United States Department of the Treasury, Internal Revenue Service, New Carrollton, Maryland (Agency) and National Treasury Employees Union, Chapter 65 (Union)

[ v57 p942 ]

57 FLRA No. 201

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NEW CARROLLTON, MARYLAND
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 65
(Union)

0-AR-3434

_____

DECISION

July 29, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Suzanne R. Butler filed by the Agency under §7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator upheld a grievance that alleged that the Agency failed to provide the grievant with an effective reasonable accommodation under the Rehabilitation Act, 29 U.S.C. § 791 (Act); the Agency retaliated against the grievant for filing a prior grievance against her supervisor; and the Agency violated an agreement between the parties by denying the grievant an opportunity to work at home. For the reasons that follow, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for further consideration, as set forth below.

II.     Background and Arbitrator's Award

      In or around May of 1997, the grievant began experiencing a series of health problems, including Irritable Bowel Syndrome (IBS). In late 1997, the grievant's supervisor issued her a memorandum, which was placed into the employee's personnel file, concerning her frequent use of unscheduled leave. The grievant then filed a grievance over the placement of that [ v57 p943 ] memorandum into her file. That grievance ultimately went unresolved.

      Subsequently, the grievant submitted a request to work at home under the Hours Flexible Program (HFP), which permits an employee, with the approval of the Agency, to work up to eighty hours a month at home. [n1]  The supervisor approved that request. Following a dispute between the grievant and her supervisor over the operation of the grievant's HFP, the supervisor advised the grievant to seek permission to work at home pursuant to a request for reasonable accommodation.

      In December 1998, the grievant submitted such an application, requesting that she be permitted to work at home on days when she was having attacks of her illness that made coming to work difficult.

      On April 2, 1999, the grievant received a letter from her supervisor, dated March 1, 1999, informing her that her request for accommodation was denied because the Agency did not have work that the grievant could perform at home at her grade level. The letter also noted that if the grievant's symptoms were too severe to allow her to come to work, then she would not be able to perform a full day's work at home on those days.

      On June 29, 1999, the grievant filed a grievance over the Agency's denial of her request for accommodation. After the parties could not resolve the matter, they submitted it to arbitration.

      As a preliminary matter, the Arbitrator found that the grievance was timely filed. Article 41, Section 5 of NORD V requires that grievances be filed within forty-five days of the alleged discriminatory action. The Agency argued that the grievance was untimely as it was not filed within forty-five days of the grievant's receipt of the letter denying her request for reasonable accommodation. The Arbitrator rejected this argument, ruling that the grievant did not have reason to know that her request for reasonable accommodation had been denied until May 17, 1999, when the grievant received an electronic mail message from the supervisor, informing her that she could remove her files from the office on her own time. Accordingly, she ruled that the grievance was timely filed as it was filed within forty-five days of the grievant's knowledge of the discriminatory action.

      The Arbitrator then turned to the merits of the grievance. She first considered the Union's allegation that the Agency violated the Act by failing to provide the grievant with a reasonable accommodation. In this regard, the Arbitrator first determined that the grievant was an individual with handicaps under 29 C.F.R. § 1614.203(a)(1)(iii), as she had a physical impairment which her employer regarded as substantially limiting her ability to work whether in the office or at home when her condition flared up. [n2] 

      The Arbitrator then held that the grievant was a qualified handicapped individual, as she could perform the essential functions of the position with a reasonable accommodation, i.e., being able to work at her residence. [n3] 

      The Arbitrator next determined that the Agency had rejected the grievant's request for a reasonable accommodation when it rejected her December 1998 application to work at home under the HFP. She further found that the reasonable accommodation requested would not put an undue hardship on the operations of the Agency. Accordingly, she ruled that the Agency had violated the Act by not granting the grievant's HFP request.

