City of Pine Bluff, Ark. v. U.S. Dept. of Labor, 80-1905

• Decision Date: 01 September 1981
• Docket Number: No. 80-1905,80-1905
• Citation: 658 F.2d 577
• Parties: CITY OF PINE BLUFF, ARKANSAS, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, F. Ray Marshall, Secretary, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 577

658 F.2d 577

CITY OF PINE BLUFF, ARKANSAS, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, F. Ray Marshall Secretary, Respondent.

No. 80-1905.

United States Court of Appeals Eighth Circuit.

Submitted June 18, 1981.

Decided Sept. 1, 1981.

Byron Freeland, argued, Mitchell, Williams, Gill & Selig, Little Rock, Ark., for petitioner.

Alfred G. Albert, Acting Sol. of Labor, Nathaniel Baccus, III, Associate Sol., Jonathan H. Waxman, Counsel for Litigation, E. Kathleen Shahan, Atty., U. S. Dept. of Labor, Washington, D. C., for respondent.

Before HENLEY and McMILLIAN, Circuit Judges, and COLLINSON, Senior District Judge. ^*

HENLEY, Circuit Judge.

The City of Pine Bluff, Arkansas petitions for review of a decision of the Secretary of Labor holding that petitioner violated 29 C.F.R. §§ 98.26 and 98.45, and ordering reinstatement and back pay for City employee Vivian Jones. Specifically, the Administrative Law Judge made findings of fact and conclusions of law as follows:

1. Vivian Jones was employed by the City of Pine Bluff, Arkansas, under Title VI of the CETA Program as a secretary from January 3, 1978 to February 12, 1979, when she was dismissed.

2. The subgrantee, City of Pine Bluff, is in violation of 29 C.F.R. § 98.26 for taking adverse actions against Vivian Jones as set forth in the Mayor's December 28, 1978 memorandum to the City Attorney and the City Attorney's January 4, 1979, letter to Rhonda Creacy without first serving Mrs. Jones with a written notice setting forth the Grounds for each action.

3. The City of Pine Bluff is in violation of 29 C.F.R. § 98.45(b) in that the City Attorney's actions with respect to Mrs. Jones during and subsequent to her exercising her grievance rights relative to the December 28, 1978, reprimand letter constitute coercion and intimidation of Mrs. Jones for the purpose of interfering with her securing those rights.

4. The City of Pine Bluff has made no clear job offer to Mrs. Jones subsequent to her removal on February 12, 1979.

5. Mrs. Jones' CETA Title VI employment eligibility under the position from which she was removed expired on October 1, 1979.

The City contends (1) that Ms. Jones as a participant in the CETA program failed to exhaust her administrative remedies prior to utilizing the procedures outlined in subpart C of 29 C.F.R. Part 98; (2) that the ALJ's finding that the City had violated the notice provisions of 29 C.F.R. § 98.26 is based on a misinterpretation of the regulation and is not supported by substantial evidence; (3) that the ALJ's finding number three that the City had intimidated and coerced Ms. Jones in violation of 29 C.F.R. § 98.45(b) is based upon a misinterpretation of the regulation and is not supported by substantial evidence; (4) that the City made a bona fide job offer to Ms. Jones on at least two occasions after her termination, both of which were rejected by Ms. Jones, and that her rejection of these offers precludes Ms. Jones from receiving an award of back pay; and (5) that reinstatement and back pay are improper remedies even if this court finds that the City violated the grievance procedures set forth in 29 C.F.R. Part 98. For reasons to be stated, we reverse.

Vivian Jones, a black female, was hired on January 3, 1978 as a CETA-funded secretary-receptionist in the Pine Bluff City Attorney's office. Her immediate supervisor was Robert Tolson, the City Attorney.

On or about December 27, 1978 Ms. Jones was involved in an incident with Becky Brown, the Mayor's secretary. Ms. Brown reported the incident to the Mayor. As a result, the Mayor wrote a memo to Mr. Tolson, reprimanding Ms. Jones. This memo did not reach Mr. Tolson until January 2, 1979, when he returned from vacation. A copy of the memo was placed in Ms. Jones' personnel file.

It would appear that Ms. Jones first read a copy of the memo on January 2, 1979 when Mr. Tolson asked her to give him a written report of the "Becky Brown" incident. On January 4, 1979 Mr. Tolson again requested a written report. Ms. Jones responded by handing him a typed letter, addressed to him, dated January 3, 1979. The letter was two sentences long. It denied the allegations in the Mayor's memo, requested that the memo be removed from her personnel file, and requested a hearing. Mr. Tolson again requested a report, and assured Ms. Jones that she would get her hearing notwithstanding his request. She again refused. He then gave her a direct order for the report, which order was also refused.

