United States, Department of the Treasury, Internal Revenue Service, Austin Service Center (Agency) and National Treasury Employees Union, Chapter 72 (Union)

[ v58 p546 ]

58 FLRA No. 132

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
AUSTIN SERVICE CENTER
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 72
(Union)

0-AR-3486

_____

DECISION

May 16, 2003

_____

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 Don B. Hays 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 found that the Agency violated the Rehabilitation Act (the Act), 29 U.S.C. § 791, et seq, by, among other things, failing to reasonably accommodate the grievant's disability. To remedy the violation, the Arbitrator ordered the Agency to, among other things, restore the grievant's sick leave and reimburse her for any pay loss. We conclude, for the following reasons, that the award is deficient, and we set aside the award.

II.      Background and Arbitrator's Award

      The grievant, a tax examiner for the IRS, developed carpal tunnel syndrome, a condition which limited the grievant's ability to perform keyboarding duties. The grievant provided management with a letter from her doctor explaining her condition and requested reassignment to another unit. The grievant also requested that her keyboarding duties be reduced or eliminated until she could be reassigned. When the Agency did not respond to the grievant's request, a grievance was filed. Unresolved, the grievance was submitted to arbitration on these stipulated issues:

1. Whether the [A]gency violated the contract and/or the Rehabilitation Act in its response to the [grievant's] request for accommodation of her disability, bilateral carpal tunnel syndrome?
2.If so . . . what is the appropriate remedy?

Award at 1.

      The Arbitrator found that, after the grievance was filed, management met with the grievant and reduced her workload by 50 cases per week, pending a final decision on the reassignment request. According to the Arbitrator, the Agency also required the grievant to submit a medical questionnaire. The Arbitrator found that the medical information that the Agency received from the grievant's doctor appeared to preclude the grievant from working, and that the Agency, thereafter, placed the grievant on involuntary, advanced sick leave. The Arbitrator found that the grievant subsequently returned to her position, where her workload had been reduced by 50 cases, because her doctor released her to do so.

      At the hearing, the parties stipulated that the grievant was a qualified individual with a disability. [n1]  Therefore, noting that the standards of the Americans With Disabilities Act (the ADA), 42 U.S.C.. § 12101, et seq., were applicable, the Arbitrator found that the only issue in dispute was whether the Agency provided the grievant a reasonable accommodation as required by law.

      The Arbitrator found that the Agency did not violate the Act by failing to reassign the grievant as requested because there were no vacancies in the unit to which the grievant sought reassignment. See id. at 33. Nevertheless, the Arbitrator found that the Agency did violate the Act by not accommodating the grievant in accordance with her doctor's recommendation. According to the Arbitrator, the doctor recommended that the Agency "continue to explore for an accommodation [that] would more realistically address [the grievant's] recurring problem . . . ." Id. at 32.

      The Arbitrator concluded that the Agency did not act in good faith during the "interactive process" [n2]  because the Agency did not "immediately" respond to [ v58 p547 ] the grievant's request for accommodation. Id. According to the Arbitrator, the grievant "could easily have been timely accommodated through a more meaningful and ongoing interactive dialogue . . . ." Id. Consequently, the Arbitrator found that the Agency should not have placed the grievant on advanced sick leave without jointly exploring all other available options.

      Based on the foregoing, the Arbitrator concluded that the Agency violated the Act by not reasonably accommodating the grievant's disability and by failing to engage in the interactive process. To remedy the violation, the Arbitrator ordered the Agency to restore the grievant's sick leave and reimburse her for any pay loss, as well as engage in a meaning interactive dialogue with, and explore any alternative employment opportunities for, the grievant. Id. at 36.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the award is inconsistent with Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) (Toyota), which the Agency acknowledges was decided after issuance of the arbitration award in this case. According to the Agency, the grievant likely would not be able to establish an entitlement to a reasonable accommodation under Toyota. Therefore, the Agency requests that the Authority either find the award deficient or remand the award for a determination of whether the grievant is a qualified individual with a disability under Toyota.

      The Agency also argues that the award violates the Act. In this regard, the Agency asserts that the Arbitrator incorrectly concluded that the Agency did not reasonably accommodate the grievant. According to the Agency, the advanced sick leave and workload reduction accommodations were "effective," as they permitted the grievant to perform "the essential functions of [her] job," Exceptions at 26, which the Agency asserts is the proper standard for reasonable accommodation. Moreover, according to the Agency, "it is undisputed that [the grievant's] condition did improve while [she was] on leave, and she was thereafter allowed by her doctor to engage in keyboarding work . . . ." Id. at 25 (emphasis omitted). The Agency further asserts that it acted in good faith during the interactive process.

      The Agency asserts that various of the Arbitrator's factual findings are incorrect, including his finding that the Agency reduced the grievant's workload by 50 cases. According to the Agency, the grievant's workload was reduced by 50%, in compliance with her doctor's recommendation. Therefore, the Agency asserts that the award is based on nonfacts. Finally, the Agency asserts that the Arbitrator exceeded his authority in fashioning a remedy because he improperly restored the grievant's sick leave and awarded her backpay.

