Deborah Sonneman v. Department of the Treasury 03A50032 May 26, 2005 . Deborah Sonneman, Petitioner, v. John W. Snow, Secretary, Department of the Treasury, Agency. Petition No. 03A50032 MSPB No. DC-0752-02-0636-I-3 DECISION On April 16, 2005, 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, a Customer Service Representative, GS-0598-05 at an agency's Bailey's Crossroads, Virginia Taxpayer Assistance Center, alleged that she was discriminated against on the basis of disability (conditions including, inter alia, rheumatoid arthritis, fibromyalgia syndrome, lumbosacral disk disease, emotional distress secondary to these conditions) when she was constructively suspended during the period September 7, 2001 through June 1, 2002, and when she was removed from employment effective June 1, 2002 on the ground that her continued unavailability for work due to her medical condition was having an adverse impact on the efficiency of the service. On May 19, 2005, petitioner filed a mixed case appeal with the MSPB. After a hearing, the MSPB Administrative Judge (AJ) sustained the removal action, and found that petitioner had not been constructively suspended because according to her physician she was not able to work at all during the period in question.<1> On petition for review, the full Board again upheld petitioner's removal, but dismissed the claim regarding the constructive suspension, finding that petitioner had not met her burden to establish Board jurisdiction over the claim. EEOC regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes 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). Assuming, without deciding, that petitioner is an “individual with a disability,” see 29 C.F.R. § 1630.2(g)(1), the Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. The record reflects that petitioner was absent from work for an extended period of time, and did not suggest to the agency any means by which she might return to work, i.e., a means of reasonable accommodation, nor did petitioner request leave as an accommodation. Petitioner therefore has not established that she is a “qualified individual with a disability” entitled to protection under the Rehabilitation Act.<2> See 29 C.F.R. § 1630.2(m); Sims v. United States Postal Service, EEOC Petition No. 03A00033 (February 25, 2000). Based upon a thorough review of the record and for the foregoing reasons, it is the decision of the Commission to CONCUR with the final decision of the MSPB. 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 May 26, 2005 __________________ Date 1Petitioner had claimed that the agency constructively suspended her by failing to provide reasonable accommodation. 2For the same reasons, petitioner cannot establish that the agency constructively suspended her by failing to provide reasonable accommodation.