03a00002
02-08-2001
Niranjan D. Vyas, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Niranjan D. Vyas v. Department of the Army
03A00002
February 8, 2001
.
Niranjan D. Vyas,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No.03A00002
MSPB No. PH-0432-97-0168-I-2
DECISION
Introduction
Petitioner filed a timely petition for review of the Merit Systems
Protection Board (MSPB or the Board) final decision. The MSPB found
that the agency had not discriminated against the complainant on the
basis of his mental condition (depression) when it removed him from the
position of Construction Engineer GS-12 on January 14, 1997. See � 501
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
The appeal is accepted pursuant to the Civil Service Reform Act of 1978
and EEOC Regulations at 29 C.F.R. � 1614.303 et. seq.
ISSUE PRESENTED
Whether the Board's determination that the agency did not discriminate
against the petitioner on the basis of his disability when it removed him
from his position constitutes a correct, interpretation of the applicable
laws, rules, regulations, and policy directives, and is supported by
the record as a whole.
The MSPB AJ Decision
The petitioner filed an appeal with the MSPB on or about February 5, 1997
alleging that the agency's removal action was discrimination based on his
disability. Following a hearing, an MSPB administrative judge (AJ) found
the agency proved that the petitioner's performance was unsatisfactory
but also that the petitioner proved he was a qualified individual with
a disability. The AJ concluded that the petitioner was able to perform
the essential functions of a civil engineer's position if reassigned.
The AJ further found that the agency was on notice of his condition and
had reason to believe that the petitioner suffered from a disability
even though he did not fully inform the agency of his condition.
She found that the agency had been offered access to the petitioner's
full medical record but did not request it and instead insisted that the
medical documentation of his condition was insufficient. In addition,
the agency did not follow-up on the petitioner's letters or those
of his physician and did not pursue a psychological or psychiatric
evaluation as recommended by the physician who performed its fitness
for duty examination. The AJ found �incredible� the agency's failure
to address the physician's recommendation in light of the petitioner's
complaints of extreme job-related stress. In conclusion, the AJ found
that the agency never assessed the possibility of reassigning the
petitioner and did not prove that it would have been an undue hardship
in doing so. The AJ ordered the agency to cancel the removal, restore
the petitioner to his position retroactive to January 14, 1997 with back
pay and benefits restored. She further ordered interim relief pursuant
to 5 U.S.C. 7701 b(2)(A).
Board Decision
On the agency's petition for review of the AJ's decision, the Board
reversed the AJ's findings of discrimination and sustained the agency's
removal of the petitioner. The Board reasoned the AJ found that the
petitioner's performance was unsatisfactory and the petitioner did
not challenge the AJ's finding in this regard. In the Board's view,
the petitioner failed to establish he was disabled because there was
no finding that he was substantially limited in any major life activity
aside from his ability to work. Applying the principles set forth in
Sutton v. United Air Lines, Inc. No 97-1943, slip op. At 18 ( S.Ct. June
22, 1999), the Board determined that the petitioner was not substantially
limited in his ability to work because he did not show he was foreclosed
from working as a civil engineer in general, only the particular job in
the Construction Branch. In support of this, the Board pointed out that
the petitioner successfully worked in the Design branch on detail shortly
before being terminated from his employment in the Construction Branch.
Finally, the Board agreed with the agency that it was not given adequate
notice of the petitioner's mental condition.
Arguments on Appeal
The petitioner argues on appeal that he was unfairly barred from calling
witnesses during his hearing because he initially proceeded pro se and
did not compose a witness list. On retaining counsel, he was given
additional time to prepare but was not permitted to call his treating
physician or other expert witness. Consequently, he was the sole witness
for his case in chief. He further argues that the agency concedes he
suffers from major depressive disorder and that the MSPB AJ found the
agency had constructive knowledge of his condition. He contends the
Board erred in concluding he was only limited in his ability to work
and that the record indicated he was also substantially limited in his
ability to think and concentrate. He contends his testimony supported
this conclusion specifically where he stated, he �heard echoes� while
he was working and that his body would shake. He cites to the notes of
the Psychiatric Care Associates in the record which corroborate that
he reported hearing echoes, that he thought he was being monitored or
bugged and that he was suspicious of people plotting against him.
