0320150023
03-01-2016
Berenice R.,1 Petitioner, v. Scot L. Beckenbaugh, Acting Director, Federal Mediation and Conciliation Service, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Berenice R.,1
Petitioner,
v.
Scot L. Beckenbaugh,
Acting Director,
Federal Mediation and Conciliation Service,
Agency.
Petition No. 0320150023
MSPB No. FMCS11003
DECISION
On December 8, 2014, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons that follow, we CONCUR with the MSPB's decision that Petitioner did not demonstrate that she was subjected to discrimination, reprisal, or that she was denied a reasonable accommodation.
BACKGROUND
Petitioner worked as a Human Resources Specialist, GS-13 at the Agency's facility in Washington, D.C. Petitioner alleged that the Agency discriminated against her on the bases of disability (physical and mental), race (Black), color (black), age (54) and reprisal for prior protected EEO activity when she was removed from her position, effective October 26, 2012, based on her medical inability to perform the duties of her position. Petitioner also alleged that she was constructively suspended. Prior to her removal, Petitioner had not reported to work since January 25, 2012, resulting in her placement in an absent without leave ("AWOL") status beginning March 28, 2012. Petitioner alleged that she was unable to report to work due to a medical condition that prevented her from traveling, speaking in a normal classroom-level training voice, and dealing with work-related stress. By letter dated July 9, 2012, the Agency proposed to remove Petitioner from her position for being medically unable to perform her duties, and subsequently removed her on October 26, 2012. Petitioner asserted that that the Agency denied her request for a reasonable accommodation when she asked for a period of six to ten months, to either provide her with a voice-assistive device or allow her to utilize her VA provided voice-assistive device, and to work with Agency officials on an alternative work schedule. Petitioner also noted that her last rating was "Outstanding."
In her appeal, Petitioner alleged that the Agency, in taking the removal action, discriminated against her based on her physical and mental disabilities, race, and age. She also alleged that the Agency committed harmful error in taking the removal action and violated her right to privacy. Finally, Petitioner alleged that the Agency's action was in retaliation for her having engaged in protected whistleblowing activity and helping other employees with EEO matters.
A decision issued by a MSPB Administrative Judge initially sustained the Agency's removal action. Upon appeal to the full Board, the Board found that Petitioner's affirmative defenses were not adequately addressed; therefore, Petitioner's appeal was remanded to the Administrative Judge (AJ) to address Petitioner's affirmative defenses.
On July 2, 2014, the AJ issued a second initial decision denying Petitioner's affirmative defenses. The AJ found that Petitioner did not establish that her removal was due to discrimination based on disability, race, color, or age. The AJ also found that, although Petitioner established that she engaged in a protected activity by testifying and assisting other employees with EEO and Office of Special Counsel complaints, she failed to establish that any of the Agency officials involved in her removal proceedings were aware of her protected activity. The AJ affirmed the Agency's action, finding that the evidence failed to establish that retaliation for her whistleblowing activities was a contributing factor in taking the adverse action. The AJ then readopted the findings in the prior initial decision sustaining her removal and denying her affirmative defenses.
Thereafter, Petitioner sought review by the full Board. The Board dismissed Petitioner's appeal as untimely, which made the remanded initial decision the final decision.
Petitioner then filed the instant petition. Petitioner argues that the AJ erred in finding that the Agency did not deny her a reasonable accommodation. Petitioner maintains that the Agency did not have a written reasonable accommodation policy and did not participate in the interactive process. Petitioner reiterates that after she participated in protected practices, all leave requests submitted to her supervisor were denied. She maintains that she repeatedly asked the Agency to allow her to utilize her Department of Veterans Affairs' voice-assistive device and return to work but she was refused and then discharged. Further, she contends that contrary to what was stated in the Remand Decision, management was aware that she had engaged in whistle blower activity. Petitioner maintains that the Deputy Director's testimony was not credible as the Director was intricately involved with the IG investigations. Finally, Petitioner contends that the retaliation she was subjected to led to a hostile work environment.
ANALYSIS AND FINDINGS
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).
Reasonable Accommodation
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � I630.2(n)(3).
In Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002), the Commission clarified its position regarding the standard for assessing liability for reassignment. Specifically, the Commission determined that, with respect to reassignment, the burden is on an employee to establish by a preponderance of the evidence that there were vacancies into which they could have been reassigned during the relevant time period. Id. An employee can establish this by producing evidence of particular vacancies, or, in the alternative, they can show that: (1) they were qualified to perform a job or jobs which existed at the Agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. Id.
Assuming Petitioner is an individual with a disability, we find that she did not demonstrate that she was denied a reasonable accommodation as she was unable to perform the essential functions of her position. Petitioner had already been out of the office for almost a year and it was projected that she would be out another 6 to 10 months before she could even consider going back to work. The essential functions of her position required at least some training, travel and face-to-face interaction, and the Agency was not required to modify or eliminate duties that were an essential function of the position. After it was determined that Petitioner could not return to her office, Human Resources made efforts to determine whether she could be reassigned to a vacant, fully-funded qualifying position but no such positions were found.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
We agree with the MSPB that Petitioner did not demonstrate that she was subjected to race, color, or age discrimination or reprisal.2 We find the record clearly shows that even if we assume arguendo that Petitioner established a prima facie case as to all of her alleged bases, she did not show that any similarly situated individual not of her protected bases where treated more favorably. Moreover, the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., that Petitioner's position required her to be in the office, training employees, and to interact with her peers and as she was unable to do so she was removed. We find that Petitioner did not present any evidence which showed that the Agency's reasons were pretext for discrimination, or that discriminatory animus was involved in this case as it was her own medical documentation which indicated that she could not perform the essential functions of her position.
We also find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Petitioner's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Petitioner failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
With respect to Petitioner's contentions on appeal, while it is clear that Petitioner disagrees with the AJ's findings she has presented no evidence which indicates that an error was made with regard to the law.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
__3/1/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 With respect to Petitioner's allegation of retaliation, we only focused on whether she established that she was discriminated against for engaging in protected EEO activity, as the Whistleblower Protection statutes are not within our purview.
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