Office of Personnel Management (Agency) and American Federation of Government Employees, Local 32 (Union)

[ v61 p358 ]

61 FLRA No. 66

OFFICE OF PERSONNEL MANAGEMENT
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 32
(Union)

0-AR-3921

_____

DECISION

October 27, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

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

      The grievant was reprimanded for failing to follow leave procedures and for being absent without leave (AWOL) and was placed on leave restriction. The Arbitrator found that the reprimand and leave restriction violated the parties' collective bargaining agreement and also found that the Agency discriminated against the grievant on the basis of disability. Based on these findings, the Arbitrator ordered that the reprimand and the leave restriction be expunged and that the grievant be made whole with backpay and interest, compensatory damages and attorney fees.

      For the reasons discussed below, we conclude that the Arbitrator's finding of disability discrimination is deficient and, as a result, the make-whole remedy of backpay and interest, compensatory damages and attorney fees must be set aside. As the Agency did not except to the Arbitrator's separate determination that the reprimand and leave restriction violated the parties' collective bargaining agreement, the Arbitrator's order that the reprimand and the leave restriction be expunged is unaffected by our determination that the Arbitrator's finding of disability discrimination is deficient.

II.      Background and Arbitrator's Award

      On March 25, 2003, the grievant was given a written reprimand "for [his] failure to follow proper leave request procedures and [his] excessive absence without leave charges that ha[d] occurred since February 1, 2002." Attachment to Agency's Exceptions. The grievant was also notified by memorandum that he had been placed on leave restriction for 6 months. The Union filed a grievance on behalf of the grievant. The grievance was not resolved and was submitted to arbitration.

      At arbitration, the Union claimed that the reprimand and the leave restriction memorandum violated the parties' collective bargaining agreement. In addition, the Union claimed that the Agency discriminated against the grievant on the basis of race and disability. The Agency asserted that the reprimand and the leave restriction memorandum complied with the agreement. In addition, the Agency argued that it had not discriminated against the grievant on the basis of race or disability.

      The Arbitrator ruled that the reprimand and leave restriction memorandum violated the agreement. The Arbitrator also ruled that the Agency discriminated against the grievant on the basis of a disability, in violation of the Americans with Disabilities Act (ADA), but not on the basis of race. "Based on all of the above," the Arbitrator sustained the grievance and ordered the reprimand and leave restriction memorandum expunged. Award at 18. In addition, the Arbitrator ordered that the grievant "be made whole with back pay plus interest, compensatory damages and attorney fees, as the Agency was violative of the [a]greement and the ADA." Id.

      In addressing whether the reprimand violated the agreement, the Arbitrator focused on Article 17, Section 4 of the parties' collective bargaining agreement, which pertinently provides: "Written reprimands are disciplinary actions and as such must be fair and equitable." The Arbitrator found that the evidence was "replete that many employees were habitually late, but did not receive a Reprimand or a Leave Restriction, as did the Grievant." Id. at 11. On this basis, she determined that the Union had established disparate treatment and ruled that the reprimand "was not fairly and equitably applied as required." Id. at 18. Accordingly, she ordered the reprimand expunged.

      In addressing whether the leave restriction memorandum violated the agreement, the Arbitrator focused on "the requisites of Article 15, Section 8, Leave [ v61 p359 ] Restriction, of the Agreement[.]" [n2]  Id. at 12. Reviewing the leave restriction memorandum issued to the grievant, she found "an omission to specifically state a specific date for the ending of this Leave Restriction and an omission to state and give a midpoint review, as required." Id. at 12-13. On this basis, she ruled that the leave restriction memorandum issued to the grievant and its subsequent extensions were not in accordance with Article 15, Section 8. Accordingly, she ordered that the leave restriction memorandum and "its numerous unlawful extensions" expunged, "as the Agency did not comply with the Agreement." Id. at 13.

