Union

ARBITRATOR:

Edward P. Archer

DECISION AND AWARD

Edward P. Archer, Arbitrator. This arbitration is of a grievance filed on behalf of Investigator Yolanda Grace Raby by Union Local 3504 President Michael E. Davidson by letter to Indianapolis District EEOC Director Danny Harper, dated February 28, 2002. This grievance was filed protesting the delay in granting Ms. Raby's requests for reasonable accommodation, which the Union asserts were in violation of the Agency's "Procedure for Providing Reasonable Accommodation for Individuals with Disabilities." At the outset of the hearing the Agency contended that this grievance was untimely filed and therefore not arbitrable. The parties stipulated that the issue of arbitrability was properly before me as the sole arbitrator for resolution and, if arbitrable, the issues on the merits of the grievance were also before me as the sole arbitrator for resolution.

I. Factual Background

Ms. Raby was employed by the Agency as an Investigator when, in July 1999, she first became aware of a medical problem. She submitted a Disability Certificate from Doctor Cater of Winona Internal Medicine stating that Ms. Raby had been under his care from January 22, 2001 to April 18, 2001 and that she would be able to return to work on June 1, 2001. His stated diagnosis was:

1. Asthmatic Bronchitis

2. Graves Hyperthyroidism

He stated she could return to limited duty on June 1, 2001 and he recommended a work-at-home/home office program if it was available. Ms. Raby testified that when she returned to work she was on steroids to reduce inflammation in her lungs, another antibiotic to ward off bronchitis, and she used a nebulizer. She had undergone radiation that caused her to gain weight and was under consideration for thyroid surgery. She said it was hard to breath, talk and to walk because she was so heavy. She was required to use the nebulizer four times a day to breath and move if necessary.

On June 1,2001 Raby met with Union Steward Ed Vance, Deputy Director Webster Smith and her Supervisory Investigator Shirley Richardson and they agreed that she would return to work in the Agency office for four hours a day.

On June 4, 2001 Doctor Cater Submitted another report to the Agency. In that report he diagnosed Raby as having:

1. Asthma- Severe Exacerbation 1/23/01, stabilized 4/18/01

2. Graves Disease that, he stated, was not responsive to standard therapy.

He also stated it disrupts ability to concentrate and sit still for long periods of time and that disproportionate fatigue was common. He stated, "no driving, no lifting greater than 20 pounds, no exposure to smoke/dust/cold air." He further stated, "If requested work at home not available, I recommend no work until thyroid levels return to normal. After endocrinology assessment she can begin ½ day (4 hours) of work, to be increased weekly as tolerated."

Raby testified that after she returned to work half time her supervisor, Shirley Richardson, stated continually that she could return to work for more hours. She said she did not drive when she first returned to work as her medications made her very tired.

In addition to being seen by Doctor Cater, she was being seen by Endocrinologist Shahid Athar who was concerned about her endocrine and lymphatic systems. On October 10, 2001 Doctor Athar provided Raby with a doctor's slip stating that she was under his care and advising that she "have a 2-3 hour break for rest between her 8-hour work schedule."

Ms. Raby attached Doctor Athar's medical slip to a request she submitted to Deputy Director William Smith, Supervisor Shirley Richardson and Union Steward Edward Vance, dated October 15, 2001. In that request she asked, "to return to an eight (8) hour work day beginning on October 22, 2001." She said she "would like to start working four (4) hours at home, for the period of October 22, 2001 through November 2, 2001, and then begin six (6) hours at INDO and two (2) at home." She said she believed "that this will gradually increase (her) stamina" and would also "afford (her) the opportunity to accomplish more, i.e. CP/R contact and case processing." She also said she had discussed with Doctor Athar," face-to-face contact with the general public "(intake responsibilities) and that he believed "that (she could) gradually work up to face-to-face contact within the hours given in his statement." She also said she had discussed on-site visits with him and that, "(She was) able to perform onsite visits as long as (she was) able to take (her) medicine at the designated times and able to have a rest break during the day." Finally she asserted, "I believe that I am able to perform the functions of my position within an eight (8) hour day, however, I am needing to adjust this schedule to incorporate a 2-3 hour rest break during the eight (8) hour day."

