Duty to Provide Reasonable Accommodation

In Sigiefredo Sanchez v. Dep't of Energy, 2011 MSPB 95 (11/22/11), the plaintiff was removed from his position of emergency operations specialist in the transportation and emergency control center of the agency's National Nuclear Security Administration office of secured transportation, on charges of failure to maintain a condition of employment. The position required certification under the agency's Human Reliability Program (HRP). The agency had revoked Sanchez's HRP certification on the basis that Sanchez had a psychological or physical disorder that impaired his performance of his assigned duties after the agency's psychologist diagnosed him with mixed receptive expressive disorder, affecting his ability to read, express himself accurately in writing, and understand material that is presented in an auditory fashion. Prior to his removal, the agency had indefinitely suspended him pending resolution of his HRP certification.

Sanchez appealed the indefinite suspension and the removal action to the MSPB. He alleged that the agency failed to provide him with the reasonable accommodation of reassignment to a position that did not require HRP certification. The administrative judge affirmed Sanchez's removal and found that, although Sanchez established that he was disabled, he had failed to establish that he was a qualified individual with a disability because he did not show that he was able to perform the essential functions of his position with or without an accommodation. The administrative judge found that the agency was not obligated to provide him with a reasonable accommodation. The administrative judge also held that the agency had properly used the indefinite suspension procedures under the circumstances of this case.

On appeal to the full Board, Sanchez alleged that the administrative judge failed to analyze whether he was capable of performing the essential functions of other positions that were available. The Board determined that in order to establish that an indefinite suspension is reasonable the agency must show that a lesser penalty, such as reassignment, would be ineffective under the circumstances. The Board found that the record was insufficient to establish whether the penalty of indefinite suspension was reasonable and remanded the case for a determination of whether reassignment, rather than indefinite suspension, would have been effective. The Board also held that Sanchez was entitled to be considered for reassignment to a vacant position as a form of reasonable accommodation. The Board concluded that the agency had failed to engage in the interactive process in order to identify a reasonable accommodation and remanded the case for further adjudication.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/.