      After resolving the Union's claims that the reprimand and leave restriction memorandum violated the agreement, the Arbitrator addressed the Union's claim of disability discrimination. In ruling that the Agency had discriminated against the grievant on the basis of a disability, the Arbitrator found that the grievant had suffered "an open-head trauma" and that the grievant's supervisor admitted to seeing the result of the trauma. Id. at 13. Although the Arbitrator recognized that the grievant's supervisor testified that he was unaware of the side effects of the injury, she found "it difficult to believe that [he] did not know the concurrent side effects, known to both, the Union Steward and the Employee Assistance Program (EAP) Counselor[.]" Id. In addition, she found that there was "a great deal of medical documentation, dated September 5, 2002, stating the presence of migraine headaches and the effects of . . . medications" and that "[e]vidence further reveal[ed] that this medication made the Grievant drowsy and caused an upset stomach, as well as diarrhea." Id. (citations omitted). The Arbitrator also found that the grievant "persuasively testified that he had long-term debilitating mental side effects from his excessive bleeding and hemorrhaging due to the head trauma necessitating a cat scan and cognitive testing . . . [and] ha[d] experienced memory loss and equilibrium difficulties." Id. (citations omitted). The Arbitrator ruled that "[b]ased upon these physical and mental limitations, . . . the Grievant is an individual with a disability that substantially limits one (1) or more of his major life activities, which include his ability to take care of himself, and his performance of manual tasks, as well as learning and working." Id. at 14.

      She noted that the grievant had requested the following adjustment to his schedule: "[I]f I did come in . . . up to a half hour late some mornings, could I . . . stay a little later in the afternoons to kind of make up for this time?" Id. (quoting the grievant's arbitration hearing testimony). She also noted that the grievant requested that he be allowed to perform some of his duties the day before rather than in the early morning hours. She ruled that by not providing these adjustments, the Agency had failed to reasonably accommodate the grievant. She concluded that the grievant had established a prima facie case of disability discrimination and that the Agency had not articulated a legitimate, nondiscriminatory reason for its actions.

III.      Positions of the Parties

A.      Agency's Exception

      The Agency contends that the award is deficient because the Arbitrator's conclusion that the grievant was an individual with a disability is contrary to law. [n3]  The Agency notes that to support her finding of disability, the Arbitrator was required to find that the grievant had an impairment and that the impairment substantially limited a major life activity. The Agency argues that the Arbitrator failed to make the requisite findings as to how the grievant was limited in any major life activity and that there is nothing in the record that shows that the grievant was substantially limited in working, learning, manual tasks, or caring for himself.

      In addition, the Agency argues that the Arbitrator erred as a matter of law in finding disparate treatment on the basis of a disability. The Agency maintains that the grievant was required to show that the Agency treated him less favorably than similarly situated employees who were not disabled. The Agency claims that the Arbitrator failed to base the finding of disparate treatment on a comparison with employees who were not disabled.

      The Agency does not dispute the Arbitrator's finding that the reprimand was not fair and equitable, as [ v61 p360 ] required by Article 17, Section 4 of the parties' collective bargaining agreement. The Agency also does not dispute the Arbitrator's finding that the leave restriction memorandum failed to comply with Article 15, Section 8 of the agreement.

B.      Union's Opposition

      As threshold matters, the Union contends that the Agency's exception is untimely and interlocutory. Alternatively, the Union contends that the Agency fails to establish that the award is deficient.

      In claiming that the Agency's exception is untimely, the Union concedes that the exception was timely filed with the Authority, but contends that the Agency served a copy of its exception on the Union after the expiration of the filing period. In the Union's view, a determination that the exception is timely would encourage delayed service of exceptions to disadvantage the opposing party.

      The Union contends that the exception is interlocutory because "[t]he Arbitrator did not make a complete and final decision, instead leaving some matters for a later proceeding, hearing or submission." Opposition at 3. The Union maintains that no specific amounts of backpay, compensatory damages, or attorney fees were specified. In fact, the Union maintains that it "has not been allowed" to present any evidence of the amount of backpay or compensatory damages and that it has not yet filed a petition for attorney fees. Id. at 6. Accordingly, the Union asserts that these monetary remedies have not yet been finally determined and that consequently, the award is not final and complete. The Union claims that the exception should be dismissed because the Agency does not assert a jurisdictional defect that warrants immediate review.

      On the merits, the Union contends that the exception should be denied. The Union asserts that the record fully supports the Arbitrator's findings of disability and a substantial limitation in a major life activity. The Union also asserts that the Agency misconstrues the award in disputing the finding of disparate treatment.

