Williams v. Department of Army , 300 F. App'x 920 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3021
DANNY WILLIAMS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Michael J. Snider, Snider & Associates, LLC, of Baltimore, Maryland, for
petitioner. With him on the brief was Jacob Y. Statman.
Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Mark A. Melnick, Assistant Director.
Appealed from: Arbitrator Decision
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3021
DANNY WILLIAMS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Petition for review of an arbitrator’s decision by William Croasdale.
__________________________
DECIDED: November 24, 2008
__________________________
Before MAYER, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Danny Williams petitions for review of an arbitrator’s decision and award denying
his grievance relating to his termination as a civilian medical support assistant for the
U.S. Army. We affirm.
BACKGROUND
Williams, a bargaining unit member of the American Federation of Government
Employees Local 1770, was terminated as a medical support assistant after 19 years of
service for attendance failures that became more frequent near the end of his tenure.
He received escalating penalties for failure to comply with leave requirements and
alleged abuse of sick leave. He received a notice of reprimand in 2001 for failure to
follow proper leave request procedures, three letters of requirement for abuse of sick
leave in 2000 and 2003, and an official warning for unacceptable attendance in 2005.
After this warning, he received an additional letter of requirement on March 13, 2006,
noting that the pattern of abuse still existed, in that most of his sick leave days were
taken consecutively with a weekend or a holiday. The letter of requirement required
that he furnish an acceptable medical certificate for each absence chargeable to sick
leave.
Williams argued before the arbitrator that the 2006 letter of requirement and
some of the subsequent discipline were issued by a Dalicia Hunter, another clinic
worker. Her supervisor, Sheri Lasater, the Health Systems Specialist and a non-
bargaining unit employee, temporarily promoted her to the recently vacated Supervisory
Medical Clerk position for a term of 120 days. Thirty days into her promotion, Lasater
was alerted that Hunter could not be temporarily promoted because there were higher
ranking employees within the organization. In response, Lasater rescinded the
temporary promotion but gave Hunter a detail setting out extra duties, including duties
to oversee the work flow of the clinic and counsel and train its employees, while a
permanent replacement was found. Hunter served in this detail from January 3, 2006,
to June 25, 2006, part of the time within which Williams was disciplined for absence.
Though Lasater believed that Hunter’s promotion triggered a change in her status to
non-bargaining unit employee, she in fact remained a bargaining unit employee at all
times before and during her promotion according to personnel records.
2008-3021 2
Hunter anticipated that Williams could have a problematic attendance record,
and kept track of when he was absent, the reasons for his absence, and whether he
properly requested leave. She noted that Williams gave a variety of reasons for his
absences as they occurred, but also noted that sometimes he failed to report his
absence or offer any explanation at all. After counseling him of his duties and continued
absence, Hunter eventually issued the March 2006 letter of requirements, and
simultaneously proposed a seven day suspension. The proposed suspension charged
that he had been absent without leave (AWOL) for four days, and that he failed to follow
established leave procedures for those four days. Lasater suspended Williams
according to Hunter’s proposal on April 11, 2006.
Subsequently, and while Hunter was still acting under the detail, Williams
continued to exhibit poor attendance, missing thirteen days in May, and four days in
June, not including his inpatient stay at a rehabilitation facility. His reasons included
having an appointment with the Veterans Administration, bronchitis, oversleeping,
lacking transportation, and attendance at Employee Assistance Program meetings
which Hunter confirmed were not actually attended. Hunter also documented that
several of these days Williams neither arrived at work nor called at all to explain his
absence. He did not provide medical documentation, nor did he submit a leave request
form for any of these absences.
On June 27, 2006, after Hunter’s detail ended, Lasater herself issued a notice of
proposed removal charging failure to follow instructions by not providing an acceptable
medical certificate explaining his absence, fifteen individual episodes of AWOL, and
failure to follow established leave procedures. The notice stated that it was in
2008-3021 3
consideration of the 2005 notice of reprimand, and the 2006 seven day suspension, the
latter having been based upon the letter of requirement issued during Hunter’s detail.
