[ v59 p793 ]
59 FLRA No. 142
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
HUNTINGTON, WEST VIRGINIA
OF GOVERNMENT EMPLOYEES
March 31, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator John M. Skonier filed by the Agency and the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union and the Agency filed oppositions to each other's exceptions.
For the following reasons, we find that the award, in part, is contrary to law and set aside that portion of the award. We dismiss the Union's exceptions as to compensatory damages and dismiss without prejudice its exception as to attorney fees.
II. Background and Arbitrator's Award
The grievant suffered an on-the-job injury in 1989 which left her permanently disabled, with a "substantial limitation on her ability to walk." Award at 2. The grievant signed negotiated settlement agreements with the Agency in 1993 and 1995 to resolve complaints related to her disability. Pursuant to those agreements, the grievant was allowed to spend the first and last 40 minutes of her work day in sedentary activities and to spend twice the amount of time to complete field assignments as would be needed by an employee without her [ v59 p794 ] disability. The Agency also assisted the grievant in finding a parking space close to the Federal building where she worked, for which she was financially responsible.
In December 2000, the grievant "requested that she be permitted to use a handicapped parking space in the rear of the Agency's work place." Id. The Agency requested medical documentation detailing her present functional limitations and the prognosis for her condition in 6 months and 1 year. However, the grievant supplied medical documentation from 1992. The Agency noted the age of the documentation, stated that it was already providing an accommodation for her disability based on that medical information, and concluded that, as there was no change in her condition, there was no reason to provide her any new accommodation, i.e., the handicapped space she requested. In particular, the Agency notified the grievant that she did not meet the definition of a severely handicapped employee under 41 C.F.R. § 101-20.104, the General Services Administration's facilities management regulations. The grievant provided no additional information.
The Union filed a grievance on behalf of the grievant, alleging the Agency had: (1) denied access to and use of an available, signed handicapped parking space; (2) denied use of the handicapped accessible automatic door; (3) committed acts of reprisal against the grievant for requesting assistance with a physical handicap; and (4) harassed the grievant and created a hostile environment due to a physical handicap. The grievance claimed that the Agency had violated the parties' collective bargaining agreement, the Rehabilitation Act of 1973, Title VII of the Civil Rights Act, and Agency policy. The parties were unable to resolve the grievance and it was submitted to arbitration.
B. Arbitrator's Award
The Arbitrator identified four issues presented by the case: (1) "whether the Agency created, perpetuated, and/or failed to end a hostile work environment toward" the grievant; (2) "whether the Agency violated the parties' Basic Agreement, Title VII, or the Rehabilitation Act of 1973 when it refused to provide the [g]rievant with a handicapped parking space;" (3) "whether the Agency violated the parties' Basic Agreement, Title VII, or the Rehabilitation Act of 1973 when it refused to allow the [g]rievant access to an automated door[;]" and (4) whether the Agency violated the 1993 "EEOC Negotiated Settlement Agreement[.]" Award at 4.
As to the harassment issue, the Arbitrator credited testimony as to disparaging remarks and actions against, or derogatory comments about, the grievant based upon her disability. He also found that the grievant had put the Agency on notice as to those remarks, comments, and actions through her complaints to the Equal Employment Opportunity (EEO) Office and that the Agency had not investigated those complaints. The Arbitrator concluded that, "[o]n the basis of the record as a whole," the Agency violated Articles 3 and 12 of the parties' collective bargaining agreement "by failing to take immediate action in response to" the grievant's and the Union's "notifications to various management officials regarding derogatory comments and/or actions made toward the [g]rievant as a result of her handicap." [n1] Award at 8.
With respect to the handicapped parking issue, the Arbitrator reviewed testimony and other evidence related to the severity of the grievant's handicap and the Agency's efforts to accommodate her disability. He concluded that the grievant was a qualified individual with a disability within the meaning of the Americans with Disabilities Act (ADA) because her "ability to walk is significantly restricted when compared to that of the average person." Id. at 13. The Arbitrator rejected the Agency's claim that it was not required to provide the grievant with a permanent parking place at the rear of the building because the grievant failed to provide updated medical information demonstrating that her condition had changed to the point that she needed additional accommodation. He found, in this regard, that "[t]he fact that she did not provide more recent medical documentation does not bar her from being considered a `qualified person with a disability.'" Id.
