0320120010
09-27-2012
Robert Karlik, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Robert Karlik,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0320120010
MSPB No. CB-7121-11-0008-V-1
DECISION
On November 23, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Claims Representative at the Agency's Field Office facility in Owosso, Michigan. Petitioner alleged that the Agency discriminated against him on the basis of disability (mental) when he was removed from him position, effective November 14, 2008.
Peitioner filed a grievance on January 22, 2009. The grievance was denied and was arbitrated on August 18 and 19, 2010. An Arbitrator issued a decision on January 20, 2011, finding that Petitioner failed to establish, in relevant part, that he was discriminated against or that the Agency failed to provide him with a reasonable accommodation. The Arbitrator found that the Agency was already providing accommodations to Petitioner and he was unable to meet the performance requirements of the position. The Arbitrator also found that that Petitioner was not qualified for the position.
Petitioner filed a request for review with the Merit Systems Protection Board (MSPB) asking the MSPB to reconsider the decision issued by the Arbitrator. In a decision dated October 20, 2011, the MSPB affirmed the Arbitrator's decision. Specifically, the MSPB found that the Arbitrator did not err as a matter of law when he found that Petitioner was not a qualified individual with a disability and that even if Petitioner was qualified, his request for an accommodation was unduly burdensome. Petitioner argued that the Arbitrator failed to consider whether the Agency engaged in a good faith interactive process following his request to be accommodated. The MSPB determined that nothing in the record supported such a finding and the record showed that Petitioner failed to produce answers to questions posed by the Agency regarding his request.
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).
In his petition, Petitioner argues that the MSPB erred in affirming the arbitrator's decision. Based upon a thorough review of the record, however, the Commission CONCURS with the final decision of the MSPB finding no discrimination. Assuming for purposes of this decision that Petitioner is an individual with a disability, we find that he was unable to establish that he was denied a reasonable accommodation and that his removal was therefore discriminatory. With respect to Petitioner's contentions, we note that an Agency's failure to engage in the interactive process does not, by itself, demand a finding that a Petitioner was denied a reasonable accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Rather, to establish a denial of reasonable accommodation, a Petitioner must show that the failure to engage in the interactive process resulted in the Agency's failure to provide reasonable accommodation. Id. We find the record does not show that this was the case. Moreover, we note that there is no dispute that the Agency sought additional information from Petitioner about his accommodation request and that Petitioner did not provide said information. An employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13.1 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 (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
_____9/27/12_____________
Date
1 We further note that the Commission has recently held that: If an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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0320120010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120010