American Federation of Government Employees, Local 2328 (Union) and United States, Department of Veterans Affairs Medical Center, Hampton, Virginia (Agency)

[ v62 p63 ]

62 FLRA No. 18

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2328
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
HAMPTON, VIRGINIA
(Agency)

0-AR-3971

_____

DECISION

March 29, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator James P. Begin filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

      A grievance was filed over the Agency's decision to charge the grievant with being absent without leave (AWOL) for failing to follow Agency leave policies. The Arbitrator denied the grievance. For the following reasons, we deny the exceptions.

II.     Background and Arbitrator's Award

      On August 19, 2004, the grievant, a registered nurse, met with her immediate supervisor and a supervisor-in-training to request leave starting August 24 for the purpose of attending to her dying mother in the Philippines. The parties disputed before the Arbitrator which type of leave the grievant had requested at the meeting. The Arbitrator found that the supervisor and the supervisor-in-training "credibly testified that the discussion was limited to the use of annual leave and that it was their impression" that the grievant would seek to switch annual leave with another employee. Award at 10. The supervisor advised the grievant that, after reviewing the staff's annual leave schedule, "the first availability was on September 12, 2004." Id. at 3.

      By e-mail dated August 22 to the grievant's second-line supervisor and to the supervisor, the grievant stated that she was "returning to the Philippines on August 24 because she [could not] wait until September 12 due to the condition of her mother." Id. The text of the e-mail contained no specific request for any type of leave, but the subject line contained the words: "Family Emergency Leave." Id. By e-mail dated August 23, the grievant's second-line supervisor responded as follows: "I'm sorry to hear of your mother's illness. Please provide supporting documentation to [the supervisor] so that we can work on granting Family/Friendly Medical Leave." Id. at 3-4. The grievant was off work on August 23, and did not read the e-mail from the second-line supervisor. Early on August 24, the grievant departed for the Philippines "without further communication with the Agency and without entering a leave request into the [Agency's] computer system." Id. at 4.

      On September 12, the grievant returned from the Philippines and telephoned the RN Unit Manager, who told her that she had been charged with AWOL since her departure and that she should report to work on September 14. See id. Upon the grievant's return to work on September 14, the supervisor-in-training requested that she provide medical support for her absence and enter a leave request into the computer. The grievant provided the medical information, but did not enter the leave request. See id.

      On September 24, the Union filed a Step 1 grievance seeking to remove the AWOL charge. In a written Step 1 response, the Agency stated that it had not denied the grievant leave. The Agency further stated that the grievant "was charged AWOL for the time she was absent and the AWOL was sustained after her return for failure to provide adequate documentation as required by the Family and Medical Leave Act." Id. at 6. In a written Step 2 response, the Agency stated that once the grievant submitted a written request for leave with supporting documentation, the Agency would approve the appropriate leave and remove the AWOL charge. See id. The grievant did not respond to the Agency's request to submit a written request for the type of leave she elected and the supporting documentation. See id.

      Subsequently, the Agency again requested that the grievant submit a written request for the type of leave she elected for the period of her absence and provided an SF 71 form for making the request. See id. at 6-7. In response, on November 10, the grievant signed the form [ v62 p64 ] and requested leave without pay (LWOP) for the period in question. See id. at 7. On November 15, the Agency approved that request and on November 22 removed the AWOL charge. See id. Consequently, the grievant "was not disciplined for any violation of Agency leave policies." Id.

      The grievance was submitted to arbitration, where the Arbitrator framed the issues as follows:

1.     Was the [g]rievant improperly carried AWOL in violation of the [c]ollective [b]argaining [a]greement and statutes and Agency regulations incorporated therein? If so, what shall be the remedy?
2.     Was the [g]rievant discriminated against because of her national origin when treated disparately in regard to leave requests? If so, what shall be the remedy?

Id. at 1.

      The Arbitrator noted that the Union relied on Article 32, Section 19.E.8.a of the parties' agreement, which, in the case of a request under the Family Medical Leave Act (FMLA) "requires 10 days notice before placing an employee in an AWOL status." Id. at 7, 11. According to the Arbitrator, however, the FMLA was not at issue because the grievant had not specifically requested leave under the FMLA. [n1]  See id. at 12. Instead, the Arbitrator found that the parties' dispute was about "process." See id. at 9. In this regard, the Arbitrator stated that the Agency could require the grievant to switch shifts with other employees to use annual leave, see id. at 10, and to provide medical documentation before or after taking leave under the FMLA. See id. at 12-13. The Arbitrator also stated that, for all types of leave, Agency rules required the grievant to enter her request for leave into the Agency's computer, which she did not do either before her leave or for two months after her return. See id. at 13. The Arbitrator found that, as the grievant left without following internal procedures for requesting leave, and was not on approved leave status during her absence, the Agency properly carried her in AWOL status. See id. at 12. The Arbitrator noted, however, that the grievant was "not disciplined in the instant matter for being AWOL" because the AWOL charge was removed after she complied with Agency leave policies. Id.

      The Arbitrator rejected the Union's contention that the Agency treated the grievant disparately by discriminating against her based on her Philippine ethnicity. Specifically, the Arbitrator found that the Agency did not treat the grievant differently from five non-Philippine employees by charging her with AWOL. See id. at 12-13. In this regard, the Arbitrator found that the five non-Philippine employees had not been charged with AWOL because, unlike the grievant, those employees received approval prior to or on the first day of their absences, used the computer system required by the Agency's policy, and "followed the well-established and well-known leave approval process." Id. at 13.

