UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ELAINE P. RIO,       Appellant,      vs. SOCIAL SECURITY ADMINISTRATION,      Agency

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DOCKET NUMBER AT-0752-00-0819-I-1 ADMINISTRATIVE JUDGE GOMEZ

APPELLANT’S PETITION FOR REVIEW

Appellant, by and through her attorney, Michael J. Snider, Esq., submits her Petition for Review^[1] of the December 5, 2000 Initial Decision of Administrative Judge Ramon V. Gomez.  Pursuant to 5 C.F.R. §1201.115, Appellant hereby petitions the Board to review said Initial Decision sustaining the Agency’s removal action.  For the reasons set forth below, the Board must reverse the Initial Decision and reinstate the Appellant to the federal service, and should grant other relief as requested.

INTRODUTION

Congress has declared that the Federal government must serve as a model employer to employees suffering from physical impairments.  See 29 U.S.C. §791 (1997); Shirley v. Devine, 670 F.2d 1188, 1201 (D.C. Cir. 1982); Prewitt v. USPS, 662 F.2d 292 (5^th Cir. 1981); Stevens v. Dept. of the Army, 73 MSPR 619 (1997).  Yet the actions of the Social Security Administration (Agency) in this case resemble more a model of antagonism and ignorance of the law towards the serious, handicapping condition of a productive and motivated Federal employee.

Elaine P. Rio’s mother worked in the Office of the Commissioner of Social Security, and could look out of the window of the Commissioner’s 9^th Floor office in the Altmeyer Building and see her daughter playing in the school yard across the street.  The Appellant was a productive employee in the Agency as a Teleservice Representative, until she developed Temporomandibular Joint Syndrome (TMJ) and Major Depression,  handicapping conditions, as a result of numerous car accidents.  After requesting reasonable accommodation in September 1992 (Appellant’s Exhibit F1), the Appellant’s attempts to receive reasonable accommodation, or even a written denial of her request, dragged on for months (Exhibits F6, F7, F9, F10, F11 et seq.).  Although her supervisor initially recommended approval (Exhibit F2), her supervisor was forced to change her recommendation to “recommend denial” (Exhibit F3).  Her second line supervisor ‘concurred,’ stating “We know of no GS-7 Field Office or TSC Position that does not require extensive talking... We see no way to reasonably accommodate someone at the GS-7 level who cannot talk.”  (Exhibit F3).  This was indicative of the “very hostile” attitude of the Agency towards the Appellant’s request for reasonable accommodation (Tr. III at 448).^[2] 

The Appellant’s Union representative, Yvonne Limoges, identified a position with less talking than that required of the Appellant at the Teleservice Center (Exhibit F10).  After being forced onto Leave Without Pay (LWOP) due to the Agency’s refusal to accommodate the Appellant (Exhibit F26), the Appellant filed a Complaint with the Equal Employment Opportunity Commission (EEOC, or Commission) in July and/or August 1993 (Exhibit F24, F27).  The Appellant, after essentially being told that reassignment is not available as a form of reasonable accommodation, even filed for a Hardship Reassignment (Exhibits F34, F35, F36).   Eventually, the Appellant was reassigned to the Tampa District Office (Tr. III at 449, Exhibits DD at 8, U21, U23).  Administrative Judge Gomez refused to hear testimony about the circumstances surrounding the settlement and the Appellant’s attempts to gain reassignment (Tr. III at 450-1).

The Appellant performed successfully in the Tampa District Office for many years, until her TMJ worsened (after subsequent car accidents), requiring her to again request reasonable accommodation, including reduced time “working at the windows” (where speaking is more excessive) or other accommodation, including “working closer to home” (Exhibit H8, H15). 

Rather than providing Appellant with one of the several accommodations she requested, and by totally failing and refusing to search for or place the Appellant in any vacant, funded position for which she qualified, the Agency fired Ms. Rio for failure to report to a job that her physicians told her was dangerous to continue performing as ordered by her supervisors.  As explained below, the Administrative Judge in this case sustained the Agency’s removal action.  In doing so, his Initial Decision is in direct contradiction to the Board’s and Commission’s regulations and case law and requires the Board’s reversal of the Initial Decision and an award of a make whole remedy.

ISSUES

The issues in this case are:

1. The Administrative Judge found that the Appellant’s service representative job “by its very nature required constant communication with the public which aggravated her condition and gave rise to her excessive absenteeism.”  (Initial Decision at 7).  Did the Administrative Judge err in this finding?
   
   
2. Appellant showed that she was a qualified handicapped individual because she was substantially limited in several major life activities, including talking.  The Administrative Judge, however, focused solely on the major life activity of working (e.g., Initial Decision at 7-8).  Did the Administrative Judge err in limiting this focus?  Did such error fatally taint the rest of the Initial Decision?
   
   
3. The Administrative Judge found that the Appellant’s position required constant contact with the public regardless of whether the Appellant was assigned to a front window or not (Initial Decision at 8).  Was this finding in error?
   
   
4. The Administrative Judge found that the Agency attempted to accommodate the Appellant by limiting her assignment to the front window (Initial Decision throughout, e.g. at 12).  Was this finding in error?
   
   
5. The Administrative Judge found that the Appellant “has not presented evidence that she was otherwise qualified for” vacant, funded positions in the same commuting area that she identified at hearing (Initial Decision at 9).  Was there substantial evidence in the record for this finding?
   
   
6. Despite direct evidence of retaliation introduced by the Appellant at hearing, the Administrative Judge failed to find that the Agency’s removal of the Appellant was based on retaliation (Initial Decision at 11).  Did the Administrative Judge Err?
   
   
7. The Administrative Judge found that the Appellant was not treated differently from Camille Gonczy, who was reassigned from an Agency District Office (under the same supervision as the Appellant), to the Office of Hearings and Appeals Tampa Office (to where the Appellant requested reassignment), as a reasonable accommodation for her TMJ (the same condition from which the Appellant suffers), in order to reduce her speaking (the same accommodation requested by the Appellant), from the position of service representative (the same position as the Appellant’s) to the position of Case Assistant (the same position Appellant proved was vacant and funded prior to her removal)(Initial Decision at 13).  He did not, however, address Ms. Gonczy’s case in his analysis of the Appellant’s claim of Disability Discrimination (Initial Decision at 9).  Was that failure in error?
   
   
8. The Administrative Judge further used the stipulation reached at Hearing regarding Ms. Gonczy (Tr. I at 99-103) against the Appellant (Initial Decision at 13).  Was that usage in error?
   
   
9. The Administrative Judge failed to make any undue hardship analysis or good faith attempt at accommodation (reassignment) analysis.  Was that failure in error?
   
   
10. The Administrative Judge, in his analysis of the reasonableness of the removal penalty, failed to analyze all of the Douglas Factors, including the potential for rehabilitation, possibility of a lesser penalty, etc. (Initial Decision at 12-3).  Was this failure in error?
    
    
11. The Administrative Judge, despite Appellant’s Motion for Default filed September 26, 2000 and Renewed Motion for Sanctions, filed October 10, 2000 regarding discovery abuses by the Agency, and indeed the Administrative Judge’s own findings at hearing that the Agency failed to comply with discovery (Tr. I at 62-65), failed to sanction the Agency for blatant Discovery abuses.  Did the Administrative Judge err in failing to sanction the Agency?
    
    
12. If the answer to any of the above questions is in the affirmative, what is the proper remedy?

Standard on Appeal

Pursuant to 5 C.F.R. §1201.115(d), the Board will grant review of the Initial Decision if the decision is based on an erroneous interpretation of statute or regulation. 

Substantive Law

The Burden of Proof is Upon the Agency

An agency must prove three things in a removal action.  First, the Agency must prove the charges by a preponderance of the evidence.  Preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than not true.  5 C.F.R. 1201.56(c)(2).  Secondly, the agency must prove that there is a nexus between the charges and the efficiency of the service.  5. U.S.C. 7513(a).  Finally, the agency must show that the penalty is a reasonable one.  Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981).

Even if the Agency meets its burden of proving misconduct, there is a requirement that the removal action be for “such cause as will promote the efficiency of the service.” 5 U.S.C.  §7513(a)(1999).  To satisfy this latter requirement, the Agency must show that there is a rational connection (nexus) between proven misconduct and the efficiency of the service.  The Agency also has the burden of establishing that the penalty it imposed is a reasonable one in light of all the circumstances.  See Douglas v. Veterans Administration, 5 MSPR 280,302 (1981). 

The penalty chosen by the Agency for its charges in this case was removal.  Under the circumstances, this penalty was not reasonable.  The twelve (12)  Douglas Factors establish a framework around which a reasonableness analysis must be formed.  The Factors are well known, yet in this case establish that the penalty is patently unreasonable.  When an agency imposes a penalty without considering all relevant Douglas Factors, modification is in order.  Toth v. U.S. Postal Service, 76 M.S.P.R. 36, 39 (1997).  An agency is certainly bound to conscientiously consider all relevant factors and select an appropriate remedy.  Douglas, 5 M.S.P.R. at 305-6.    “When only some of the agency’s charges have been sustained, there is no clear and measurable agency penalty determination to which deference is due” and therefore, an independent determination is required under the Douglas Factors.  Watson v. Department of the Navy, 98 F.M.S.R. 82119 (1998); See White v. U.S. Postal Service, 71 M.P.S.R. 521, 527 (1996); Wellman v. Department of the Navy, 49 M.S.P.R. 149, 153 (1991).  Even when all of the charges are sustained, however, an agency-imposed penalty will be reviewed to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness.  Douglas at 306. 

Methods of Proving Discrimination

There are two ways of proving discrimination: through direct evidence and by indirect evidence.  In this case, the Appellant intends on proving, by a preponderance of the evidence, that the Agency was motivated in its employment decisions by discriminatory animus through direct evidence.  The Appellant also intends to support her claims through the introduction of indirect evidence.

In the absence of direct evidence, the allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: appellant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and appellant must then prove, by a preponderance of the evidence, that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). 

Disparate treatment such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably because of their race, color, national origin, sex, religion, disability, age, or reprisal for prior EEO activity. See International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).  After the complainant has demonstrated a prima facie case, the burden shifts to the employer to articulate legitimate, non-discriminatory reasons for the action taken.  Burdine, McDonnell Douglas, supra.

In order to prevail, Complainant must then show that the agency's reasons for its actions were a pretext to mask discrimination, either because the agency more likely had a discriminatory motive, or because the stated reasons lacked credibility. Burdine at 248.  

In this case, Appellant can establish a prima facie case of handicap discrimination by showing: (1) she is a member of a protected group(s); (2) that she was similarly situated to other individuals outside of her protected group(s); and (3) that she was treated differently from those outside of her protected group(s) in relation to a term or condition of her employment.  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Stated another way (in the terminology of the Board), to establish discrimination based on disparate treatment, the appellant must show that another employee, who was similarly situated within the same supervisory unit and who committed substantially the same alleged offense, received a different penalty. See Stevenson v. Department of Defense, 55 M.S.P.R. 625, 631 (1992). See also Bell v. Department of Treasury, 54 M.S.P.R. 619, 629 (1992).

