                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LAIMA CIGUZIS,                                  DOCKET NUMBER
                         Appellant,                  CB-7121-15-0015-V-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: July 24, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Maureen Willoughby, Esquire, Washington, D.C., for the appellant.

           Katherine Brewer, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review
     of an arbitrator’s decision, which sustained her 30-day suspension.           For the
     reasons that follow, we AFFIRM the arbitrator’s decision.




     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                     2

                                      BACKGROUND
¶2        The following facts are undisputed. The agency proposed to suspend the
     appellant from her Human Resource Specialist (Compensation) position for
     30 days for failure to follow instructions. Request for Review (RFR) File, Tab 8
     at 25-28. The appellant, through her union representative, submitted a written
     reply to the proposed suspension. RFR File, Tab 7 at 68-97. In lieu of issuing a
     decision letter on the proposed suspension, the agency entered into a settlement
     agreement with the appellant and her union representative, which provided,
     among other things, that the appellant would comply with her supervisor’s
     instructions concerning the cleanliness of her workspace and that she would
     correct any documented problems with her workspace within 3 work days of
     receiving written notice from the agency of any such deficiency. RFR File, Tab 8
     at 30-32. The settlement agreement specifically provided that, if the appellant
     failed to meet these requirements, the agency would issue a decision letter
     effecting a 30-day suspension based upon the reasons specified in the prior
     proposal notice.
¶3        Approximately 5 months after the parties entered into the settlement
     agreement, the agency issued a written notice that the appellant needed to clean
     her workspace pursuant to the terms of the agreement, and it offered her supplies
     and other materials to do so. See id. at 34-35. Several weeks later, the agency
     issued the appellant notice that it was imposing the previously proposed 30-day
     suspension because she “made no noticeable effort to follow” the agency’s
     written instruction to clean her workspace. Id. at 39. The appellant’s union filed
     a grievance challenging the agency’s decision to impose the 30-day suspension,
     which was ultimately referred to arbitration under the collective bargaining
     agreement (CBA). Id. at 42-48.
¶4        Following an arbitration hearing, the arbitrator issued a written decision
     denying the appellant’s grievance.    Id. at 7-22.   The arbitrator construed the
     settlement at issue as a last chance settlement agreement (LCA) and found that it
                                                                                            3

     was an enforceable contract. 2 Id. at 13-14, 20-22. The arbitrator further found
     that the appellant breached the LCA when she did not comply with her
     supervisor’s instruction to clean her workspace, that the appellant’s claim that the
     agency breached the agreement by not providing her with a reasonable
     accommodation pursuant to the agreement was not supported by substantial
     evidence, and that she failed to provide medical documentation in support of her
     claim of failure to accommodate disability discrimination. Id. at 21-22.
¶5         The appellant filed a request for review of the arbitrator’s decision, 3 RFR
     File, Tab 1, in which she argues that the arbitrator erred in concluding that she
     breached the terms of the LCA, RFR File, Tab 2 at 5. She further argues that the
     arbitrator erred in finding the agreement valid and in addressing her disability
     discrimination claim. Id. at 6, 12-14. The agency filed a response in opposition
     to the request for review, raising the issue of the Board’s jurisdiction over the
     appellant’s request, and arguing that the arbitrator correctly found that the
     appellant breached the terms of the LCA and that his findings should be affirmed.
     RFR File, Tab 9 at 5, 9-13.




     2
       An LCA is a type of settlement agreement in which a disciplinary or adverse action is
     held in abeyance in exchange for a waiver of certain statutory rights. See, e.g., Link v.
     Department of the Treasury, 51 F.3d 1577, 1583 (Fed. Cir. 1995); Ferby v. U.S. Postal
     Service, 26 M.S.P.R. 451, 453 (1985). Should the employee not comply with the terms
     of the agreement, the previously proposed action is imposed, and the employee’s right
     to challenge the action is limited by the terms of the agreement. Ferby, 26 M.S.P.R.
     at 453, 455-56.
     3
       The appellant originally filed her request for review with the Board’s Washington
     Regional Office, which properly forwarded the request to the Clerk of the Board. RFR
     File, Tab 5; see Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005) (a request
     for review of an arbitrator’s decision filed with an administrative judge should be
     forwarded to the full Board for review), aff’d, 213 F. App’x 993 (Fed. Cir. 2007).
                                                                                            4