The petitioner argued that he repeatedly requested an accommodation in
the form of a reassignment or by being allowed to take time off because
he was under too much stress in the Construction Branch. His efforts to
obtain a reassignment were all ignored and his requests for sick leave
were denied.
In a supplemental brief, the petitioner submitted the report of a
psychiatrist which gave the opinion that the petitioner was unable to
perform the essential functions of his position unless he was provided
with certain accommodations. He requested that the Commission permit
the hearing record to be reopened and supplemented with this report.
The Agency did not respond to the supplemental brief or the additional
medical report. It argued in opposition to the appeal that the petitioner
did not state a basis for the appeal or why the Board's decision was
incorrect.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the record
before it is incomplete in its assessment of a reasonable accommodation
and devoid of evidence whether it would have been an undue hardship
to the agency to offer the petitioner a reassignment or some form of
temporary leave from his position as an accommodation of his condition.
Therefore, the Commission refers this case back to the MSPB to obtain
additional evidence consistent with this Decision pursuant to 29
C.F.R.�1614.305(d).
We find that the record supports the conclusion that the petitioner is
an individual with a disability which substantially limits his ability to
think, to concentrate, and to handle stress. Our regulations provide that
an individual with a disability is one who (1) has a physical or mental
impairment that substantially limits one or more 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). When a mental disability is at
issue, major life activities which can be substantially limited include
thinking, and concentrating. EEOC Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities, No. 915.002 (3/25/97)
p. 5; See, Randel v. Department of the Navy, EEOC Petition No. 03950108
(February 8, 1996) (Petitioner had a diminished ability to think or
concentrate, deal with hostile individuals or a stressful environment as
a result of depression); See also, Starling v. U.S. Postal Service, EEOC
Appeal No. 01953959 (January 16, 1997) (Complainant's single episode of
major depression caused by work-related stress rendered him temporarily
unable to work due to stress). The hearing record evidences that the
petitioner had outbursts inconsistent with his normally quiet personality
witnessed by both his supervisor and his co-workers, he experienced
episodes when his body was shaking, insomnia, sadness and nervousness.
The petitioner testified that he heard voices or �echoes� at work which
affected his ability to concentrate. The record also reflects that the
petitioner's condition was chronic in nature in that he had experienced
major depressive episodes dating back to 1988 and that he would continue
to need medication in the future.
We also find there was ample evidence establishing that the agency was
on notice of the petitioner's mental condition. This included not only
the above-referenced incidents but the petitioner's own testimony that he
repeatedly told both his supervisors, the Human Resources Office and the
EEO office of the extreme stress he was under and that he needed to take
sick leave. In addition, the petitioner's physician's medical report
given to the agency indicated that he was taking Paxil for depression.
Moreover, the agency's fitness for duty report clearly pointed to the need
to assess the petitioner's complaint of extreme stress by a psychologist
or psychiatrist. The petitioner's supervisor testified that he was aware
of the recommendation but chose to ignore this advice because �it was
not in the government's interest to pursue a psychological examination.�
Thus the evidence established the agency likely ignored the petitioner's
mental state and depended solely on its physician's conclusion that the
petitioner was physically able to perform a sedentary position.<2>
A �qualified� individual with a disability is one who satisfies the
requirements for the employment position he/she holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation. 29 C.F.R. � 1630.2(m). Here, the record
discloses that the agency considered the petitioner well qualified
to perform the duties of the position when it hired him in May 1995.
He had worked as a design engineer for the Defense Personnel Support
Center from 1989 to 1995.
Shortly after he began working in the position, the agency became
dissatisfied with his performance in that he failed to file trip reports
in a timely manner, and failed to maintain adequate communication with
the field offices, among other things. This closely coincided with the
petitioner's onset of depression in October 1995 as evidenced by a visit
to a psychiatrist who prescribed an anti-depressant Prozac. Therefore,
there was a causal connection between the petitioner's condition and
the agency's reasons for removing him from his position. Randel supra.
