0320180046
07-17-2018
Kennith M.,1 Petitioner, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kennith M.,1
Petitioner,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Petition No. 0320180046
MSPB No. DA-0752-17-0423-I-1
DECISION
On April 10, 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) 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. The MSPB AJ's initial decision became the MSPB's final decision on April 30, 2018.2
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as an IT Specialist (Systems Analysis/Network Services), GS-2210-12, at the Agency's Regional Network Enterprise Center (NEC) in Fort Polk, Louisiana. The position involved the "installation expansion, modernization, or acquisition of voice/data communication systems and associated facilities."
On January 26, 2016, Petitioner filed a Form CA-1, Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, with the U.S. Department of Labor Office of Workers' Compensation Programs (OWCP). Petitioner stated in the form that, on January 15, 2016, he tripped when descending from a high step and injured his knees, hands, shoulder, and face. Petitioner, who underwent surgery in June 2016, did not return to work.
In a January 23, 2017, letter to his supervisor (S1), Petitioner stated that he had "always intended returning to [his] position when medical personnel cleared" him. He also stated that, in May 2016, he "submitted paperwork to [his] new supervisor for [a] possibly less demanding position if cleared by doctors to return and also medical retirement and Social Security Disability." According to Petitioner, his condition was permanent and he was "unable to walk, sit, stand, bend and drive." He stated, "in December 2015 decisions were made by the VA (100% unemployable) [and] Social Security Disability (100% disabled). . . . I am awaiting decisions from OWCP and HR for medical retirement."
By letter dated April 6, 2017, the Director of NEC ordered Petitioner to report to work within five calendar days from his receipt of the letter. He noted that Petitioner's January 23, 2017, letter indicated that he was medically unable to return to work. He also noted that, if Petitioner had limitations because of his medical condition, the Agency would work with him as long as he could perform his position's essential functions with or without reasonable accommodation. Tracking information for the letter shows that the U.S. Postal Service left a notice for Petitioner that it had attempted to deliver the letter on April 8 and that the letter was returned to the Agency on May 10, 2017. S1 testified that she read the letter to Petitioner within 15 days after its return to the Agency. Petitioner has asserted that he did not receive the letter until June 9, 2017.
In a May 9, 2017, letter to Petitioner, the NEC Director proposed to remove Petitioner from his employment "for not being available to perform the full duties of [his] position on a full-time basis due to medical inability to perform the duties of [his] position." The letter stated that Petitioner had not indicated when or if he could return to work and had not provided documentation from his physician clearing him "to perform the full range of duties of [his] position on a full-time basis." The NEC Director subsequently issued a Notice of Removal affirming the charge and removing Petitioner from employment effective June 21, 2017.
Petitioner filed a mixed-case appeal with the MSPB alleging that the Agency discriminated against him on the basis of disability when it removed him from employment. On March 26, 2018, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming the removal and finding no discrimination.
In his decision, the AJ concluded that Petitioner did not prove that the Agency failed to provide him with a reasonable accommodation or subjected him to disparate treatment based on disability. He found that it was undisputed that Petitioner was an individual with a disability. He also found, however, that Petitioner was not an otherwise qualified individual with a disability. Based on Petitioner's description of his medical condition, the AJ determined that Petitioner could not perform the essential functions of his position with or without reasonable accommodation.
The AJ ruled that Petitioner "did not request accommodation and did not adequately provide information concerning his ability to return to his position with an accommodation." The NEC Director and the individual who served as Acting NEC Director until November 2016 testified that Petitioner did not request a reasonable accommodation, including reassignment to a different position. S1 and Petitioner's previous supervisor (S2) also testified that Petitioner did not request reasonable accommodation. Noting that Petitioner did not testify at the hearing, the AJ stated that the directors' and supervisors' testimony was undisputed.
Further, the AJ found that Petitioner presented no evidence that there was a vacant, funded position to which the Agency could have reassigned him. Petitioner asserted in a pleading that he told S2 that he would like to be considered for S2's "old job" and for positions that other employees had formerly held. The AJ noted, however, that there was no evidence that Petitioner was qualified for those positions or that they were vacant and funded. The AJ concluded that Petitioner did not show that there was an accommodation that would have enabled him to perform the essential functions of his position or that he could have been reassigned to an available position.
