03a20077
03-04-2003
Arthur R. Cordova, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Arthur R. Cordova v. Department of the Air Force
03A20077
03-04-03
.
Arthur R. Cordova,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A20077
MSPB No. DE 0752000285-I-1
DECISION
On July 19, 2002, Arthur R. Cordova (hereinafter referred to as
petitioner) timely filed a petition with the Equal Employment Opportunity
Commission (the Commission) for review of the Opinion and Order of
the Merit Systems Protection Board (MSPB or Board) dated June 21,
2002, concerning an allegation of discrimination in violation of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).<1>
The petition is governed by the provisions of the Civil Service Reform
Act of 1978 and EEOC Regulations, 29 C.F.R. � 1614.303 et seq. The MSPB
found that the Department of the Air Force (hereinafter referred to as
the agency) did not engage in discrimination as alleged by petitioner.
For the reasons that follow, the Commission concurs with the Board's
decision.
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based
on disability (hearing deficiency and mental disorders) when he was
removed effective April 21, 2000, constitutes a correct interpretation
of the applicable laws, rules, regulations, and policy directives and
is supported by the record as a whole.
In April 2000, petitioner filed an appeal with the MSPB challenging his
removal from the position of Engineering Equipment Operator, WG-10, for
medical inability to perform the essential duties of the position and
claiming, inter alia, that the agency discriminated against him based on
his disabilities. Following a hearing in September and October 2000,
an MSPB Administrative Judge (AJ) issued in Initial Decision (ID) on
November 30, 2000, sustaining the agency's removal action and finding
that the agency did not discriminate against him. On review, the full
Board sustained the agency's action but disagreed with the AJ's finding
that complainant is a person with a disability.
At the time of his removal, petitioner was an Engineering Equipment
Operator, WG-10, at Kirtland AFB (New Mexico). The duties of the
position included operation of engineering and construction equipment
in the maintenance of the grounds and roads, including work on the area
of the aircraft runways and taxiways. See Initial Decision, pp. 2-4;
Position Description, Tab 6, 4p and 4mm. In 1998, responsibility for
airfield maintenance was transferred from military to civilian staff
and was added to the duties of petitioner's position. The additional
duties included working on runways and taxiways (the �flightline�)
and �call back� duties when airfield work was necessary after hours.<2>
In June 1998, while working on the flightline, petitioner became �stuck�
between an active runway and taxiway and became fearful of working there.
He testified also that he had some hearing difficulty and could not
clearly hear all verbal directions from the Control Tower.<3> Beginning
in June 1998, he refused to work any flightline duties or take his
rotation for call back operations; in October 1999, petitioner requested
permanent removal from all flightline duties. However, in February
2000, the agency reminded petitioner that duties on the flightline were
an essential element of his position and that it could not accommodate
him by not assigning him to flightline duty. At that time, the agency
offered petitioner a transfer to the grounds unit with retained pay,
but he declined the transfer and was subsequently removed.<4>
The record contains several letters from his psychiatrist (Dr. E).
In August 1998, he diagnosed petitioner with social anxiety disorder and
obsessive-compulsive disorder, and in October 1999, he also diagnosed
petitioner with recurrent major depression. In a letter dated February
23, 2000, Dr. E stated that petitioner was unlikely to resume the full
duties of his position, and he recommended that petitioner accept the
transfer to the grounds unit.<5> The only documentation in the record
concerning petitioner's hearing is a report of a hearing test in November
1999 conducted by an agency audiologist that noted some hearing loss
and the presence of tinnitus. The report suggested that petitioner wear
protective devices while performing his duties.
In the ID, the AJ found that complainant was a person with a disability
limited in the major life activity of working due to his mental condition
and hearing difficulty. Nevertheless, she found that petitioner could
not be accommodated in his position because the duties could not be
restructured. The AJ found that petitioner did not show that a funded
vacancy existed and that the agency had met its obligation to search
for a reassignment. The Board, on review, concluded that petitioner
was not a person with a disability, because he did not show that he
was substantially limited in a major life activity, holding that to be
substantially limited in the major life activity of working, one must
be precluded from performing either a class of jobs or a broad range of
jobs in various classes.
Although petitioner did not file a statement in support of his request
that the Commission review the decision of the MSPB, in seeking review
by the full Board, petitioner argued, of relevance to our review, that
flightline duties were collateral and not an essential element of his job
assignment; that counsel had accepted the transfer offered to petitioner
in a letter dated March 28, 2000, notwithstanding petitioner's earlier
rejection; and that petitioner was never reassigned to flightline duties.
The agency disputed petitioner's statement of the facts and application
of laws and regulations.
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination constitutes a correct
interpretation of applicable laws, rules, regulations, and policy
directives and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). After considering petitioner's contentions and
thoroughly reviewing the record, the Commission concurs with the MSPB,
finding that the agency did not discriminate against petitioner.
The Rehabilitation Act and the Commission's regulations require federal
agencies to make reasonable accommodation to the known limitations of a
qualified individual with a disability, unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o);
29 C.F.R. � 1630.2(p). See, generally, EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (October 17, 2002) (Guidance). As a threshold matter,
therefore, one claiming protection under the Rehabilitation Act must show
that s/he is an individual with a disability.<6> Although the Board
found that petitioner is not a person with a disability, for purposes
of further analysis, the Commission will assume, without finding, that
petitioner is a person with a disability.
