0320080099
11-13-2008
Duane Burcher, Petitioner, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.
Duane Burcher,
Petitioner,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Petition No. 0320080099
MSPB No. CH0752080046I1
DECISION
On August 15, 2008, 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.
Petitioner alleged that he was discriminated against on the basis of
disability1 (residuals of a stroke, short term memory loss) when he was
denied a reasonable accommodation and constructively discharged from
the agency, effective January 31, 2006.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding, among other things, no discrimination.
Petitioner filed a petition for review by the Full Board but his request
was denied on July 9, 2008. Petitioner then filed the instant petition.
On appeal, petitioner argues that agency officials were aware that he
had a medical condition that affected his work performance but failed
to engage in the interactive process to find a reasonable accommodation.
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. Petitioner argues that agency officials failed to
engage in the interactive process. We note initially that an agency's
failure to engage in the interactive process does not, by itself, demand
a finding that a petitioner was denied a reasonable accommodation. See
Broussard v. United States Postal Service, EEOC Appeal No. 01997106
(September 13, 2002). Rather, to establish a denial of reasonable
accommodation, petitioner must show that the failure to engage in
the interactive process resulted in the agency's failure to provide a
reasonable accommodation. Id. In the instant case, however, we find
that petitioner has not shown that the agency failed to engage in the
interactive process. In this regard we note that the record shows that
the Reasonable Accommodation Manager (RMO) was willing to work with
petitioner to find an accommodation but needed more specific information
from petitioner and his physicians about the accommodations he needed
to successfully perform his duties. This information, however, was
not forthcoming. Indeed, petitioner's doctor responded that petitioner
had no impairment limiting his ability to work. Petitioner contends that
agency officials should have found an accommodation for him, but according
to the record, at no time did he tell management exactly what his medical
restrictions were and what jobs he could perform. Furthermore, petitioner
did not show that there was a vacant funded position for which he was
qualified and to which he could have been reassigned.
For the above reasons, 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 (Z0408)
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
November 13, 2008
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that petitioner is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0320080099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080099