Deputy Director Smith testified that he made the decision to return Ms. Raby to work half time on June 1, 2001. And he recalled receiving Ms. Raby's October 15 request to change that accommodation to four hours at work and four hours at home with a break in between. Smith said he forwarded this request to Ms. Lawrence, the Agency Headquarters Disability Program Manager. Ms. Lawrence handled requests for accommodation submitted nationally throughout the Agency. He testified that, though he had authority to decide whether to grant or deny Ms. Raby's October 15 request for a modified accommodation, he forwarded it to Ms. Lawrence because the diagnosis of Ms. Raby and the duration of the requested accommodation were not clear. And he said if there was need for additional medical information, the request was better coming from Ms. Lawrence than from the local Agency office. Smith had no further communication with Ms. Raby about her October 15^threquest.

As she had not received any response from the Agency to her October 15^threquest, Ms. Raby submitted another request to the Agency dated December 21, 2001. She stated again that she would like to return to an eight-hour workday beginning December 31, 2001, four hours at INDO, a break at home for rest and medication, and then another four hours of work at home. She attached to this request another Disability Certificate from Doctor Cater, stating she had been under his care from January 22, 2001 to December 7, 2001 and that she could return to "light regular work duties on I2/10/01." He recommended an eight-hour workday divided into two four-hour sessions with a three-hour break between the sessions for rest and medication. He stated that she was not to rest on the floor or in her car and he recommended that the break be at home and said that she was not to drive at night.

This December 21, 2001 request apparently arrived at the Agency when Smith was on leave through the end of the year. Smith testified that he first saw this request when he returned to work on January 2, 2002 and on January 3, 2003 he sent it to Lawrence. Smith did not speak to Raby about either of her requests (October 15 or December 21) through February 4, 2002.

Ms. Raby testified that Ms. Lawrence wanted to discuss her medical information with her doctor over the phone and had been told as recently as January 18, 2002 that he would not do so. Accordingly she (Raby) sent Doctor Cater a handwritten letter, dated January 18, 2002, granting him permission to discuss with Ms. Lawrence over the phone her "most recent diagnosis and prognosis only."

It is not clear how Ms. Lawrence communicated with Doctor Cater as she died before the hearing in this case, so her testimony was not available. However, Doctor Cater sent Ms. Lawrence a report form on February 1, 2002 diagnosing her as having 1) Reactive Airways Disease, 2) Thyroidism causing fatigue and 3) Depression, Somatic Disorder. His prognosis was: "Guarded. Pending additional consultation, recommend a 4-rnonth (120 day) period of restricted duty (1/2 week day at home) through April 7^thof 2002." He went on to state "Ms. Raby can have face-to-face interviews, provided they fit in a 4-hr/day format." And he stated she was restricted from nighttime driving and driving should be limited to "within a 2 hour radius in order to fit the four-hour work restriction."

By letter dated February 4, 2002, Mr. Smith advised Raby that Barbara Lawrence had concluded, based upon the feedback from Doctor Cater, the Agency would temporarily grant her request to work four hours in the office and four hours at home until April 7, 2002, and her work schedule could change effective February 5, 2002.

On February 7, 2002, Ms. Raby telephoned Ms. Lawrence to request back pay for the period of delay in processing her requests for an accommodation. That request was denied and on February 28, 2002 the instant grievance was filed.

The Agency contends this grievance was barred as untimely filed. The Union obviously disagrees. The Union contends the Agency violated its "Procedures for Providing Reasonable Accommodation for Individuals with Disabilities" and the Rehabilitation Act and the Americans with Disabilities Act in delaying its response to Ms. Raby's October 15, 2001 and December 21, 2002 requests for an accommodation. The Agency disagrees, contending that it acted in an appropriate and timely manner in considering Raby's requests for accommodation, and that it was not required under the Rehabilitation Act to accommodate Raby because she was not disabled within the meaning of the Act and further, even ifRaby were legally disabled, she was not a qualified individual with a disability during the relevant time period. The Union, obviously, disputes these Agency positions.

II. The Arbitrability Issue

Article 42.07 of the parties' National Collective Bargaining Agreement requires that, "Written grievances must be filed within 25 calendar days after the incident giving rise to the grievance occurs." Under the Agency's "Procedures for Providing Reasonable Accommodation for Individuals with Disabilities," hereinafter referred to as the "Agency's Procedures," the Agency has 15 business days to process such a request if it can be processed by the Office Director and 20 business days if it is processed by the Disability Program Manager, with exceptions for "extenuating circumstances."

