03A10017
04-12-2001
Gilda Corbett, Petitioner, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Petition No. 03A10017 MSPB No. SF-0752-00-0403-I-1 Agency No. GSA-CO-9900026
Gilda Corbett v. General Services Administration
03A10017
April 12, 2001
.
Gilda Corbett,
Petitioner,
v.
Thurman M. Davis, Sr.,
Acting Administrator,
General Services Administration,
Petition No. 03A10017
MSPB No. SF-0752-00-0403-I-1
Agency No. GSA-CO-9900026
DECISION
On October 20, 2000, Gilda Corbett (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (EEOC or Commission)
for review of a final decision of the Merit Systems Protection Board
(MSPB) concerning a claim of discrimination in violation of Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The petition is governed by the provisions of the Civil Service Reform
Act of 1978 and EEOC regulations, 29 C.F.R. � 1614.303 et seq.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on
disability when she was removed from employment constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole. 29 C.F.R. �
1614.305(c).
BACKGROUND
In her underlying complaint, petitioner alleged that she was discriminated
against based on race (African-American), color (black), sex (female),
disability (lumbar disc disease, chronic lumbar strain, and degenerative
joint disease), age (D.O.B. 10-21-46), and in reprisal for prior EEO
activity, when she was removed effective January 16, 1999.
Following the agency investigation and issuance of a final agency decision
(FAD), petitioner filed an appeal with the MSPB. A hearing was held
before an MSPB Administrative Judge (AJ), who issued an Initial Decision
(ID) on August 18, 2000, sustaining the removal and finding that the
agency did not discriminate against petitioner. Petitioner did not
request further review by the MSPB, and the decision became final on
September 22, 2000. The instant petition followed.
The record reveals that during the relevant time, petitioner was employed
as a Clerk (Typing), GS-303-5, in the agency's Office of Investigations,
Office of Inspector General, San Francisco, California. Petitioner
was diagnosed with lumbar disc disease, chronic lumbar strain, and
degenerative joint disease, which was aggravated by an on-the-job injury
on November 6, 1997. Petitioner filed a worker's compensation claim, and
received continuation of pay from November 7 through December 21, 1997.
Thereafter, she obtained leave without pay (LWOP), in part under the
Family and Medical Leave Act, while she pursued evaluation and treatment.
By letter dated August 24, 1998 (exhibit 20), petitioner's supervisor
advised petitioner: "Your doctor's assertion that you will only be
able to perform your duties on a part-time basis is unacceptable.
This office will require you to be present on a full-time basis."
The agency further advised petitioner that she must return to work by
September 21, 1998, or she would be deemed absent without leave (AWOL).
Petitioner did not return to work, and received a notice of proposed
removal dated November 2, 1998, which subsequently became effective.
ANALYSIS AND FINDINGS
Under the Rehabilitation Act, an agency is required to make reasonable
accommodation of the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation
would cause an undue hardship.<1> 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. A "qualified" individual
with a disability is one who satisfies the requirements for the employment
position she holds or desires and can perform the essential functions of
that position with or without reasonable accommodation. Goshe v. United
States Postal Service, EEOC Appeal No. 01972389 (October 25, 2000).
The inquiry regarding whether or not an individual with a disability 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. See Van Horn v. United
States Postal Service, EEOC Appeal No. 01960159 (October 23, 1998).
Medical records spanning the period of petitioner's absence, through the
effective date of her termination, indicate that petitioner's diagnoses
included chronic lumbar strain, lumbar disc disease, and degenerative
joint disease, which limited her, inter alia, from lifting in excess of
ten pounds. See, e.g., Record of Investigation at Exhibits 19 and 27;
Petitioner's MSPB Exhibit D. (Employee's Work Limitation Slip dated
July 15, 1996). Accordingly, petitioner's impairments substantially
limited her in the major life activity of lifting, rendering her an
"individual with a disability" within the meaning of the Rehabilitation
Act. Haygood v. United States Postal Service, EEOC Appeal No. 01976371
(April 25, 2000); Selix v. United States Postal Service, EEOC Appeal
No. 01970153 (March 16, 2000).
With respect to whether petitioner was a "qualified" individual with a
disability, the ID concluded that petitioner was not "qualified" because
she could not perform the essential functions of her then-current position
as a clerk-typist, and failed "to articulate a reasonable accommodation
under which she believes she could have performed the essential duties of
her position or of a vacant position to which she could be reassigned."
