03A00074RobertBrown
03-22-2002
Robert J. Brown, Petitioner, v. John W. Carlin, Archivist, National Archives and Records Administration, Agency.
Robert J. Brown v. National Archives and Records Administration
03A00074
March 22, 2002
.
Robert J. Brown,
Petitioner,
v.
John W. Carlin,
Archivist,
National Archives and Records Administration,
Agency.
Petition No. 03A00074
MSPB No. BN-0752-99-0044-I-1
DECISION
On March 18, 2000, 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 or Board)
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.<1> Petitioner, a Facility Manager at the
agency's John F. Kennedy Library, Boston, Massachusetts, alleged that
he was discriminated against on the basis of disability (depression and
Post-Traumatic Stress Disorder), when he was terminated from his position,
effective November 13, 1998. On December 10, 1998, petitioner filed a
mixed case appeal with the MSPB. After a hearing, the MSPB Administrative
Judge (AJ) affirmed the agency's action. The Board denied petitioner's
petition for review.
BACKGROUND
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).
By notice dated October 2, 1998, the agency informed petitioner that
it proposed to remove him for unauthorized absences. Specifically,
the agency stated that petitioner had not been at work since January 19,
1998, and had failed to present acceptable medical documentation to cover
his absences beginning February 23, 1998, in spite of multiple requests
made by the agency. According to the agency, petitioner was in Absent
Without Leave status from February 23, 1998, through October 2, 1998,
and that petitioner's request for leave was denied because petitioner
had not provided acceptable medical documentation.
Petitioner responded that his physician had determined in January 1998
that he could no longer work for the agency. A note from petitioner's
doctor, dated January 20, 1998, stated that �Petitioner is seriously
ill and must be out of work for the foreseeable future.� In a letter
dated January 30, 1998, petitioner's doctor also stated that petitioner
was diagnosed with �Major Depressive Disorder� that was severe and
functionally disabling; that the period of incapacitation was indefinite
at that point; and that it was recommended that petitioner not return
to work under the present circumstances. Moreover, the petitioner
stated that he had applied for disability retirement but the Office of
Personnel Management (OPM) had initially disallowed his application.
However, petitioner was seeking reconsideration of this decision and
wanted the agency to delay action on the proposed removal until OPM
ruled on his request for reconsideration. The agency nevertheless
decided that removal was reasonable for the unauthorized absences.
The MSPB AJ found that petitioner was a person with a disability suffering
from a psychological impairment that substantially limited his major
life activities of thinking, concentrating, and making decisions.<2>
The AJ further found that petitioner could not perform the duties of his
position or any other vacant position, because he could not concentrate
or take supervision required of all positions. The AJ accordingly found
that petitioner was not a qualified person with a disability, i.e., a
person who could perform the essential duties of his position or a vacant
position to which he could be assigned with or without accommodation.<3>
Accordingly, the AJ found that petitioner's allegation of disability
discrimination failed.
The MSPB AJ also recognized that the agency removed petitioner based on
the charge of unauthorized absence in excess of 30 days, specifying that
despite several requests by his supervisor for medical documentation
required by the agency's leave regulation, none of the documentation
submitted by the petitioner was sufficient to justify his unauthorized
absence from duty. Moreover, the AJ noted that the agency stated that
petitioner's prolonged and continuing absence required petitioner's work
to be assigned to other employees; that there was no foreseeable end
to petitioner's absence; and that the agency showed that petitioner's
continued indefinite absence would create a burden. The MSPB denied
petitioner's petition for review of the AJ's decision.
Petitioner requested review by the Commission, but did not submit a
supporting brief. The agency did not reply to the petition for review.
ANALYSIS AND FINDINGS
One bringing a claim of disability discrimination must first
establish that s/he is a member of the class of persons protected
by the Rehabilitation Act, i.e., an individual with a disability.
An �individual with a disability� is defined as someone who: (1)
has a physical or mental impairment which substantially limits one
or more of such person's major life activities; (2) has a record of
such an impairment; or (3) is regarded as having such an impairment.
29 C.F.R. � 1630.2(g)(1)-(3). It is undisputed that petitioner was a
person with a disability, as the MSPB AJ found.
However, one bringing a claim of disability discrimination
must also establish that s/he is a qualified individual with a
disability. Complainant must show that he satisfies the requisite
skill, experience, education and other job-related requirements of the
employment position and who, with or without reasonable accommodation,
can perform the essential functions of the job. 29 C.F.R. � 1630.2(m).
Petitioner, on review, has presented no evidence to suggest that he was
a qualified individual with a disability without reasonable accommodation.
Essentially, petitioner is arguing that he should have continued to
be given leave by the agency, instead of being terminated. The use of
unpaid leave is a form of reasonable accommodation when necessitated
by an employee's disability. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915-002, at 26 (March 1, 1999)(Reasonable Accommodation
Guidance). Employers may allow an employee with a disability to exhaust
accrued paid leave first and then provide unpaid leave. Id.
Indeed, pursuant to 29 C.F.R. � 1630.9(a), an agency is required to make
reasonable accommodations for the known physical or mental limitations of
an otherwise qualified applicant or employee with a disability, unless
the agency can demonstrate that the accommodation would impose an undue
hardship. As a person with a disability (29 C.F.R. � 1630.2(g)(1)),
complainant was entitled to reasonable accommodation by the agency.
Most importantly, for purposes of reasonable accommodation, the
employer and the individual with a disability should engage in an
informal process to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915-002, at 11-12 & n.22 (March 1, 1999)(Reasonable
Accommodation Guidance). An employer need not provide an employee's
preferred accommodation as long as the employer provides an effective
accommodation. Id. at 29. See also, e.g., Polen v. Department of
Defense, EEOC Appeal No. 01970984 (January 16, 2001) (if more than one
potential accommodation is effective, �the preference of the individual
with a disability should be given primary consideration; however, the
employer providing the accommodation has the ultimate discretion to
choose between effective accommodations�)(quoting 29 C.F.R. Part 1630
Appendix � 1630.9).
