24:0851(82)CA - EEO Commission and Edgard Martinez -- 1986 FLRAdec CA

[ v24 p851 ] 24:0851(82)CA
The decision of the Authority follows:

24 FLRA No. 82
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Respondent
and
EDGARD MARTINEZ
Charging Party/Individual
Case No. 3-CA-50243
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the
Respondent. The General Counsel filed an opposition to the exceptions.
The complaint alleged that the Respondent violated sections 7116(a)(1)
and (2) of the Statute by discharging an employee because of his
activity in filing grievances. Additionally, the complaint alleged that
the Respondent committed an independent violation of 7116(a)(1) by
alluding to the employee's grievances in a Notice of Proposal to Remove
to support a charge of disruptive and unprofessional conduct. In
disagreement with the Judge we find that the Respondent did not violate
the Statute in discharging the employee. However, we find that the
Respondent did violate section 7116(a)(1) by alluding to the employee's
grievances as support for the action in the Notice.
II. Background Facts
As the pertinent facts of this case are fully set forth in the
Judge's Decision, they will be discussed only briefly. During the
summer of 1984, the employee, Martinez, became concerned about changes
made by management in the manner in which he was required to perform his
duties. In reaction to these changes, Martinez filed four grievances
under the applicable negotiated grievance procedure. The first
grievance was initiated on July 13, 1984, and the fourth grievance was
initiated on September 25, 1984. All of the grievances were denied by
the Respondent with the last decision issuing on October 11, 1984.
Martinez received a "Notice of Proposal to Remove" on October 12 and
submitted a formal response on October 24. On October 26 Martinez was
notified of the Respondent's decision to remove him effective November
2, 1984. As more fully set forth in the Judge's decision, Respondent
noted in essence in taking such action that:
(1) Martinez had promoted racial strife among the staff and
management in the Office of Review and Appeals by informing a
former coworker that he received his promotion only because he is
white, by encouraging a black employee to file an EEO complaint
regarding her non-selection for the same promotion, and by making
allegations that white employees have received more difficult case
assignments.
(2) Martinez had demonstrated disruptive, unprofessional
conduct and made himself extremely difficult to supervise by
seldom accepting assignments or taking directions without
challenging authority. A written reprimand issued September 10,
1984, stated that in objecting to a priority assignment, Martinez
flew into a rage, slammed the file on his desk, yelled at his
supervisor so loudly that he was heard clearly several offices
away, and refused to do more work (Tr 418-19, 425). In addition,
the written reprimand referred to other specific incidents of
disrespect and hostile conduct occurring early in September as
well as previous incident. The concluding paragraph of the
reprimand stated: "(T)his hostile conduct of jumping to
conclusions, making unfounded accusations, and consistently
questioning direct supervisory instructions cannot be condoned."
The Respondent also contended that Martinez abused the grievance
process by continuing to demand information and submitting
numerous memoranda necessitating interim answers on his pending
grievances which occupied his supervisor's work time and prevented
her from processing the cases submitted to her for approval.
(3) Martinez had maintained a hostile attitude in dealings with
management as demonstrated by his continuing failure to accept
assignments or take direction without requiring the direction to
be in writing, with specific instructions on how to deal with
cases, by making untrue allegations at a general staff meeting
that management assigned him almost nothing but merit cases, and
by being extremely abusive, loud and disrespectful toward the
Director in public on one occasion.
See Administrative Law Judge's Decision, at 5-7.
III. Administrative Law Judge's Decision
The Judge found that Martinez had made various remarks to employees
and management officials attributed to him in the Notice of Proposal to
Remove. The Judge further concluded, however, that although the
Respondent was well aware of Martinez's objectionable conduct during the
April-September 1984 period, no formal discipline of any kind was
imposed until September 10, 1984, when he received a written reprimand
for insubordinate conduct in connection with his handling of a priority
case assignment. The Judge found that while his supervisor claimed to
have counseled Martinez concerning his attitude, she had done no more
than indicate her displeasure on a number of occasions when Martinez
displayed what she considered unacceptable behavior. The Judge found it
significant that the supervisor did not enter any notations of her
counseling in his personnel file. The Judge noted that only after
Martinez began to file the grievances did Respondent begin to
investigate and collect statements from employees involved in the
incidents used to establish a basis for charging Martinez with
unacceptable conduct. Regarding Martinez's alleged abuse of the
grievance procedure, the Judge found that Martinez's actions in actively
pursuing his grievances by seeking information and interim answers to
questions concerning his grievances did not exceed the ambit of
protected activity. In view of the above, the Judge found it
unnecessary to reach the alleged independent violation of section
7116(a)(1) contained in the complaint.