He also rejected the Agency's argument that she was not a "severely handicapped" employee who warranted assignment of a parking space under 41 C.F.R. § 101-20.104-2. He found that the fact that the grievant "may not fit this definition does not ipso facto mean that she is not eligible for a parking space" as a "reasonable accommodation" for her disability under the ADA. Id. at 14.
The Arbitrator noted that, under the ADA, a qualified individual with a disability is entitled to a reasonable accommodation for that disability unless the agency can demonstrate an undue hardship in providing such accommodation. The Arbitrator found that the Agency leased parking spaces from the General Services Administration and thus "cannot claim undue hardship in providing a reasonable accommodation." [ v59 p795 ] Id. at 15. Consequently, based on the record as a whole, he concluded that the Agency violated the parties' collective bargaining agreement "when it denied the [g]rievant's request for assignment to a permanent parking space in the rear lot of the Agency's building." Id.
Turning to the issue of the automatic door, the Arbitrator found, based on the Union's statement that the situation had been remedied, that "no further action is needed." Id. at 16.
Finally, with respect to the issue of the Negotiated Settlement Agreement, the Arbitrator found that the matter had not been "raised in the original grievance" or "discussed at any time during the grievance process." Id. He found that the Agency was therefore without notice that it would be required to dispute this issue in arbitration. The Arbitrator concluded that "the record does not provide sufficient information to make a determination as to whether the Agency has violated the terms of" the Negotiated Settlement Agreement. Id.
In discussing an appropriate remedy, the Arbitrator found it "appropriate to award the [g]rievant compensatory damages in the form of providing the aforementioned parking space at no charge to the [g]rievant." Id. at 17. He sustained the grievance in part and directed the Agency to: (1) "cease and desist all actions that led to the creation of a hostile work environment toward the [g]rievant;" (2) "assign a parking space in the lot at the rear of the Agency Building to the [g]rievant at no cost to the [g]rievant;" and (3) "continue to allow the [g]rievant access to the automatic door." Id.
III. Positions of the Parties
A. Agency's Exceptions
1. Rehabilitation Act of 1973
The Agency excepts only to the portion of the award wherein "the Agency is directed to assign a parking space in the lot behind the Agency's Building to the grievant . . . as a reasonable accommodation, and at no cost to the grievant, as an award of compensatory damages." Agency Exceptions at 1-2. The Agency contends that this portion of the award is contrary to law, specifically, the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.
According to the Agency, the Arbitrator "failed to conduct the required analysis of whether the reasonable accommodation already provided by the Agency is inadequate to accommodate the grievant's disability." [n2] Id. at 12. The Agency contends that, after a similar request for a parking space behind the building in 1992, it provided the grievant a reasonable accommodation for her disability in the 1993 Negotiated Settlement Agreement (1993 NSA) and that the grievant worked under that agreement for 10 years. The Agency notes that the medical evidence provided by the grievant to support her current request for a parking space behind the building is the same evidence that she used to support her prior request. The Agency notes that the Arbitrator erred as a matter of law by ordering a new accommodation without any analysis finding that the existing accommodation provided in the 1993 NSA was "inadequate or unreasonable." Id. at 11.
The Agency asserts that "it is well established that an accommodation does not have to be the best possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated." [n3] Id. In this regard, the Agency claims that there was no evidence presented by the Union or the grievant indicating that the accommodation provided under the 1993 NSA is inadequate or prevents the grievant from performing the essential functions of her job.
