DATE:
CASE NOS. 81-CETA-224 and
81-CETA-311
IN THE MATTER OF
EARNESTINE GORDON,
COMPLAINANT,
v.
KANE COUNTY CETA, ILLINOIS,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under the Comprehensive Employment and
Training Act (CETA), 29 U.S.C. §§ 801-999 (Supp. V
1981), [1] and its implementing regulations, 20 C.F.R. Parts
675-680 (1990). The grantee, Kane County CETA, Illinois, filed
exceptions to the Decision and Order (D. and O.) of the
Administrative Law Judge (ALJ) finding that the Complainant,
Earnestine Gordon, had been improperly terminated from her
employment with the County and awarding her back pay of
$7,687.50. The case was accepted for review [2] in accordance
with 20 C.F.R. § 676.91(f).
BACKGROUND
Complainant was hired on September 6, 1978, as an Education
and Training Assistant in the grantee's Aurora field office.
Transcript (T.) at 283; D. and O. at 2. Her duties included
preparation of grant modifications and applications for Field
Office Education and Training Programs in conjunction with the
Field Office Director. ALJ Exhibit 1, para. 2. In this
position, Complainant was supervised by Cynthia Miller, a Field
Office Director. T. at 284.
In March 1979, Complainant was assigned a grant package,
although she did not receive the actual materials until June 6,
[PAGE 2]
1979. T. at 203, 292; D. and O. at 3. The due date for this
assignment was June 20, 1979, but Complainant testified she
thought the grant package was due July 2, 1979. Respondent's
Exhibits 1, 2, 5; T. at 87, 151, 302.
On May 16, 1979, Complainant requested leave without pay for
the week June 18-23, 1979, and Ms. Miller approved it "contingent
on the date for the grant submittal." Administrative File (A.F.)
Tabs B, I. Complainant withdrew her leave request on May 31,
1979. T. at 288.
On June 15, 1979, Complainant, who was approximately six
months pregnant, saw her doctor because of related complications.
Her doctor recommended that she discontinue normal activity and
assume moderation and bed rest most of the time. T. at 10. The
ALJ found that Complainant informed Ms. Miller that she would not
be reporting for work the following week. D. and O. at 3.
Ms. Miller testified it was her understanding that Complainant
would complete the grant before she took time off, T. at 168,
whereas Complainant testified that Ms. Miller told her to stop
working on the grant. T. at 302. The ALJ found that Ms. Miller
attempted to reach Complainant on June 18 and 19 but was unable
to do so. D. and O. at 3. She thereafter left a message at
Complainant's husband's office. On June 20, Complainant
telephoned Ms. Miller and informed her that the grant materials
were on Complainant's desk. Id.
Ms. Miller was unable to reach Complainant on June 18 and 19
because Complainant had accompanied her husband on a business
trip to California that week. T. at 304. While there is a
conflict in the testimony as to what Complainant said regarding
her whereabouts during the June 20 telephone conversation,
Complainant never told Ms. Miller that she was in California.
She testified that she did not suggest that she was at home.
T. at 305.
On June 20, Ms. Miller wrote a letter to Complainant
requesting her resignation effective June 25, 1979. A.F. Tab I.
Upon her return to work on June 25, Complainant responded in
writing that she did not plan to resign, A.F. Tab I, and
presented a certificate from her doctor stating that she was
totally incapacitated from June 18-23, 1979. A.F. Tab I. By
letter dated June 25, 1979, Ms. Miller advised Complainant that
her employment was terminated, effective the same day, for
refusal to obey reasonable instruction in regard to those duties
within the framework of the employee's job or other acts of
insubordination and deceptive acts being committed. A.F. Tab B.
Complainant appealed the termination to the grantee's
personnel department which upheld that action. Both the County
Appeals Board and the Executive Committee reached the same
conclusion. D. and O. at 5; A.F. Tab B.
[PAGE 3]
On February 22, 1980, Complainant filed a complaint with the
Department of Labor contesting the merits of the termination.
A.F. Tab B. In a final determination issued April 3, 1981, the
Grant Officer concluded that the grantee violated its own
procedures and 20 C.F.R. § 676.43 in terminating
Complainant's employment. He therefore ordered her reinstatement
and awarded back pay. A.F. Tab G.
The complaint also included an allegation that Complainant
was discriminated against because she "was a pregnant Black
American female." This allegation was investigated by the
Department of Labor's Office of Civil Rights which, on June 15,
1981, issued a final determination concluding that there was no
evidence of discrimination. A.F. No. 2, Tab 61.
The grantee requested a hearing on the Grant Officer's
determination and Complainant asked for a hearing on the
determination of the Office of Civil Rights. The cases were
consolidated for purposes of the ALJ hearing. D. and O. at 6.
The ALJ concluded that the facts in the case did not support
the grantee's terminating Complainant's employment "for alleged
refusal to obey reasonable justifications [sic] in regard to
those duties within the framework of the employee's job."
