0320150085
02-10-2016
Bryant F.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryant F.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320150085
MSPB No. SF-0432-14-0539-I-1
DECISION
On July 9, 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 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 findings of no discrimination.
BACKGROUND
Petitioner worked as a Program Analyst, GS-11, at the Agency's Health Administration Service, Nursing and Patient Care Service facility in San Diego, California. Petitioner alleged that the Agency discriminated against him on the basis of disability (back and neck) when he was removed from his position for unacceptable performance. Specifically, the Agency charged that Petitioner's performance was unacceptable in the critical elements of Program Administration Management and Planning, and Communication. Petitioner alleged that he did not under perform and that any performance issues were caused by the Agency's failure to accommodate him or to provide assistance.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner was working under approved accommodations that directed the Agency to: (1) provide him with an ergonomic chair and a sit-and-stand desk; (2) restructure his daily activities to require data entry in no more than 30-minute intervals; (3) recommend a desk audit to determine if the job duties of the position description were accurate; and (4) provide assistance on a temporary basis to clean up his backlog of past assignments while he performed his daily duties.
The AJ found that Petitioner was an individual with a disability and while assuming without deciding that Petitioner was a qualified individual with a disability, the AJ determined that Petitioner failed to establish that the Agency violated its duty of reasonable accommodation when it allegedly failed to provide him assistance with the backlog and failed to provide the desk audit. The AJ determined that the record showed that the Agency provided Petitioner with assistance in clearing up his work backlog pursuant to the reasonable accommodation memorandum. Additionally, the Agency did not require during the PIP period, that Petitioner perform the additional duty of CDI reporting that precipitated the requested accommodation of the desk audit.
Thereafter, Petitioner sought review by the Full Board. The Board found that the AJ properly found that Petitioner failed to prove his affirmative defense of disability discrimination based on a failure to accommodate. Petitioner then filed the instant petition. Petitioner contends that when the Agency did not provide a desk audit it failed to properly accommodate him as a desk audit was an explicit part of the accommodations he was promised, and the Agency's decision not to provide him with one, without any further meeting or discussion, was a failure to provide him with accommodation.
In response, the Agency maintains that during the period of his PIP, Petitioner alleged that his performance was adversely affected by the Agency's failure to reasonably accommodate his disability. During the period of the PIP, the Agency indicated that it would provide the following accommodations: (1) ergonomic chair and sit-and-stand desk; (2) restructure of daily activities to require data entry in no more than 30-minute intervals; (3) recommend a desk audit to determine if the job duties in the position description were accurate; and (4) provide assistance, on a temporary basis, to liquidate the backlog of past assignments. The memorandum approving the request for accommodation included a notation that Petitioner and his supervisor had described additional duties that had been given to the Petitioner over time. Consequently, the purpose of the desk audit was to determine whether Petitioner's position description was accurate. However, the Petitioner's supervisor subsequently discovered that a desk audit was not necessary; and that it was appropriate, instead, to update the position description to include the duties at issue. The additional duties were the monthly preparation of reports of Clostridium Difficile Infection (CDI) data. However, during the PIP period, Petitioner's supervisor removed the CDI reports from the Petitioner's responsibilities; consequently, those duties were not considered in evaluating his performance during the PIP.
The Agency also maintains that Petitioner did not explain the rationale for his belief that a desk audit would have enabled him to perform the essential functions of his position. It is the Agency's position that the purpose of the desk audit was not to enable Petitioner to perform the essential functions of his job; but was, instead, to determine whether Petitioner's position description was accurate if he prepared CDI data reports. Once the decision was made that Petitioner would not be responsible for the preparation of CDI data reports during the period of the PIP, there was no longer any reason to conduct a desk audit. The Agency requests that the Commission concur with the MSPB's decision.
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 agree with the MSPB's finding that Petitioner did not demonstrate that he was denied an accommodation. We find that assuming arguendo, that Petitioner is a qualified individual with a disability; the Agency did not deny him a reasonable accommodation. With regard to Petitioner's assertion that he was denied an accommodation when a desk audit was not performed, we note that the Agency agreed to "recommend" a desk audit to determine if the job duties in the position description were accurate. Once his supervisor determined to remove the CDI data reports function from his work load during the PIP an audit to determine if the CDI reports were a part of his position description was not needed. On appeal, Petitioner argues that the decision to remove the CDI reports from his duties and therefore to alleviate the need for a desk audit was made without any discussion or agreement from him. We find that this fact, alone, does not establish that he was denied an effective accommodation.
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.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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