy of those portions of written documents that are favorable to the employee and related to the disciplinary action. If the discipline is based upon an investigative report, relevant portions of that report shall also be furnished to the employee, including portions which are favorable to the employee.
Award at 15.
3. 5 U.S.C. § 1221(e)(1) provides, as relevant that:
[t]he employee may demonstrate that the [whistleblowing] disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that--
(A) the official taking the personnel action knew of the disclosure; and
(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.
4. In support, the Union cites 5 C.F.R. § 1209.4(c), which defines "contributing factor" as "any disclosure that affects an agency's decision to . . . take . . . a personnel action with respect to the individual making the disclosure."
5. HCFA was an age discrimination case, involving the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1982).
6. Although the quoted part of the award does not identify the source of the evidence concerning the grievant's conduct, it is clear that this information was proffered by management. See Award at 28-35 (discussing evidence under the heading "Position of the Agency").
7. Specifically, 5 U.S.C. § 1221(e) provides, as relevant here:
(e)(1) Subject to the provisions of paragraph (2), in any case involving an alleged prohibited personnel practice as described under section 2302(b)(8), the Board shall order such corrective action as the Board considers appropriate if the employee . . . has demonstrated that a disclosure described under section 2302(b)(8) was a contributing factor in the personnel action which was taken or is to be taken against such employee . . . . The employee may demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that--
(A) the official taking the personnel action knew of the disclosure; and
(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.
(2) Corrective action under paragraph (1) may not be ordered if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
8. In Clark, the court stated, with reference to the second step of the 3-step analytical framework, that the plaintiff must establish the "contributing factor" element by a preponderance of the evidence, and the agency "may introduce any relevant and competent evidence to counter" the plaintiff's evidence, "including the reason it acted." Clark, 997 F.2d at 1473. According to the court, the presiding official is responsible for deciding, "on the basis of all the evidence[,]" whether the plaintiff has proved his/her claim "by a preponderance of evidence." Id.
The court described the entire analytical framework as follows:
[t]here are three steps in a complete analysis of an employee's whistleblower defense to an adverse personnel action: First, is the employee's disclosure a protected "whistleblowing" activity under 5 U.S.C. § 2302(b)(8)? Second, was the disclosure a contributing factor in the personnel action? Third, can the agency prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure?
Id. at 1470 (citation omitted).
9. The Union cites Caddell I, 57 MSPR 508 (1993), to support its position that the 3-month period between the District Director's learning of the protected activity and the adverse personnel action established "contributing factor" under the WPA. Exceptions at 35. However, the Merit Systems Protection Board held, in one of the subsequent reviews of that case, Caddell II, 61 MSPR 670, 681 (1994), that "knowledge and timing evidence does not automatically satisfy the appellant's burden of proving that whistleblowing was a contributing factor in the personnel action . . . ." The Board's position appears to have been prompted by the holding in Clark, 997 F.2d at 1471-72.