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In
re
Federal
Bureau of Prisons
Federal
Correctional Institution
Englewood,
Colorado
and
American
Federation of Government Employees
Local
709
120
LA (BNA) 1755
FMCS
Case No. 04/53975
March
17, 2005
Jerry B. Sellman, Arbitrator,
selected by parties through procedures of the Federal Mediation and
Conciliation Service
Nature of the Case
Three days suspension; just and sufficient cause for discipline;
failure to consider disabling condition of sleep apnea as a mitigating factor.
This proceeding arises pursuant to
the Grievance provisions contained in the Master Agreement (hereinafter
referred to as the “Agreement”) between the Federal Bureau of Prisons
(hereinafter referred to as the “Employer”) and the Council of Prison Locals,
AFGE. This dispute concerns events that involve a member of Local 709 of the
American Federation of Government Employees (hereinafter the “Union”). The
issues presented arise pursuant to a grievance filed by F__ (hereinafter the
“Grievant”) on February 27, 2004 alleging that the Employer did not have just
and sufficient cause to issue a three day suspension for failure to follow
proper leave request procedures and occurrences which it characterized as
absences without leave (AWOL).
The Grievant argued that her absence from the work place was due to a
disability and the Employer either failed to consider these circumstances when
assessing her absences from work or failed to provide an accommodation for her
disability. The Employer maintains that it had just and sufficient cause to
discipline the Grievant by issuing a three day suspension and the evidence did
not support any disability or need for an accommodation at the time the alleged
offenses occurred.
At the beginning of the hearing, the Parties
stipulated that the matter was properly before the Arbitrator for resolution.
The Arbitrator finds the issues in this proceeding to be as follows:
Did the Employer have just and
sufficient cause to issue a three day suspension to the Grievant for absence
without leave and failure to follow proper leave request procedures?
Did the Grievant have a
disabling condition which affected her ability to report to work on time and
which was ignored by the Employer in its determination that a violation of the
work rules occurred?
The relevant contractual
provisions are as follows:
Master Agreement
Article 5 Rights of the
Employer
Section a. Subject to
Section b. of this article, nothing in this section shall affect the authority
of any Management official of the Agency, in accordance with 5 USC, Section
7106:
1. to determine the
mission, budget, organization, number of employees, and internal security
practices of the Agency; and
2. in accordance with
applicable laws:
a. to hire, assign,
direct, layoff, and retain employees in the Agency, or to suspend, remove,
reduce in grade or pay, or take other disciplinary action against such
employees;
b. to assign work, to
make determinations with respect to contracting out, and to determine the
personnel by which Agency operations shall be conducted;
c. with respect to
filling positions, to make selections for appointment from:
(1) among properly ranked
and certified candidates for promotion; or
(2) any other appropriate
source; and
d. to take whatever
actions may be necessary to carry out the Agency mission during
emergencies.
Article 6 Rights of the
Employee
Section b. The parties
agree that there will be no restraint, harassment, intimidation, reprisal, or
any coercion against any employee in the exercise of any employee rights
provided for in this Agreement and any other applicable laws, rules, and
regulations, including the right:
1. to bring any matters
of personal concern to the attention of any Management official, any other
officials of the executive branch of government, the Congress, and any other
authorities. The parties endorse the concept that matters of personal concern
should be addressed at the lowest possible level; however, this does not
preclude the employee from exercising the above-stated rights;
2. to be treated fairly
and equitably in all aspects of personnel management;
3. to be free from
discrimination based on their political affiliation, race, color, religion,
national origin, sex, marital status, age, handicapping condition, Union
membership, or Union activity;
4. to direct and pursue
their private lives without interference by the Employer or the Union, except
in situations where there is a nexus between the employee's conduct and their
position. This does not preclude a representative of the Employer or the Union
from contacting bargaining unit staff for legitimate work-related matters;
5. to become or remain a
member of a labor organization; and
6. to have all provisions
of the Collective Bargaining Agreement adhered to.
Article 30 Disciplinary
and Adverse Actions
Section a. The provisions
of this article apply to disciplinary and adverse actions which will be taken
only for just and sufficient cause and to promote the efficiency of the
service, and nexus will apply. * *
*
Section c. The parties
endorse the concept of progressive discipline designed primarily to correct and
improve employee behavior, except that the parties recognize that there are
offenses so egregious as to warrant severe sanctions for the first offense up
to and including removal.
