0320180049
08-10-2018
Lewis Z.,1 Petitioner, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lewis Z.,1
Petitioner,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320180049
MSPB No. DE-0752-17-0388-I-1
DECISION
On April 30, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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. For the reasons that follow, we CONCUR with the MSPB's Final Order.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's finding that Petitioner did not establish that the Agency discriminated against him on the basis of disability when it removed him from employment.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Facilities Project Management Specialist, GS-0301-09, at Offutt Air Force Base, Nebraska. The parties stipulated that part of Petitioner's core duties involved duties as the USSTRATCOM Command Safety Representative. Those duties included weekly and monthly in-person inspections and yearly, quarterly, and monthly meetings.
The parties also stipulated that, from April 27 to July 29, 2016, Petitioner took 480 hours of leave without pay under the Family and Medical Leave Act (FMLA). Excluding the FMLA leave, Petitioner was absent from work for 761.75 hours between January 24, 2016, and February 3, 2017. Excluding being absent-without-leave (AWOL)2 as well as FMLA leave, Petitioner was absent from work 623.5 hours between January 24, 2016, and February 3, 2017.
According to the record, Petitioner took leave during all of the pay periods from the pay period ending on February 6, 2016, to the pay period ending on January 21, 2017. He did not take any leave during the pay period ending on February 3, 2017.
In an August 19, 2016, Letter of Warning Regarding Excessive Absences, the Chief of the Facilities Operations Branch, Petitioner's first-level supervisor (S1), warned Petitioner that he could be removed from Federal service if he did not return to work on a full-time basis. On October 17, 2016, S1 approved Petitioner's request for 240 hours of advanced sick leave.
On May 15, 2017, S1 issued Petitioner a Notice of Proposed Removal for Excessive Absenteeism. He noted that Petitioner was unavailable for work for 761.75 hours, or 45 percent of the time, between January 24, 2016, and February 3, 2017. In addition, S1 stated that he had considered an October 24, 2016, doctor's note that stated that Petitioner had been incapacitated since January 1, 2016, and that his prognosis was guarded. He also stated that Petitioner's position, which "includes performing facility/building management duties, command safety duties, work order management, and preparing/maintaining required written correspondence," was "the only position of its kind in our work center." According to S1, Petitioner's absences "had a detrimental impact on the function of the work center [and] the efficient accomplishment of the directorate's mission." In that regard, S1 stated that the absences had resulted in the "rescheduling on more than one occasion" of monthly fire inspections, safety inspections, and safety training." He noted that Petitioner's coworkers and term-appointment employees had had to perform Petitioner's duties in his absence.
Petitioner responded to the Notice of Proposed Removal on May 21, 2017. He stated that his absenteeism had "improved markedly" in the past six months and that his doctor's October 12 and 24, 2016, letters had been deemed sufficient to justify advanced sick leave. In addition, he noted that his 2016-2017 performance appraisal had been satisfactory. On July 7, 2017, the Chief of the Engineering and Facilities Management Division (S2) issued Petitioner a Decision to Remove that upheld the specification in the Notice of Proposed Removal. The Agency removed Petitioner, effective July 7, 2017.
The record contains several doctor's notes that Petitioner submitted to the Agency. In an April 27, 2016, note, a physician's assistant stated that Petitioner was being treated for lumbar radiculopathy, that exacerbations of the condition could result in incapacitation for several days, and that Petitioner's prognosis was good but "variable." On June 15, 2016, Petitioner's physician (P1) stated that Petitioner had been incapacitated by pain since April 2016, his prognosis was guarded, and the leave that Petitioner began on April 27, 2016, "continues indefinitely." P1 repeated those statements in July 13 and September 19, 2016, notes and also stated that Petitioner "cannot work in this condition." In October12 and 24, 2016, notes, P1 stated that Petitioner had been incapacitated by pain since January 1, 2016, his prognosis was guarded, and the leave that Petitioner began on January 1, 2016, "continues indefinitely." In January 12 and February 9, 2017, notes, P1 stated that Petitioner should elevate his legs for 10-15 minutes four times per day and should sit for at least 15 minutes every hour.
