The Office of Compliance’s (OoC) board of directors has overturned a hearing officer’s decision — a move that shows the board’s effort to expand staff rights is not over.
It is the second notable move by the board to redefine the retaliation clause of the Congressional Accountability Act (CAA) in a way that strengthens the position of employees against management.
The case, Robert Solomon v. the Office of the Architect of the Capitol, is the first to be overturned under a new precedent set by the OoC board last May.
Sherry M. Britton v. the Office of the Architect of the Capitol had already expanded the scope of the retaliation clause by allowing staff to bring complaints even if there had been no formal actions against them.
“I’m really thrilled about the board’s decision,” said Robert Solomon, a former employee of the United States Senate Restaurants from 1986 to 2003 who filed the complaints against the AoC.
While overturning a hearing officer’s decision is not unusual, the case shows that the OoC’s board is continuing to lay out a more flexible interpretation of the CAA’s retaliation clause.
The Britton decision for the first time established a standard for reviews of retaliation complaints. The board made plain that hearing officers must apply the Title 7 standard of the 1964 Civil Rights Act in cases involving an alleged breach of Section 207 of the CAA.
Section 207 states: “It shall be unlawful to intimidate, take reprisal against, or otherwise discriminate against any covered employee ... because the covered employee has initiated proceedings” against the employing office. In the past, a formal action such as firing or a demotion needed to have occurred before an employee could file any additional claims.
Title 7 stipulates that all personnel functions “must be free from discrimination based on race, color, religion, sex, or national origin.” Under Title 7, the employer and employee involved in the case must meet the evidentiary standards of an Equal Employment Opportunity Commission hearing.
In 2001, Solomon was placed on leave restrictions that required him to submit medical documentation due to the amount of time he had taken off for an illness. In response, Solomon filed a discrimination complaint under the CAA. While that complaint was pending, he was placed on another restriction. Several AoC management officials turned him down when he attempted to file a formal grievance through the AoC internal grievance process. Solomon appealed the denial to Architect of the Capitol Alan Hantman but received no response.
In January 2004, the AoC filed a motion to dismiss Solomon’s complaint, calling it “frivolous” and arguing he “failed to state a claim.” The hearing officer granted the motion in March 2004.
In his complaint to the OoC, Solomon alleged that the leave restriction imposed on him after he filed his first complaint and the lack of response from Hantman were retaliatory. His formal complaint also alleges that the retaliation resulted in a hostile working environment.
“Hantman never answered the grievance himself,” he said. “It shows that the agency was wrong in putting me on the sick-leave restrictions. It goes to show you the lengths AoC management officials will go to in order to deprive employees of their regulatory and statuary entitlements under the Human Resources Act and their own internal grievance procedures in direct opposition to the intent of Congress.”
A spokesperson for the AoC declined to comment.
Solomon’s case will now go through the OoC hearing process again. Citing the advice of his lawyer, Solomon refused to say what he was seeking from the AoC should the hearing officer rule in his favor.
In the Solomon decision posted on the OoC website, the board cited the Britton case and explained that dismissing Solomon’s case was not consistent with the law. But it also noted that the hearing officer did not have the Britton case at his disposal when he made his decision.
“The Board notes that since the hearing officer’s decision in Solomon, the Board has ruled in Britton v. Office of the Architect of the Capitol, which is directly applicable to the matter at hand,” the report said. “As such it is necessary for the Board to rely on its ruling in Britton and reverse the hearing officer’s decision.”
OoC Executive Director Bill Thompson also declined to comment.