D. and O. at 8. While the ALJ found that Complainant failed to
demonstrate responsibility toward the grant proposal, he reasoned
that her behavior merited a warning, but should not be cause for
immediate discharge. As to the discriminatory firing charge, the
ALJ found that Complainant failed to present a prima facie case
in that the motivation for the discharge was Complainant's
deceit. The ALJ ordered reinstatement of Complainant to the same
or comparable position and expunging of all references to the
termination in her personnel file. Id. at 9. Finding
that Complainant's deceit with regard to her employer should be
taken into account, the ALJ reduced the Grant Officer's back pay
award by one-half. Id. at 11.
DISCUSSION
A. Discriminatory Discharge
Complainant challenges the finding of no discrimination on
the ground that the Department of Labor's investigation was not
sufficient to allow a valid determination to be made on that
issue. [3] Complainant's Brief (Com. Br.) at 4-5. The
regulations provide that complaints alleging discrimination on
the basis of race or sex shall be investigated in accordance with
the procedures set forth at 29 C.F.R. Part 31. 20 C.F.R.
§ 676.86(b)(9). The applicable regulation, Section 31.7(a)
states that the Secretary will make a prompt investigation which
"should include, where appropriate, a review of the
pertinent practices and policies of the recipient, the
circumstances under
[PAGE 4]
which the possible noncompliance with this part occurred, and
other factors relevant to a determination as to whether the
recipient has failed to comply with this part." (Emphasis
added).
The final determination by the Office of Civil Rights states
that "pertinent documents were reviewed and the parties to the
complaint were interviewed." A.F. No. 2, Tab 61. Assuming,
without deciding, that a complainant might have a remedy if there
were an insufficient investigation, I conclude that this
investigation satisfies the requirements of Section 31.7(c).
Moreover, once a case proceeds to a hearing before an ALJ, the
party requesting the hearing bears the burden of proof in
establishing entitlement to relief. 20 C.F.R. § 676.90(b).
The regulations provide that, if necessary, discovery is
available to assist a party in establishing essential facts. I
therefore conclude that Complainant was not prejudiced as a
result of any insufficiencies which may have existed in the
Department's investigation.
To make a prima facie showing of a discriminatory discharge,
it is necessary to show by a preponderance of the evidence (1)
membership in a protected class, (2) discharge, and (3) others
were retained who engaged in activities comparably serious to the
activity for which the complainant was discharged. Donahue v.
Piedmont Aviation, Inc., 723 F.2d 921, 922 (D.C. Cir. 1983).
SeeMcDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273, 281-83 (1976) (violation of Title VII where two
white employees discharged for misappropriating cargo while black
employee was not). Complainant in this case has failed to
present any evidence that other employees of Kane County who were
a different race, sex, or not pregnant were retained in their
employment after engaging in conduct which was insubordinate,
deceitful or otherwise comparably serious to the conduct for
which she was discharged. SeeDonahue, 723 F.2d at
922. I, therefore affirm the ALJ's finding that Complainant has
failed to establish a prima facie case of discriminatory
discharge. Even if she had, Complainant did not sustain her
burden to show that the asserted reasons for the discharge were
pretexts for discrimination. Id.
B. Wrongful Termination
The applicable CETA regulation required grantees to
establish a method of personnel administration in conformity with
the Standards for a Merit System of Personnel Administration,
which incorporate the Intergovernmental Personnel Act Merit
Principles prescribed in 5 C.F.R., Part 900, Subpart F. 20
C.F.R. § 676.43 (1979). The grantee's procedures for
personnel administration were stated in the Kane County Employee
Handbook. [4] A.F. Tab K.
As noted previously, the grantee terminated Complainant's
[PAGE 5]
employment for refusal to obey reasonable instruction or other
acts of insubordination and deceptive acts being committed.
While the grantee does not contest the ALJ's finding that
termination for refusal to obey reasonable instruction was
improper, see Grantee's Brief (Gr. Br.) at 1-2, it alleges
that the ALJ ignored deceptive acts as a basis for termination.
Id. The grantee contends that deceptive acts are
encompassed within paragraph (g) of the reasons for discharge,
"[o]ther causes judged to be valid by the Supervisor/Department
Head." Id. at 2.
Although paragraph (g) articulates a broad standard for
termination, regulations which define standards for employee job
security need not be drawn with the same precision as the
criminal code. The question is whether an ordinary person using
ordinary common sense would be fairly on notice from the
regulation that the conduct with which he is charged could cost
him his job. D'Acquisto v. Washington, 640 F. Supp. 594,
620 (N.D. Ill. 1986) (regulation authorizing suspension of police
officer "for the good of the Department" not unconstitutionally
vague). SeeArnett v. Kennedy, 416 U.S. 134, 159
(1974) (provision which allows discharge of federal employee "for
such cause as will promote the efficiency of the service"
[currently codified at 5 U.S.C. § 7513(a) (1988)] neither
overbroad nor vague). The issue of whether an employee should be
discharged on this basis invokes the discretion of the agency
involved and if such action is taken against an employee in good
faith it will be affirmed. Masino v. United States, 589
F.2d 1048, 1054 (Ct. Cl. 1978).
