The first question is whether the Arbitrator’s finding that the grievant is a qualified individual with a disability is contrary to the ADA.^[2] Because the Arbitrator’s finding is not contrary to the ADA, the answer is no.

 

 

 

 

In September 2008, in response to a series of Supreme Court decisions that restricted the scope of who qualified as “disabled” under the ADA,^[3] Congress passed amendments to the ADA with the stated purpose of reinstating a broad scope of protection.^[4] Under the amended ADA, Congress provided “that the definition of disability shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted,”^[5] and that an impairment that “‘substantially limits’                 [a major life activity] be interpreted consistently with the liberalized purposes of the [amended ADA].”^[6]

 

Article 25, Section 10, of the parties’ agreement states that the Agency shall “provide [RAs] for qualified individuals with disabilities as required by the [ADA].”^[8] It also clarifies that the term “reasonable accommodation” includes “[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held . . . is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.”^[9]

 

 

In March 2009, a Federal Occupational Health (FOH) doctor reviewed the grievant’s medical certificates and disagreed with her doctor’s diagnosis. The FOH doctor determined that the grievant was not an individual with a disability under the ADA because (1) her inability to work with her supervisor was not a limitation of a major life activity, (2) her medical condition had not changed since FOH’s last assessment in 2007, and        (3) there was no information that her concentration was significantly reduced. Based on the FOH doctor’s recommendation, the Agency denied her RA request and concluded that the grievant was not an individual with a disability. However, the Agency found that even assuming she was disabled under the ADA, her requested RA was not reasonable because the “majority of [her] work involved complex issues that require careful consideration, which . . . is best achieved by in‑person meetings.”^[10] 

 

Throughout 2010, the grievant and her supervisor continued to conduct up to six face-to-face meetings daily, resulting in the grievant filing a number of grievances and EEO complaints. Despite receiving high ratings for many years, the grievant’s rating was lowered to “effective” in her FY 2009 appraisal and to “minimally satisfactory” in her FY 2010 appraisal.^[11] As a result of her “minimally satisfactory” rating, the Agency revoked her ability to telework, in accordance with internal regulations and the parties’ agreement. The parties could not resolve the issues and submitted the grievances to arbitration.

 

During pre-hearing motions, the Agency introduced, without objection, a 2010 EEOC decision in which an AJ determined that the Agency’s denial of the grievant’s RA request in 2007 was not discriminatory, and was not taken in reprisal for protected activity.^[12] Four months later, the Union sought to exclude the EEOC AJ decision from the arbitration record because the     U.S. District Court Judge presiding over the grievant’s EEOC appeal placed the decision under seal.^[13] Although the Arbitrator determined that “[t]he Agency is not prohibited from referencing the EEOC [AJ decision] or its outcome in this arbitration,” he concluded that, “in an abundance of caution and in deference to the [court],” he would remove the EEOC AJ decision from the record.^[14]

 

As relevant here, the parties stipulated to four issues: (1) “[w]hether the grievant properly requested an [RA] . . . and, if so, whether the Agency improperly denied that request;”^[15] (2) “[w]hether the grievant’s       FY [ ]2009 performance appraisal . . . was improperly issued;”^[16] (3) “[w]hether the grievant’s FY[ ]2010 performance appraisal . . . was improperly issued;”^[17] and (4) “[w]hether the Agency discriminated against the grievant based on [a] disability when it terminated the grievant’s [telework] agreement in November 2010[.]”^[18]

 

At arbitration, the Agency argued that the grievant’s sole limitation in the workplace was her inability to deal with her supervisor. And the Agency asserted that her impairment was episodic in nature and did not qualify as a “substantial limitation in a major life activity” ^[19]  under the ADA. In the alternative, the Agency argued that “[e]ven if the grievant is a qualified individual with a disability and entitled to an accommodation, [the grievant] is not entitled to the accommodation of her choice,” and the Agency’s two alternative-meeting arrangements enabled the grievant to perform the essential functions of her position.^[20]

 

