0320150091
03-02-2016
Alfonso T.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alfonso T.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320150091
MSPB No. DC0752130261I2
DECISION
On August 27, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Petitioner worked as a Customs and Border Protection Officer (Program Manager) at the Agency's Office of Field Operations facility in Reston, Virginia. Petitioner alleged that the Agency discriminated against him on the basis of disability when the Agency removed him from his position based on his inability to perform the duties of his position effective December 15, 2012. The record indicates that, as part of his duties, Petitioner was required to carry a firearm and was subject to medical standards, including psychological standards. On January 18, 2012, Petitioner informed a co-worker that he was contemplating suicide and felt that he was not of value to the Agency. Petitioner's co-worker reported the comments to his chain of command, and, as a result, the Agency secured Petitioner's firearm and suspended his Top Secret security clearance. In the months that followed Petitioner was required to undergo a series of evaluations to assess his fitness to perform the duties of his position. Petitioner reported for a physical fitness examination on February 10, 2012, and a psychiatric examination on March 5, 2012.
The examining physician concluded that Petitioner met the criteria for Major Depressive Disorder and that he could not perform all of the duties of his position. Petitioner was placed on administrative leave pending the completion of the fitness-for-duty evaluation on March 23, 2012. On April 30, 2012, based on the results from the physical and psychiatric evaluations, the Agency proposed Petitioner's removal from federal service. On July 25, 2012, Petitioner presented an oral reply to the proposed removal along with a "Suicide Assessment" from his own medical doctors. Petitioner's doctors disagreed with the Agency's medical assessment. On August 22, 2012 Petitioner submitted a personal letter expressing disagreement with his proposed removal. In light of suggestions made in the original assessment, the Agency did attempt to find a vacant, funded position in the local commuting area for Petitioner. The Agency found two positions, both of which Petitioner declined on November 19, 2012. As a result, Petitioner's removal was made effective on December 15, 2012.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency established by preponderant evidence that Petitioner was unable to perform the essential functions of his position. Additionally, the decision held that Petitioner incorrectly argued that the Agency's removal action was discriminatory because it was based on an improper diagnosis, and that he failed to establish that the Agency engaged in disability discrimination. The AJ found the Agency's medical evidence to be more persuasive than that offered by Petitioner; because all of Petitioner's medical experts began their assessments by relying on his version of events, and did not address the findings and conclusions of the Agency's medical determinations. According to the AJ, Petitioner's doctors did not convincingly explain the discrepancies between the information that he relayed to them and the information that he relayed to the Agency doctor.2
Petitioner sought review by the full MSPB Board (the Board), and in an order dated July 24, 2015, the Board agreed with Petitioner's position that he was not required to identify any comparator employees because the Agency's action was explicitly based on his "perceived disability." Additionally, the Board agreed that the AJ should not have denied Petitioner's disability discrimination claim solely for lack of comparator evidence. The Board reasoned that the question in this case was whether Petitioner was qualified, and therefore comparator evidence was not required for the analysis. The Board found that in light of the information obtained in the medical assessments, Petitioner was not able to perform the essential functions of his position without an accommodation, nor had he identified an accommodation that would allow him to perform the position. Additionally, Petitioner declined the offer of two vacant positions he would have been able to perform in light of his disability. Petitioner then filed the instant petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
The Commission finds that the MSPB's decision in the instant matter constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner is an individual with a disability, the MSPB correctly determined that he is not qualified because he was unable to perform the essential duties of his position with or without an accommodation due to his disqualifying condition, nor did he identify an accommodation that would allow him to perform in the position. Likewise, for the reasons set forth in the decision, we do not find that there was a denial of a reasonable accommodation in this case. The record evidence clearly establishes that the Agency engaged in the interactive process with Petitioner in an effort to find a suitable position taking his medical restrictions into account. Petitioner however declined both of the positions offered. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove him was based on any purported disability.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_3/2/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 After talking to Petitioner, the Agency's doctor found that he had eight of the nine symptoms of major depressive disorder.
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