03A20057
06-26-2002
Ralph Pasatiempo, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ralph Pasatiempo v. Department of the Navy
03A20057
June 26, 2002
.
Ralph Pasatiempo,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A20057
MSPB No. SE-0752-01-0123-I-1
DECISION
On April 11, 2002, 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 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.<1>
Petitioner, a Security Guard at the agency's Naval Station in Pearl
Harbor, Hawaii, alleged that he was discriminated against on the basis
of disability (orthopedic back problems) when he was removed effective
July 11, 1997. Petitioner initially filed a mixed case complaint with
the agency's EEO office. The agency issued a final decision pursuant to
29 C.F.R. � 1614.302(d), and petitioner filed a timely appeal with the
MSPB. Petitioner subsequently withdrew his request for a hearing, and
the MSPB Administrative Judge issued a decision on the written record,
finding that petitioner failed to prove disability discrimination.
The Board denied petitioner's petition for review.
EEOC Regulations provide that the Commission has jurisdiction over mixed
case appeals and mixed case complaints 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 an incorrect interpretation of any applicable law, rule,
regulation or policy directive, or is not supported by the evidence in
the record as a whole. 29 C.F.R. � 1614.305(c).
The record reveals that petitioner began working for the agency as a
Security Guard in 1985. In 1991, after an on-the-job injury, petitioner
was detailed to perform light duty clerical work. His removal was
initially proposed in 1995, but he then suffered another allegedly
on-the-job injury and did not work from December 1995 through October
1996. When he returned to work, he was restricted to light duty for
no more than four hours per day. In April 1997, the four hours per day
limitation was lifted, but his light duty restrictions remained in effect.
In June 1997, the agency issued a second notice of proposed removal.
Petitioner contends that rather than removing him, the agency should have
provided him with a desk job and that its failure to do so constitutes
a violation of the Rehabilitation Act.
In order to prove discrimination under the Rehabilitation Act, petitioner
must initially establish that he is a qualified individual with a
disability. A "qualified individual with a disability" is an individual
with a disability 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.
29 C.F.R. � 1630.2(m). With respect to whether petitioner is a qualified
individual with a disability, the inquiry 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.
See Van Horn v. United States Postal Service, EEOC Appeal No. 01960159
(October 23, 1998).
Upon review of the record and assuming arguendo that petitioner is an
individual with a disability, we agree with the MSPB Administrative
Judge's determination that petitioner did not present sufficient
evidence to support a finding that, more likely than not, there was
an accommodation which would have enabled him to perform the essential
functions of his position or that there was a vacant funded position,
for which he was qualified and to which he could have been reassigned.
In reaching this conclusion, we find that petitioner did not contend that
he could perform the essential functions of his Security Guard position
or that there was any accommodation which would have enabled him to do so.
Rather, petitioner asked to be reassigned to a desk job.
The MSPB Administrative Judge found that in an effort to find an
appropriate reassignment for petitioner, a Personnel and Staffing
Specialist identified three positions: Supply Clerk, Accounting
Technician, and Motor Vehicle Dispatcher, for which petitioner met
the minimum qualification standards. However, the agency found that
petitioner was not physically qualified for the Supply Clerk position
due to his lifting, standing, and walking restrictions and, during the
time the positions of Accounting Technician and Motor Vehicle Dispatcher
were vacant, he was off duty due to the alleged on-the-job injury and
unavailable to work. The MSPB Administrative Judge found that petitioner
failed to show that any of these positions could have been restructured
to accommodate his restrictions or that there were any other vacant
funded positions available.
Accordingly, we find that petitioner failed to carry his burden of proof
to establish, by a preponderance of the evidence, that he was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
We therefore need not address the agency's contention in its proposed
removal letter that petitioner's continued employment posed a direct
threat to his own safety.
Based upon a thorough review of the record and for the foregoing reasons,
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 (W0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 26, 2002
__________________
Date
1 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.