0320080103
01-08-2009
John D. Wightman, Petitioner, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
John D. Wightman,
Petitioner,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080103
MSPB Nos. DE-0752-07-0485-I-1, DE-0353-08-0207-I-1, & DE-0752-08-0090-I-1
DECISION
On August 21, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC or Commission) asking for
review of an initial decision of the Merit Systems Protection Board
(MSPB), which became final on July 24, 2008, 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.
Petitioner formerly worked as a Housekeeping Aid, WG-2, at the Dwight
D. Eisenhower Veterans Affairs Medical Center in Leavenworth, Kansas.
He alleged that he was discriminated against on the basis of disability
(neck and back) when (1) he was constructively suspended, (2) he was
then forced to take an involuntary retirement from his position effective
August 31, 2004, and (3) his restoration rights were violated.
Petitioner filed a mixed case complaint alleging claim 2. The agency
issued a decision finding that petitioner was not discriminated against
as alleged. Thereafter petitioner filed an appeal with the MSPB,
raising claims 1, 2 and 3. Following a hearing, a MSPB Administrative
Judge (AJ) issued a decision finding that petitioner was constructively
suspended and forced into involuntary retirement, but was not entitled to
restoration.1 The MSPB found petitioner was constructively suspended from
July 19, 2004 to August 19, 2004, because the agency initiated the action
by telling him he could not return to work until he provided medical
documentation showing that he could perform his full range of his duties.
It overturned the suspension on the grounds that it violated petitioner's
right to due process by not providing him the procedural protections
of 5 U.S.C. � 7513(b) or any other advance notice of the suspension
or opportunity to respond. The MSPB found that the retirement was
involuntary and tantamount to removal because the agency only ended the
constructive suspension when petitioner agreed to retire, threatened him
with a second constructive suspension if he continued to object that he
did not want to retire; told petitioner that if he chose not to retire,
the agency would take all his leave and force him to retire anyway by
removing him for medical inability to perform, even though the agency was
not anticipating any adverse actions at the time; and failing to enter
into the reasonable accommodation process with petitioner even though he
requested reasonable accommodation.2 The MSPB found that petitioner did
not show he was entitled to restoration prior to his retirement because
this was consistent with OWCP initially rejecting petitioner's workers'
compensation claim, and while he was entitled to restoration after OWCP
granted him benefits on January 10, 2005, the delay in restoration was
not arbitrary and capricious because the agency was waiting to obtain
material information and medial documentation from OWCP.
The MSPB found no disability discrimination. It found that even if
petitioner showed he had a disability, he did not show he was qualified
in that he could perform the essential functions of his position, or
a vacant position, with or without reasonable accommodation, without
endangering the health and safety of himself or others. It found that
petitioner was on pain medication that he himself felt posed a danger of
further injury if he attempted to perform his Housekeeping Aid duties,
and he did not articulate a reasonable accommodation except the agency
finding a light duty position he could perform. It found that even if an
agency failed to look for a reassignment as a reasonable accommodation,
this did not relieve petitioner of the ultimate burden of showing that
such positions existed and were available.
Petitioner's Housekeeping Aid supervisor affirmed that the position
description of the Housekeeping Aid job listed duties of frequently
pushing loaded carts of supplies, linens, or trash; using heavy powered
equipment such as industrial-type buffers and riding equipment; operating
vacuums, buffers, scrubbers, and carpet extractors; sweeping, mopping,
pulling trash, making beds, cleaning from floor to ceiling, and high
dusting. Agency File, Exh. 4J, pages 2-3.
Petitioner submitted a list of limitations by his primary care physician
dated May 13, 2004, that limited him to intermittently lifting and
carrying 0 to 10 pounds 3 hours a day (no heavier weights), and no
kneeling, bending, stooping, twisting, or reaching above his shoulders,
among other limitations. Petitioner's Exh. 4. The primary care physician
testified at the MSPB hearing that at the time the restrictions were
probably going to be permanent. Petitioner affirmed that he could only
do this limited lifting and carrying with pain medication. Agency
File, Exh. 4D, page 11. The supervisor stated that when petitioner
filed his workers' compensation claim form, he stated that he had an
ongoing problem and could not do the Housekeeping Aid work anymore.