      In asserting that the finding of disability is supported, the Union claims that "the record is replete with substantial evidence of the Grievant's disability." Opposition at 14. The Union argues that the grievant's testimony corroborated by documentation fully supports the Arbitrator's finding of a disability.

      The Union also claims that the Arbitrator's finding that the grievant is substantially limited in a major life activity is fully supported. The Union notes that the Arbitrator specifically found that the grievant suffered from an open-head trauma, bleeding and hemorrhaging, migraine headaches, drowsiness and fatigue, memory loss, equilibrium difficulties, debilitating permanent mental effects, and the side effects of medication (drowsiness, upset stomach, and diarrhea). The Union further notes that the Arbitrator acknowledged that the grievant had undergone CAT scans and cognitive testing. The Union maintains that the result of all of this is that the grievant must write everything down because he is unable to remember anything and that he is very drowsy in the morning because he often cannot sleep at night.

      In addition, the Union argues an agency is not justified in refusing a reasonable accommodation on the basis of insufficient evidence when an employee has provided a statement from the treating doctor. The Union also notes that guidance from the Equal Employment Opportunity Commission (EEOC) on reasonable accommodation makes it clear that in some instances when the disability and its limitations on the job are obvious, no medical documentation is required. The Union maintains that in this case, the Agency failed to preserve any medical documentation provided to it by the grievant and failed to ask for additional information. Accordingly, the Union claims that the Agency cannot now dispute the adequacy of the medical documentation of the grievant's disability, particularly when the disability and its side effects were so obvious.

      Finally, the Union asserts that the Agency has misconstrued the Arbitrator's finding of disparate treatment. The Union maintains that the Agency views the finding as part of the Arbitrator's determination that the Agency discriminated against the grievant on the basis of his disability. In the Union's view, the Arbitrator's finding of disparate treatment was, instead, in support of her ruling under the parties' collective bargaining agreement that the reprimand was not fair and equitable, as required by Article 17, Section 4.

IV.      Analysis and Conclusions

A.      The Agency's exception was timely filed.

      The Agency's exception was timely filed. The time limit for filing exceptions to an arbitration award is thirty days beginning on the date the award is served on the filing party. See 5 C.F.R. § 2425.1(b). As relevant here, the date of service is the date the arbitration award is deposited in the United States mail. See 5 C.F.R. § 2429.27(d). If the award is served by mail, five days are added to the period for filing exceptions. See 5 C.F.R. § 2429.22. As there is no dispute in this case [ v61 p361 ] that the exception was filed with the Authority within the 30-day filing period, we find that the exception was timely filed. The date of the Agency's service of the exception on the Union provides no basis for finding that the exception was untimely filed with the Authority. Further, we note that the date of service of the exception on the Union caused no prejudice to the Union because the Union requested and was granted a 2-week extension to file its opposition to the Agency's exception.

B.      The Agency's exception is not interlocutory.

      Section 2429.11 of the Authority's Regulations pertinently provides that "the Authority . . . ordinarily will not consider interlocutory appeals." In terms of arbitration cases, the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., Washington, D.C., 60 FLRA 333, 334 (2004). An arbitration award that postpones the determination of an issue submitted to arbitration or a remedy does not constitute a final award subject to review. See id. We find that the Agency's exception is not interlocutory.

      The award in this case resolved all of the issues submitted to arbitration and ordered the grievant made whole for the violations of the collective bargaining agreement and disability discrimination law. The fact that the Arbitrator did not specify the amount of backpay, damages, and attorney fees does not render the exception interlocutory. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 158 (1999) (exception to an award of backpay in which the arbitrator retained jurisdiction to assist the parties in determining the amount of backpay and interest was not interlocutory).