The Agency argues that under these Procedures, even if there were no "extenuating circumstances" its response to Raby's October 15, 2001 accommodation request should have been no later than November 12, 2001 and its response to her December 21, 2001 request should have been no later than January 22, 2002. Allowing 25 calendar days for grieving, the Agency calculates that a grievance protesting an untimely Agency response to the October 15 request had to have been filed by December 7, 2001 and to the December 21 request, by February 18, 2002. It thus argues Raby's February 28, 2002 grievance was untimely.

The Union argues that Raby contacted Lawrence on February 7, 2002 to request back pay for the delay in processing her requests for accommodation and that the contractual 25 calendar day period to file the grievance ran from the denial of that request. Accordingly, the February 22, 2002 grievance was timely filed.

I am not persuaded that the contractual 25-day period should have run from the February 7 denial of back pay. If that were true, the Union or employee could indefinitely avoid the running of the 25-day period for filing a grievance by delaying its request for back pay.

However, I am persuaded that the 25-day period to grieve was triggered by the Agency's February 5 grant of Raby's requested accommodation. Until the Agency had determined that her request would be granted, she had no basis to request back pay. Under this reasoning the February 28, 2002 grievance was filed within 25 days of the incident that gave rise to the grievance (the February 5, 2002 grant of the accommodation requested) and the grievance is therefore timely.

As Article 41.01 of the parties' National Agreement provides for grievances concerning the application of that Agreement, "or of applicable law or regulation, or a breach thereof" and as there were no other objections raised to the arbitrability of Raby's grievance, I find that Raby's grievance, insofar as it alleges a breach of law (the Rehabilitation Act or the American's with Disabilities Act) and a breach of the Agency's Procedures (for granting accommodations for disabilities), is arbitrable.

Ill. The Issues on the Merits

A. Breach of the Agency's Procedures

The Agency argues it was not required to respond to Raby's Accommodation Requests within any specified time. It notes that its Procedures provide:

If medical documentation is necessary, the decision will be made within 20 business days from the receipt of documentation.

It notes that on January 18, 2002 Lawrence requested Raby to release information from her doctor and that Lawrence sent a written inquiry to her doctor on January 31 and the doctor responded on February 1. The accommodation was granted on February 5. The Agency contends the February 1 response from the doctor satisfied its concern that Raby could perform the essential functions of the job. Apparently it is the Agency's contention that its grant of the requested accommodation immediately after receipt of Doctor Cater's February 1 response satisfied the time periods required under its Procedures.

Reading the quoted portion of the Procedures in isolation from the rest of that document, there could be some merit in this contention. However, the Procedures read as a whole make it clear that the Agency was required to respond as promptly as possible to an employee's request for an accommodation. Section VIII of the Procedures, part B, page 11, provides "if the decision maker believes that it is necessary to obtain medical information to determine whether the requesting individual has a disability and/or to identify the functional limitations, the decision maker will make such request to the Disability Program Manager as soon as possible after his or her receipt of the request for accommodation."

This portion of the Procedures relates to when the Office Director is the decision maker. In the instant case Office Director Smith was the recipient of Raby's requests for accommodation. He didn't act as the decision maker and instead, with no other significant involvement after his receipt of these requests, he forwarded them to Disability Program Manager Lawrence. She too did not take any significant action on the October 15, 2001 request. And she did not take any significant action on the December 21 request (which Smith did not send to her until January 2) until her January 18, 2002 request to Raby to release information from her doctor. And while Lawrence requested that release to telephone Raby's doctor, instead of doing that she waited until January 31 to send him written questions. He responded almost immediately (on February 1) and she apparently concluded that response met her concerns and she promptly, on February 4, notified Smith to gant the accommodation.

Clearly Doctor Cater did not delay the Agency's action on these requests. Nor did Raby, who immediately ~anted Lawrence's request for a release of information from her doctor.

In her October 15 request Raby advised the Agency that her doctor had advised her that she could perform on-site visits if she could take her medications and have her rest break. She also stated that Doctor Athar had stated she could work up to face-to-face contact. She thus put the Agency on notice that she had medical approval for these activities as early as October 15, 2001. Doctor Cater, in his February 1, 2002 response to Lawrence's inquiry, merely confirmed what Raby had already told the Agency on October 5, 2001 - that she could have face-to-face contact within the four-hour format and that she could do on-site work also within that format.

