0320080101
06-24-2009
Linda D. Edwards, Petitioner, v. Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Linda D. Edwards,
Petitioner,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Petition No. 0320080101
MSPB No. SF-0752-08-0062-I-1
DECISION
INTRODUCTION
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 her claim
of discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
General Background
During the relevant period, petitioner was employed as an Air Traffic
Control Specialist (ATCS) (in training) at the agency's High Desert
Terminal Radar Approach Control (TRACON) facility. Pursuant to a
settlement agreement, petitioner was assigned to TRACON and placed in
an ATCS position deemed compatible with her restrictions from a 1995
on-the-job injury to her knees.
On October 26, 2007, petitioner filed a mixed case appeal with the MSPB,
alleging that the agency discriminated against her on the bases of race
(African-American) and disability (knee injuries and cancer) when it
removed her from Federal employment effective October 13, 2007, citing
"unavailability for duty." In her MSPB appeal, petitioner alleged the
agency denied her reasonable accommodation, and she asked the Board to
"restore [her] position, compensate for back-pay, attorney's fees and
compensatory damages to be made whole." The mixed case appeal was
assigned to an MSPB Administrative Judge (AJ), who conducted a hearing
on the matter. The record contains the testimony and documentation that
follows.
Hearing Testimony and Documentation
As already noted, petitioner had injured both knees in 1995. Ten years
later, in October 2005, she re-injured her knees while climbing stairs at
TRACON and was on leave without pay and later under an accepted Office
of Workers' Compensation Programs (OWCP) claim. Petitioner returned to
work on February 8, 2006. Around that time, she informed the facility Air
Traffic Manager (S1) that she planned to take a lengthy absence for knee
surgery at the end of February, so S1 suspended petitioner's training as
an air traffic controller until after her surgery so as not to require
repetitive training and petitioner performed administrative duties.
On February 27, 2006, petitioner began a medical leave of absence for
arthroscopic surgery on her left knee and, on May 30, 2006, had surgery
on her right knee. Between petitioner's two knee surgeries, on April 24,
2006, petitioner was diagnosed with breast cancer. Petitioner had breast
cancer surgery on May 15, 2006. Then, on May 30, 2006, petitioner had the
surgery on her right knee. While preparing for further treatment for her
cancer, petitioner learned that she was pregnant. Petitioner stated that
she had pregnancy complications due to gestational diabetes, her age, and
the cancer. Petitioner gave birth on February 26, 2007. Several months
after her delivery, on June 1, 2007, petitioner began chemotherapy, but
discontinued it after an adverse reaction. Petitioner had to receive
other treatments to address her adverse reaction.
On a medical form dated June 15, 2006, petitioner's orthopedic
physician (P1) stated that petitioner "is temporarily totally disabled
until 8/15/06." On August 7, 2006, P1 extended petitioner's temporary
total disability until 10/16/06. Subsequently, on a September 7, 2006
Work Capacity Evaluation form, OWCP indicated petitioner could begin
performing her usual job effective October 16, 2006, and could walk
or stand for 30 minutes at a time for two hours per day. OWCP added
that petitioner could not squat, kneel or climb. At that time, S1
would not allow petitioner to return to work, stating that she had
too many restrictions. S1 stated that petitioner's restrictions were
too limiting because her training required some walking and standing,
and he could not monitor her actions for compliance. In November 2006,
petitioner stated that she told S1 that she would ask P1 if he could
lighten her restrictions and she would be in further contact with S1.
Petitioner stated that she did not get back to S1 right away because
she became consumed by her illnesses and her high risk pregnancy.
On April 19, 2007, a Kaiser physician issued documentation indicating
that, as of May 1, petitioner was completely unable to work (homebound)
for about six months due to her breast cancer treatments. In April 30,
2007 documentation, P1 diagnosed petitioner with quadriceps weakness
and bilateral chondromalacia patella and stated that she should
be permanently precluded from repeated bending, kneeling, squatting
activities, or frequent climbing and prolonged standing and walking for
more than three hours in an eight hour shift. In a letter of May 4,
2007, S1 informed petitioner of his proposal to remove her from her ATCS
position for "unavailability for duty." S1 noted that the action was
non-disciplinary.
