Department of the Army, Corps of Engineers, Huntington District, Huntington, West Virginia and American Federation of Government Employees, Local 3729, 0-AR-3751, March 31, 2004, 59 FLRA No. 142.

The Authority, relying on EEOC guidance with respect to the Americans with Disabilities Act (ADA), set aside that portion of an award directing the agency to assign a parking place as a reasonable accommodation because it was contrary to the Rehabilitation Act of 1973. "As the breakdown in the interactive process is traceable to the failure of the grievant to update the information on her disability, . . . the burden of that breakdown falls on the grievant and precludes her from claiming that the Agency failed to provide her a reasonable accommodation."

The grievant suffered an on-the-job injury in 1989 which left her permanently disabled. She had signed a negotiated settlement agreement with the agency in which she was allowed to spend the first and last 40 minutes of her work day in sedentary activities. The agency had also helped her find a parking place close to the Federal building where she worked (for which she was financially responsible).

In December 2000 the grievant asked that she be permitted to use a handicapped parking place in the lot behind the agency's work place. When the agency asked for medical documentation detailing her present functional limitations, she supplied medical documentation for 1992. The agency, noting that it was already providing for her disability based on the 1992 information, concluded there was no change in her condition and therefore no reason to provide her any new accommodation.

The union filed a grievance on her behalf and the arbitrator found, among other things, the agency had violated the agreement when it denied the grievant's request for assignment to a permanent parking space in the rear lot of the agency's building and ordered the agency to assign such a parking place, at no cost to the grievant.

The agency excepted only to that portion of the award directing the agency to assign a parking place in the lot behind the agency's building as a reasonable accommodation. FLRA, relying on EEOC guidance with respect to the ADA, set aside this portion of the award because it was contrary to the Rehabilitation Act of 1973.

When the grievant provided the medical information upon which the accommodation for the 1993 NSA [negotiated settlement agreement] was based, the Agency requested more current information, but the grievant did not provide any. Thus, the Agency was unable to assess whether there had been any change in her condition sufficient to warrant the accommodation which she requested. As the breakdown in the interactive process is traceable to the failure of the grievant to update the information on her disability, under the applicable legal framework the burden of that breakdown falls on the grievant and precludes her from claiming that the Agency failed to provide her a reasonable accommodation.

The union had also filed exceptions concerning the arbitrator's not awarding compensatory damages. FLRA rejected the union's claim regarding compensatory damages because there was no objective evidence in the record supporting a claim for damages. Nor did the arbitrator exceed his authority by failing to address the issue of compensatory damages. FLRA also dismissed without prejudice the union's exception regarding attorney fees, noting that this exception was premature.