C.      The Arbitrator's finding of disability discrimination is deficient.

      The Agency contends that the Arbitrator's conclusion that the grievant was an individual with a disability is contrary to law. We review questions of law raised in an exception de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether an arbitrator's legal conclusion is consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

1.      Applicable standards of law

      In resolving exceptions pertaining to disability discrimination, we apply the Rehabilitation Act of 1973. As noted earlier, the Rehabilitation Act addresses disability discrimination in federal employment. The ADA does not apply because the United States is not an "employer[,]" within the meaning of the ADA . See 42 U.S.C. § 12111(5)(B)(i). However, in resolving whether an award is contrary to the Rehabilitation Act, we apply the standards of the ADA because Congress has specifically adopted the standards of the ADA for determining whether there has been disability discrimination in violation of the Rehabilitation Act. See 29 U.S.C. § 791(g); see also United States Dep't of Justice, Immigration and Naturalization Serv., 57 FLRA 254, 255 ((2001) (INS). [n4] 

      The Rehabilitation Act defines an "individual with a disability" as, in pertinent part, "any person who--(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities[.]" 29 U.S.C. § 705(20)(B). Under the regulations implementing the Rehabilitation Act, the definitions under the ADA set forth in 29 C.F.R. § 1630.2 are applied to determine whether a claimant has an impairment and whether the impairment substantially limits a major life activity. See 29 C.F.R. § 1614.203. Accordingly, in assessing whether the Arbitrator correctly concluded that the grievant was an "individual with a disability[,]" we will apply the definitions of § 1630.2. See, e.g., United States Dep't of the Treasury, Internal Rev. Serv., Austin Serv. Ctr., 58 FLRA 546, 547-48 (2003).

      Under § 1630.2, "[p]hysical or mental impairment" means:

(1)      Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss . . .; or
(2)      Any mental or psychological disorder . . . .

[ v61 p362 ] 29 C.F.R. § 1630.2(h). "Major [l]ife [a]ctivities" means "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630(2)(i). "Substantially limits" means:

(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1). On the basis of this definition, courts have held that a claimant must introduce evidence showing the capabilities of an average person for comparison purposes. See, e.g., Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (10th Cir. 2001) (Lusk).

      In determining whether a claimant is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration . . . of the impairment; and (iii) [t]he permanent or long[-]term impact . . . of[,] or resulting from[,] the impairment." 29 C.F.R. § 1630.2 (j)(2). The regulations also provide that a claimant is substantially limited in the major life activity of "working" when the claimant is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. §1630.2(j)(3)(i). The regulations specify that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.

      The Supreme Court has discussed many of these definitions. The Court held that "substantially" in the phrase "substantially limits" means that the limitation must be "considerable" or "to a large degree." Toyota Motor Mfg., Ky, v. Williams, 534 U.S. 184, 196 (2002). The Court held that "[m]ajor" in the phrase "[m]ajor [l]ife [a]ctivities" means "important[,]" and "[m]ajor [l]ife [a]ctivities" are "activities that are of central importance to daily life." Id. at 197. After reviewing the legislative findings and purposes that motivated the ADA, the Court stated that "these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled[.]" Id.

      Thus, the Court held that for an impairment to have a substantial limitation on a major life activity, the impairment must "prevent[] or severely restrict[] the individual from doing activities that are of central importance to most people's daily lives." Id. at 198. The Court also held that "[i]t is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those `claiming the Act's protection . . . to prove disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.'" Id. (quoting Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)).

      Further, the Court has held that the determination of whether a claimant is an individual with a disability must take into consideration whether the person is substantially limited in a major life activity when using a mitigating measure, such as medication. See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). Consequently, claimants may be considered disabled when their substantial limitations are attributable to the negative effects of medication. See, e.g., Gasser v. Ramsey, 125 F. Supp. 2d 1 (D.D.C. 2000).

2.      Application of standards of law

      We have assessed the Arbitrator's award and the record under these standards. With recognition of the Supreme Court's admonition that the standards of the ADA need to be interpreted strictly to create a demanding standard for qualifying as disabled, we conclude that the finding of discrimination is deficient. The Arbitrator's summary conclusions fail to establish that the grievant is an individual with a disability, and the record does not support such a conclusion. Consequently, we find that the Arbitrator's conclusion that the grievant is an individual with a disability is contrary to the Rehabilitation Act.

      In support of her conclusion that the grievant was an individual with a disability, the Arbitrator relied on the grievant's testimony and "a great deal of medical documentation, dated September 5, 2002, stating the presence of migraine headaches and the effects of . . . medications[.]" Award at 13 (citations omitted). On the basis of "these physical and mental limitations, th[e] Arbitrator [found] that the [g]rievant is an individual with a disability that substantially limits one (1) or more of his major life activities, which include his ability to [ v61 p363 ] take care of himself, and his performance of manual tasks, as well as learning and working." Id. at 14.