IV. Position of the Parties
The Respondent's exceptions challenge the Judge's findings regarding
its motives in discharging Martinez and the Judge's recommended Order
reinstating Martinez. Essentially, Respondent reiterates the same
arguments it presented at the hearing regarding its motivation and the
basis for its decision to terminate Martinez. The Respondent contends
that Martinez's methods of pursuing his grievances were not protected
under the Statute. The Respondent argues that Martinez used the
grievance procedure to create disruptions, tension and suspicion in the
workplace, and as leverage in an attempt to prevent management from
performing its legitimate functions and duties. For example, the
Respondent alleges that Martinez's continuous demands for information
regarding his grievances created a burden which unduly prevented
management officials from accomplishing other work. The Respondent
further contends that it would have discharged Martinez even if he had
not filed grievances and actively pursued them under the negotiated
grievance procedure. At the time of his removal, the Respondent
contends that Martinez was failing to perform his work in a satisfactory
manner, had fomented discontent, and had engaged in an ever increasing
pattern of unacceptable behavior toward his fellow employees and
supervisors which had an adverse effect on the operation of his section.
Accordingly, the Respondent argues that no violation of the Statute
occurred and that the remedy recommended by the Judge, that Martinez be
reinstated and made whole, is inappropriate and unjustified by the
record.
The General Counsel, in its opposition to Respondent's exceptions,
supports the findings of the Judge that the primary reason for
Martinez's discharge was not his performance or conduct as an employee,
but retaliation for his filing and actively pursuing grievances under
the negotiated procedure. The General Counsel supports the Judge's
conclusion that Respondent by its conduct violated section 7116(a)(1)
and (2) of the Statute. Moreover, the General Counsel urges the
Authority to find that Respondent independently violated section
7116(a)(1) of the Statute by including as a basis for termination in the
Notice of Proposal to Remove the filing of grievances.
V. Analysis
A. Termination of Martinez
The Respondent's exceptions raise two defenses. First, Respondent
argues that Martinez was not discharged for having engaged in protected
activity since the charges relating to his conduct in pursuing his
grievances under the negotiated procedure did not involve conduct that
was protected under the Statute. The Respondent also contends that it
would have removed Martinez, notwithstanding the conduct relating to his
grievances, based on the other conduct contained in the Notice of
Proposal to Remove.
(1) Active Pursuit of Grievance is Protected Activity
Section 7116(a)(1) of the Statute provides that it is an unfair labor
practice for an agency to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right under the Statute.
It is well established that an employee's right to file and process
grievances under a collective bargaining agreement is protected activity
within the meaning of section 7102 of the Statute and that management's
actions which tend to interfere with or restrain the exercise of such
rights constitutes unlawful interference in violation of section
7116(a)(1). Internal Revenue Service and Brooklyn District Office, 6
FLRA 642 (1981). Noting particularly that the Respondent's contention
that Martinez abused the grievance process was based on the fact that
Martinez continued to demand information and submitted numerous
memoranda necessitating interim answers on his pending grievances, we
agree with the Judge's finding that Martinez's action in actively
pursuing his grievances did not exceed the ambit of protected activity.
(2) Termination Based on Mixed Motive
With regard to Respondent's second defense, that Martinez would have
been removed for other reasons not withstanding his conduct related to
his grievances, the Authority in Internal Revenue Service, Washington,
D.C., 6 FLRA 96 (1981) enunciated a test for determining whether a
violation of the Statute has been committed in such mixed motive
situations. Under that test the burden is on the General Counsel to
make a prima facie showing that the employee had engaged in protected
activity and that this conduct was a motivating factor in an agency's
decision to act against the employee. If and when a prima facie case is
established, the Respondent then has to show by a preponderance of the
evidence that it would have reached the same decision in the absence of
the protected conduct.
In its Notice of Proposal to Remove, the Respondent in this case
concluded based on specific incidents credited by the Judge:
(1) that Martinez had prompted racial strife among the staff
and management in the Office of Review and Appeals;
(2) that he had been disruptive and unprofessional in his
conduct with management officials and fellow employees; and
(3) that he had a hostile attitude and manner of dealing with
management.
Among the incidents relied on the support the above conclusions, the
Respondent asserted that Martinez abused the grievance process by
demanding information and submitting numerous memoranda concerning his
grievances which prevented his supervisor from working on other matters.
However, the main theme running through the Notice as well as the
written reprimand of September 10, is the Respondent's conclusion that
Martinez had established a pattern of misconduct that was incompatible
with his position as a General Attorney in the Appeals Division of the
Equal Employment Opportunity Commission's Office of Review and Appeals.
