0320110016
10-25-2011
Jonathan Z. Tyler, Petitioner, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Jonathan Z. Tyler,
Petitioner,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Petition No. 0320110016
MSPB No. AT-0752-06-0469-G-1
DECISION
The Merit Systems Protection Board (MSPB or Board) transmitted the
case of Jonathan Tyler v. Department of Justice to the Equal Employment
Opportunity Commission (EEOC or Commission) for a decision based upon
additional evidence which the MSPB obtained pursuant to the EEOC's remand
decision in EEOC Petition No. 0320070017 (June 1, 2007). The EEOC has
redocketed the case as EEOC Petition No. 0320110016, and accepts it in
accordance with the provisions of the Civil Service Reform Act of 1978
and EEOC regulations at 29 C.F.R. §1614.303 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked
as a Correctional Officer at the Agency’s Bureau of Prisons (BOP),
Federal Correctional Institution facility in Edgefield, South Carolina.
On April 10, 2002, Petitioner was in an automobile accident resulting
in an injury to his left arm. Due to the injury, Petitioner could no
longer use his left arm, elbow, or shoulder. In essence, Petitioner’s
accident rendered his left arm “basically paralyzed.” Petitioner was
evaluated by the Agency’s medical Clinical Director (Clinical Director)
in October 2002. The Clinical Director indicated that Petitioner’s left
arm showed evidence of “muscle wasting.” He noted that Petitioner was
unable to move his left shoulder and that it was taped so that his left
shoulder would not dislocate. The Clinical Director also indicated that
there was no range of motion at the elbow area where, again, he found
evidence of “muscle wasting.” In addition, the Clinical Director
stated that Petitioner did not have the muscle strength in his left arm
to hold heavy objects. The Clinical Director concluded that Petitioner
was unable to use his left shoulder or elbow in “any meaningful way.”
Petitioner’s own physician concurred with this assessment and provided
documentation stating that Petitioner was “unable to use his shoulder
or his elbow in any meaningful sense.”
Based on his findings, the Clinical Director determined that Petitioner
was no longer able to perform the physical requirements of his position
as a Correctional Officer. The record indicates that the physical
requirements for a Correctional Officer were the same as those for other
law enforcement positions, including the ability to : walk for up to one
hour; stand for up to one hour; use various firearms including pistols,
rifles and shotguns; perform self-defense movements; drag a body an
extended distance; carry a stretcher with one other person; climb stairs;
and lift objects weighing 25 pounds.
On December 12, 2002, the Agency proposed Petitioner’s removal
for medical inability to perform the essential functions of the
Correctional Officer position. In response, Petitioner requested
reasonable accommodation on December 20, 2002. The record showed that
the BOP Reasonable Accommodation Coordinator (BOP Coordinator 1) worked
on Petitioner’s request from January 2003 through September 2003.
At this point, another coordinator (BOP Coordinator 2) was assigned to
work on Petitioner’s reassignment request until Petitioner was removed
in August 2004. BOP Coordinators 1 and 2, along with Petitioner,
engaged in discussions in order to determine if the Agency could
provide a reasonable accommodation. The record indicated that the
Agency officials determined that Petitioner could no longer work in a
law enforcement position or inside a correctional institution, where
all positions are classified as law enforcement positions. Therefore,
BOP Coordinators 1 and 2 worked with Petitioner in an attempt to locate
a suitable position to which Petitioner could be reassigned. However,
although Petitioner identified a number of potential positions, BOP
Coordinators 1 and 2 determined that they could not find an appropriate
vacant position to which Petitioner could be reassigned.
On April 8, 2004, Petitioner’s removal was again proposed. In response,
Petitioner reiterated his request for a reasonable accommodation.
On August 11, 2004, the Warden of the facility made the final decision to
remove Petitioner. The Warden indicated that he considered reassigning
Petitioner, but there were no available positions to which Petitioner
could be reassigned within a Federal Correctional Institution or within
the Agency as a whole. Petitioner’s employment was terminated effective
August 27, 2004.
Petitioner alleged that the Agency discriminated against him on the basis
of disability (injury to left arm and shoulder) when, effective August
27, 2004, he was removed from his position as a Correctional Officer.
The matter was investigated. Following the investigation, Petitioner
requested a hearing before an EEOC Administrative Judge (EEOC AJ).
The EEOC AJ dismissed the matter as a mixed case complaint and remanded
the case back to the Agency for a final decision with appeal rights to
the MSPB.