                                              ANALYSIS
     The Board has jurisdiction over the appellant’s request for review of the
     arbitrator’s decision.
¶6          The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
     § 7121(d) when the subject matter of the grievance is one over which the Board
     has jurisdiction, the appellant alleged in her grievance that the agency
     discriminated against her in violation of 5 U.S.C. § 2302(b)(1) in connection with
     the underlying action, and a final decision has been issued.                Brookens v.
     Department of Labor, 120 M.S.P.R. 678, ¶ 4 (2014); 5 C.F.R. § 1201.155(a)(1),
     (c).   To establish the Board’s jurisdiction over her request for review, an
     appellant must have raised a discrimination claim under 5 U.S.C. § 2302(b)(1) in
     connection with the underlying action with the arbitrator, and she may only raise
     the discrimination claim with the Board for the first time in a request for review
     if such allegations could not have been raised during the negotiated grievance
     procedure. See Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013),
     aff’d sub nom. Jones v. Merit Systems Protection Board, 589 F. App’x 972 (Fed.
     Cir. 2014); 5 C.F.R. § 1201.155(c).
¶7          Here, each of these conditions is met. The appellant’s grievance challenges
     a suspension for more than 14 days under 5 U.S.C. § 7512, a subject matter over
     which the Board has jurisdiction, and the arbitrator has issued a final decision.
     RFR File, Tab 8 at 7-22, 42-48.           Further, the appellant raised a failure to
     accommodate disability discrimination claim before the arbitrator.            Id. at 12.
     Consequently,      we      find   that    we   have   jurisdiction   to    review    the
     arbitrator’s decision. 4



     4
       The Board lacks jurisdiction over an action taken pursuant to an LCA in which the
     appellant has clearly waived her Board appeal rights. Smith v. Department of the
     Interior, 113 M.S.P.R. 592, ¶ 6 (2010). The LCA in this case is ambiguous inasmuch as
     it does not contain a clear and unequivocal waiver of the appellant’s right to appeal her
     suspension to the Board. RFR File, Tab 8 at 31. The LCA here provides the appellant
     with the right to challenge her suspension consistent with the CBA, which specifically
                                                                                            5

     The record does not establish that the arbitrator erred in interpreting civil service
     law, rule, or regulation in finding that the appellant breached the agreement.
¶8         The standard of the Board’s review of an arbitrator’s decision is narrow;
     such decisions are entitled to a greater degree of deference than initial decisions
     of   the Board’s administrative judges.            Keller v.   Department     of Army,
     113 M.S.P.R. 557, ¶ 6 (2010). Even if the Board disagrees with the arbitrator’s
     decision, absent legal error, the Board cannot substitute its conclusions for those
     of the arbitrator. Id. The Board will modify or set aside an arbitrator’s decision
     only where the arbitrator has erred as a matter of law in interpreting civil service
     law, rule, or regulation. Id.
¶9         We find that the arbitrator properly evaluated whether the appellant
     established that she materially complied with the LCA and whether the agency
     materially breached it, or acted in bad faith.        In her request for review, the
     appellant presents various factual challenges to the arbitrator’s finding that she
     breached the agreement.         RFR File, Tab 2 at 7-10.       She does not, however,
     demonstrate that the arbitrator made an error of civil service law or other legal
     error in reaching this finding. Accordingly, we defer to the arbitrator’s findings
     that the appellant breached the LCA when she did not respond to her supervisor’s
     instruction to clean her workspace in a timely fashion and that the agency did not
     materially breach the agreement.        RFR File, Tab 8 at 20-22.        Insofar as the
     appellant argues that the LCA is unlawful, RFR File, Tab 2 at 5-6, she has
     likewise not provided a basis for disturbing the arbitrator’s findings that the LCA
     was enforceable and not against public policy, RFR File, Tab 8 at 20-22; see
     Keller, 113 M.S.P.R. 557, ¶ 7 (the appellant’s disagreement with the arbitrator’s
     legal conclusions did not evidence legal error).




     references a right to Board appeals, either directly as an “otherwise appealable action”,
     or indirectly, through a request to review an arbitrator’s decision.
                                                                                         6

