03A30073
10-27-2003
Robert L. Cassel, Petitioner, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Robert L. Cassel v. Department of Defense
03A30073
October 27, 2003
.
Robert L. Cassel,
Petitioner,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Petition No. 03A30073
MSPB No. PH-0752-02-0054
DECISION
On September 4, 2003, 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.
Petitioner, who had been a Materials Handler, WG-05, at an agency's
Defense Depot in New Cumberland, Pennsylvania, alleged that he was
discriminated against on the basis of disability (shoulder replacement
and depression) when, effective November 4, 2001, he was demoted to a
WG-04 Packer position.
On September 2, 2002, petitioner filed a mixed case appeal with the MSPB.
The appeal was dismissed without prejudice pursuant to a motion filed by
both parties in order to explore settlement in this matter. On March 25,
2002, petitioner re-filed his mixed case appeal.
After a hearing, the MSPB Administrative Judge (MSPB AJ) found that
petitioner failed to show that the agency's action was a violation of the
Rehabilitation Act. The MSPB AJ determined that petitioner is covered
under the Rehabilitation Act based on his depression. Even assuming
complainant is an individual with a disability, the MSPB AJ found that
complainant could no longer perform the Materials Handler position.
Further, the MSPB AJ noted that there were no other WG-5 positions
available within his limitations and not enough work for eight hours in
a modified Materials Handler position. Therefore, the MSPB AJ concluded
that the only vacant position petitioner could perform was that of a
WG-4 Packer. Hence, the MSPB AJ determined that the agency provided
petitioner with a reasonable accommodation.
Petitioner filed a petition for review to the Board. The Board denied
his petition. It is from this final order, petitioner petitions the
Commission.
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 an
correct interpretation of any applicable law, rule, regulation or policy
directive, or is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
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 petitioner is an individual with
a disability.
Petitioner also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). The record
contains a September 2001 disability certificate which indicates that
petitioner's limitations included no pushing, pulling, overhead use of
his arms, or lifting over thirty-five pounds. The record shows that
petitioner had been provided with light duty within his limitations.
In particular, the agency was providing petitioner with desk duties in
order to give petitioner eight hours of work. Petitioner did not perform
the duties of a Materials Handler which involves getting materials,
bringing the materials to the packing area, taking material and placing
it on shelves, running a tug, doing break downs, and receiving mixed
commodities. In addition, the position involved a large quantity of
lifting and frequent use of arms overhead in order to stock items from
five to fifteen feet high. Accordingly, based on petitioner's limitations
and the duties of his position, we find that petitioner has not shown
that he was qualified as to the Materials Handler position.
We note that the discussion of �qualified� does not end at complainant'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.
Accordingly, the agency should consider reassignment. Id.; see also
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix. to 29 C.F.R. Part 1630.2(o).
Petitioner alleged that the agency failed to provide him with a reasonable
accommodation when he was reassigned from his WS-5 Materials Handler
position to a WG-4 Packer position. The record indicates that petitioner
could not perform the full range of his Materials Handler position. The
agency was to undergo a realignment, therefore, petitioner's supervisor
(Supervisor) had to find a permanent position which petitioner could
perform. The record shows that the agency looked to reassign him to a
position which he could perform with or without reasonable accommodation.
The Commission has stated that the agency must reassign the individual to
a vacant position that is equivalent in terms of pay, status, or other
relevant factors, such as benefits, if the employee is qualified for
that position. Enforcement Guidance, Reassignment. Since the record
indicates that there were no vacant equivalent positions at the WG-5
level available, the agency must then look to reassign the employee to
a vacant lower level position for which the individual is qualified.
Id.; see also Baker v. Department of Justice, EEOC Appeal No. 01972309
(March 29, 2001). The agency officials averred that the only position
available was that of a WG-4 Packer. Therefore, petitioner was reassigned
to the WG-4 Packer position. Upon review, the Commission finds that
the reassignment was an appropriate 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
October 27, 2003
__________________
Date