The Agency issued a decision finding that Petitioner was not discriminated
against as alleged. The final decision determined that Petitioner was
an individual with a disability entitled to reasonable accommodation,
including reassignment, by the Rehabilitation Act. The decision further
determined that the Agency engaged in an interactive process in order
to identify a vacant funded position to which Petitioner could have
been reassigned. However, the Agency found that, despite efforts over an
18-month period, Agency officials were unable to locate a position either
within the BOP or with other entities within the Agency. Accordingly, the
Agency’s final decision found no violation of the Rehabilitation Act.
Thereafter, Petitioner filed an appeal with the MSPB. A MSPB
Administrative Judge (AJ) held a hearing on the matter on August 22,
2006. Following the hearing, the MSPB AJ issued a decision finding
no discrimination.
In his decision, the MSPB AJ assumed for purposes of analysis that
Petitioner was an individual with a disability as defined by the
Rehabilitation Act. However, the MSPB AJ determined that Petitioner did
not show that there was a reasonable accommodation available, namely a
position to which he could have been reassigned.
The MSPB AJ noted that the Agency’s obligation to find a funded vacant
position for reassignment was limited by 29 C.F.R. § 1614.203(g). Based
on his review of the record, the MSPB AJ found that all positions located
within a correctional facility constituted law enforcement positions,
and Petitioner did not meet the physical requirements. The MSPB AJ then
determined that, pursuant to 29 C.F.R. § 1614.203(g), the Agency was not
obligated to reassign petitioner to another position in another component
or outside the commuting area. Therefore, the MSPB AJ concluded that the
Agency was not required to consider reassigning Petitioner to vacancies
he identified outside the correctional facility, including a receptionist
position with the United States Attorney’s Office or a clerk position
with the BOP’s Atlanta regional office. The MSPB AJ noted that the
Department of Justice’s Equal Employment Opportunity Coordinator (DoJ
EEO Coordinator) had attempted unsuccessfully to arrange a reassignment
for Petitioner to the Federal Bureau of Investigation (FBI). However,
the MSPB AJ found, again, that the Agency was not obligated to seek a
reassignment for Petitioner outside of the commuting area or outside
of the BOP. Accordingly, the MSPB AJ concluded that Petitioner failed
to establish that there was a vacant funded position to which he could
have been reassigned and found no violation of the Rehabilitation Act.
Petitioner filed a petition challenging the MSPB decision with
the Commission. In EEOC Petition No. 0320070017, the Commission
determined that Petitioner was an individual with a disability covered
under the Rehabilitation Act. Tyler v. Department of Justice, EEOC
Petition No. 0320070017 (June 1, 2007). The decision found that it
was undisputed that due to the condition of his left arm, Petitioner
could no longer meet the majority of the physical requirements of his
Correctional Officer position or any other law enforcement position,
and that there was no reasonable accommodation that would effectively
allow him to perform those duties. However, the Commission determined
that Complainant was entitled to the accommodation of reassignment if
a vacant funded position could be located for which he qualified.
The decision then turned to the MSPB AJ’s erroneous application of the
standards of 29 C.F.R. § 1614.203(g) to the case at hand. The Commission
noted that 29 C.F.R. § 1614.203(g), which governed and limited the
obligation of reassignment in the Federal sector, had been superseded by
the time reassignment was considered in this case, and no longer applied.
See 29 C.F.R. § 1614.203(b). Instead, the Americans with Disabilities
Act (ADA) standards apply to all conduct on or after June 20, 2002,
and emphasized, among other things, a broader search for a vacancy.
See 29 C.F.R. §§ 1630.2(o) and 1630.9. See also Appendix to the ADA
regulations; EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act, No. 915.002
(revised October 17, 2002) at Questions 25-31. The Commission found
that the MSPB AJ’s reliance on 29 C.F.R. § 1614.203(g) resulted in a
limitation on Petitioner’s ability to present evidence to support his
claim that the Agency violated the Rehabilitation Act by not considering
the full range of options for reassignment.
Based on his reliance on 29 C.F.R. § 1614.203(g), the MSPB AJ narrowed
the scope of the search for a vacancy to the local commuting area, thereby
excluding testimony regarding Petitioner’s reassignment options within
the Agency in other parts of the country and in other departments within
the Agency. As a result, the Commission found that the record had not
been adequately developed to address the numerous openings and vacancy
announcements within the Agency found in the record. The previous decision
found that Petitioner was denied the opportunity to meet his burden and
show that the there were vacant funded positions to which he could have
been reassigned.1 As such, the Commission found that the matter should
be remanded to the MSPB for the taking of additional evidence on the
issue of whether Petitioner can 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.
In addition, the remand decision provided that the Agency should be given
an opportunity to respond to the evidence presented by Petitioner or to
provide any evidence in support of any defenses that are available to
the Agency.