Next, we consider whether petitioner was a qualified person with a
disability. In order to determine whether petitioner is �qualified,�
the fact finder must determine whether, with or without accommodation,
petitioner could perform the essential functions of any position which
he could have held as a result of job restructuring or reassignment.<7>
29 C.F.R. � 1630.2(m); see also 29 C.F.R. � 1630.3 (exceptions to
definition); see Hawkins v. United States Postal Service, EEOC Petition
No. 03990006 (February 11, 1999); Van Horn v. United States Postal
Service, EEOC Appeal No. 01960159 (October 23, 1998). Although petitioner
argued otherwise, the record shows that duties on the flightline,
including call back responsibilities, were an essential function of his
job.<8> Thus, the question of whether petitioner is a qualified person
with a disability turns on whether there was a vacant, funded position
at the equivalent pay or level (or lower) as his current job and to which
he could have been reassigned absent undue hardship. The petitioner has
an evidentiary burden in reassignment cases to establish that it is more
likely than not, i.e., by a preponderance of the evidence, that there were
vacancies during the relevant time period into which petitioner could have
been reassigned. Petitioner can establish this by producing evidence of
particular vacancies, or, in the alternative, petitioner can show that:
(1) s/he was qualified to perform a job or jobs which existed at the
agency, and (2) that there were trends or patterns of turnover in the
relevant jobs so as to make a vacancy likely during the time period.
See Hampton v. USPS, EEOC Appeal No. 01986308 (July 31, 2002).
In this case, because petitioner could not perform one of the essential
functions of his original position, the agency properly considered
reassignment to another position. To this end, the agency offered
petitioner an unfunded position in the grounds unit with pay retention at
his WG-10 rate, but, for reasons that remain unclear, petitioner initially
declined the agency's offer. When his attorney later accepted it on
his behalf, it was no longer available, and complainant did not meet
his evidentiary burden to show that any other position was available.
Thus, we find that the agency properly discharged its duties under the
Rehabilitation Act by offering petitioner an effective accommodation.<9>
See Maxwell v. Department of Veterans Administration, EEOC Appeal
No. 01960916 (June 5, 1998). For the above reasons, the Commission finds
that the agency did not discriminate against petitioner on the basis of
disability when he was discharged.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
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.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
_______________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-04-03______________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2These duties included maintenance, cleaning, and sweeping of the runways
and taxiways, in addition to the areas adjacent to them, at all times.
Further, employees were subject to �call back� duties on a rotating basis,
at which time each worked alone.
3There was testimony from his superiors that instructions from the Control
Tower were infrequent, limited, and not necessary to the performance of
flightline duties.
4In a letter dated March 28, 2000, following issuance of the notice of
proposed removal, petitioner's attorney agreed to accept the position in
the grounds unit with some restrictions; however, the agency determined
that the vacancy no longer existed.
5After Dr. E retired, petitioner consulted Dr. S, also a psychiatrist.
Dr. S testified at the hearing and expressed her concern that petitioner's
mental conditions and any hearing difficulties, which she acknowledged
she was unable to address, might cause him to panic on the flightline.
6An �individual with a disability� is defined as one who: (1) has a
physical or mental impairment that substantially limits one or more
of the major life activities of such individual; (2) has a record of
such impairment; or (3) is regarded as having such an impairment.
29 C.F.R. � 1630.2(g). Major life activities include, but are not
limited to, "functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working." 29 C.F.R. � 1630.2(i). The Interpretive Guidance to the
regulations further notes that "other major life activities include,
but are not limited to, sitting, standing, lifting, [and] reaching."
29 C.F.R. Part 1630 Appendix � 1630.2(i).
7The agency is advised that 29 C.F.R. � 1614.203(g), which governed and
limited the obligation of reassignment in the Federal sector, has been
superseded and no longer applies. 29 C.F.R. � 1614.203(b). The ADA
standards apply to all conduct on or after June 20, 2002, and emphasize,
among other things, a broader search for a vacancy. The ADA regulations
regarding reassignment can be found at 29 C.F.R. �� 1630.2(o) and 1630.9.
Additional information can be found in the Appendix to the ADA regulations
and in the EEOC's Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (October 17,
2001) at Questions 25-31. These documents are available on the EEOC's
website at www.eeoc.gov.
8The agency's assertion that flightline duties, that is, work on
the runways and taxiways in addition to the surrounding area, are an
essential duty of his position are supported by the Position Description
(PD), supra, in communications found in the file, and the testimony of
agency managers. The PD states that the main purpose of the position is
to operate equipment in the maintenance of �base roads and grounds.� The
duties of the position provide for operation of various heavy equipment,
including a �vacuum type sweeper [to] remove snow, debris and foreign
objects from the runways, taxiways, roads, and parking aprons and areas
as necessary;� it is the latter duties that require each employee
to be available for �call back� work. Further, the PD states that
all operations take place on the �roads, runways, taxiways, and ramps
throughout the Base.� Because the areas identified as the site of the
job duties are, in the main, the areas connected to aircraft operations,
i.e., the roads, runways, taxiways, and ramps, we find that duties on
the flightline are an essential function of the position.
9An agency need only provide petitioner an effective, reasonable
accommodation, not necessarily the accommodation s/he prefers.
See Guidance, Question 9.