Federal Bureau of Prisons
Federal Correctional Institution
American Federation of Government Employees
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:
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.
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.
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.