On the afternoon of the same day, Mr. Tolson drafted a letter to Rhonda Creacy, the director of the CETA program of the City, requesting that Ms. Jones be transferred out of his department for willful failure to follow instructions, and for insubordination in that she had refused to comply with his proper order. He handed the draft to Ms. Jones for typing, and she started to type it. Prior to finishing the letter, however, she removed it from the typewriter and returned it to Mr. Tolson, stating that she did not have to type it. The letter was subsequently typed by another secretary.

On January 10, 1979, as part of the City's informal grievance procedure, the Assistant City Attorney conducted an informal interview with Ms. Jones concerning the Becky Brown incident. On January 17, 1979 he wrote a letter to Ms. Creacy stating that he had been unable to interview Becky Brown and was therefore unable to substantiate the allegations contained in the Mayor's memo. He therefore rendered a decision that the memo should be removed from Ms. Jones' personnel file. The Mayor's memo was later removed from her file at the direction of the Mayor.

The difficulties arising out of the incident of January 4, 1979, however, continued. It appears that Mr. Tolson had been assured by Ms. Creacy that Ms. Jones would be transferred pursuant to his request. Several weeks subsequent to the January 4 incident, however, he was informed that Ms. Jones would not be transferred. He then terminated Ms. Jones on February 12, 1979 for the reasons expressed in his letter of January 4.

On February 14, 1979 a hearing regarding Ms. Jones' termination was conducted before the State of Arkansas Equal Employment Opportunity Officer, who found that the coercion provisions of 29 C.F.R. Part 98 had been violated. After further administrative proceedings, a hearing was conducted before the ALJ, and a decision was rendered. This petition followed.

At the outset, we note that 29 U.S.C. § 817(a) (1978) confers upon this court the jurisdiction to hear this petition. We also note that the applicable standard of review of the ALJ's decision is set forth in 29 U.S.C. § 817(b), which provides as follows:

(b) The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may, in whole or in part, set aside the findings of the Secretary or remand the case to the Secretary in whole or in part to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the previous action, and shall certify to the court the record of the further proceedings.

29 U.S.C. § 817(b) (1978). With this standard of review in mind, we address the City's contentions on appeal.

The City first contends that Ms. Jones failed to exhaust her administrative remedies prior to her utilization of the procedures established by the City pursuant to the C.F.R. regulations in question. We note, however, that the ALJ specifically found that the City had offered no evidence in support of this contention. Furthermore, although from the record on appeal it is not clear that Ms. Jones mentioned a second, specific grievance regarding Mr. Tolson's letter of January 4, 1979, the ALJ apparently found it necessary to consider and deal with the January 4 incident as it related to her grievance arising from the Mayor's December 28, 1978 memo. In the circumstances, we are unwilling to disturb the ALJ's finding in this area.

The City next contends that the Secretary's finding that the City failed to provide Ms. Jones with proper notice in violation of 29 C.F.R. § 98.26 was based on a misinterpretation of the regulation and is not supported by substantial evidence. We agree.

29 C.F.R. § 98.26(a) provides as follows:

(a) Each prime sponsor or eligible applicant shall establish a procedure for resolving any issue arising between it (including any subgrantee or subcontractor of the prime sponsor) and a participant under any Title of the Act. Such procedures shall include an opportunity for an informal hearing, and a prompt determination of any issue which has not been resolved. When the prime sponsor or eligible applicant takes an adverse action against a participant, such procedures shall also include a written notice setting forth the grounds for the adverse action and give the participant an opportunity to respond.

29 C.F.R. § 98.26(a). ¹ It is clear from a plain reading of this provision that it is the procedures to be established by the prime sponsor, and not the notice itself, that must afford the participant an opportunity to respond.

The respondent, however, contends that Ms. Jones should have been notified before any adverse action was taken, although it concedes that the above cited regulation does not expressly impose such a condition. In addition, respondent apparently also contends that such notice must be directed to the participant against whom the adverse action is contemplated. Again, however, an application of the provision set forth above and of sound public policy indicates that these contentions are without merit.

First, the provision in question states that notice shall be given "when" the adverse action is "taken." See Maloney v. Sheehan, 453 F.Supp. 1131 (D.Conn.1978). ² Although we assume, without deciding, that the Mayor's memo constituted an adverse action, it seems clear that the purpose of the notice provision is to give a participant notice...