In order to establish a prima facie case of reprisal, an Appellant must demonstrate that: (1) she engaged in Title VII, ADEA or other protected activity; (2) the Agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse action.  In addition, even if a lengthy period of time elapses between the protected activity and the alleged reprisal, if the same responsible management official is responsible for both actions, a finding of discrimination is allowable.  See Velez v. USPS, EEOC Request No. 05890268 (July 18, 1989)(citing Fosina v. USPS, EEOC Appeal No. 01873004 (May 25, 1988).  

Finally, the necessary elements to establish a prima facie case of disability discrimination generally include: (1) a showing that the appellant is a "handicapped person" as defined in 29 C.F.R. 1614.203(a)(1); (2) that the action appealed to the Board was based on her handicap; and (3) to the extent possible, articulation of a reasonable accommodation under which the appellant believes she could perform the essential duties of her position or of a vacant position to which she could be assigned. See Battle v. Department of Transportation, 63 M.S.P.R. 403 (1994).

Reasonable accommodation claims are subject to special analysis under the ADA. Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C.Cir.) (reasonable accommodation claims are subject to review under their own "specialized legal standards").  Under this analysis, an employer must provide a reasonable accommodation to a qualified individual unless granting the request would impose "undue hardship" on the employer. The plaintiff bears the burden of demonstrating she or he is a qualified individual and that the employer failed to implement a reasonable accommodation.  Riel v. Electronic Data Systems Corp., 99 F.3d 678, 681 (5^th Cir. 1996).  The employer may defend by showing the accommodation imposes an undue hardship.

The ADA defines "undue hardship" as "an action requiring significant difficulty or expense".  42 U.S.C. 12111(10)(A).  A court may consider a number of factors in assessing whether a reasonable accommodation imposes a hardship including: the nature and cost of the accommodation; the overall financial resources of the employer and the number of persons employed; the type of operation; and the overall impact on the operation of a facility.  42 U.S.C. 12111(10)(B).

The ADA defines a qualified individual as including one who can perform the essential functions of a job with reasonable accommodation. 42 U.S.C. 12111(8).  A "modified work schedule" is included in the ADA's definition of a reasonable accommodation. 42 U.S.C. 12111(9).  

In reviewing the penalty selected by an agency, the Board will determine if the agency conscientiously considered all relevant factors and exercised management discretion within the tolerable limits of reasonableness. See Montalvo v. United States Postal Service, 55 M.S.P.R. 128, 132 (1992); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981).

Efficiency of the Service; Progressive Discipline

Further, a removal must promote the efficiency of the service. See Maddux v. Department of the Air Force, 68 M.S.P.R. 644 (1995), Wyse v. Department of Transportation, 39 M.S.P.R. 85, 94 (1988); Ritter v. Department of Transportation, 7 M.S.P.R. 105 (1981) (a history of absenteeism uncorrected by lesser disciplinary action is just cause for removal, especially if the employee 's absences caused the employer to require another employee to perform the appellant's job).

Affirmative Defense: Handicap Discrimination

Even if a charge is proven, the Agency's removal action may not be sustained if the appellant establishes, by preponderant evidence, that her removal constituted handicap discrimination. 5 U.S.C. 7701(c)(2)(B) and 2302(b)(1)(D). To meet this burden, the appellant must first establish a prima facie case of discrimination. The necessary elements of a prima facie case generally include the following: 1) A showing that the appellant is a "handicapped person," and that the action to the Board was based on the handicap; and 2) to the extent possible, articulation of a reasonable accommodation under which the appellant believes she could perform the essential duties of her position or of a vacant position to which she could be reassigned. See, e.g., Savage v. Department of the Navy, 36 M.S.P.R. 148, 151-152 (1988).  An agency shall not discriminate against a qualified physically or mentally handicapped person. 29 C.F.R. 1613.703.

Title 29 C.F.R. 1613.702(a) defines a handicapped person as one 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. It further defines major life activities as functions, "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."

EEOC Regulations provide that an individual with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 C.F.R. § 1614.203(a)(1). Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1614.203(a)(3). 

Commission regulations define "major life activity" to refer to "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." This list is not intended to be exhaustive, however; in the Appendix to [29 C.F.R.] Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. 12111, et seq. (Interpretive Guidance), the Commission adds that sitting, standing, lifting, and reaching also constitute major life activities.9 Interpretive Guidance, section 1630.2(i). The Commission's Interpretive Guidance notes that common personality traits, such as a quick temper, usually would not be encompassed within the definition of impairment. Id. section 1630.2(h). Where, however, the trait is a symptom of a mental or psychological disorder, the Interpretive Guidance suggests that a different result may follow. Id.

Under commission regulations, a person is "substantially limited" where s/he is unable to perform the major life activity or "significantly restricted as to the condition, manner, or duration under which a person can perform a particular major life activity" when compared with persons in the general population. 29 C.F.R. § 1630.2(j)(1) .The regulations further note that in determining whether an impairment is substantially limiting, an employer should consider several factors: the nature and severity of the impairment; the duration or expected duration of the impairment; and the long term impact of the impairment. Id. § 1630.2(j)(2).

An employee is substantially limited in the major life activity if he or she has a disability which significantly restricts him from currently performing a class of jobs or a broad range of jobs in various classes. Adams v. USPS, EEOC Request NO. 05920820 (August 12, 1993).

Federal agencies are prohibited from discriminating against qualified individuals with disabilities. A federal agency must give full consideration to the placement and advancement of qualified individuals with disabilities and shall be a model employer of such individuals. 29 C.F.R. § 1614.203(b). An agency must make a reasonable accommodation to the known physical or mental limitations of a qualified employee with a disability. The agency has the burden of establishing that either no accommodation of appellant's disability is possible, or that the suggested accommodation would impose an undue hardship on the agency. Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) [82 FEOR 7002].

A qualified employee with a disability is one who can safely perform the essential functions of the position in question with or without reasonable accommodation. 29 C.F.R. § 1614.203(a)(6). The term "position in question," as contained in 29 C.F.R. § 1614.203(a)(6), 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. See 29 C.F.R. § 1614.203(c)(2)(ii) and (g); Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (Sept. 4, 1984) [84 FEOR 3159], aff'd, Special Panel No. 1 (Feb. 27, 1986) [86 FEOR 5055]; Johnson v. United States Postal Service, EEOC Request No. 05910506 (August 1, 1991) [92 FEOR 3026]; Ferguson v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990) [90 FEOR 3276]; Humiston v. United States Postal Service, EEOC Request No. 05940937 (February 10, 1997) [97 FEOR 3094]; Dawn DiSomma-Karpf v. Runyon, Postmaster General, U.S. Postal Service,  97 FEOR 1300, EEOC 01951013 (May 19, 1997).

A determination of whether or not an individual is qualified must take into account the provision of reasonable accommodations, including reassignment. 29 C.F.R. 1614.203(a)(6). Thus, the agency's duty to reasonably accommodate Appellant under the Rehabilitation Act included an attempt to reassign her to a suitable position. See Dudley v. United States Postal Service, EEOC Request No. 05920572 (May 13, 1993) [93 FEOR 3247]; Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (September 4, 1984) [84 FEOR 3159], aff'd, Special Panel No. 1 (February 27, 1986) [86 FEOR 5055]. 

Whether a Appellant is a “qualified individual” able to perform the essential functions of the position in question must take into account the availability of reassignment.  DeMeo v. Secretary of the Navy, EEOC 01951047 (October 31, 1996)(“in order to be entitled to the protection of the Rehabilitation Act, [a Appellant] must also be a ‘qualified individual with a disability,’ which means that he must be able to perform, with or without reasonable accommodation, the essential functions of either the position to which he was assigned at the time of the events at issue, or of another funded vacant position to which he could have been reassigned.  See Saul v. U.S. Postal Service, EEOC Request No. 05950006 (April 18, 1996).”)(Emphasis added).  

“Only after determining that reassignment to a vacant position was not possible or would result in an undue hardship, would the Rehabilitation Act permit the agency to conclude that [a Appellant] is not a qualified individual with a disability." Kitaura v. United States Postal Service, EEOC Petition No. 03980089 (March 11, 1999) [99 FEOR 3200].  The EEOC regulations do not give an unrebuttable presumption to the Agency’s statements as to what is an “essential” function of a job.  Rather, the analysis is factual in nature, taking into account, for instance, the number of employees performing the job and whether it would be an undue hardship to shift those job functions to others. 

Assigning an employee other job functions to perform can ratify that the employee is a qualified individual with a disability due to the elimination of the ‘essential’ function in the restructured job.  Linda K. Dawson v. Runyon, Postmaster General, U.S. Postal Service, 95 FEOR 3178, EEOC 01942474 (April 21, 1995)(Commission found that employee was a qualified individual with a disability because the Agency had been able to give her job assignments, as a form of reasonable accommodation, within the restrictions of her impairment, thereby ratifying the fact that the disputed function was not “essential”).

An Agency also has an affirmative action obligation to reassign an employee who can no longer, due to a disability, perform the essential functions of his or her position.  29 C.F.R. 1614.203(g).  By using the word “shall ” in this regulation, the EEOC clearly required that reassignment be considered and offered on a non-discretionary basis.

“1614.102 Agency program. (a) Each agency shall maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies. In support of this program, the agency shall: (9) Reassign, in accordance with 1614.203(g), nonprobationary employees who develop physical or mental limitations that prevent them from performing the essential functions of their positions even with reasonable accommodation.”

If an Employee can no longer perform the essential functions of her position, an Agency must reassign her to a vacant position for which she is qualified, absent undue hardship.  See EEOC Enforcement Guidance: Workers' Compensation and the ADA at 17, 8 FEP Manual (BNA) 405:7399-7400 (1996); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, (March 1, 1999); EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, question 29 (March 25, 1997); Flowers v. Henderson, EEOC 01984878 (September 9, 1999)(required reassignment of federal sector employee unable to perform essential functions of position is a question solely of undue hardship). 

The agency was required to make a good faith effort to locate a suitable vacant and funded position for the Appellant.  See Lowery v. United States Postal Service, 98 FEOR 3051, EEOC Appeal No. 01961852 (October 31, 1997); Ronnie J. Flowers v. Henderson, Postmaster General, U.S. Postal Service, EEOC 01984878 (September 9, 1999).

Failure to make a good faith effort to reassign an employee who can no longer perform the essential functions of her position is disability discrimination.  John F. Riedel v. Henderson, Postmaster General, U.S. Postal Service, EEOC 01964606 (October 16, 1998)(awarding compensatory damages for Agency’s failure to make a good faith effort to reassign employee who could no longer perform the essential functions of his position). 

It cannot be emphasized enough that, with respect to whether Appellant is a "qualified" individual with a disability, the inquiry 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. See Van Horn v. United States Postal Service, EEOC Appeal No. 0196015P9 [99 FEOR 3084] (October 23, 1998). When an employee cannot perform the essential functions of his current position because of a disability, and no accommodation is possible in that position, reasonable accommodation includes reassignment to another position. Ignacio v. United States Postal Service, EEOC Petition No. 03840005 [84 FEOR 3159] (September 4, 1984). aff'd. [86 FEOR 7026] (Spec. Pan. February 7, 1986). While the agency is not obligated to create a new position for complainant, it must make a good faith effort to locate a vacant, funded position for which Appellant was qualified. Therefore, "[o]nly after determining that reassignment to a vacant position was not possible or would result in an undue hardship, would the Rehabilitation Act permit the agency to conclude that [a complainant] is not a qualified individual with a disability." Kitaura v. United States Postal Service, EEOC Petition No. 03980089 [99 FEOR 3200] (March 11, 1999).

