I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator Edward P. Archer filed by the Agency under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition.

The Arbitrator found that the Agency violated its internal procedures governing the processing of requests for reasonable accommodations for persons with disabilities and ordered backpay for the grievant. For the following reasons, we deny the Agency's exceptions to the Arbitrator's award.

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II. Background and Arbitrator's Award A. Background

The grievant is an investigator for the Agency. After developing medical problems, the grievant was treated by a doctor, who provided a disability certificate advising that she would be able to return to work on June 1, 2001. Specifically, the doctor recommended that the grievant work a limited duty schedule and a "work-at-home/home office program[,] if it was available." Award at 3.

The grievant met with her supervisor, a management official, and a Union representative on June 1, 2001 and it was agreed that "she would return to work in the Agency office for four hours a day." Id. On June 4, 2001, her doctor provided the Agency with a refined diagnosis of the grievant's illness and recommended that she not work, if work at home was unavailable. He also stated that, after an endocrinology assessment, she could work four hours a day, gradually increasing work in the office as she could tolerate. Subsequently, another doctor, her endocrinologist, noting that her medication made her fatigued, recommended that she have a 2-3 hour break in her 8 hour work schedule.

On October 15, 2001, the grievant requested that she begin an 8 hour work schedule on October 22. In particular, she requested that, initially, she work 4 hours at home and then, after a period of weeks, shift to working 2 hours at home. She also requested that her work schedule include a 2-3 hour rest period during the 8-hour day. The grievant's request was forwarded to the Agency's Headquarters Disability Program Manager.

The grievant received no response to her request and, on December 21, 2001, she submitted another request to the Agency. She included a recommendation from her family doctor that she begin with 4 hours of work at home, a 2-3 hour rest period, followed by 4 hours of work in the office. After some delay, this second request was also forwarded to the Disability Program Manager.

Upon request, the grievant gave permission for her doctor to talk to the Disability Program Manager. Based on conversations between the grievant's doctor and the Disability Program Manager, the Agency agreed that, effective February 5,

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2002, the grievant's work schedule would be adjusted to allow her to work 4 hours at home and 4 hours in the office. This schedule was to terminate on April 7, 2002.

The grievant filed a grievance on February 28, 2002, requesting back pay for the period of delay in processing her request for an accommodation. The Agency denied the grievance on the grounds that: (1) it was untimely; (2) the grievant was not disabled within the meaning of the Rehabilitation Act; and (3) she was not a qualified individual with a disability during the relevant time period. The grievance was not resolved and was submitted to arbitration.

B. Arbitrator's Award 1. Arbitrability

While the Arbitrator did not expressly state the arbitrability issue, he considered whether the grievance was timely filed under Article 41.07 of the parties' collective bargaining agreement.!./ In this regard, the Arbitrator noted that the Agency's "Procedures for Providing Reasonable Accommodation for Individuals with Disabilities" (Procedures) provide that requests for accommodation must be processed within 20 days if submitted to the Disability Program Manager, except for extenuating circumstances.

Because the grievant's request had been submitted to the Disability Program Manager, the Agency argued that the grievance should have been filed within 25 days from the date that the Disability Program Manager had possessed the request for 20 days without making a response. According to the Agency, under this interpretation, the February 28 grievance was untimely regardless of whether the grievant's October 15 or December 21 requests were considered.

The Arbitrator determined that the time limit for filing a grievance was triggered by the grant on February 5, 2002, of

!/ Article 41.07 of the parties' collective bargaining agreement provides as follows:

Written grievances must be filed within 25 calendar days after the incident giving rise to the grievance occurs.

the grievant's requested accommodation because until that time the grievant had no basis for requesting back pay. Accordingly, the Arbitrator determined that the grievance was arbitrable.

2. Whether the Agency Violated the Procedures

Turning to the merits of the grievance, the Arbitrator addressed whether the Agency had complied with the Procedures. The Agency maintained that it had done so, citing the following provision of the Procedures: "If medical documentation is necessary, the decision will be made within 20 business days from the receipt of documentation." Award at 9 (quoting the Procedures). Because the Agency had granted the grievant's request within five days of the receipt of material from her personal doctor, the Agency claims it complied with that provision.