Article 36 Human Resource
Management
The Union and the
Employer endorse the philosophy that people are the most valuable resource of
the Federal Bureau of Prisons. We believe that every reasonable consideration
must be made by the Union and the Employer to fulfill the mission of the
organization.
This will be achieved in
a manner that fosters good communication among all staff, emphasizing concern
and sensitivity in working relationships. Respect for the individual will be
foremost, whether in the daily routine, or during extraordinary conditions. In
a spirit of mutual cooperation, the Union and the Employer commit to these
principles.
Article 38 Qualified
Handicapped Employees
The Employer agrees to
abide by all laws, rules, and regulations regarding the employment of
individuals with disabilities. In this regard, the Employer will reasonably
accommodate qualified employees with disabilities.
Statement of the Case and
Position of the Parties
The Grievant is an Industrial
Specialist working for UNICOR at the Federal Correctional Institution (FCI) in
Englewood, Colorado. UNICOR uses inmate labor to manufacture various prototypes
in the areas of electronics, furniture, graphics and services, metals and fleet
management, and textiles. The Grievant works in the textile section and
supervises inmates as a part of her responsibilities. The Grievant, currently a
GS-11 grade employee, has been an employee of the Federal Government for
fourteen (14) years. Twelve (12) of those years, she has worked for the Bureau of
Prisons. The Grievant has never been disciplined by the Employer.
On August 28, 2003, the Grievant
was to report to work at 7:00 a.m., which was the start of her regular shift.
She did not show up for work at that time. It was not until 10:30 a.m. that she
called her supervisor. She indicated she was sick and her arms were numb. She
requested emergency annual leave and indicated she would be back to work by the
next day. Her supervisor approved the emergency annual leave from 10:30 a.m.
until 4:00 p.m., but disallowed it for the time period from 7:00 a.m. until
10:30 a.m. She considered the employee absent without leave (AWOL) for that
period of time.1
On August 28, 2003, the
Grievant's supervisor sent a memorandum to the Product Support Center Manager
describing the incident with the Grievant. She indicated that the Grievant
claimed that she was sick and that her arms were numb when she called in at
10:30 a.m. and that she was in too much pain to report to work that day. The
Memo indicated that the Grievant's supervisor informed her that it was company
policy to call in prior to the beginning of the shift if she was not able to
report to duty on time. Because she had not, she had placed the Grievant on
AWOL.
On September 18, 2003, the
Grievant did not report to work at her regularly scheduled time at 7:00 a.m.
She contacted her supervisor at 9:22 a.m. and indicated that she would not be
in until 10:30 a.m. The Grievant indicated that she was unable to get to work
on time because she had back problems. When the Grievant returned to work, she
filled out a request for leave and asked for compensatory time off from 7:00
a.m. until 10:30 a.m. She was given compensatory time off from the time that
she called in, but was considered AWOL from 7:00 a.m. until 9:22 a.m., the time
she called in.
On September 18, 2003, the
Grievant's supervisor sent a memorandum to the Product Support Center Manager
indicating that the Grievant was again placed on AWOL status. The Grievant's
supervisor indicated that when the Grievant called in at 9:22 a.m. she
explained that her “back was frozen.” The Grievant had apparently been aware of
the fact that she had been placed on AWOL previously for she had asked the
supervisor not to place her on AWOL status for failing to call in before the
beginning of the shift.
On September 29, 2003 the
Grievant was interviewed about the AWOL and failure to report occurrences.
On October 2, 2003, the Grievant
was to report for duty at 7:00 a.m. but did not show up. At 7:45 a.m., she
notified her supervisor that she would be in later and her supervisor charged
her forty-five (45) minutes of absence without leave on her time and attendance
record. The Grievant indicated that when she spoke to her supervisor, she
advised her that she was under a doctor's care and that she was on a breathing
machine.
On October 2, 2003 the
Grievant's Supervisor sent a Memo to the Product Support Center Manager
indicating that the Grievant was again placed on AWOL for the 45 minute
period.
On October 21, 2003, the
Grievant was to report to work at 8:00 a.m. but did not show up. She left a
message for her supervisor at 11:26 a.m. and indicated that she had back pain
and would not be in for the rest of the day. Because she did not contact her
supervisor until almost 11:30 a.m., she was charged three and one-half (31/2)
hours of AWOL on her time and attendance record for that day.
