Robert L. Cassel, Petitioner,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
03A30073 (E.E.O.C. Oct. 27, 2003)

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