The Arbitrator noted that the Disability Program Manager had: (1) the grievant's October 15 request for over two months and did not request documentation; and (2) the grievant's December 21 request for almost a month before asking the grievant to grant permission for the release of information, which the grievant promptly gave. The Arbitrator also noted that the grievant's doctor responded the day after the Disability Program Manager contacted him. The Arbitrator concluded, therefore, that neither the grievant nor the grievant's doctor delayed the Agency's action on the requests.

The Arbitrator found that "this very delayed response was not in compliance with the spirit of the Procedures, that were designed to expedite Agency responses to employee accommodation requests." Award at 11. According to the Arbitrator, the Agency's interpretation of the Procedures would allow it to delay indefinitely the request for medical information and thus to postpone the employee's requested accommodation. Further, the Arbitrator found that nothing in the facts of the case constituted extenuating circumstances, as defined by the Procedures, that would justify the delay. Finally, the Arbitrator rejected the remaining Agency arguments attempting to justify its delay in responding to the grievant's requests.

The Arbitrator concluded that "the Agency's inaction on [the grievant's] October 15 and December 21, 2001t,] requests to modify her accommodation were in breach of the Agency's

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Procedures for employees to seek such accommodations." Id. at 13.

3. Whether the Agency Violated the Rehabilitation and Americans with Disabilities Acts

The Arbitrator next addressed whether the Agency's actions with respect to the grievant violated the Rehabilitation Act, 29 U.S.C. § 791 et seq., or the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. In this regard, the Agency asserted that the grievant: (1) "did not have an impairment that limited a major life activity;" (2) was not "'substantially limited'" in a major life activity because her condition was "temporary,-" and (3) was not "a qualified individual with a disability who could, with or without accommodation, do the essential functions of her position." Award at 14 (referencing the ADA, 42 U.S.C § 12102(2)(A)).

Citing her doctor's reports, the Arbitrator found that "it was anticipated by all that her accommodation would be temporary to allow her to regain her stamina and return to work fulltime [sic] without an accommodation." Id. at 15. In this regard, the Arbitrator stated that "it is clear from the record that [the grievant's] disability was always represented as a temporary one." Id. Citing Evans v. City of Dallas, 861 F.2d 846 (5th Cir. 1988) and Equal Employment Opportunity Commission (EEOC) regulations, 29 C.F.R. §§ 35.104 and 1630.2J, the Arbitrator noted that under the Rehabilitation Act and the ADA, an important consideration in determining whether an individual is covered by those statutes is the duration of that individual's impairment. Because he found that the grievant's disability was considered to be temporary, the Arbitrator concluded her "requests for an accommodation were not covered by the Rehabilitation [Act] or [the ADA] and so the Agency's actions or inactions regarding those requests did not violate either of those Acts." Award at 16.

4. Remedy

The Arbitrator noted that he had found a violation of the Agency's Procedures and that the "violation did not rise to the level of a statutory violation." Award at 16. The Arbitrator also noted that the Agency had acknowledged that "it has granted accommodations to employees with temporary

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disabilities." Id. Further, the Arbitrator stated that the Agency's Procedures, in Article XIII, provide that the Procedures are "'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.'" Id. (quoting Article XIII).

Based on his interpretation of the quoted portion of Article XIII, the Arbitrator concluded that: (1) the Procedures "are commitments the Agency has undertaken regarding the processing of requests for accommodation that are independent of statutorily required procedures;" and (2) "breaches of those commitments would render the Agency liable." Id.

The Arbitrator found, based on the amount of time it took the Agency to act on the grievant's request once it received documentation, that if the Agency had acted on the grievant's October 15 request in the same manner, "the 20-day process for processing her request would have had to [have] been delayed for only that two days." Id. at 17. The Arbitrator also found that the Agency would have granted the grievant's October 15 request for an accommodation if it had acted promptly on that request. Accordingly, he found that the grievant would have returned to an 8-hour work day at that time and "would have accrued leave and other benefits and received pay in accordance with working full eight-hour days from that time on." Id. Consequently, the Arbitrator ordered the Agency to make the grievant 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."2/ Id.

2/ The Arbitrator denied the Union's request for attorney fees because that request had been premised on alleged violations of the Rehabilitation Act and the ADA and he did not find such violations. No exceptions have been filed to that part of the award and it will not be considered further herein.