On October 22, 2003, the
Grievant's supervisor sent a memorandum to the Product Support Center Manager
concerning the Grievant's absence from work. The supervisor indicated that
another employee had received a call from the Grievant at 11:27 a.m. The
Grievant stated to her that she was having back pain and would not be in for
the rest of the day.
The Grievant had previously
received counseling by her supervisor on November 7, 2001 regarding the
procedures that needed to be followed when requesting leave. She was informed
at that time that it was not permitted for her to call in for annual leave or
comp time leave and just leave a message. The approval of any annual leave or
comp time leave had to occur prior to the leave being taken. The Grievant
admitted that the previous counseling session had taken place, but objected to
any reference to the meeting because it contained inaccurate information and
had occurred more than two years ago.
On December 2, 2003, the Employer forwarded a letter to the Grievant
proposing that she be suspended for a period of three (3) calendar days for
absent without leave and failure to follow proper leave request procedures. This conduct constituted a violation of Program Statement
3420.09, Standards of Employee Conduct, dated February 5, 1999. The Grievant
was aware of the Program Statement because she had signed a receipt
acknowledging receipt of it on March 29, 1999.
On December 22, 2003, a
telephonic hearing was conducted. The Deciding Official on behalf of the
Employer was in Washington, D.C. and the Grievant and her representatives were
in Denver, Colorado for the hearing. In advance of the telephonic oral
exchanges, the Grievant submitted twenty-two (22) pages of documentation to
support her position.
On January 18, 2004, the
Deciding Official determined that the charges contained in the disciplinary
action file were supported by the evidence and informed the Grievant of the
Employer's decision to suspend her for three (3) calendar days effective
January 27 through January 29, 2004, inclusive. A grievance was subsequently
filed.
Position of the Employer
The Employer maintains that just and sufficient cause exists for the
three day suspension issued to the Grievant. The facts are undisputed that the
Grievant did not show up for work on several different days at the regularly
scheduled time. On each of the occasions the Grievant called in subsequent to
the start of her shift and requested annual leave. The rules and regulations of
the agency, of which the Grievant was aware, clearly requires that any requests
for annual leave must be requested prior to taking it. Even though the Grievant
had been counseled on a couple of occasions concerning the necessity to follow
this procedure, she nonetheless failed to follow the proper leave request
procedures. As a consequence, she was absent without leave on multiple days and
the Employer was justified in trying to correct that unacceptable behavior by
suspending her for three days.
The Employer maintained that it
did not engage in any disability discrimination in the manner in which the
Grievant's absences were handled. The Grievant argued at the hearing that she
suffered from a chronic disability, sleep apnea, and the agency either failed
to provide an accommodation for her condition or failed to consider her
condition as a cause for her absences from work.
The Employer points out that the
Grievant did not bring her sleep apnea condition to the attention of the
Employer prior to the AWOL events. She indicated in three instances that her
absences were due to back pain or being sick. In her oral response to the
Deciding Official on December 22, 2003, the Grievant stated that she told her
supervisor about her medical condition, “at least I thought I had told her the
best way that I knew how.” Information contained in an October 22, 2003
memorandum from the Grievant's supervisor to her and two doctor's notes dated
October 2 and October 10, 2003 were all provided after the four (4) instances
of AWOL had already occurred. Although there was no evidence that the Grievant
asked for an accommodation when she supplied these two doctor notes, the
Grievant's supervisor explained to her the procedures that needed to be
followed in order to adjust her hours to accommodate what would be determined
to be a disability. Since the Grievant's work hours had been negotiated for a
compressed work schedule, the Union would have to be involved in re-negotiating
any adjustments. No attempt was ever made by the Union or the Grievant to change
her hours.
In addition to the above
evidence, the Employer argues that the notes supplied by the Grievant's doctors
did not provide any indication as to whether, or to what extent, her sleep
apnea imposed a substantial limitation upon any major life activity. While
obviously her employment is a major life activity, there was no demonstration
that the sleep apnea itself caused the AWOL occurrences. It argues that the
Grievant simply did not establish that she was a qualified individual with a
disability entitled to protection under the Rehabilitation Act during the time
that she was AWOL on August 28, September 28, October 2 and October 21,
2003.
