0320120061
06-18-2013
Sigifredo Sanchez, Petitioner, v. Stephen Chu, Secretary, Department of Energy, Agency.
Sigifredo Sanchez,
Petitioner,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Petition No. 0320120061
MSPB No. DE-0752-09-0095-I-1
DECISION
On August 7, 2012, 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. For the following reasons, we CONCUR with the MSPB's finding of no discrimination.
ISSUE PRESENTED
The issue presented in this case is whether the MSPB correctly determined that Petitioner was not subjected to discrimination based on disability and denied a reasonable accommodation when he was indefinitely suspended and ultimately terminated.
BACKGROUND
Petitioner worked as an Emergency Operations Specialist at the Agency's National Nuclear Security Administration, Office of Secure Transportation facility. Petition's duties included providing "immediate response to events involving Nuclear Material Courier shipments." The position required certification under the Agency's Human Reliability Program (HRP). On August 4, 2007, Petitioner's supervisors expressed their concern regarding mistakes that he made during his oral reading of the morning shift brief on July 29, 2007. The Agency subsequently sent Petitioner for evaluation and HRP psychologists diagnosed him with a Mixed Receptive-Expressive Disorder that "impacts his ability to read, express himself accurately in writing and understand material that is presented in an auditory fashion." The report recommended revocation of his HRP certification. On August 26, 2008, the Agency revoked Petitioner's HRP certification on the basis that the Petitioner had a psychological or physical disorder that impaired his performance of his assigned duties. Petitioner challenged the revocation of his certification and requested a review hearing. He also requested reassignment to non-HRP duties. On September 17, 2009, the Agency issued a final decision where it determined that he "will not be recertified into an HRP position." On October 26, 2009, the Agency proposed Petitioner's removal for failure to maintain a condition of employment. Petitioner appealed both the removal and the indefinite suspension, and the MSPB Administrative Judge (MSPB AJ) joined the appeals for adjudication.
Petitioner alleged that the Agency discriminated against him on the basis of disability (dyslexia) when he was indefinitely suspended and ultimately terminated from his competitive service position because his Human Reliability Program certification which was a condition of employment was revoked.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's actions. The AJ found that Petitioner failed to demonstrate that he was a qualified individual with a disability as he was unable to perform his position without the certification. Petitioner argued that the AJ failed to analyze whether he was capable of performing the essential functions of other positions that were available.
The Petitioner filed a petition for review. The Board remanded Petitioner's appeals for further adjudication in order to establish if an indefinite suspension was reasonable, or whether some lesser penalty, such as reassignment, would have been ineffective under the circumstances. The Board noted that pertinent Agency policy provided that, "if an organization has a vacant position that does not require access authorization, the Head of the Organization may reassign the employee to the vacant position provided the employee otherwise meets the qualifications for the position." Petitioner identified at least one position for which he was allegedly qualified and that did not require HRP certification. The Board also noted that Petitioner identified other positions that were available in the New Mexico area in 2008, 2009, and 2010, and that had a status and compensation level equal to or below the level of the position from which the Agency removed him. On remand, the Board advised the Agency that it had the burden of proving by a preponderance of the evidence "whether reassignment, rather than indefinite suspension, would have been effective under the circumstances of this case. On remand, the Agency elected not to submit any additional evidence into the record.
The MSPB AJ found that the Agency failed to meet its burden of proving by a preponderance of the evidence that the Petitioner could not be assigned to the positions he identified because they required HRP certification. Therefore, the MSPB AJ found that an indefinite suspension was not reasonable and the Agency's action should be reversed. Further, the MSPB AJ found that the Agency failed to engage in the interactive process in order to identify a reasonable accommodation; however, the MSPB AJ found that the failure to engage in the interactive process alone did not violate the Rehabilitation Act, rather Petitioner had to show that this omission resulted in a failure to provide a reasonable accommodation. Further, the AJ noted that it was Petitioner's responsibility to show that he was qualified for the position to which he sought reassignment.
The MSPB AJ determined that while it was undisputed that non-HRP positions were available, the Petitioner failed to submit any evidence that he was qualified for the positions listed, or that the positions were non-HRP positions, except for one. Petitioner maintained that he was qualified for the position of Acquisition and Business Specialist. Petitioner maintained that by comparing the duties and responsibilities of this position against his old position, he had established that he met the basic qualifications for the position. To support his claim, Petitioner relied on the testimony of a Colonel who was a former supervisor when he was in the military. The Colonel testified that the positions were similar to a position that Petitioner had performed in the past. The MSPB AJ found the Colonel's testimony of "minimal probative value" because the Colonel did not have a background or expertise in OPM's basic qualification requirements. The MSPB AJ therefore, found that the Petitioner failed to present competent evidence establishing by a preponderance of the evidence that he met the basic qualification requirements for the Acquisition and Business Specialist position.
Because this was the only position at issue, the MSPB AJ found that Petitioner failed to meet his burden of establishing that he was denied a reasonable accommodation and thus did not prove his affirmative defense of disability discrimination. The MSPB AJ ruled that the indefinite suspension action should be reversed but affirmed the Agency's removal action.
Petitioner thereafter, filed the instant petition. On appeal, Petitioner contends that the Agency made no attempt to accommodate his disability through reassignment although he requested reassignment accommodation on multiple occasions, including on September 24, 2008, November 6, 2008, January 15, 2009, February 9, 2009, February 17, 2009, and November 3, 2009. Moreover, he identified available funded positions to which he was qualified for but still no action was taken. Further, he maintains that an HR representative acknowledged that she made no attempt to find an alternative position for him.
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).
Reasonable Accommodation
Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (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 a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
For purposes of this decision only, we will assume that the Petitioner established that during the period at issue, he was an individual with a disability.
Qualified Individual with a Disability
After Petitioner has demonstrated that he is an individual with a disability, he must then show that he is a "qualified individual with a disability," an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
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.
There is no dispute that Petitioner is not qualified for the Emergency Operations Specialist because he no longer has a HRP certification. Therefore, the issue becomes whether he has identified a vacant, funded, position that he could have been reassigned to as an accommodation. In Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002), the Commission clarified its position regarding the standard for assessing an agencies responsibility for providing a reassignment. Specifically, the Commission determined that, with respect to reassignment, the burden is on Petitioner to establish by a preponderance of the evidence that there were vacancies into which he could have been reassigned during the relevant time period. Id. Petitioner can establish this by producing evidence of particular vacancies, or, in the alternative, he can show that: (1) he was qualified to perform a job or jobs which existed at the Agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. Id.
For the reasons noted by the MSPB AJ, we find no reason to discount his determination that the Colonel's testimony was of minimal probative value. In this regard, we note the Colonel's testimony that: he became the Battalion Commander at the end of 1999 or January 2000; he made Petitioner his Property Book Officer, a military assignment, shortly after he took command; and that he was Petitioner's supervisor for about 27 to 29 months. See 3/31/10 Hearing Transcript, pp. 83 and 89. Although the Colonel thought Petitioner did an outstanding job, the fact remains that he had no expertise or background in OPM's basic qualification requirements and therefore could not competently compare the two positions. Because we find support for the MSPB AJ's determination, we agree that Petitioner failed to present competent evidence establishing by a preponderance of the evidence that he met the basic qualification requirements for the Acquisition and Business Specialist position. Accordingly, we find that the MSPB correctly determined that Petitioner did not establish that he was a qualified individual with a disability and that the Agency violated the Rehabilitation Act.
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
_6/18/13_________________
Date
2
0320120061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320120059