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III. Positions of the Parties A. Agency's Exceptions

As to the Arbitrator's arbitrability determination, the Agency contends that it is so "illogical as to amount to a denial of a substantive right." Agency's Exceptions (Exceptions) at 6. Specifically, the Agency argues that statutes of limitation, such as the time limits for filing grievances, usually start from the denial of a legal right, while the Arbitrator calculated the time limits governing the grievance in this case from the date that the Agency "gratuitously granted a benefit." Id. (emphasis in original). According to the Agency, if it had ignored the grievant's requests and not allowed the grievant to work at home, which it had the legal right to do, the logic of the Arbitrator's determination would mean that the Union would not have any time limit to file a grievance.

As to the Arbitrator's award on the merits, the Agency contends that the Arbitrator properly found the grievant was not disabled and, thus, not entitled to an accommodation under the Rehabilitation Act and the ADA. The Agency argues that the Procedures only apply to employees who are disabled under those statutes. Consequently, the Agency maintains, the grievant had no cause of action for a violation of the Procedures. In this regard, the Agency asserts that the Procedures were promulgated pursuant to Executive Order 13164, which provided that it created no rights or benefits enforceable against the Government.

The Agency claims that the award of back pay violates the Back Pay Act because the delay in granting an accommodation to the grievant is not an unjustified or unwarranted personnel action. The Agency also maintains that the award is not consistent with the principle of sovereign immunity.

Finally, the Agency claims that the Arbitrator's award establishes a bad policy. Specifically, the Agency argues that since it had no legal obligation to afford the grievant an accommodation, it is being punished for the fact that it nevertheless accommodated her. Such a result, the Agency maintains, discourages agencies "from volunteering to provide benefits not specifically required." Exceptions at 6.

-8-B. Union's Opposition

The Union contends that the Agency has stated no grounds for finding the Arbitrator's procedural arbitrability ruling deficient under Authority precedent.

As to the Agency's contrary to law arguments, the Union notes that the Arbitrator clearly stated his finding that his award was not based on the Rehabilitation Act or the ADA. Rather, according to the Union, the award is based upon a violation of the Procedures which, as interpreted by the Arbitrator, explicitly provide certain employee entitlements that are in addition to any statutory rights. In this regard, the Union points out that the Procedures state as follows: "As a model employer, EEOC may take steps, as appropriate, beyond those required by the reasonable accommodation process." Union Opposition at 6 (quoting Procedures at 2) . The Union also asserts that the testimony of Agency supervisors establishes that the Procedures were used to grant employees accommodations for temporary disabilities. The Union contends that, for these, reasons, the award is consistent with law.

With respect to the Agency's arguments with respect to the award of back pay, the Union contends that the award in this respect "would not be in violation of sovereign immunity, since the statute permits such an award." Id. at 7. Moreover, according to the Union, the issue of sovereign immunity was not raised before the Arbitrator. As to the Agency's argument that the award creates bad policy, the Union asserts that such an argument does not provide a basis for finding the award deficient.

IV. Analysis and Conclusions

A. Procedural Arbitrability

An arbitrator's determination regarding the timeliness of a grievance constitutes a procedural arbitrability determination, which may be found deficient only on grounds that do not challenge the determination itself. See United States Dep't of Defense, DLA, Def. Distrib. Depot, New Cumberland, Pa., 58 FLRA 750, 753 (2003). Such grounds include arbitrator bias or the fact that the arbitrator

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exceeded his or her authority. See AFGE, Local 2921, 50 FLRA 184, 185-86 (1995).

The Agency's exception arguing that the Arbitrator's finding that the grievance was timely filed is illogical challenges the Arbitrator's procedural arbitrability determination itself. Consequently, the Agency's exception provides no basis for finding that the award in this respect is deficient.

Accordingly, we deny the Agency's procedural arbitrability exception.