The record also contains a November 2016 Physical and Environmental Factors worksheet that P1 completed at S1's request. The worksheet lists various activities, the number of hours per day that an employee performs them, and whether the employee performs them on a continuous or intermittent basis. P1 indicated that Petitioner could perform all of the activities as required, except for standing and walking. He stated that Petitioner could stand and walk intermittently eight hours per day but "needs frequent breaks."
Petitioner testified that he spent 25 percent of his time performing facilities-management duties, such as handling telephone calls, submitting requests to contractors who performed repairs, and following up with customers. He further testified that he spent 75 percent of his time performing command safety duties, such as briefing safety representatives, overseeing safety programs, and performing weekly, monthly, and annual inspections. He did approximately three, one-hour weekly inspections per week. The monthly inspections, which occurred with the fire marshal, lasted a full week and took eight hours per day. The annual inspection was a two-week, eight-hours-per-day process. Petitioner was on his feet for most of the time that he performed inspections. In addition, he prepared reports for the inspections. Two coworkers (CW1 and CW2) served as his safety alternates and performed inspections in his absence. Although there were alternates, Petitioner was the only command safety representative for USSTRATCOM. He asserted that, except for the inspections, his command safety duties could be performed remotely. According to Petitioner, the inspections comprised one-third of the command-safety duties and took up 25 percent of his time. He maintained that another employee could have done the physical part of the inspections and he could have written the reports based on the other employee's notes.
Petitioner stated that he has lumbar radiculopathy and hip pain and that he experienced pain on a daily basis. He also stated that his condition flared up regularly, that the flare-ups lasted for three or four days, and that they interfered with his ability to stand, walk, crouch, bend, lift, and pull. Being on his feet for a long time caused his condition to flare up, and performing safety inspections caused flare-ups more than half the time. All but two of his absences from January 2016 through February 3, 2017, were related to his disability. He noted that his condition began to improve in February 2017; that he "was missing work only about a day a week"; and that, from April 15 to May 15, 2017, he missed work only 21 percent of the time.
In addition, Petitioner testified that he asked the Agency to accommodate his disability by allowing him to telework, providing him with an ergonomic chair and a standing desk, adjusting his work schedule, reassigning him to a sedentary position, and assigning his inspection duties to another employee. The Agency provided Petitioner with an ergonomic chair and a stand-up desk. He stated that S1 modified his work schedule to allow him to attend medical appointments. He also stated that he had teleworked successfully in his previous position, as a Sustainment Analyst, at the Agency. He acknowledged that he could not perform inspections via telework. When he returned from FMLA leave in late Summer 2016, he met with S1, S2, and a Human Resources (HR) Specialist and asked them to reassign him to a sedentary position. He did not have a particular position in mind. According to Petitioner, the HR Specialist denied his request. Petitioner asserted that a GS-11 Program Manager position was open during Summer 2016. CW1 performed Petitioner's weekly inspections for one or two months after Petitioner returned from leave, and CW1 occasionally performed fire inspections when Petitioner was absent. Petitioner asserted that he would not have had flare-ups if CW1 had performed all of the inspections.
S1 testified that the Agency hired Petitioner to be the facility's safety representative and that the inspection portion of the job was an essential function of the position. He stated that, when Petitioner was absent, he had to take CW1 from his scheduled duties to perform Petitioner's duties. The Agency hired CW1 as a term employee to work on preparations for a move to a new building, and S1 had to pull him off that work to cover for Petitioner. According to S1, CW1 and CW2 took over Petitioner's inspection duties when he was absent and assisted Petitioner with the duties when he was at work. He testified that "there [were] times" when Petitioner's coworkers could not "cover all his duties," but "people step up and do whatever we can to knock out all the work." S1 stated that Petitioner's absences were "very sporadic" and "very unpredictable" and that "[e]fficiency dropped, definitely," when Petitioner was absent. He explained that Petitioner did not give advanced notice of his absences but, instead, would call in the morning and leave a message that he would not be at work that day. In addition, S1 stated that he denied Petitioner's request to telework because the employee in the safety-representative position needed to be at work on a full-time basis to handle emergencies. He also stated that he never received a doctor's note indicating when Petitioner could return to work full time. He agreed that, from February 6 through April 24, 2017, Petitioner's attendance improved from approximately a 50 percent absenteeism rate to a 25 percent absenteeism rate.
