“VAGUE” REASONS TO DENY LEAVE ILLEGAL

Employees are denied leave requests all the time and generally no one on either side of the labor relations arena thinks twice about it because FLRA has held that management has a right to deny leave, approve and then change its mind by denying leave, or even let an employee go on leave and call him/her back no matter how much money the employees loses in hotel reservations, flight costs, etc. But do not forget that this management right has to be exercised consistent with laws and among them are the civil rights acts. Despite FLRA’s decision to hold firm to an interpretation of the “right to assign” that likely can be traced back through the annuls of Plantation Management 101 all the way to the Divine Right of Kings, EEOC has crafted a way for employees denied leave to challenge management’s decision and get compensated. Here is how Rebecca Padilla did it.

Rebecca was a mail processing clerk for the U.S. Postal Service who alleged that the agency subjected her to discrimination on the bases of race (Vietnamese) and disability when her requests for leave was denied.  Her supervisors told her and EEOC that she could not have a day off because of holiday staffing and the leave quota was full. So, Rebecca filed an EEO complaint alleging race and disability discrimination.

To prevail in a disparate treatment claim, Rebecca or any employee must satisfy the three-part evidentiary scheme (commonly known as the prima facie test) fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973), i.e.,

  1. she was a member of a protected class;
  2. she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and
  3. she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action.

Rebecca met the criteria even though the agency argued that denial of a one-day leave request was not significant enough to be considered an adverse action.  EEOC put its findings on that this way, “Further, we find that Complainant was subjected to adverse actions and was treated less favorably than other employees outside of her protected class. In this regard, Complainant, was not allowed to have July 2, 2009 off, was made to work the July 4 holiday, and was forced to take leave after being sent home early. Further, the record demonstrates that for each claim, Complainant identified similarly situated individuals outside of her protected class who were treated more favorably. As such, we find that Complainant has established a prima facie case of discrimination with respect to race on all claims.”

Once the employee shows s/he has met the prima facie test the agency must put forth a legitimate, non-discriminatory reason for denying the leave.  Moreover, EEOC has said that, “Vague, general averments are not enough to rebut a prima facie case and are not considered legitimate nondiscriminatory reasons for an Agency’s action.”  It then went on to say that if the employer refuses to give any reason at all, it will, “…enter a judgment for the [complainant]”

Applying that case law precedent, EEOC held, “We find that the Agency’s assertion of ‘quota full’ and ‘holiday staffing’ are too vague and ambiguous and are not sufficient to rebut Complainant’s prima facie case. As such, we find that the Agency failed to carry its burden to articulate a legitimate, nondiscriminatory reason for its actions.”

FEDSMILL has highlighted this case because in our experience managers almost always have nothing more than vague, undocumented reasons for denying leave.  If the denied employee files a grievance or EEO complaint that the LR staff fails to thoughtfully assess the agency could wind up not only paying the employee compensatory damages, but also attorney fees–and more.  (We have included below a verbatim restatement of the order EEOC imposed on this agency.)  Or, if a union decides to finally take on a large call centers managers, who regularly deny leave, by asking for all the leave records (approvals and denials) and then examining them for evidence of treating people disparately based on any of the civil rights protected categories, the agency could have a nasty class action grievance on its hands.

If you want to read this case for yourself, here is the citation: Rebecca T. Padilla, v. John E. Potter, Postmaster General, EEOC Appeal No. 0120102224 (2010)

Order

The Agency is ordered to take the following remedial actions:

  1. The Agency is directed to provide EEO training for the responsible management officials addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on Title VII.
  2. The Agency shall consider taking disciplinary action against the responsible management officials. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
  3. The Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
  4. The Agency shall post the attached notice, as detailed below.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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