03A20054
06-27-2002
Brenda J. Combs, Petitioner, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Brenda J. Combs v. Social Security Administration
03A20054
06-27-02
.
Brenda J. Combs,
Petitioner,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Petition No. 03A20054
MSPB No. SF-0752-00-0107-I-1
DECISION
INTRODUCTION
On April 1, 2002, 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 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.
ISSUE PRESENTED
The issue presented is whether petitioner established, by a preponderance
of the evidence, that she was discriminated against on the basis of
disability (cerebral palsy, carpal tunnel syndrome and tinnitus) when
she was removed from her position, effective October 10, 1997.
BACKGROUND
Petitioner was hired, in June 1981, after being referred for employment
by the state of California's Department of Vocational Rehabilitation.
She was appointed to a full-time GS-3, Clerk Typist (Secretary) position.
She was assigned to Module 4 in the Richmond, California office. At that
time, the Module 4 Manager was A-1. The position description lists her
critical duties as including: receiving visitors and telephone calls;
delivering messages; reviewing and controlling correspondence, reports,
transmittals; routing materials to the managers and staff of the Module;
maintaining appointment calendar, 7B cards, time and attendance records;
establishing procedures for controlling personnel actions; requisitioning
office supplies, maintenance requests and printing services. The physical
requirements of the position were:
prolonged sitting at a keyboard and video display terminal, 6 to 8
hours a day, keying or typing. Extensive use of hands. Limited walking
involved. Continuous reading, frequently material is faint carbon copy.
Normal lifting involved is less than 10 pounds. May have to answer
the telephone, take messages or refer calls. Must perform a simple
arithmetic, limited data analysis. Work is extremely repetitive.
Between 1987-1995, petitioner suffered several falls, both on the job
and off, that resulted in various injuries. In March 1996, she received
multiple injuries after being thrown from a cart. After a five month
absence, she returned to work on August 12, 1996, with restrictions from
her doctor, B-1. The restrictions included: a 4 hour work day with the
remaining 4 hours carried as OWCP-covered or LWOP for the first month;
the placement of overhead bins within her reach; a motorized cart from
OWCP; the agency's agreement to keep the cart charged; and limitations
on her kneeling, standing, bending, twisting, lifting, reaching, walking
and sitting. Petitioner eventually increased her workday to five hours,
but, on August 23, 1996, she had another on-the-job-injury that kept
her from working for a period of time. In November 1996, C-1, the only
other full-time Secretary in Module 4, was terminated. According to the
agency, there were no funds to hire a replacement for C-1. Therefore,
C�2, a Claims Clerk Recovery Examiner from another office, was assigned
to Module 4 to assist petitioner until she could resume full-time work
upon her return.
On January 23, 1997, B-2, a new doctor, described petitioner's condition
as: thoracolumbar scoliosis, thoracolumbosacral strain-sprain, chronic
degenerative disk disorder and facet joint arthritis, possible lumbar
disk herniation with right leg nerve root compression, cervical trapezial
myofacial strain/pain syndrome, bilateral carpal tunnel syndrome, and
cerebral palsy with spastic diplegia (congenital). On February 26,
1997, petitioner returned to work, with medical restrictions from B-2.
The restrictions included a 4-hour or 5-hour workday, no lifting, no
climbing, no twisting and limited standing and walking.
After petitioner returned to work, A-2 became the Module 4 Manager.
One month after her return to work, petitioner had not resumed a full-time
schedule. A-2, because of petitioner's abbreviated workday schedule,
felt that she was not performing the critical duties of her position,
even with C-1's help. Consequently, A-2 detailed petitioner to a Cash
Clerk position in the Remittance & Accounting Unit (RAU), for 120 days,
beginning March 24, 1997. Under the terms of the detail, the petitioner
could request a permanent reassignment to the Cash Clerk position at
any time.
Petitioner underwent training for the Cash Clerk position. After she
complained of migraine headaches and ringing ears due to the loud noises
from the Inscriber/Endorser machine in RAU, the RAU supervisor, A-3,
covered the machine and provided petitioner with a headset to cover
her ears. A-3 noted various deficiencies in petitioner's performance,
i.e., not setting priorities, not completing assigned duties and not
retaining instructions. The petitioner's error rate was found to also
be high and she appeared overwhelmed as new tasks were added. A-3 also
stated that petitioner had difficulty keying with her left hand due to
her carpal tunnel syndrome. In June 1997, petitioner had an automobile
accident and was absent from work for the remainder of her detail,
which was about six weeks.
On August 4, 1997, petitioner returned to work in Module 4. B-2 provided
restrictions of a four hour work day, no lifting or carrying over
5 pounds, no pushing or pulling over 10 pounds, and no repetitive
bending, stooping or repetitive twisting. On August 6, 1997, A-2
sent a memorandum to D-1, Employee Relations Specialist, stating that
arrangements had to be made to temporarily assign petitioner to the
Health Unit. The purpose was to assist the nurse with clerical work
because petitioner's wrist pain prevented her from processing Federal
Archive Record Center documents in Module 4. A-2 also stated that she
received conflicting doctor's notes from petitioner about the duration of
her part-time work/medical restrictions and that she told the petitioner
that she needed an �end-date� for her medical restrictions. On August
11, 1997, petitioner was assigned to the Health Unit.
On August 22, 1997, A-2 issued petitioner a proposed removal notice,
charging her with the inability to maintain regular attendance and
inability to perform assigned duties for medical reasons. The removal
notice stated, in pertinent part, that:
During most of your tenure in Module 4, two secretaries were assigned
to our Module. This made it possible for the office to accommodate you
by dividing the secretarial duties. When the other secretary resigned,
I learned that we would not receive a replacement. [C-2] was assigned to
assist you with a proportionate share of the secretary duties, until your
work hours increased to full-time. When your hours did not increase and
[C-2's] work began to age, it was determined that this was not a practical
solution to a probable long term problem. The Secretary position in the
Module is a full-time job. A full-time incumbent is needed to perform
these duties.