      The Arbitrator then turned to the grievant's allegation that the Agency retaliated against her for filing the October 1997 grievance by denying her HFP request. In considering this allegation, the Arbitrator stated that the grievant's "initial burden is to show that she engaged in protected activity that was known to the Agency, that she suffered an adverse employment action, and that there was a causal connection between them." Award at 29. She found that the grievant had engaged in protected [ v57 p944 ] activity that was known to the Agency by filing the October 1997 grievance and that the supervisor denied her request for HFP because of that grievance. In so finding, the Arbitrator determined that the supervisor's testimony that she did not retaliate against the grievant was not credible. Accordingly, she ruled that the Agency had retaliated against the grievant by failing to approve her request for HFP and taking other actions in connection with the grievant's request to work at home under the HFP.

      Finally, the Arbitrator ruled that the Agency had violated the parties' Flexiplace Agreement by refusing the grievant the opportunity to work at home. In this connection, she determined that the grievant was eligible for both the HFP and the TFP as a reasonable accommodation. She then found that the grievant's request for reasonable accommodation constituted a request to work at home under the HFP and that there was no legitimate basis for denying that request.

      To remedy these contractual and statutory violations, the Arbitrator ordered the Agency to allow the grievant to work at home at least eighty hours a month in the event her impairment should require it. The Arbitrator also ordered that the Agency restore her leave used with backpay and interest. She further ordered that the Agency reimburse the grievant for $5,851.19 in medical bills, which she found that the grievant would not have incurred but for the Agency's actions towards her which exacerbated her condition. Finally, the Arbitrator awarded the grievant $12,000 in what she labeled as "non-pecuniary" damages. Award at 35-6.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency first asserts that the award is contrary to the Act. [n4]  In this regard, the Agency contends that there is no evidence to suggest that the employee was an individual with handicaps as there is no evidence that the Agency regarded the grievant's condition as substantially limiting her ability to work. Furthermore, the Agency argues that being "regarded as having such an impairment" is to be used in disparate treatment cases, not in cases involving reasonable accommodation.

      With regard to the Act, the Agency also claims that the Arbitrator: improperly considered working as a major life activity; failed to determine that the grievant's impairment substantially limited her ability to work; failed to give proper consideration to the Agency's views as to the essential functions of the grievant's position; and improperly found that working at home constituted a reasonable accommodation.

      The Agency next argues that the Arbitrator erred in analyzing the grievant's claim of retaliation. The Agency asserts that, under title VII, a finding of retaliation can only be made if the original grievance contains an allegation of discrimination under title VII. In this case, according to the Agency, the October 1997 grievance contained no such allegations. The Agency, therefore, contends that the grievance was not within the EEO complaint purview.

      The Agency also claims that the Arbitrator's finding that the Agency was capable of providing the grievant with the equipment and technology necessary to perform her duties at her residence is a nonfact. The Agency maintains that several witnesses testified that technology is not available which would permit the grievant to work at home.

      With regard to the timeliness of the grievance, the Agency "respectfully requests that it be included as presented in the Agency's Brief (attached) and considered by the Board." Exceptions at 7 n.2.

      Finally, the Agency maintains that the award fails to draw its essence from the agreement. Specifically, the Agency argues that the Arbitrator erred in finding that the grievant was eligible for the TFP, as employees classified as Program Analysts are not eligible for that program under Article 50 of NORD V.

B.     Union's Opposition

      The Union first argues that the Arbitrator's conclusion that the Agency regarded the employee as having an impairment which substantially limited one or more of her major life activities was supported by the evidence. The Union asserts that the Agency merely disagrees with the Arbitrator's findings of fact and that such disagreement does not provide a basis for finding the award contrary to law. The Union also disputes the Agency's other Rehabilitation Act arguments.

      The Union then addresses the Agency's argument that the Arbitrator improperly applied the framework for analyzing claims of retaliation under title VII to the instant case. The Union argues that the cases cited by the Agency to support its position apply only to proceedings [ v57 p945 ] before the EEOC and that the restrictions articulated therein do not apply to the Arbitrator. Instead, the Union asserts that the Arbitrator was empowered to hear all grievances and that that power permitted her to make a finding of discrimination on the basis of protected activity. Moreover, the Union claims that the standard applied by the Arbitrator applies in arbitration cases not involving title VII matters.

