Filed: Jul. 24, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAIMA CIGUZIS, DOCKET NUMBER Appellant, CB-7121-15-0015-V-1 v. DEPARTMENT OF LABOR, DATE: July 24, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Maureen Willoughby, Esquire, Washington, D.C., for the appellant. Katherine Brewer, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review of an arbitrator’s dec
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAIMA CIGUZIS, DOCKET NUMBER Appellant, CB-7121-15-0015-V-1 v. DEPARTMENT OF LABOR, DATE: July 24, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Maureen Willoughby, Esquire, Washington, D.C., for the appellant. Katherine Brewer, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review of an arbitrator’s deci..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAIMA CIGUZIS, DOCKET NUMBER
Appellant, CB-7121-15-0015-V-1
v.
DEPARTMENT OF LABOR, DATE: July 24, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Maureen Willoughby, Esquire, Washington, D.C., for the appellant.
Katherine Brewer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review
of an arbitrator’s decision, which sustained her 30-day suspension. For the
reasons that follow, we AFFIRM the arbitrator’s decision.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 The following facts are undisputed. The agency proposed to suspend the
appellant from her Human Resource Specialist (Compensation) position for
30 days for failure to follow instructions. Request for Review (RFR) File, Tab 8
at 25-28. The appellant, through her union representative, submitted a written
reply to the proposed suspension. RFR File, Tab 7 at 68-97. In lieu of issuing a
decision letter on the proposed suspension, the agency entered into a settlement
agreement with the appellant and her union representative, which provided,
among other things, that the appellant would comply with her supervisor’s
instructions concerning the cleanliness of her workspace and that she would
correct any documented problems with her workspace within 3 work days of
receiving written notice from the agency of any such deficiency. RFR File, Tab 8
at 30-32. The settlement agreement specifically provided that, if the appellant
failed to meet these requirements, the agency would issue a decision letter
effecting a 30-day suspension based upon the reasons specified in the prior
proposal notice.
¶3 Approximately 5 months after the parties entered into the settlement
agreement, the agency issued a written notice that the appellant needed to clean
her workspace pursuant to the terms of the agreement, and it offered her supplies
and other materials to do so. See id. at 34-35. Several weeks later, the agency
issued the appellant notice that it was imposing the previously proposed 30-day
suspension because she “made no noticeable effort to follow” the agency’s
written instruction to clean her workspace. Id. at 39. The appellant’s union filed
a grievance challenging the agency’s decision to impose the 30-day suspension,
which was ultimately referred to arbitration under the collective bargaining
agreement (CBA). Id. at 42-48.
¶4 Following an arbitration hearing, the arbitrator issued a written decision
denying the appellant’s grievance. Id. at 7-22. The arbitrator construed the
settlement at issue as a last chance settlement agreement (LCA) and found that it
3
was an enforceable contract. 2 Id. at 13-14, 20-22. The arbitrator further found
that the appellant breached the LCA when she did not comply with her
supervisor’s instruction to clean her workspace, that the appellant’s claim that the
agency breached the agreement by not providing her with a reasonable
accommodation pursuant to the agreement was not supported by substantial
evidence, and that she failed to provide medical documentation in support of her
claim of failure to accommodate disability discrimination. Id. at 21-22.
¶5 The appellant filed a request for review of the arbitrator’s decision, 3 RFR
File, Tab 1, in which she argues that the arbitrator erred in concluding that she
breached the terms of the LCA, RFR File, Tab 2 at 5. She further argues that the
arbitrator erred in finding the agreement valid and in addressing her disability
discrimination claim. Id. at 6, 12-14. The agency filed a response in opposition
to the request for review, raising the issue of the Board’s jurisdiction over the
appellant’s request, and arguing that the arbitrator correctly found that the
appellant breached the terms of the LCA and that his findings should be affirmed.
RFR File, Tab 9 at 5, 9-13.
2
An LCA is a type of settlement agreement in which a disciplinary or adverse action is
held in abeyance in exchange for a waiver of certain statutory rights. See, e.g., Link v.
Department of the Treasury, 51 F.3d 1577, 1583 (Fed. Cir. 1995); Ferby v. U.S. Postal
Service, 26 M.S.P.R. 451, 453 (1985). Should the employee not comply with the terms
of the agreement, the previously proposed action is imposed, and the employee’s right
to challenge the action is limited by the terms of the agreement. Ferby, 26 M.S.P.R.
at 453, 455-56.
