Carrie Graffius,
Petitioner,

v. 

R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.

Petition No. 0320070109

MSPB No. DC-0752-060-453-I-2

DECISION

On July 7, 2007, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning her claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

Petitioner alleged that she was discriminated against on the basis of
disability (diabetes and carpal tunnel syndrome) when, effective November
1, 2005, petitioner was removed from her position as a Program Specialist
in the agency's Office of Facilities Management in Washington, D.C.  

The record indicated that petitioner had worked with the agency
since 1999.  In September 2001, petitioner married and move to a town
approximately 160 miles from the office.  During that time, she began
to have health problems and the agency arranged for her to work from
home temporarily.  The work from home arrangement was extended and
lasted for over two years.  In 2003, the agency determined that it was
no longer feasible to have petitioner work from home on a full time
basis and, in May 2003, asked petitioner to develop a plan to work at
the office. Petitioner indicated that she could only come to work one
day a week because her husband had to drive her.  The agency agreed and,
in June 2003, petitioner started commuting into the office.  However,
by August 2003, petitioner stopped coming into the office.  On April 28,
2004, petitioner's full-time telecommuting arrangement was terminated
effective June 1, 2004.  Starting on June 1, 2004, petitioner did not
report to work and initially exhausted her leave balances and then was
allowed twelve weeks of additional leave under the Family and Medical
Leave Act (FMLA). Starting in November 2004, when all leave was exhausted,
she was placed on absence without leave (AWOL) status. On April 21,
2005, the agency proposed petitioner's termination based on the charge
of excessive absence/AWOL. Petitioner made an oral reply.  On October 24,
2005, the agency terminated petitioner effective November 1, 2005.  

Petitioner filed a mixed case complaint and the agency issued a decision
finding that petitioner was not discriminated against as alleged.
Thereafter petitioner filed an appeal with the MSPB.  The MSPB
Administrative Judge (AJ) held a hearing on the matter and issued a
decision finding no discrimination.  The MSPB AJ found that petitioner
did not establish her claim of disability-based discrimination. As
an initial matter, the MSBP AJ determined that petitioner was not an
individual with a disability in that she had not shown that she was
limited in the major life activity of working.  The MSPB AJ continued
the analysis and determined that, in essence, there was no accommodation
available that would have allowed petitioner to perform the essential
functions of her position.  Further, the MSPB AJ noted that there was
no vacant position to which petitioner could have been reassigned.
As such, the MSBP AJ concluded that petitioner did not show that the
agency's removal action was discriminatory.

The petitioner filed a petition for review with the Board.  The Board
issued its final order on June 6, 2007, denying the petition.
This petition to the Commission followed.

EEOC regulations provide that the Commission has jurisdiction over
mixed case complaints on which the MSPB has issued a decision that
makes determinations on allegations of discrimination.  29 C.F.R. §
1614.303 et seq.  The Commission must determine whether the decision of
the MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. § 1614.305(c).

For the purposes of analysis only, we will assume petitioner is an
individual with a disability.  29 C.F.R. § 1630.2(g)(1).  Although the
Commission does not rule on whether or not petitioner is actually
an individual with a disability, we note that the MSPB AJ erroneously
considered petitioner's limitations solely with respect to the major life
activity of working.  We find that the MSBP AJ should have also considered
other major life activities, including but not limited to, caring for
oneself, performing manual tasks and walking.  29 C.F.R. § 1630.2(i).
Instead, in her analysis, the MSPB AJ indicated that petitioner often
used a wheelchair or walker, but noted that the there was no evidence
that this had any impact on her ability to work.  We find that the MSPB
AJ should have also considered whether the use of the wheelchair impacted
on the major life activity of walking, as well as working.

Notwithstanding these gaps in the MSPB AJ's disability analysis, based
upon a thorough review of the record, and even assuming petitioner met
the definition of an individual with a disability, it is the decision
of the Commission to concur with the final decision of the MSPB finding
no discrimination.  The Commission finds that, with the exception noted
above, the MSPB's decision constitutes a correct interpretation of the
laws, rules, regulations, and policies governing this matter and is
supported by the evidence in the record as a whole.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision.  You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security.  See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court.  Filing a request for an attorney does not extend your time
in which to file a civil action.  Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").

FOR THE COMMISSION:



______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 13, 2007

__________________
Date
 
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0320070109





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036




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