      The Union next contends that the award is not based on a nonfact. In this regard, the Union maintains that the parties disputed whether or not the grievant could perform the essential functions of her position in front of the Arbitrator. Therefore, according to the Union, the award cannot be found deficient on the ground that that determination is based on a nonfact.

      Finally, the Union asserts that the award does not fail to draw its essence from the agreement. The Union argues that the Agency is merely disagreeing with the Arbitrator's construction of the agreement and that that disagreement does not meet the standard for finding that the award fails to draw its essence from the agreement.

IV.     Analysis and Conclusions

A.     The Arbitrator did not err in finding that the grievance was timely filed

      The Agency asserts that the Arbitrator erred in finding that the grievance was timely filed. An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See, e.g., United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head, Md., 55 FLRA 596, 598 (1999). An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Here, the Agency has not asserted any such grounds. Therefore, we deny this exception.

B.     The award is contrary to the Act

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      To be eligible for a reasonable accommodation, an employee must be a qualified individual with handicaps. [n5]  The Agency argues that it was under no duty to provide the grievant, an employee whom the Arbitrator found it regarded as handicapped, with a reasonable accommodation, as the "regarded as" prong of the definition of individual with handicaps is meant to be used only in intentional discrimination cases, and not in cases alleging a failure to accommodate such an individual. We agree. In this regard, the Equal Employment Opportunity Commission has found that the Act does not require employers to accommodate employees who are merely "regarded as" disabled. See Huddy v. Runyon, 1997 WL 348684 (E.E.O.C.). Furthermore, the majority of courts that have examined the issue have found that employers have no duty to provide a reasonable accommodation to an employee it only "regards as" handicapped, as opposed to an individual who actually is handicapped. See Weber v. Strippit, Inc., 186 F.3d 907, 917-18 (8th Cir. 1999) (Weber); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (finding that employee was regarded as disabled obviated employer's need to reasonably accommodate plaintiff). But see Katz v. City Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996). [n6]  In Weber, the court stated:

The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers' misperceptions, a right to reasonable accommodations no more limited than those afforded actually disabled employees.

186 F.3d at 917. We are similarly persuaded that Congress did not intend that the Act would grant employees that were only "regarded as" handicapped the right to a reasonable accommodation solely because of their employer's misconceptions.

      Here, the Arbitrator found that the grievant was an individual with handicaps only because the Agency regarded her as handicapped. The Agency, then, was [ v57 p946 ] under no duty to provide her with a reasonable accommodation. Therefore, the Arbitrator's determination that the Agency improperly failed to reasonably accommodate the grievant is contrary to the Act. [n7] 

      The Arbitrator did not determine whether the employee was actually handicapped within the meaning of the Act, even though the parties presented evidence to her on that issue. If the Arbitrator had so found, the grievant might be eligible for the damages awarded by the Arbitrator. Therefore, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, to determine whether the grievant was actually handicapped within the meaning of the Act, and whether she was entitled to work at home as a reasonable accommodation. In making this determination, the Arbitrator should consider the Supreme Court's decisions in Toyota Motor v. Williams, 122 S. Ct. 681 (2002) (discussing standards for determining whether employees are substantially limited in performing major life activities) and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (holding that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment).

C.     The Arbitrator's award concerning the grievant's retaliation claim is not contrary to law

      The Agency argues that the Arbitrator improperly considered the grievant's retaliation claim because, according to the Agency, the underlying grievance contained no allegation of discrimination under title VII. However, even if true, that fact would not prevent an arbitrator from considering the grievant's allegation of retaliation on some basis other than title VII. The Statute permits arbitrators to rule upon any matter raised during the processing of a grievance, unless the matter is excluded by the applicable collective bargaining agreement. See 5 U.S.C. § 7121(a). Here, the Agency has not alleged that the parties' agreement contains such an exclusion for claims of retaliation. See NORD V, Joint Exhibit 1, at 87. Therefore, regardless of the basis of the October 1997 grievance, the Arbitrator was permitted to rule on the grievant's allegation that the Agency retaliated against her for filing that claim.