Based on the agency's failure to even attempt to reassign Appellant to a position for which she was qualified, or to even evaluate whether there were any positions available or if the Appellant qualified for those positions, the Board must conclude that the Agency failed to satisfy its obligation under the Rehabilitation Act. See Flowers v. United Stares Postal Service, EEOC Appeal No. 01984878 [100 FEOR 3027] (September 9, 1999); Lowery v. United States Postal Service, EEOC Appeal No. 01961852 [98 FEOR 3051] (October 31, 1997). Further, this is not a case where the agency made a "good faith effort" to reasonably accommodate Appellant.  Therefore, the agency is not relieved of its obligation to award appropriate compensatory damages for its failure to provide Appellant with reasonable accommodation. See Teshima v. United States Postal Service, EEOC Appeal No. 01961997 [98 FEOR 1244] (May 5, 1998); David A. Franklin v. Henderson, Postmaster General, U.S. Postal Service, EEOC 01A03882; EEOC 07A00025 [101 FEOR 3056] (January 19, 2001).

FACTS

The Appellant, following in the footsteps and fulfilling the dreams of her parents, went to work at the Social Security Administration as a GS-2 Claims Development Clerk in 1978 (Tr. III at 397).  After twenty two years in the federal government, she had progressed to the position of a GS-8 Service Representative (Id). 

The Appellant took a position in 1981 as a Service Representative in the Tele-Service Center of the Agency (Tr. III at 398).  In 1987, the Appellant was involved in an automobile accident and was diagnosed with TMJ (Tr. III at 400).  She asked the Agency management if she could have some time off of the telephone, in order to rest her jaw due to her disabling TMJ condition (Tr. III at 401).  Instead of accommodating the Appellant, the Agency advised her to file for disability (Id).  When the Appellant called the Atlanta Regional Office to request assistance in filing for disability retirement, she was advised that the Agency was obligated to grant the Appellant reasonable accommodation (Id).  After the Appellant informed her management about its obligation, they proceeded to give her a letter stating that they would accommodate her for three days, and after that she would be placed on Leave Without Pay (LWOP)(Tr. III at 401-2).  The Appellant inquired why she was not being allowed to work on a project off of the phones, like many of her peers were due to the holiday season (Tr. III at 402).  She was told by Margie Lamb that the Agency did not want to start helping people with disabilities because it would “get out of control; if they help one person then they might end up having to help a lot.”  (Id).  After bearing the Agency’s treatment in this manner for five years, the Appellant finally filed an EEO complaint in 1992 (Tr. III at 404).  She had to take LWOP on a regular basis during those five years because of the Agency’s failure to accommodate her disabling TMJ condition (Id). 

As the end result of the Appellant filing her EEO complaint in 1992, she was reassigned to the Tampa District Office (Tr. III at 406).  The manager at the time was Alina Ortiz, the Deciding Official in the instant removal action (Tr. III at 407; See Tab 4d of Agency File).  Ms. Ortiz was not happy about being stuck with a disability reassignment (Tr. III at 409).  She referred to the Appellant’s attempts to receive reasonable accommodation and taking LWOP when it was denied as “Elaine’s game.”  (Appellant’s Exhibit CC8, 5/31/00 email to Jose Lastra from Alina Ortiz, forwarded to James Carver same date).  Ms. Ortiz also revealed her discriminatory animus towards the Appellant in a “Fact Sheet on Elaine Rio” written by Alina Ortiz (Appellant’s Exhibit Q1), in which she states: “This is exactly what went on in the Tampa TSC when someone in EEO decided that she would be transferred to Tampa.  She came to work for a while but was mostly absent.  This episode has been going on for 1 year.  She now wants to go to Carrollwood so that she can start the process all over again...”  (Id).

The Appellant was a productive worker in the Tampa District office until 1998 (See Tr. II at 288 et seq).  The Appellant returned to work in April of 1999, but her condition deteriorated due to having to work at the front window (Tr. III at 482).  The excessive speaking at the front window and the long drive to work exacerbated her TMJ, making it impossible to continue (Id).  She told her management (Mr. Jackson) that working at the front window was causing her problems with her TMJ, but he told her “not to come to work unless she could work the front window” (Tr. III at 485).  The Appellant was not asking that any essential functions of her position be changed; she merely requested being taken off of the front window, since that was the only place a Service Representative was required to speak excessively (Tr. III at 485). 

The Agency stated that the Appellant “may have spent a total of maybe thirty minutes interviewing at the reception window.”  (Tr. I at 207 - Ms. Burnett), or “twenty minutes” (Tr. II at 302).  Mr. Jackson’s contemporaneous hand-written notes, however, state that the Appellant “assigned to MES window.  She refused to work for any length of time.  Does not feel obligated by reasonable accommodations [sic].  She did go to MES window for 45 min.”  (Appellant’s Exhibit Q2). 

The Agency stated that it tried hard to accommodate the Appellant (Tr. I at 207) because it “needed her very badly where she was.  She was an experienced Service Rep.  We valued her expertise and we needed her because we were shorthanded.” (Id).  Ms. Burnett also testified that the Agency “told her we would reduce her hours so that she would not have to come in at peak times when the traffic was heavy.  If she wanted she could work four hours per day.  We would make sure that she spent no more than one hour interviewing the public at the reception window.”  (Id).  However, she testified that she did not recall performing any search regarding the availability of vacant, funded positions for the Appellant (Tr. I at 234, 235).  She made no search even though a list of vacant funded positions was available by email (Id).  She baldly stated that the Appellant was “needed at the window” and that is why her request for reasonable accommodation of interviewing at her desk was denied (Tr. I at 237).  Ms. Burnett testified that she searched for emails and told Ms. Ortiz and Mr. Jackson to do the same (Tr. I at 232).  Ms. Ortiz denied searching for emails and was on travel status during the period when Ms. Burnett claims she told Ms. Ortiz to search (Exhibit DD at 36).   Mr. Jackson denied ever being asked to search for emails (Tr. I at 180).

Mr. Willie Jackson, the Appellant’s first line supervisor, testified at deposition that the Appellant could perform the full range of job duties without interviewing at the window (Appellant’s Exhibit BB at 24).  He knew that the Appellant had requested reasonable accommodations of no excessive talking and a position closer to home to reduce driving (Tr. I at 147).  Mr. Jackson testified that the Appellant provided lots of medical evidence to support her requests (Id).  He testified that the Agency denied the requested accommodation of a detail because they were short staffed, and that the Agency granted the request for no excessive talking (Tr. I at 149 et seq).  Mr. Jackson confirmed that the Appellant could work at her desk full time and still perform the essential functions of her position (Tr. I at 154).  Although he stated that talking is an essential function of the Appellant’s position (Id), no evidence was presented to support that allegation.  Mr. Jackson really did not recall much about receiving or sending emails, requests for reasonable accommodation, the proposal to remove or any other relevant information in this case, when cross examined (Tr. I at 162 et seq.). 

When the Appellant attempted to question Mr. Jackson about whether interviewing at the window was an essential function of the Appellant’s position, the Administrative Judge interrupted and stated that “if they can’t do the window they can’t do the full range of their duties.”  (Tr. I at 182).  Later, when the exact question was asked to Mr. Jackson as asked in deposition, the Administrative Judge refused to allow the witness to answer (Tr. I at q194).   Mr. Jackson, however, testified that a Service Rep could perform the full range of duties without interviewing at the window (Exhibit BB at 24).  He testified that working at one’s desk involves less talking than working at the window (Tr. I at 188).  He stated that the real reason the Agency refused to grant reasonable accommodation of no window work to the Appellant was because “we would not consider that fair and just to everybody else... Everyone has to work the window.”  (Tr. I at 194). 

Ms. Burnett, Mr. Jackson and Ms. Ortiz (in Florida) all worked closely with a management official and labor relations / personnel specialist at the Agency’s Atlanta Regional Office, Mr. James Carver.  Mr. Carver was initially the Agency representative on the initial case (See Agency File and Designation of Agency Representative dated 9/15/00).  Mr. Carver was called as a witness to testify in this case after the Administrative Judge found that the Agency failed to comply with discovery in this case (Tr. 60-64).

Mr. Carver testified that he believed that the Agency made efforts to give the Appellant reasonable accommodation (Tr. I at 73).  He stated that one of those accommodations was removing her “from working the front window.”  (Id).  He believed that the Appellant was taken completely off of the front window as a form of reasonable accommodation (Tr. I at 74).  Mr. Carver clearly affirmed that “An individual could not work the window, yet still work the full scope of the job duties as a service rep.”  (Id).  He stated that the Agency did not offer flex time to the Appellant as a form of reasonable accommodation (Tr. I at 75).  He stated that he was aware that Camille Gonczy was reassigned from the Plant City Office (a branch of the Tampa District Office) to the Tampa Office of Hearings and Appeals as a form of reasonable accommodation for TMJ because she “wanted a job that involved less speaking.”  (Tr. I at 75-6).  Ms. Gonczy’s position of record “was a Contact Representative, also known as a Service Representative.” (Tr. I at 76).  Mr. Carver confirmed that the Appellant held the same position as Ms. Gonczy before her reassignment (Id).  He stated that the exact position to which Ms. Gonczy was reassigned could be confirmed by Ms. Kales, the OHA Hearing Manager at the time (Tr. I at 76-7).  However, Mr. Carver did identify the Case Assistant 6/7/8 Position as being similar to the position Ms. Gonczy was reassigned into (Tr. I at 77).  He confirmed that there were vacant, funded Case Assistant 6/7/8 positions available immediately before the Appellant was removed (Id).  When asked whether the Appellant would meet the minimum qualifications for the Case Assistant position, Mr. Carver responded “that, based on the knowledge, skills and ability of the KSA’s, yes, she would meet those requirements.” (Tr. I at 77-8). 

Regarding good faith efforts made by the Agency to reassign the Appellant, Mr. Carver stated that “You would have to ask the management officials in Tampa if they were aware of the positions and considered reassigning her.”  (Tr. I at 77).  The management officials in Tampa did not consider reassigning the Appellant and did not make a good faith effort to locate a vacant funded position for which the Appellant qualified (Tr. I at 234-5; See Also Appellant’s Exhibits AA, BB and DD).

Linda Kales testified that she was a Supervisor in the Office of Hearings and Appeals of the Social Security Administration (Tr. I at 86-120).  She testified that she previously held the position of Hearing Office Manager, and was responsible for hiring nonprofessional staff (Tr. I at 87).  She admitted that there were vacant, funded positions available in her office between September 1999 and July 2000 (Tr. I at 87-8).  She testified that she “had a Senior Case Assistant, which is a [GS-]6/7/8 available.  I believe it opened in July of 2000,” the same month the Appellant was removed from her position and from the federal service (Tr. I at 93).  Another vacant funded position (GS-4/5/6 Master Docket Clerk) was available but  Ms. Kales was not sure whether the position had been filled (Id). 

