American Federation of Government Employees, Local 2923 (Union) and United States Department of Health and Human Services, National Institutes of Health, National Institutes of Environmental Health Sciences (Agency)

[ v62 p109 ]

62 FLRA No. 30

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2923
(Union)

and

UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
NATIONAL INSTITUTES OF HEALTH
NATIONAL INSTITUTES OF ENVIRONMENTAL
HEALTH SCIENCES
(Agency)

0-AR-4123

_____

DECISION

June 20, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer and Carol Waller Pope, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Elizabeth C. Wesman filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and 5 C.F.R. part 2425. The Agency did not file an opposition to the Union's exception.

      The Arbitrator determined that the grievance was untimely filed and denied the grievance. For the reasons that follow, we deny the Union's exception.

II.     Background and Arbitrator's Award

A.     Background

      In June 2002, the grievant fell at her worksite and suffered injuries. Following the accident, the grievant received Worker's Compensation benefits for four hours a day, and she also worked four hours a day. Six months after the accident, due to the lingering effects of her injuries, she began working full time at home.

      In May 2004, while the grievant continued to work at home, her supervisor requested that the grievant be promoted. The grievant's second-level supervisor returned the request, questioning whether, in view of the grievant's telecommuting arrangement, the grievant could perform the full range of duties of the higher-graded position. On May 7, 2004, the second-level supervisor suggested that the request be re-evaluated after a review of the grievant's telecommuting had been completed and finalized. On or about this same date, the grievant learned that the requested promotion had been put "on hold." Award at 5.

      At the same time that the promotion request was put on hold, the grievant's supervisor requested that the grievant provide "complete medical documentation regarding the difficulties related to her work," including the grievant's physician's evaluation of the extent to which her medical condition affected her job, whether the medical condition was permanent, and, if not, the expected date of recovery, and any accommodations and restrictions that were indicated. Id. at 5, 6. On August 30, 2004, the supervisor informed the grievant that the Agency "could no longer accommodate [her] working from home on a full[-]time basis as `filing and assisting in providing general office support, critical elements of your job, cannot be performed off-site.'" Id. at 6 (citing August 30, 2004 memo from supervisor to grievant). The supervisor offered the grievant several options for continuing her employment, none of which involved continuing the existing full-time telecommuting arrangement.

      On July 20, 2005, the Union filed a grievance alleging that the Agency treated the grievant unfairly by discriminating and retaliating against her on the basis of her medical condition and race. [n1]  As a remedy, the Union requested that the grievant receive the promotion she had been denied in May 2004. The grievance was not resolved and was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator framed the issues as follows:

1.      Is the grievance timely?
2.      If so, did the [A]gency violate the [agreement], the Equal Employment Opportunity provision or the "Telework Rule" by denying [the grievant's] promotion based on her medical condition and her race?
3. If so, what should the remedy be?

Award at 2.

      [ v62 p110 ] According to the Arbitrator, the timeliness question is governed by Article XXIII, Sections 7 and 9 of the parties' agreement. [n2]  With regard to Section 7, the Arbitrator noted that grievances alleging discrimination must be filed within five working days of the date when the discrimination becomes known to the grievant. The Arbitrator also noted the Union's claim that an exception to those time limits should be made because of the Agency's continuing discrimination against the grievant. The Arbitrator rejected the Union's arguments as to such continuing violations, finding that the Agency had not "discriminated against [the] grievant either because of her disability, because she worked at home, or because she filed the . . . grievance." Award at 12. Moreover, she found that there was no "indication that any action by her supervisors was in any way racially motivated." Id. Rather, the Arbitrator found that the grievant's second-level supervisor "reasonably concluded that, if [the grievant] continued to be restricted to working solely at home, she would be unable to fulfill `the full range of duties of the new position description." Id. The Arbitrator noted that the job required maintaining personal contact with other staff, involved screening incoming mail, and encompassed dealing with visitors, among other things.

      Further, the Arbitrator found that there was "no evidence . . . that the Agency harassed [the grievant] regarding her disability or her work arrangement." Id. The Arbitrator noted that the grievant's supervisor requested medical information from the grievant in order to determine whether the grievant could perform the duties of her existing position description because it was no longer possible to accommodate the grievant by reassigning some of her duties to other employees. The Arbitrator found that there was no evidence this request was based on a discriminatory motive.

      The Arbitrator also found that there was no evidence that the grievant was harassed as a result of her filing a grievance. According to the Arbitrator, a higher level management official informed the Union that if the grievant were to be granted the promotion, "she would need to inform the [A]gency of a change in her medical status[.]" Id. at 13. In a related request, the grievant's supervisor sought information as to the nature of the grievant's limitation and any appropriate accommodations "in light of the fact that [the grievant] had undergone surgery since the completion of her original telework agreement." Id. Consequently, the Arbitrator concluded that the grievant did "not have a cause of action under" Section 7. Id. at 14.