B.      Union's Opposition

      The Union asserts that the Agency is foreclosed from challenging the grievant's status as a qualified individual with a disability because the parties stipulated to that fact in arbitration. Moreover, the Union asserts that the Arbitrator did not err in finding that the Agency failed to reasonably accommodate the grievant. In this regard, the Union asserts that the reduced workload accommodation provided by the Agency did not comply with the grievant's doctor's recommendation and that the grievant told the Agency that the accommodation was ineffective. See Opposition at 8 n.3 and accompanying text.

      The Union asserts that the award is not based on any nonfacts because all of the facts concerning the Agency's efforts in accommodating the grievant, including the amount by which the grievant's workload was reduced, were fully litigated before the Arbitrator. Finally, the Union argues that the remedies awarded are proper given the Arbitrator's finding that the grievant should not have been placed on involuntary sick leave until the Agency fulfilled its obligation to engage in the interactive process.

IV.      The Award Is Contrary To the Act

      Where a party argues that an arbitrator's award is contrary to law, the Authority must review the questions of law raised by the award and the parties' exceptions 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.

      When interpreting and applying the Act, the Authority applies the standards of the ADA, which are to be given precedential effect. See 29 U.S.C.. §§ 791(g), 794(d); 42 U.S.C.. § 12111(9). To establish a prima facie case of discrimination under the Act, a grievant must show that he or she: (1) has a disability within the meaning of the Act [n3] ; (2) is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) was discriminated [ v58 p548 ] against because of his or her disability. See, e.g, Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). An agency commits unlawful discrimination by failing to reasonably accommodate a qualified individual with a disability unless the agency demonstrates that such accommodation would impose an undue hardship on the agency. See id. (citing 42 U.S.C.. § 12112(b)(5)(A)).

      As relevant here, a reasonable accommodation is a modification or adjustment to the work environment that "enable[s] a qualified individual with a disability to perform the essential functions of [the] position[,]" including "[j]ob restructuring [or] reassignment to a vacant position . . . ." 29 C.F.R. § 1630.2(o). The question whether a proposed accommodation is reasonable is "fact-specific" and must be evaluated on a "case-by-case basis." Wernick v. Fed'l Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996).

      We conclude, based on the Arbitrator's factual findings and the record as a whole, that the Agency in this case provided the grievant a reasonable accommodation and, as a result, that the Arbitrator's award to the contrary is deficient. In reaching this conclusion, we rely on the Arbitrator's factual finding that the grievant's doctor released the grievant "to return to service under the `adjusted' workload initiated by the Agency." Award at 31. We also rely on the fact that the grievant did return to work, and was able to perform her work, under the adjusted workload. See id. at 30. Finally, examining the award as a whole leads us to conclude that the Arbitrator's award that the Agency did not reasonably accommodate the grievant was not, in fact, based on a finding that the adjusted workload was unreasonable. Instead, the Arbitrator concluded that the Agency's accommodation was not reasonable based on his finding that the Agency was obligated to continue to search for a more reasonable accommodation. See id. at 32. In this respect, the Arbitrator erred. It is well-established, in this regard, that an accommodation "does not have to be the `best' accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated." See 29 C.F.R. pt. 1630 app. § 1630.9, p. 362.

      The Union claims that the grievant told the Agency that the accommodation was ineffective. However, the Union has provided no evidence to support this claim. More importantly, the Union has not established how a claim that an accommodation is ineffective, standing alone, supports a conclusion that the accommodation is, in fact or law, actually unreasonable. Further, the Union's reliance on the fact that the Arbitrator found that the grievant's workload was reduced by 50 cases, which the Union argues did not comply with the doctor's recommendation that the workload be reduced by 50%, is misplaced. Even if the Agency did not provide the accommodation suggested by the doctor, this would not establish that the grievant was unable to perform the essential functions of her job with the accommodation, or that the accommodation was otherwise unreasonable.

      In these circumstances -- where an accommodation was provided, the grievant was able to perform her duties with that accommodation, and the Arbitrator provided no legally recognizable basis for concluding that the accommodation was not proper -- we conclude that the award finding that the Agency violated the Act by not reasonably accommodating the grievant is deficient. [n4] 

      In reaching this conclusion, we note that the Arbitrator's finding that the Agency did not act in good faith during the interactive process also does not support a conclusion that the Agency violated the Act. In this regard, an agency's failure to engage in the interactive process in good faith is not a separate violation of the Act when, as here, the agency provides a reasonable accommodation. See, e.g., Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999); Beck v. Univ. of Wis. Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

V.      Decision

      The award is set aside.



Footnote # 1 for 58 FLRA No. 132 - Authority's Decision

   As relevant here, a qualified individual with a disability is "an individual with a disability who . . . with or without reasonable accommodation, can perform the essential functions of [the] position." 29 C.F.R. § 1630.2(m) (2002).


Footnote # 2 for 58 FLRA No. 132 - Authority's Decision

   "The interactive process" is a joint effort between the agency and the employee to determine a reasona