Ms. Kales, in response to the question “[A]re there any positions in your office where an individual would not be constantly on the telephone or interviewing the public,” stated that “none of my employees are constantly on the telephone.  They answer the telephone, they use the telephone, bu they are not constantly on the telephone in any position.”  (Tr. I at 95).  Ms. Kales further testified that Ms. Camille Gonczy was reassigned from another Social Security Office to Ms. Kale’s SSA OHA Office (Tr. I at 96).  Ms. Gonczy was reassigned into the position of Senior Case Assistant, 6/7/8 (Id).  Ms. Kales testified that the position involved prehearing preparation, including getting cases, putting exhibits in order, and making them exhibits (Tr. I at 96-7).  The position also included ordering medical evidence or jurisdictional evidence that was not in the file; that the incumbent would speak with representatives; would rotate at reception and would rotate monitoring hearings (Tr. I at 97).  The position also included scheduling cases of master dockets, post-hearing work of ordering consultative examinations, mailing cases, typing files and possibly fee petitions (Id).  The parties stipulated that Ms. Gonczy was performing the full range of duties of the Senior Case Technician / Case Assistant GS-6/7/8 position without any accommodations (Tr. I at 101-3). 

Ms. Kales confirmed that a GS-4/5/6 position, Master Docket Clerk, was a vacant funded position that she believed was never filled (Tr. I at 104).  She further testified that, as of the date of the hearing (October 2000), the Agency was still in the process of filling GS-6/7/8 Senior Case Technician / Case Assistant (SCT) positions (Tr. I at 107).  Although Ms. Kales was not sure (upon cross examination) at the hearing whether receptionist duties were an essential function of the SCT position or not, she testified under oath at a deposition in this case that receptionist duties were not an essential function (Tr. I at 109-110; Appellant’s Exhibit AA at page 22).

Also in her deposition, Ms. Kales had a slightly different version of the duties of a SCT.  She stated that “The position for a 6, 7 or 8 their duties are the same.  It’s just at the 6 level they’re not as – you’re not expected to do all of them by yourself.  You’re expected to do them with some assistance...  What the senior case technician does is say pull the case which means they put all the exhibits in order, they order exhibits if there are any kind of exhibits that are needed... they would also type the case... they would mail the case... schedule the case, which means that they would have to, you know, call the attorney or the representative or the claimant, determine when it can be scheduled, they’d have to you know, order – which means they would have to call a vocational expert or a medical experts, sometimes more than one or two depending upon what the judge requires.  They would have to set up – you know, arrange for the hearing, those kinds of things.  Follow up on medical evidence ... by telephone ... rotate into something called “Docket” ... rotate as a receptionist which is front desk, taking care of claimaints that come to the window; getting records and files, etc...” (Exhibit AA at 15-17).  There is no constant except during receptionist rotation, which is not an essential function (Id at 21, 22).  There are 17 SCT’s who rotate at one window (Id). 

Alina Ortiz, the Appellant’s second line supervisor and the deciding official in this case, testified at deposition that she did not consider reassigning the Appellant (Exhibit DD at 35).  She did admit, however, that “If somebody from OHA would have offered [Appellant a] position, yes, we were in a position that we would release her” to be reassigned (Id at 52).  Ms. Ortiz stated that she did not know how many years of service the Appellant had (Id at 9), how many awards she received (Id), etc.  She stated that she never counseled the Appellant and never spoke in person with her regarding reasonable accommodation (Id at 10-12).  Ms. Ortiz filled the Appellant’s position with an employee that was not disabled (Exhibit DD at 13=4).   She stated that the Appellant was allowed flex time (Id at 15-6; But See, Exhibit H11, Tr. I at 75; Tr. II at 298). 

Ms. Ortiz did “not know the answer” as to whether or not a reprimand would have been effective in returning the Appellant to work (Exhibit DD at 16).  She did not consider a reprimand in deciding on the removal action (Id at 16-17).  She did not consider giving the Appellant a suspension (Id at 17).  She did not consider the notoriety of the Appellant’s absences in deciding her removal (Id at 20).  She did not consider the Appellant’s length of service when deciding upon the removal action (Id at 44). She did not consider the Appellant’s potential for rehabilitation (Id at 21).  She did not consider the Appellant’s prior disciplinary record (Id at 44).  She did not consider the consistency of the removal with that of other employees (Id at 44-5).  She frankly did not even consider whether lesser discipline would have been effective in getting the Appellant to come back to work (Id at 22). 

She knew that driving aggravated the Appellant’s TMJ (Id at 23).  She did not consider the position description of the Appellant when deciding to deny the reasonable accommodation of no front window interviewing (Id at 26-7).  She was unwilling to allow the Appellant to do paperwork because of Union partnership (Id at 29).  She was unable to state what percent of a Service Representative’s job was spent interviewing at the desk (Id at 31).  She deferred questions regarding specific job duties to the first line supervisor (Id).  She would lose an FTE if she detailed the Appellant to another District Office but would keep the FTE if the Appellant were reassigned to OHA (Id at 33-4).  She did not have the ability to reassign the Appellant outside of her District (Id).  She never even made a good faith effort to find out if there were positions available at OHA (Id at 39-40).  She was unaware whether Mr. Lastra was doing so (Id).  She stated that there was a policy to destroy documents (Id at 55-7).  She was unaware of any records retention policy (Id at 58).  She specifically recalled destroying information relevant to the instant case (Id at 59).  

Ms. Ortiz testified at the hearing that she was aware that the Appellant came to her office as the result of an EEO complaint (Tr. II at 285).  She understood that the Appellant required reasonable accommodation of reduced telephone speaking for her disability of TMJ (Id).  She never had an in-person conversation with the Appellant concerning reasonable accommodation (Tr. II at 288).   She did not recall the Appellant’s years of service, her past disciplinary record or her receipt of any awards (Id).  She never spoke with anyone regarding reassignment or transfer of the Appellant (Tr. II at 288-9). 

Ms. Ortiz did not make a search for vacant funded positions before terminating the Appellant (Tr. II at 289).  She was unaware whether Mr. Carver had made such a search (Tr. II at 290).  She had easy access to vacancy announcements (Id).  She did not consider reassigning or attempting to reassign the Appellant to the Office of Hearings and Appeals (OHA)(Id).  She recalled that Camille Gonczy was reassigned from the Valrico Office, under Ms. Ortiz’s supervision, to OHA as a result of an EEO complaint (Tr. II at 290-1). 

Ms. Ortiz could not state that interviewing at the window was an essential function of the Service Representative position (Tr. II at 291-2).  She testified that Service Representatives could perform the full range of their job duties at their desk, but that she felt that “that is not providing service, good service ... to the public.”  (Tr. II at 292).  She could not describe the amount of a Service Rep’s day spent doing particular tasks (Id).  She deferred all questions regarding the range of duties to the first line supervisor (Tr. II at 293).  She admitted denying the Appellant’s request for reasonable accommodation of a detail or reassignment to Pinellas Part without checking with the Pinellas Park office to see if they had a vacancy (Tr. II at 297).  She did not check with the Carrollwood Office to see if they had a vacancy before denying another request for reasonable accommodation of detail or reassignment there (Tr. II at 301; Exhibit M1). 

She recalled that Mr. Jackson told her that the Appellant worked at the front window for twenty minutes the last day on the job (Tr. II at 302).  In taking the removal action, she did not consider leave restriction, lesser penalty, notoriety, or any other Douglas factor (Tr. II at 310-315).  However, in emails between Ms. Ortiz, Ms. Burnett and Mr. Carver and Mr. Jackson, the Agency clearly understood the concept of the application of Douglas factors (See Appellant’s Exhibit CC15). 

Mr. Jose Lastra testified at the hearing that he had a conversation with the Appellant regarding her request for reassignment (Tr. I at 37).  He did not take any action pursuant to that conversation (Tr. I at 38).  He did state that in order to effectuate a reassignment a vacancy would be necessary (Id at 46).  He recalled speaking with Alina Ortiz regarding effectuating a reassignment, and that ordinarily an employee’s manager would communicate with offices containing a vacancy in order to arrange for the transfer (Tr. I at 46-7). 

Dr. Chuong testified regarding the Appellant’s disability, her limitations, and his recommendations (Tr. I at 121, et seq.; See Appellant’s Exhibit X).  Dr. Chuong was a specialist in oral and maxillofacial surgery (Tr. I at 123).  He testified that the Appellant currently had degenerative disease involving her temporo-mandibular joints (Tr. I at 124).  That condition is commonly referred to as TMJ (Id).  Dr. Chuong testified that the Appellant’s TMJ condition limited her in her ability to chew and to talk (Id).  He stated that he usually imposes some restrictions on the use of the telephone and talking for such patients (Id).  Although Dr. Chuong did not specifically recall discrete restrictions that he placed upon the Appellant, those restrictions are a matter of record (See Appellant’s Exhibits E3, E4, E5, E6, E10, E11, E12, G1, T1-7).  Although he did not recall making specific recommendations regarding driving, those are also a matter of record (Id).  Dr. Chuong had not reviewed the Appellant’s medical records in preparation for his testimony, and he had trouble recalling information at the hearing (Tr. I at 127, et seq.).  He did recall in general there being discussion regarding reasonable accommodation in the Appellant’s current position and about a different location for her work, as well as reducing the amount of talking and/or hours of work (Tr. I at 131).  He recalled recommending reduced hours of work, working closer to home and reducing the amount of driving to work (Id). 

Regarding discovery matters, Mr. Carver testified that (in regard to Appellant’s Interrogatory Number 21) he did not ask Ms. Ortiz whether she had any emails concerning the Appellant (Tr. I at 78).  He likewise did not ask Ms. Burnett, Mr. Jackson, Mr. Hughes whether they had any emails concerning the Appellant (Id).  He did not ask Mr. Lastra or his assistant about emails or documents (Tr. I at 79).  These responses indicated that the Agency directly violated the discovery order of the Board.  Mr. Carver also testified that he did not inquire whether any of the management officials named in the Appellant’s discovery had any conversations of discussions concerning the Appellant (Tr. I at 78). 

Mr. Derrico, the Agency’s representative at the hearing, blatantly misrepresented the facts when he stated to the Administrative Judge, without foundation, that the Agency had searched for emails pursuant to properly served Discovery requests by the Appellant (Tr. I at 27, et seq.).  He even represented that there were no records in existence responsive to the Appellant’s requests (Tr. I at 26).  The Appellant raised the issue vociferously at the time, claiming that a blatant misrepresentation was being made to the Administrative Judge in an effort to avoid compliance with discovery, a sanctionable act (Tr. I at 26-7).  Mr. Derrico lied again to this tribunal when he stated that he himself had made a search, and that “I did inquire about the email.”  (Tr. I at 27).  He lied again when he stated that he had a systems group do a system search (Id).  Mr. Carver testified that he did not discuss searching for emails with any computer specialist, that he never instructed any computer specialists to perform any email searches, and that he never spoke with Mr. Derrico regarding email searches  (Tr. I at 79).  He similarly failed to inform Mr. Derrico that the Appellant had explicitly requested emails in her Discovery (Tr. I at 80).  Mr. Carver admitted failing to produce emails that he had in his personal email that were clearly responsive to the Appellant’s Discovery requests (Id).  He also admitted failing to contact Dr. Fouts, the Agency medical officer, in direct violation of the discovery Order and regulations (Tr. I at 81; See Appellant’s Discovery - Interrogatory No. 14; Request for Production of Documents No. 19; Appellant’s Motion to Compel and for Sanctions, etc.).  Mr. Derrico later tried to portray his intentionally false and misleading statements as an error.

The Agency did indeed have documents responsive to the Appellant’s Discovery requests, some of which were provided to the Appellant on the day of the hearing, but others which may never have been identified, or may have been lost or destroyed.

