NOTE: This disposit ion is nonprecedential.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 Ju stice, of Washington, DC, fo r 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 Appealed from: Arbitrator DecisionNOTE: This disposition is nonprecedential.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 W illiam 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 t he American Federation of Government Employees Local 1770, was terminated as a medical support assistant after 19 years of service for attendance failures that became mo re frequent near the end of his tenure. He received escalating penalties for failu re to comply with leave requirements andalleged abuse of sick leave. He received a notice of reprimand in 2001 for failure to follow proper leave request pr ocedures, three letters of requirement for abuse of sick leave in 2000 and 2003, and an official warning for u nacceptable attendance in 2005. After this warning, he received an additio nal 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 holid ay. The letter of requirement required that he furnish an acceptable medical certificate for each absence chargeable to sick leave. Williams argued before the ar bitrator that the 2006 le tter of requirement and some of the subsequent disci pline were issued by a Dali cia Hunter, another clinic worker. Her supervisor, Sheri Lasater, the Health Systems Specialist and a nonbargaining unit employee, tempor arily promoted her to the re cently vacated Supervisory Medical Clerk position for a term of 120 days. Thirty days into her promotion, Lasater was alerted that Hunter could not be temp orarily promoted because there were higher ranking employees within the organization. In response, Lasater rescinded the temporary promotion but gave H unter a detail setting out extr a duties, including duties to oversee the work flow of the clinic and counsel and train it s employees, while a permanent replacement was found. Hunter serv ed in this detail from January 3, 2006, to June 25, 2006, part of the time within wh ich 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 re mained a bargaining unit employee at all times before and during her promotion a ccording to personnel records.

2008-3021 2Hunter anticipated that Williams could have a prob lematic attendance record, and kept track of when he was absent, the reasons for his absence, and whether he properly requested leave. S he 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. Afte r counseling him of his duties and continued absence, Hunter eventually issued the March 2006 lette r of requirements, and simultaneously proposed a seven day suspens ion. The proposed suspension charged that he had been absent without leave (AWOL) fo r four days, and that he failed to follow established leave procedures for those f our days. Lasater suspended Williams according to Hunter’s proposal on April 11, 2006. Subsequently, and while Hunter was st ill 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 Em ployee 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 docum entation, nor did he s ubmit a leave request form for any of these absences. On June 27, 2006, after Hunter’s detail end ed, Lasater herself issued a notice of proposed removal charging failure to follow inst ructions by not providing an acceptable medical certificate explaini ng his absence, fifteen indivi dual episodes of AWOL, and failure to follow established leave proce dures. The notice stat ed that it was in

2008-3021 3consideration of the 2005 not ice 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 th e 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 pr evious reprimand and suspension had not brought about better attendance. The American Federation of Government Employees filed a grievance on Williams’ behalf, and sought arbi tration. There, they ar gued that he was improperly removed because the underlying discipline us ed 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 cl assified as Family Medical Leave Act (“FMLA”) leave. The ar bitrator concluded: Examined from the standpoint of progressive discipline, the grievant received numerous forms of discipline attempting to modify absence and conduct, ranging from couns eling to a Letter of Reprimand, [and] four Letters of Requirement. These were followed by a seven daysuspension, Notice of Proposed Removal, and Notice of DecisionRemoval. Clearly, the grievant has had an abundance of opportunity to make changes. Although a bargaining unit mem ber 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. T hus, the grievance is denied. We have jurisdiction pursuant to 5 U.S.C. §§ 7121(f), 7703(a)(1), and 7703(b)(1).

2008-3021 4DISCUSSION Our review of arbitrator decisions is narrow. We review them under the same standards that apply to appeals fr om decisions of the Merit S ystems 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 hav ing 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 cert ain conditions, any management official or supervisor. Therefore, he contends, bargai ning unit employees cannot serve as supervisors. He also argues that the Na tional Agreement requires that letters of requirement must be issued to an empl oyee by the “Employer,” and not another employee. He contends t hat because Hunter was a bargai ning unit employee when she issued the 2006 letter of requirement and hi s 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. T he arbitrator found that additi onal support for Williams’ removal came from the 2005 notice of r eprimand issued by Gle nda Lindsay, another

2008-3021 52008-3021 6 person Williams concedes was authorized to issue disciplin e 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 s hould not have been charged, and that he should have been offered FMLA leave instead. The arbitrator appears not to have directly addressed whether FM LA could or should have affe cted the decision to remove. However, this omission is irrelevant because, as the government correctly states, it is incumbent upon the employee to reques t FMLA leave purs uant to 5 C.F.R. §§ 630.1203, 630.1206, and 630.1207. The arbitr ator found that Williams failed to provide notice as required no less than 30 days prior to a foreseeabl e 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 medi cal leave,” except when t he 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 invo ke 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 th e grievance. We have considered Williams’ other arguments and find t hem unpersuasive.