On May 30, 2007, S1 informed petitioner that, based on P1's April 2007
medical documentation, she could perform the duties of her ATCS position
and needed to return to work within two days of receipt of his letter.
Petitioner did not return because she was still under OWCP. On June 7,
2007, petitioner asked S1 to reconsider his removal proposal because
she was battling cancer using chemotherapy and would continue such
treatment for another five months, and planned to return after that time.
In a July 18, 2007 letter, S1 sustained his proposal and stated that
petitioner would be removed effective August 19, 2007. On July 30,
2007, petitioner asked the agency to place her removal in abeyance due
to "[c]hronic pain and limited mobility, and . . . an ongoing battle
with cancer" and provide reasonable accommodation. In response, S1
requested specific and current medical documentation from petitioner.
Petitioner presented a handwritten prescription slip dated August 13, 2007
from P1 indicating that she was okay to work with no climbing and bending.
On August 13, petitioner reported to work, but management sent her home
citing her Kaiser restrictions (concerning her cancer treatments) of
180 days homebound as of May 1. Petitioner's OWCP benefits terminated
the same day.
On August 15, 2007, another Kaiser physician, P2, released petitioner to
work a modified program through September 4. P2 restricted petitioner
to lifting or carrying up to five pounds, standing or walking for 15
minutes per hour up to two hours per day, sitting 45 minutes per hour
up to eight total hours daily, and no climbing stairs or performance
of regular job duties. On August 22, 2007, a third Kaiser physician,
P3, stated that petitioner would be undergoing chemotherapy for breast
cancer for several months and was limited to no climbing stairs, no
climbing or bending down, and no more than three hours of walking.
P3 added that petitioner might need to take urgent breaks.
Petitioner returned to work in late August for a little over a week,
until she experienced the loss of her eldest daughter on August 28.
Petitioner stated that she was devastated and was on leave through
September. During the hearing, petitioner stated that she thought that
she would be able to return to work on October 2. She stated, however,
when she visited her oncologist in late September, she learned that
her cancer had returned. Petitioner stated that she then believed she
would be able to return to work on December 1, 2007. Subsequently,
petitioner provided medical documentation, in a letter dated October
5, 2007, in which P3 stated: "[Petitioner] has some current health
problems which prevent her from working at her regular job as an air
traffic controller from now until 1/2/2008. She should be recovered by
1/2/08 to perform her job as an air traffic controller."1
When petitioner did not report to work on October 2, 2007, S1 sustained
the removal action he had proposed in May. He removed petitioner effective
October 13, 2007, stating she "remain[ed] unavailable for duty." In an
October 10, 2007 e-mail, petitioner's union representative sent P3's
two letters to S1. He asked if the submissions would change his removal
decision and, if not, what was necessary to do so. Subsequently, S1 sent
an email to his colleagues stating: "This is the latest note from some
doctor (through her union rep). I do not intend to reply. Termination
effective the 13th (Saturday)." At the hearing, S1 acknowledged receiving
the medical documentation prior to the effective date of petitioner's
removal, but stated that he felt that he still did not have a definitive
date for petitioner's return. In addition, he testified that there were
vacant ATCS positions at that time.
Procedural Background Following Hearing
Following the MSPB hearing, the AJ issued an Initial Decision affirming
the agency's action and finding no discrimination. Specifically,
as to petitioner's affirmative defense of disability discrimination,
the AJ found that petitioner failed to establish that she was a
qualified individual with a disability entitled to the protections of
the Rehabilitation Act. Moreover, the AJ concluded that the agency was
willing to accommodate petitioner, but could not because she provided
various dates on which she could return to duty, but did not.
Petitioner then filed a petition for review with the full Board, in which
she sought reversal of the Initial Decision and of her removal.2 She
asserted that she returned to work in August 2007 so the prior removal
notices became invalid and she was not given a subsequent notice prior
to her October removal; she could perform administrative duties once her
bereavement leave for her daughter ended on September 17, 2007; the agency
failed to ask for additional medical documentation between August 28
and October 2; and her absence after August 29 was unrelated to illness.
