                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANA BANKS,                                     DOCKET NUMBER
                         Appellant,                  CB-7121-15-0006-V-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: February 27, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.

           Timothy M. O’Boyle, Esquire, Hampton, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has requested review of the arbitrator’s decision that reversed
     her removal for sleeping on duty and awarded her reinstatement without back pay
     and benefits.     The Board’s standard of review of an arbitration decision is
     deferential. The Board will only set aside or modify an arbitration decision if the

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     appellant establishes that the arbitrator erred in interpreting civil service law,
     rule, or regulation.     Robinson v. Department of Health & Human Services,
     30 M.S.P.R. 389, 395-96 (1986). Even if the Board disagrees with an arbitrator’s
     decision, absent legal error, the Board cannot substitute its conclusions for those
     of the arbitrator.     Thus, an arbitrator’s factual determinations are entitled to
     deference unless the arbitrator erred in his legal analysis, for instance, by
     misallocating the burdens of proof or employing the wrong analytical framework.
     Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶ 12 (2013). For
     the reasons set forth below, we GRANT the appellant’s request for arbitration
     review under 5 U.S.C. § 7121(d), and AFFIRM the arbitration decision AS
     MODIFIED, MITIGATING the removal to a 180-day suspension.
¶2        The appellant is a Certified Nursing Assistant for the agency, who suffers
     from sleep apnea. Request for Review (RFR) File, Tab 1, Subtab 8 at 2, 6. The
     agency removed her on November 14, 2013, based on a charge of sleeping on
     duty near a patient whom she was supposed to be supervising. Id. at 1-2. The
     appellant’s union grieved the removal, arguing that the agency committed
     disability discrimination by failing to accommodate the appellant’s sleep apnea
     and that the removal penalty was excessive. RFR File, Tab 1, Subtab 2. The
     matter went to arbitration, and on October 20, 2014, the arbitrator issued a
     decision finding that the removal penalty was too severe and awarding the
     appellant’s reinstatement to her position but without back pay and benefits. RFR
     File, Tab 1, Subtab 8 at 7. He considered that the appellant suffers from sleep
     apnea, the agency had been successfully accommodating her by not assigning her
     to one-on-one patient supervision, and she appears to have fallen asleep on the
     day in question because the agency deviated from its normal accommodation
     routine. Id. at 6. Nevertheless, he found that the appellant shared some of the
     blame because she told her supervisor that she was capable of working
     one-on-one with patients that day when, in fact, she was not. Id. at 6-7.
                                                                                        3

¶3        The appellant has filed a request for arbitration review, arguing that the
     arbitrator erred in not “explicitly” finding that the agency committed disability
     discrimination by failing to accommodate her sleep apnea on the day in question.
     RFR File, Tab 1 at 4-6. She argues that the agency’s failure to accommodate her
     should have resulted in no penalty at all rather than a suspension for nearly 1
     year, that she should be entitled to back pay, and that she should receive an award
     of damages. Id. The agency has filed a response, arguing that the appellant has
     failed to identify any legal error in the arbitration decision. RFR File, Tab 4.
¶4        We find that the arbitrator committed no legal error in finding that the
     appellant failed to prove her disability discrimination claim.     It appears to be
     undisputed that one-on-one patient observations require constant alert attention
     for the sake of patient safety but that they can have a soporific effect if the
     patient is inactive for extended periods of time. RFR File, Tab 1, Subtab 8 at 2-4.
     Thus, this particular assignment was problematic for the appellant, who was
     already predisposed to falling asleep at work because of her medical condition.
     The arbitrator found that, for 3 months, the agency had been accommodating the
     appellant’s sleep apnea by not assigning her one-on-one patient observations.
     RFR File, Tab 1, Subtab 8 at 6. The arbitrator found that the accommodation was
     effective for as long as it was in place and that there was nothing “unusual or
     inappropriate” about it. Id. Nevertheless, the arbitrator found that the appellant,
     due to the unusual circumstance of having reported to the wrong shift, consented
     to her supervisor’s request to perform a one-on-one patient observation. Id. at
     6-7. He found that she should not have consented to this and that she misled the
     agency about her ability to perform the task safely.         Id. at 7.    Given the
     arbitrator’s finding that the appellant disavowed her need for an accommodation
     on the day in question, we find no basis to determine that the agency committed
     disability discrimination by failing to accommodate her.             See Beard v.
     Department of Energy, EEOC DOC 0120112979, 2013 WL 2146805 *3 (May 9,
     2013) (the agency did not discriminate against the complainant by failing to offer
                                                                                       4