ARGUMENT

The Agency’s action should be reversed because it violated the Rehabilitation Act and other law, rule or regulation regarding disabilities.  Appellant has always been willing, ready and able to work – either in her position of Service Representative at the Tampa District Office with accommodation, or through a reassignment to a vacant funded position at the OHA Hearing Office in Tampa. 

Appellant has made out a prima facie case of disability discrimination by showing that: 1) she was and is a handicapped individual; 2) she was removed based on her handicap; and 3) she articulated a reasonable accommodation under which she could perform her job or identified a vacant funded position for which she was minimally qualified.  Jackson v. USPS, 73 MSPR 512, 520 (1997); Savage v. Navy, 36 MSPR 148, 152 (1988). 

Appellant showed that she was a handicapped individual by virtue of her TMJ condition, which significantly impaired her ability to perform the major life activity of talking.  Jackson, supra; 29 CFR §1614 et seq.  She articulated two or three reasonable accommodations: reduced interviewing at the window; a detail to an office closer to her home; and reassignment to a position at OHA in Tampa for which she qualified and which involved less speaking.  The Appellant proved that the Agency failed to make a good faith effort to search for a vacant funded position for which she was qualified.  In spite of the Agency’s attempts to thwart the discovery process, she obtained (on the day of hearing) a list of vacant funded positions for which she qualified.  Some of the position descriptions were available, and the Appellant met the minimum qualifications for the positions as evidenced by the reassignment of another, similarly situated employee, from the same position to the same vacant position due to the same medical condition.  The Initial Decision of the Administrative Judge should be reversed or remanded.

The Administrative Judge misinterpreted the law in his finding and did not have substantial evidence for his finding that the Appellant’s service representative job “by its very nature required constant communication with the public which aggravated her condition and gave rise to her excessive absenteeism.”  (Initial Decision at 7).

The Administrative Judge erred in his analysis when he concluded that the Appellant’s service representative job required “constant communication.”  The Position Description lists many duties performed by the Appellant which do not involve speaking (See Exhibit C1).  The Appellant, without rebuttal, also testified credibly that interviewing at her desk (one requested accommodation) significantly reduced the amount of speaking required: working at the window involved speaking 90% of the time (See Tr. III at 417), and the front window was the only place that required her to speak excessively (Tr. III at 485). 

The Appellant also had many other job duties, including substantial paperwork (Tr. III at 415, et seq.).  While it is true that the Appellant was a disabled employee by virtue of her TMJ, it was not because her TMJ and her position as a Service Representative were totally incompatible; to the contrary – the Appellant could have performed all of the essential functions of her position as stated in her Position Description, if she had only been allowed to interview at her desk instead of at the front window (Tr. III at 485).  The Agency at no time has proven that working at the window is an essential function of the Service Representative Position (See below).  It has stipulated that the underlined portions of the Position Description describe the essential functions, and as shown thoroughly later, the essential functions in the Position Description nowhere require working at the front window.  It therefore follows that the Agency was under an obligation, absent undue hardship, to offer the Appellant the reasonable accommodation of working at her desk.

The Agency was never able to establish that working at the window was an essential function of the Appellant’s position.  It struggled to do so, claiming “I think you’re going to have to put an inference [into the Position Description].  I mean, it is not going to state in the PD that an employee must work at the front window; an employee must work at their desk.  That won’t be in a PD.”  (Tr. I at 211). 

Ms. Burnett testified regarding the Appellant’s Position Description of record (Appellant’s Exhibit C1), and in particular regarding the elements that were bracketed and labeled “C” for critical – an indication that the parties stipulated meant that the function was an essential function. 

She testified that she did not recall performing any search regarding the availability of vacant, funded positions for the Appellant (Tr. I at 234, 235).  She made no search even though a list of vacant funded positions was available by email (Id).  She baldly stated that the Appellant was “needed at the window” and that is why her request for reasonable accommodation of interviewing at her desk was denied (Tr. I at 237).  No sufficient explanation was given as to why the Appellant was “needed at the window,” and the Agency failed to give explanation with sufficient specificity to allow the Appellant a reasonable opportunity to rebut these statements.  See Burdine, supra.

The EEOC regulations do not give an unrebuttable presumption to the Agency’s statements as to what is an “essential” function of a job.  Rather, the analysis is factual in nature, taking into account, for instance, the number of employees performing the job and whether it would be an undue hardship to shift those job functions to others.  Assigning an employee other job functions to perform can ratify that the employee is a qualified individual with a disability due to the elimination of the ‘essential’ function in the restructured job.  Linda K. Dawson v. Runyon, Postmaster General, U.S. Postal Service, 95 FEOR 3178, EEOC 01942474 (April 21, 1995)(Commission found that employee was a qualified individual with a disability because the Agency had been able to give her job assignments, as a form of reasonable accommodation, within the restrictions of her impairment, thereby ratifying the fact that the disputed function was not “essential”).  Here, the Agency ostensibly offered to reduce the window time for the Appellant to one hour per day.  By doing so, it further ratified that working at the window was not an “essential function” of the position.

Appellant showed that she was a qualified handicapped individual because she was substantially limited in several major life activities, including talking.  The Administrative Judge based his Decision on an erroneous interpretation of the law on when he focused solely on the major life activity of working (e.g., Initial Decision at 7-8).   This error fatally tainted the rest of the Initial Decision.

Whether a Complainant is a “qualified individual” able to perform the essential functions of the position in question must take into account the availability of reassignment.  DeMeo v. Secretary of the Navy, EEOC 01951047 (October 31, 1996)(“in order to be entitled to the protection of the Rehabilitation Act, [a Complainant] must also be a ‘qualified individual with a disability,’ which means that he must be able to perform, with or without reasonable accommodation, the essential functions of either the position to which he was assigned at the time of the events at issue, or of another funded vacant position to which he could have been reassigned.  See Saul v. U.S. Postal Service, EEOC Request No. 05950006 (April 18, 1996).”)(Emphasis added).  

“Only after determining that reassignment to a vacant position was not possible or would result in an undue hardship, would the Rehabilitation Act permit the agency to conclude that [a complainant] is not a qualified individual with a disability." Kitaura v. United States Postal Service, EEOC Petition No. 03980089 (March 11, 1999) [99 FEOR 3200].

Title 29 C.F.R. 1613.702(a) defines a handicapped person as one 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. It further defines major life activities as functions, "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."

EEOC Regulations provide that an individual with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 C.F.R. § 1614.203(a)(1). Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1614.203(a)(3). 

Commission regulations define "major life activity" to refer to "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." This list is not intended to be exhaustive, however; in the Appendix to [29 C.F.R.] Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. 12111, et seq. (Interpretive Guidance), the Commission adds that sitting, standing, lifting, and reaching also constitute major life activities.9 Interpretive Guidance, section 1630.2(i). The Commission's Interpretive Guidance notes that common personality traits, such as a quick temper, usually would not be encompassed within the definition of impairment. Id. section 1630.2(h). Where, however, the trait is a symptom of a mental or psychological disorder, the Interpretive Guidance suggests that a different result may follow. Id.

Under commission regulations, a person is "substantially limited" where s/he is unable to perform the major life activity or "significantly restricted as to the condition, manner, or duration under which a person can perform a particular major life activity" when compared with persons in the general population. 29 C.F.R. § 1630.2(j)(1) .The regulations further note that in determining whether an impairment is substantially limiting, an employer should consider several factors: the nature and severity of the impairment; the duration or expected duration of the impairment; and the long term impact of the impairment. Id. § 1630.2(j)(2).

An employee is substantially limited in the major life activity if he or she has a disability which significantly restricts him from currently performing a class of jobs or a broad range of jobs in various classes. Adams v. USPS, EEOC Request NO. 05920820 (August 12, 1993).

In this case, the Administrative Judge misinterpreted and misapplied the law.  The Appellant claimed that she was substantially limited in the major life activity of talking.  The Administrative Judge went overboard and found that she was substantially limited in the major life activity of working.  Although it might have been true, this finding revealed a slight bias on the part of the Administrative Judge towards a finding that the Appellant was not fit for any job – including her own position, with reasonable accommodation, or another position in OHA which involved much less speaking.  The Administrative Judge used a shotgun when a rifle was appropriate, and that mistake of law tainted the entire Initial Decision. The Appellant never requested being taken off of all interviewing or talking; just excessive talking, which was only at the front window.

If the Administrative Judge had focused on the major life activity of talking, he would have found that the Appellant was a qualified individual to perform her job of record with reasonable accommodation of no window time.  In the alternative, he would have found that she was qualified for any one of the vacant funded positions she identified were available at the time of her removal but for which the Agency made no effort to search or evaluate in light of her qualifications.

The Administrative Judge based his decision on an erroneous interpretation of the law when he found that the Appellant’s position required constant contact with the public regardless of whether the Appellant was assigned to a front window or not (Initial Decision at 8).

Mr. Carver testified that he believed that the Agency made efforts to give the Appellant reasonable accommodation (Tr. I at 73).  He stated that one of those accommodations was removing her “from working the front window.”  (Id).  He believed that the Appellant was taken completely off of the front window as a form of reasonable accommodation (Tr. I at 74).  Mr. Carver clearly affirmed that “An individual could not work the window, yet still work the full scope of the job duties as a service rep.”  (Id).  Mr. Willie Jackson, the Appellant’s first line supervisor, testified at deposition that the Appellant could perform the full range of job duties without interviewing at the window (Appellant’s Exhibit BB at 24).  He knew that the Appellant had requested reasonable accommodations of no excessive talking and a position closer to home to reduce driving (Tr. I at 147). 

The Agency was unable to provide any evidence upon which the Administrative Judge could rely for his finding that working at the front window was an essential function of the Service Representative position.  The Position Description of record contains no reference to the window, and extensive cross examination of Agency management revealed that working at the window truly was not an essential function of the Appellant’s position at SSA District Office.  If the Administrative Judge had properly applied the law, he would have found that the Agency did not need the Appellant to work at the window – she could have interviewed at her desk.  He also would have found that the Appellant was able to interview at her desk, instead of going overboard and essentially finding that she was unable to do interviewing of any kind.  It must be emphasized that the Appellant only requested that she not be required to perform excessive talking, which she testified unrebutted existed only at the front window.

The Administrative Judge misinterpreted the law and misapplied the law in his finding and did not have substantial evidence for his finding that the Agency attempted to accommodate the Appellant by limiting her assignment to the front window (Initial Decision throughout, e.g. at 12).

In fact, the Appellant never requested reducing her hours from 8:45 to 12:45 as a form of reasonable accommodation (Tr. III at 474; compare Appellant’s Exhibits E12).  That was because, after driving in rush hour traffic and working the front window, she would be in no condition to drive all the way back to her therapy (Id).  The testimony was not clear as to how long the Agency actually intended the appellant to work at the front window, and was unable to provide any credible evidence as to why working at the front window was an essential function of the Appellant’s position.  It also failed to provide evidence as to why taking the Appellant off of the front window would be an undue hardship.  It certainly failed to present evidence with sufficient specificity to allow the Appellant a reasonable opportunity to rebut them.  The Commission has held that, pursuant to Burdine, certain statements – due to their vague nature – cannot, as a matter of law, serve to form nondiscriminatory reasons for nonselection.  William Hogsten v. Shalala, EEO No. 01A00208 (April 5, 2000)(Statements that lack sufficient specificity, as to the particular skills and experiences that were desirable, to provide the complainant with a full and fair opportunity to prove pretext, cannot be used to defend an Agency’s actions, citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)).

