AFGE Local 709 - Union
Federal Correctional Institute
Englewood, Colorado
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Department of Justice
Federal Bureau of Prisons
Federal Correctional Institute
Englewood, Colorado / )
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FMCS Case No. 15-54388-3
Christel Jorgensen, Arbitrator
APPEARANCES
For the Union: Tom Muther, Minahan & Muther, P.C.; Todd Bull, President, AFGE Local 709.
For the Agency: Tyson Shaw and Adam Boyer, U.S. Department of Justice, Federal Bureau of Prisons
BACKGROUND
The Grievant, Joseph “Mendoza” has been employed at the Federal Correctional Institution as a senior officer. Mendoza suffered an injury on April 14, 2014, while on duty. The injury occurred when a chair broke and snapped back. Mendoza suffered injuries that resulted in a dislocated clavicle, a fracture in the back as well as strains to the rotator cuff and neck and back. The injuries have impacted Mendoza’s mobility and resulted in pain that still continues and has increased over time (Mendoza testimony, TR 37-40). Mendoza filed a claim for worker’s compensation and was on sick leave from April 15, 2014, until he returned to work on temporary assignment duty as a phone monitor in May 2014. A letter dated May 2, 2014, was issued by Warden Denham (UX 1) offering Mendoza temporary alternative work duties. Mendoza claims that he did not receive a copy of the letter but testified that he agreed to the conditions outlined in the document.
The District Office of the Department of Labor denied the worker’s compensation claim. Despite that ruling, Warden Denham on August 1, 2014, offered Mendoza another temporary assignment to work as a lobby officer at the Institution. The supporting document for that reassignment defines the injuries as “non-work related” and the assignment temporary and subject to change based on medical updates. Mendoza accepted this assignment (UX 2). The institution interpreted the medical information to be conflicting and on January 18, 2015, issued an “eight point letter” (UX3) which was responded to by Christopher B. Ryan, M.D (UX 4). Warden Denham interpreted the letter from Dr. Ryan to mean that Mendoza was able to perform the full range of duties and notified Mendoza on January 25, 2015, that he was required to return to full duty or submit a request for leave without pay. Mendoza submitted the request for reconsiderationon January 26, 2015. The request was denied. In February of 2015, the DOL District Office ruling was overturned and remanded back to the District Office. Mendoza has been absent from work in unpaid status. A grievance was filed and referred to arbitration.
There is no dispute that the instant grievance is properly before the Arbitrator and both procedurally and substantially arbitrable.
ISSUE
The Agency framed the issue as follows:
Was the Grievant denied a reasonable accommodation in violation of the ADA, Rehab Act, and DOJ Manual for Providing Reasonable Accommodations, and the Master Agreement when he was denied the opportunity to work a light duty assignment on January 23, 2015? If so, what is the remedy?
The Union framed the issue as follows:
Did the Agency violate the Americans with Disabilities Act and Article 22 of the Master Labor Agreement (MLA) when it revoked Mr. Mendoza’s reasonable accommodations and placed him in an absent without leave (AWOL) status starting in January 2015? With discretion left to the Arbitrator, the Union requested a make whole remedy, attorney fees and compensatory damages.
The Arbitrator frames the issue as follows:
Was the Grievant Joseph Mendoza denied a reasonable accommodation in violation of the Master Labor Agreement, Americans with Disabilities Act and the Rehabilitation Act when he was denied to work a light duty assignment starting January 23, 2015? If so, what is the appropriate remedy?
POSITION OF THE COMPANY
The Agency argues that it acted appropriately and consistent with its obligations under the Labor Agreement and the Rehabilitation Act and that Mr. Mendoza failed to established to show that he suffers from a substantial limitation of a major life activity; is otherwise qualified to perform the essential functions of his job and has suffered an adverse employment decision because of his disability. The Agency supports its argument based on a report from Mendoza’s physician stating that “Mr. Mendoza will be able to perform the duties that are depicted in the position description that was forwarded with your letter” (UX 4, p. 2-3). The Agency requests that the grievance be denied in its entirety.
POSITION OF THE UNION
The Union argues that Mr. Mendoza’s work related injuries constitute a disability as defined by the ADA. The Union further argues that Mr. Mendoza has performed two light duty assignments from May 2014 until January 2015 without incidents and inabilities and the denial for further light duty assignment was solely based on the Agency’s unreasonable and conflicting misinterpretation of Dr. Ryan’s January 15, 2015, correspondence. The Union requests that the grievance be sustained and any and all pay Mr. Mendoza lost as a result of the failure to provide a reasonable accommodation; remove all AWOL references from his record and restore 38 hours of annual and sick leave. The Union also requests compensatory damages and reasonable attorney fees.
DISCUSSION
Article 22, Section a. of the Master Labor Agreement (JX1) states:
The Employer and the Union agree to cooperate in providing equal opportunity for all qualified persons; to prohibit unlawful discrimination in accordance with federal anti-discrimination laws and executive orders; and to promote full realization of equal opportunity through a positive and continuing effort. The Union agrees to become a positive force in this endeavor and to become a partner with the Employer in the exploration and implementation of ideas and programs whereby equal employment opportunities will be achieved.
