0320140081
05-13-2015
Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320140081
MSPB No. SF0752130078I1
DECISION
On September 11, 2004, 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, the Commission concurs with the MSPB.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Forestry Technician - Check Cruiser at the Agency's Klamath National Forest in Yreka, California. The Agency asserted that, in order to hold the title of Forest Check Cruiser, Petitioner, as a condition of employment, was required to become a certified advanced cruiser; however, he repeatedly failed to pass the advanced cruiser exam after additional training to help him pass. Effective October 11, 2012, the Agency removed Petitioner from his position for failing to pass the advanced cruiser examination. Petitioner alleged that the Agency discriminated against him on the basis of disability (Post Traumatic Stress Disorder) (PTSD) and failed to provide him with a reasonable accommodation when he was removed.
A hearing was held and thereafter an MSPB Administrative Judge (MSPB AJ) issued an initial decision upholding Petitioner's removal. The MSPB AJ found that Petitioner's contention that passing the advanced cruiser exam was not a condition of employment was essentially a mere disagreement with the Agency's testimony that the passing the test was an essential function of the position. Among other things, the MSPB AJ also found that the Petitioner did not provide the Agency or the Board any documentation supporting his claim that he suffered from PTSD, nor did he submit any credible evidence showing that his inability to pass the advanced cruiser exam was related to his PTSD. Therefore, the MSPB AJ determined that the Petitioner failed to prove either that he was disabled during the relevant time frame due to PTSD or that he was removed based upon any disability-related limitations. Further, the MSPB AJ indicated that even if the Petitioner could show that his removal was based on disability-related impairments, he failed to show that there was a reasonable accommodation that the Agency could have provided that would allow him to continue working.
The MSPB AJ rejected Petitioner's argument that the Agency should have provided more one-on-one assistance in teaching him how to develop cruise designs because the Agency had shown that Petitioner had been provided extensive assistance from multiple sources and only removed him after years of such assistance had proved unsuccessful. Also, The MSPB AJ found that it was unrebutted that the Agency needed a certified check cruiser in the position. The MSPB AJ found that it was unreasonable to keep Petitioner in a job where he could not perform the essential functions of the position. The MSPB AJ also rejected Petitioner's argument that he could have been reassigned to another position as Petitioner failed to identify any vacant funded positions to which he could have been reassigned. Therefore, the MSPB AJ found that Petitioner failed to prove by preponderant evidence his affirmative defense of disability discrimination.
Thereafter, Petitioner sought review by the full Board. Petitioner argued that the MSPB AJ erred in finding that the Agency had not discriminated against him "because the Petitioner never requested reassignment and because Petitioner believed that the Agency should have accommodated him." The Board found that Petitioner had apparently misread the initial decision. The Board explained that the MSPB AJ found that Petitioner failed to prove his claim because, even if he could show that his removal was based on disability-related impairments, he did not meet his burden of showing that there was a reasonable accommodation that the Agency could have provided that would have allowed him to continuing working. Petitioner then filed the instant petition. On appeal, Petitioner requests a review of the final decision. He indicated that he has a 100% disability rating from the military.
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).
We find that Petitioner has provided no evidence which suggests that discriminatory animus was involved in the decision to terminate him. We find that even if we assume arguendo that Petitioner is a qualified individual with a disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was unable to pass the test for certification, and that this fact led to his removal. We find that Petitioner failed to show that the Agency's reasons were pretext for discrimination.
With regard to Petitioner's reasonable accommodation claim, the record indicates that even though Petitioner did not request a reasonable accommodation; did not provide medical documentation regarding his medical condition; and did not identify any vacant funded position available, the Agency provided him with a reasonable accommodation because management provided additional training to help him obtain his certification and while this may have not been the accommodation of his choice, we find that the MSPB AJ correctly determined that it fulfilled the Agency's obligations under the Rehabilitation Act.
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 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 (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
__5/13/15________________
Date
2
0320140081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140081