03A10032
04-05-2002
Elias Nieto, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Elias Nieto v. Department of the Treasury
03A10032
April 5, 2002
.
Elias Nieto,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Petition No. 03A10032
MSPB No. DA0752000279I1
DECISION
On November 30, 2000, Elias Nieto (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (Commission) for a
review of a Final Order of the Merit Systems Protection Board (MSPB)
concerning an allegation 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. The MSPB
found that the Department of the Treasury (agency) did not engage in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based on
disability (right shoulder injury) when he 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
The full factual history of this case is set forth in the Initial Decision
of the MSPB Administrative Judge (AJ) and will only be referenced as
necessary in this decision. The record reveals that during the relevant
time, petitioner was employed as Customs Inspector for the agency's
U.S. Customs Service in El Paso, Texas. After suffering an injury
while on duty, petitioner remained off work between June 29, 1996 and
May 1998.<1> In February 1998, the agency informed petitioner of his
proposed termination. After petitioner's termination was proposed,
one of his doctors (D1) notified the agency that, on May 1, 1998,
petitioner could return to �light limited work duties.� However,
on June 12, 1998, D1 notified the agency that petitioner would not be
able to continue working until further notice. The agency then removed
petitioner, effective June 20, 1998. Petitioner filed a complaint on
October 4, 1998. Following the agency investigation and issuance of a
final agency decision (FAD), petitioner filed an appeal with the MSPB.
In the Initial Decision, the MSPB Administrative Judge (AJ) affirmed
the agency's action. The AJ found, for purposes of his decision,
that petitioner was an individual with a disability in that he is
substantially limited in his ability to work.<2> The AJ then held,
however, that petitioner was not a qualified individual with a disability
because he was not able to perform the essential functions of his position
with or without an accommodation. The AJ noted that the agency offered
petitioner a light-duty assignment, but was told by D1 that petitioner
was unable to work in any position. The AJ noted that petitioner's
only contention was that the agency should have postponed its final
decision and allowed him to remain on leave without pay (LWOP) pending the
outcome of a six month rehabilitation program. Finding little evidence
to suggest that it was likely petitioner would be able to return to work
after this treatment, the AJ held that petitioner failed to articulate
a reasonable accommodation that would have allowed him to perform the
duties of his position, or any other available position, with or without
an accommodation. The AJ concluded that petitioner therefore failed to
establish that he was subjected to discrimination based on his disability.
Petitioner filed a petition for review by the full MSPB Board, which
was denied on November 8, 2000.
Petitioner raises no new contentions in his petition for EEOC review.
ANALYSIS AND FINDINGS
As a threshold matter, petitioner must establish that he is a
�qualified individual with a disability� within the meaning of the
Rehabilitation Act. 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).
Major life activities include, but are not limited to, caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i). A "qualified"
individual with a disability is one who satisfies the requirements for
the employment position he holds or desires and can perform the essential
functions of that position with or without reasonable accommodation.
29 C.F.R. � 1630.2(m).<3>
Assuming for the purposes of this decision that petitioner is an
individual with a disability, we find that he is not a qualified
individual within the meaning of the regulation because he failed
to establish that he was able to perform the essential functions of
his position, or any other position, with or without a reasonable
accommodation. Petitioner argued that rather than terminating him in
June 1998, the agency should have allowed him to remain on LWOP for
an additional 6 months as a reasonable accommodation. While unpaid
leave is a form of reasonable accommodation, the Commission has held
that a petitioner is not a qualified individual with a disability
if he fails to show, after an extended absence, that at any time
in the foreseeable future he will be able to perform the essential
functions of his position with or without a reasonable accommodation.
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 questions 16-21; Carney v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01986113 (August 3, 2000)
(petitioner was found not to be a qualified individual with a disability
because there was no showing, after an extended absence, that at any time
in the foreseeable future she could perform the essential functions of
her position).
Here, the record indicates that prior to his termination, petitioner's
injury prevented him from working in any position for two years.
After a brief return to work in a light-duty position provided by the
agency, petitioner's doctor informed the agency, on June 12, 1998, that
petitioner would not be able to work in any position until further notice.
Although petitioner argues that the agency should have allowed him an
additional 6 months of LWOP to complete a rehabilitation program, neither
petitioner nor his doctors gave any indication that petitioner would be
able to return to his duties after this time. Rather, D1 merely noted,
on June 26, 1998, that he hoped petitioner could return to some type
of light duty function after six months of rehabilitation, but that if
the rehabilitation program was unhelpful, petitioner would then need to
undergo surgery.
We find, therefore, that petitioner failed to show that at any time in
the foreseeable future he could have performed the essential functions
of his job, or any other job, with or without a reasonable accommodation.
Accordingly, petitioner failed to establish that he is a qualified
individual with a disability within the meaning of the Rehabilitation Act.
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 MSPB's decision
that petitioner was not discriminated against on the basis of disability.
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
April 5, 2002
Date
1 Petitioner returned to work in a light-duty position for one day in
October 1997, but was unable to complete the workday due to severe pain.
2 The AJ noted that the agency did not concede that complainant
is disabled. Rather, the agency concentrated on the argument that
complainant is not a �qualified� individual with a disability.
3 The 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.