2. Civil Rights Act of 1991
The Agency claims that the Arbitrator's award of compensatory damages violates the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). According to the Agency, an award of compensatory damages under the Civil Rights Act of 1991 must be based on objective evidence, citing United States Dep't of Commerce, PTO, 52 FLRA 358 (1996). The Agency maintains that the Arbitrator's award in this regard is "legally deficient because he did not set forth in the award the necessary and specific findings, including the identification of objective evidence to support the award of compensatory damages." Agency Exceptions at 14.
B. Union's Exceptions
The Union notes the Arbitrator's findings that the Agency: (1) permitted a hostile work environment to exist with respect to the grievant; and (2) violated the parties' collective bargaining agreement by failing to provide a reasonable accommodation to the grievant. The Union contends that the Arbitrator's award is contrary to law, specifically, "EEOC [Equal Employment Opportunity Commission], MSPB [Merit Systems Protection [ v59 p796 ] Board] and FLRA precedent," because he did not analyze the damages which flowed from his findings and, thus, did not award the relief he was obligated to provide, citing United States Dep't of the Navy, Naval Sea Logistics Center, Detachment Atlantic, Indian Head, Md., 57 FLRA 687 (2002).
In particular, the Union contends that, for the hostile work environment finding, the Arbitrator should have awarded restoration of leave taken as a result of that environment, out-of-pocket medical expenses, and compensatory damages for anguish and mental suffering. The Union claims that, for the failure to provide reasonable accommodation, the Arbitrator should have ordered the Agency to reimburse the grievant for parking fees in other lots, reinstatement of leave, and compensatory damages for physical and emotional pain and suffering. [n4] The Union also contends that in failing to address these issues the Arbitrator exceeded his authority.
The Union states that the Arbitrator's award is deficient because he "failed to award reasonable attorney fees." Union Exceptions at 2.
C. Union's Opposition
The Union contends that evidence concerning the inadequacy of the "current `accommodation'" was presented to the Arbitrator, noting testimony as to the difficulty the grievant experienced in walking to work. The Union also notes that this issue was litigated before the Arbitrator and that his finding was based on the parties' collective bargaining agreement. The Union asserts that differences of opinion as to contract interpretation are not sufficient to demonstrate that an award is deficient. The Union also argues that an award will not be found deficient based on factual matters that are disputed before the arbitrator.
The Union agrees with the Agency that a free parking place does not constitute compensatory damages, but "make whole" relief for a violation of the parties' agreement. According to the Union, the award should be remanded to the Arbitrator for resolution of the issue of compensatory damages.
D. Agency's Opposition
As to the Union's claim that the Arbitrator failed to address the issue of the proper remedy for the violations he found, the Agency notes that the parties did not stipulate the issues before the Arbitrator, the issues were formulated by the Arbitrator, and the award "provides remedies directly addressing the issues raised by the parties." Agency Opposition at 10. In this regard, the Agency contends that the Arbitrator awarded make whole relief, a parking space, a cease and desist order, and continued use of the automatic door.
The Agency contends that the Union failed to meet its burden of proof as to compensatory damages because it presented no objective evidence of such damages, in particular, evidence as to emotional distress, out-of-pocket expenses, or loss of leave that might be traced to the Agency's action. Finally, the Agency maintains that since the Union's exceptions relate to the Arbitrator's remedy, and the Arbitrator based his remedy on alternate underlying findings, the Union must, but has failed to, demonstrate that each of those alternate underlying findings is in error in order to establish that the failure to award certain remedies is deficient.
IV. Analysis and Conclusions
A. The Arbitrator's Award is Contrary to the Rehabilitation Act
The Agency's exception as to the award's requirement of a permanent parking place for the grievant at the rear of the Agency's facility concerns whether the award is consistent with the Rehabilitation Act of 1973 (the Act). [n5] The Authority reviews questions of law 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. [ v59 p797 ]
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; (2) is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) was discriminated against because of his or her disability. See Austin Service Ctr., 58 FLRA at 547-48 (citing 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 Austin Service Ctr., 58 FLRA at 548. See also 42 U.S.C. § 12111(b)(5)(A).