S2 testified that the Agency removed Petitioner because of excessive absenteeism. He stated that, when Petitioner was absent, other employees had to perform Petitioner's duties in addition to their own, primary duties. He noted that Petitioner occupied a developmental position, which involved starting at a lower grade and moving to a higher grade through performance, and that "attendance is necessary" in developmental positions. S2 stated that he was not "immediately opposed" to Petitioner's request to have people help him to perform inspections; S2 thought that it was acceptable to do that on a short-term basis. He believed that Petitioner's "absence didn't cause additional work, but it caused additional learning curve[s] for other employees to pick it up, which has ripple effects in the work center."
CW1 testified that he began to act as an alternate command safety representative in July 2016 and performed weekly, annual, and fire inspections in Petitioner's absence. Those tasks were extra duties, not part of his primary duty. He stated that, before July 2016, there were times when CW2 could not cover for Petitioner and weekly inspections "fell through the cracks."
Petitioner filed a mixed-case appeal with the MSPB alleging that the Agency discriminated against him on the basis of disability by failing to provide him with a reasonable accommodation and removing him from employment. On February 22, 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 found that Petitioner was an individual with a disability. He also found, however, that Petitioner did not show that there was a reasonable accommodation that would have enabled him to perform the essential functions of his position or a vacant position to which the Agency could have reassigned him.
The AJ concluded that there was no accommodation that would have enabled Petitioner to perform the safety or repair-related duties of his position. He noted that Petitioner acknowledged that both types of duties involved on-site inspections, which required standing, walking, and climbing for periods that often resulted in severe back pain. In addition, noting that Petitioner and S1 stated that Petitioner could not perform safety inspections if he was not at work, the AJ determined that the Agency appropriately denied Petitioner's request to telework. The AJ also determined that the Agency was not required to modify Petitioner's duties by having other employees conduct physical inspections and Petitioner write the related reports.
Further, the AJ concluded that the Agency did not unlawfully fail to reassign Petitioner to a different position. In that regard, the AJ found that Petitioner was not qualified for the Project Manager position and that he did not identify a position to which the Agency could have reassigned him.
On March 29, 2018, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
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
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). An "undue hardship" is a significant difficulty or expense. Id. � 1630.2(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). Essential functions are the fundamental job duties of the position at issue. Id. � 1630.2(n).
A request for an adjustment or change at work, including a request for leave, is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. An employee who receives leave as a reasonable accommodation is entitled to return to his or her position unless the employer shows that holding open the position would result in an undue hardship. Id. at Question 18.
In this case, it is undisputed that Petitioner is an individual with a disability. Based on the evidence of record, however, we find that the evidence does not establish that the Agency unlawfully denied Petitioner a reasonable accommodation. The record establishes that the Agency initially provided Petitioner with a reasonable accommodation by permitting him to take leave, including advanced sick leave. The Agency has shown that it would have incurred an undue hardship if it continued to provide Petitioner with leave on an as-needed basis. As the Notice of Proposed Removal explained, Petitioner's position was the only one of its kind at the facility, and the Agency had to reschedule some inspections because of his absences. S1, noting that Petitioner did not provide advanced notice of his absences and that they were very sporadic and unpredictable, testified that "[e]fficiency dropped" during Petitioner's absences. Although he acknowledged that Petitioner's coworkers "stepped up" to get the work done, he also stated that there were times when they could not "cover all his duties." In addition, S1 had to pull CW1 from his own duties to perform Petitioner's duties. In light of all this, it would have been a significant difficulty for the Agency to continue to permit Petitioner to be absent on an as-needed basis.
Further, the Agency was not required to restructure Petitioner's position to remove the physical aspects of the inspection duties. The record establishes that the inspection duties were an essential function of the position. An employer does not have to reallocate essential functions as a form of reasonable accommodation.. Enforcement Guidance on Reasonable Accommodation at 15. Although an employer may be required to acquire or modify equipment to enable an individual with a disability to perform a job, see 29 C.F.R. � 1630.2(o)(2)(ii), Petitioner has not identified, and the record does not disclose, any equipment that would have enabled him to perform the inspections. Accordingly, we find that the Agency did not unlawfully fail to provide Petitioner with a reasonable accommodation.
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
__8/10/18________________
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 was absent without leave for 138.25 hours between August 29, 2016, and January 19, 2017.
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