The Commission finds that the petitioner was responsible for the breakdown
of the reasonable accommodation interactive process. In a February 9,
1998, letter from the agency to petitioner, the agency asked about
�what reasonable accommodation the agency [could] provide that would
enable [petitioner] to return to work as Facilities Manager at the John
F. Kennedy Library.� The record shows no response from petitioner. In
a February 24, 1998, letter from the agency to petitioner, the agency
again asked �what reasonable accommodation the agency [could] provide
in order for [petitioner] to return to [his] job.� Again, the record
shows no response from petitioner. In a March 18, 1998, letter from the
agency to petitioner, the agency indicated that neither petitioner nor
his doctor had articulated what reasonable accommodation the agency could
provide in order to enable petitioner to return to his job. The letter
also indicated that if petitioner and/or his doctor did not respond to
the question concerning reasonable accommodation, the agency would so
indicate at the time petitioner's application for disability retirement
was submitted to OPM. Petitioner responded to the March 18, 1998, letter
indicating that what the agency was seeking was beyond that necessary
to grant advanced sick leave and more than what was required of other
agency employees under similar circumstances. Petitioner's response was
clearly inadequate for purposes of the interactive process, essentially
insisting on continuing advanced sick leave, when the agency was trying
to explore other possibilities in terms of reasonable accommodation.
We also note that the agency removed petitioner based on the charge
of unauthorized absence in excess of 30 days, when despite continuing
requests by petitioner's supervisor for medical documentation required
by the agency's leave regulation, none of the documentation submitted
by the petitioner was sufficient to justify his unauthorized absence
from duty. The AJ found that the only medical documentation provided the
agency before petitioner's removal was the January 30, 1998, letter from
petitioner's doctor. The AJ found that the agency proved its charge
of AWOL. The agency is not required to excuse employee misconduct.
See Stewart v. Department of the Interior, EEOC Petition No. 03980128
(March 11, 1999). See also Brooks v. Small Business Administration,
EEOC Petition No. 03980014 (September 24, 1998) (employers not required
to excuse violation of uniformly-applied conduct or job performance
standards as a form of reasonable accommodation).
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
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 (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 22, 2002
__________________
Date
* * * * * * * * * * CIRCULATION CASE * * * * * * * * * *
APPELLATE DECISION ON FEDERAL SECTOR COMPLAINT
TO: (Please sign to indicate receipt)
Chair Cari M. Dominguez
Vice Chairman Paul M. Igasaki
Commissioner Paul Steven Miller
Date circulated to Commission
Commission Record No.
FROM: Executive Secretariat, Room 10402, Ext. 663-4068
Unless the Executive Secretariat is notified that a Commissioner wishes
to hold this decision, it will be considered approved and will become
official at 11 AM on .
HELD BY:
Commissioner
Staff Member
Date
(1)
(2)
RELEASED BY:
(1)
(2)
Recommended for Approval on:
Petition No.
03A00074
Carlton M. Hadden, Director, Office of Federal Operations
MSPB No.
BN-0752-99-0044-I-1
Hilda Rodriguez, Director, Appellate Review Programs
PREPARED BY:
Title
Name
Initial
Date
Phone Number
Attorney
February 3, 2002
ext.
Supervisor
ext.
Division Director
ext.
Petitioner:
Robert J. Brown
Agency:
National Archives and Records Administration
Decision:
Statutes Alleged:
Basis(es) Alleged:
Issue(s) Alleged:
Where discrimination was found ONLY:
Typist/Date/Disk:
/ February 3, 2002
(A) Basis(es) for finding:
Spell Check:
YES
(B) Issues in finding:
Team Proofed:
FOR OFO INTERNAL CIRCULATION ONLY
Initial
Date
To: Carlton M. Hadden, Director
Office of Federal Operations
To: Hilda Rodriguez, Director
Appellate Review Programs
Petition Number
03A00074
MSPB Number
BN-0752-99-0044-I-1
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
Title
Name
Initial
Date
Attorney:
Wallace Lew
February 11, 2002
Supervisor:
Shelley Kahn
Division Director:
Robbie Dix, III
Petitioner(s):
Robert J. Brown
Agency:
National Archives and Records Administration
Decision:
Concur with MSPB
Statute(s) Alleged:
Rehabilitation Act
Basis(es) Alleged:
Disability
Issue(s) Alleged:
Termination
Where Discrimination Is Found (Only):
(A) Basis(es) for Finding:
(B) Issues in Finding:
Typist/date/diskette
WL1/ February 3, 2002
Spell Check
YES
Team Proofed
Date
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Robert J. Brown
National Archives and Records Administration
03A00074
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
None
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
None
______________________ _______________
ATTORNEY DATE
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 In finding petitioner to be an individual with a disability, the AJ
relied significantly on medical documentation provided by petitioner to
the MSPB, i.e., two letters from petitioner's doctor dated December 15,
1998, and February 24, 1999.
3 A �qualified� employee with a disability is one who can perform the
essential functions of the position he or she holds with or without
reasonable accommodation. However, the term �position held� is
not limited to the position actually held by the employee, but also
includes positions that the employee could have held as a result of job
restructuring or reassignment. 29 C.F.R. � 1630.2(o)(2). In determining
whether an employee is �qualified,� an agency therefore must look beyond
the position which the employee encumbers to determine whether there is
a position to which the employee could be reassigned.