The inquiry regarding whether an individual is qualified is not limited to
the position actually held by the employee, but also includes positions
that the employee could have held as a result of job restructuring or
reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act, No. 915.002
(March 1, 1999) (Guidance). Cf. Hawkins v. United States Postal
Service, EEOC Petition No. 03990006 (February 11, 1999); Van Horn
v. United States Postal Service, EEOC Appeal No. 01960159 (October 23,
1998). Based on record evidence we find that the petitioner was able to
perform the essential functions of his job as construction engineer but
that his performance was compromised by the effects of his condition.
Unfortunately, it cannot be determined on the present record whether
the agency's actions were sufficient to provide the petitioner a
reasonable accommodation because the agency did not seriously consider
the possibility that he had a disability. As evidence of this, there was
testimony that the petitioner requested sick leave but that his supervisor
denied his requests concluding that he was �not sick.� Since we conclude
that the petitioner had a medically documented condition during this time,
the agency must now address whether it would have been an undue hardship
to grant the petitioner's leave requests and whether the job could have
been restructured by reassigning the marginal duties of his position.
Additionally, the issue of whether the available accommodations would
have been effective should be explored on the record.
When an employee cannot perform the essential functions of his/her current
position because of a disability, and no accommodation is possible
in that position, reasonable accommodation includes reassignment to
another position. Randel supra; See also Randel v. Department of the
Navy, Petition No. 03960070 (August 8, 1996) (Decision after supplemental
evidentiary hearing). If it is shown that the petitioner's position could
not have been restructured or that he could not have been accommodated
in the position of construction engineer, the agency must address whether
it was possible to reassign him to another position.
Again, the record is insufficient to permit us to determine whether or
not the agency met its obligations to attempt to accommodate complainant.
A supplemental hearing must be conducted to take evidence on the issue
whether there were any vacant positions to which complainant could have
been reassigned at his office or any another office during the time
period in question, considering evidence of his qualifications for the
position. As there was evidence that the petitioner was detailed to a
civil engineer's position in which he successfully performed, the evidence
should address whether this was a viable alternative for a reassignment.
Because the evidence is insufficient with regard to whether there was
a reasonable accommodation available which would have either aided the
petitioner in performing his position or in the form of a reassignment,
it is the decision of the Commission to refer the matter to the Board
for the convening of a supplemental hearing. At a minimum, the following
information should be entered into the record:
1. The agency shall present evidence on the issue of whether the
petitioner's job could have been restructured by temporarily reassigning
marginal duties as a way of reducing the amount of stress associated
with the position or by other means available.
2. The agency shall present evidence on the issue of whether the
petitioner could have been reassigned during the time period in
question.
After obtaining this additional evidence, the Board should refer the
matter to the Commission. Thereafter, the Commission will review the
additional evidence and then issue a decision on the merits of all
of petitioner's allegations of discrimination, either concurring or
differing with the MSPB's finding of no discrimination.
CONCLUSION
Based on a thorough review of the record, and pursuant to 29
C.F.R. 1614.305(d), it is the decision of the Equal Employment
Opportunity Commission to refer this matter back to the MSPB for the
taking of additional evidence regarding the petitioner's allegations of
discrimination. On the completion of this, the MSPB without issuing a
decision shall forward the supplemented record to the Commission for
review and a decision on the merits of petitioner's discrimination
claims.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (X0900)
The Commission has referred your case back to the Merit Systems Protection
Board so that it can take additional evidence. Upon receipt of that
evidence, the Commission will issue a decision on the merits of your case.
You may have the right to file a civil action in an appropriate United
States District Court after one hundred and eighty (180) calendar days
from the date on which you filed your Petition for Review with the
Commission, even if there has been no decision by the Commission on the
merits of your case. 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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
________________________
Frances M. Hart
Executive Officer
Executive Secretariat
2/8/01
DATE
___________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2The petitioner had also complained to his supervisors about the fact
that stress was aggravating his hypertension, heart disease and had
caused him to develop diabetes.