0320100028
07-20-2010
Jorge G. Acosta, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jorge G. Acosta,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320100028
MSPB No. NY0353090217I1
DECISION
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 a Housekeeping Aid, WG-3, at the Agency's Medical Center
in San Juan, Puerto Rico. In August 2000, Petitioner was injured on
the job. Based on his injury, he was unable to perform his position.
Since 2002, the Agency provided him temporary limited duty which
included clerical work which was within his limitations while he was
still assigned as a Housekeeper Aid. On March 15, 2005, the Agency
requested that Petitioner undergo a fitness for duty examination.
When Petitioner failed to appear for the examination a second examination
was scheduled on June 30, 2005. During this time, the Agency requested
that Petitioner report for examinations; however Petitioner failed to
do so. Petitioner at this time also provided medical documentation to
the Agency regarding his limitations. In July 2007, Petitioner provided a
note from his physician. Based on the medical documentation, the Agency
determined that Petitioner was no longer able to perform his Housekeeper
Aid position. The Agency considered reassigning Petitioner to a vacant
funded position. The Agency determined that there were no such positions.
As such, the Agency removed Petitioner effective April 18, 2008.
Petitioner alleged that the Agency discriminated against him on the
basis of disability (back condition) when he was denied a reasonable
accommodation which resulted in his removal effective April 18, 2008.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued
an initial decision finding no discrimination. The MSPB AJ determined
that Petitioner was provided with temporary light duty assignments,
however when it was no longer feasible to continue, the Agency attempted
to reassign him to another position. When no such position could be
found, the MSBP AJ determined that the Agency properly removed Petitioner.
Accordingly, the MSPB AJ concluded that Petitioner failed to show that
the removal action was in violation of the Rehabilitation Act.
Petitioner requested reconsideration from the Board. In its Final Opinion
and Order, the Board upheld the MSPB AJ's finding of no discrimination.
The Board noted that the Agency attempted to reassign Petitioner to
another position. It stated that Petitioner gained a Bachelor's of Arts
degree in accounting and sought higher graded positions within the agency.
The Board indicated the Agency was not obligated to reassign Petitioner
to a higher graded position. As such, the Board sustained the removal
action by the Agency.
Petitioner then filed the instant petition.
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).
To bring a claim of disability discrimination, Petitioner must first
establish that he is disabled within the meaning of the Rehabilitation
Act. An individual with a disability is one who has, has a record of, or
is regarded as having a physical or mental impairment that substantially
limits one or more of his major life activities. 29 C.F.R. � 1630.2(g).
For the purposes of analysis, we assume Petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
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), 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).
Upon review of the record, we find that Petitioner indicated that
he could no longer perform his Housekeeper Aid position based on his
back condition. The Agency sought to reassign Petitioner to a vacant
funded position. The record indicated that the Agency considered other
positions such as one in laundry services; however, Petitioner could not
perform the physical requirements of that position. The record showed
that Petitioner performed clerical work and earned a Bachelor's degree.
Petitioner sought a reassignment to positions at a higher grade than
his WG-3 position. However, we find that the Agency is only required
to place a qualified individual with a disability in a lateral position
or, should one not be available, in a lower-graded position. An agency
is not required place the individual into a higher-graded position in
an effort to satisfy an accommodation request. Enforcement Guidance,
p. 34. Therefore, we find that Petitioner has not shown that there was
a vacant funded position to which the Agency could have reassigned him.
Accordingly, we conclude that Petitioner has not shown that the Agency
denied him a reasonable accommodation when it removed him.
CONCLUSION
Based upon a thorough review of the record, it is the decision of
the Commission to concur with the Final Opinion and Order 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
July 20, 2010
__________________
Date
2
0320100028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0320100028