In its Final Order dated August 6, 2008, the Board granted petitioner's
petition for review and reversed her removal. The Board noted that
petitioner did not challenge the AJ's finding of no discrimination and
it did not address the matter. The Board concluded that there was ample
evidence that, at the time the agency proposed petitioner's removal,
she was unable to perform her ATCS duties. The Board found further,
however, that there was medical evidence indicating that petitioner
would recover sufficiently to perform duties of her regular position as
of January 2, 2008, which was two and a half months after her removal
effective date. The Board noted that S1 acknowledged receiving pertinent
medical documentation prior to petitioner's removal effective date and
that it is common for there to be ATCS vacancies. Further, the Board
concluded that there was a foreseeable end to petitioner's unavailability
and no indication of urgency to fill her position before January 2.
The Board ordered the agency "to cancel [petitioner's] removal and to
restore [her] effective October 13, 2007." It noted, "[b]ecause the
appellant was an [Federal Aviation Administration] employee, we are
unable to award back pay." The Board informed petitioner of her right
to request attorney's fees and costs.
Petitioner then filed the instant petition for review with the Commission.
In opposition to the instant petition, the agency asserted that petitioner
did not raise her affirmative defense of discrimination in her Board
petition for review and did not articulate reasons she believes the MSPB
Initial Decision is incorrect.
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). As an initial matter, we note that the full
Board addressed petitioner's removal as a merit principle and did not
address her affirmative defense of discrimination. See infra note 2.
Therefore, we will review the MSPB AJ's finding of no disability
discrimination, which remains the final decision of the Board on
petitioner's discrimination claim. Petitioner alleges that the agency
denied her reasonable accommodation as required by the Rehabilitation
Act when it terminated her employment, for unavailability for duty,
although it possessed medical documentation releasing her to return to
work in less than three months. However, the MSPB AJ found that petitioner
failed to establish that she was a qualified individual with a disability
entitled to the protections of the Rehabilitation Act.
To establish an entitlement to an accommodation under the Rehabilitation
Act, petitioner must first demonstrate that she is a "qualified individual
with a disability" within the meaning of the Act. An individual with
a disability is one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
2) has a record of such impairment; or 3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). A physical impairment is "[a]ny
physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. �
1630.2(h). In 29 C.F.R. � 1630.2(j), "substantially limited" is defined
as the inability to perform a major life activity that the average person
in the general population can perform; or significantly restricted as to
the condition, manner, or duration under which the average person in the
general population can perform that same major life activity. Major life
activities include, but are not limited to, the function of caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i); see Appendix to
29 C.F.R. Part 1630 - Interpretive Guidance on Title I of the Americans
with Disabilities Act (Appendix to 29 C.F.R. Part 1630).
Contrary to the finding of the MSPB AJ, we find the record establishes
that petitioner is covered by the Rehabilitation Act as an individual
with a record of being substantially limited in the major life
activity of working. See 29 C.F.R. � 1630.2(k); Chavis v. United
States Postal Service, EEOC Appeal No. 01983332 (August 16, 2001). In
Chavis, the Commission concluded complainant was subjected to disability
discrimination when his request for a transfer to another location was
denied because of his sick leave usage. The complainant in Chavis was
diagnosed with lung cancer and was treated with surgery, radiation and
chemotherapy, resulting in his use of 373 hours of sick leave over a
two-year period. The Commission determined that complainant no longer had
an actual disability at the time his request for a transfer was denied,
but was covered by the Rehabilitation Act because he established that he
had a record of a physical impairment that substantially limited the major
life activity of working. In the instant case, we similarly conclude
that given the nature and severity of petitioner's knee impairments, as
well as the complications with her breast cancer treatment, the nearly
two-year duration of these impairments, and the fact that her condition
during this period would likely have significantly restricted her from
performing any job, the evidence supports the conclusion that petitioner
has a record of impairments that substantially limited the major life
activity of working in the years of 2006-2007 when she was undergoing
extensive medical treatment.
After having established that she is an individual with a disability,
petitioner must still show that she is "qualified" within the meaning of
29 C.F.R. � 1630.2(m). A "qualified" individual with a disability is one
who satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of the position. See 29 C.F.R. � 1630.2(m).