In agreement with the Judge, we conclude based on the Notice of
Proposal to Remove and the testimony credited by the Judge that the
General Counsel established that the employee engaged in protected
activity and that such activity was a motivating factor in the decision
to remove him. We further find, in disagreement with the Judge, that
the Respondent established that it would have reached the same decision
even in the absence of the protected conduct. It is clear from the
incidents credited by the Judge that the termination of Martinez was
based on a pattern of disruptive, unprofessional conduct creating an
atmosphere of racial strife among staff and management in the office
which finally culminated in a written reprimand and the subsequent
Notice of Proposal to Remove. The written reprimand referred to three
incidents by date and other incidents by reference where Martinez's
conduct showed disrespect and undermined the authority of his
supervisor. As an example of this type of conduct, the Judge credited
the fact in one incident that Martinez, in objecting to a priority
assignment, flew into a rage, slammed the file on the desk, yelled at
his supervisor so loudly that it was heard clearly several offices away
and refused to do more work. In the written reprimand that followed,
the supervisor stated specifically:
I have ignored previous incidents of similar behavior hoping
that after my prior requests, your behavior would change. I
cannot any longer continue to do so, since this pattern of
behavior is affecting the normal functions of this office. Your
tone and content of your comments are a personal attack on my
functions and the integrity of other supervisors. This conduct of
jumping to conclusions, making unfound accusations, and
consistently questioning direct supervisory instructions cannot be
condoned.
In our view, the pattern of misconduct described in the Notice and
credited by the Judge, standing alone, is sufficient to support the
Respondent's discharge of Martinez. Unlike the Judge, we do not ascribe
any adverse inference to the fact that Martinez's supervisor initially
attempted to correct his behavior verbally and not place anything in
writing in his record. Only when informal efforts failed and Martinez's
conduct became progressively worse did she issue a written reprimand and
subsequently participate in the preparation of the Notice of Proposal to
Remove. We also do not ascribe any adverse inference to the fact that
the Respondent obtained statements concerning Martinez's improper
conduct prior to issuing the Notice of Proposal to Remove. To do
otherwise would have been irresponsible and inadequate personnel work.
We find that a preponderance of the evidence establishes that
Respondent, even in the absence of Martinez's protected activity, would
have removed him because of the pattern of misconduct described.
Accordingly, we conclude that the Respondent by its actions in
terminating Martinez did not violate the Statute as alleged in the
complaint and we shall order that portion of the complaint be dismissed.
See Internal Revenue Service, Washington, D.C. and National Treasury
Employees Union, 6 FLRA 96 (1981).
B. Martinez's Grievances as a Basis for Termination in
Notice of Proposal to Remove
The complaint also alleged that Respondent independently violated
section 7116(a)(1) of the Statute by including as a basis for
termination in the Notice of Proposal to Remove the processing of
Martinez's grievances. We disagree with the Judge's determination that
it is unnecessary to reach this allegation. As we previously found that
the filing and active pursuit of these grievances were protected under
the Statute, we view the inclusion in the Notice of Proposal to Remove
of remarks concerning grievances filed by Martinez as an infringement
upon the exercise of Martinez's protected rights under section 7102 of
the Statute. See U.S. Department of Interior, Office of the Secretary,
U.S. Government Comptroller for the Virgin Islands, 11 FLRA 521 (1983).
Accordingly, by including references to Martinez's filing and active
pursuit to his grievances as a basis for termination in the Notice of
Proposal to Remove, Respondent violated section 7116(a)(1) of the
Statute.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing, find that no prejudicial error was committed,
and affirm those rulings. We have considered the Judge's Decision and
the entire record, and contrary to the Judge we conclude as found above
that the Respondent did not violate the Statute as alleged in the
complaint by the termination of Martinez and shall dismiss that portion
of the complaint. However, we find that by including Martinez's filing
and processing of his grievances as a basis for termination in the
Notice of Proposal to Remove, Respondent violated section 7116(a)(1) of
the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Equal Employment Opportunity Commission shall:
1. Cease and desist from:
(a) Including in the Notice of Proposal to Remove Edgard Martinez
dated October 12, 1984, any adverse comment concerning the right to file
and process grievances under the contractual grievance procedure.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by the
Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, delete from the Notice of Proposal to Remove Edgard
Martinez dated October 12, 1984, any adverse reference to the filing and
processing of grievances filed by Martinez under the contractual
grievance procedure.
(b) Post at its Baileys Crossroads, Virginia Office, copies of the
attached notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Chairman, and shall be posted and maintained for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, 1111 18th Street, N.W., 7th Floor, P.O. Box 33758,
Washington, D.C. 20033-0758, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
It is further ordered that the remaining allegation of the complaint
in Case No. 3-CA-50243 pertaining to the discharge of Edgard Martinez is
dismissed.
Issued, Washington, D.C., December 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT include in the Notice of Proposal to Remove Edgard
Martinez dated October 12, 1984, any adverse comment concerning the
right to file and process grievances under the contractual grievance
procedure.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, delete from the Notice of Proposal to Remove
Edgard Martinez any adverse reference to the filing and processing of
grievances filed by Martinez under the contractual grievance procedure.