The Procedures further provide that where extenuating circumstances are present, the decision maker "must notify the individual of the reason for the delay, and the approximate date on which the decision, or provision of the reasonable accommodation, is expected." That clearly did not happen in this case. Had the Agency advised Raby that her request for an accommodation was being delayed in processing to obtain more medical information, she likely would have released that information immediately. She did so when she was advised of the Agency need for that information on January 18^th.

Finally, the Procedures provide, "if a delay is attributable to the need for medical documentation and EEOC has not determined that the individual is entitled to an accommodation, EEOC may also provide an accommodation on a temporary basis." While this was not mandatory (in view of the word "may"), it is clear the Agency took no steps to consider a temporary accommodation for Raby in this case.

The Agency also argues it was not obligated to respond to Raby's October 15 request because Doctor Cater's June 4 information was inconsistent with her representations. I find no merit in that argument. Assuming Doctor Cater's June 4 report was inconsistent with Raby's understandings presented at the parties' June 1 meeting, the parties reached an agreement as to a June 1 accommodation that they anticipated would be temporary. On October 15 Raby requested that that accommodation of half-day work be modified to expand her work hours and she represented that she had medical approval for that expansion. The Agency was not justified by a medical report in June to ignore her October 15 representations. It had the right, and indeed the responsibility, to seek medical confirmation of her representations but it had no right under its Procedures to ignore them.

The Agency also urges that Doctor Athar's note which accompanied Raby's October 15, 2001 request did not suggest that she work four hours at home but rather suggested four hours at the office with a break and then four more hours at the office. Such was the case. Doctor Athar's note did not suggest the accommodation Raby was seeking of four hours at work, a break, and four hours at home. However, Doctor Athar's release would have permitted Raby to engage in an even more rigorous work schedule than she was requesting. It may have afforded the Agency justification for granting Doctor Athar's proposed accommodation rather than the one she was requesting. but it did not afford the Agency the right to ignore her request to modify the accommodation the parties had agreed to on June 1. Doctor Athar's release was consistent with the need for a change of that accommodation.

The Agency also contends that Richardson's urging of Raby to work additional hours and her refusal to do so without a change in her accommodation somehow justified its ignoring of her October 15 request. I fail to understand the logic of this contention. It seems to me if the Agency wanted Raby to work more hours and she was agreeable to it and saying she had medical authorization to do so, and the Agency felt it needed medical confirmation of her abilities to assume more duties, logic would dictate that the Agency move promptly to seek that medical confirmation. Under this logic, the Agency had no reason to ignore Raby's efforts to seek clearance through the Agency's accommodation Procedures that she could indeed perform the increased workload.

In short, l am persuaded that the Agency's inaction on Raby's October 15 and December 21,2001 requests to modify her accommodation were in breach of the Agency's Procedures for employees to seek such accommodations~ Nothing presented by the Agency justifies delay in deciding the merits of those requests for over two-and-one-half months from the October 15 request.

B. Breach of the Rehabilitation and Americans with Disabilities Acts

The Agency urges that Raby did not have an impairment that limited a major life activity, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. It notes that Ms. Richardson testified that she did not observe Raby having problems of walking and breathing while working half days after June 1. In contrast, the Union notes Ms. Raby's testimony that she was hampered in her major life activities of walking, breathing and daily physical stamina as a result of her Graves Disease and Hypothyroidism. The Agency notes Ms. Raby's testimony that the effect of her medication she took at noon was to cause her to get lethargic and sleepy.

In addition, the Agency urges that for a major life activity to be "substantially limited" as required by the Act, it must be more than temporary. It notes that throughout the period from June 1, 2001 to February 18, 2002 Raby and Doctor Cater represented that her accommodation would be temporary, to be phased out over a short time.

The parties also differ on whether Ms. Raby was a qualified individual with a disability who could, with or without accommodation, do the essential functions of her position. This dispute focuses on whether Ms. Raby could do face-to-face intake interviews and on-site investigations. They also differ on whether these duties were essential functions of the job in that the Agency had allowed two other investigators to work at home for temporary periods and • thus not to perform those duties.