B. Contrary to Law

An award is deficient under § 7122(a)(1) of the Statute if it is contrary to the Back Pay Act. See, e.g., United States Dep't of Justice, Fed. Bu. of Prisons, Fed. Correctional Complex, Beaumont, Tex., 59 FLRA 466, 467 (2003). An award is also deficient if it is contrary to a governing agency regulation.3_/ See, e.g., United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky. 37 FLRA 186, 192 (1990). As the Agency's exception challenges the award's consistency with the Back Pay Act and the Procedures, we review the questions of law raised by the exception de novo. See, e.g., United States Dep't of the Navy, Commander, Military Sealift Command, Washington, D.C., 57 FLRA 930, 931 (2002); AFGE, Local 1203, 55 FLRA 528, 530 (1999). In applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998) . In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

The Agency argues that the Arbitrator's award of back pay is contrary to law because the Arbitrator improperly found that it violated the Procedures. Specifically, the Agency claims that the grievant is not entitled to an accommodation

3_/ While the Agency claims that the Procedures do not apply to the grievant, it does not challenge the fact that, if the Procedures do apply, they govern the disposition of the grievance.

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because she is not "disabled" within the meaning of the Rehabilitation Act and the ADA and thus the Procedures do not apply to her because the procedures provide entitlements only to employees who fall within the protections of those statutes. The validity of the award of backpay under the Back Pay Act, therefore, depends on whether the award is inconsistent with the Procedures.

The Authority has long held that, under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See, e.g., United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998). A violation of a governing agency regulation constitutes an unjustified or unwarranted personnel action. See, e.g., United States Dep't of the Air Force, Aerospace Guidance and Metrology Center, Newark AFB, Ohio, 41 FLRA 550, 558-59 (1991) (Newark AFB).

The Agency argues that the Arbitrator erred in applying the Procedures to the grievant because she was not disabled within the meaning of the Rehabilitation Act and the ADA and, thus, was not covered by the Procedures. However, the Arbitrator specifically found that the Procedures applied to the grievant despite the fact that he had also found that she was not covered by the Rehabilitation Act and the ADA. In this regard, the Arbitrator found that the Agency had granted accommodations to employees, such as the grievant, who had temporary disabilities and thus were not "disabled" within the meaning of the Rehabilitation Act and the ADA. He also found, based on Article XIII of the Procedures, that "the Procedures are commitments the Agency has undertaken regarding the processing of requests for accommodation that are independent of statutorily required procedures." Award at 16. Thus, the Arbitrator found that the Procedures established requirements for the processing of requests for accommodation for employees who would not be entitled to accommodation under the Rehabilitation Act or the ADA. Based on that finding, he concluded that the Agency had violated the processing requirements of the Procedures.

The Agency does not dispute the Arbitrator's finding that it had previously provided accommodations to employees with

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temporary disabilities. The Agency also does not challenge the Arbitrator's interpretation of Article XIII as creating "commitments" to employees that are independent of statute. Id. Further, the Agency does not demonstrate that Executive Order 13164 precludes agencies from extending protections to employees who are temporarily disabled. Consequently, the Agency has not demonstrated that the Arbitrator erred in applying the Procedures to the grievant or in finding a violation of those procedures in the circumstances of this case.

The Agency's argument that the award establishes a "bad policy" simply quarrels with its own practice of extending accommodations to temporarily disabled employees and the terms of its own Procedures as interpreted by the Arbitrator. The argument provides no basis for finding the award deficient.

The Agency has not demonstrated that the Arbitrator's award is inconsistent with the Procedures. We note in this regard that, as the Arbitrator found, the Procedures specifically provide that the Agency may take steps, as appropriate, beyond those required by the reasonable accommodation process. See Procedures, Attachment 3 at 2, to Exceptions. Thus, the Arbitrator's finding that the Agency violated the Procedures is sufficient to establish an unjustified or unwarranted personnel action under the Back Pay Act. See Newark AFB, 41 FLRA at 558-59. Consequently, the Agency has not established that the award of back pay to the grievant in this case is deficient under law. In this regard, as the Agency implicitly recognizes, the Back Pay Act is a waiver of sovereign immunity. See United States Dep't of Transportation, FAA, 52 FLRA 46, 49 (1996) (citing United States v. Testan, 424 U.S. 392, 405 (1976)).

Accordingly, we deny the Agency's contrary to law exception.

V. Decision

The Agency's exceptions are denied.

ERRATA

On July 13, 2004, the Authority issued its Decision in the above-captioned case. The Authority's citation (60 FLRA No. 18) was in error. The correct citation is 60 FLRA No. 20.

Enclosed is a corrected copy of the Authority's July 13, 2004, Decision. We apologize for any confusion this may have caused.

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