(Agency)
Dated: . . . By: . . . (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material. If employees have any questions concerning this Notice or
compliance with its provisions, they may communicate directly with the
Regional Director, Region III, whose address is: 1111 18th Street, NW.,
7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-50243
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Respondent
and
EDGARD MARTINEZ
Charging Party/Individual
Erica F. Cooper, Esquire
Bruce D. Rosenstein, Esquire
For the General Counsel
Frederick W. Ford, Esquire
Calvin Washington, Esquire
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq., and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on March 26, 1985 by Edgard
R. Martinez, an individual, a Complaint and Notice of Hearing was issued
on June 21, 1985, by the Regional Director for Region III, Federal Labor
Relations Authority, Washington, D.C. The Complaint alleges that the
Equal Employment Opportunity Commission, (hereinafter called the
Respondent or EEOC), violated Sections 7116(a)(1) and (2) of the Federal
Service Labor-Management Relations Statute, (hereinafter called the
Statute), by discharging Mr. Martinez because of his participation in
activities protected by the Statute, namely, filing grievances. It is
further alleged that Respondent committed an independent violation of
Section 7116(a)(1) by alluding to Mr. Martinez' protected activity as a
basis for his removal in the formal "Notice of Proposal to Remove".
A hearing was held in the captioned matter on August 6 and 7, 1985,
in Washington, D.C. All parties were afforded the full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted post-hearing briefs on September 23, 1985, /1/
which have been duly considered. /2/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions, and recommendations.
Findings of Fact
At all times material herein, the American Federation of Government
Employees, AFL-CIO, Council 216 has been the exclusive representative of
a unit of Respondent's professional employees, including attorneys. At
all times material herein, the Union and Respondent have been parties to
a collective-bargaining agreement which includes a negotiated procedure
for the processing of grievances. Under that agreement, an employee may
process a grievance through the negotiated grievance procedure as an
individual and without union representation.
On July 1, 1979, Mr. Martinez was hired as a General Attorney in the
Appeals Division of Respondent's Office of Review and Appeals. Mr.
Martinez remained in that position, located at Respondent's Baileys
Crossroads, Virginia location until November 2, 1984. For two to three
weeks prior to his removal, which was effective November 2, 1984, Mr.
Martinez' immediate supervisor was Mr. Gary Hozempa. Immediately prior
to that, from January 1984 to October 1984, Ms. Hilda Rodriguez held the
position of Supervisory Attorney and was Mr. Martinez' immediate
supervisor. Ms. Rodriguez, as Supervisory Attorney reported directly to
Mr. Robbie Dix, III, Director, Division of Appeals. Mr. Dix, in turn,
reported to Ms. Delores Rozzi, Director of the Office of Review and
Appeals (ORA).
During the summer of 1984, Mr. Martinez became concerned about
changes made by ORA management in the method of performing his work.
One such change involved the imposition of clerical duties on attorneys
as part of their official duties. Another change concerned attorney
access to the office word processing equipment in the preparation of
their draft decisions. A third change required attorneys to proofread
not only their own work, but work of other attorneys. Other changes
affecting Mr. Martinez were the manner of prioritizing case work
assigned to attorneys and the fluctuation of case production numbers
required of attorneys.
In response to the above changes, Mr. Martinez filed four grievances
under the applicable collective-bargaining agreement. Mr. Martinez
filed the first grievance concerning the use of word processing
equipment informally with Ms. Rodriguez on July 13, 1984. After no
resolution was reached, on July 27, 1984, Mr. Martinez elevated that
grievance to the next level to Office Director Rozzi. Ms. Rozzi denied
the grievance on August 2, 1984. Thereafter, Mr. Martinez elevated the
grievance on August 3, 1984 to the third level with Respondent's
Chairman Clarence Thomas. Chairman Thomas denied that grievance on
September 27, 1984.
On August 3, 1984, Mr. Martinez filed a second grievance at the first
level with Ms. Rodriguez concerning what he considered the imposition of
clerical duties on attorneys. Additionally, in the grievance, he sought
responses to memoranda written by Mr. Martinez on June 25, 1984 and June
27, 1984 to management requesting specific information on attorney
production requirements. Ms. Rodriguez responded on August 10, 1984,
denying his grievance. Mr. Martinez again followed the procedure set
forth in the collective-bargaining agreement and appealed the denial to
Ms. Rozzi on August 16, 1984. Ms. Rozzi denied the grievance on August
23, 1984 which Mr. Martinez promptly raised to the third level with the
Chairman on August 24, 1984. Mr. Chairman denied the grievance on
September 27, 1984.
Mr. Martinez filed a third grievance at the step one level with Ms.
Rodriguez on August 29, 1984. The third grievance concerned a dispute
surrounding the assignment of a particular priority case, the imposition
of proofreading duties on attorneys, and production requirements as set
forth in an August 28, 1984 memorandum from Ms. Rodriguez. After
receiving Ms. Rodriguez' first step denial on September 4, 1984, Mr.
