03A20095
03-05-2003
Desiree C. Nanette, Petitioner, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Desiree C. Nanette v. Department of the Treasury
03A20095
March 5, 2003
.
Desiree C. Nanette,
Petitioner,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Petition No. 03A20095
MSPB No. DC-0752-01-0198-I-1
DECISION
On September 3, 2002, 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 or Board)
concerning her 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 which follow, the Commission
concurs with the Board's August 7, 2002, Order.
ISSUES PRESENTED
The issues presented herein are whether petitioner has demonstrated
either:
(a) that the agency failed to reasonably accommodate her disability
(physical-chemical sensitivity; lupus; fibromyalgia; chronic fatigue
syndrome; reactive arthritis) by failing to reassign her, or
that the agency retaliated against her based upon her participation in
the EEO process when the agency terminated her effective August 7, 2002.
BACKGROUND
In May 1996, Petitioner developed a respiratory condition that caused
her to be absent from work for the next three months. In December 1996,
petitioner was transferred to an agency facility in New Carrollton,
Maryland. After the transfer, petitioner's condition resurfaced and
eventually became incapacitating, causing her to be absent from work
for most of the next four months. In March 1997, petitioner's doctors
ordered petitioner not to return to the building. Petitioner then
requested and received a transfer to the agency's Bailey's Crossroads,
Virginia facility. Shortly after reporting to work, petitioner became
ill and had to leave the facility. Petitioner then requested and
received a transfer to the agency's Crystal City, Virginia facility.
Shortly after her arrival, petitioner became ill and had to leave the
building. Petitioner remained absent from work for the next eight months.
In December 1997, petitioner attempted, but failed to return to the New
Carrollton facility because of health reasons.
In December 1998, the agency ordered petitioner to report to work
at the New Carrollton facility. Petitioner refused the agency's
order, stating that the building was unsafe and would make her sick.
Petitioner remained absent from work for the next four months. In April
1999, the agency issued a notice proposing petitioner's removal on the
grounds that she was unavailable to perform the duties of her position,
and on the grounds that all attempts to reasonably accommodate her failed.
The agency removed petitioner in June 1999.
At the time of her removal from federal employment, petitioner
had a medical diagnosis of chemical sensitivity syndrome, chronic
fatigue syndrome, respiratory reactive airway disease, undifferentiated
connective tissue disorder, and intolerance to irritants and neurotoxins.
These conditions cause debilitating symptoms whenever petitioner is
exposed to chemical triggers (incitements). Incitements which can trigger
petitioner's symptoms include, cigarette smoke, perfume, cleaning scents,
mold, fiber board, laminated materials, wallpaper, carbon paper, fumes
omitted from computers, persons wearing colognes or scented deodorants,
parking garage fumes, and new carpet. Exposure to harmful incitements
can come from adjacent buildings or parking structures.
Exposure to incitements, even for brief periods, causes petitioner to
experience various symptoms, including, open sores, mental confusion,
rashes, nasal congestion, swelling, tingling in the face, facial
flush, sense of tongue swelling, fatigue, hip pain, painful knees
and ankles, swollen lymph nodes, runny nose, memory problems, and
headaches. Petitioner's symptoms could be triggered by incitements that
are undetectable to the senses or yet undiscovered. Petitioner expects
her condition to continue for the rest of her life. Petitioner was
advised to work at home because failure to do so would require her total
disability within a relatively short period of time.
Following her removal from federal service, petitioner filed a timely
mixed case appeal with the Board alleging that she was terminated in
violation of the Rehabilitation Act as referenced above. On June 28,
2001, the Board issued an initial decision finding that the agency
unlawfully failed to provide petitioner with a reasonable accommodation;
but, finding that petitioner failed to establish that she was retaliated
against. On August 7, 2002, the Board reversed its initial decision, and
ultimately concluded that petitioner failed to establish any violation
of the Rehabilitation Act. In so concluding, the Board also sustained
petitioner's removal. It is from this finding of no discrimination that
the instant petition was filed.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
As an initial matter we note that petitioner has failed to pursue her
retaliation claim. We find no evidence that the agency retaliated
against petitioner when she was removed from federal service, and,
as a result, we affirm the decision of the Board with respect to
petitioner's retaliation claim. We turn now to petitioner's contention
that she was denied a reasonable accommodation. To be entitled to a
reasonable accommodation under the Rehabilitation Act, petitioner must
show that she is a "qualified individual with a disability." See Murphy
v. United Parcel Service, Inc., 527 U.S. 516 (1999). An individual
with a disability is one who, inter alia, has a physical or mental
impairment substantially limiting one or more major life activities.
See 29 C.F.R. � 1630.2(g)(1) - (3). An individual with a disability is
"qualified" if he satisfies the requisite skill, experience, education
and other job-related requirements of the position, and can perform
the "essential functions" of the position with or without reasonable
accommodation. 29 C.F.R. � 1630.2(m).
The parties do not dispute and we will assume, without finding, that
petitioner is an individual with a disability under the Rehabilitation
Act. However, we agree with the Board, that petitioner failed
to establish that she is a qualified individual with a disability.
The record establishes that petitioner is unable to perform the essential
functions of the Program Analyst position for which she was hired, even
with a reasonable accommodation. The record is clear that petitioner
cannot work full-time, onsite, at any of the agency's facilities.
Petitioner wants to work exclusively from home as an accommodation.
However, on the record before us, we concur with the Board's determination
that the essential functions of the Program Analyst position cannot be
performed at home. Specifically, the record provides that the essential
functions of participating in office meetings and conducting field visits
cannot be performed from home.
The discussion of �qualified� does not, however, end at petitioner's
carrier position. As noted above, 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). 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. See Hampton v. United States
Postal Service, EEOC Appeal No. 01986308 (August 1, 2002). Therefore,
in determining whether an employee is "qualified," an agency must look
beyond the position which the employee presently encumbers.<1>
The petitioner has an evidentiary burden in such reassignment cases to
establish that it is more likely than not (preponderance of the evidence)
that there were vacancies during the relevant time period into which
petitioner could have been reassigned. See Hampton, supra. Clearly,
petitioner can establish this by producing evidence of particular
vacancies. However, this is not the only way of meeting petitioner's
evidentiary burden. In the alternative, petitioner need only show that:
(1) he or she 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. Id.
Upon review of the record, we find that petitioner failed to satisfy
his burden. Petitioner has provided thousands of 1999 agency vacancy
listings for various positions at or below her current grade and/or level.
All of these positions are located in an office building or office
complex, and petitioner failed to establish that she was professionally
qualified for these positions. Petitioner has also failed to offer any
evidence that these positions could be accomplished on a full-time basis
from home. As such, petitioner has failed to meet her burden of proving
by a preponderance of the evidence that she was qualified for a vacancy
that existed at the time of her dismissal.
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.
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
March 5, 2003
__________________
Date
1 The 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. 67
Fed. Reg. 35732 (May 21, 2002), to be codified as 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 (revised October 17, 2002) at Questions 25-31. These
documents are available on the EEOC's website at www.eeoc.gov.