0320180064
10-04-2018
Cristopher N.,1 Petitioner, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cristopher N.,1
Petitioner,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320180064
MSPB No. SF-0752-18-0217-I-1
DECISION
On July 16, 2018, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of the initial decision of the Merit Systems Protection Board (MSPB), which became final on June 15, 2018, sustaining his removal. In the initial decision, an MSPB Administrative Judge (AJ) found that the Agency had not discriminated against Petitioner on the basis of disability when it removed him from his position as an Engineering Equipment Operator. We CONCUR with the MSPB's ultimate determination that Petitioner did not establish that the Agency discriminated against him as alleged.
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 on a thorough review of the record, including Petitioner's arguments in his petition, we find that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him on the basis of disability when it removed him from employment for inability to perform the duties of his position due to a medical condition. The AJ stated that the Agency's Human Resources Specialist (HR Specialist) denied Petitioner's requested accommodation because it would have required the removal of essential functions from his position. The AJ also stated that the HR Specialist looked for but could not find vacant equivalent positions to which the Agency could have reassigned Petitioner. Although he found that the Agency failed to engage in the interactive process because it did not ask Petitioner if he would consider reassignment to a lower-graded position, the AJ noted that such a failure did not by itself violate the Rehabilitation Act. He concluded that Petitioner, who did not identify any vacant lower-graded positions for which he was qualified, did not establish that the Agency denied him a reasonable accommodation.
Petitioner, through his attorney, argues that the Agency discriminated against him because it did not consult with him about available positions. His argument is unavailing. In litigation, an employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period); compare id. with Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (during investigative stage of federal administrative process, agency has obligation to develop adequate investigative record and obtain information about availability of vacant, funded positions). Although Petitioner had a full opportunity to present his case during the hearing on his appeal, he offered no evidence that a suitable vacancy existed. Accordingly, Petitioner has not shown that the Agency discriminated against him on the basis of disability when it removed him from employment.
Consequently, we CONCUR with the final order of the MSPB finding no unlawful discrimination. We conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
_10/4/18_________________
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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