Martinez elevated the grievance to Ms. Rozzi at the second step on
September 10, 1984. Ms. Rozzi did not respond to the grievance at the
second step, and thereafter Mr. Martinez elevated the grievance to the
Chairman's level. In conjunction with that grievance, Mr. Martinez
submitted a memorandum dated September 25, 1984 to the Chairman and all
of Respondent's Commissioners addressing his positive contributions to
the Commission and suggesting possible ways of improving operations in
ORA. Although Mr. Martinez received no response to his September 25,
1984 memorandum, Chairman Thomas denied the grievance on November 30,
1984.
By memorandum dated September 4, 1984, Mr. Martinez requested an
adjustment of his productivity requirements. On September 25, 1984, Mr.
Martinez filed a first step grievance based on the lack of response to
his September 4, 1984 memorandum. The grievance was denied by Ms.
Rodriguez on the same day. Mr. Martinez appealed that denial to Ms.
Rozzi who on September 28, 1984 informed Mr. Martinez that in accordance
with instructions from Respondent's Labor Relations Office, the
appropriate second step grievance level was the Division Director,
rather than the Office Director and consequently forwarded the grievance
to Robbie Dix, III for response.
A second step grievance meeting was held on October 1, 1984 on the
grievance. In attendance were Mr. Martinez, Chief Steward Diane Amos
and Mr. Dix. On October 3, 1984, Mr. Dix denied the grievance at the
step two level. Mr. Martinez appealed to Ms. Rozzi on October 9, 1984.
Ms. Rozzi denied the appeal on October 11, 1984.
On October 12, 1984, Mr. Martinez attended a meeting in Division
Director Dix's office, and received a "Notice of Proposal to Remove" him
from his position in ORA for unacceptable and unprofessional conduct.
Present at that meeting were Mr. Dix, Chief Steward Diane Amos, Mr. Rick
Reda, Acting Director of ORA Administration, and Mr. Martinez. After
reviewing the Notice, Ms. Amos objected to its contents on the basis
that the incidents listed therein were not specific enough to allow Mr.
Martinez to adequately respond to the Notice and that the Notice did not
conform to the requirements of the collective-bargaining agreement as to
the timeliness of the allegations. Ms. Amos asked both Ms. Rodriguez
and Mr. Dix for more specifics. Mr. Dix stated that Ms. Amos would have
to get any specifics from Office Director Rozzi. Ms. Amos received a
memorandum dated October 22, 1984 from Ms. Rozzi denying her request for
further clarification of the Notice. Ms. Amos made a formal response to
the Notice of Proposal to Remove any letter of October 24, 1984, in
which she stated her objections to the form and content of the Notice.
Three days after receiving the Notice of Proposal to Remove, on
October 15, 1984, Mr. Martinez received his annual performance appraisal
for the period October 1, 1983 to September 30, 1984. Attached to that
appraisal was an Individual Development Plan for those areas in which
Mr. Martinez had been found to be deficient. The Plan, drafted in
accordance with EEOC Order 542, was designed to provide Mr. Martinez
with 90 days to improve both the quality of his work and his conduct.
Shortly thereafter on October 26, 1984 at 9:00 p.m., a private
process server delivered two documents to Mr. Martinez at his home: A
Notice of Removal dated October 26, 1984 and a memorandum from Delores
Rozzi directing Mr. Martinez to call his then supervisor Mr. Hozempa to
arrange for an inventory of case files and government property, and
placing him on administrative leave until the effective date of his
removal, November 2, 1984.
Respondent assigned the following reasons for its proposed action.
"1. You have demonstrated a course of conduct which has created an
atmosphere of racial strife among the staff and management in the Office
of Review and Appeals.
2. You have been disruptive and unprofessional in your conduct with
management officials both inside and outside your chain of command, as
well as with your co-workers.
3. You have been hostile in your attitude and dealings with
management, and your conduct has rendered you ineffective in your
relations with the staff and management of the Office of Review and
Appeals.
While some of the incidents enumerated below took place more than 60
days ago, they clearly demonstrate a continuous behavioral pattern. The
specific instances of unacceptable and unprofessional conduct listed
above on which this proposed action to remove you are based are as
follows:
REASON -- 1. Conduct which has created an atmosphere of racial
strife among staff and management of the Office of Review and Appeals.
INCIDENTS -- 1 a. The function of the Office of Review and Appeals
is quasi-judicial in nature. It requires that its employees maintain
the highest standards of conduct, especially since they have a
responsibility to maintain an impartial, objective point of view in the
work they conduct. Your comments to a former co-worker regarding his
promotion to management, that he received this promotion only because he
is white, reflect poor judgement on your part, violate those standards,
jeopardizes your impartiality, creates the appearance of inefficiency,
and adversely affects the operation of this Office. You also told this
employee that black employees in the office agreed and stated that his
race was the reason for his selection. To create a situation fostering
racial strife in any office is clearly improper. To do so in an Office
such as Review and Appeals is unacceptable.