In addition, the AJ determined that Petitioner did not show that the Agency acted with discriminatory animus. He found that the Agency articulated a legitimate, nondiscriminatory reason for its action and that Petitioner did not show that the articulated reason was a pretext for discrimination. In that regard, the AJ noted that the Agency removed Petitioner because he was medically unable to perform the essential functions of his position with or without reasonable accommodation. Petitioner, who admitted in written communications to the Agency that he could not return to work because of his medical condition, presented no evidence that the Agency's reason was false or inconsistent.
ARGUMENTS IN PETITION
Petitioner argues that S1 was not a reliable witness. He acknowledges that S1 called him on his cell phone and read a letter to him while he was out of town visiting his ill mother at a hospital. According to Petitioner, the telephone connection was bad, he could not hear what S1 said, and he told her that he would have to wait until he returned home to get the letter. He asserts that he did not receive the return-to-work letter in the mail until 11 days before his removal.
Petitioner also asserts that the Agency tried to convince him to drop his OWCP claim and that the Agency did not follow OWCP guidelines. He states that his OWCP "case was finalized and approved" in January or February 2018. He alleges that the Agency terminated his employment because he would not drop the claim.
In addition, Petitioner claims that he "asked for any other job that was opened that was sedentary and anything that didn't require [him] to walk a lot or drive during [his] most painful time periods right before surgery and after surgery."
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Petitioner must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. pt. 1614. app. � 1630.9. Thus, "it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. � 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. � 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5.
Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, and reassignment to a vacant position. 29 C.F.R. � 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. � 1630.2(n); Enforcement Guidance on Reasonable Accommodation, "Reassignment." An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors; if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. The agency, however, may not use reassignment "to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities." 29 C.F.R. pt. 1630 app. � 1630.2(n); see also EEOC Enforcement Guidance: Workers, Compensation and the ADA, EEOC Notice No. 915.002, at Question 21 (employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position without first assessing whether the employee can perform the essential functions of his or her current position with or without reasonable accommodation).
In this case, it is undisputed that Petitioner is an individual with a disability. Based on the evidence of record, however, we agree with the MSPB AJ's determination that the evidence does not establish that Petitioner is a qualified individual with a disability.
Petitioner appears to assert that he is a qualified individual with a disability because he could have performed the essential functions of a sedentary, less demanding position. As the MSPB AJ noted, however, Petitioner did not refute Agency officials' testimony that he did not request a reasonable accommodation. Petitioner stated in his January 23, 2017, letter to S1 that he "submitted paperwork. . . for [a] possibly less demanding position if cleared by doctors to return," but he did not identify the "paperwork" or the date on which he submitted it. He asserts that he "asked for any other job" that he could perform, but he does not cite any evidence to support his assertion.
Further, Petitioner has not identified any vacant, funded position that he could have performed with or without reasonable accommodation. 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 he could have performed the essential functions of the position held or desired with or without reasonable accommodation.
Disparate Treatment
To prevail in a disparate-treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
We assume, for purposes of analysis only and without so finding, that Petitioner has established a prima facie case of discrimination based on disability. We agree with the MSPB AJ's determination that the Agency articulated a legitimate, nondiscriminatory reason for it action and that Petitioner did not establish that the articulated reason was a pretext for discrimination.
The Agency removed Petitioner because he could not perform the duties of his position. Petitioner, who acknowledged that he could not perform his job duties, has not shown that the Agency's explanation is not credible. Similarly, he has not shown that disability-based animus motivated his removal.
Finally, to the extent that Petitioner argues that the Agency's action was in retaliation for his filing of a workers' compensation claim, we note that the filing of such a claim is not protected EEO activity. See Martinez v. U.S. Postal Serv., EEOC Petitioner NO. 03A20043 (Apr. 18, 2002) (filing of a workers' compensation claim is not an activity protected under any of the statutes enforced by the Commission).
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 (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
___7/17/18_______________
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.
2 Petitioner filed his petition prematurely. As his petition was pending when the MSPB's decision became final, the petition is perfected and is now ripe for review.
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