There is no dispute in this case as to whether the grievant is a qualified individual with a disability. The issue raised by the Agency's exception concerns whether the Arbitrator applied the proper legal framework to support his conclusion that the agency failed to provide the grievant with a reasonable accommodation.
At the outset, it should be noted that an agency's duty to provide reasonable accommodation is an ongoing one. See, e.g., Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998) (Ralph); Mitchell v. Potter, 2001 WL 1103813 (July 31, 2001) at 3 (Mitchell). See also Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Guidance), [n6] EEOC Notice No. 915,002 (October 17, 2002) "Other Reasonable Accommodation Issues" (Question 32). Consequently,
[c]ertain individuals require only one reasonable accommodation, while others may need more than one. Still others may need one reasonable accommodation for a period of time, and then at a later date, require another type of reasonable accommodation. If an individual requests multiple reasonable accommodations, s/he is entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity.
Mitchell at 3. See also Ralph, 135 F.3d at 172 ("The duty to provide reasonable accommodation is . . . not exhausted by one effort.") (citing Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1285 (7th Cir. 1996) (Bultemeyer )).
"Determining an appropriate reasonable accommodation for an employee with a disability should be an interactive process involving both the employee and the employer." Billman v. Principi, 2003 WL 21997673 at 3 (August 15, 2003) (Billman) (citing 29 C.F.R. § 1630.9). See also Guidance, "Requesting Reasonable Accommodation." The process involves a dialogue between the employee and employer, a sharing of information back and forth, the goal of which is to identify the employee's needs and the most effective accommodation of those needs. See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114-15 (9th Cir. 2000); Hendricks-Robinson v. Excel Corp., 7th Cir. 1998) (Hendricks-Robinson); Wilbourne v. Principi, EEOC No. 03A00064 (August 2, 2001) (Wilbourne). See also Guidance, "Requesting Reasonable Accommodation" (Question 5).
The dialogue is usually initiated when an employee indicates in some way, or it is otherwise obvious, that he or she has a disability for which an accommodation is needed. See, e.g., Hendricks-Robinson, 154 F.3d at 693; Guidance, "Requesting Reasonable Accommodation" (Question 1). An agency's duty to provide reasonable accommodation is triggered at that point. Id. "The exact nature of the dialogue will vary depending on the employee's disability, but, where the disability and/or need for accommodation is not obvious, the employer may ask for information and documentation about the employee's disability and functional limitations." Wilbourne at 4. See also Guidance, "Requesting Reasonable Accommodation" (Question 6).
"[B]oth parties bear responsibility for determining what accommodation is necessary." Bultemeyer, 100 F.3d at 1285 (citing Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (Beck)). In determining whether an agency has met its obligation to provide reasonable accommodation for a qualified employee with a disability, it is important to "look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary." Beck, 75 F.3d at 1135. More specifically, it is important to "isolate the cause of the breakdown" in the communication between the parties "and then assign responsibility." Id. In this regard, "the cause of the breakdown might be missing information." Id. "Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the [ v59 p798 ] party withholding the information may be found to have obstructed the process." Id. at 1136.
Thus, where the failure to provide a reasonable accommodation for a qualified employee with a disability is traceable to the fact that the employee did not provide necessary information, the agency is not liable for that failure. Beck, 75 F.3d at 1136-37 (court found that "responsibility for failure to isolate the necessary specific accommodations" fell on the employee because "the information required" to determine those accommodations "was of the type that only" the employee could provide and the employee did not provide that information). See also Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 333 (3rd Cir. 2003) (Conneen) (no violation because parties understood accommodation was temporary and employee would, if condition persisted, need to provide further documentation to employer to substantiate need for additional accommodation, but employee failed to do so); Templeton v. Neodata Services Inc., 162 F.3d 617, 618-19 (10th Cir. 1998) (Templeton) ("the employee's failure to provide medical information necessary to the interactive process precludes her from claiming that the employer" committed a violation "by failing to provide reasonable accommodation."). Stated differently, where an agency properly attempts to engage in the interactive process but is unable to determine what, if any, accommodation would be reasonable due to the failure of the employee to provide necessary information, the agency will be found to be in compliance with the Rehabilitation Act. See Billman at 4.