The Arbitrator disagreed with the Agency. He found that the grievant “suffer[ed] from a mental impairment,”^[21] “was substantially limited in the major life activities of interacting with others and working,”^[22] and therefore “was a qualified individual with a disability.”^[23] He based his conclusions on the testimony of the grievant, her doctor, and Agency supervisors, who collectively testified that the grievant’s face‑to‑face meetings with her supervisor resulted in severe problems, high levels of hostility, social withdrawal, a failure to communicate when necessary, and negative work appraisals. Although finding that communication between the grievant and her supervisor was “an essential part of [her] job,” the Arbitrator found that “neither the grievant’s position description nor her performance standards require face‑to‑face meetings.”^[24] Citing “exceptions” to the Agency’s face-to-face meetings rule, the Arbitrator found that it was “not essential that the grievant meet . . . with her supervisor daily.”^[25]

 

As to the second and third stipulated issues, the Agency argued that the grievant’s ratings were proper because the grievant failed to effectively communicate with her supervisor. The Arbitrator, relying on his determination that the grievant was a qualified individual with a disability who was not afforded an RA, found that the Agency’s alternative‑meeting arrangement resulted in “the grievant being unable to perform acceptably.”^[26] He determined that had the Agency “granted the [RA] as requested . . . the performance of the grievant, more likely than not, would have shown improvement.”^[27]  Therefore, the Arbitrator found that both the FY 2009 and FY 2010 appraisals did not take into account the grievant’s disability, and he sustained the consolidated grievance with respect to the second and third stipulated issues.

 

 

 

 

                The Agency argues  that the award is contrary to law because: (1) the grievant is not a qualified individual with a disability;^[28] (2) the Agency did not fail to reasonably accommodate the grievant;^[29] (3) the grievant’s FY 2009 and FY 2010 appraisals were appropriately issued; and (4) the grievant’s removal from the Agency’s telework program was proper.^[30]

 

                When an exception involves an award’s consistency with law, the Authority reviews any questions of law raised by the exception and the award   de novo.^[31] In applying the standard of de novo review, the Authority determines whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[32] In making that determination, the Authority defers to the arbitrator’s underlying factual findings unless the appealing party establishes that those findings are deficient as nonfacts.^[33]

 

 

In its first contrary-to-law exception, the Agency argues that the Arbitrator’s award is contrary to law because he erroneously found that the grievant is a qualified individual with a disability under the ADA.^[34] In making this claim, the Agency does not except to the Arbitrator’s finding that the grievant has an impairment. Rather, the Agency argues that the grievant’s impairment – or “inability to deal with her supervisor” – is not sufficient to render her substantially limited in the major life activity of working.^[35]

 

As relevant here, § 12102(1)(A) of the ADA provides that a qualified individual with a disability under the ADA must (1) have “a physical or mental impairment that [(2)] substantially limits one or more major life activities.”^[36] And § 12102(4)(D) of the ADA provides that a “disability” includes “[a]n impairment that is episodic or in remission . . . if it would substantially limit a major life activity when active.”^[37]  As acknowledged by the Agency^[38] and federal circuit courts,^[39] the ADA was amended by Congress, in part, to broaden the interpretation of the term “disability.”^[40]

 

The Arbitrator determined – and the Agency does not challenge – that the grievant was suffering from a mental impairment. Specifically, he found that the grievant suffered from major depression and PTSD because she had “consistently high levels of hostility, social withdrawal, and [she] fail[ed] to communicate when necessary” when meeting with her supervisor face‑to‑face.^[41] However, as mentioned above, having an impairment does not make one disabled.^[42] In order for a physical or mental impairment to rise to the level of an ADA‑qualifying disability, the impairment must substantially limit one or more major life activities when active.^[43] Under § 12102(2)(A) of the ADA, “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating . . . and working.”^[44] The Arbitrator found that “the grievant was substantially limited in the major life activit[y] of . . . working.”^[45]

 

The Agency argues that the award is contrary to the ADA because the grievant’s impairment is insufficient to render the grievant substantially limited in the major life activity of working.^[46] The Agency gives two reasons:  (1) “instructive” case law has “emphatically held that the inability to work with certain people does not constitute a substantial limitation on working;”^[47] and (2) “similarly to most people in the general population, [the g]rievant was still able to do her job, and to work for and with other people,” and therefore can still perform the major life activity of working.^[48]

 

In support of its first argument, the Agency cites Palmer v. Circuit Court of Cook County,^[49] Weiler v. Household Financial Corp.,^[50] and Byrnes v.       Lockheed-Martin, Inc.,^[51] for the proposition that numerous courts have found that conditions suffered by employees similar to the grievant “do[ ] not constitute a substantial limitation on working.”^[52] We find the Agency’s argument unconvincing. 

