0320090071
08-18-2009
Carlos Hudson, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Carlos Hudson,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0320090071
MSPB No. AT0752080696I1
DECISION
INTRODUCTION
On June 25, 2009, 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.
BACKGROUND
Petitioner was hired as a Mail Clerk, GS-5, at the agency's facility in
Birmingham, Alabama, on September 18, 2005. Petitioner was diagnosed and
received treatment for Post-Traumatic Stress Disorder or PTSD starting
in February 2006. Petitioner's condition required that he be placed in
a room with windows and that exposure or references to death can trigger
his symptoms. In addition, petitioner had other limitations related to
other conditions such as lifting due to lumbosacral sprain. Due to his
PTSD, petitioner requested a reasonable accommodation in January 31, 2007,
in line with his restrictions regarding the room and exposure to death.
The record indicated that the duties of a Mail Clerk included receiving,
sorting, prepping, scanning, delivering, and handling undeliverable mail.
In addition, Mail Clerks would handle the filing and indexing of folders.
Due to the nature of the work of the agency, several documents received
in the mail room involve death notices such as death benefits, survivor
benefits, and disability benefits which cease at death. Therefore, the
record indicates that it is common to come across references to "death"
in the mail received by the agency. Further, the work of the Mail Clerk
was either performed in a basement space or in the Central Intake Area
(CIA). Petitioner indicated that he could have worked in a room without
windows if he was allowed to take breaks in order to go outside or be
near a window from time to time.
On February 20, 2007, petitioner was assigned duties in the Initial
Claims Taking Unit (ICTU) and the Coal Act Project. The Coal Act project
ended and petitioner encountered death notices in the ICTU. The agency
attempted to place him in another assignment. At this time, the agency
determined that petitioner could perform only 2 of the 90 types of
events within the Mail Clerk position. Petitioner was assigned to these
events: index representative payee and treasury documents. The agency
officials noted that the two assignments did not have enough work for a
full day for petitioner. Furthermore, on May 9, 2007, petitioner again
came across death notices. Petitioner was hospitalized at that time.
Petitioner was issued a proposed suspension on the same date for nine
days for an unrelated issue regarding medical documentation.
On May 15, 2007, petitioner attempted to enter the workplace to
conduct personal business at the credit union located at the facility.
Petitioner was told that he could not enter based on the Deputy Operations
Manager's decision. Petitioner was escorted to the credit union by
his supervisor.
Petitioner returned to duty on June 6, 2007. During this time, petitioner
was given training to fill his day. During his first week back at work,
petitioner requested credit time which was denied. On July 10, 2007,
petitioner requested advance sick leave which was denied. Then on July
17, 2007, the agency requested clarification which petitioner refused
to give a medical release to the agency. Complainant provided some
medical documentation.
The agency provided questionnaires to be filled out by petitioner's
physicians. The questionnaire regarding petitioner's back was returned
to the agency, however, the questionnaire from his psychiatrist was not.
Therefore, the Deputy Operations Manager indicated that she conducted a
search of all available positions at the GS-5 and below level within the
agency. She found only one position for which petitioner was qualified,
namely a Computer Assistant position in Seattle, Washington. However,
the position was not vacant.
On August 30, 2007, the Deputy Operations Manager wrote to petitioner
indicating that they attempted to provide him with a reasonable
accommodation, however, they could not. Thereafter, on September 14,
2007, the agency proposed petitioner's removal which became effective
on November 9, 2007.
Petitioner indicated that he could perform all of the functions of the
Mail Clerk. As such, petitioner filed his claim of discrimination
alleging that the agency discriminated against him on the bases
of disability (PTSD) and in reprisal for requesting a reasonable
accommodation when he was removed from his position. In addition,
petitioner asserted that he was subjected to harassment based on his
disability and in retaliation for requesting a reasonable accommodation
when: he was denied overtime; not permitted to conduct personal business
at the credit union; scrutinized for his work; and denied advance sick
leave.
Petitioner filed an appeal with the MSPB on July 11, 2008. On October 10,
2008, petitioner moved for the matter to be dismissed without prejudices.
The motion was granted on October 15, 2008, and petitioner was instructed
that he may re-file no later than December 31, 2008. On December 30,
2008, petitioner re-filed the instant matter.
A hearing was held and thereafter an MSPB Administrative Judge (MSPB
AJ) issued an initial decision finding no discrimination or harassment.
The MSPB AJ determined that petitioner was not a qualified individual with
a disability. The MSPB AJ indicated that petitioner had not shown that
he could perform the duties of a Mail Clerk, with our without reasonable
accommodation. In particular, the MSPB AJ noted that the Mail Clerk would
not necessarily need to read the mail, however the Clerk would have to
look closely enough to determine the subject matter of the correspondence.
Furthermore, due to the nature of the agency's responsibility to provide
benefits upon death such as one-time death benefits and survivor benefits,
any of the incoming mail could contain a reference to death. Therefore,
the MSPB AJ found that petitioner's limitation regarding encountering
references to "death" rendered him not qualified for the Mail Clerk
position. The MSPB AJ noted that petitioner testified at the hearing
that the word "death" alone does not trigger his PTSD. The MSPB AJ
indicated that at the time, petitioner's medical document noted that he
should not come in contact with documents that "reminded" him of death.