This is contrary to the Commission's interpretation of the agency's
obligation under the Rehabilitation Act. The Commission has previously
noted:
The employer is in the best position to know which jobs are vacant or
will become vacant within a reasonable period of time. In order to
narrow the search for potential vacancies, the employer, as part of the
interactive process, should ask the employee about his/her qualifications
and interests. Based on this information, the employer is obligated to
inform an employee about vacant positions for which s/he may be eligible
as a reassignment. However, an employee should assist the employer in
identifying appropriate vacancies to the extent that the employee has
access to information about them.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002 (March 1, 1999)
(Enforcement Guidance) at question 28.<2> Thus, while an agency is not
obligated to create a new position for an individual with a disability,
it must make a good faith effort to locate a vacant, funded position for
which he or she is qualified. "Only after determining that reassignment
to a vacant position was not possible or would result in an undue
hardship, would the Rehabilitation Act permit the agency to conclude
that [a petitioner] is not a qualified individual with a disability."
Kitaura v. United States Postal Service, EEOC Petition No. 03980089
(March 11, 1999). See also EEOC Policy Guidance on Executive Order
13164: Establishing Procedures to Facilitate the Provision of Reasonable
Accommodation (October 20, 2000) at questions 21-23.
The instant record does not address whether or not a vacant position
existed to which complainant could have been reassigned at the relevant
time, and if so, whether she could have been accommodated in such a
position absent undue hardship. Moreover, even if reassignment was
unavailable, the record does not address whether or not petitioner's
request for continued LWOP as an accommodation constituted an undue
hardship. Unpaid leave is a form of reasonable accommodation. See
Enforcement Guidance at questions 16-21. In a case involving excessive
absence from work, an individual with a disability may prove that he
or she is "qualified" -- in spite of such absence -- by first showing
that there is a sufficient nexus between the absences and the purported
disability, and the burden then becomes the agency's to demonstrate that
it would pose an undue hardship for the agency to tolerate or excuse an
employee's absence. See Roscoe v. Department of the Navy, EEOC Appeal
No. 01974138 (September 21, 2000); McCullough v. United States Postal
Service, EEOC Request No. 05950539 (April 25, 1996); Southerland v. United
States Postal Service, EEOC Request No. 05930714 (July 15, 1994); Omar
v. United States Postal Service, EEOC Request No. 05920207 (May 14,
1992); Ruiz v. United States Postal Service, EEOC Request No. 05880859
(May 21, 1990).<3>
Accordingly, a remand is necessary in order to determine whether, at
the time petitioner sought accommodation, it would have posed an undue
hardship to (1) allow petitioner to work a part-time schedule either in
her clerk-typist position or in another position to which she could be
reassigned, or (2) allow complainant to continue on LWOP. On remand
the Board should require the agency to provide evidence on these issues
in order to complete the record for review.
CONCLUSION
Based upon a thorough review of the record, and pursuant to 29 C.F.R. �
1614.305(d), it is the decision of the Commission to refer the matter
back to the Board for the taking of additional evidence regarding
petitioner's claim of disability discrimination, in accordance with
the foregoing analysis. Upon completion, the Board, without issuing a
decision, shall forward the supplemental record to the Commission for
review and a decision on the merits.
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
April 12, 2001
_________________
Date
1The 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.
2 Moreover, requests for accommodation need not be in writing, nor in
a particular format, in order to trigger the employer's obligation
to commence the interactive process of clarifying and assessing the
request. See, e.g., Schmidt v. Safeway Inc., 864 F. Supp. 991, 997
(D. Or. 1994) ("[t]he employee need not mention the ADA or even the term
'accommodation'"); see also Hendricks-Robinson v. Excel Corp., 154 F.3d
685, 694 (7th Cir. 1998) ("[a] request as straightforward as asking for
continued employment is a sufficient request for accommodation").
3This determination of reasonable accommodation under the Rehabilitation
Act is to be conducted separate and apart from the agency's determination
of an employee's eligibility for leave under the Family and Medical Leave
Act (FMLA). See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(March 1, 1999) (Enforcement Guidance) at question 21. Accordingly,
once an employee has utilized available accrued leave and FMLA leave,
he or she could be eligible for additional leave as an accommodation
under the Rehabilitation Act if the applicable standards are satisfied.