BEFORE THE UNITED STATES OF AMERICA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
OFFICE OF FEDERAL OPERATIONS
(APPEAL OF DECISION BY THE MERIT SYSTEMS PROTECTION BOARD)

APPELLANT’S PETITION FOR EEO CONSIDERATION OF MSPB APPEAL

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, upheld by a split MSPB.  Pursuant to 29 C.F.R. §1614.303, Appellant hereby petitions the EEOC OFO to review said Initial Decision sustaining the Agency’s removal action.  For the reasons set forth below, the Commission must reverse the Initial Decision and reinstate the Appellant to the federal service, and should grant other relief as requested.

Appellant hereby incorporates her Appeal to the Board in its entirety, as well as any argument made to the Board or Administrative Law Judge. 

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. Did the Administrative Judge err in his Decision by failing to find that the Appellant could perform the essential functions of a vacant, funded position at the time of her removal?

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?

APPLICABLE LAW

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. 

Appellant showed: (1) she was 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).

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].

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). 

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).

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). 

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 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, but 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).

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). 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). 

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.  The Chair of the Board made the same 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. 

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.   The Administrative Judge abused his discretion by failing to impose sanctions for clear and unmistakable violations. 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.  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 Appellant should therefore be reinstated on this ground alone.

WHEREFORE, FOR GOOD CAUSE SHOWN, the Appellant respectfully requests that the Initial Decision of Administrative Judge Ramon Gomez, as upheld through a SPLIT DECISION of the MSPB 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
4 10-358-1621 Fax

Certificate of Service

I certify that a copy of the foregoing was sent, unless otherwise indicated, via first class mail, postage pre-paid, addressed to:

Office of Federal Operations  FAX AND Certified mail, return receipt

Equal Employment Opportunity Commission
P.O. Box 19848
Washington, D.C. 20036
202-663-7022 FAX

The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW
Washington, DC 20419

Peter Derrico, Labor Relations Specialist
Social Security Administration
Suite 22T64
61 Forsyth Street
Atlanta, Georgia 30303

on this date of ________________.          _____________________________

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

---

^[1]Appellant’s attorney received the instant Decision on or about August 24, 2002.