In the circumstances of this case, the grievant requested, as a new or additional accommodation for her disability, a parking place at the rear of the building in which she worked. The Agency, which had provided the grievant an accommodation of her disability in the 1993 NSA, under which the grievant had worked for 8 years, requested information about the current state of her disability. When the grievant provided the medical information upon which the accommodation in the 1993 NSA was based, the Agency requested more current information, but the grievant did not provide any. Thus, the Agency was unable to assess whether there had been any change in her condition sufficient to warrant the accommodation which she requested. As the breakdown in the interactive process is traceable to the failure of the grievant to update the information on her disability, under the applicable legal framework the burden of that breakdown falls on the grievant and precludes her from claiming that the Agency failed to provide her a reasonable accommodation. See Conneen, Tempelton, Beck, and Billman.
Consequently, under the applicable legal framework, the Arbitrator's conclusion that the Agency failed to comply with the Rehabilitation Act, as required by the contract, is legally deficient. Accordingly, we find that the Arbitrator's award, insofar as it requires the Agency to provide the grievant a parking place at the rear of its building, is contrary to the Rehabilitation Act of 1973 and deficient under § 7122(a)(1) of the Statute. Therefore, we set aside that portion of the award. [n7]
B. The Union's Exceptions Concerning Compensatory Damages
do not Demonstrate that the Award is Deficient
The Union excepts to the award on the ground that the Arbitrator did not award compensatory damages. It should be noted that the Arbitrator did not ignore compensatory damages because he ordered that the grievant be given a parking space at the rear of the building as compensatory damages. Consequently, wholly apart from whether he properly characterized that aspect of the award as compensatory damages, he was aware that he was authorized to award such damages. It should be noted, however, that there is no indication in the record that evidence as to such damages, e.g., restoration of annual leave, out-of-pocket medical expenses, and damages for anguish and mental suffering, was ever presented to him at arbitration.
Compensatory damages are available under the Rehabilitation Act. 42 U.S.C. § 1981a(a)(2). An award of compensatory damages under 42 U.S.C. § 1981a must be based on objective evidence. See United States Dep't of Commerce, PTO, 52 FLRA 358, 373 (1996). In this regard, however, there is no objective evidence in the record that would support a claim for such damages. There is thus no basis for finding that the Arbitrator erred in failing to award compensatory damages.
To the extent that the Union's exception constitutes a claim that the Arbitrator exceeded his authority by failing to address the issue of compensatory damages, we note that arbitrators have broad discretion in fashioning remedies and a failure to provide a particular remedy does not render an award deficient on this ground. See NFFE, Local 1904, 56 FLRA 196, 200 (2000). See also AFGE, Local 916, 50 FLRA 244, 246-47 (1995). Accordingly, the Union has not demonstrated [ v59 p799 ] that the award is deficient on the ground that the Arbitrator exceeded his authority.
Therefore, we dismiss the Union's contrary to law and exceeded authority exceptions.
C. The Union's Exception Concerning Attorney Fees Should be
Dismissed Without Prejudice
The Union states that the Arbitrator's award is deficient because it fails to award attorney fees.
Under 5 C.F.R. § 550.807(a), an award of attorney fees is premised on the request of a grievant or a grievant's representative. See United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 54 FLRA 759, 762 (1998) (Red River). Such a request must be made to the arbitrator, who is the "appropriate authority" under 5 C.F.R. § 550.807(a) to render such an award in the case of an arbitration proceeding. Id. at 762-63. Further, there is no legal requirement that arbitrators issue a fee award at the time that they issue an award on the merits of a grievance. See AFGE, Local 1156, 56 FLRA 1024, 1026 (2000) (Local 1156). Where an arbitrator does not make any determination regarding a request for attorney fees in an award on the merits of a grievance, an exception filed with the Authority regarding such fees is premature. Id. (citing United States Dep't of Veterans Affairs, Medical Center, Coatesville, Pa., 53 FLRA 1426, 1431-32 (1998).
