[Redacted], Ron W., 1 Petitioner,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Petition No. 2022003896 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ron W.,1 Petitioner, v. Christine Wormuth, Secretary, Department of the Army, Agency. Petition No. 2022003896 MSPB No. DE-0752-22-0012-I-1 DECISION On May 6, 2022, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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. BACKGROUND During the relevant time, Petitioner worked as an Electrician at the Agency’s Installation Management Agency in Fort Riley, Kansas. The record reflects that, on July 22, 2021, Petitioner received a notice of removal due to his inability to medically perform his position and his extended absences as due to his medical needs. Appeal File (AppF) 1 at 9. The proposed removal went on to state that Petitioner had been offered another position within the Agency, but that he had declined this position. AppF1 at 10. As such, the Agency proposed to separate Petitioner from the Agency due to medical inability to perform his duties. AppF1 at 10. On September 13, 2021, the Agency upheld the proposal to remove Petitioner from his position. AppF1 at 19. Petitioner filed a mixed case appeal. Although he originally requested a hearing before an MSPB Administrative Judge (AJ), Petitioner subsequently withdrew that request. AppF1 at 179. 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. 2022003896 2 The MSPB AJ issued an initial decision finding that the Agency did not discriminate against Petitioner as due to his disability, either in disparate treatment or in failure to provide a reasonable accommodation. Petitioner filed the instant petition. STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS Reasonable Accommodation The Commission finds that the MSPB AJ correctly analyzed the Petitioner’s claim of discrimination as failure to provide a reasonable accommodation under the Rehabilitation Act. 29 C.F.R. § 1630.2. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. For the purposes of analysis, we assume, without so finding, that Petitioner is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Petitioner also must show that he is a “qualified” individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). In this case, Petitioner, himself, conceded that he is unable to perform the essential job functions of his position. AppF2 at 39. We note that the discussion of “qualified” does not end at Petitioner’s position. The term “qualified individual with a disability,” with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (Oct. 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). As outlined above, there was no effective accommodation that would enable Petitioner to perform the essential function of the position for which he was removed. Upon inquiry of the Agency, Petitioner declined positions that would require relocation. AppF1 at 131, 134. 2022003896 3 When offered a different position without relocation, Petitioner declined the position without explanation. AppF1 at 129. Though the Commission notes that Petitioner offered that he was qualified for Information Technology (IT) positions and was “aware that there are fairly routine postings for computer positions here on Fort Riley,” we further note that protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Here, the Agency offered Petitioner what it purported to be a position which Petitioner could perform. However, Petitioner declined the position. As Petitioner has not indicated that he could not perform the offered position, we find that the Agency has provided Petitioner with a reasonable accommodation in the form of a reassignment. Further, any failure to accommodate Petitioner by reassignment was directly caused by Petitioner. The Commission has consistently found that if the breakdown of the interactive process was caused by Petitioner, as is the case here, the Agency is not in violation of the Rehabilitation Act. Dominique B. v. U.S. Postal Serv., EEOC Appeal No. 2020004455 (Jan. 31, 2022) (citing Gonzalez-Brunet v. U.S. Postal Serv., EEOC Appeal No. 0120103081 (June 12, 2012)). As such, we conclude that Petitioner is not a “qualified individual with a disability” pursuant to 29 C.F.R. § 1630.2(m) and that he did not show that the Agency’s action constituted a violation of the Rehabilitation Act. Disparate Treatment We will analyze this case according to the McDonnell Douglas paradigm. See Raphael C. v. Dep’t of Vet. Aff., EEOC Petition No. 0320160016 (May 10, 2016); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We find, as outlined below, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him as alleged. To prevail in a disparate-treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas. Petitioner must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanation is unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. 2022003896 4 Assuming, without so finding, that Petitioner established a prima facie case of discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the Agency’s removal was due to Petitioner’s inability to perform his job responsibilities. AppF1 at 9. This was noted in a return to duty evaluation. AppF1 at 10. Petitioner conceded that he is unable, due to his health, to perform his essential job functions. AppF2 at 39. Moreover, the Agency asserted that Petitioner had multiple absences due to his medical condition. AppF1 at 9. On the whole, Petitioner has not provided argument or evidence which shows that the Agency improperly removed him due to racial animus, nor that the Agency has engaged in pretextual discrimination. Therefore, we find that Petitioner has not proven that the Agency discriminated against him based on his disability. CONCLUSION 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. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB’s finding that Petitioner did not establish the affirmative defense of unlawful discrimination. 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. 2022003896 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’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 September 19, 2022 Date