QUIZ: WHEN IS CHARGING LWOP ILLEGAL?
In this case an employee had an auto accident damaging someone else’s private property. After a short investigation, the employee’s supervisor informed her that she could choose between either taking Leave Without Pay (LWOP) or using annual leave until she completed a driving training course. The employee, however, decided to take LWOP until she completed the driving training course, and was placed in a LWOP status from October 28, 2011, through November 3, 2011. What is illegal about that?
ANSWER: Many union reps would respond to this set of facts by filing a grievance that the employee was constructively disciplined and without following proper procedures. That is not a bad grievance, but it could be improved. In a recent case out of the EEOC entitled, Alexia D., v. Megan J. Brennan, Postmaster General, EEOC No. 0120170451 (2019) the employee claimed that forcing her to take either annual or LWOP amounted to sex discrimination.
When the investigatory file was turned over, the agency had to reveal that there were three similarly situated male employees who were involved in accidents yet were not placed on leave and made to take a driver’s course in a similar manner to Complainant. The EEOC judge found that the Complainant, Alexis, was the only carrier to receive LWOP as a disciplinary action after an accident, and therefore she received harsher treatment due to her sex. The judge also observed that the Agency did not explain why management contacted its Labor Department about Complainant’s accident but did not reach out its Labor Department about the three cited male comparators’ accidents.
This case is yet another example of why union reps and agency LR specialists should think about potential EEO implications when confronted with a discipline situation. You just never know what facts will come out as the matter is examined in a grievance or EEO complaint.
Alexis testified that she experienced insomnia, a loss of enjoyment in her daily activities, a feeling of hopelessness, social withdrawal, among other symptoms. The EEOC judge additionally noted that Complainant’s co-workers and husband testified that Complainant experienced social and familial withdrawal, among other symptoms after the accident. There was no professional medical testimony. Based on that the judge gave Alexis $10,000. in damages, which is about 10 times the salary she lost for that week. Not a bad payoff. (To further penalize the agency, EEO gave her an additional $86,300.00. in attorney fees.)
But the most important lessons to take away from this case is that something a small as a leave charge, if imposed disparately, can be illegal and lead to very big remedies. In some cases, it may be anti-union discrimination rather than a civil rights violation. Unions should check with their in-house attorneys to see whether they should just assume a civil rights violation when preparing to file a contract or regulation grievance