In his October 2004 EEO complaint, petitioner requested reassignment
to a position that did not require lifting buckets or swinging mops.
In a January 2005, affidavit, in response to the question of whether
there are essential duties of his position he can no longer perform,
petitioner wrote he was no longer able to run buffers/scrubbers as the
vibrations caused an increase in pain and loss of grip in his hands, he
could not lift buckets of solution to mop floors and that the swinging
motion of the mop increased pain in his neck and shoulders, that pushing
and pulling the vacuum was painful, and he had problems with overhead
tasks such as dusting. At the MSPB hearing, petitioner conceded that
the regular duties of the Housekeeping Aid position required kneeling
all the time to clean under sinks and pick up dirt with a dust mop,
as well much bending, stooping, and twisting.
Petitioner's Housekeeping Aid supervisor stated that petitioner's
restrictions were strict, and it was difficult to accommodate him.
She created light duty work of dusting window sills, emptying small
trash cans, wiping doorknobs and light switches, stocking dispensers
in bathrooms, putting pages in manuals, verifying serial numbers on
equipment, and placing material on bulletin boards.
A qualified individual with a disability means an individual with a
disability who satisfies the requisite skill, experience, education
and other job related requirements of the position in question and
can, with or without reasonable accommodation, perform the essential
functions of such position. 29 C.F.R. � 1630.2(m). An employer,
as a form of reasonable accommodation, is not required to eliminate
an essential function of a position, nor lower production standards,
whether qualitative or quantitative, that are applied uniformly to
employees with or without disabilities. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, General Principles section, (October 17, 2002)
(available at www.eeoc.gov.).
.
Petitioner contends that he could perform the Housekeeping Aid position
with the reasonable accommodation of being permitted to take narcotic
pain medication to alleviate pain. The weight of the evidence is to the
contrary. Petitioner's description of things he could do at the time he
was removed and shortly thereafter indicate that while he could perform
some light Housekeeping Aid duties, there were essential functions he
could not perform. Further, the primary care physician petitioner was
seeing at the time testified that in a opiate based pain medication
follow up visit (July 23, 2004), petitioner expressed great concern
that the side effects of the medication impacted his ability to do the
job safely. He testified petitioner indicated that he could not do his
job without the pain medication, but its side effects did not allow him
to effectively and safely do his main duties. We find that at the time
petitioner was removed, he was unable to perform the essential functions
of his position.
The petitioner also contends that he could have been reassigned.
In Hampton v. United States Postal Service, EEOC Appeal No. 01986308,
2002 WL 1859880 (July 31, 2002), the Commission clarified its position
regarding the standard for assessing liability for reassignment. The
Commission determined that the evidentiary burden is on the petitioner
to establish by a preponderance of the evidence that there were vacancies
during the relevant time period into which he could have been reassigned.
We agree with the MSPB's finding that petitioner did not meet this burden.
An agency is not required to create a job as a form of reasonable
accommodation. Castenda v. United States Postal Service, EEOC Appeal
No. 01951445 (September 18, 1998).
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).
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 (W0408)
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 (Z1008)
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
January 8, 2009
__________________
Date
1 Following a January 10, 2005, decision by the U.S. Department of Labor,
Office of Workers' Compensation Programs (OWCP) accepting petitioner's
claim for aggravation of degenerative disc disease of the cervical spine
while on the job, the agency reinstated petitioner on March 4, 2007,
to the position of Laundry Worker, WG-2.
2 As relief, the MSPB ordered the agency to cancel the suspension and
retroactively restore petitioner effective July 19, 2004; to cancel the
retirement/removal and restore him to a permanent competitive service
appointment effective August 31, 2004, and to pay back pay with interest
and benefits.
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0320080103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320080103