I need not address all of these issues because it is clear form the record that Ms. Raby's disability was always represented as a temporary one. In Doctor Cater's June 4, 2001 report he recommended that Ms. Raby work at home and, if no home work was available, that she not work until her thyroid levels returned to normal and after her endocrinology assessment that she could then begin half-day work to be increased weekly as tolerated. In her October 15, 2001 request for a modified accommodation, Ms. Raby sought to return to an eight hour workday, four at the office and four at home after a break, until November 2, 2001 and then to begin six hours at the office and two at home to increase her stamina. Finally, Doctor Cater, in his February 1, 2002 report, recommended a four-month period of restricted duty through April?, 2002. While the evidence on the rest of these statutory issues is somewhat sparse, it is clear that throughout the process from June 2001 to February 2002, when the accommodation Raby requested was granted, it was anticipated by all that her accommodation would be temporary to allow her to regain her stamina and return to work fulltime without an accommodation.

In Evans v. City of Dallas 861 F.2d 846 (5^~hCir. 1988) the Court held that impairments under the Rehabilitation Act "contemplate an impairment of a continuing nature." The EEOC regulations for the Americans with Disabilities Act provide that expected duration of the impairment is a factor in determining if the impairment is covered under that Act. See 28 CFR ¶ 35.104 and 29 CFR ¶ 1630.2J. Courts will look carefully at whether an impairment is in fact temporary and, if it is, conclude that employers are not obligated to accommodate such temporary impairments.

Because her disability was always considered to be temporary one and no evidence was offered that it would continue indefinitely, I am persuaded that Ms. Raby's requests for an accommodation were not covered by the Rehabilitation or Americans with Disabilities Acts and so the Agency's actions or inactions regarding those requests did not violate either of those Acts.

C. The Remedy

I have found that the Agency was in violation of its Procedures in delaying its response to Ms. Raby's requests for accommodation but that that violation did not rise to the level of a statutory violation.

The Agency acknowledges it has granted accommodations to employees with temporary disabilities. Two such examples were cited in the record. The final accommodation it eventually granted for Ms. Raby is another such example.

The Agency's procedures provide in Article XIII that:

This policy is in addition to statutory and collective bargaining protections for persons with disabilities and the remedies they provide for the denial of requests for reasonable accommodation.

Accordingly the Procedures are commitments the Agency has undertaken regarding the processing of requests for accommodation that are independent of statutorily required procedures. I conclude that breaches of those commitments would render the Agency liable.

The Union seeks statutory remedies under the 1991 Civil Rights Act. However, as I am not persuaded that the Agency violated any statutory obligation, those remedies are not available. Rather, it is clear to me that, had the Agency complied with its Procedures and processed Ms. Raby's October 15^~hrequest in accordance with those Procedures, it would have requested and obtained the additional medical information it needed promptly (within two days of its initial request, as occurred when it finally did request that information) and the 20-day process for processing her request would have had to been delayed for only that two days. There is no reason to believe that the Agency would not have granted the proposed accommodation at the conclusion of that 22 working day period from Ms. Raby's October 15, 2001 request as it did on February 5, 2002. As such, Ms. Raby would have returned to an eight-hour day at that time. She accordingly would have accrued leave and other benefits and received pay in accordance with working full eight-hour days from that time on. I therefore will order the Agency to make Ms. Raby whole by paying her the additional earnings and providing her the additional benefits she would have obtained had her October 15, 2001 request for an accommodation been granted 22 working days after October 15, 2001 instead of on February 5, 2002.

The Union's request for attorney's fees and compensatory damages were based on its contention that Ms. Raby's statutory rights had been breached. I have rejected that contention and that requested relief is denied.

AWARD

Based upon the foregoing analysis of the evidence in the record and the parties' positions, I find the Agency did violate its "Procedures for Providing Reasonable Accommodation for Individuals with Disabilities" by unduly delaying its response to Ms. Raby's October 15, 2001 and December 21, 2001 requests for a modification of her previously agreed upon June 1, 2001 accommodation. The Agency is ordered to make Ms. Raby whole for the earnings and benefits she lost as a result of that violation in accordance with the analysis in "The Remedy" portion of this Decision and Award.

Decided this 20th day of February 2004.

Edward P. Archer, Arbitrator

*The Commission has appealed the above Arbitration decision to the FLRA. When the FLRA decides the matter, it will be posted.