1 c. You then encouraged a black employee to file an EEO complaint
regarding his non-selection for this same promotion. You stated to this
employee that he had a good case. This type of behavior is divisive,
and generates racial tension and suspicion, by putting black and white
employees against one another. This conduct cannot be permitted to
exist in any work place, and is especially unacceptable in this Office.
1 d. You have also stated to your supervisor and to other staff
members that white employees have received more difficult case
assignments, when you would have no factual data on which to base such
comments. Furthermore, in displays of emotional outbursts, you have
repeatedly accused the Office management, without any foundation
whatsoever, of discriminating against white males in the daily operation
of this Office. In making such unfounded allegations, you have created
an atmosphere of racial tension and suspicion.
1 e. The above actions have rendered you totally ineffective in your
dealings with supervisors and managers in this Office, as well as with
your co-workers. Your behavior has been so disruptive that you have
created racial strife in the work place; many of your co-workers do not
want to deal with you for fear that anything said will be used to create
further strife and disruption.
REASON -- 2. Disruptive and unprofessional conduct.
INCIDENT -- 2 a. You have demonstrated repeatedly that you are
extremely difficult to supervise; you seldom accept assignments or take
direction without challenging authority, e.g., your objections at
receiving a priority assignment -- 05-84-0190. You have also responded
to directions to proofread your decisions with the objection that it is
not your job, even though this is clearly stated in your performance
standards.
2 b. You stated to the Federal Liaison Officer when you learned that
he was not with the management team on the Los Angeles trip that he
"must be on the shit list, too."
2 c. You made comments to the Director of Compliance and Control
Division which were derogatory in nature regarding the promotion of two
employees into management.
2 d. After the selection of another Commission employee from another
office to a management position in this Office, you called him on at
least three occasions, telling him of your grievances, and you alluded
to an EEO complaint. There is a strong implication that if he became
your supervisor and took any kind of disciplinary action against you,
you could allege retaliation. As a result, this employee declined to
accept the position, thereby causing undue hardship on this Office.
This delayed the filling of this position, and has delayed the
implementation of this Office's quality assurance program.
2 e. Management recognizes the right of employees to avail
themselves of the grievance process and to bring matters of concern to
the appropriate management officials. However, you have clearly abused
this process by using this mechanism to create disruptions among
employees and management, and creating tension and suspicion. You have
used the grievance procedure as a threat and as leverage to attempt to
prevent management from performing its legitimate functions and duties.
As a result you have further made yourself ineffective in your relations
with other employees and management.
REASON -- 3. Hostile attitude in your dealings with management.
INCIDENT -- 3 a. As referenced above at 2 a., you have demonstrated
an extremely hostile attitude toward your supervisor when you have been
assigned cases. In a general staff meeting you alleged that you have
been assigned almost nothing but merit cases, and accused management of
assigning easier cases to the employees in the Review Division. This
accusation was completely unfounded. A subsequent review of the cases
you have submitted for approval at that time revealed that 77% were
procedural cases. Your comments at this meeting only served to create
dissension among the staff and hostility towards management.
3 b. You have continuously failed to accept assignments or take
direction without requiring the direction to be in writing, with
specific instructions on how to deal with cases, thereby requiring an
inordinate amount of supervisory time at the expense of other members of
the unit (e.g., the Quinones and Dillard cases).
3 c. You have continuously written memos which make the same
requests or seek the same guidance, and require excessive amounts of
time to respond. This has had an adverse impact on time to review
cases. As a result productivity has been impaired, and the overall
Office productivity has suffered as well as the individual productivity
of other members of the unit, whose cases have not been reviewed (e.g.,
your constant requests for modifications to your GPAD standards).
3 d. You continuously present a hostile and uncooperative attitude
towards management, e.g., during a luncheon with the Office Director,
the attorneys in your unit, and your supervisor, you were extremely
abusive, loud and disrespectful towards the Director, so much so that
your supervisor and other members of the staff later apologized to the
Director for your behavior. Furthermore, despite several counselling
discussions with your supervisor, your conduct toward management
continued to deteriorate to the point that you were then issued a
written admonishment. All of your supervisor's efforts to get you to
modify and improve your conduct have proven to be unsuccessful.
3 e. Since January, 1984, your supervisor has made repeated attempts
to provide you with proper direction and guidance. You have been
admonished by her and by your Division Director regarding your conduct
and behavior on several occasions. In January, 1984, you were placed on
a performance improvement plan, which addressed the quality of your
work. Within two months, you were taken off the plan because the
quality improved. However, your quality has again deteriorated. It is
evident that your hostile attitude and behavior has not only adversely
impacted on your relations with the staff and management, but on your
own work as well."
With regard to the "incidents" relied upon in the Notice of Removal,
Respondent produced numerous witnesses at the hearing who credibly
testified without contradiction that "incidents" cited in the Mr.