3
The appellant originally filed her request for review with the Board’s Washington
Regional Office, which properly forwarded the request to the Clerk of the Board. RFR
File, Tab 5; see Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005) (a request
for review of an arbitrator’s decision filed with an administrative judge should be
forwarded to the full Board for review), aff’d, 213 F. App’x 993 (Fed. Cir. 2007).
4
ANALYSIS
The Board has jurisdiction over the appellant’s request for review of the
arbitrator’s decision.
¶6 The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
§ 7121(d) when the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant alleged in her grievance that the agency
discriminated against her in violation of 5 U.S.C. § 2302(b)(1) in connection with
the underlying action, and a final decision has been issued. Brookens v.
Department of Labor, 120 M.S.P.R. 678, ¶ 4 (2014); 5 C.F.R. § 1201.155(a)(1),
(c). To establish the Board’s jurisdiction over her request for review, an
appellant must have raised a discrimination claim under 5 U.S.C. § 2302(b)(1) in
connection with the underlying action with the arbitrator, and she may only raise
the discrimination claim with the Board for the first time in a request for review
if such allegations could not have been raised during the negotiated grievance
procedure. See Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013),
aff’d sub nom. Jones v. Merit Systems Protection Board, 589 F. App’x 972 (Fed.
Cir. 2014); 5 C.F.R. § 1201.155(c).
¶7 Here, each of these conditions is met. The appellant’s grievance challenges
a suspension for more than 14 days under 5 U.S.C. § 7512, a subject matter over
which the Board has jurisdiction, and the arbitrator has issued a final decision.
RFR File, Tab 8 at 7-22, 42-48. Further, the appellant raised a failure to
accommodate disability discrimination claim before the arbitrator. Id. at 12.
Consequently, we find that we have jurisdiction to review the
arbitrator’s decision. 4
4
The Board lacks jurisdiction over an action taken pursuant to an LCA in which the
appellant has clearly waived her Board appeal rights. Smith v. Department of the
Interior, 113 M.S.P.R. 592, ¶ 6 (2010). The LCA in this case is ambiguous inasmuch as
it does not contain a clear and unequivocal waiver of the appellant’s right to appeal her
suspension to the Board. RFR File, Tab 8 at 31. The LCA here provides the appellant
with the right to challenge her suspension consistent with the CBA, which specifically
5
The record does not establish that the arbitrator erred in interpreting civil service
law, rule, or regulation in finding that the appellant breached the agreement.
¶8 The standard of the Board’s review of an arbitrator’s decision is narrow;
such decisions are entitled to a greater degree of deference than initial decisions
of the Board’s administrative judges. Keller v. Department of Army,
113 M.S.P.R. 557, ¶ 6 (2010). Even if the Board disagrees with the arbitrator’s
decision, absent legal error, the Board cannot substitute its conclusions for those
of the arbitrator. Id. The Board will modify or set aside an arbitrator’s decision
only where the arbitrator has erred as a matter of law in interpreting civil service
law, rule, or regulation. Id.
¶9 We find that the arbitrator properly evaluated whether the appellant
established that she materially complied with the LCA and whether the agency
materially breached it, or acted in bad faith. In her request for review, the
appellant presents various factual challenges to the arbitrator’s finding that she
breached the agreement. RFR File, Tab 2 at 7-10. She does not, however,
demonstrate that the arbitrator made an error of civil service law or other legal
error in reaching this finding. Accordingly, we defer to the arbitrator’s findings
that the appellant breached the LCA when she did not respond to her supervisor’s
instruction to clean her workspace in a timely fashion and that the agency did not
materially breach the agreement. RFR File, Tab 8 at 20-22. Insofar as the
appellant argues that the LCA is unlawful, RFR File, Tab 2 at 5-6, she has
likewise not provided a basis for disturbing the arbitrator’s findings that the LCA
was enforceable and not against public policy, RFR File, Tab 8 at 20-22; see
Keller, 113 M.S.P.R. 557, ¶ 7 (the appellant’s disagreement with the arbitrator’s
legal conclusions did not evidence legal error).
references a right to Board appeals, either directly as an “otherwise appealable action”,
or indirectly, through a request to review an arbitrator’s decision.
