                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KAROLY KOLETAR,                                 DOCKET NUMBER
                 Appellant,                          SF-0752-12-0543-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 17, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Karoly Koletar, Los Angeles, California, pro se.

           Kristen L. Walsh, Esquire, San Francisco, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained the appellant’s indefinite suspension.      Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
     or regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.               5 C.F.R.
     § 1201.113(b).
¶2        Effective April 27, 2012, the agency placed the appellant, a Mail Handler
     working on the flat sorter machine, in nondisciplinary leave without pay (LWOP)
     status based on his physical inability to perform the essential functions of his
     position due to off-the-job medical restrictions (including no lifting over 15
     pounds and the need to change position every 30 minutes), and the inability of the
     District Reasonable Accommodation Committee (DRAC) to locate another
     position   for   him   that   he   could   perform   with   or   without   reasonable
     accommodation. Initial Appeal File (IAF), Tab 6 at 57, 68, 82, 97. The appellant
     appealed the agency’s action. IAF, Tab 1. Initially the appellant requested a
     hearing; however, during the course of the proceedings below, he asked for a
     decision based on the written record. IAF2, Tab 8. 2
¶3         The administrative judge adjudicated the appellant’s appeal as an indefinite
     suspension that had lasted for more than 14 days and was thus within the Board’s



     2
        The administrative judge dismissed the appellant’s first-filed appeal without
     prejudice, and the appellant timely refiled the action. The record in the first-filed
     appeal is cited as IAF, and the record in the refiled appeal is cited as IAF2.
     jurisdiction. 3 IAF2, Tab 43, Initial Decision (ID) at 9-10. He found that the
     agency proved by preponderant evidence that it had legitimate concerns that the
     appellant’s medical conditions, which were continuing and remained unchanged
     during the course of this appeal, made his continued presence as a Mail Handler
     inappropriate. ID at 12. The administrative judge also found that the appellant
     failed to prove his affirmative defense of disability discrimination. ID at 20. He
     found that, although the appellant established that he is a person with a disability,
     he failed to show that he could perform the essential duties of his Mail Handler
     position with or without accommodation. ID at 20. The administrative judge also
     found that the appellant failed to show that he was treated in a disparate manner
     from nondisabled employees. ID at 20-21. Additionally, the administrative judge
     found that the appellant failed to show that the processes used by the DRAC to
     determine that the appellant could not be accommodated or reassigned constituted
     harmful procedural error. ID at 21-23.
¶4         On petition for review, the appellant generally disagrees with the
     administrative judge’s findings of fact and conclusions of law.        He disagrees
     especially with the finding that he failed to prove disability discrimination.
     Petition for Review (PFR) File, Tab 3. He contends that the duties of the Mail
     Handler position could be revised to meet his medical restrictions. The appellant
     appears to assert that because his physician cleared him to work within
     restrictions, including the restriction that he not lift more than 15 pounds, the
     agency should have accommodated his restrictions. He also contends that the
     agency should have given him a light-duty assignment. He contends, moreover,
     that the agency treated him disparately from nondisabled employees. 4

