Employment Law Daily Firing Asian postal worker after EEO activity, sleeping on job was retaliatory
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Wednesday, December 19, 2018

Firing Asian postal worker after EEO activity, sleeping on job was retaliatory

By Harold S. Berman J.D.

An Asian postal service police officer who was suspended several times and then terminated after engaging in EEO activity, and also after being accused of sleeping on the job, was entitled to back pay for retaliation, the First Circuit ruled. The appeals court affirmed the federal district court’s Title VII retaliation ruling at trial, concluding there was ample evidence to find the postal service liable for retaliation, given the employee’s contentious relationship with management, multiple suspensions closely following her EEO activity, and that termination was almost never applied to a postal police officer for sleeping on the job. The district court also acted within its discretion in denying the employee front pay, particularly given her failure to present front pay evidence at trial (Anderson v. Brennan, December 14, 2018, Lynch, S.).

First EEO request. The employee, an immigrant from China, was a police officer for the U.S. Postal Service. In her first 16 years on the job, she was never disciplined. In 2011, she took time off for a workplace ankle injury. When she reported back to work with her doctor’s approval, her supervisor refused to permit her to return. She ultimately returned, but first requested EEO pre-complaint counseling, alleging race discrimination against her supervisor.

Broken stool. In late May, after learning her mother had been admitted to a hospital, she left work during her shift. She left an emergency leave request form on the duty sergeant’s desk, and her request was later approved. When she returned to work, she found a broken stool in place of her regular chair. When she tried to borrow a different chair, a sergeant told her the chair was not authorized. She complained to her supervisor, emphasizing her need for a chair because of her ankle injury, but he responded, “If you don’t like it, go home.” She told him she would leave, but wanted to be put back on workers’ compensation status, and would return when the broken stool was replaced.

However, when she did not report to work the following day, a sergeant called her to explain her absence. When she told him that her supervisor told her to go home, the sergeant said he would consider her to be on sick leave. Instead, he changed her previous approved leave request for her mother’s hospitalization to AWOL status, apparently at her supervisor’s instruction.

EEO conference. In June, the employee attended an EEO conference with her supervisor and a sergeant. The employee testified that the supervisor and sergeant refused to discuss her discrimination allegations, and told her to file an EEO complaint. Nine days later, the sergeant suspended the employee for leaving her post during her mother’s hospitalization, and after the stool incident. Around this time, the supervisor told a coworker that he found the employee’s EEO complaints “distasteful” and did not understand why she was filing them. The employee later filed an EEOC complaint, alleging that her suspension was racially discriminatory. The complaint was dismissed for failure to identify a suitable comparator.

Additional EEO complaints. In early 2012, the employee filed several requests for pre-complaint EEO counseling, alleging race discrimination and retaliation by several members of management. Later in 2012, she received two warning letters, both relating to use of her firearm. In September, the employee filed another EEO pre-complaint counseling request, asserting the second letter was retaliation for her prior EEO activity. Two weeks later, she received a 14-day suspension, ostensibly for a firearms violation in July and losing her keys.

In November, the employee attended an EEO redress conference, during which management proposed expunging her disciplinary record if she resigned her police position, and became a clerk instead. Around this time, a manager expressed displeasure to a coworker about the employee’s EEO activity, and said “I want her gone.” In December, the employee filed another EEO pre-complaint counseling request, charging the manager and a sergeant with race discrimination and retaliation. The sergeant subsequently removed her from consideration to fill in as an acting supervisor.

Sleeping on the job? In late December, the employee filed an EEOC charge against the manager and sergeant for race discrimination and retaliation. Six months later, she was suspended without pay for sleeping when she was supposed to be guarding a fire scene. She claimed she was not sleeping, and her cell phone showed that she used it during that time. Although an investigation made no factual findings concerning what happened, the employee was nevertheless terminated.

Trial. The employee sued, alleging that terminating her was disproportionate to her conduct, and resulted from discrimination and retaliation in violation of Title VII. She sought reinstatement, back pay and benefits, emotional distress damages, and attorney fees. The court at trial did not find discrimination, but did find that the decision to terminate her in lieu of lesser discipline, as well as two of the suspensions, constituted retaliation for assertion of her EEO rights. The court refused reinstatement as a police officer because of her antagonistic relationship with her supervisors, but approved reinstatement as a clerk. The court also awarded attorneys’ fees and back pay.

The employee and postal service cross-moved for reconsideration on liability and damages. The district court refused to change its liability finding, but offered front pay instead of reinstatement. However, the court subsequently denied the employee’s front pay request, because determining the correct amount required re-opening the trial record, which the court found inappropriate, and the employee had not presented front pay evidence at trial. The postal service and employee cross-appealed.

Liability for retaliation. The appeals court affirmed the district court’s finding of the postal service’s liability for retaliation, concluding that the record offered ample support for the district court’s finding. The district court did not err in concluding that postal service management had a retaliatory motive in choosing to terminate the employee rather than impose a lesser punishment. Sleeping on the job was not taken seriously in the Boston postal police force, no witness could recall a Boston police officer ever being terminated, and only a handful had been terminated nationally. Additionally, the termination was made against a backdrop of antagonistic interactions between the employee and management.

Remedies. The court found no abuse of discretion in the district court’s award of remedies. The employee had a fair opportunity to present evidence during trial, and her disappointment with the court’s award was not sufficient reason to change it. The court acted appropriately in relying on evidence offered post-trial to reconsider and vacate its previous reinstatement award.

Nor did the district court abuse its discretion by refusing to re-open the trial record. The court did not award front pay because the employee failed to introduce front pay evidence at trial, and the district court was entitled to rely on the employee’s lack of evidence at trial in determining whether to award front pay.

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