Further, the Administrative Judge failed to properly apply the law in regard to the Agency’s complete and total failure to engage in an informal, interactive discussion with the Appellant, as required by the EEOC (See Tr. III at 475; EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (1999)).  The Appellant’s first line supervisor never called her to discuss reasonable accommodation (Id).  Her second line manager never called her or had a discussion with her about reasonable accommodation (Id).  This violates the spirit as well as the letter of the law.

The Administrative Judge’s finding that the Agency’s claim that it reduced the Appellant’s time at the window was forthright was, in light of the above, a misinterpretation and misapplication of the law.

The Administrative Judge erred as a matter of fact and had no substantial evidence for his finding that the Appellant “has not presented evidence that she was otherwise qualified for” vacant, funded positions in the same commuting area that she identified at hearing (Initial Decision at 9).

Appellant’s Exhibit R1-15, although labeled “Vacancy Announcements for Positions at or Below GS-8 in the Tampa, Florida Commuting Area 9/9/99 - 7/21/00" is actually a collection of Position Descriptions for the vacancies listed at Exhibit R1.  The actual Vacancy Announcements were not provided by the Agency to the Appellant until the first day of the hearing and were accepted into evidence as Appellant’s Exhibits CC1-CC38.  

These Exhibits reveal that vacant, funded positions existed in the Appellant’s commuting area.  A simple inspection of these Exhibits reveals that the Appellant was qualified for those positions.  However, testimonial evidence of record is sufficient to directly rebut the Administrative Judge’s findings that the Appellant “has not presented evidence that she was otherwise qualified” for the positions.  The Administrative Judge’s findings were in direct contradiction to the law.  He cannot and should not have ignored evidence of record, which is apparent from his conclusory decision and statements.  To do so is a deprivation of the Appellant’s right to a hearing. 

The Administrative Judge misinterpreted and misapplied EEOC/MSPB law in his failure to analyze the Agency’s failure to make a good faith effort to identify vacant funded positions for which the Appellant was qualified.  Current law clearly requires this of the Agency, yet the Administrative Judge did not even address this in his Initial Decision.  In fact, the Agency admitted that it made absolutely no effort to even try to identify whether there were positions available for which the Appellant qualified.  In the course of the hearing, the very witnesses whose credibility was credited by the Administrative Judge impeached themselves.  Ms. Carleen Burnett testified that she did not search for vacant positions (Tr. I at 234, 235). 

However, Ms. Burnett signed a form named “Agency Certification of Reassignment and Accommodation Efforts” on January 5, 2000 (Appellant’s Exhibit B2).  On that form, Ms. Burnett certified that her “statement is true to the best of my knowledge and belief” (Id).  However, Ms. Burnett also certified that “Reassignment is not possible.  There are no vacant positions at this agency, at the same grade or pay level and tenure within the same commuting area, for which the employee meets the minimum qualification standards.”  (Id).  How could Ms. Burnett certify that no vacant positions were available when she did not even bother to perform a search?  And if she was relying on the advice of the Atlanta Regional Office, which knew or should have known that positions would soon be available for which the Appellant qualified, why wasn’t she evaluated for the position?

The Administrative Judge clearly erred as a matter of fact.  There is simply a dearth of substantial evidence to support his finding that the Appellant was not qualified for the vacant, funded positions she identified.  Agency management personnel admitted that the Appellant was qualified for the position.  Agency management admitted that another employee who held the identical position as the Appellant and suffered from the same disability was reassigned as a form of reasonable accommodation to the same position identified by the Appellant.  A more clear instance of error of fact could not be found.  

An Agency’s failure to even look for a vacant funded position for which the Appellant might qualify is disability discrimination.  In Matthew K. Samuel v. Henderson, Postmaster General, U.S. Postal Service, 99 FEOR 3315, EEOC 01985021 (July 16, 1999), for example, the Commission held that:

“The Commission concurs with the AJ that the agency's duty to reasonably accommodate appellant under the Rehabilitation Act included an attempt to reassign appellant to a suitable position. See Dudley v. United States Postal Service, EEOC Request No. 05920572 (May 13, 1993) 93 FEOR 3247]; Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (September 4, 1984) [84 FEOR 3159]; aff'd, Special Panel No. 1 (February 27, 1986) [86 FEOR 5055]. While the agency did not have to create a new position, it was required to make a good faith effort to locate a suitable vacant position for appellant. See Lowery v. United States Postal Service, EEOC Appeal No. 01961852 (October 31, 1997) [98 FEOR 3051] . As the AJ correctly noted, it is precisely the agency's lack of effort in searching for an appropriate position to which appellant could have be assigned which resulted in the finding of discrimination.”

In Keith L. Kloock v. Henderson, Postmaster General, U.S. Postal Service, 100 FEOR 3044, EEOC 01974955 (September 23, 1999), the Commission further stated that:

“As it is undisputed appellant is unable to perform his usual position as a Letter Carrier, the agency was required to provide appellant with a reasonable accommodation or prove undue hardship. After a determination that appellant could not be reassigned in his current position or that such accommodation would constitute an undue hardship, reassignment as a potential form of accommodation becomes relevant. Essenfeld v. National Security Agency, EEOC Appeal No. 01961377 (December 12, 1997) [98 FEOR 3096]; Interpretive Guidance on Title I of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630.2(o).

As such, a remand is required in order for a supplemental investigation to be conducted regarding whether there were in fact any vacant positions to which appellant could have been reassigned at this facility or any agency facility during the time period in question, considering evidence presented by appellant as to his qualifications for any position. Kitaura, supra; Cotter v. Department of Veterans Affairs, EEOC Appeal No. 01963628 (December 23, 1998) [99 FEOR 3133].”

(Emphasis added).  Here, the Agency failed to make any inquiry or determination as to whether the Appellant qualified for any of the various vacant funded positions which clearly existed at the time of her removal and in the year prior, during which she requested reasonable accommodation.  At the very least, a remand is therefore required for such an inquiry and determination to take place. 

More preferable, of course, would be a reversal of the Initial Decision and its unfounded conclusion that the Appellant “has not presented evidence” that she was qualified for these positions.  The Administrative Judge erred by ignoring plentiful evidence of record, which all pointed to the conclusion that the Appellant was minimally qualified for at least one of the vacant funded positions available, and he further erred by failing to find that the Agency violated the law by totally failing to conduct any inquiry whatsoever into the availability of vacant funded positions or whether the Appellant qualified for those positions. 

In fact, the Administrative Judge based his decision on an erroneous interpretation of law when he failed to identify the Agency management in this case as blatantly violative of the spirit and letter of EEOC law and regulation.  Mr. Carver said that the local management was responsible for reassignments.  Local management testified that Mr. Lastra or Mr. Carver was responsible.  Mr. Lastra said local management was responsible.  The Agency, in short, failed to make a good faith effort due to its ineptitude - although it rose to the level of intentional discrimination due to the severity of harm and ongoing nature of the violations.  This is also not an isolated incident.

Despite direct evidence of retaliation introduced by the Appellant at hearing, the Administrative Judge erred when he failed to find that the Agency’s removal of the Appellant was based on retaliation (Initial Decision at 11). 

The Appellant testified, without rebuttal, that Alina Ortiz harbored discriminatory animus towards her, due to her disability and on the basis of her protected activity, from the moment the Appellant was reassigned to the Tampa District Office under Ms. Ortiz as a result of an EEO settlement due to her TMJ (Tr. III at 409).  She testified, unrebutted, that Mr. Jackson, her first-line supervisor, advised her to avoid Ms. Ortiz (Tr. III at 408-9).  Ms. Ortiz stated at a meeting that she “was stuck with employees that were reassigned” to her office (Tr. III at 409). 

She referred to the Appellant’s attempts to receive reasonable accommodation and taking LWOP when it was denied as “Elaine’s game.”  (Appellant’s Exhibit CC8, 5/31/00 email to Jose Lastra from Alina Ortiz, forwarded to James Carver same date).  Ms. Ortiz also revealed her discriminatory animus towards the Appellant in a “Fact Sheet on Elaine Rio” written by Alina Ortiz (Appellant’s Exhibit Q1), in which she states: “This is exactly what went on in the Tampa TSC when someone in EEO decided that she would be transferred to Tampa.  She came to work for a while but was mostly absent.  This episode has been going on for 1 year.  She now wants to go to Carrollwood so that she can start the process all over again...”  (Id).

The Administrative Judge committed reversible error when he stated that the Appellant “has not presented evidence” that she was qualified for a vacant funded position at OHA by failing to address the case of Ms. Camille Gonczy in his analysis of the Appellant’s claim of Disability Discrimination (Initial Decision at 9), although Ms. Gonczy was reassigned from an Agency District Office (under the same supervision as the Appellant), to the Office of Hearings and Appeals Tampa Office (to where the Appellant requested reassignment), as a reasonable accommodation for her TMJ (the same condition from which the Appellant suffers), in order to reduce her speaking (the same accommodation requested by the Appellant), from the position of service representative (the same position as the Appellant’s) to the position of Case Assistant (the same position Appellant proved was vacant and funded prior to her removal)(Initial Decision at 13).

Appellant’s Exhibit R1-15, although labeled “Vacancy Announcements for Positions at or Below GS-8 in the Tampa, Florida Commuting Area 9/9/99 - 7/21/00" is actually a collection of Position Descriptions for the vacancies listed at Exhibit R1.  The actual Vacancy Announcements were not provided by the Agency to the Appellant until the first day of the hearing and were accepted into evidence as Appellant’s Exhibits CC1-CC38. 

These Exhibits reveal that vacant, funded positions existed in the Appellant’s commuting area.  A simple inspection of these Exhibits reveals that the Appellant was qualified for those positions.  However, testimonial evidence of record is sufficient to directly rebut the Administrative Judge’s findings that the Appellant “has not presented evidence that she was otherwise qualified” for the positions.  The Administrative Judge’s findings were in direct contradiction to the law.  He cannot and should not have ignored evidence of record, which is apparent from his conclusory decision and statements.  To do so is a deprivation of the Appellant’s right to a hearing. 

The Administrative Judge misinterpreted and misapplied EEOC/MSPB law in his failure to analyze the Agency’s failure to make a good faith effort to identify vacant funded positions for which the Appellant was qualified.  Current law clearly requires this of the Agency, yet the Administrative Judge did not even address this in his Initial Decision.  In fact, the Agency admitted that it made absolutely no effort to even try to identify whether there were positions available for which the Appellant qualified.  In the course of the hearing, the very witnesses whose credibility was credited by the Administrative Judge impeached themselves.  Ms. Carleen Burnett testified that she did not search for vacant positions (Tr. I at 234, 235).  Ms. Ortiz did not search for vacant positions.  Mr. Carver did not search for vacant positions.  Mr. Jackson did not search for vacant positions.  Mr. Lastra did not search for vacant positions.  The Appellant is the only one who has searched for vacant positions - through discovery in this case - and discovered that vacant positions existed that were vacant and funded at the time of her removal. 

