0320180002
01-24-2018
Miles T.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Miles T.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Petition No. 0320180002
MSPB No. AT-0353-17-0149-I-1
DECISION
On October 5, 2017, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (the Commission) for review of the Final Order of the Merit Systems Protection Board (MSPB or Board) issued on August 2, 2017, concerning his claim that the Agency discriminated against him on the basis of disability (physical) when he was denied a reasonable accommodation that resulted in his being unable to return to work, on or about February 23, 2015, as an Electronics Technician at the Agency's Knoxville Processing and Distribution Center in Knoxville, Tennessee. A MSPB Administrative Judge (MSPB AJ), in an initial decision, found that the Agency had not denied Petitioner a reasonable accommodation. The instant petition for review is from that initial decision. We CONCUR with the MSPB's ultimate determination that Petitioner did not establish that the Agency discriminated against him as alleged.
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals 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 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. 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 order 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. Further, the Board's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.2
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___1/24/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 On appeal, Petitioner's, through his attorney, does not contest the MSPB's determination that providing the electric chariot to Petitioner would have been an undue hardship on the Agency. Petitioner argues that, after making that determination, the Agency failed to engage in the interactive process and instead unsuccessfully tried to reassign Petitioner. The Commission's precedent establishes that an agency cannot be held liable solely for a failure to engage in the interactive process. Liability for a failure to engage occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, EEOC Request No. 05A30114. We find no evidence that Petitioner proposed alternative accommodations after his request for the electric chariot was denied; therefore, the Agency's attempt to reassign him seems reasonable. The record does not indicate that a failure on the Agency's part to engage in the interactive process caused the denial of accommodation here.
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