On October 9, 1997, the deciding official issued a removal decision
based on these charges and indicated that petitioner would be removed on
October 10, 1997. Subsequently, petitioner filed an EEO complaint against
the agency maintaining that she was discriminated against. The agency
issued a final decision finding no discrimination. On November 24,
1999, petitioner filed a mixed case appeal with the MSPB.
After a hearing, an MSPB Administrative Judge (AJ) found that the agency
had established that petitioner was available for work just a little
more than half the time between January 1995 through August 15, 1997.
According to the AJ, �the numerous injuries sustained by [the petitioner]
caused her to not maintain regular attendance.�<1> The AJ also sustained
the agency's determination that petitioner was unable to perform her
assigned duties for medical reasons. The AJ compared the duties of
petitioner's position with her medical restrictions as of August 4, 1997.
According to the AJ, petitioner's �physical conditions clearly prevent
her from performing the essential duties of the Module Secretary not
only because of her physical limitations but because of her inability
to work more than 4 hours per day.�
With respect to petitioner's claim of discrimination based on disability,
the AJ, noting the effects that petitioner's various medical impairments
have on her ability to walk, perform manual tasks and work, found that she
was a person with a disability. However, the AJ found that petitioner
was not a qualified person with a disability because she could not
perform certain physical requirements of the position, with or without
accommodation, i.e., prolonged sitting at a keyboard and Video Display
Terminal, 6 to 8 hours, keying or typing, extensive use of hands, and
normal lifting up to 10 pounds. Additionally, the AJ noted petitioner's
4 hour per day work limitation, which the AJ found, �clearly indicates
that she is unable to perform the duties of her position which is a
full-time position.�
The AJ also found that, even assuming petitioner was a qualified
individual, she failed to demonstrate that any reasonable accommodation
was possible. According to the AJ, restructuring of the position was not
possible because the above physical requirements were essential functions.
The AJ also noted the agency's unsuccessful efforts to place petitioner
in the Cash Clerk position and to restructure said position to meet
petitioner's needs. Finally, the AJ found that undue hardship would
be caused to the agency if petitioner were maintained in the position.
The AJ cited the testimony of C-2 that there was a loss of production
in her department due to her having to perform secretarial duties.
The AJ also found that it was not feasible to hire a full-time or
part-time Secretary to assist petitioner because there was only one
Secretary slot assigned to Module 4. According to A-2, C-1, when she
was employed, was only hired to replace petitioner when she was absent;
therefore, the AJ found that creating another full-time position was
not a reasonable accommodation.
Petitioner filed a petition for review with the full Board. The petition
was denied and petitioner's removal was sustained. This position
followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board,
on the petitioner's allegations of discrimination, constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
See 29 C.F.R. � 1614.305(c). After a review of the record, the Commission
finds that the Board's decision constitutes a correct interpretation
of all applicable laws, rules, regulations, and policy directives, and
is supported by the record as a whole. Therefore, finding no basis for
reversing the Board's final decision, we concur with its determination.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
Assuming, arguendo, that petitioner established that she was an individual
with a disability covered by the Rehabilitation Act, we find that she is
not qualified within the meaning of 29 C.F.R. � 1630.2(m). This section
defines the term �qualified individual with a disability� as meaning,
with respect to employment, a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position held or desired. The AJ found that although petitioner could
perform many of the duties of her position, the medical evidence indicated
that, among other things, she was unable to key, type or extensively use
her hands. A-2 testified that the petitioner had problems distributing
and routing mail because it required standing and passing out mail.
She also indicated that, because petitioner was only present four
hours a day, other people had to answer the telephone, take inventory,
order supplies, and handle time and attendance cards. Petitioner did
not identify a reasonable accommodation which would have allowed her to
perform these essential functions of the Secretary position. Accordingly,
we are satisfied that complainant can not perform the essential functions
of the Secretary position.
The discussion of �qualified� does not end with petitioner's Secretary
position, however. The term "position" is not limited to the position
held by the employee, but also includes positions that the employee could
have held as a result of reassignment. Therefore, in determining whether
complainant is �qualified," an agency must also look beyond the position
which the employee presently encumbers. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (Enforcement Guidance - Reasonable Accommodation),
No. 915.002 (March 1, 1999); see also Interpretive Guidance on Title
I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part
1630.2(o).
The record indicates that the agency tried to reassign the petitioner
to the Cash Clerk position in the RAU. As previously noted, under the
terms of her detail, the petitioner could have requested a permanent
reassignment to the Cash Clerk position. Although petitioner underwent
training for the Cash Clerk position, had a reduced workload and was
provided feedback, A-3 noted various deficiencies in her performance,
i.e., not setting priorities, not completing assigned duties and not
retaining instructions. The petitioner's error rate was found to also
be high and she appeared overwhelmed as new tasks were added. A-3 also
stated that petitioner had difficulty keying with her left hand due to her
carpal tunnel syndrome. Petitioner failed to identify any other funded
vacancy, for which she was qualified, that existed at the relevant time
and to which she could have been reassigned.
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 Board finding no discrimination.
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
___06-27-02_______________
Date
1The AJ noted that petitioner was available
for work a total of 53.1% of the work time from January 1995 through
August 15, 1997. In 1995, petitioner took 242.5 hours sick leave, and
257.5 hours continuation of pay. In 1996, she took 19 hours sick leave,
878.25 hours LWOP and 248 hours continuation of pay. In 1997, she took
492.5 hours LWOP.