The Administrative Judge clearly based his decision on an erroneous interpretation of the current law on this matter.  There is simply a dearth of substantial evidence to support his finding that the Appellant was not qualified for the vacant, funded positions she identified.  Agency management personnel admitted that the Appellant was qualified for the position.  Agency management admitted that another employee who held the identical position as the Appellant and suffered from the same disability was reassigned as a form of reasonable accommodation to the same position identified by the Appellant.  A more clear instance of error of fact could not be found.  

An Agency’s failure to even look for a vacant funded position for which the Appellant might qualify is disability discrimination.  In Matthew K. Samuel v. Henderson, Postmaster General, U.S. Postal Service, 99 FEOR 3315, EEOC 01985021 (July 16, 1999), for example, the Commission held that:

“The Commission concurs with the AJ that the agency's duty to reasonably accommodate appellant under the Rehabilitation Act included an attempt to reassign appellant to a suitable position. See Dudley v. United States Postal Service, EEOC Request No. 05920572 (May 13, 1993) 93 FEOR 3247]; Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (September 4, 1984) [84 FEOR 3159]; aff'd, Special Panel No. 1 (February 27, 1986) [86 FEOR 5055]. While the agency did not have to create a new position, it was required to make a good faith effort to locate a suitable vacant position for appellant. See Lowery v. United States Postal Service, EEOC Appeal No. 01961852 (October 31, 1997) [98 FEOR 3051] . As the AJ correctly noted, it is precisely the agency's lack of effort in searching for an appropriate position to which appellant could have be assigned which resulted in the finding of discrimination.”

In Keith L. Kloock v. Henderson, Postmaster General, U.S. Postal Service, 100 FEOR 3044, EEOC 01974955 (September 23, 1999), the Commission further stated that:

“As it is undisputed appellant is unable to perform his usual position as a Letter Carrier, the agency was required to provide appellant with a reasonable accommodation or prove undue hardship. After a determination that appellant could not be reassigned in his current position or that such accommodation would constitute an undue hardship, reassignment as a potential form of accommodation becomes relevant. Essenfeld v. National Security Agency, EEOC Appeal No. 01961377 (December 12, 1997) [98 FEOR 3096]; Interpretive Guidance on Title I of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630.2(o).

As such, a remand is required in order for a supplemental investigation to be conducted regarding whether there were in fact any vacant positions to which appellant could have been reassigned at this facility or any agency facility during the time period in question, considering evidence presented by appellant as to his qualifications for any position. Kitaura, supra; Cotter v. Department of Veterans Affairs, EEOC Appeal No. 01963628 (December 23, 1998) [99 FEOR 3133].”

(Emphasis added).  Here, the Agency failed to make any inquiry or determination as to whether the Appellant qualified for any of the various vacant funded positions which clearly existed at the time of her removal and in the year prior, during which she requested reasonable accommodation.  At the very least, a remand is therefore required for such an inquiry and determination to take place. 

More preferable, of course, would be a reversal of the Initial Decision and its unfounded conclusion that the Appellant “has not presented evidence” that she was qualified for these positions.  The Administrative Judge erred by ignoring plentiful evidence of record, which all pointed to the conclusion that the Appellant was minimally qualified for at least one of the vacant funded positions available, and he further erred by failing to find that the Agency violated the law by totally failing to conduct any inquiry whatsoever into the availability of vacant funded positions or whether the Appellant qualified for those positions. 

In fact, the Administrative Judge based his decision on an erroneous interpretation of law when he failed to identify the Agency management in this case as blatantly violative of the spirit and letter of EEOC law and regulation.  Mr. Carver said that the local management was responsible for reassignments.  Local management testified that Mr. Lastra or Mr. Carver was responsible.  Mr. Lastra said local management was responsible.  The Agency, in short, failed to make a good faith effort due to its ineptitude - although it rose to the level of intentional discrimination due to the severity of harm and ongoing nature of the violations.  This is also not an isolated incident.

As stated repeatedly above, the Administrative Judge’s decision was based on an erroneous interpretation of the controlling law in this matter.  He failed to make the only finding possible from the record evidence before him:  that the Agency failed to make a good faith effort to search for, locate and/or evaluate vacant funded positions in light of the Appellant’s qualifications.  This point was made again and again, through documents, and witness after witness.  The Administrative Judge revealed his bias that he felt that the Appellant was unable of performing any job.  But for the Administrative Judge’s failure to properly apply current EEOC law on the subject of “qualified individual” and reassignment, the Appellant would have prevailed in this matter. 

The Administrative Judge erred when he used the stipulation reached at Hearing regarding Ms. Gonczy (Tr. I at 99-103) against the Appellant (Initial Decision at 13).

As noted above, the Administrative Judge’s decision was based on an erroneous interpretation of the controlling law in this case in this regard.  He used a stipulation regarding Ms. Gonzcy against the Appellant in error.  The controlling law in this matter is that where an Agency has previously allowed reassignment of employees, it cannot refuse that accommodation to other employees.  Juanita S. Thompson v. Frank, Postmaster General, U.S. Postal Service, 90 FEOR 3288, EEOC 05900200 (May 10, 1990).  As described in more detail below (see chart), the similarities in the case of the Appellant to that of Ms. Gonzcy warrant at least further inspection.  The Administrative Judge’s conclusory statement that the cases are dissimilar, in a section of his Initial Decision separate and apart from the area the comparison was clearly meant for, was an abrogation of the prevailing law.  A correct legal analysis would have shifted the burden to the Agency to show undue hardship or at least to produce some evidence that the cases are not alike.  Neither was done here, in violation of the law.

The Administrative Judge committed reversible error as a matter of law when he failed to make any undue hardship analysis or good faith attempt at accommodation (reassignment) analysis.

In Lopez and Whitely v. Rice, Secretary, Department of the Air Force, EEOC 03910091, EEOC 03910092, 92 FEOR 3163 (November 22, 1991), the Commission remanded a case via the Board because the Commission held that:

“it is incumbent upon [an] Agency to submit evidence which supports [the conclusion that a handicapped employee was not qualified for a vacancy].  Herein, the Agency failed to produce evidence establishing that an individualized assessment was done, and based upon the results of the assessment, petitioners were not qualified for any vacancy.” 

The Appellant in the instant case does not wish to insert herself into any controversy between the Board and the Commission regarding reassignment, and believes that this matter was settled by the special panel in Ignacio.

A qualified employee with a disability is one who can safely perform the essential functions of the position in question with or without reasonable accommodation. 29 C.F.R. § 1614.203(a)(6). The term "position in question," as contained in 29 C.F.R. § 1614.203(a)(6), 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. See 29 C.F.R. § 1614.203(c)(2)(ii) and (g); Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (Sept. 4, 1984) [84 FEOR 3159], aff'd, Special Panel No. 1 (Feb. 27, 1986) [86 FEOR 5055]; Johnson v. United States Postal Service, EEOC Request No. 05910506 (August 1, 1991) [92 FEOR 3026]; Ferguson v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990) [90 FEOR 3276]; Humiston v. United States Postal Service, EEOC Request No. 05940937 (February 10, 1997) [97 FEOR 3094]; Dawn DiSomma-Karpf v. Runyon, Postmaster General, U.S. Postal Service,  97 FEOR 1300, EEOC 01951013 (May 19, 1997).

A determination of whether or not an individual is qualified must take into account the provision of reasonable accommodations, including reassignment. 29 C.F.R. 1614.203(a)(6). Thus, during the legal evaluation of whether an Agency is obligated to reasonably accommodate an Appellant under the Rehabilitation Act includes the requirement that the Agency attempt to reassign her to a suitable position. See Dudley v. United States Postal Service, EEOC Request No. 05920572 (May 13, 1993) [93 FEOR 3247]; Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (September 4, 1984) [84 FEOR 3159], aff'd, Special Panel No. 1 (February 27, 1986) [86 FEOR 5055]. 

An Agency is required to make a good faith effort to locate a suitable vacant and funded position for an Appellant.  See Lowery v. United States Postal Service, 98 FEOR 3051, EEOC Appeal No. 01961852 (October 31, 1997); Ronnie J. Flowers v. Henderson, Postmaster General, U.S. Postal Service, EEOC 01984878 (September 9, 1999). 

An employer need not make a reasonable accommodation that would cause "an undue hardship." Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1087 (10th Cir. 1997) (quoting 42 U.S.C. 12112 (b)(5)(A)). "The employer . . . bears the burden of persuasion on whether a proposed accommodation would impose an undue hardship."   Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997). "Undue hardship" means "an action requiring significant difficulty or expense" when considered in light of various factors. 42 U.S.C. 12111(10)(A). The factors to be considered in determining whether an accommodation would cause an employer undue hardship are, among others: the nature and cost of the accommodation; the number of persons employed by the company; the financial resources of the company; and the impact of the accommodation upon the operation of the company. 42 U.S.C. 12111(10)(B).

Here, the Administrative Judge turned the analysis upside down, requiring the Appellant to bear the entire burden of proving her qualifications down to minutiae.  In fact, the Administrative Judge made no substantive analysis whatsoever in his Initial Decision regarding the Appellant’s qualifications for the myriad vacant funded positions she proved were available.  This alone constitutes reversible error.

In addition, the EEOC has held that where an Agency has previously allowed reassignment of employees, it cannot refuse that accommodation to other employees.  Juanita S. Thompson v. Frank, Postmaster General, U.S. Postal Service, 90 FEOR 3288, EEOC 05900200 (May 10, 1990).  This case is replete with proof that Camille Gonczy was similarly situated:

Further, the Administrative Judge failed to make any analysis of undue hardship.  He failed to make any analysis of good faith effort to reassign.  Both of these are required analyses, and the Administrative Judge’s failure to perform them deprived the Appellant of her due process rights. 

Reversal and award of benefits is a proper remedy, since but for these failures, the Appellant would have prevailed in her appeal.  In the alternative, this case should be vacated and remanded for further analysis after a supplemental investigation to determine the Appellant’s qualifications for those vacant funded positions that were available at the time she requested reasonable accommodation and ending at the time she was removed and immediately thereafter.

The Administrative Judge, in his analysis of the reasonableness of the removal penalty, erred as a matter of law when he failed to analyze all of the Douglas Factors, including the potential for rehabilitation, possibility of a lesser penalty, etc. (Initial Decision at 12-3).

The agency failed to properly consider the applicable factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 307-08 (1981).^[3]  As proven at the hearing, the agency failed to properly consider the Appellant’s long years of service, her high performance ratings, her good potential for rehabilitation, and the fact that the absence which formed the basis of the Agency’s charge was due, in part, to unusually hostile work circumstances.  As a result of the Agency’s failure to appropriately exercise its management discretion in this regard, the Administrative Judge should have evaluated the Agency’s penalty of removal and found that it clearly exceeded the bounds of reasonableness. 

The Administrative Judge effectively ignored this issue, sidestepping it with conclusory findings such as, “as I discussed above, agency officials had no alternative but to effect the appellant’s removal when she failed to be available for duty...”  (Initial Decision at 12).  It is not true that the Agency actually made a good faith effort to accommodate the Appellant is, as discussed elsewhere.  Regardless of this dispute, however, the Agency and Administrative Judge had an independent responsibility to evaluate this case in light of the relevant Douglas Factors – the Appellant should not be discriminated against by the Board in its evaluation of her removal any more than any other employee, by a summary disposition that the “Agency had no alternative” to removal.  There is always an alternative, especially for a federal employee with 22 years of experience, a valued employee by the Agency’s own admission.  By summarily disposing of this issue, the Administrative Judge committed clear error.  Since it failed  to analyze the alternatives, just like the Agency failed to analyze the alternatives, the Administrative Judge’s Initial Decision must be reversed.

