0320150089
02-10-2016
Alva C.,1 Petitioner, v. Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alva C.,1
Petitioner,
v.
Davita Vance-Cooks,
Public Printer,
United States Government Printing Office,
Agency.
Petition No. 0320150089
MSPB No. DC-0752-14-0667-I-1
DECISION
On August 12, 2015, Petitioner filed a timely 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons stated below, the Commission concurs with the MSPB's decision which found that Petitioner did not demonstrate that he was subjected to discrimination or reprisal.
BACKGROUND
Petitioner worked as a Motor Vehicle Operator at the Agency's facility in Washington, D.C. On April 10, 2014, the Agency removed Petitioner from his position as a Motor Vehicle Operator for failure to possess a valid commercial driver's license (CDL) and failure to perform the essential functions of his position. Petitioner filed an appeal challenging his removal and asserted affirmative defenses of disability discrimination and reprisal for his prior equal employment opportunity (EEO) activity. Specifically, Petitioner maintained that the Agency removed him in reprisal for filing an EEO complaint and a Board appeal challenging his prior removal. He also asserted that the Agency denied him a reasonable accommodation in the form of a reassignment to a light-duty position and subjected him to disparate treatment based on his disability.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner's removal. The AJ found that Petitioner's removal was reasonable and promoted the efficiency of the service because Petitioner's failure to maintain a CDL directly impacted his ability to perform his job duties. The AJ also found that Petitioner failed to prove his affirmative defenses that the Agency denied him a reasonable accommodation, treated him differently based on his disability and retaliated against him for his prior EEO activity. The AJ found that Petitioner did not show that this removal was due to his disability as the record showed that Petitioner was removed because he failed to maintain a CDL which was essential for his position. Petitioner's CDL was suspended by a Judge because of his tickets and fines. The AJ also found that Petitioner did not identify a similarly situated comparator who was treated more favorable than he was.
The AJ found that Petitioner did not prove his reprisal claim as the proposing and deciding officials were not aware of Petitioner's prior EEO complaint or Board appeal.
Thereafter, Petitioner sought review by the full Board. On review, Petitioner challenged the AJ's finding that he failed to prove his disability discrimination claim based on a failure to accommodate. He alleged that the AJ improperly determined that he failed to request a reasonable accommodation and that the Agency ignored medical documentation he submitted from his doctor requesting that he be placed on light duty with a lifting restriction of thirty pounds or less and instead, improperly returned him to full duty and required him to lift up to fifty pounds. The Board found that even assuming arguendo that Petitioner was a qualified individual with a disability the AJ found that there was no nexus between Petitioner's disability and his removal because his failure to maintain a valid CDL was due to unresolved tickets and fines, not his medical condition and, in any event, the denial of a CDL was not a decision over which the Agency had any control. The Board also agreed that Petitioner did not show that other employees were allowed to continue as drivers when they did not have a CDL. Finally, the Board noted that as Petitioner did not dispute the reprisal claim it would not be addressed.
Petitioner then filed the instant petition. Petitioner asserts, among other things, that the Agency did not provide him with an accommodation. Moreover, he asserts "the Agency should have sent him for a fitness for duty test before it tried to put him back in to the commercial driver job." Petitioner argues that, on November 25, 2013, when he was called back to work he was using oxycodone that had been prescribed by his physician. Petitioner maintains that putting him back in his position would have been dangerous for him and the general public. Petitioner argues that he could have been given something else to do while waiting to fix the problem with his CDL.
In response, the Agency maintains that Petitioner was removed from his position because he failed to maintain a valid Commercial Driver's License. Management asserts that Petitioner never requested, made application for, or submitted documentation supporting a reasonable accommodation request. In fact, management maintains that in a telephone call on December 23, 2013, Petitioner informed his supervisor that he had no intention to apply for a reasonable accommodation. When the supervisor asked Petitioner if he was sure, Petitioner replied, "I'm not going to put in for it; all I want is a chair." Petitioner was told to submit documentation from his doctor supporting his request for a chair. Petitioner failed to submit medical documentation supporting his request for a chair.
Management also maintains that Petitioner's Worker's Compensation file revealed that he had previously refused to accept a position that met his 30 pound lifting restriction. The file also indicated that any alleged injury sustained by Petitioner in the past would have been long resolved by the time he was recalled to work in November 2013. Finally, it was noted by the Agency that Petitioner still had not corrected his CDL problem by January 2014.
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). In the instant case, we find that the MSPB correctly analyzed this case. We find that even if we assume arguendo that Petitioner established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was removed from his position because he failed to obtain the required CDL needed for Motor Vehicle Operators. We agree that Petitioner did not show that similarly situated individuals were allowed to retain their job after their CDL was suspended.
Further, we find that Petitioner did not demonstrate that he was denied a reasonable accommodation. Even assuming arguendo that Petitioner was a qualified individual with a disability, the record simply does not show that the Petitioner's removal was based on his disability or that the Agency treated similarly situated nondisabled employees differently. The record showed that there was no nexus between Petitioner's disability and his removal because his failure to maintain a valid CDL was due to unresolved tickets and fines, not his medical condition. Consequently, we find that any alleged failure by the Agency to accommodate his lifting restrictions played no role in the reason Petitioner was removed.
With respect to Petitioner's contentions on appeal, we note that the record indicates that, upon his return to work, Petitioner was asked if he was requesting a reasonable accommodation. The record shows that Petitioner was provided with a letter which outlined the procedures for requesting a reasonable accommodation and was instructed that he needed to identify any specific accommodation he was requesting, and he was informed that he had to submit medical documentation in support of his request by December 27, 2013. Petitioner did not respond to the letter or submit any medical documentation. We agree that Petitioner did not demonstrate that he was entitled to a reasonable accommodation as he was removed based on his failure to maintain a CDL and not because of his 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 Mdden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/10/16________________
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.
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