The Employer also points out that reasons given by the Grievant on her
Request for Leave or Approved Absence form were not consistent with a condition
of sleep apnea. In the remarks section of those forms, the Grievant referred to
her absence due to emergency leave and back pain, not sleep apnea. On the August 28, 2003 absence, the Grievant indicated to
her supervisor that she did not show up at work because she was sick and had
numb arms. On the September 18 absence, the Grievant told her supervisor that
her back was frozen. On the October 21 absence, she indicated that she was
having back pain. The Employer argues that to state that each of the instances
were related to her sleep apnea when she first told her supervisor something
different, calls the Grievant's credibility into question.
The Employer argues that at the
time the three day suspension proposal letter was issued it did not have
sufficient information to conclude that the Grievant was a person with a
disability entitled to a reasonable accommodation. It indicates that knowledge
of a medical condition alone does not meet the criteria to demonstrate that
there is a disability, which is entitled to a reasonable accommodation. It also
points out that when the Employer offered a way to adjust her work hours, she did
nothing about it.
The Employer maintains that the
three day suspension was justified in this instance. In a correctional
environment, when inmate workers must be supervised, it is not acceptable to
not report to work or call in prior to the start of the work day. Such conduct
impacts the orderly running of an institution. The Deciding Officer considered
the Grievant's disciplinary past, her oral reply and documents submitted as
part of her reply to the charges, and took into consideration the impact on the
agency of these repeated absences. Based upon all of this, the three day
suspension was appropriate.
Position of the Union
The Union argues that the
Employer did not have just and sufficient cause to discipline the Grievant, let
alone issue a three day suspension. It argues that the Grievant did not have advance warning of possible
disciplinary consequences of her conduct. While she admitted that she
was informed that she needed to request annual leave prior to taking it, the
circumstances of her case indicate that the effects of her sleep apnea caused
the problem, not a willful determination to avoid reporting to work on
time.
The Union further argues that
the Employer did not undertake a thorough investigation sufficient to find the
basis upon which the Grievant was unable to request an annual leave prior to
taking it. It indicates that the leave slips of the Grievant were altered after
she submitted them. While the annual leave was granted by her supervisor, the
Grievant did not see the AWOL designations until some time after the event took
place and the disciplinary proceedings were instituted against her. 2
The Union claims that the Deciding Official failed to consider sleep
apnea as a serious medical condition and did not consider the evidence
concerning sleep apnea that was submitted to him prior to the decision to issue
a three day suspension. It argues that sleep apnea qualifies as a disability
and it was error for the Deciding Official not to take this into consideration.
The Grievant's doctor wrote in an October 10, 2003 doctor's slip that the
Grievant's condition was likely to cause her to oversleep.
The Union further argues that
the Employer, by failing to consider sleep apnea as a disability, failed to
accommodate the Grievant's condition and therefore discriminated against her by
disciplining her rather than giving her an accommodation for that disability.
Because the Grievant was incapacitated by her illness (sleep apnea), there was
no justification for disciplinary action against her.
Because the Employer failed to
take the time to recognize the Grievant's disability, as it related to her
inability to report to work on time on a few occasions, it was acting in bad
faith in taking disciplinary action against her. As such, the Grievant requests
that the three day suspension be rescinded and expunged, that the Grievant be
made whole as to any lost wages or differentials caused by the three day
suspension, and that reasonable attorney fees be granted to the Union in the interest
of justice.
In conclusion, the Union argues
that disciplining an employee for a medical condition is not only patently
unfair, it is also a waste of a good resource: a productive employee.
Discussion and Opinion
The undisputed evidence in this proceeding demonstrates that the
Grievant did not report for work nor call into work prior to the start of her
shift on four (4) occasions in 2003. The issue before the Arbitrator is whether
there existed just and sufficient cause for the Employer to discipline the
Employee for those absences; whether the three day suspension was reasonable in
the correctional environment; and whether the Employer discriminated against
the Grievant by falling to recognize a disabling condition, which was alleged to
have affected her ability to call in or report to work on time.
The burden of proof in
demonstrating just and reasonable cause for discipline rests upon the Employer.
