0320120065
10-08-2014
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320120065
MSPB Nos. SF-0752-12-0361-I-1, SF-0752-12-0487-I-1
DECISION
Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a June 26, 2012 decision issued by a Merit Systems Protection Board Administrative Judge (MSPB AJ) 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.1
BACKGROUND
At the time of the events at issue, Petitioner worked as a GS-6 Therapy Assistant in the Nursing Service at the Agency's VA Medical Center in Loma Linda, California. According to the position description, the position's priorities included mobilizing patients twice a day and assisting with activities of daily living. In addition, the position description stated that working with patients required regular and recurring bending, lifting, stooping, stretching, and similar activities.
In September 2009, Petitioner sustained an on-the-job back injury.2 The Agency placed Petitioner on light duty and assigned her tasks such as removing empty trays from patients' rooms after mealtimes, replenishing ice pitchers, and answering telephones. On March 9, 2011, Petitioner's physician imposed the following medical restrictions: no lifting more than 25 pounds and avoid significant bending, pushing, and pulling.
On May 3, 2011, Petitioner submitted a written request for reasonable accommodation. Specifically, Petitioner requested reassignment to a GS-6 position with no lifting more than 25 pounds, bending, pushing, or pulling.
In a May 9, 2011 letter, the Agency informed Petitioner that it had determined, based on her March 9, 2011 medical restrictions, that she was unable to meet the physical requirements of her position. In addition, the Agency informed Petitioner that it could no longer provide her with light duty tasks due to workload and staffing constraints. Moreover, the Agency informed Petitioner that the Nursing Service did not have any existing positions that would accommodate her medical restrictions. Finally, the Agency advised Petitioner that she could use accrued paid leave or unpaid leave.
On November 17, 2011, the Agency denied Petitioner's request for reasonable accommodation. The Agency reiterated the contents of its May 9, 2011 letter and noted that Petitioner did not respond to an October 19, 2011 letter inquiring whether she was willing to accept a reassignment to a lower grade or to another facility.
On December 12, 2011, the Agency issued Petitioner a notice of proposed removal. Specifically, the Agency charged Petitioner with medical inability to perform. The Agency stated that, based on her March 9, 2011 medical documentation, Petitioner was unable to perform the essential functions of her position. On January 17, 2012, the Agency issued a decision to remove Petitioner, effective January 23, 2012.
Petitioner filed mixed case appeals with the MSPB alleging that the Agency discriminated against her on the basis of disability (back condition). In MSPB No. SF-0752-12-0361-I-1, Petitioner challenged her removal. In MSPB No. SF-0752-12-0487-I-1, Petitioner asserted that the Agency constructively suspended her from May 2011 until her January 2012 removal.
On June 26, 2012, after a hearing, the MSPB AJ issued an initial decision on the joined appeals.
Regarding MSPB No. SF-0752-12-0361-I-1, the MSPB AJ found no disability discrimination. First, the MSPB AJ determined that Petitioner could not perform the essential functions of the Therapy Assistant position, with or without reasonable accommodation. Specifically, citing the position description and the Agency's testimony, the MSPB AJ found that the position's fundamental duties included helping 30 patients a day move and perform various exercises. In addition, the MSPB AJ found that Petitioner acknowledged in her testimony that she could not perform those duties. Further, the MSPB AJ found that Petitioner did not identify a reasonable accommodation that would have enabled her to perform those duties. Although Petitioner asserted that she could have performed light duty, the MSPB AJ found that the light duty tasks performed by Petitioner were not part of the position's fundamental duties and that the Agency was not required to eliminate the position's fundamental duties. Second, the MSPB AJ determined that Petitioner failed to show that there was a vacant, funded position to which she could have been reassigned as a reasonable accommodation. Specifically, the MSPB AJ found that the Agency presented unrebutted testimony that there were no vacant, funded positions at or below Petitioner's grade level at the facility where she was working and for which she was qualified. In addition, the MSPB AJ noted Petitioner's testimony that she would not have accepted a reassignment that required her to relocate.
Regarding MSPB No. SF-0752-12-0487-I-1, the MSPB AJ dismissed the appeal for lack of jurisdiction. Specifically, the MSPB AJ found that Petitioner failed to show that her absence from work was involuntary.
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).
Regarding MSPB No. SF-0752-12-0361-I-1 (removal), we agree with the MSPB's finding of no disability discrimination. As an initial matter, we note that Petitioner, in her petition to the Commission, did not specifically challenge any part of the MSPB's decision. Here, we agree with the MSPB that Petitioner failed to establish that she is "qualified" within the meaning of the Rehabilitation Act - i.e., she can perform the essential functions of the position held or desired, with or without reasonable accommodation. See 29 C.F.R. � 1630.2(m) and (o); Appendix. Specifically, the record supports the MSPB's determination that Petitioner, given her medical restrictions, could no longer perform the essential functions of her Therapy Assistant position, with or without reasonable accommodation. In addition, the record supports the MSPB's determination that there were no vacant, funded positions - at or below her grade level that she would have accepted (i.e., did not require her to relocate) - for which Petitioner could have performed the essential functions, with or without reasonable accommodation.
Regarding MSPB No. SF-0752-12-0487-I-1 (constructive suspension), we find that we have no jurisdiction to review Petitioner's petition. Here, the MSPB dismissed Petitioner's appeal for lack of jurisdiction and did not make any determinations on allegations of discrimination. When the MSPB denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the case will be considered a "non-mixed" matter and processed accordingly.
See 29 C.F.R. � 1614.302(b); Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990). In accordance with these principles, this matter is referred to the Agency for further processing as outlined below in the Notice To The Parties.
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 finding no disability discrimination in MSPB No.
SF-0752-12-0361-I-1 and to DENY CONSIDERATION of MSPB No. SF-0752-12-0487-I-1.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b) that the Agency is required to process her allegations of discrimination in MSPB No. SF-0752-12-0487-I-1 as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall promptly notify Petitioner in writing of the right to contact an EEO Counselor within forty five (45) days of receipt of the notice and to file an EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which Petitioner filed MSPB No. SF-0752-12-0487-I-1 shall be deemed to be the date of initial contact with an EEO Counselor.
A copy of the Agency's notification to Petitioner should be provided to the Compliance Officer as indicated below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
__10/8/14________________
Date
1 Petitioner filed a July 30, 2012 petition for review by the full Board prior to filing the instant July 31, 2012 petition with the Commission. Subsequently, the full Board issued a
June 7, 2013 final order denying Petitioner's petition. Therefore, Petitioner's initial petition to the Commission was premature but the issuance of the final order has cured the petition.
2 Petitioner filed a claim with the Office of Workers' Compensation Programs, but her claim was denied for lack of adequate medical evidence.
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0320120065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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