     3
      While this appeal was proceeding, the appellant retired from the agency. IAF2, Tab
     14 at 23.
     4
       The appellant filed two additional motions after he filed his petition for review,
     requesting an extension of time to reply to the agency’s response to the petition for
     review. PFR File, Tabs 7-8. The Clerk of the Board denied the appellant’s motions
     because they were filed after the due date for the reply. Id., Tab 4.
¶5        The Board and its reviewing court have approved indefinite suspensions
     when, as here, the agency has legitimate concerns that an employee’s medical
     condition makes his continued presence in the workplace dangerous or
     inappropriate, pending a determination that the employee is fit for duty.
     Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010).
     To establish that an indefinite suspension is reasonable, the agency must show
     that a lesser penalty, such as accommodation or reassignment, would be
     ineffective under the circumstances. Vega v. Department of Justice, 37 M.S.P.R.
     115, 118 (1988).
¶6        In this case, the agency established that the appellant had a medical
     condition that made the performance of his duties as a Mail Handler
     inappropriate.    The record shows that the physical requirements of the Mail
     Handler position include prolonged walking, standing, and possibly lifting heavy
     containers and parcels weighing up to 70 pounds, including manipulating sacks of
     mail weighing 35 to 50 pounds on a continuous basis. IAF, Tab 6 at 97. The
     appellant’s physician restricted the appellant to lifting no more than 15 pounds
     and needing to change position between standing, walking, and sitting every 30
     minutes. Id. at 70. Further, the agency showed that a lesser penalty would be
     ineffective under the circumstances. Before placing the appellant on LWOP, the
     agency searched for, but could not find, necessary and productive light-duty work
     that could be performed within the appellant’s restrictions.         Id. at 82.
     Additionally, before placing the appellant on LWOP, the agency established
     through the DRAC process that his physical restrictions could not be
     accommodated in the Mail Handler position and that there were no positions
     within the appellant’s restrictions to which he could be reassigned. Id. at 68.
     Thus, the administrative judge properly found that the agency established by
     preponderant evidence that placing the appellant on nondisciplinary LWOP status
     was reasonable.
¶7           The appellant contends that the administrative judge erred in finding that
     the agency did not discriminate against him on the basis of disability by failing to
     accommodate him.         To establish disability discrimination, an employee must
     show:      (1) he is an individual with a disability, as defined by 29 C.F.R.
     § 1630.2(g); (2) he is a qualified individual with a disability, as defined
     by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
     accommodation.       Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13
     (2014).
¶8           The appellant established that he is a qualified individual with a disability
     because he could lift no more than 15 pounds and has further limitations on the
     time that he can stand continuously. ID at 18. The appellant failed to show,
     however, that there was a reasonable accommodation that could allow him to
     perform the essential duties of the Mail Handler position. An essential duty of
     the Mail Handler position assigned to duties on the flat sorter machine is to lift
     preloaded bulk mail trays, each of which weighs more than 20 pounds.                          The
     record shows that there is no way to eliminate the essential flat sorter duty of
     lifting and moving trays of mail, each weighing at least 5 pounds above the
     appellant’s 15-pound weight lifting restriction.          ID at 18-20.         The appellant
     presented no evidence to show that his treating physicians indicated that he could
     lift more than 15 pounds. Further, the appellant does not challenge the finding of
     the DRAC that no vacant positions were available to which the appellant could be
     reassigned.    Thus, the administrative judge properly found that the appellant
     failed to show that the agency discriminated against him by failing to
     accommodate his disability.
¶9           Further, regarding the appellant’s assertion that the agency should have
     accommodated       his   disability   by   creating   a    light-duty        position,   it    is
     well-established that the Rehabilitation Act imposes no obligation on the agency
     to   create     modified    work      assignments.        Bennett       v.      U.S.     Postal
     Service, 118 M.S.P.R. 271, ¶ 10 (2012). The provision of limited-duty tasks that
      do not constitute a separate position is not a reasonable accommodation and the
      agency is not required to create a new position for an employee in order to
      provide reasonable accommodation. Id.
¶10        The appellant also contends that the administrative judge erred in finding
      that the agency did not discriminate against him based on disparate treatment. To
      establish a prima facie case of disability discrimination based on disparate
      treatment, an appellant must prove that: (1) he is a member of a protected class;
      (2) he suffered an adverse employment action; and (3) the unfavorable action
      gives rise to an inference of discrimination.       McDonnell Douglas Corp. v.
      Green, 411 U.S. 792, 802 (1973). If an appellant establishes a prima facie case of
      prohibited employment discrimination, the burden of going forward then shifts to
      the agency to articulate a legitimate, nondiscriminatory reason for its action; and,
      finally, the employee must show that the agency’s stated reason is merely a
      pretext for prohibited discrimination. Id. at 802–04. However, in a case like this,
      where the record is complete, the Board will proceed directly to the ultimate
      question of whether the appellant has demonstrated by preponderant evidence that
      the agency’s reason for its actions was a pretext for discrimination.      Berry v.
      Department of Commerce, 105 M.S.P.R. 596, ¶ 10 (2007).
¶11        The administrative judge carefully considered whether the appellant was
      similarly situated to any of the six employees to whom he compared himself. ID
      at 20-21. He found that the appellant was not similarly situated to one particular
      employee who was allowed to bypass the flat sorter rotation for several months
      because she was pregnant. ID at 20. He also found that the appellant failed to
      support his assertion that two other employees worked on only one station of the
      flat sorter. ID at 20. In any event, as noted, the agency established that each
      station on the machine required that the employee move the full trays of mail
      weighing in excess of 20 pounds.      ID at 19.   Additionally, the administrative
      judge found that, while the appellant showed that one employee was permitted to
      sit for some intervals and another was allowed for several months to do the job
while he was seated, the appellant failed to show that the employees were similar
to the appellant in that they could not lift the mail trays while seated. ID at 20.
Further, the administrative judge found that, regarding the sixth employee whom
the appellant identifies, the appellant failed to show that he was comparable
because the appellant failed to address the employee’s limitations, modifications,
assignments, duties, or other factors.        ID at 21.      We thus find that the
administrative judge properly found that the appellant failed to show that agency
discriminated against him based on disparate treatment. 5

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:




5
  The agency submitted into the record on petition for review a letter stating that the
appellant has filed a complaint in the U.S. District Court making claims substantially
similar to those asserted in his Board appeal. PFR File, Tab 10. The Assistant U.S.
Attorney handling the appellant’s court complaint is seeking a stay of that action until
the Board issues a final decision on the appellant’s petition for review. Id.
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                      ______________________________
                                    William D. Spencer
                                    Clerk of the Board
Washington, D.C.
