0320130006
05-22-2013
Nathaniel A. Bell, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Nathaniel A. Bell,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Petition No. 0320130006
MSPB No. DA-0752-12-0003-I-1
DECISION
On January 11, 2013, 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 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. For the following reasons the Commission concurs with the MSPB's decision which found that Petitioner failed to demonstrate that he was subjected to discrimination.
BACKGROUND
Petitioner worked as a Mail Processing Clerk. Originally, Petitioner worked for the Agency in New Orleans, Louisiana but as a result of hurricane Katrina, the Petitioner requested a transfer to a mail Processing Clerk position in Houston, Texas. Although, Petitioner transferred to Houston, he never reported to work because he sustained an on-the-job injury on May 24, 2006, and effective June 1, 2006, he was in a leave without pay (LWOP) status. While Petitioner was on LWOP, the Agency reassigned him to a position in Fayetteville, Arkansas. Upon notification of the Agency's reassignment, Petitioner sent a letter to the Fayetteville, Arkansas, location indicating that he was off work due to a compensable injury. He asked that the Agency inform him whether there was a position available for him that would accommodate his injury. He also requested a CA-17 (Duty Status Report), so that his physician could be consulted. In a letter dated June 24, 2010, Petitioner's physician indicated that in his medical opinion, Petitioner was not capable of performing postal duties. The physician, an Orthopedic Surgeon, indicated that Petitioner was unable to sit or stand for more than 15-20 minutes. Further, the physician reported that Petitioner was not mentally prepared to accept employment due to depression, anxiety, and lack of concentration which required psychiatric care and treatment. The physician concluded that Petitioner was unable to perform any duties and maintained that his neuropsychiatric condition affected his interpersonal relations.
On July 7, 2010, the Agency sent an inquiry to Petitioner stating that he had not responded to the reassignment offer after he had requested additional time to respond. Petitioner was informed, among other things, that should he not report for duty he would be considered absent without leave. In reply, Petitioner sent another copy of his physician's June 24, 2010 letter and the CA-17 which indicated that he was unable to perform any duties.
In December 2010, the Office of Workers' Compensation Programs (OWCP) informed Petitioner that it determined that his work-related injury had resolved and it proposed to terminate his compensation and medical benefits. The OWCP found that Petitioner's physician failed to include any objective medical evidence that would overcome the proposed termination of benefits therefore his benefits were terminated effective March 13, 2011. As a result of the OWCP's action, on March 13, 2011, the Agency placed Petitioner on a LWOP status. Petitioner never arrived in Arkansas to work therefore, by letter dated July 18, 2011, the Agency proposed Petitioner's removal. The Agency noted that Petitioner had been on LWOP from June 2006 through December 2010 due to his medical condition. The Agency maintained that Petitioner had the opportunity to respond to its proposal but failed to do so. Therefore, Petitioner was removed effective September 2, 2011, on the grounds of medical inability to meet the essential requirements of his position.
Among other things, Petitioner alleged that the Agency discriminated against him on the basis of disability (physical and mental) when effective September 2, 2011, he was removed from his position for medical inability to meet the essential requirements of his position. Petitioner alleged that the Agency's actions were the result of disability discrimination because the Agency failed to provide a reasonable accommodation. Petitioner thereafter filed an appeal with the MSPB.
An MSPB Administrative Judge (AJ) issued an initial decision based on the record finding the Agency's removal action did not exceed the tolerable limits of reasonableness and that it promoted the efficiency of the service.1 With regard to Petitioner's disability discrimination claim, where he claimed that he was denied a reasonable accommodation when the Agency failed to provide a reasonable accommodation, the AJ found that, based on the evidence which showed that Petitioner was unable to perform the essential functions of any position, he failed to establish that, with or without an accommodation, he could perform the duties of his position or any other vacant position, and therefore, he failed to prove that he was a "qualified" person with a disability.
Petitioner sought review by the full Board. The Board found that Petitioner had not established any basis for granting a review and denied Petitioner's request and upheld the AJ's decision.
CONTENTIONS ON APPEAL
No contentions were made by either the Petitioner or the Agency.
ANALYSIS AND FINDINGS
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 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. Even if one were to assume that Petitioner is an individual with a disability, he is not qualified because the record indicates that he cannot perform the essential functions of any position.
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 (Z0610)
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
__5/22/13________________
Date
1 There was no hearing in this case.
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0320130006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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