Further, the Administrative Judge’s findings fly in the face of his requirements under Douglas.  He began to, but ultimately failed to, make a proper Douglas analysis, to wit: “Since [Appellant’s] length of service must be deemed substantial, I find that this factor weighs in favor of a lesser penalty.”  (Id).  All of the other Douglas Factors weigh in favor of a lesser penalty as well, however, and the Administrative Judge abused his discretion when he found as a matter of law that excessive absenteeism by a disabled employee due to a bona fide dispute over reasonable accommodation has but one possible resolution -- the harshest possible -- of removal. 

The Administrative Judge, despite Appellant’s Motion for Default filed September 26, 2000 and Renewed Motion for Sanctions, filed October 10, 2000 regarding discovery abuses by the Agency, and indeed the Administrative Judge’s own findings at hearing that the Agency failed to comply with discovery (Tr. I at 62-65), erred when he abused his discretion by failing to sanction the Agency for blatant Discovery abuses.

It is difficult to find a more blatant example of a case more deserving of sanctions than the instant one.  Unbelievably blatant misrepresentations to the Administrative Judge in person, withholding essential information and intentionally failing to search for material and relevant information are simply unacceptable, yet all happened in this case without proper action by the Administrative Judge.  After ruling that the Agency improperly failed to make its employees available for deposition, the Administrative Judge ruled that the Agency would be denied any witnesses at the hearing not produced for deposition (a week before the hearing)(October 4, 2000 Summary and Order).  However, at the hearing the Administrative Judge ruled with a much softer, indeed nearly pillow-like, stick.  The Agency lied to the Administrative Judge when it stated that it had complied with discovery in this matter.  The Appellant, in accordance with the Administrative Judge’s admonishment, made a good faith effort to resolve all discovery abuses without involving the Administrative Judge.  The fact that this good faith effort involved a Motion to Compel and for Sanctions and a Renewed Motion for Sanctions is remarkable only for the fact that the Administrative Judge abused his discretion by failing to impose sanctions for clear and unmistakable violations.

The Board’s Regulations state, at 5 C.F.R. § 1201.43, Sanctions:

“The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), and (c) of this section.

(a) Failure to comply with an order. When a party fails to comply with an order, the judge may:

(1) Draw an inference in favor of the requesting party with regard to the information sought;

(2) Prohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information;

(3) Permit the requesting party to introduce secondary evidence concerning the information sought; and

(4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order.”

Further, the law regarding retention of information is very clear.  Requirements for record keeping in the Federal government are clearly enumerated in the "Federal Records Act" of 1950, as amended by 1968, Pub.L. 90-620, 82 Stat. 1298, and by the "Federal Records Management Act Amendments of 1976" 90 Stat. 2723, P.L. 94-575, 44 U.S. Code. These laws require heads of Federal agencies to preserve records of the kind that the Agency in this case admitted it failed to preserve, search for or produce. Section 3101 provides:

“§Records management by agency heads; general dutiesThe head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.”

The decisions and correspondences made in the course of the Appellant’s employment and removal showed the Agency’s intent, lack of good faith and failure to grant reasonable accommodation.  These officials were making "decisions" as that word has meaning in the Federal Records Act and the Appellant was "directly affected by the agency's activities" under the Act.  When the Appellant asked the agency for the "adequate and proper documentation" to see whether her "legal and financial rights" were protected by the agency, and those records do not exist or were destroyed, were not searched for or were not produced by the Agency, then the agency has failed in its statutory duty to "preserve records containing adequate and proper documentation of the . . . decisions, procedures, and essential transactions of the agency designed to furnish the information necessary to protect the legal and financial rights . . . of persons directly affected by the agency's activities."

The Federal Records Act further requires that the head of each federal agency guard against destruction of evidence:

Ҥ3105. SafeguardsThe head of each Federal agency shall establish safeguards against the removal or loss of records he determines to be necessary and required by the regulations of the Archivist. Safeguards shall include making it known to officials and employees of the agency

(1) that records in the custody of the agency are not to be alienated or destroyed except in accordance with sections 3301-3314 of this title, and(2) the penalties provided by law for the unlawful removal and destruction of records.”

As demonstrated by the admissions of Agency personnel in this case, the findings of the Administrative Judge and the clear evidence from the pleadings submitted by the Appellant and the Agency, the Appellant in this case has been deprived of records that she is entitled to see. The rationale for withholding or destroying such records can only be assumed to be that they contained information the agency did not want anyone to see, information that would compromise the agency, information that would now help the Appellant. By destroying, failing to preserve and refusing to look for or produce records that the agency was required to maintain, the Agency has harmed the appellant and adversely affected her rights. The Appellants should therefore be reinstated on this ground alone.

The Administrative Judge himself stated at the hearing that “[D]efinitely if the Agency has any such document and did not produce it, you know, that would be sanctionable... I don’t think there’s any doubt about that... And so, you know, that is, to me, very serious conduct if the Agency has material that were [sic] not handed over.  If the Agency blew the Appellant away that, to me, is very serious.” (Tr. I at 30-1). 

Later, the Administrative Judge made an explicit finding on the record that the Agency violated his Order regarding discovery when it failed to inquire with management officials regarding whether they kept certain material and relevant documentation (Tr. I at 53), but determined that damages to the Appellant were hard to demonstrate and therefore he would not take action (Id).  Although the Administrative Judge stated that he would consider “sanctions like drawing an adverse inference... based on the failure to the Agency and the showing of harm to the Appellant” that he “will consider that in making my decision in this appeal.”  (Tr. I at 54).  Although the Appellant urged the Administrative Judge to do so, he made no determination regarding sanctions in his Initial Decision.  That was an abuse of discretion.  No greater showing of harm could be made than an adverse decision based on the alleged absence of evidence which was available and which would have shown that the Appellant deserved a fully favorable decision.  The Board should, therefore, sanction the Agency and draw the adverse inference stated above, namely, that the requested information would have shown that the Appellant was a qualified individual and that she was qualified for vacant, funded jobs in her commuting area and that the Agency not only failed to accommodate her disability but also failed to make a good faith effort to do so.

Further, after the Agency represented that it had fully and completely complied with discovery in the instant case, the Agency’s initial representative and management official located at the Atlanta Regional Office, Mr. James Carver, was called on the phone during the hearing and on the record in an unusual interchange (See Tr. I at 61 to 64).  Although the Appellant requested that the Agency bear the cost for the additional time and expense caused by its discovery abuses, the Administrative Judge deferred ruling on that matter as well (Tr. 71).  No decision was ever issued - an abuse of discretion by failure to use discretion - and the Board should order the Agency to bear the cost of the extra time required due to its violations of Order and regulation.

The Agency itself attempted to introduce documents that had not been provided to the Appellant prior to the hearing, which were admittedly material and relevant (Tr. I at 89-91).  Although this point was explicitly brought to the attention of the Administrative Judge, all that was done was that the document was rejected as evidence (Tr. I at 92).  No further sanction was even entertained by the Administrative Judge, although it is highly likely - indeed a near certainty - that other material and relevant documents existed which should have and now can serve as the basis for an adverse inference being drawn from the Agency’s blatant discovery abuses and failures.  Indeed, Ms. Ortiz testified at deposition that her office had a policy to destroy documents (Exhibit DD at 55-7).  She was unaware of any records retention policy (Id at 58).  She specifically recalled destroying information relevant to the instant case (Id at 59).  

One point alone warrants inspection.  The Appellant, as shown by the rulings of the Administrative Judge, had the burden of proving that there were vacant, funded positions available for which she qualified.  She could not properly do so, however, unless the Agency properly complied with discovery in this case.  The Agency is the one in possession of vacancy announcements, Position Descriptions and other information vital to proving the possibility of reassignment.  By deliberately withholding information until the day of hearing, the Agency illegally and irreparably impaired the Appellant’s ability to prove her case.  Although the Appellant respectfully submits that she did meet her burden in this case, it is unrebuttable that, had the Agency been more forthcoming with information as required by Order and regulation, she would have been more prepared to show the availability of positions for which she qualified. 

There was no way that the Appellant could evaluate information at hearing and add an expert witness on personnel and classification issues, for example.  The Administrative Judge never even gave any indication as to how the Appellant failed to show she qualified for vacant funded positions to which another employee with the same condition in the same position had been previously reassigned.  But for the Agency’s failure to provide information, and the Administrative Judge’s abrogation of his duty to force the Agency to comply and to sanction when it failed to comply, the Appellant would have at a minimum received a full and fair hearing, and at the most would have prevailed in her appeal.  She requests nothing more from the Board than a recognition of that fact, and either a remand for further proceedings or a reversal on the merits.

The proper remedy is reinstatement of the Appellant to her position, an Order that the Agency provide reasonable accommodation to the Appellant, an Award of backpay with interest, non-pecuniary compensatory damages, attorney’s fees, a posting, EEO training for Agency managers and other appropriate relief.

The Appellant, having proven her case, respectfully requests a make-whole remedy – nothing more, nothing less.

WHEREFORE, FOR GOOD CAUSE SHOWN, the Appellant respectfully requests that the Initial Decision of Administrative Judge Ramon Gomez be REVERSED and that she be GRANTED any and all remedies deemed fit and appropriate, or IN THE ALTERNATIVE, that the Initial Decision be VACATED and REMANDED for further proceedings as more specifically outlined herein.

Respectfully Submitted,

____________________________________

Michael J. Snider, Esq.
Attorney for Appellant
3003 Temple Gate Road
Baltimore, Maryland 21209
410-358-8118 Phone
410-358-1621 Fax

Certificate of Service

I certify that a copy of the foregoing was faxed, hand-delivered and/or placed in the U.S. Mail, postage pre-paid, addressed to:

United States Merit Systems Protection Board
Peter Derrico, Labor Relations Specialist

Social Security Administration
Suite 22T64
61 Forsyth Street
Atlanta, Georgia 30303
404-562-1243  Phone
404-562-1260 Fax

Administrative Judge Ramon V. Gomez
Merit Systems Protection Board
401 W. Peachtree Street, N.W., Suite 1050
Atlanta, Georgia 30308
404-730-2751 Phone
404-730-2767 Fax

on this date of ________________.            _____________________________

Michael J. Snider, Esq.
Attorney for Appellant
copy to:            Elaine P. Rio
Phil Devlin

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^[1]By Order dated December 29, 2000, this Board, by and through the Clerk of the Board, GRANTED an extension for the Appellant to file a Petition for Review in this matter, on or before February 28, 2001.

^[2]Citations to the Hearing Transcript in this matter will be in the format “(Tr. * [I, II or III] at [page] ***).”  There were three (3) Hearing Transcripts generated, over the course of two (2) days of hearing.

^[3]The twelve Douglas Factors are:(a) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; (b) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (c) the employee's past disciplinary record; (d) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; (e) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties; (f) consistency of the penalty with those imposed upon other employees for the same or similar offenses; (g) consistency of the penalty with any applicable agency table of penalties; (h) the notoriety of the offense or its impact upon the reputation of the agency; (i) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;  (j) potential for the employee's rehabilitation; (k) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment or bad faith, malice or provocation on the part of others involved in the matter; and, (l) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.