      A review of the record shows that the only medical documentation dated September 5, 2002, is the grievant's request for 8 hours of sick leave for September 4, 2002, on which he remarked "Severe Head Pain/Migraine" with a note from a medical group, which stated only that the grievant was released to work on September 5, 2002, but was "Unable to work on 9/4/02/[.]" The grievant testified to "an injury to [his] head" and that his doctor explained to him that he "probably w[ould] have some long-term debilitating side effects" from the injury and "probably would experience points or periods of memory loss, or sometime . . . have problems with [his] equilibrium or balance[.]" Arbitration Hearing Transcript at 231-32. The grievant further testified that his memory had been affected and that he needed to keep a notepad to "keep pace with the daily activities as far as grocery shopping[] and things like that." Id. at 233. The grievant also testified to head pain that his doctor told him were like migraines.

      In response to questions about medications, the grievant answered that he took medications both before and after his head injury. When asked about side effects to "those medications[,]" he answered "diarrhea" and "fatigue[][.]" Id. at 236. The grievant was also asked the reasons for requesting an accommodation to his work schedule and he explained that he "was still under . . . doctor's care, and the medication and activity made [him] drowsy, fatigued." Id. at 311.

      Our review of the record demonstrates that the Arbitrator's summary conclusion of discrimination is unsupported. For example, the record does not establish that the grievant was substantially limited in the major life activities of "his ability to take care of himself, and his performance of manual tasks, as well as learning and working." Award at 14. In this regard, the Arbitrator did not specifically discuss the nature and severity of the impairment, its duration or expected duration, or its permanence or long-term impact. See 29 C.F.R. § 1630.2(j)(2). Moreover, the Arbitrator did not explain, and the record does not demonstrate, how the grievant's impairment or the effect of medication for the impairment prevents or severely restricts him from engaging in activities that are of central importance to most people's lives. See Toyota, 534 U.S. at 198.

      The record also does not support a conclusion that the grievant is unable to perform a major life activity that the average person in the general population can perform. There is no indication of any significant restrictions on the grievant as to the condition, manner, or duration under which he can perform the specified major life activities, as compared to the condition, manner, or duration under which the average person in the general population can perform these major life activities. Indeed, the Arbitrator does not discuss, and the record does not contain any evidence showing, the capabilities of an average person for purposes of comparison with the grievant. See Lusk, 238 F.3d at 1241. As the Court held in Toyota, it is insufficient for claimants attempting to prove disability status to merely rely on a medical diagnosis of an impairment. Instead, they must prove disability by offering evidence that the extent of the limitation caused by the impairment is substantial in terms of their own experience. See 534 U.S. at 198. There is no such proof in this case.

      In addition, with respect to the major life activity of working, the award fails to satisfy the requirements of 29 C.F.R. § 1630.2(j)(3). The Arbitrator did not explain, and the record does not demonstrate, how the grievant's impairment or the effect of medication for the impairment substantially limited the grievant in the major life activity of working. There is no discussion in the award or indication in the record of any significant restrictions on the grievant's ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.

      For all of these reasons, we conclude that the finding that the grievant is an individual with a disability is deficient.

D.      The Make-Whole Remedy of Backpay and Interest, Compensatory Damages and Attorney Fees Must Be Set Aside

      Because we have found that the Arbitrator's conclusion that the grievant is an individual with a disability is deficient, we strike the Arbitrator's ruling that the Agency discriminated against the grievant on the basis of a disability. Consequently, for the reasons stated below, we also strike the Arbitrator's make-whole remedy of compensatory damages, backpay, and attorney fees.

      We strike the award of compensatory damages because a Federal agency can be subject to compensatory damages only if there is a statute that unambiguously authorizes such damages. See, e.g., Soc. Sec. Admin. Branch Office, East Liverpool, Ohio, 54 FLRA 142, 149 (1998). Compensatory damages are authorized for violations of the Rehabilitation Act. See 29 U.S.C. § 794a. However, there is no basis for an [ v61 p364 ] award of compensatory damages once the finding of disability discrimination has been set aside.

