FLRA DECISIONS

60 FLRA No. 45

RETALIATION FOR PROTECTED SPEECH ... REMEDIES

Department of Health and Human Services, Gallup Indian Medical Center, Navajo Area Indian Health Service and Laborers' International Union of North America, Local 1376, 0-AR-3728, September 2, 2004, 60 FLRA No. 45.

Holdings

In a 45-page decision, the Authority upheld that part of an award in which the arbitrator found, among other things, a First Amendment violation when three supervisors retaliated against the grievant for making protected disclosures relating to medical care by calling the facility to which the grievant was scheduled to be transferred and making adverse comments about him that resulted in, among other things, a cancellation of the transfer. But since the arbitrator didn't explain how he arrived at the amount of backpay for this violation, FLRA remanded this portion of the award for a clarification of the proper amount of backpay. It also set aside the arbitrator's finding violations of the Fifth Amendment and the Whistleblowing Protection Act (Member Pope dissenting regarding the latter). It further set aside those remedies ordering monetary benefits for lost retirement benefits, moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, damages for psychological injuries, and "front pay" because they aren't authorized by the Back Pay Act. And it remanded that portion of the award dealing with attorney fees, directing that the award be reduced because the grievant achieved only a partial success.

Summary

The grievant had been offered and accepted a transfer from the Gallup Indian Health Service facility to the Whiteriver facility. Before this was accomplished, the grievant discussed with the Gallup CEO a previously-approved leave request that was disapproved by one of his supervisors. While at it, he made several statements critical of Gallup's administration, including statements that nurses were asked to work double shifts (and told not to report them), and that the intensive care unit was understaffed. This prompted three of the grievant's supervisors to call Whiteriver, asking them to expedite the grievant's transfer. When asked why the hurry, they made several negative allegations regarding the grievant. Whereupon Whiteriver revoked the transfer offer. The Grievant nonetheless moved to Whiteriver because his wife had accepted a position there and he and she had contracted to sell their home in Gallup.

A grievance was filed and the arbitrator found that the agency violated the grievant's First and Fifth Amendment rights in that the telephone remarks of the supervisors had severely impacted the grievant's ability to continue in his chosen profession. Moreover, since the grievant's remarks were protected disclosures under the Whistleblower Protection Act (WPA), the phone call to Whiteriver was in retaliation for the disclosures and thus the agency also violated the WPA.

As remedies, the arbitrator initially directed the parties to try to work something out (but retained jurisdiction if they couldn't), and when they couldn't, he awarded backpay, compensation for moving expenses, damages for psychological injuries, front pay to the date the grievant would have retired (assuming a retirement age of 62), compensation for increased medical costs, related travel, prescription expenses, lost retirement benefits (i.e., the cost of replacing for next 11 years life insurance which he lost as a result of not being able to return to work), and attorney fees.

FLRA (Chairman Cabaniss dissenting) found that the finding of a First Amendment violation was in accordance with the law. The grievant's remarks involved matters of public concern, the agency didn't demonstrate that its interests outweighed the grievant's interests, the grievant's protected speech was a substantial or motivating factor in the phone call, and the agency didn't allege that the officials would have made the phone call in the absence of the protected speech.

However, it found that the arbitrator erred in finding a Fifth Amendment violation because there was no basis for concluding that the allegations made in the phone call to Whiteriver also were made to other facilities, inside or outside the agency, and thus there was no showing of "permanent exclusion from, or protracted interruption of, gainful employment within [his] trade or profession[.]"

FLRA (Member Pope dissenting) also found the arbitrator's finding of a WPA violation was deficient because the phone call made by the Gallup officials didn't constitute a personnel action. FLRA said that the Federal Circuit has held that WPA distinguishes between those who recommend personnel actions and those who take or fail to take personnel actions. Here, it was the Whiteriver, not the Gallup, Indian Medical Center that revoked the transfer.

FLRA said that a Bivens action is unavailable to employees covered by the Back Pay Act and the CSRA. Thus the First Amendment, by itself, doesn't provide a basis for the remedies awarded by the arbitrator. However, under the Back Pay Act, a violation of an "applicable law" is an unjustified or unwarranted action and the First Amendment constitutes an applicable law. Thus the first requirement for back pay is met. So, also, was the second requirement -- i.e., backpay is available if the employee is unable to work due to an incapacitating illness.

The Arbitrator found that "the unrebutted evidence confirms the Grievant was so emotionally damaged by the Agency's actions that he has been unable to perform nursing duties[.]" Merits Award at 46. Thus, the Arbitrator found that the grievant's inability to work was caused by the violation of the First Amendment. As a result, the second requirement of the Back Pay Act is satisfied here.

But since the arbitrator didn't explain how he arrived at the amount of backpay, this portion of the award was remanded to the parties for resubmission to the arbitrator for a clarification as to the appropriate amount of backpay.

FLRA set aside those portions of the award dealing with lost retirement benefits because the Back Pay Act doesn't authorize the award of lost retirement benefits. And although the WPA would authorize payment of moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, etc., since FLRA set aside the finding of a violation of the WPA and these payments aren't authorized by the Back Pay Act, FLRA set aside these portions of the award. The "front pay" portion of the award also was set aside because it isn't authorized by the Back Pay Act. Finally, the award for attorney fees is remanded to exclude those fees for work done on the claims that FLRA had set aside--i.e., so the arbitrator could issue a "reduced fee award."

In her partial dissent, Chairman Cabaniss questioned whether a constitutional claim amounts to a grievance, given that the Constitution can't be said to have been issued for the purpose of directly (not incidentally) affecting working conditions.

In her partial dissent, Member Pope would deny the agency's WPA exception to the award. In her view, it wasn't Gallup that was the "agency." "An 'agency,' for WPA purposes, is 'an Executive agency' [under] 5 U.S.C. ' 23202(a)(2)(C), and it is undisputed that the Department of Health and Human Services (HHS) is an Executive agency." Moreover, the arbitrator found that the "personnel action" for WPA purposes wasn't the phone call, but the revocation of the transfer offer. She accordingly found that several of the remedies not authorized by the Back Pay Act are authorized by the WPA. She would, however, set aside the award for psychological damages because damages for mental and emotional suffering aren't authorized by the WPA. Ditto regarding "front pay." "Here, it is undisputed that the grievant was unable to return to work. Thus, even assuming that the WPA should be interpreted in a manner similar to Title VII, front pay is not warranted here. As for attorney fees, she'd remand it for further findings. "[I]f the work associated with those unsuccessful claims significantly contributed to the success of the successful claims . . . then that work may be included in the award of attorney fees."

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