The saga of Marcus Smith is almost over, we hope. In 2005, the Federal Aviation Administration proposed to suspend Marcus for 30 days based on four charges. The first two charges were based expressly on his giving documents and information to the EEO investigator and to us, his attorneys. The third charge was unauthorized removal and possession of a disciplinary memo to his supervisor. The fourth charge was garbage. We won before the Atlanta MSPB with AJ Pamela Jackson. She found that the Agency had disciplined Marcus for engaging in protected activity, found retaliation, and reversed the discipline. The FAA (Russell Christenson) filed a Petition for Review, which the Board (2-1) granted on the first three charges (the dismissal of the fourth charge was affirmed).

We filed a Petition with the EEOC Office of Federal Operations. The OFO did not decide the case on direct evidence, but concluded that Marcus had established a prima facie case and the Agency had articulated a legitimate non-retaliatory reason for its action. The OFO was primarily troubled by the fact that Marcus had found a counseling memo for his supervisor in his supervisor's desk drawer which he turned over to the investigator because he thought it was relevant to his case (he was not represented by counsel at the time and as a non-lawyer his belief in the relevance of this document was understandable). Marcus was authorized by his supervisor to look in the desk drawer for a different document, and the memo was on the top of the pile.

The OFO then remanded back to the MSPB for the taking of additional evidence on comparators. The parties filed additional briefs on this issue with the MSPB, which then forwarded this "new evidence" to OFO. Four and one-half years after the filing of the initial Petition (note that the regs establish that OFO has 60 days to issue a decision), OFO finally ruled in Marcus's favor. It isn't the cleanest decision. They don't come right out and say you can't discipline someone for giving documents to an investigator, but they found an adverse inference against the Agency for its behavior during the Petition process which they equated with pretext. Specifically, the Agency asserted that there was evidence of employees similarly charged and punished who had not engaged in protected activity; however, they refused to produce this evidence in direct contravention of the EEOC's order. I note that the comparator evidence actually produced by the FAA, after it maintained for years that there were no comparators and refused to produce such evidence, reflected that they only charge employees who have engaged in protected activity with this particular violation.

So, now the case goes back to the MSPB for its determination of whether it will uphold its initial decision or agree with the EEOC's decision. I am hopeful that the Board will do the right thing this time. None of the original Board members are now on the Board. Assuming they confirm the EEOC's decision, we will proceed to a damages hearing, and boy, can I tell you, there are a lot of damages, not to mention fees.

– submitted by Elaine L. Fitch

Newsletter Volume: 
Newsletter - March/April 2012
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