6
We defer to the arbitrator’s conclusion that the appellant failed to establish her
claim of failure to accommodate disability discrimination.
¶10 In her request for review, the appellant also contends that the arbitrator
erred in addressing her failure to accommodate disability discrimination claim.
RFR File, Tab 2 at 11-19. The appellant primarily argues that the arbitrator erred
in applying the Americans with Disabilities Act Amendments Act of 2008
(ADAAA) to her claim and that she should have been provided with an
accommodation after she informed agency officials that she suffered from
Obsessive Compulsive Disorder (OCD). Id.
¶11 We disagree with both arguments. As a Federal employee, the appellant’s
disability discrimination claim arises under the Rehabilitation Act of 1973.
Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 8 (2010). However, the
Equal Employment Opportunity Commission (EEOC) regulations implementing
the Americans with Disabilities Act, as amended by the ADAAA, have been
incorporated by reference into the Rehabilitation Act, and the Board applies them
to determine whether there has been a Rehabilitation Act violation. Thome v.
Department of Homeland Security, 122 M.S.P.R. 315, ¶ 23 (2015); 29 C.F.R.
§ 1614.203(b).
¶12 To prove disability discrimination, the appellant first must establish that she
is an individual with a disability as that term is defined in the ADAAA and the
EEOC regulations. Thome, 122 M.S.P.R. 315, ¶ 24 (citing Doe v. Pension Benefit
Guaranty Corporation, 117 M.S.P.R. 579, ¶ 38 (2012)). The appellant may prove
that she has a disability by showing that she: (1) has a physical or mental
impairment that substantially limits one or more major life activities; (2) has a
record of such impairment; or (3) is regarded as having such an impairment.
42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An impairment is considered to
be a disability if it substantially limits an individual’s ability to perform a major
life activity as compared to most people in the general population. 29 C.F.R.
§ 1630.2(j)(1)(ii). Major life activities include, but are not limited to, caring for
7
oneself, performing manual tasks, eating, lifting, bending, concentrating,
communicating, and working; major life activities also include the operation of
major bodily functions. 42 U.S.C. § 10012(2).
¶13 In addressing the appellant’s disability discrimination claim, the arbitrator
noted that included in the elements of a claim of disability discrimination for
which accommodation is required is a “record of impairment” which normally
comes from medical documentation. RFR File, Tab 8 at 21. The arbitrator found
that the appellant failed to provide the agency with such documentation and
did not give any reasonable justification for failing to do so. Id.
¶14 The arbitrator did not address whether the appellant met her burden of
proving that she is disabled by showing that she has a physical or mental
impairment that substantially limits one or more major life activities, or by
showing that she is regarded as having such an impairment. 42 U.S.C.
§ 12102(1); 29 C.F.R. § 1630.2(g)(1). He nonetheless properly evaluated whether
the appellant produced evidence of her alleged mental impairment, and we defer
to the arbitrator’s factual finding that the appellant failed to provide any evidence
that she was disabled. RFR File, Tab 8 at 21. Although the appellant contends
that EEOC regulations state that a mental impairment such as OCD imposes a
substantial limitation on a major life activity, it is her burden to show that she
suffers from such an impairment in the first place. Further, the appellant does not
allege in her request for review that the agency regarded her as being disabled at
the time of the events at issue in this case. Thus, we defer to the arbitrator’s
conclusions regarding the appellant’s failure to accommodate disability
discrimination claim. Cf. FitzGerald v. Department of Homeland Security,
107 M.S.P.R. 666, ¶ 18 (2008) (holding that the Board may make its own findings
regarding the appellant’s claim of discrimination because the arbitrator “did not
cite any legal standard when he evaluated the evidence” and his analysis did not
follow the proper legal framework).
8
The arbitrator may have erred in not reaching the penalty issue;
nevertheless, we find that a 30-day suspension is a reasonable penalty
for the sustained misconduct.
¶15 To the extent that the appellant is arguing that we should set aside the
arbitrator’s decision because he did not independently consider the
appropriateness of the penalty, we disagree. In any event, assuming that the
arbitrator’s decision to not assess whether the penalty was warranted constituted
legal error, the Board will correct any such error by independently and
responsibly balancing the relevant factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), to determine if the imposed
penalty was reasonable. Douglas, 5 M.S.P.R. at 308.
