The FAA committed discrimination when it refused to grant a temporarily disabled air traffic control specialist a three-month extension of her medical leave in late 2007, the EEOC has ruled. Edwards v. Peters, EEOC No. 0320080101, 6/23/09). The petitioner had already won reversal from the full MSPB of a 2007 initial decision and removal based on "unavailability for duty." The Board, however, had found no discrimination, and it was from that finding that petitioner successfully appealed to the EEOC.
While recovering from knee surgery and cancer surgery in the spring of 2006, and while preparing for follow-up treatment of the cancer, petitioner Linda Edwards learned she was pregnant. By early 2007, Ms. Edwards remained unable to work because of the complications of the breast cancer and her pregnancy. In April, her physician documented that she would be "completely unable to work for about six months because of the breast cancer treatments." Later, another physician documented knee problems that permanently precluded her from "repeated bending, kneeling, squatting activities, or frequent climbing and prolonged standing and walking for more than three hours in an eight hour shift."
Four days later, on May 4, her supervisor notified her of his intent to remove her from her air traffic control specialist position for "unavailability for duty." On May 30, the supervisor ordered Edwards to return to work within two days. She declined, as she was still covered under workers' compensation for her knee injury. Edwards suffered serious adverse reactions from chemotherapy, discontinued the treatment, and needed separately additional treatment to address the adverse reaction. Accordingly, Edwards asked her supervisor to reconsider his proposed removal, noting that she intended to return to work as soon as she finished the round of chemotherapy.
After the supervisor sustained his proposal, the petitioner asked that the removal be held in abeyance and provided medical documentation to support her request. By mid-August, Edwards was able to report to work, but the agency sent her home mid-day because of concerns stemming from the physician's 180-day restriction issued in April. One week after the petitioner returned to work in late August, her eldest child died. She took bereavement leave through September, planning to return to work on October 2. While on leave in September, the petitioner learned that her cancer returned.
On October 2, when Edwards did not return to work as originally anticipated, her supervisor sustained the proposed removal action, effective October 13, stating she was "unavailable for duty." On October 5, she provided medical documentation stating that she would be able to return to work January 2, 2008, following the latest course of chemotherapy. The supervisor disregarded the documentation.
The EEOC ruled that the petitioner was an individual with a disability covered by the Rehabilitation Act; that she was "qualified" within the meaning of 29 CFR 1630.2(m); that she had significantly recovered and was physically able to perform the essential functions of her position at the time she was terminated; and that the agency failed to present credible evidence that it would have imposed an undue burden to allow her to return in January 2008 as indicated in her medical documentation. There were vacant ATCS positions on the date of petitioner's termination and no indication of an urgent need for her return any earlier than January 2008. Finally, the EEOC concluded that the agency denied the reasonable accommodation based on her "record of" disability, and therefore found disability discrimination under the Rehabilitation Act. The case was sent back to the Board to consider appropriate remedies, including compensatory damages.
* 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. The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Third Edition, a comprehensive overview of federal employees' legal rights. To order your copy, go to http://www.fedweek.com/pubs/index.php This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we've reduced the price to only $29.95 plus s&h.