 

The Agency’s cited cases are inapplicable here because they were decided under the ADA before the 2008 amendments. As the Agency concedes,^[53] the pre‑amendment ADA interpreted qualifying “disabilities” much more narrowly than the amended ADA. Section 12102(4)(D) of the ADA now provides that a “disability” includes “[a]n impairment that is episodic or in remission . . . if it would substantially limit a major life activity when active.”^[54] The Agency does not provide any additional authority to counter the Arbitrator’s conclusion, and concedes that it is “unable to find any case law analyzing what constitutes a substantial limitation on the major life activity of working post‑[amended ADA].”^[55] 

 

Instead, we find that the Arbitrator’s analysis is consistent with applicable legal principles. The Arbitrator found that “the grievant was substantially limited in the major life activities of . . . working.”^[56] The Agency does not challenge the factual bases for the Arbitrator’s finding. The factual bases for the Arbitrator’s finding were that “the grievant had difficulty communicating face-to-face with her supervisor, and in some cases was unable to do so. Face-to-face meetings with her supervisor were characterized regularly by severe problems, consistently high levels of hostility, social withdrawal, and the grievant’s failure to communicate when necessary.”^[57] 

 

Moreover, the Arbitrator’s conclusion that the grievant’s impairment qualified her as “disabled” under the ADA^[58] accords with the ADA’s plain language.  Section 12102(1)(A) defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”^[59] Here, the Arbitrator determined that the grievant’s major depression and PTSD qualified as a mental impairment, and that her mental impairment substantially limited her major life activity of working, for the reasons previously described. Because the Arbitrator correctly applied the applicable ADA provisions, we reject the Agency’s first argument.

 

Regarding the Agency’s second argument, the Agency asserts that the award is contrary to law because, “similar[ ] to most people,” the grievant was “still able to do her job, and . . . [that her] type of impairment did not sufficiently impair [her] ability to work.”^[60] We find the Agency’s second argument unconvincing for two reasons. 

 

First, the Arbitrator compared the grievant “to most people,” and found “that the Agency misjudged the nature or degree of the grievant’s disability.”^[61]  Specifically, he found that her “relationship with her supervisor deteriorated substantially beyond the normal range of supervisor/employee difficulties.”^[62] The Agency does not challenge these factual findings.

 

Second, the record does not support the Agency’s contention that the grievant’s “type of impairment did not sufficiently impair [her] ability to work.”^[63] Rather, the Arbitrator found that the grievant’s impairment negatively affected her work performance and her appraisals.^[64] Specifically, the Arbitrator found that an essential part of the grievant’s job is communicating with her supervisor,^[65] and that the grievant’s mental impairment contributed to her negative appraisals and ability to function at work.^[66] He further found that the grievant’s impairment: (1) caused her to hyperventilate when in close quarters with her supervisor;^[67] (2) caused her to suffer “consistent[ ] high levels of hostility[ and] social withdrawal;”^[68] and (3) resulted in her “not readily discuss[ing] her cases with her supervisor[, which] diminished her performance.”^[69] As the Agency fails to show that the Arbitrator’s findings in this respect are contrary to law, or based on a nonfact, we reject the Agency’s second argument.

 

 

 

In its second contrary‑to‑law exception, the Agency argues that the award is erroneous because, contrary to the Arbitrator’s finding, the Agency offered the grievant RAs – specifically alternative‑meeting arrangements – in accordance with law. Although the Agency concluded that it was not obligated to give the grievant an RA because she was not disabled under the ADA, it asserts that even if the grievant was a qualified individual with a disability – as the Arbitrator concluded – then the Agency’s alternative‑meeting arrangements “enabled [the grievant] to perform the essential functions of her position.”^[70] 

 

The Agency argues that it provided two adequate alternative‑meeting arrangements. First, the Agency moved the grievant’s meetings from her supervisor’s office to a larger vacant office. Then the Agency modified that arrangement by moving the meetings to an even larger conference room, requiring the grievant and the supervisor to sit six feet apart with the door open, and providing for a third party to attend any closed-door meetings.^[71] The Agency also argues that an individual with a disability is not entitled to an RA merely because he or she prefers it.^[72]

 