¶16 First, we note that the arbitrator, in his decision, determined that the
appellant did not clean her cubicle after being instructed to do so, which in turn
breached the LCA. We find that the appellant’s breach of the LCA by failing to
follow supervisory instructions to clean up her workspace is not conducive to a
stable working atmosphere and is therefore serious and unacceptable. See
Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 407-08 (an employee does not
have the unfettered right to disregard an order merely because there is substantial
reason to believe that the order is not proper; he must first comply with the order
and then register his complaint or grievance, except in certain limited
circumstances where obedience would place the employee in a clearly dangerous
situation, or when complying with the order would cause him irreparable harm),
aff’d, 73 F.3d 380 (Fed. Cir. 1995) (Table). Next, the appellant’s 38 years as a
Federal employee, while significant, does not warrant mitigating the penalty.
RFR, Tab 8 at 27.
¶17 Also, the fact that the appellant was under a LCA that included a provision
placing her on probation indicates that she was well aware that any further similar
misconduct would be grounds for discipline. In addition, the agency noted in the
proposed suspension letter that the appellant’s failure to follow instructions was
9
repeated, inasmuch as the “problems with [her] workspace have been
long-standing,” and created a potentially unhealthy or dangerous situation for
others, resulting in “odors as well as the attraction of insects and other pests.” Id.
The agency determined that all these factors negatively affected her rehabilitation
potential. See id.
¶18 In making our penalty determination, we did not consider, as did the agency
in its notice of proposed suspension, that the appellant had at least two prior
disciplinary records because we could not ascertain, based on the record before
us, if the agency’s consideration of these previous disciplinary actions comported
with the requirements set forth in Bolling v. Department of the Air Force,
9 M.S.P.R. 335, 339-40 (1981) (the Board’s review of a prior disciplinary action
is limited to determining whether that action is clearly erroneous, if the employee
was informed of the action in writing, the action is a matter of record, and the
employee was permitted to dispute the charges before a higher level of authority
than the one that imposed the discipline). However, our review of the record
makes clear that the agency previously advised the appellant that her engaging in
this type of behavior would not be tolerated and so she was on clear notice that
the agency would not condone such misconduct in the future.
¶19 The appellant, moreover, argued that the agency failed to take into account
her medical diagnosis of OCD as a potential mitigating factor. Evidence that an
employee’s medical condition “played a part in the charged conduct is ordinarily
entitled to considerable weight as a significant mitigating factor.” Roseman v.
Department of the Treasury, 76 M.S.P.R. 334, 345 (1997); see, e.g., Robb v.
Department of Defense, 77 M.S.P.R. 130, 137 (1997). Even where the condition
does not rise to the level of a disability, if the agency knew about it before taking
the action at issue, we may consider the condition in determining the appropriate
penalty. Roseman, 76 M.S.P.R. at 345. Here, it appears that the agency knew
about the appellant’s condition because the agency, in a provision of the LCA,
acknowledges that she claimed to be suffering from OCD. RFR File, Tab 8
10
at 30-32. Nevertheless, the appellant failed to state whether there were any
treatments or therapies available to ameliorate her medical condition, whether she
availed herself of those treatments or therapies, or whether her condition and the
side effects of any prescription drug she might have been taking for her condition
played a part in the charged conduct. Hamilton v. U.S. Postal Service,
84 M.S.P.R. 635, ¶ 19 (1999) (finding that seeking treatment for a medical
condition that played a part in the charged misconduct indicates a rehabilitative
potential). Therefore, although we reviewed the appellant’s arguments about her
medical condition, we find that they are insufficient to mitigate the chosen
penalty. See Archerda v. Department of Defense, 121 M.S.P.R. 314, 321-29
(2014) (finding that the chosen penalty was warranted where the agency proved
that the appellant failed to follow instructions; although the appellant showed that
he suffered from Post-Traumatic Stress Disorder, he did not provide sufficient
documentation about his medical condition and did not establish that he was
impaired by that condition).
¶20 Accordingly, after considering the relevant factors under Douglas, we find
that a 30-day suspension is a reasonable penalty for the sustained misconduct.
Based on the foregoing, we AFFIRM the arbitrator’s decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
12
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
