                     NOTE: This disposition is nonprecedential.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                      NOTE: This disposition is nonprecedential.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