In a brief statement in his award, the Arbitrator indicated that the Union, as the grievant's representative, requested that the Arbitrator award attorney fees. However, the Arbitrator failed to address that request, which, as noted above, he was not under an obligation to do. The Union's exception as to attorney fees is premature and does not demonstrate that the award is deficient. See Local 1156. Accordingly, consistent with Authority practice in these circumstances, we dismiss the Union's exception as to attorney fees without prejudice to the Arbitrator's consideration of the Union's request for such fees. Id.
The Arbitrator's award, insofar as it requires the Agency to provide the grievant a parking place at the rear of its building, is deficient and is set aside. The Union's exceptions as to compensatory damages are dismissed. The Union's exception as to attorney fees is dismissed without prejudice to the Arbitrator's consideration of the Union's request for such fees.
1. Article 3, "Employee Rights," of the parties' collective bargaining agreement provides, in relevant part, as follows:
Section 1. An employee has the right to bring matters of concern, relative to personnel policies, practices, and matters affecting working conditions, to the attention of management officials, supervisors, the Civilian Personnel Officer, the Equal Employment Opportunity Officer, and the Union. Employees will obtain their supervisor's permission prior to leaving their appointed place of duty to visit the places of persons enumerated above. While it is not necessary for the employee to explain the reason for his visit specifically and in detail to his supervisor, he is encouraged to afford the supervisor opportunity to resolve the problem. The immediate supervisor will indicate a convenient time for the employee to make the visit which will not unduly disrupt the work schedule. Where the supervisor determines that impairment to or serious delay of work efforts will be involved, he will grant permission for the absence at the earliest practicable time.
. . . .
Section 3. It is agreed that an employee has the right to file a complaint, a grievance, or an appeal without interference, coercion or threat of reprisal. An employee acting in an official capacity for the Employer shall not interfere with the filing of such a complaint, grievance, or appeal, nor take or threaten to take any act of reprisal (including, but not limited to, discharge or other disciplinary action, denial of promotion, or adverse performance evaluation) against an employee because he has filed or expressed an intention to file a complaint, a grievance or an appeal.
2. Article 12, "Equal Employment Opportunity," provides, in relevant part, as follows: [ v59 p800 ]
EQUAL EMPLOYMENT OPPORTUNITY
Section 1. The employer will make every reasonable effort to promote equal employment opportunity on all levels and that the full workforce is free from discrimination because of race, color, religion, age, sex (including sexual harassment), national origin, mental or physical handicap, marital status, and political affiliation. The employer is responsible for promoting equal opportunity through a positive, continuing program involving all management policies, programs, objectives, practices and personnel actions.
Section 2. Pursuant to the provisions of 29 CFR § 1613.202, the employer shall:
a. Provide sufficient resources to administer its EEO program in a positive and effective manner and assure that the principal and operating officials responsible for carrying out the EEO program meet established qualification requirements.
b. Conduct a continuing campaign to eradicate every form of prejudice or discrimination based upon race, color, religion, sex, or national origin, from the Agency's personnel policies and practices and working conditions including disciplinary action against employees who engage in discriminatory practices.
A statement will be issued and made public to all employees reflecting management's commitment to attain EEO goals.
PERSONNEL ACTIONS AND EMPLOYMENT PRACTICES
Section 3. All personnel actions and employment practices involving employees will be based solely on law and the terms of this contract.
All work-related activities, facilities, and services operated, sponsored, or participated in by the employer will be conducted without regard to race, sex, color, age, or national origin.
. . . .
Section 6. The Employer shall develop a results-oriented program for affirmative action intended to resolve problems of under-utilization and underrepresentation of minorities, women, and the handicapped. The Employer agrees to furnish the Union copies of the Affirmative Action Program plans, [and] updates thereto, of the Federal Equal Opportunity Recruitment Plan (FEORP) and progress reports pertinent to these plans. In addition, the Employer agrees to furnish the Union, upon request, such data and statistics as are available to the EEO Office.
