0320090064
08-06-2009
Raymond Ryan, Petitioner, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Raymond Ryan,
Petitioner,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320090064
MSPB No. DA-0752-08-0262-I-2
DECISION
On May 21, 2009, 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.
During the relevant period, petitioner was employed as an Aerospace
Engineer with the agency. In an MSPB appeal dated February 27, 2008,
petitioner alleged that the agency discriminated against him on the bases
of disability (back impairment) when it removed him from Federal service
effective February 15, 2008, citing "failure to request leave according
to established procedures and refusal to comply with proper orders."
On June 18, 2008, the assigned MSPB Administrative Judge (AJ) granted
petitioner's motion to dismiss without prejudice while awaiting the
outcome of a related matter.1
Subsequently, petitioner re-filed his appeal. An MSPB AJ conducted a
hearing and, thereafter, issued an Initial Decision dated February 9,
2009, affirming the agency's action and finding no discrimination based
on disability. Specifically, the AJ found that petitioner failed to show
that, during the relevant period, he was an individual with a disability.
Further, the AJ found, assuming that he did meet such burden, the record
reveals that petitioner did not request accommodation. The AJ concluded
the petitioner failed to identify an accommodation that would allow him
to perform the essential functions of his position or a vacant funded
position to which he could be reassigned. Petitioner filed a petition
for review with the full Board, which was denied. Petitioner then filed
the instant petition.
In the instant petition, petitioner stated that the agency failed to
provide reasonable accommodation and, in Fall of 2005, required him to
transfer from Texas to Oklahoma although he provided medical documentation
recommending otherwise. He stated that the agency failed to provide an
effective accommodation for his inability to sit or stand for extended
periods of time, so he had to use sick leave daily and, ultimately,
was removed from employment in 2006. Further, petitioner stated that
the applicable decisions are contradictory because he was identified as
"disabled" on October 14, 2007 but deemed "fit for duty" on October 15,
2007.
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. Initially, the only removal action before the Commission
currently is that of February 15, 2008. Next, even if we assume for the
purpose of analysis that petitioner is an individual with a disability,
he failed to establish that he could perform the essential functions of
his position with or without accommodation, or that the agency failed
to meet its obligation to provide reasonable accommodation. Summarily,
we find that the MSPB 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
August 6, 2009
__________________
Date
1 We note that petitioner filed an MSPB appeal based on a March 21, 2006
removal citing "excessive absences," which the MSPB identified as docket
number DA-0752-06-0393-I-1. Initially, the MSPB affirmed the agency's
removal action. However, in a decision dated October 4, 2007, Ryan
v. Dep't of the Air Force 107 M.S.P.R. 71 (2007), the MSPB reversed the
removal action and ordered reinstatement based on personnel standards.
Conversely, the MSPB also found that petitioner failed to establish
disability discrimination. On April 3, 2008, in response to a petition
for enforcement from petitioner, the MSPB found that the agency complied
with its order cancelling the removal and providing reinstatement.
Additionally, the MSPB found that petitioner "was not ready, willing,
and able to perform the duties of his position [never reported for duty]"
upon reinstatement on October 15, 2007 (retroactive to March 21, 2006).
On September 19, 2008, the MSPB denied petitioner's request for review
of the April 3 decision.
??
??
??
??
2
0320090064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090064