In cases of discipline, the Arbitrator has held on many occasions that the
burden of proof is met only upon a demonstration of clear and convincing
evidence. To that degree, it is incumbent upon the Employer in this case, at a
minimum, to demonstrate through clear and convincing evidence that the Grievant
committed the infractions for which she is charged, and that the discipline
meted out by the Employer was for just and sufficient cause. In this case the
Employer must also demonstrate, pursuant to Article 30 of the Federal Bureau of
Prisons and Council Prisons Locals, Master Agreement, that the objective of
discipline is to be corrective, not punitive.
In order to establish that the
“just cause” standard of review has been followed, seven tests must be applied.
Those commonly accepted tests are as follows:
1. The employee must have
been given advance warning of the possible or probable disciplinary
consequences of his or her conduct.
2. The rule or order the
employee violated must be reasonably related to the efficient and safe
operation of the business or agency.
3. They must have made an
effort to discover whether the employee did, in fact, violate the rule.
4. The employer's
investigation must have been conducted fairly and objectively.
5. There must be
substantial evidence of the employee's guilt.
6. The employer must have
applied its rules, orders, and penalties without wrongful discrimination.
7. The penalty must be
reasonably related to the seriousness of the employee's offense and record of
past service.
See, Just Cause The Seven
Steps, Adolph M. Koven, Susan L. Smith, 2nd Edition Rev. by Donald F.
Farwell, The Bureau of National Affairs, December 1998.
Just and sufficient cause, in
the Arbitrator's opinion, is the same as the just cause standard of discipline
contained in numerous labor agreements. There are a number of arbitration
decisions that have developed well-established and commonly accepted tests for
determining the basis for just cause. Some use seven steps and some use twelve
steps. For purposes of this decision the Arbitrator finds the above key
components instructive.
In addition to determining just
cause, the Arbitrator must also consider mitigating circumstances that not only
impact the decision to discipline, but also the degree of discipline in each
individual case. In the Federal sector, these mitigating factors have often
been referred to as the “Douglas Factors.” Curtis Douglas, et al. v.
Veteran's Administration, U.S. Merit Systems Protection Board, MSPR 280
(1981). Douglas technically applies to adverse actions of fourteen days and
over, but this Arbitrator, as others, consider these factors in determining
whether the action of the Employer is appropriate.
The twelve factors considered in
the Douglas case are as follows:
1. The nature and
seriousness of the offense, and its relation to the employee's duties,
position, and responsibilities, including whether the offense was intentional
or technical or inadvertent, or was committed maliciously or for gain, or was
frequently repeated;
2. The employee's job level
and type of employment, including supervisory or fiduciary role, contacts with
the public, and prominence of the position;
3. The employee's past
disciplinary record;
4. The employee's past work
record, including length of service, performance on the job, ability to get
along with fellow workers, and dependability;
5. The effect of the
offense upon the employee's ability to perform at a satisfactory level and its
effect upon the supervisor's confidence in the employee's ability to perform
assigned duties;
6. Consistency of the
penalty with those imposed upon other employees for the same or similar
offenses;
7. Consistency of the
penalty with applicable agency table of penalties, which are not to be applied
mechanically so that other factors are ignored;
8. The notoriety of the
offense or its impact upon the reputation of the agency;
9. The clarity with which
the employee was on notice of any rules that were violated in committing the
offense, or had been warned about the conduct in question;
10. Potential for
employee's rehabilitation;
11. Mitigating
circumstances surrounding the offense such as unusual job tensions, personality
problems, mental impairment, harassment, or bad faith, malice or provocation on
the part of others involved in the matter;
12. The adequacy and
effectiveness of alternative sanctions to deter such conduct in the future by
the employees or others.
Based upon an examination of the
facts in this proceeding in light of the above criteria, it is the Arbitrator's
opinion that the Employer had just and sufficient cause to discipline the
Grievant, but the degree of discipline (three day suspension) was unjustified.
The evidence in this proceeding demonstrates that the Grievant is a
good employee. She has been working for the Federal Bureau of Prisons for more
than twelve (12) years. Good employees, however, often engage in acts of
misjudgment, which subject them to disciplinary actions by the Employer. That
is unfortunately what occurred in this instance.
Pursuant to Article 30 of the
Agreement among the parties, the Employer has the authority to take
disciplinary action for just and sufficient cause in order to promote the
efficiency of the service. Under Article 30, Section (c), such action must take
place under the concept of progressive discipline designed primarily to correct
and improve employee behavior, although the parties recognize that there are offenses
so egregious as to warrant severe sanctions for the first offense up to and
including removal. The latter is certainly inapplicable here.