      In addition, the Arbitrator found that the Agency did not treat the grievant differently from the five non-Philippine employees by requiring her to submit medical documentation. The Arbitrator found that medical documentation is "required" for FMLA leave. Id. at 13. The Arbitrator also noted the Agency's discretion, under the parties' agreement and the Agency's policies, to require medical documentation for sick leave in excess of three days. See id. at 13. The Arbitrator pointed out that of the five non-Philippine employees, two were on leave for only two days and, as a result, were not required by regulation to submit medical documentation. The Arbitrator also pointed out that one of the remaining three employees provided documentation even though she testified that she was not required to do so. In this regard, the Arbitrator stated that, "three instances is not enough to establish a pattern of discrimination[.]" Id. at 14.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Union's Exceptions

      The Union contends that the award is contrary to the FMLA. In this regard, the Union argues that the Arbitrator erred by requiring the grievant to specifically refer to the FMLA in requesting leave to see her dying mother. See Exceptions at 6--7. Relying on 29 C.F.R. § 825.208, the Union states that it is the responsibility of an agency to designate leave under the FMLA based on information provided by the employee that makes the agency aware of the circumstances that would warrant [ v62 p65 ] FMLA leave. [n2]  The Union asserts that the grievant provided sufficient information to the Agency and that the Agency "should have first approved the leave and then worried about how [the grievant] wanted to charge the leave[.]" Id. at 7. The Union also argues that the Arbitrator violated the FMLA by stating that the Agency could require the grievant to switch annual leave with another employee. See id. at 8. The Union asserts that, as the grievant was entitled to leave under the FMLA, there was no need for the grievant to "work around [her] supervisor's schedule" by switching leave with another employee. Id.

      In addition, the Union claims that the Arbitrator "erred in determining [the grievant] was not discriminated against." Id. at 9. Citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas), the Union contends that the Arbitrator improperly required the grievant to establish a pattern of discrimination. The Union also argues that the Arbitrator erred by failing to find that the Agency treated the grievant differently from other similarly situated employees with respect to leave approval.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.

A.     The Award Is Not Contrary to the FMLA

      The Union argues that the Arbitrator erred by requiring the grievant to specifically refer to the FMLA in requesting leave to see her dying mother. See Exceptions at 6--7. For the following reasons, we find that the Union's argument does not provide a basis for finding the award deficient.

      As relevant here, the issue addressed and resolved by the Arbitrator was whether the grievant was properly carried in AWOL status. Although the Arbitrator stated that there was "no evidence that leave under [the FMLA] was ever requested," Award at 1, it is clear from the record as a whole that the Arbitrator based his decision that the grievant was properly carried in AWOL status on his determination that she failed to follow internal Agency procedures for requesting leave, rather than whether the grievant was required to refer specifically to the FMLA. In this regard, the Arbitrator found that regardless of the type of leave the grievant was taking, internal Agency procedures required her both to enter her request for leave into the Agency's computer system and then submit appropriate documentation, which she did not do either before her leave or for two months after her return. See id. at 13. The Arbitrator found that, as the grievant did not follow internal Agency procedures for requesting leave, and was not on approved leave status during her absence, the Agency properly carried her in AWOL status. See id. at 12.

      As the Arbitrator based his decision that the grievant was properly carried in AWOL status on his determination that she failed to follow internal Agency procedures for requesting all types of leave, the Arbitrator did not, and did not need to, determine whether the burden was on the Agency or the grievant to invoke the FMLA. [n3]  The Union has not, therefore, demonstrated that the award is deficient on this ground. We note, however, that in its August 23 communications, the Agency stated it would grant FMLA leave if the grievant provided supporting documentation. See Award at 3-4. The grievant provided documentation, but only in connection with her request for LWOP, which request was granted by the Agency.

      The Union also argues that the Arbitrator violated the FMLA by stating that it was the grievant's responsibility to switch annual leave with another employee. See Exceptions at 8. However, the Arbitrator's statement was not a basis for the award. See Award at 10. As noted above, the Arbitrator based his decision that the grievant was properly carried in AWOL status on his determination that she failed to follow internal Agency procedures for requesting all types of leave. Therefore, the Union has not shown that the award conflicts with the FMLA.

      Accordingly, we deny the exception.

B.      The Award Is Not Contrary to the Civil Rights Act of 1964

      The Union claims that the Arbitrator applied the incorrect standard in determining whether the grievant was discriminated against based on her national origin. In particular, the Union asserts that the Arbitrator erroneously [ v62 p66 ] required the grievant to establish "a pattern of discrimination[,]" rather than a prima facie case of discrimination, as set forth in McDonnell Douglas. Exceptions at 9. We construe the Union's argument and its reliance on McDonnell Douglas as a claim that the award is contrary to the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000, et seq.

      In McDonnell Douglas, the Supreme Court set forth the order of presentation and allocation of burdens in a Title VII case alleging discriminatory treatment. 411 U.S. at 802. To establish a prima facie case under McDonnell Douglas framework, the Union must show that (1) the grievant is member of a protected class; (2) she was similarly situated to an employee who was not a member of the protected class and (3) she and the similarly situated person were treated disparately. See id; Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (Holbrook). To create an inference of discrimination at the prima facie stage, the Union must demonstrate that the grievant and one or more employees who are not part of the protected class were treated differently. See Holbrook, 196 F.3d at 61. Once a prima facie case has been established, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's [treatment.]" McDonnell Douglas, 411 U.S. at 802. If the employer articulates a legitimate, nondiscriminatory reason for the employee's treatment, then the burden shifts to the employee "to show that [the employer's] stated reason for [the employee's treatment] was in fact pretext." Id. at 804.

      Subsequent to McDonnell