The ADA requires that an agency must provide RAs for the known limitations of a qualified individual with a disability unless doing so would create an undue hardship.^[73] Section 12111(9)(B) of the ADA provides that RAs may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and other similar accommodations for individuals with disabilities.”^[74] Section 12111(10)      (A)-(B) of the ADA defines “undue hardship” as an “action requiring significant difficulty or expense, when considered in light of . . . (i) the nature of the accommodation needed . . . (ii) the overall financial resources of the facility . . . (iii) the overall financial resources of the covered entity . . . and (iv) the type of operation or operations of the covered entity.”^[75]

 

The Agency’s argument that the Arbitrator erred as a matter of law when he rejected the Agency’s RAs lacks merit. The Arbitrator determined that the Agency’s alternative‑meeting arrangements were not RAs under the ADA because they not only were ineffective to deal with the grievant’s disability, but also contributed to the disability. Specifically, he found that the grievant’s disability “required some relief from face‑to‑face meetings with her supervisor, and the [Agency’s] alternative[-meeting arrangements] continued the interaction that caused the disability.”^[76] Further, the Arbitrator found that the Agency’s alternative‑meeting arrangements not only exacerbated the grievant’s disability, but also “negatively impacted the grievant’s performance.”^[77] The Agency does not challenge these findings as nonfacts. As the Agency provides no additional arguments to support its position beyond those set forth in its first contrary‑to‑law exception             above – which we deny – we find the Agency’s argument that the Arbitrator erred by rejecting its RAs unpersuasive.

 

In addition, regarding the Agency’s argument that the grievant is not entitled to the RA of her choice, the Agency does not allege that the grievant’s requested RAs would have created an undue hardship under § 12111(10)(A)‑(B).  Indeed, as the Arbitrator found, the Agency “permitted similar, even more extensive, accommodations” to other Agency employees.^[78] Specifically, the Agency allowed, for decades, a subordinate of the grievant’s supervisor to work remotely for at least two months each year and to work at home every morning as a RA.^[79] Based on the findings, which the Agency does not challenge as nonfacts, we conclude that the Arbitrator correctly determined that the grievant’s requested RAs “would have been effective, and would not have imposed an undue hardship.”^[80]   Consequently, we find the Agency’s argument concerning the grievant’s requested RAs unpersuasive.

 

 

 

The Agency’s third contrary‑to‑law exception argues that the “Arbitrator’s failure to acknowledge     [the sealed EEOC AJ] decision[ ] and                           [the Arbitrator’s decision] to bar it from the record was an error.”^[81] The Agency asserts that because of this error the Arbitrator “reach[ed] an erroneous conclusion [concerning] the Agency’s obligations under the ADA[].”^[82] We find that the Agency’s argument does not demonstrate that the award is contrary to law. 

 

The Agency’s exception does not cite any law or regulation requiring the Arbitrator to consider the EEOC AJ decision, or make it part of the arbitration proceeding’s record. Additionally, to the extent the Agency argues that the Arbitrator improperly ignored legal precedent when he excluded the EEOC AJ’s decision from the record,^[83] the Agency does not claim that the decision is legally binding on the Arbitrator. Finally, the Agency does not allege in its exceptions that the Arbitrator failed to conduct a fair hearing. 

 

 

 

 

 

 

 

 

 

 

 

The Agency’s fourth and fifth contrary‑to‑law exceptions assert that the Agency “did reasonably accommodate the [g]rievant’s medical condition in accordance with the [ADA] and its implementing regulations, and . . . the Arbitrator’s decision[s] on       [the appraisals and grievant’s removal from the Agency’s telework program] [are] in error.”^[84] The Agency relies on its arguments discussed in its first and second contrary‑to‑law exceptions that (1) the grievant was not a qualified individual with a disability under the ADA, and (2) the alternative‑meeting arrangements the Agency offered were adequate under the ADA.^[85] 

 

It is uncontested that “the Agency removed the grievant from participating in [the Agency’s telework program] after assigning to her a [m]inimally [s]atisfactory performance appraisal.”^[86] However, as described above, the Arbitrator determined that the grievant’s performance was negatively impacted when the Agency failed to grant the grievant’s RA in violation of the parties’ agreement and the ADA. Specifically, he found that her appraisals “did not take into account the grievant’s disability,” and were “improperly issued.”^[87] Therefore, he determined that her subsequent removal from the Agency’s telework program was improper because it was based on her erroneous minimally‑satisfactory rating.^[88]

 

 

 

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