Lasater held a meeting with the deciding official Maj. Sonya Shaw and Williams’
union representative Jay Steele to consider the proposal. Maj. Shaw considered the
escalating discipline given to Williams and the effect of his absences on his
organization, as well as the long standing pattern of absenteeism. She decided that,
while the offenses warranted punishment in the range of five days to removal, she
should remove Williams because the previous reprimand and suspension had not
brought about better attendance.
The American Federation of Government Employees filed a grievance on
Williams’ behalf, and sought arbitration. There, they argued that he was improperly
removed because the underlying discipline used to support his removal was invalid in
that it was issued by another bargaining unit employee, and that the charged AWOL
used to support his removal should have been classified as Family Medical Leave Act
(“FMLA”) leave. The arbitrator concluded:
Examined from the standpoint of progressive discipline, the
grievant received numerous forms of discipline attempting to modify
absence and conduct, ranging from counseling to a Letter of Reprimand,
[and] four Letters of Requirement. These were followed by a seven day
suspension, Notice of Proposed Removal, and Notice of Decision-
Removal.
Clearly, the grievant has had an abundance of opportunity to make
changes. Although a bargaining unit member acting in this case may have
suggested discipline, only supervisors are authorized to order discipline.
All prior warnings, the suspension and the termination were done by
authorized supervisory personnel. Thus, the grievance is denied.
We have jurisdiction pursuant to 5 U.S.C. §§ 7121(f), 7703(a)(1), and 7703(b)(1).
2008-3021 4
DISCUSSION
Our review of arbitrator decisions is narrow. We review them under the same
standards that apply to appeals from decisions of the Merit Systems Protection Board.
See 5 U.S.C. § 7121(f); Dixon v. Dep't of Transp., 8 F.3d 798, 803 (Fed. Cir. 1993). We
must affirm the arbitrator's decision unless it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). “Substantial evidence . . . means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938).
Williams argues that pursuant to 5 U.S.C. § 7112(b), a bargaining unit shall not
be organized if it includes, subject to certain conditions, any management official or
supervisor. Therefore, he contends, bargaining unit employees cannot serve as
supervisors. He also argues that the National Agreement requires that letters of
requirement must be issued to an employee by the “Employer,” and not another
employee. He contends that because Hunter was a bargaining unit employee when she
issued the 2006 letter of requirement and his AWOL, and not an “Employer,” this
discipline was invalid ab initio. However, the discipline was not issued by Hunter, but by
Maj. Shaw, a non-bargaining unit employee, after Lasater, another non-bargaining unit
employee suspended Williams in April and proposed his removal in June. As the
arbitrator found, all discipline came from non-bargaining unit employees with only the
suggestion from Hunter. The arbitrator found that additional support for Williams’
removal came from the 2005 notice of reprimand issued by Glenda Lindsay, another
2008-3021 5
person Williams concedes was authorized to issue discipline against him. There is
therefore adequate support from the actions of undisputedly authorized persons for the
arbitrator to conclude that Williams could be terminated. The arbitrator committed no
reversible error.
Williams also argues that his AWOL should not have been charged, and that he
should have been offered FMLA leave instead. The arbitrator appears not to have
directly addressed whether FMLA could or should have affected the decision to remove.
However, this omission is irrelevant because, as the government correctly states, it is
incumbent upon the employee to request FMLA leave pursuant to 5 C.F.R.
§§ 630.1203, 630.1206, and 630.1207. The arbitrator found that Williams failed to
provide notice as required no less than 30 days prior to a foreseeable leave, or within a
reasonable time if the circumstances requiring leave are emergent. See 5 C.F.R.
§ 630.1206. He also failed to provide required medical documentation. See Id.§ 630.1207. Importantly, “an employee may not retroactively invoke his or her
entitlement to family and medical leave,” except when the employee was physically or
mentally incapable of invoking the entitlement during the entire period of absence. Id.
§ 630.1203(b). In such case, he must invoke FMLA within two workdays of returning.
Substantial evidence shows that Williams did not present a non-frivolous invocation of
FMLA before the fact, and was not entitled to it after the fact. There is no reversible
error in the arbitrator’s decision to deny the grievance. We have considered Williams’
other arguments and find them unpersuasive.
2008-3021 6