0320120058
04-18-2014
Petitioner, v. Chuck Hagel, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
Petitioner,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Petition No. 0320120058
MSPB No. SF0752120018I1
DECISION
On July 9, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission seeking review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her 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.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB regarding Petitioner's allegation of disability 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.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Classroom Teacher, AD-1701-15, teaching first grade at Anderson Elementary School, Anderson Air Force Base, Guam. In September 2009, due to problems in her personal life and issues related to her medical condition (Bipolar Disorder), she requested immediate medical leave. She was off work for the remainder of the 2009/2010 school year. On May 7, 2010, she requested leave without pay (LWOP) for the entire 2010/2011 school year due to medical issues. This request was granted. On January 24, 2011, Petitioner contacted the school and asked that she be allowed to return to work for the 2011/2012 school year, which would begin on August 23, 2011. Petitioner's request was ultimately denied and, as will be more fully explained below, she did not return to work until November 2011.
Petitioner alleged that the Agency discriminated against her on the basis of mental disability when she was denied reasonable accommodation, and constructively suspended from her position of Teacher, AD-1701-15, Anderson Air Force Base, Guam, effective August 23, 2011. On October 5, 2011, Petitioner filed an appeal with the MSPB. The MSPB accepted the appeal. A jurisdictional hearing was held on March 21, 2012, and the record was closed at the conclusion of the hearing. On April 5 and 13, 2012, an MSPB Administrative Judge (AJ) reopened the record for the limited purpose of allowing the parties to supplement the record on the issue of whether the Agency had completely rescinded the constructive suspension. The record closed a final time on April 19, 2012,
The AJ issued a decision finding that the MSPB had jurisdiction over the appeal. The AJ found, however, that Petitioner failed to demonstrate that the Agency denied her a reasonable accommodation when it did not return her to work as she requested on August 23, 2011 and requested additional medical documentation. The AJ further found that Petitioner failed to show that the Agency failed to accommodate her when it did not provide her a paraprofessional as she requested. The AJ found that Petitioner failed to establish that direct evidence of discrimination existed or that she established that she was subjected to disparate treatment. The AJ further dismissed the appeal of the constructive suspension issue as being moot because the Agency rescinded the suspension action.1 The AJ determined that Petitioner had received all of the relief to which she was entitled. Petitioner did not seek review by the full Board and instead, filed the instant petition with the Commission.
Petitioner argues that the AJ erred in finding that the underlying complaint was moot because she was entitled to attorney's fees. Further, Petitioner maintained that the AJ erred in finding that the Agency's requirement that Petitioner undergo an additional medical evaluation was not discriminatory. Petitioner also asserts that the MSPB AJ erred in finding that the Agency did not deny her a reasonable accommodation when it did not provide her with an aide. Petitioner stated that the failure to accommodate her is direct evidence of discrimination and that she was subjected to disparate treatment and the Agency failed to provide legitimate, nondiscriminatory reasons for its actions.
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). After a thorough review of the record, the Commission CONCURS with the final decision of the MSPB finding of no discrimination.
Constructive Suspension
As noted above, the Commission's role here is to 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. The Commission has no jurisdiction over procedural determinations made by the MSPB. Therefore, to the extent that the MSPB found that the constructive suspension claim was now moot, we find that this determination does not address any matter within the Commission's jurisdiction because it does not speak to whether or not the Agency discriminated against Petitioner. Furthermore, we find that if Petitioner believed that the MSPB initial decision erred with respect to its determination that this matter was now moot because she was entitled to further relief, she could have filed an appeal seeking a review by the MSPB's full Board of the initial decision.
Additional Medical Documentation and Evaluation
If an employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), at Q. 17, July 27, 2000. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee's ability to work. Id. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. Id. The employer may not use the employee's leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination. Id.
The record reflects that Petitioner was perceived by Agency officials slurring her words during the period she was attempting to return to her employment. Further, the record reveals that the medical documentation provided by Petitioner was vague and indicated that she "seems to be prepared" to return to work. The Agency also noted in its request for additional information that the medical documentation provided by Petitioner failed to specify that she was able to return to work and perform the essential functions of her position. As such, we agree that the Agency appropriately required Petitioner to attend a medical examination and provide additional medical documentation in order to determine whether she was capable of returning as an elementary school teacher. Further, nothing in the record shows that the inquiries were unrelated to her condition. Accordingly, we find that the AJ appropriately determined that Petitioner failed to establish that the Agency discriminated against her when it required her to participate in a medical examination and to provide additional documentation.
Reasonable Accommodation
We find that Petitioner did not establish that the Agency failed to provide her with a reasonable accommodation. Assuming, arguendo, that Petitioner is a qualified individual with a disability, we find that she failed to show specifically how having a classroom aide would have assisted her in performing the essential functions of her position. A reasonable accommodation may consist of modifications or adjustments to the work environment or to the manner or circumstances under which the position held is customarily performed that enables a qualified individual with a disability to perform the essential functions of that position. 29 C.F.R. � 1630.2(o)(ii).
Petitioner's treating psychiatrist stated in a letter dated June 23, 2011, that Petitioner "may benefit from a paraprofessional while she is transitioning back to work. The paraprofessional would help her maintain structure and order in the classroom." In a letter dated June 30, 2011, Petitioner's psychologist recommended a paraprofessional to assist in the first semester to allow Petitioner to adjust to returning to work. We find that based on this documentation, it is not clear that the aide would in fact help Petitioner with the essential functions of her job. Additionally, we note that both Petitioner's psychiatrist and psychologist stated that there were no contraindications to Petitioner returning to work. As such, we find that Petitioner failed to show how an aide or paraprofessional would assist her in performing essential functions of her position.2 Moreover, while under the Rehabilitation Act, protected individuals are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb.17, 1994).
With regard to Petitioner's arguments that she was subjected to disparate treatment or that she presented direct evidence of discrimination when the Agency failed to accommodate her, we find that these claims are better address under the criteria of reasonable accommodation. As such, we decline to address the merits of these allegations as they were addressed supra.
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. 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.
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
___4/18/14_______________
Date
1 Petitioner was returned to work in November 2011, with the same pay, benefits, and duties. She also received back pay with interest for the time she was off and was credited with the appropriate amount of leave she should have accrued.
2 An employee is required to show a nexus between their disabling condition and the accommodation requested. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)).
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0320120058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120058