3. 29 C.F.R. § 1630.2(o) provides as follows:
(o) Reasonable accommodation.
(1) The term reasonable accommodation means:
. . . .
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(ii) Job restructuring: part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations [ v59 p801 ] resulting from the disability and potential reasonable accommodations that could overcome those limitations.
4. The Appendix to Part 1630, "Interpretive Guidance on Title I of the Americans with Disabilities Act," discusses 29 C.F.R. § 1630.9, in part, as follows:
Section 1630.9 Not Making Reasonable
. . . .
The accommodation, however, 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. Accordingly, an employer would not have to provide an employee disabled by a back impairment with a state-of-the-art mechanical lifting device if it provided the employee with a less expensive or more readily available device that enabled the employee to perform the essential functions of the job.
5. EEOC regulations, 29 C.F.R. § 1614.501, provide, in part, as follows:
§ 1614.501 Remedies and relief.
(a) When an agency, or the Commission, in an individual case of discrimination, finds that an applicant or an employee has been discriminated against, the agency shall provide full relief which shall include the following elements in appropriate circumstances:
(1) Notification to all employees of the agency in the affected facility of their right to be free of unlawful discrimination and assurance that the particular types of discrimination found will not recur;
(2) Commitment that corrective, curative, or preventive action will be taken, or measures adopted, to ensure that violations of the law similar to those found will not recur;
(3) An unconditional offer to each identified victim of discrimination of placement in the position the person would have occupied but for the discrimination suffered by that person, or a substantially equivalent position;
(4) Payment to each identified victim of discrimination on a make whole basis for any loss of earnings the person may have suffered as a result of the discrimination; and
(5) Commitment that the agency shall cease from engaging in the specific unlawful employment practice found in the case.
Footnote # 1 for 59 FLRA No. 142 - Authority's Decision
Footnote # 2 for 59 FLRA No. 142 - Authority's Decision
Footnote # 3 for 59 FLRA No. 142 - Authority's Decision
The Agency cites 29 C.F.R. Part 1630, Appendix, the relevant text of which is set forth in the Appendix to this decision, and United States Dep't of the Treasury, IRS, Austin Service Center, 58 FLRA 546 (2003) (Austin Service Center).
Footnote # 4 for 59 FLRA No. 142 - Authority's Decision
Footnote # 5 for 59 FLRA No. 142 - Authority's Decision
The Arbitrator's award in this regard references the ADA. The ADA does not apply to Federal employees. See United States Dep't of the Air Force, HQ Oklahoma City Air Logistics Ctr., Tinker AFB, Okla., 40 FLRA 214, 219 (1991). However, the standards required for a determination as to whether the Rehabilitation Act has been violated are those established under the ADA. See 29 U.S.C. §§ 791(g), 794(d); 42 U.S.C. § 12111(9). "When interpreting and applying the [Rehabilitation] Act, the Authority applies the standards of the ADA, which are to be given precedential effect." Austin Service Ctr., 58 FLRA at 547. Thus, the Agency properly references the Rehabilitation Act as the basis of its exceptions. Further, because his analysis is in terms of the relevant requirements of the ADA, we construe the Arbitrator's reference to the contract in his finding of a violation of those requirements to mean that he found a violation of the contractual provision mandating that all personnel actions be based on applicable law.
Footnote # 6 for 59 FLRA No. 142 - Authority's Decision
Because the EEOC applies the standards set forth in the ADA when interpreting and applying the Rehabilitation Act, Authority reliance on EEOC guidance with respect to the ADA is appropriate. See Austin Service Center, 58 FLRA at 547. See also n.5, supra.
Footnote # 7 for 59 FLRA No. 142 - Authority's Decision
For this reason, it is unnecessary to address the Agency's exception concerning compensatory damages. The Arbitrator references his award of the parking space at the rear of the building as an award of compensatory damages and there is no other mention of compensatory damages in the award. See Award at 17.