Here, we find that petitioner was able to satisfy the requirements and
perform the essential functions of the Air Traffic Control Specialist
(in training) position, without a reasonable accommodation. The record
shows that petitioner was in her developmental position prior to the
October 2005 re-injury of her knees and the suspension of her training
was due to her impending surgery and not her performance in the position.
Moreover, the evidence establishes that the agency was on notice that
petitioner had significantly recovered and was physically able to perform
the essential functions of her position at the time she was terminated.
On the date petitioner was terminated, her supervisor had medical
documentation indicating that she was released to perform the full
range of her ATCS position duties effective January 2, 2008. Based on
the above, we deem petitioner a "qualified" individual with a disability
within the meaning of the Rehabilitation Act.
Under the Commission's regulations, an agency is required to reasonably
accommodate the known limitations of a qualified individual with a
disability, unless the agency can show that accommodation would cause
an undue hardship. See 29 C.F.R. 1630.2(p); EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (revised October 17, 2002).
Based on our review of the record, we find that the agency failed to
present credible evidence that it would have imposed an undue burden to
allow petitioner to return in January 2008 as indicated in her medical
documentation. We agree with the finding by the full Board, in its Final
Order, that S1 acknowledged that there were vacant ATCS positions on the
date of petitioner's termination and there was no indication of an urgent
need for petitioner's return prior to January. Summarily, we agree with
the full Board's evidentiary findings, but from a discrimination aspect.
Further, we are persuaded that the agency removed petitioner from
employment, rather than allow her medical absence to January 2, 2008,
because she had successive medical documentation indicating a history
of a substantial limitation in working and her supervisor questioned
the reliability of the definitive date she could return to her normal
ATCS duties. The record indicates he believed, based upon prior
prognoses that later changed, that petitioner would not actually be able
to return to work on January 2. S1 stated that, on the effective date
of petitioner's termination, he did not feel that he had a definitive
date of return to work for petitioner. Based on this evidence, we find
that the agency denied petitioner reasonable accommodation in the form of
extending her medical leave to January 2, 2008, based on her "record of"
disability.
With this finding of disability discrimination, we ask the MSPB
to consider all remedies appropriate with such a finding under the
Rehabilitation Act, including reconsideration of back pay.
Finally, as to petitioner's assertion of discrimination based on race,
we find that she failed to show that the agency's action was based on
a discriminatory motive.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the
Commission to differ with the final decision of the MSPB finding no
disability discrimination. The Commission finds that the MSPB's decision
constitutes an incorrect interpretation of the laws, rules, regulations,
and policies governing this matter and is not supported by the evidence
in the record as a whole. However, we concur with its finding of no
discrimination based on race.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (V0408)
Your case is being referred back to the Merit Systems Protection Board
for further consideration and the issuance of a new decision. You will
have the right to file a civil action in the appropriate United States
District Court, based on the new decision of the Board:
1. Within thirty (30) calendar days of the date that you receive
notice of the decision of the Board to concur in this decision of the
Commission; or,
2. If the Board decides to reaffirm its original decision, within
thirty (30) calendar days of the date you receive notice of the final
decision of the Special Panel to which your case will then be referred.
You may also file a civil action if you have not received a final decision
from either the Merit Systems Protection Board or the Special Panel within
one hundred and eighty (180) days of the date you filed this Petition for
Review with the Commission. 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 (Z1008)
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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
June 24, 2009
__________________
Date
1 We note that, in a January 15, 2008 letter, P3 stated petitioner could
return to work and perform the essential functions of her ATCS position.
P3 added that petitioner could not climb stairs or walk more than three
hours per eight hour shift.
2 It does not appear that petitioner specifically raised her affirmative
defense of discrimination in her petition to the full Board. However,
on the same day she filed with the Board, petitioner also filed an appeal
with the EEOC from the MSPB AJ's decision concerning the finding of
no discrimination. EEOC contacted the MSPB for the record and learned
that the petition for review was still pending before the full Board.
Therefore, on August 6, 2008, EEOC administratively closed petitioner's
appeal without prejudice and informed her that when the Board issued its
final decision she could file a new appeal with EEOC. Coincidentally,
on the same day, August 6, 2008, the full Board also issued its final
decision on the petition for review. Petitioner then filed the instant
appeal on August 15, 2008.
??
??
??
??
2
0320080101
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
8
0320080101