      We strike the award of backpay because the Arbitrator expressly based it on the Agency's failure to reasonably accommodate the grievant's disability. Specifically, the Arbitrator explained her make-whole remedy as follows:

[H]ad the Agency accommodated the Grievant as he requested with a modified work schedule, it is unlikely that he would have incurred repeated AWOLs resulting in a Reprimand and a subsequent Leave Restriction. In sum, but for his medical crisis and its concurrent enumerated effects, the Grievant might have avoided these disciplinary violations.

Award at 18. In ordering backpay, the Arbitrator found no connection to the failure of the leave restriction memorandum to comply with the requirements of the collective bargaining agreement. Moreover, the record fails to show any loss of pay by the grievant that he would not have suffered had the leave restriction memorandum complied with the agreement. In these circumstances, we conclude that the Arbitrator's summary of her award and remedy, which mentions the violation of the agreement, provides no basis for an award of backpay.

      In addition, we strike the award of attorney fees because no basis for attorney fees exists once the finding of disability discrimination and the award of backpay have been set aside. See United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 7, Network Bus. Office, Duluth, Ga., 60 FLRA 122, 123 (2004) (attorney fees may not be awarded if backpay is not awarded).

      Finally, we note that separate from and independent of her finding of disability discrimination, the Arbitrator also found that the reprimand and leave restriction memorandum violated the parties' collective bargaining agreement, and ordered the expungement of the reprimand and leave restriction memorandum based on the violation of the agreement. The Agency did not except to these determinations of the Arbitrator. In this regard, we agree with the Union that the Agency has misconstrued the Arbitrator's finding of disparate treatment. This finding related to the Arbitrator's ruling that the reprimand was not fair and equitable, as required by the agreement. It did not relate to the Arbitrator's finding of disability discrimination. Consequently, the Agency has not disputed the Arbitrator's findings that the reprimand and leave restriction memorandum violated the agreement and that the reprimand and leave restriction memorandum must be expunged based on the violation of the agreement.

      The Authority has uniformly held that when an award is based on separate and independent grounds, all grounds for the award must be deficient for the award to be vacated. See, e.g., Goddard Engineers, Scientists and Technicians Ass'n, IFPTE, Local 29, 60 FLRA 593, 594 (2005). Here, the Agency has not excepted to the Arbitrator's separate findings that the reprimand and leave restriction memorandum violated the agreement and must be expunged based on that violation. Accordingly, based on the Arbitrator's unchallenged, separate findings, the Arbitrator's order that the reprimand and the leave restriction be expunged is unaffected by our determination that the Arbitrator's finding of disability discrimination is deficient.

V.      Decision

      The Arbitrator's finding of disability discrimination and the Arbitrator's make-whole remedy of compensatory damages, backpay, and attorney fees are set aside.


File 1: Authority's Decision in 61 FLRA No. 66
File 2: Opinion of Member Pope


Footnote # 1 for 61 FLRA No. 66 - Authority's Decision

   The opinion of Member Pope, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 66 - Authority's Decision

   Article 15, Section 8 pertinently provides:

(a)      When the supervisor gives the employee a leave restriction memorandum, the memorandum will clearly state the length of the leave restriction (up to 180 calendar days) and the effective date for review which will be no longer than midway through the restriction period.
(b)      During the review, the employee will be notified of the decision or continuation of the leave restriction.

Attachment to Agency's Exceptions.


Footnote # 3 for 61 FLRA No. 66 - Authority's Decision

   The Agency correctly references the Rehabilitation Act, rather than the Americans with Disabilities Act of 1990 (ADA). The Rehabilitation Act of 1973 addresses disability discrimination in federal employment. The ADA does not apply to federal agencies because the United States is not an "employer[,]" within the meaning of the ADA . See 42 U.S.C. § 12111(5)(B)(i).


Footnote # 4 for 61 FLRA No. 66 - Authority's Decision

   Although the Arbitrator in this case determined that the Agency violated the ADA, rather than the Rehabilitation Act, we do not find the award deficient on this basis because the Arbitrator did apply the ADA standards, which are the standards applied in determining whether there has been disability discrimination in violation of the Rehabilitation Act. Accordingly, we will view the Arbitrator's determination as a finding of a violation of the Rehabilitation Act. Cf. INS, 57 FLRA FLRA at 255 (because the standards of the ADA are applicable to the Rehabilita