Job Performance, Medical Problems, Accommodation and Removal Actions
By Susan Smith
Friday, November 16, 2007
A recent appeals court decision affirms the removal of a federal employee for inability to perform the full duties of his position. (Colvell v. Department of the Air Force, C.A.F.C. No. 2007-3245 (nonprecedential), 11/7/07)
Colvell was an Aircraft Mechanic at Hill Air Force Base who was removed for medical disability reasons. He had a knee injury prior to being employed by the Air Force and the injury worsened during his more than 30 years as a mechanic.
Eventually the agency sent him for a fitness for duty exam. The physician issued permanent work restrictions and Colvell was put on indefinite leave while the agency tried to find a position that he could perform under the restrictions. It could not find a suitable position and the agency removed Colvell for physical inability to perform his job duties. (Opinion, pp. 1-2)
Colvell argued that his medical condition had not changed in four years and therefore the agency had to continue to accommodate his condition. Nevertheless, the final agency decision was to remove him. Colvell appealed to the Merit Systems Protection Board. He argued the removal was not justified and amounted to age and disability discrimination. However, the administrative judge found that the agency had proved its case by a preponderance of the evidence and that Colvell was physically unable to perform his job duties. He further found that Colvell failed to prove discrimination. (Opinion p. 2)
Colvell took his appeal to the Federal Circuit, arguing that the agency had exaggerated his medical disability. He pointed out that he was doing the job, he had good evaluations, the reviewing physician had been too severe in his restrictions, and the agency could have accommodated his disability. (p. 3)
The court finds that the MSPB had in fact considered Colvell's job evaluations and the opinion of his supervisor that he was an outstanding worker. The court also pointed to other evidence considered by the AJ, including the fact that for at least two years Colvell had missed every Wednesday so he could stay home and rest his leg. The finding that Colvell could not perform all of his duties was supported by substantial evidence, including Colvell's admission that he could not perform all of the duties. (p. 4)
While the Air Force tolerated Colvell's continuing in his job "despite his inability to perform his full duties, the Air Force was not required to do so indefinitely." (p. 4; citations omitted)
This case demonstrates once again that an agency has recourse when an employee simply cannot perform the functions of the job. If a fitness for duty exam concludes that this is the case, and another position that the employee can perform is not available, then removal is an option.
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