      We defer to the arbitrator’s conclusion that the appellant failed to establish her
      claim of failure to accommodate disability discrimination.
¶10         In her request for review, the appellant also contends that the arbitrator
      erred in addressing her failure to accommodate disability discrimination claim.
      RFR File, Tab 2 at 11-19. The appellant primarily argues that the arbitrator erred
      in applying the Americans with Disabilities Act Amendments Act of 2008
      (ADAAA) to her claim and that she should have been provided with an
      accommodation after she informed agency officials that she suffered from
      Obsessive Compulsive Disorder (OCD). Id.
¶11         We disagree with both arguments. As a Federal employee, the appellant’s
      disability discrimination claim arises under the Rehabilitation Act of 1973.
      Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 8 (2010).         However, the
      Equal Employment Opportunity Commission (EEOC) regulations implementing
      the Americans with Disabilities Act, as amended by the ADAAA, have been
      incorporated by reference into the Rehabilitation Act, and the Board applies them
      to determine whether there has been a Rehabilitation Act violation. Thome v.
      Department of Homeland Security, 122 M.S.P.R. 315, ¶ 23 (2015); 29 C.F.R.
      § 1614.203(b).
¶12         To prove disability discrimination, the appellant first must establish that she
      is an individual with a disability as that term is defined in the ADAAA and the
      EEOC regulations. Thome, 122 M.S.P.R. 315, ¶ 24 (citing Doe v. Pension Benefit
      Guaranty Corporation, 117 M.S.P.R. 579, ¶ 38 (2012)). The appellant may prove
      that she has a disability by showing that she:       (1) has a physical or mental
      impairment that substantially limits one or more major life activities; (2) has a
      record of such impairment; or (3) is regarded as having such an impairment.
      42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An impairment is considered to
      be a disability if it substantially limits an individual’s ability to perform a major
      life activity as compared to most people in the general population. 29 C.F.R.
      § 1630.2(j)(1)(ii). Major life activities include, but are not limited to, caring for
                                                                                         7

      oneself, performing manual tasks, eating, lifting, bending, concentrating,
      communicating, and working; major life activities also include the operation of
      major bodily functions. 42 U.S.C. § 10012(2).
¶13         In addressing the appellant’s disability discrimination claim, the arbitrator
      noted that included in the elements of a claim of disability discrimination for
      which accommodation is required is a “record of impairment” which normally
      comes from medical documentation. RFR File, Tab 8 at 21. The arbitrator found
      that the appellant failed to provide the agency with such documentation and
      did not give any reasonable justification for failing to do so. Id.
¶14         The arbitrator did not address whether the appellant met her burden of
      proving that she is disabled by showing that she has a physical or mental
      impairment that substantially limits one or more major life activities, or by
      showing that she is regarded as having such an impairment.                 42 U.S.C.
      § 12102(1); 29 C.F.R. § 1630.2(g)(1). He nonetheless properly evaluated whether
      the appellant produced evidence of her alleged mental impairment, and we defer
      to the arbitrator’s factual finding that the appellant failed to provide any evidence
      that she was disabled. RFR File, Tab 8 at 21. Although the appellant contends
      that EEOC regulations state that a mental impairment such as OCD imposes a
      substantial limitation on a major life activity, it is her burden to show that she
      suffers from such an impairment in the first place. Further, the appellant does not
      allege in her request for review that the agency regarded her as being disabled at
      the time of the events at issue in this case. Thus, we defer to the arbitrator’s
      conclusions   regarding   the   appellant’s   failure   to   accommodate   disability
      discrimination claim.     Cf. FitzGerald v. Department of Homeland Security,
      107 M.S.P.R. 666, ¶ 18 (2008) (holding that the Board may make its own findings
      regarding the appellant’s claim of discrimination because the arbitrator “did not
      cite any legal standard when he evaluated the evidence” and his analysis did not
      follow the proper legal framework).
                                                                                           8

