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 Number 138 December 2000 COURT DECISIONS | FLRA | MSPB MSPB DECISIONS REASONABLE ACCOMMODATION Lillian F. Miller v. U.S. Postal Service, CH-0752-99-0342-I-1, March 21, 2000. Holding In cases involving reasonable accommodation, the appellant bears the burden of proving that vacancies exist for possible reassignment and the agency must provide requested information on the status of vacant positions. Summary The appellant requested a reassignment and provided medical documentation stating that her continued employment as a Mail Handler was injurious to her health because the dusty environment of the mail room aggravated her medical conditions of chronic bronchitis and chronic obstructive pulmonary disease. Further, the medical documentation stated that the employee should work in a largely dust-free environment. The agency placed the employee on an indefinite suspension based on medical inability because it could not provide a dust-free environment. The suspension was to be in effect pending an investigation into whether her continued employment would constitute a health hazard or until such time as the employee provided medical documentation that it would be safe for her to return to work. In her appeal the appellant alleged disability discrimination because of the agency's failure to reassign her and, through discovery, requested a listing of vacant positions available at the time her indefinite suspension began. The agency provided only a partial listing of vacancies and the appellant raised an objection with the administrative judge (AJ). The judge ruled that the agency's incomplete response was not significant and went on to rule in favor of the agency. The AJ found the indefinite suspension was supported by the evidence and held that the agency had not discriminated against the employee. The full Board vacated the initial decision with regard to the appellant's discrimination allegation and remanded for compliance with the discovery request in order for a determination to be made on the appellant's discrimination argument. In its analysis, the Board noted that in cases involving the obligation to consider reassignment as a reasonable accommodation, the employee bears the burden of establishing the existence of available vacancies. However, it would be unfair for the Board to place such a burden on an employee and then not require an agency to provide the information needed to meet that burden. The remand ordered the judge to reopen the record and to ensure that the agency fully complied with the discovery request for a complete list of available vacancies within the local commuting area at the time of the indefinite suspension. In the remand initial decision issued in July 2000, the judge noted that following the agency's full compliance, the appellant identified four types of positions from the available vacancy list. The judge held that none of the positions would have met the medical restrictions imposed by the appellant's physician. The agency has subsequently reassigned the appellant to another position but that job did not exist at the time of the indefinite suspension and the judge did not consider the current position in finding that the agency had no viable reassignment placement at the time of the suspension. Comments There are several issues that agencies should note in reviewing this case. First, it was an unusual set of facts that prevented the agency from even temporarily placing the employee in other duties while a final determination was made on the possibility of reassigning the employee. The employee's serious physical reaction to dust made it virtually impossible for her to perform any duties in most of the locations within the installation. However unusual the facts, the Board did support the underlying premise that it may be necessary in certain circumstances to indefinitely suspend an employee pending an investigation of whether continued work in that environment would be hazardous. Second, in its disability discrimination analysis, the Board specifically found that the agency had an obligation to consider reassignment to possible vacancies in the local commuting area. This is noteworthy because of the existence of EEOC guidance and case law to the contrary. The EEOC has clearly stated its position that once the employee and the agency are engaged in a discussion of reassignment as an accommodation, the search for vacant positions must include any appropriate vacancies in the agency, without regard to geography or local appointing authority. (See EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, March 9, 1999). In fact, seven months prior to the issuance of this decision, the Board accepted an order from the EEOC that remanded a case with similar facts back to the Board for the taking of additional evidence (Kitaura v. USPS, 83 MSPR 270 (1999)). In that case, the EEOC's order (Kitaura v. Henderson, #03980089, March 11, 1999) specifically stated that the agency must determine whether vacancies existed "at the facility where he worked or other facilities to which he could have been reasonably reassigned." Given the existence of the 1999 guidance, the Kitaura decision, and the EEOC's proposed regulations (65 FR 11019-11023, March 1, 2000) to eliminate the restriction on reassignment to local commuting area, the Board's holding here is puzzling. With the likelihood that EEOC's regulations will go final in the next few months, agencies would be well advised to develop methods of searching for appropriate vacancies throughout the agency. As the EEOC notes in its guidance, this search is part of an interactive discussion with the employee and the search may be limited to those areas where the employee indicates s/he will be willing to relocate. Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.
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