     him a reasonable accommodation because the complainant informed the agency
     that he did not need an accommodation).
¶5        Nevertheless, we agree with the appellant that her reinstatement without
     back pay is tantamount to a time-served suspension. RFR File, Tab 1 at 3; see
     Greenstreet v. Social Security Administration, 543 F.3d 705, 707-10 (Fed. Cir.
     2008); see also 5 U.S.C. § 7501(d) (“suspension” means the placing of an
     employee, for disciplinary reasons, in a temporary status without duties and pay).
     We defer to the arbitrator’s reasoned and explained finding that the removal
     penalty should be mitigated, RFR File at 7; see Fulks v. Department of Defense,
     100 M.S.P.R. 228, ¶ 29 (2005), but we do not defer to the arbitrator’s ultimate
     penalty selection of a time-served suspension.
¶6        The U.S. Court of Claims first addressed time-served suspensions in Cuiffo
     v. United States, 137 F. Supp. 944 (Ct. Cl. 1955). There, the court set aside Mr.
     Cuiffo’s time-served suspension as “arbitrary and unfair” because it was
     “determined by accident, and not by a process of logical deliberation and
     decision.”   Id. at 950.   Relying on Cuiffo, the Board and the U.S. Court of
     Appeals for the Federal Circuit have held that mitigating a removal to a
     time-served suspension without articulating a basis for the length of the
     suspension is inherently arbitrary and that the arbitrary penalty is not entitled to
     deference. See, e.g., Greenstreet, 543 F.3d at 707-10; Fulks, 100 M.S.P.R. 228,
     ¶¶ 23, 29; Belldina v. Department of Justice, 50 M.S.P.R. 497, 501-02 (1991).
¶7        The appellant in Fulks, who suffered from narcolepsy, was removed for
     sleeping while on duty and failing to follow established leave procedures,
     resulting in his being absent without leave. Fulks, 100 M.S.P.R. 228, ¶ 2. The
     arbitrator found that Mr. Fulks should be reinstated as of the date of his decision,
     thereby effectively mitigating the removal to a time served suspension of 20
     months and 13 days. Id., ¶ 22.      On review, the Board noted that in Cuiffo,
     Belldina, and Montalvo v. U.S. Postal Service, 50 M.S.P.R. 48, 50-51 (1991), the
     Court of Claims and the Board had found time-served suspensions inappropriate
                                                                                        5

     because the penalty in those cases was determined by accident, i.e., by reference
     to the length of time taken by the appeal or other administrative review process.
     Fulks, 100 M.S.P.R. 228, ¶ 27. The Board found that the arbitrator’s mitigation
     of Mr. Fulks’s removal to a time-served suspension was not entitled to deference
     because the record “le[ft] no doubt that the unusual length of the suspension to
     which the arbitrator mitigated the appellant’s removal was determined by
     reference to the time that had elapsed since that removal.”         Id., ¶¶ 28-29. In
     particular, the Board found that the arbitrator appeared to have relied on his
     analysis of the factors for determining the appropriateness of a penalty set forth
     in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981), only as a
     basis for finding that Mr. Fulks was entitled to reinstatement in his former
     position.   Fulks, 100 M.S.P.R. 228, ¶ 28. The Board found, however, that the
     arbitrator’s decision that mitigation was warranted was entitled to deference, and
     it mitigated the penalty to a 120-day suspension. Id., ¶¶ 29, 31.
¶8        In Greenstreet, the petitioner was terminated from his position as an
     Information Technology Specialist with the Social Security Administration for
     damaging a computer and other office equipment in an apparently isolated
     outburst. 543 F.3d at 706. Mr. Greenstreet conceded that his conduct had been
     improper but argued that termination was too severe a penalty. Id. Applying the
     Douglas factors, the arbitrator found that termination was an excessive penalty
     and ordered Mr. Greenstreet reinstated without back pay, thereby effectively
     mitigating the termination to a time-served suspension. Id.
¶9        The Federal Circuit vacated the arbitrator’s imposition of a time-served
     suspension, finding that the length of the suspension was arbitrary because it was
     based solely on time served. Id. at 710. In that regard, the court noted that,
     although the arbitrator conducted an analysis under the Douglas factors, his
     analysis was directed entirely toward whether termination was an appropriate
     penalty and his opinion contained no findings or analysis concerning the
     appropriate length of Mr. Greenstreet’s suspension.     Id. The court concluded,
                                                                                               6

      “[T]he reasoning of Cuiffo, consistent with the holdings of the MSPB, is sound
      and [we] hold that the length of a suspension is arbitrary when it is based solely
      on the suspended employee’s ‘time served’ awaiting decision.” Id. (citing Fulks,
      100 M.S.P.R. at 239).
¶10         As in Greenstreet and Fulks, the arbitrator in this case considered the
      Douglas factors only to determine whether the removal should be mitigated to a
      suspension. RFR File, Tab 1, Subtab 8 at 6-7. The lengthy suspension that he
      imposed was not based upon these factors but was instead based on the amount of
      time it took to process the grievance, plus however much time it would take for
      the agency to return the appellant to a paid status. 2 Id.; see Cuiffo, 137 F. Supp.
      at 950 (the length of the suspension ordered by the grievance review board was
      arbitrary and unfair, in part, because it was dependent on the amount of time it
      took the agency to “get around to reinstating” the employee). The Board does not
      recognize administrative processing time as an appropriate penalty factor. Fulks,
      100 M.S.P.R. 228, ¶ 27.         Accordingly, we will substitute our own penalty
      determination based on the arbitrator’s findings of fact.                  See Belldina,
      50 M.S.P.R. at 502; Montalvo, 50 M.S.P.R. at 50.
¶11         The arbitrator found that the offense in this case was serious because it
      endangered the health of the patient whom the appellant was supposed to be
      monitoring. RFR File, Tab 1, Subtab 8 at 5; see Ramirez v. Department of the
      Treasury, 14 M.S.P.R. 291, 293 (1983) (the appellant’s offense of sleeping on
      duty was serious because it occurred in a potentially dangerous situation in which
      the safety of others depended upon his attention to duty). Furthermore, although
      the appellant’s sleeping on duty may not have been intentional in itself, she
      knowingly allowed herself to be placed into a situation in which this was likely to