Martinez' Notice of Removal did in fact occur. /3/
With respect to the remarks made to various employees and/or
management representatives concerning promotions and work assignments
based on racial preference, the record reveals that such remarks were
made in private conversations with the particular individuals involved.
The record further reveals that although Respondent was well aware of
Mr. Martinez' objectionable conduct which occurred during the period of
April-September 1984, no formal discipline of any kind was imposed upon
Mr. Martinez until September 10, 1984, when he received a Formal Written
Admonishment from his immediate supervisor, Hilda Rodriguez for
insubordinate conduct in connection with his handling of a priority case
assignment. /4/ Although Ms. Rodriguez testified that she had counseled
Mr. Martinez concerning his attitude, etc., upon further questioning it
was disclosed that at most she had indicated her displeasure at his
attitude and actions on a number of occasions when he displayed what she
considered unacceptable behavior. No notations of her displeasure were
ever entered in Mr. Martinez' personnel file.
With respect to incident 2 e in the Notice of Removal, wherein
reference is made to Mr. Martinez' abuse of the grievance process, both
Ms. Rodriguez and Ms. Rozzi similarly testified that Mr. Martinez was
never satisfied with merely filing a grievance and awaiting Respondent's
action thereon. Rather Mr. Martinez continued to demand information and
submit numerous memoranda necessitating interim answers on the pending
grievances which occupied Ms. Rodriguez' work time and prevented her
from processing the cases submitted to her for approval.
Additionally, Ms. Rozzi testified that Mr. Martinez abused the
grievance process by informing a potential supervisor, Michael
Baldonado, who was occupying another position with EEOC at the time
about his pending grievances. /5/ Mr. Baldonado, who had been a former
co-worker of Mr. Martinez, subsequently declined the position. Mr.
Baldonado testified that he was uncomfortable with the information
because he felt that knowledge of the grievances could be imputed to him
if he became a supervisor and thereby inhibit him in his dealings with
the employees under his supervision. Mr. Baldonado further testified
that although he was uncomfortable with the information imparted to him
by Mr. Martinez, it was not the reason that he subsequently refused to
accept the supervisory position. Thus, he pointed out that the position
was that of an acting supervisor and there was no guarantee that he
would ultimately be made a permanent supervisor.
The record further reveals that Mr. Martinez and Ms. Rodriguez were
both of Puerto Rican ancestry and had been co-workers prior to Ms.
Rodriguez' elevation to a supervisory position. Because of their
ancestry and former association their relationship appears to have been
much less formal that which usually exists between a supervisor and a
subordinate.
Discussion and Conclusions
The General Counsel takes the position that the sole reason for Mr.
Martinez' discharge was his participation in activities protected by the
Statute, namely the filing of grievances under the negotiated grievance
procedure. In such circumstances the General Counsel urges that the
undersigned find that the Respondent violated Sections 7116(a)(1) and
(2) of the Statute and order Mr. Martinez' reinstatement with back pay.
Additionally, the General Counsel contends that the Respondent committed
an independent violation of Section 7116(a)(1) of the Statute by
including a reference to Mr. Martinez' alleged abuse of the grievance
procedure in the "Proposed Notice of Removal".
The Respondent, on the other hand, takes the position, that it did
not violate the Statute. According to the Respondent inasmuch as Mr.
Martinez abused the grievance process his activities in such respect did
not fall within the protection of the Statute. Further, Respondent,
citing the Authority's decision in IRS, Washington, D.C., 6 FLRA No. 23,
takes the position that in any event Mr. Martinez would have been
discharged for reasons other than his participation in activities
protected by the Statute, i.e., insubordination, causing racial tension,
etc.
Contrary to the contention of Respondent, I cannot find that Mr.
Martinez' actions in actively pursuing his grievances by seeking
information and answers to questions relative thereto somehow removed
the grievances from the ambit of protected activity. It appears that
Respondent would only allow a grievant the protection of the Statute if
he merely filed a grievance and then sat back and passively awaited
Respondent's action thereon.
Inasmuch as Respondent has failed to establish any other grounds for
disqualification of Mr. Martinez' grievance activity from the protection
of the Statute, I cannot find as urged by the Respondent that Mr.
Martinez abused the grievance process. Rather I find that his actions
in actively pursuing his grievances were protected by the Act. /6/
In view of this conclusion and since Mr. Martinez' protected activity
played a part in his discharge, it must not be decided, in accordance
with the Authority's decision in IRS, Washington, supra, whether Mr.
Martinez would have been discharged in any event for reasons unrelated
to his participation in activities protected by the Act. Respondent, of
course, takes the position that Mr. Martinez would have been discharged
for reasons other than his protected activities, namely causing racial
tension, insubordination, etc.
In this context the record establishes that the incidents cited in
the "Notice of Proposal to Remove" did in fact occur. However, it is
not the existence of grounds for removal which is the test, rather the
test appears to be whether such grounds for discharge would have been
utilized by Respondent in the absence of the employee's participation in
activities protected by the Statute.