      As to whether there was a continuing violation against the grievant under Section 9, the Arbitrator noted that the grievant admitted she knew that her promotion was placed on hold a year before filing the grievance. Because the grievant admitted knowing about her non-promotion a year before the grievance was filed, the Arbitrator found that the grievance was not timely filed within 15 days the grievant became aware of the incident giving rise to the grievance. [n3] 

      Accordingly, the Arbitrator found that the grievance was not timely and denied the grievance.

III.     Union's Exception

      The Union contends that the Arbitrator's award is contrary to law and regulation. The Union cites the Rehabilitation Act of 1973 (Act), 29 U.S.C. § 791 et seq., 42 U.S.C. § 12101, 12102, 29 C.F.R. § 1614.203(b), and 29 C.F.R. part 1630. Specifically, the Union argues that the Agency's refusal to promote the grievant because of her disability constituted illegal discrimination against the grievant. Moreover, the Union maintains that the Agency's discriminatory conduct was a continuing violation because the grievant was not paid commensurate with the grade level of the position to which she should have been promoted.

      According to the Union, the Agency denied the grievant's promotion because she was working at home pursuant to the Agency's accommodation of her disability. [ v62 p111 ] The Union asserts that the grievant "was either discriminated against or that the Agency created a hostile environment[.]" Exception at 4. The Union maintains, in addition, that "ongoing discrimination against [the grievant] was and is occurring[.]" Id. The Union concludes, therefore, that the discrimination constitutes a continuing violation under the parties' agreement, making the grievance timely under Section 7.

IV.     Analysis and Conclusions

      The Arbitrator's award constitutes a procedural arbitrability determination. See, e.g., AFGE, Local 104, 61 FLRA 681, 682 (2006). The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. Id. at 682-83. However, the Authority has stated that a procedural arbitrability determination may be found deficient on that ground that it is contrary to law. Id. at 683 (citing AFGE, Local 3882, 59 FLRA 469, 470 (2003)). The Union contends that the Arbitrator's determination that the grievance is not procedurally arbitrable is contrary to law and regulation.

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

      The Union contends that the Arbitrator's procedural arbitrability determination is deficient because she erred, as a matter of law, in finding that the Agency had not discriminated against the grievant. In particular, the Union contends that the grievant was denied a promotion because she was working at home as an accommodation of her disability. The Arbitrator found, in this regard, that the denial of a promotion was based on the Agency's determination that the grievant could not perform all of the duties of the higher-graded position if she continued to work at home. For the following reasons, we conclude that the Union has not demonstrated that the Arbitrator's determination is legally deficient.

      In United States Department of the Army, Corps of Engineers, Huntington District., Huntington, W.Va., 59 FLRA 793, 797 (2004) (COE, Huntington), the Authority stated the elements of a prima facie case of discrimination under the Act, and applicable regulations. Specifically, 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. Id. (citing United States Dep't of the Treasury, IRS, Austin Serv. Ctr., 58 FLRA 546, 548 (2003)). A failure to promote does not constitute prohibited discrimination under the Act when the employee is not qualified for the position. See Bissell v. Reno, 74 F. Supp. 2d 521, 529 (D.Md. 1999) (citing Tingley v. Henson Aviation, Inc., 789 F.2d 275, 276-77 (4th Cir. 1986)); see also Forde v. Potter, EEOC Appeal No. 01A12670 (October 9, 2003) (Forde). Under the second of the COE, Huntington requirements, a "qualified individual with a disability" is one who satisfies the requirements for the employment position she desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). Evidence of whether a particular job function is essential includes, but is not limited to: the employer's judgment as to which functions are essential and written job descriptions. See, e.g., D'Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1230 (11th Cir. 2005); see also Forde.

      As noted above, when reviewing de novo an Arbitrator's award under the applicable legal standard, we defer to the Arbitrator's findings of fact. In this regard, we note that the Arbitrator found that the Agency reasonably concluded that the grievant could not perform the duties of the position to which she sought promotion without being present at the worksite and on that basis postponed the promotion until the status of the grievant's disability could be assessed. The Union makes no attempt to demonstrate that the duties relied on by the Agency are not essential to the position, so that the grievant could perform the duties of that higher-graded position at home as an accommodation for her disability. In the absence of such a demonstration, the Union has not shown, as required to establish a prima facie case of discrimination under the Act, that the grievant was a "qualified" individual with a disability and, thus, that the Agency's denial of a promotion constituted discrimination under the Act. See, e.g., Rosell v. Kelliher, 468 F. Supp. 2d 39, 46 (D.D.C. 2006). Consequently, the Union has not established that the Arbitrator's finding that the grievant has no cause of action under Section 7 is legally deficient. Forde, relied on by the Union, is clea