UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LAIMA CIGUZIS,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

CB-7121-15-0015-V-1

DATE: July 24, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board