Further, any improvement in petitioner's condition was not communicated
to the agency. Therefore, the MSPB AJ concluded that petitioner could not
have been accommodated within the Mail Clerk position. Further, there was
no other vacant position to which petitioner could have been reassigned.
Accordingly, the MSPB AJ found that petitioner did not establish that
the removal action was discriminatory.
As to petitioner's claim of retaliation, the MPSB AJ determined that
petitioner had not shown that the agency's actions were improper.
Therefore, the MSPB AJ found that his claim of retaliation failed.
PETITION FOR REVIEW
Petitioner then filed the instant petition. Petitioner argues that
the Mail Clerk position consisted of many details and that he could
have preformed any of the folder handling, cave, undeliverable mail,
and wheel details. Petitioner indicated that a clerk did not need
to actually know the content of the documents. Further, petitioner
asserted that he would just have to be assigned only to those details.
In addition, petitioner indicated that the agency had a knee-jerk reaction
to petitioner when it believed that he was volatile due to his need for
a reasonable accommodation for his PTSD. Therefore, petitioner requests
that the Commission find that the removal action was improper.
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).
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.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
For the purposes of analysis, we assume petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
Petitioner must show that he is a "qualified individual with a
disability." 29 C.F.R. � 1630.2(m). Complainant also must show that
s/he is a "qualified" individual with a disability within the meaning
of 29 C.F.R. � 1630.2(m).
We note that the discussion of "qualified" does not end at complainant's
position. The term "qualified individual with a disability," with respect
to employment, is defined as a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position held or desired. 29 C.F.R. � 1630.2(m). Petitioner asserted
that he could have performed the Mail Clerk position at the agency.
In particular, petitioner argued that he could have been assigned to
work folder handling, cave, undeliverable mail, and/or wheel details.
At the hearing, the Chief of the Mail Center testified that the folder
flaps would contain the words death or deceased. Even if petitioner did
not have to read the folder, petitioner would still encounter a reference
to death. This was also the same issue with the cave and wheel sorting
details. As for undeliverable mail, the mail clerk would have to check
the mail's content to determine where it should go. The record showed
that the agency attempted to accommodate petitioner within his position,
however, even within those duties, petitioner was exposed to references
to death. As such, we find that petitioner could not perform the Mail
Clerk position with or without reasonable accommodation.
The term "position" is not limited to the position held by the employee,
but also includes positions that the employee could have held as a
result of reassignment. Therefore, in determining whether an employee
is "qualified," an agency must look beyond the position which the
employee presently encumbers. Accordingly, the agency should consider
reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act (Enforcement
Guidance - Reasonable Accommodation), No. 915.002 (revised October 17,
2002); see also Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). The record
indicated that the agency searched for a new position to which he
could have been reassigned. The result of that search was a Computer
Assistant position in Seattle, Washington. That position was not vacant.
Petitioner has not shown that there was another position to which he
could have been reassigned.
We note that petitioner took issue with the agency's search at the
GS-5 and below levels based on the fact that he has a Masters Degree.
We note that the Commission has stated that "Reassignment does not include
giving an employee a promotion." EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002, Reassignment (revised October 17, 2002). Therefore,
we find no obligation on the agency to reassign petitioner to a position
higher than the GS-5 position.
Therefore, the Commission finds that petitioner was not a qualified.
Accordingly, we conclude that petitioner has not shown that the agency's
removal action was a violation of the Rehabilitation Act.
Retaliation
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For petitioner to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the agency provided legitimate,
nondiscriminatory reasons for removing petitioner, namely he could not
perform the duties of his Mail Clerk position. Therefore, he was removed.
Petitioner has not shown that the agency's reasons were pretext for
unlawful retaliation based on his protected activity. Therefore, we find
that petitioner has not established that the removal action constituted
unlawful retaliation.
Harassment
It is well-settled that harassment based on an individual's disability and
prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson,
477 U.S. 57 (1986). In order to establish a claim of harassment under
those bases, the complainant must show that: (1) he is a qualified
individual with a disability covered under the Rehabilitation Act and/or
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct;
(3) the harassment complained of was based on his disability and/or
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability to the employer. See Flowers v. Southern
Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox
v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Petitioner asserted that he was subjected to harassment based on his
disability and in retaliation for requesting a reasonable accommodation.
Specifically, he asserted that the following occurred: he was denied
overtime; not permitted to conduct personal business at the credit union;
scrutinized for his work; and denied advance sick leave. Upon review
of the record, we find that petitioner has not shown that the alleged
actions occurred was based on his disability or his protected activity.
Furthermore, we find that the alleged harassment did not have the purpose
or effect of interfering with his work performance and/or creating a
hostile work environment. Therefore, we conclude that petitioner has not
established that the agency subjected him to a hostile work environment.
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 (W0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 18, 2009
__________________
Date
2
0320090071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0320090071