The matter was remanded to the MSPB AJ for the taking of the additional
evidence. A supplemental hearing was held on July 25, 2007. Agency
officials provided additional testimony specifically addressing the
vacancies during the relevant time and their methods for searching
for vacant funded positions to Petitioner. In addition, the Agency
and Petitioner were provided with the opportunity to supplement the
record with additional information regarding vacant funded positions
and Petitioner’s qualifications for those positions. The transcript
and other evidence gathered during the remand was then forwarded by
the MSPB to this Commission for further deliberation resulting in the
instant decision.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over
mixed case complaints 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.
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.
Petitioner also must show that 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 Petitioner’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). 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).
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 he
could have been reassigned. Petitioner can establish this by producing
evidence of particular vacancies. However, this is not the only way of
meeting his evidentiary burden. In the alternative, Petitioner can show
that: (1) he or she was qualified to perform a job or jobs which existed
at the Agency, and (2) there were trends or patterns of turnover in the
relevant jobs so as to make a vacancy likely during the time period.
Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (August 1, 2002).
In this case, Petitioner has asserted that there were approximately 27
opportunities for jobs between December 2002 and March 2003, and that the
Agency failed to consider reassigning him to any of these positions.
The supplemental evidence obtained by the MSPB indicated that BOP
Coordinators 1 and 2 conducted a search of vacancies within the Agency.
The record showed that a list of openings was generated containing over
350 positions within the Agency which were vacant after Petitioner
requested a reassignment. From that list, some 230 or so positions
were eliminated because they were above Petitioner’s GS-7 level.
Petitioner also indicated that he sought a reassignment in only certain
geographical areas, namely: Greenville, Spartanburg, Anderson, Columbia,
and Charleston in South Carolina; Charlotte, North Carolina; Queens,
Nassau and Suffolk counties in New York; and Atlanta, Georgia.
Based on Petitioner’s requested geographical limits, BOP Coordinator 2
determined that there were only five (5) positions that were available
for consideration. During the testimony, management witnesses stated
that Petitioner did not qualify for three of the five positions because
they had a typing requirement. The record established that Petitioner
could not meet the required 40 words per minute typing requirement.
The record showed that while Petitioner had taken typing classes, he
did not establish that he was able to achieve the 40 words per minute
requirement.
The supplemental hearing sheds more light on the two positions offered by
Petitioner as possible positions to which he could be reassigned. The BOP
Coordinators 1 and 2 testified that both positions were announced at the
GS-5 level which required specialized and technical experience which
Petitioner failed to demonstrate in his resume. Petitioner asserted
that he could have been assigned to a Legal Assistant position in the
U.S. Attorney’s Office. A review of the testimony and the position
description show that Petitioner did not qualify for this position.
Again, Petitioner failed to show that he had the specific knowledge
and experience to perform this position. Further, the position had the
same typing requirement. Therefore, we cannot find that Petitioner was
qualified for the Legal Assistant position.
Petitioner also argued that he could have been assigned to a position
within the Agency’s Atlanta Region. The record included a copy of an
announcement for a Human Resource Assistant position with the Agency’s
U.S. Penitentiary in Atlanta, Georgia. We find that Complainant has not
shown that he was qualified for this position either. Agency officials
testified and the record supported that Petitioner could not work in a
position that included law enforcement duties because of his physical
limitations. Agency officials testified that any position within the
Penitentiary would require law enforcement duties. Based on the evidence
presented, we find that Petitioner has not shown that he was qualified
for the position within the U.S. Penitentiary in Atlanta.
Upon review of the record, we find that the supplemental testimony
and evidence gathered by the MSPB AJ has provided more information and
evidence for the Commission to consider whether Petitioner has shown
that that it is more likely than not that there were vacancies during the
relevant time period into which he could have been reassigned. Based on
the record as a whole, including evidence taken during the supplemental
hearing, we find that Petitioner has not shown that there were vacant
funded positions to which he qualified and could have been reassigned.
We note that Petitioner argued that he applied for 27 positions. However,
upon closer review of the positions, the MSPB AJ noted that a number of
those positions were not with the Agency. Further, Petitioner merely
indicated that he applied for these positions. We note that he has
not demonstrated that he was actually qualified for any of the positions
within the Agency. Therefore, we conclude that Petitioner has not met his
burden to show that the Agency violated the Rehabilitation Act when he was
removed from his Correctional Officer position ,effective August 27, 2004.
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 (Z0610)
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
October 25, 2011
__________________
Date
1 For example, the previous decision noted that no evidence was taken
concerning two positions which Petitioner identified as possibilities for
reassignment, namely a position within the BOP in the Atlanta Regional
Office and another DOJ position with the U.S. Attorney’s Office.
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0320110016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110016