03A00096
04-23-2002
Aniceto H. Moreno, Petitioner, v. Thomas E. White, Secretary, Department of the Army, Agency.
Aniceto H. Moreno v. Department of the Army
03A00096
04-23-02
.
Aniceto H. Moreno,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Petition No. 03A00096
MSPB No. DA-0752-99-0441-I-1
DECISION
INTRODUCTION
On May 15, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a May 5, 2000
Final Order of the Merit Systems Protection Board (MSPB) concerning
petitioner's claim of discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e-16 (1994 &
Supp. V 2000); the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. (1994 & Supp. V 2000) (Rehabilitation Act); and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 633a
(1994 & Supp. V 2000). Thereafter, petitioner filed a civil action
regarding this matter, which was subsequently dismissed without prejudice.
The Commission accepts this petition in accordance with the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified
as amended in various sections of 5 U.S.C.) and EEOC regulations at 29
C.F.R. � 1614.303 et seq. (2000).
ISSUE
The issue presented is whether the MSPB's Decision that the agency did not
retaliate against petitioner, nor discriminate against petitioner because
of his disability, national origin and age when effective June 25, 1999,
he was terminated from the agency, constitutes a correct interpretation
of the appropriate laws, rules, regulations and policy directives,
and is supported by the record as a whole.
BACKGROUND
On July 21, 1999, petitioner, a Target Devices Servicer, WG-4801-5
at an agency facility in Fort Hood, Texas, filed a mixed case appeal
with the MSPB alleging that he was discriminated against on the bases
of his national origin (Hispanic), age (date of birth 01/21/55) and
disability (carpal tunnel syndrome) and that he was retaliated against
for previously participating in protected equal employment opportunity
(EEO) activity, when effective June 25, 1999, he was terminated from
the agency because of his physical inability to perform the duties
of his position. After a hearing, an MSPB Administrative Judge (AJ)
found that the agency did not discriminate against petitioner as alleged.
In 1992, petitioner worked as a Materials Handler, where, as found by
the AJ, he had to lift weights in excess of 70 pounds. In August, 1992,
petitioner sought medical attention for carpal tunnel syndrome, and was
thereafter away from the agency on Workers' Compensation. Pursuant to
a 1993 agency downsizing, petitioner's position was abolished; he was
reassigned and in 1995 petitioner returned to the agency as a Motor
Vehicle Operator. In 1997, the agency underwent a reduction-in-force,
and petitioner was notified that he would be reassigned to the position of
Target Devices Servicer. On the day his reassignment was to be effective,
petitioner produced a doctor's note that restricted petitioner from
repetitive grasping, squeezing or lifting with his hands, and from
lifting objects greater than 15 pounds. Petitioner did not assume
the duties of a Target Devices Servicer but instead was reassigned to
perform light duty work within his physical limitations. The agency was
unable to find a vacant position for petitioner within his restrictions,
and effective June 25, 1999, he was removed from the agency.
In his Decision, the AJ found that petitioner was not a qualified
individual with a disability because petitioner was unable to perform
the essential duties of his position with or without accommodation.
Petitioner argued that he could have performed half of his duties,
and performed other duties as assigned. However, the AJ found that
some essential duties of the position of Target Device Servicer were
frequent and heavy lifting, and that those duties could not be modified to
accommodate petitioner's work restrictions. Additionally, the AJ found
that there was no vacant position for which petitioner was qualified
and to which petitioner could have been reassigned. The AJ found that
the agency conducted an extended job search for petitioner, but that
petitioner did not meet the qualifications for any vacant positions.
The AJ found the testimonial evidence plausible, responsive and mutually
consistent and that it bolstered the documentary evidence presented.
The AJ concluded that petitioner was not discriminated against because
of his disability.
The AJ further found that neither national origin discrimination, age
discrimination, nor retaliation motivated the agency to remove petitioner.
Petitioner's evidence of national origin discrimination consisted of
generalized allegations that Hispanic employees were not appropriately
represented in the agency's population; petitioner adduced no evidence
of age discrimination, and regarding retaliation, petitioner showed that
he filed an EEO complaint sometime between 1986 or 1989, but neither the
proposing nor deciding official in petitioner's removal were aware of
petitioner's earlier EEO activity. The AJ found petitioner's evidence
failed to show that petitioner's protected characteristics motivated
the agency's action.
On appeal, petitioner asserted that the AJ erred in finding that he
was not discriminated against as alleged; the agency did not submit
a statement.
ANALYSIS
1. Disability Discrimination. 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. 29 C.F.R. � 1630.2(g).
When proceeding under a disparate treatment or reasonable accommodation
analysis, complainant must establish that he is a qualified individual
with a disability. See Sims v. United States Postal Service, EEOC
Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. � 1630.4 (prohibiting
discrimination against qualified individuals with disabilities).
A "qualified" individual with a disability satisfies the requisite
skills and experiences for the job, and is capable of performing the
essential functions of the position with or without reasonable
accommodation. 29 C.F.R.
� 1630.2(m). Reassignment to a vacant position is a form of reasonable
accommodation. 42 U.S.C. 12111(9)(B) (1994 & Supp. V 2000); EEOC Notice
915.002, Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, at 37 (Mar. 1, 1999).
Presuming that petitioner is an individual with a disability, we find that
he failed to show that he was a qualified individual with a disability,
as petitioner did not show that he could perform the essential functions
of his position with or without reasonable accommodation. Petitioner's
argument that he could have performed half of his duties or other
duties as assigned failed to address the requirement that he perform
the essential duties of his position. The Commission notes that
job restructuring involves the reallocation or redistribution of
"nonessential, marginal job functions" or the alteration of when and/or
how an essential function is performed. Interpretive Guidance on Title
I of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part
1630, Section 1630.2(o). An employer is not required to reallocate or
eliminate essential functions of the position. See Harris v. Department
of the Navy, EEOC Petition No. 03930116 (Dec. 16, 1993).
Petitioner has not presented sufficient evidence to establish that,
as a reasonable accommodation, vacant positions were available for
which he was qualified and to which he could have been reassigned.
Petitioner testified that he had at one time performed clerical work
and could perform the position of Data Transcription Clerk. A Data
Transcription Clerk position at the GS-4 level, however, required either
two years of college or a year of clerical experience, neither of which
petitioner had, and there were no GS-2 level Data Transcription Clerk
positions available. Petitioner also testified that at one time he had
performed the job of �tower operator,� but there was no evidence that a
vacancy for such a position existed. Petitioner failed to suggest any
other positions for which he might have been qualified and that were
available during the relevant time period.
2. National Origin, Age and Retaliation Discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); see also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
For complainant to prevail, he must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
For the purposes of this decision, the Commission assumes that
complainant established prima facie cases of national origin, age, and
retaliation discrimination.<1> Therefore, the agency must articulate
a legitimate, nondiscriminatory reason for its action. Here, in
response to complainant's allegations, the agency indicated that as
a result of a reduction-in-force, petitioner needed to be reassigned.
Petitioner was unable to perform the duties of the position to which he
was reassigned. The agency sought other positions for petitioner for
which he was qualified, but found none. For that reason, the agency
proceeded with petitioner's removal. No discrimination was shown in
the agency's actions.
CONCLUSION
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
____04-23-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 In order to show a prima facie case of discrimination, petitioner
need only come forward with sufficient evidence to create an inference
of discrimination. See O'Connor v. Consolidated Coin Caterer's Group,
517 U.S. 308 (1996).