      2
        The appellant alleged in her request for arbitration review that the agency had still not
      returned her to duty as of November 17, 2014. RFR File, Tab 1 at 1, 3. The agency
      does not dispute this allegation. It therefore appears that the appellant’s time served
      suspension lasted for at least 368 days and, for all we know, it is ongoing.
                                                                                    7

happen.   RFR File, Tab 1, Subtab 8 at 7; see Douglas, 5 M.S.P.R. at 305 (in
assessing the seriousness of an offense, the Board will consider whether the
offense was intentional or inadvertent). We also find that the appellant’s sleeping
on duty went directly to the heart of the agency’s mission of providing patient
care. See L’Bert v. Department of Veterans Affairs, 88 M.S.P.R. 513, ¶ 22 (2001)
(the appellant’s failure to carry out her job responsibilities was inconsistent with
the agency’s mission of providing medical care to veterans); Dempsy v. Veterans
Administration, 8 M.S.P.R. 222, 227 (1981) (the appellant’s poor patient care
adversely affected the agency’s mission to provide for the care and well-being of
patients). Furthermore, although the appellant is not a supervisor or manager, it
appears to us that her duty of rendering attentive patient care, sometimes in an
unsupervised environment, entails a considerable level of trust and responsibility.
See Douglas, 5 M.S.P.R. at 305 (the Board will consider the nature of the offense
as it relates to the appellant’s duties, position, and responsibilities). In addition,
this is not the only incident in which the appellant was found sleeping on duty;
there was another incident that occurred just 3 months prior. RFR File, Tab 1,
Subtab 8 at 2, 5; see Douglas, 5 M.S.P.R. at 305 (the Board will consider an
appellant’s   disciplinary   history   in   making   its   penalty   determinations).
Nevertheless, the appellant’s sleep apnea played a large part in her misconduct
and, although it does not excuse the misconduct, it is a significant mitigating
factor.   See Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345
(1997). Furthermore, the arbitrator found that the appellant has sought treatment
for her sleep apnea and that it is now under better control than it was at the time
of the incident underlying the removal, thus suggesting that she may have
rehabilitative potential. RFR File, Tab 1, Subtab 8 at 6; see Bond v. Department
of Energy, 82 M.S.P.R. 534, ¶ 6 (1999). Finally, apart from the sleeping issue,
the appellant had approximately 5 years of satisfactory service leading up to her
removal. RFR File, Tab 1, Subtab 8 at 2, 6; see Vigil v. Department of Veterans
                                                                                       8

      Affairs, 46 M.S.P.R. 57, 60 (1990) (the appellant’s 5 years of satisfactory service
      were a mitigating factor).
¶12        Weighing these factors together, and in light of the arbitrator’s finding that
      mitigation is warranted, we find that a suspension of 180 days is the most
      appropriate penalty.

                                            ORDER
¶13        We ORDER the agency to cancel the appellant’s removal and to substitute a
      180-day suspension, effective November 14, 2013.             See Kerr v. National
      Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984).            The agency must
      complete this action no later than 20 days after the date of this decision.
¶14        We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶15        We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶16        No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the Clerk of the Board if the appellant believes that the agency did not fully
      carry out the Board’s Order. The petition should contain specific reasons why the
      appellant believes that the agency has not fully carried out the Board's Order, and
                                                                                     9

      should include the dates and results of any communications with the agency.
      5 C.F.R. § 1201.182(a).
¶17        For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.

                     NOTICE TO THE APPELLANT REGARDING
                           YOUR RIGHT TO REQUEST
                          ATTORNEY FEES AND COSTS
           You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set out at Title 5 of
      the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
      regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
      you believe you meet these requirements, you must file a motion for attorney fees
      WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                       You
      must file your attorney fees motion with the Clerk of the Board.

                     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:
                                                                                   10

                           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
                                                                          11

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
                                                                                               12

                                                      DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                  CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if app licable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work durin g the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicab le) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
                                                                                          13




NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3.    Outside earnings documentation statement from agency.
4.    If employee received retirement annuity or unemployment, provide amount and address
to   return monies.
5.    Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
      a. Must provide same data as in 2, a-g above.
      b. Prior to conversion computation must be provided.
      c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