      Furthermore, to the extent that the Agency's exceptions can be construed as arguing that the Arbitrator inappropriately applied the framework for analyzing claims of retaliation under title VII to the grievant's retaliation claim, we note that the title VII framework applied by the Arbitrator, see McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984), is consistent with the framework used by the Authority to analyze complaints of retaliation under the Statute, see AFGE, Local 1345, Ft. Carson, Colo. (In Trusteeship) and AFGE, AFL-CIO, 53 FLRA 1789, 1794 (1998), and the standard used by the Merit Systems Protection Board. See Redschlag v. Dep't of the Army, 89 M.S.P.R. 589, 623-24 (2001).

D.     The award is not based on a nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator whom they have chosen. See AFGE, Local 1858, 56 FLRA 422, 424 (2000).

      The Agency argues that the Arbitrator erred in finding that existing technologies permitted the grievant to perform her assigned duties at home. The parties, however, disputed that matter at hearing. Therefore, it cannot now be challenged as a nonfact. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 502 (2000). Accordingly, we deny this exception.

E.     The award does not fail to draw its essence from the agreement

      For an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Defense, Defense [ v57 p947 ] Logistics Agency, Defense Distribution Center, New Cumberland, Pa., 55 FLRA 1303, 1307 (2000) (then-Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency argues that the Arbitrator improperly found that the grievant was eligible for TFP as the grievant's position is not one of the positions that is eligible for that program under NORD V. While the Arbitrator did find that the grievant was eligible for the TFP, this ruling does not provide the basis for her determination that the Agency violated NORD V. Rather, she ruled that the Agency had violated the agreement by failing to grant the grievant's request to work at home under the HFP. Therefore, her determination that the grievant was eligible to work at home under the TFP is irrelevant to the Arbitrator's resolution of the matter, and the Agency's exception does not provide a basis to find the award deficient.

F.     A new remedy assessment must be conducted

      As previously noted, the retaliation and violation of contract claims have not been set aside, while the discrimination finding has been set aside and remanded to the Arbitrator for a resolution of whether the grievant was actually handicapped within the meaning of the Act and whether the requirements for reasonable accommodation have been satisfied. Accordingly, upon remand to the Arbitrator absent settlement, the Arbitrator must also determine what relief, if any, the grievant would be entitled to based upon those claims sustained by the Arbitrator.

V.     Decision

      Consistent with the foregoing decision, we remand the case to the parties for resubmission to the Arbitrator, absent settlement. On remand, the Arbitrator is to determine whether the grievant was actually handicapped, within the meaning of the Act, and, if so, whether the requirements for reasonable accommodation have been satisfied. Additionally, the Arbitrator must determine what relief, if any, the grievant would be entitled to based upon those claims sustained by the Arbitrator.

      With the exception of the arguments we have found unnecessary to address, the Agency's remaining exceptions are denied.



Footnote # 1 for 57 FLRA No. 201

   HFP is established in the parties' collective bargaining agreement (NORD V) and a Flexiplace Agreement between the parties. Article 50 of NORD V, in pertinent part, provides:

Section 1.B     Flexiplace options will include Traditional Flexiplace Program (TFP) and the Hours Flexiplace Program (HFP). Under TFP, the employee is basically changing his/her work area from the traditional office to a home office or other Flexiplace work sites. Under HFP, employees may work up to eighty (80) hours per month at a Flexiplace site.

Award at 3.


Footnote # 2 for 57 FLRA No. 201

   29 C.F.R. § 1614.203(a)(1) provides:

Individual with ha