The basis upon which the
Arbitrator has found the Employer to have just and sufficient cause for
bringing a disciplinary action against the Grievant is set forth
hereinbelow.
The Arbitrator finds that the
Grievant did have advance warning of possible or probable disciplinary
consequences of her conduct. First, without examining specific conversations
between the Grievant and the Employer, it is well known in the industrial
community, let alone the entire employment community as a whole, that failure
to report to work on time without the permission of the employer is a breach of
the employment relationship.
Under Article 5 of the Parties'
Agreement herein, the Employer has retained the right to hire, assign and
direct employees hired by it. When the Employer assigns an employee to report
to work at the designated time, that employee's failure to do so constitutes a
direct violation of the Agreement. In addition to the Agreement itself, the
Employer has promulgated rules and regulations setting forth procedures that
need to be followed in order for an employee to obtain the employer's approval
for absence from work.
In this instance, the employee
was disciplined for absence without leave and for failure to follow proper
leave request procedures under Program Statement 3420.09, Standards of Employee
Conduct, dated February 5, 1999. Under these specific provisions, it must be
concluded that the Grievant did, in general, have knowledge that the failure to
report to work on time would have possible or probable disciplinary
consequences.
In addition to the above general
provisions, and as it relates to the specific case herein, the Grievant signed
affidavits shortly after each of the alleged AWOL instances, indicating that
her supervisor had made her aware that she must request annual leave prior to
taking it. The supervisor also advised her that she would not deny leave in the
event of an emergency.
While the Grievant indicated
that she was “required” to sign the affidavits, it is clear to the Arbitrator
from the evidence that she was informed either at the time she called in, or
shortly thereafter, that a request for leave had to be made prior to the time
that it was taken. Based upon both the general and the specific nature of the
evidence herein, the Arbitrator must conclude that the Grievant was aware of
possible and/or probable disciplinary consequences of not reporting to work on
time.
It is beyond question that the requirement of an employee to report to
work at the designated assigned time is reasonably related to the efficient and
safe operation of the business. In this particular instance, the business of
the Employer is the running of a Federal prison.
The Grievant was responsible for the supervision of inmates and her
absence from the work force necessitated an immediate reassignment of duties by
the Grievant's supervisor. Without advance notice, the ability of the
Grievant's supervisor to quickly and efficiently reassign those job duties is
significantly hampered. If employees decided to show up whenever they wanted
to, it would not only hamper the efficient operations of the Employer, it would
have the effect of ultimately shutting operations down.
In the Federal corrections
system, this would be disastrous. The Grievant testified that she was not
assigned to a “critical post”, but any employee that has supervisory duties
leaves the employer in an unacceptable position, if workers (in this case
inmates) are left without a supervisor without notice.
In this proceeding, there is no
need to determine whether or not an effort was made to discover whether the
employee did, in fact, violate the rule. It is clear that the Grievant did not
report to work on time. The primary question in that regard is whether there
was compelling reasons to excuse her unpermitted absences.
The Union contends that the
investigation of the offenses in this case was not conducted fairly and
objectively. The Union believes that the Employer failed to either investigate
or understand the nature of the effect sleep apnea has on an individual. It
believes that if the Employer had listened to the comments made by the Grievant
and read the information provided by the Grievant concerning sleep apnea, it
would have determined that her absences were caused as a direct result of the
sleep apnea and not because she primarily chose not to report to work on time.
In addition, the Union contended that the Grievant's supervisor did not inform
her of the charge of AWOL until disciplinary proceedings were commenced against
her.
The evidence in this proceeding
demonstrates that the Employer did consider the information supplied by the
Grievant. The fact that the Employer did not conclude that the absences were
due to sleep apnea does not mean that it failed to read the reports and consider
the arguments concerning sleep apnea at the time that it decided to take
disciplinary action and suspend her for three days.
While it may be true that the
Grievant did not know that she was charged with three and one-half hours of
AWOL status on August 28th, she had to have known that her absence of two and
one-half hours on September 18th was being considered absence without leave by
the supervisor. On September 18, 2003, the Grievant's supervisor prepared a
memorandum to the Product Support Center Manager indicating that the Grievant
told her on the day in question that she did not want to be placed on absence
without leave status. She obviously knew that being considered AWOL was a
possibility at that time.
