WHAT A GRIEVANCE REMEDY REQUEST SHOULD LOOK LIKE

Few things bother us more than arbitration decisions sustaining a grievance only to find that the union did not ask for everything it was entitled to get.  So, we like to pass along examples of cases from arbitrators, EEOC, MSPB, FLRA, etc. that contain complete remedies.  We hope it will prompt unions to ask for more than a cease and desist order when drafting grievances.  Here is a great example case. 

The Air Force made an offer of employment to someone that it promptly withdrew when the applicant said he would need some reasonable accommodations for his cardio-vascular disease. It did not even bother to discuss accommodation possibilities with the applicant nor do anything else an agency normally must to demonstrate it has engaged in the “interactive process.” To make a long story short, EEOC ruled that amounted to discrimination and ordered the following, very thorough remedies:

  1. Reinstatement to the position it originally offered or a substantially similar one “with [similar] compensation, promotional opportunities, job responsibilities, working conditions and job status”
  2. Back pay to the date the employee would have started in April 2014. “The Agency’s back pay calculation shall include all forms of compensation and reflect fluctuations in working time, overtime rates, Sunday premium and night work, changing rate of pay, transfers, promotions, privileges of employment, and, if applicable, any pay differentials associated with overseas deployments Complainant would have completed, such as maintenance allowances, post differentials, danger pay, and overtime pay. The Agency shall provide Complainant a clear and concise plan language statement of the formulas and methods it used to calculate Complainant’s back pay.”
  3. Reasonable Accommodation upon employment, including the informal, interactive process to determine an effective, reasonable accommodation.
  4. Retroactive benefits to include (a) tax-deferred contributions to his TSP account and earnings on his TSP contributions, (b) retirement contributions and earnings, (c) seniority, (d) sick and annual leave, and (e) service credit, pursuant to 29 C.F.R. §1614.501, from the date Complainant would have entered on duty in 2014 to the date he accepts or declines the Agency’s unconditional offer of retroactive placement
  5. Given the Complainant’s increased tax burden from the Agency’s lump sum payment of back wages, the Agency shall conduct a supplemental investigation, including providing Complainant an opportunity to submit evidence of his increased tax burden. The Agency shall complete the investigation and issue a final Agency decision appealable to the EEOC determining the appropriate amount of damages.
  6. The Agency shall pay Complainant $300,000 in nonpecuniary, compensatory damages and $77,811.59 in compensatory, pecuniary damages.
  7. The Agency was also ordered to pay an attorney’s fee of $623,727.91 for work performed before the AJ. We note that this fee award is separate from the attorney’s fee for work performed on these appeals, which may be pursued in accordance with the paragraph below entitled “Attorney’s Fees.”

Although this case involved a discrimination finding which enables the employee to get more than s/he normally can for a violation of a contract or regulation that only underscores the importance of that alleging an EEO violation in a grievance unless you are absolutely sure discrimination did not play a role in the violation. For details on this case, see Doyle T., v. Frank Kendall, Dep’t of the Air Force, EEOC No. 2022004281 (2022)

 

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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