While, as the grantee alleges, the ALJ did not consider
deceptive acts as supportive of Complainant's discharge, he
concluded that Complainant had been deceitful with regard to her
employer, D. and O. at 11, and gave several reasons to support
that conclusion. The ALJ stated that had Complainant remained
home and fully informed her supervisor of her plans, Ms. Miller
would have had an opportunity to timely complete Complainant's
portion of the grant proposal by the due date. He also stated it
was an unreasonable assumption that an employee of Complainant's
qualifications should have neglected to confirm an expected due
date of a project involving agency funding prior to taking an
extended leave from work. The ALJ concluded that "[t]he impetus
for the firing was that Ms. Gordon had placed herself in a
situation where sheavoidedtellinghersupervisorthetruth" and Ms.
Miller, therefore, was forced to complete the project. D. and O.
at 8-9 (emphasis added).
Although Complainant testified that she thought the grant
proposal was due July 2, she had to have known that the due date
was a concern to her supervisor because when Complainant first
requested leave for June 18-23, the week she ultimately took off
[PAGE 6]
for health reasons, it was approved contingent on the date for
the grant submittal. Under these circumstances, she should have
either confirmed the due date, as the ALJ suggested, or made sure
she was available in case her supervisor had questions. By
telling her supervisor that her doctor recommended discontinuing
normal activity and maintaining bed rest most of the time,
Complainant left the clear impression that she would be at home.
In remaining silent as to her proposed whereabouts for the week
of June 18-23, Complainant was deceptive in that, as the ALJ
concluded, she avoided telling her supervisor the truth. [5]
From the foregoing, I conclude that the employee handbook
provisions on discharge were sufficient to put Complainant on
notice that her deceptive conduct could cost her her job,
D'Acquisto, 640 F. Supp. at 620, and that the grantee
acted in good faith in terminating her employment.
Masino, 589 F.2d at 1054. The ALJ's finding that the
grantee improperly discharged Complainant is therefore reversed.
[6]
CONCLUSIONS AND ORDER
For the foregoing reasons, I conclude that Complainant has
failed to establish that her discharge was motivated by race, sex
or pregnancy discrimination or that it was improper under the
provisions of the grantee's employee handbook. Accordingly, her
complaint is dismissed.
SO ORDERED.
___________________________
Secretary of Labor
Washington, D.C.
OAA:TMORRISS:kg:05/16/95
Room S-4309:FPB:523-9728
[ENDNOTES]
[1] CETA was repealed effective October 12, 1982. The
replacement statute, the Job Training Partnership Act, 29 U.S.C.
§§ 1501-1791 (1988), provides that pending proceedings
under CETA are not affected. 29 U.S.C. § 1591(e).
[2] The Secretary's review of the case was stayed pending
judicial review of another issue in the case, the applicability
of the "120-day" provision in section 106(b) of the Act, 29
U.S.C.
§ 816(b). This issue was raised by the County in its post-
hearing brief before the ALJ alleging that the Grant Officer
lacked jurisdiction to enter a final determination in the
discrimination complaint, No. 81-CETA-224. The Supreme Court's
decision in Brock v. Pierce County, 476 U.S. 253 (1986)
resolved this issue, holding that the Secretary does not lose
jurisdiction by virtue of the Grant Officer's failing to issue a
final determination within 120 days of the date the complaint is
filed. Accordingly, the stay is lifted.
[3] Complainant did not file exceptions to the ALJ's decision
within 30 days. See 20 C.F.R. § 676.91(f). Inasmuch
as Complainant's argument on this issue supports the judgment
that she was wrongfully terminated from her employment, however,
she need not have filed exceptions to argue the merits on appeal.
U.S. Department of Labor v. City of Tacoma, Washington,
Case
No. 83-CTA-288, Sec. Ord., Oct. 24, 1990, slip op. at 3-4.
[4] The handbook listed the following reasons as justification
for immediate, on the spot, discharges:
a) Refusal to obey reasonable instruction
in regard to those duties within the
framework of the employee's job or other
acts of insubordination.
b) Stealing or improper removal of items belonging to
fellow employees or to the County.
c) Intoxication or drinking on the job.
d) Possession or being under the influence of drugs.
e) Disorderly conduct or illegal activity.
f) Deliberately falsifying time cards, records,
reports or employment application.
g) Other causes judged to be valid by the
Supervisor/Department Head.
[5] For purposes of this appeal, I need not decide whether
Complainant, who had medical justification for being absent from
work the week of June 18, was entitled to spend that week in
California instead of at home in Illinois.
[6] In view of the outcome of this case, I need not address the
due process and back pay issues raised by the grantee or the
attorneys fee issue raised by Complainant.