      The arbitrator may have erred in not reaching the penalty issue;
      nevertheless, we find that a 30-day suspension is a reasonable penalty
      for the sustained misconduct.
¶15         To the extent that the appellant is arguing that we should set aside the
      arbitrator’s   decision    because   he      did   not   independently   consider   the
      appropriateness of the penalty, we disagree.         In any event, assuming that the
      arbitrator’s decision to not assess whether the penalty was warranted constituted
      legal error, the Board will correct any such error by independently and
      responsibly    balancing    the   relevant     factors   under   Douglas v.   Veterans
      Administration, 5 M.S.P.R. 280, 305-06 (1981), to determine if the imposed
      penalty was reasonable. Douglas, 5 M.S.P.R. at 308.
¶16         First, we note that the arbitrator, in his decision, determined that the
      appellant did not clean her cubicle after being instructed to do so, which in turn
      breached the LCA. We find that the appellant’s breach of the LCA by failing to
      follow supervisory instructions to clean up her workspace is not conducive to a
      stable working atmosphere and is therefore serious and unacceptable.                See
      Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 407-08 (an employee does not
      have the unfettered right to disregard an order merely because there is substantial
      reason to believe that the order is not proper; he must first comply with the order
      and then register his complaint or grievance, except in certain limited
      circumstances where obedience would place the employee in a clearly dangerous
      situation, or when complying with the order would cause him irreparable harm),
      aff’d, 73 F.3d 380 (Fed. Cir. 1995) (Table). Next, the appellant’s 38 years as a
      Federal employee, while significant, does not warrant mitigating the penalty.
      RFR, Tab 8 at 27.
¶17         Also, the fact that the appellant was under a LCA that included a provision
      placing her on probation indicates that she was well aware that any further similar
      misconduct would be grounds for discipline. In addition, the agency noted in the
      proposed suspension letter that the appellant’s failure to follow instructions was
                                                                                          9

      repeated, inasmuch as the “problems with [her] workspace have been
      long-standing,” and created a potentially unhealthy or dangerous situation for
      others, resulting in “odors as well as the attraction of insects and other pests.” Id.
      The agency determined that all these factors negatively affected her rehabilitation
      potential. See id.
¶18         In making our penalty determination, we did not consider, as did the agency
      in its notice of proposed suspension, that the appellant had at least two prior
      disciplinary records because we could not ascertain, based on the record before
      us, if the agency’s consideration of these previous disciplinary actions comported
      with the requirements set forth in Bolling v. Department of the Air Force,
      9 M.S.P.R. 335, 339-40 (1981) (the Board’s review of a prior disciplinary action
      is limited to determining whether that action is clearly erroneous, if the employee
      was informed of the action in writing, the action is a matter of record, and the
      employee was permitted to dispute the charges before a higher level of authority
      than the one that imposed the discipline). However, our review of the record
      makes clear that the agency previously advised the appellant that her engaging in
      this type of behavior would not be tolerated and so she was on clear notice that
      the agency would not condone such misconduct in the future.
¶19         The appellant, moreover, argued that the agency failed to take into account
      her medical diagnosis of OCD as a potential mitigating factor. Evidence that an
      employee’s medical condition “played a part in the charged conduct is ordinarily
      entitled to considerable weight as a significant mitigating factor.” Roseman v.
      Department of the Treasury, 76 M.S.P.R. 334, 345 (1997); see, e.g., Robb v.
      Department of Defense, 77 M.S.P.R. 130, 137 (1997). Even where the condition
      does not rise to the level of a disability, if the agency knew about it before taking
      the action at issue, we may consider the condition in determining the appropriate
      penalty. Roseman, 76 M.S.P.R. at 345. Here, it appears that the agency knew
      about the appellant’s condition because the agency, in a provision of the LCA,
      acknowledges that she claimed to be suffering from OCD.             RFR File, Tab 8
                                                                                       10

      at 30-32.   Nevertheless, the appellant failed to state whether there were any
      treatments or therapies available to ameliorate her medical condition, whether she
      availed herself of those treatments or therapies, or whether her condition and the
      side effects of any prescription drug she might have been taking for her condition
      played a part in the charged conduct.          Hamilton v. U.S. Postal Service,
      84 M.S.P.R. 635, ¶ 19 (1999) (finding that seeking treatment for a medical
      condition that played a part in the charged misconduct indicates a rehabilitative
      potential). Therefore, although we reviewed the appellant’s arguments about her
      medical condition, we find that they are insufficient to mitigate the chosen
      penalty.    See Archerda v. Department of Defense, 121 M.S.P.R. 314, 321-29
      (2014) (finding that the chosen penalty was warranted where the agency proved
      that the appellant failed to follow instructions; although the appellant showed that
      he suffered from Post-Traumatic Stress Disorder, he did not provide sufficient
      documentation about his medical condition and did not establish that he was
      impaired by that condition).
¶20        Accordingly, after considering the relevant factors under Douglas, we find
      that a 30-day suspension is a reasonable penalty for the sustained misconduct.
      Based on the foregoing, we AFFIRM the arbitrator’s decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).       If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                                                                   11

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order.     If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                           12

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