On September 29, 2003, the
Grievant signed an affidavit acknowledging her absences on August 28th and
September 18th and acknowledging that her supervisor informed her that it was
the policy of the Bureau of Prisons to request leave before leave is taken.
Even if the Grievant were unaware that she was considered absent without leave
on the 28th, she had to have known that on September 18th, October 2nd and
October 21st. With all of these factors considered, it must be determined that
a fair investigation did take place to accumulate all of the evidence necessary
to make a decision concerning the Grievant's absence from the workplace without
leave.
Before just and sufficient cause
for disciplinary action is found, it must be determined that there exists
substantial evidence of the employee's guilt. There is no question in this case
that the employee was absent without leave of the Employer on the dates in
question. There is also no question that she was informed and/or should have
known that absences without leave would subject her to discipline.
The Grievant was clearly AWOL until she reported to work at her
designated time. The procedures defined by the
Employer concerning the taking of permitted leave (annual, emergency, sick,
etc.) required that requests be made prior to the happening of an event. In
this instance, there is substantial evidence of the offenses charged.
There is no evidence in this case to demonstrate that the Employer
applied its rules, orders, and/or penalties in a discriminatory manner. The Union argued that the Employer discriminated against
the Grievant by not giving her an accommodation for her sleep apnea. Because of
her chronic condition, she overslept. By not considering this disabling condition,
the Union argues that the applicable rules in this case were applied in a
discriminatory manner. The Arbitrator does not believe that to be the case for
the reasons discussed below.
The final determination in any
disciplinary case is determined whether or not the penalty was reasonably
related to the seriousness of the employee's offense and record of past
service. Here the Employer believes that the discipline of suspension for four
specific violations within a three month period of time does warrant
disciplinary action. The Arbitrator does not agree. Based upon the Grievant's
past employment record and the entire record taken as a whole, the Arbitrator
believes a three day suspension is inappropriate, particularly when considering
a number of the factors contained in the Douglas case, supra.
Before considering what should be the proper discipline herein, the
impact of any disability of the Grievant on her work performance needs to be
discussed. The evidence demonstrates to the Arbitrator that the Grievant is
suffering from sleep apnea. This was determined not only by a sleep apnea
clinic she attended, but also by her attending physician who prescribed the
proper medication and apparatus to treat the illness.
The Arbitrator sympathizes with
the Grievant and recognizes her plight, but the disabling condition must be
shown to have a direct impact on her inability to comply with the Employer's
work rules. What is
missing in this case is the direct nexus between the illness of sleep apnea and
the Grievant's inability to report to work at the designated start time. The
Arbitrator cannot find this nexus from the evidence presented.
Obstructive Sleep Apnea Syndrome (OSAS) is defined as a breathing
disorder during sleep caused by an obstructed airway.3 Respironics reports
that:
“The majority of OSAS sufferers remain undiagnosed.
Clinical indications include snoring, witnessed breathing pauses, daytime
sleepiness, gasping or choking at night, restless sleep, difficulty
concentrating, nocturnal angina, depression, obesity, large neck size, morning
headaches and nasal congestion, frequent restroom visits at night, and sexual
dysfunction.”
The above information is
consistent with other information provided by the Grievant at the hearing. None of the evidence indicates
that clinical indications include failing to wake up or oversleeping.
The Arbitrator is not suggesting that failing to wake up on time or
oversleeping 4 could not be an indication, but none of the literature and
reports provided indicated that it was.
In addition to the information
provided at the hearing concerning sleep apnea, the Arbitrator focused on the
reasons given by the Grievant for her inability to report to work on time.
The first two instances of being
absent from the workplace without leave and failing to request leave prior to
the absence, the Grievant gave reasons for not reporting on time as back pain
problems. On October 2nd, she indicated that she was not at work because of
sleep apnea, but the October 21st absence again was apparently related to back
pain. It was early September 2003 when she received word that she had sleep
apnea and it was on October 10 that her doctor indicated that she was being
treated for sleep apnea.
Why did the Grievant give
reasons of back pain on the 21st of October? Why did she indicate that some of
the instances were due to the medication she was taking for her back pain? Why
did she indicate, in her oral reply to the charges, that all of the occurrences
were due to her sleep apnea condition? These inconsistent positions reflect
upon the Grievant's credibility.