The record further establishes that although the supervisory
hierarchy was well aware of such incidents, no written notations were
ever entered into Mr. Martinez' personnel file. In fact other than
exhibiting displeasure with Mr. Martinez' actions, no warnings or other
admonishments were given to Mr. Martinez.
To the extent that Mr. Martinez is charged with inciting racial
tensions, the participants in such conversations testified that they
were not particularly upset with Mr. Martinez' actions, and appeared to
accept such actions as an every day occurrence when dealing with Mr.
Martinez.
Further, with respect to the cited incidents involving the
relationship between Ms. Rodriguez and Mr. Martinez and his daily
complaints or comments to her, it should be noted that due to the fact
that they were both of Puerto Rican ancestry and former co-workers Ms.
Rodriguez appears to have allowed Mr. Martinez greater latitude than
normally exists between a supervisor and an employee.
Given the above, I am convinced that but for Mr. Martinez'
participation in protected activities, namely filing and actively
pursuing four grievances under the negotiated grievance procedure,
Respondent would not have discharged Mr. Martinez. It was only after
Mr. Martinez filed his grievances and actively pursued same, that
Respondent determined to discharge him. To this end it approached the
various employees who were involved in the cited incidents and obtained
statements concerning Mr. Martinez' alleged unacceptable activities and
then proceeded to discharge him. Cf. JMC Transport, Inc. v. NLRB, F.2d,
Case Nos. 84-5960 and 84-6060, (Nov. 12, 1985, 6th Cir.); DLR No. 223,
Nov. 19, 1985.
Having concluded that Mr. Martinez would not have been discharged but
for his participation in activities protected by the Statute, I hereby
recommend that the Authority issue the following order designed to
effectuate the purposes and policies of the Statute. /7/
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the Equal Employment Opportunity Commission shall:
1. Cease and desist from:
(a) Terminating, and other discriminating against, employees
because they have engaged in activities protected by the Federal
Service Labor-Management Relations Statute, namely, filing and
processing grievances under the contractual grievance procedure.
(b) In any like to related manner interfering with,
restraining, or coercing employees in the exercise of their rights
guaranteed by the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Offer Edgard Martinez immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him
whole, consistent with applicable laws and regulations, for any
loss of income he may have suffered by reason of his unlawful
termination by paying to him a sum of money equal to the amount he
would have earned or received from the date of his termination to
the effective date of the offer of reinstatement, less any amount
earned through other employment during the above-noted period.
(b) Post at its Baileys Crossroads, Virginia Office, copies of
the attached notice marked "Appendix" on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Director of the Office of
Review and Appeals and shall be posted and maintained by her for
60 consecutive days thereafter in conspicuous places, including
all bulletin boards and other places where notices to employees
are customarily posted. The Director, shall take reasonable steps
to insure that such notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, 1111 18th Street, NW., 7th Floor, P.O.
Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
/s/ Burton S. Sternburg,
Administrative Law Judge
Dated: November 20, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Respondent on November 1, 1985 moved to file a Supplemental
Post-Hearing Brief. In the absence of any objection, the brief has been
received and considered.
(2) In the absence of any objection, the General Counsel's Motion to
Correct Transcript, is hereby granted.
(3) Michael Baldonado, Hilda Rodriguez, Robbie Dix, Dolores Rozzi,
Gary Hozempa, C. Lloyd Buddo, Roscoe Elkins, Ronald Holmes and Josephine
Trevathan.
(4) The assignment of priority cases was the subject matter of Mr.
Martinez' August 29, 1984 grievance.
(5) According to Ms. Rozzi, Mr. Martinez' action with respect to Mr.
Baldonado was like "frosting on the cake" and considering Mr. Martinez'
past indiscretions, she decided it was time to remove him.
(6) The fact that he may have told a prospective supervisor about his
pending grievances does not alter this conclusion.
(7) Having found that Respondent discharged Mr. Martinez solely
because of his participation in activities protected by the Statute, I
need not, and do not, reach the second allegation of the complaint,
i.e., whether Respondent committed an independent 7116(a)(1) violation
of the Statute by alluding to Mr. Martinez' protected activity in the
"Notice of Proposal to Remove".
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT terminate, or otherwise discriminate against, our
employees because they have engaged in activities protected by the
Federal Service Labor-Management Relations Statute, namely, filing or
processing grievances under the contractual grievance procedure.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL offer Edgard Martinez immediate and full reinstatement of his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole, consistent
with applicable laws and regulations, for any loss of income he may have
suffered by reason of his unlawful termination by paying to him a sum of
money equal to the amount he would have earned or received from the date
of his termination to the effective date of the offer of reinstatement,
less any amount earned through other employment during the above-noted
period.
(Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, NW., 7th Floor, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8500.