Carrie Graffius, Petitioner,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 13, 2007
0320070109 (E.E.O.C. Sep. 13, 2007)

0320070109

09-13-2007

Carrie Graffius, Petitioner, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Carrie Graffius,

Petitioner,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 0320070109

MSPB No. DC-0752-060-453-I-2

DECISION

On July 7, 2007, 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.

Petitioner alleged that she was discriminated against on the basis of

disability (diabetes and carpal tunnel syndrome) when, effective November

1, 2005, petitioner was removed from her position as a Program Specialist

in the agency's Office of Facilities Management in Washington, D.C.

The record indicated that petitioner had worked with the agency

since 1999. In September 2001, petitioner married and move to a town

approximately 160 miles from the office. During that time, she began

to have health problems and the agency arranged for her to work from

home temporarily. The work from home arrangement was extended and

lasted for over two years. In 2003, the agency determined that it was

no longer feasible to have petitioner work from home on a full time

basis and, in May 2003, asked petitioner to develop a plan to work at

the office. Petitioner indicated that she could only come to work one

day a week because her husband had to drive her. The agency agreed and,

in June 2003, petitioner started commuting into the office. However,

by August 2003, petitioner stopped coming into the office. On April 28,

2004, petitioner's full-time telecommuting arrangement was terminated

effective June 1, 2004. Starting on June 1, 2004, petitioner did not

report to work and initially exhausted her leave balances and then was

allowed twelve weeks of additional leave under the Family and Medical

Leave Act (FMLA). Starting in November 2004, when all leave was exhausted,

she was placed on absence without leave (AWOL) status. On April 21,

2005, the agency proposed petitioner's termination based on the charge

of excessive absence/AWOL. Petitioner made an oral reply. On October 24,

2005, the agency terminated petitioner effective November 1, 2005.

Petitioner filed a mixed case complaint and the agency issued a decision

finding that petitioner was not discriminated against as alleged.

Thereafter petitioner filed an appeal with the MSPB. The MSPB

Administrative Judge (AJ) held a hearing on the matter and issued a

decision finding no discrimination. The MSPB AJ found that petitioner

did not establish her claim of disability-based discrimination. As

an initial matter, the MSBP AJ determined that petitioner was not an

individual with a disability in that she had not shown that she was

limited in the major life activity of working. The MSPB AJ continued

the analysis and determined that, in essence, there was no accommodation

available that would have allowed petitioner to perform the essential

functions of her position. Further, the MSPB AJ noted that there was

no vacant position to which petitioner could have been reassigned.

As such, the MSBP AJ concluded that petitioner did not show that the

agency's removal action was discriminatory.

The petitioner filed a petition for review with the Board. The Board

issued its final order on June 6, 2007, denying the petition.

This petition to the Commission followed.

EEOC regulations provide that the Commission has jurisdiction over

mixed case complaints 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).

For the purposes of analysis only, we will assume petitioner is an

individual with a disability. 29 C.F.R. � 1630.2(g)(1). Although the

Commission does not rule on whether or not petitioner is actually

an individual with a disability, we note that the MSPB AJ erroneously

considered petitioner's limitations solely with respect to the major life

activity of working. We find that the MSBP AJ should have also considered

other major life activities, including but not limited to, caring for

oneself, performing manual tasks and walking. 29 C.F.R. � 1630.2(i).

Instead, in her analysis, the MSPB AJ indicated that petitioner often

used a wheelchair or walker, but noted that the there was no evidence

that this had any impact on her ability to work. We find that the MSPB

AJ should have also considered whether the use of the wheelchair impacted

on the major life activity of walking, as well as working.

Notwithstanding these gaps in the MSPB AJ's disability analysis, based

upon a thorough review of the record, and even assuming petitioner met

the definition of an individual with a disability, it is the decision

of the Commission to concur with the final decision of the MSPB finding

no discrimination. The Commission finds that, with the exception noted

above, 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

September 13, 2007

__________________

Date

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0320070109

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0320070109