In most cases where sleep apnea
was determined to have an impact on the employee's work and the Employer was
required to make an accommodation, the individual was falling asleep during the
day inexplicably. See, e.g., Miller v. Centennial State Bank, 472 N.W.2d
349 (Minn. App. 1991).
This case, as well as others,
deals with the inability of an individual to perform the duties of their work
as a result of a disability. In this case, there is no evidence to demonstrate
that the illness of sleep apnea in general, nor the illness of sleep apnea
related to the Grievant, prevented her from setting an alarm clock and waking
up at a designated hour.
The lack of this nexus combined
with the excuses given for failure to report to work on time and the frequency
at which they existed compelled the Arbitrator to conclude that the Grievant's
absence was not related to circumstances beyond her control.
The Grievant alleged that the Employer discriminated against her
because she was disciplined as a result of conduct that resulted from her sleep
apnea disability. The facts in this proceeding do not support such an
allegation.
The Grievant failed to establish
a prima facie case of discrimination because the record reflects that she did
not inform the agency with sufficient medical evidence nor was the Employer
otherwise made aware of her alleged disability prior to the issuance of the
notice of proposed suspension in December, 2003.
In other words, on each of the
four instances involved, the Employer did not have sufficient knowledge of any
physical disability at the time the charge of AWOL and failure to properly
follow report procedures was lodged against the Grievant. As discussed above,
the Employer cannot be found to have discriminated in the way that they handled
the Grievant not reporting to work on time or calling in on time on the four
occasions in 2003. Rather, the Grievant must be held accountable for her
actions.
While the Arbitrator finds that
the Grievant did engage in the conduct that subjected her to discipline, he
does not agree that a three day suspension is appropriate under the
circumstances for two reasons.
First, the Grievant does have an
exemplary employment record and the Arbitrator does not believe that her record
was properly taken into consideration.
Secondly, the Arbitrator does
not feel that the Grievant was adequately warned that she could be subjected to
a lengthy suspension, if she continued to fail to report on time and not follow
the proper leave request procedure.
As the Arbitrator indicated
earlier, employees are charged with knowledge that failure to report to work
will lead to disciplinary action, but it is incumbent upon an employer to
specifically warn the employee of the nature of the discipline that will be
used as a corrective measure.
The concept of progressive
discipline as set forth in Article 30 of the parties' Agreement requires this.
The Grievant's supervisor could easily have told her that her failure to report
to work on time without calling in before her shift would lead to a suspension
the next time it occurred. A warning letter could have been given to her. In
this case there was no verbal or written warning of the consequences of her
actions. For these reasons, the Arbitrator believes that the appropriate
discipline under these circumstances is a one day suspension.
Award
For all of the foregoing reasons
and conclusions, the grievance is sustained in part and denied in part. The
Grievance is sustained to the extent that a three day suspension for the
offenses charged is improper; the Grievance is denied to the extent that discipline
was warranted based upon a showing of just and sufficient cause.
The Arbitrator therefore orders that the disciplinary action taken by
the Employer be reduced to a one day suspension and that the Grievant be made
whole as to any lost wages or other differentials caused by the additional two
days of suspension. The Union's request for reasonable attorney fees is denied.
It cannot be determined from the evidence of record that the Employer acted in
bad faith or otherwise engaged in conduct warranting the imposition of attorney
fees.
Footnotes
1. The Grievant testified at the
hearing that she understood that the emergency annual leave was given for the
entire time because that was the type of leave request she filled out when she
returned to work. She indicated that she was unaware that her supervisor had
disapproved the 7:00 a.m. to 10:30 a.m. period and considered her AWOL for 3.5
hours.
2. The Grievant testified,
however, that she noticed the AWOL designation several days after the August 28
incidence when she was checking for insurance losses.
3. Respironics, 1997.
Respironics is a leading worldwide resource in providing innovative products
and unique programs to help manage and treat patients with sleep disorders and
cardiopulmonary diseases. Information from this source was provided to the
Employer and to the Arbitrator by the Grievant.
4. The Grievant's doctor
indicated on one of her medical slips (dated October 10, 2003) that her
condition would likely cause her to oversleep on occasion.