In this case a violation of Article 22 goes hand in hand with the alleged violation of the ADA. The Union alleges a violation of the ADA and the Rehabilitation Act of 1973, when the Grievant Mendoza was denied reasonable accommodation for what appears to be an injury suffered at work. Testimony and exhibits show that Mendoza was on sick leave from April 15, 2014 until he was assigned to a temporary alternative work duty (phone monitoring duties) on May 2, 2014.He was reassigned as a Front Lobby Officer on August 1, 2014. This position also was defined as a reasonable accommodation. Neither position required response to body alarms; both positions were in a secure environment and there were no issues raised regarding the Grievant’s performance or ability to perform these duties. The position the Grievant held prior to his injury was a custodial position which required direct contact with inmates and response to body alarms and testimony indicated that there appeared to be agreement between the parties that the Grievant was not fit to perform the duties of a custodial officer.
In January of 2015, the Grievant provided additional medical information and the Institution exercised its right to request additional information.On January 18, 2015, the Institution issued and “eight point letter” (UX 3). The letter did not have a description of the actual work requirements of Mendoza’s custodial position or his temporary assignment positions attached but, according to Warden Denham’s testimony (TR p. 178) the letter “talks about the position in the FCI Englewood that are hazardous duty law enforcement”. It appears that the response by Dr. Christopher B. Ryan (UX 4) created the disagreement leading to this grievance and arbitration.
Since Dr. Ryan was not called to testify, I must assume that he relied on information provided by Mr. Mendoza. If Dr. Ryan’s letter is reviewed carefully there are several points that should have raised questions for all parties. The fourth and sixth paragraph both raise the issue of lack of diagnostic testing to determine the full extent of his injuries and treatment due to the denial of the Worker’s Compensation Claim. In the sixth paragraph Dr. Ryan also references lack of detail and the complex way posed by the eight point letter. This should have generated questions by Mr. Mendoza, the Union and, especially, by the Institution.
Testimony by Warden Dunham established that her interpretation of Dr. Ryan’s letter was that Mr. Mendoza was released to return to work as a Senior Officer in the custodial position held prior to the injury. Based on that understanding, Warden Dunham also testified that she only saw the two (2) pages of Union Exhibit 4 (Dr. Ryan letter dated January 15, 2015)and does not remember any of the attached letters dated October 27, 2014, and December 30, 2014. The January 8, 2015, letter (UX 3)was written by Captain Brian Guimond by request of Warden Denham after consulting with the safety department and human resources. There was no testimony as to whether or not Warden Denham reviewed the letter prior to it being sent. The letter written by Dr. Ryan (UX 4) was sent to Captain Guimond and, since Captain Guimond did not testify, there is no explanation in the record as to why Warden Denham did not see the attachments dated October 27, 2014 and December 30, 2014. There also was no testimony or evidence that Warden Denham consulted with Captain Guimond, the safety department, human resources or anyone else prior to making the decision to deny Mr. Mendoza’s request for Reasonable Accommodations in January, 2015.
Article 22, Section a of the Master Labor Agreement (JX 1) clearly states that the Employer and the Union (emphasis added) agree to cooperate in providing equal opportunity for all qualified persons; to prohibit unlawful discrimination in accordance with federalanti-discrimination laws and executive orders; and to promote full realization equal opportunity through a positive and continuing effort.
Dr. Ryan’s letter is dated January 15, 2015. A grievance was filed in February 2015, and referred to arbitration on March 16, 2015. Article 31 – Grievance Procedure, Section a. and b. in the Master Labor Agreement clearly asks the parties to make “a reasonable and concerted effort”(emphasis added) to resolve grievances. There was no testimony or evidence submitted that the parties at any time during the grievance process, after the grievance had been referred to arbitration, or after the reversal of the Worker’s Compensation claimmade any effort individually or jointlytodiscuss the possibility of getting clarification on the questionable parts of Dr. Ryan’s letter or Mr. Mendoza’s condition and ability to perform work.
Based on the evidence and testimony presented in the arbitration hearing and arguments made in the parties’ briefs, I believe that the Grievant, Joseph Mendoza, meets the definition of “disability” and is covered under the ADA and Rehabilitation Act and I issue the following award:
AWARD
The Grievant, Joseph Mendoza, shall be returned to a position that accommodates his restrictions and be made whole. If Mr. Mendoza has or will receive Worker’s Compensation[1] it shall be calculated into the total amount which shall not exceed the amount that Mr. Mendoza would have earned if he had been employed without interruption. In addition, reasonable attorney fees as allowed by the ADA are awarded. I will retain jurisdiction until February 15, 2016.
January 10, 2016
Christel Jorgensen, Arbitrator
1
[1] No information was presented regarding the status of the Worker’ Compensation claim.