0320140030
02-19-2016
Chanelle B.,1 Petitioner, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chanelle B.,1
Petitioner,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 0320140030
MSPB No. DC-0752-11-0872-I-1
DECISION
On March 4, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons stated below, the Commission CONCURS with the MSPB's finding of no discrimination.
BACKGROUND
Petitioner worked as a Program Manager, GS-14 at the Agency's U.S. Army Corps of Engineers (USACE), Headquarters facility in Washington, D.C. Petitioner alleged that the Agency subjected her to a hostile environment, failed to accommodate her disability, and discriminated against her on the bases of disability (physical and mental) and reprisal for prior protected EEO activity when, effective July 12, 2011, she was removed from her position for physical inability to perform the duties of her position and maintain a regular work schedule. After teleworking for more than a year, Petitioner was notified by her supervisor (S1) that she needed to physically report to the office. By letter dated July 30, 2010, S1 informed Petitioner that she would no longer be allowed to telework full-time because the essential functions of her position were not conducive to teleworking and in fact required that she be in the office. The Agency described Petitioner's position as one that operated in a collaborative and interactive work environment with various inter-and-intra-organizational elements, where disasters and changes in legislation, fund allocation, and priority required action. Petitioner's position also required that she travel to the different regions on a rotating basis, because it was important for them to build and strengthen relationships. In short, her position required a substantial amount of collaboration and teamwork with coworkers, Agency officials and outside parties.
Petitioner was instructed to report to her duty station by August 30, 2010, or submit current medical documentation from certified health care professionals supporting her need for telework due to her disability. She requested that she be allowed to continue teleworking for five days. S1 instructed Petitioner to submit medical documentation to support her request. S1 indicated however, that full-time teleworking "was not a reasonable accommodation due to the fact that the accommodation would require removal of one or more essential job functions and would cause an undue hardship for the Agency to carry out its mission." Finally, S1 informed Petitioner that if she failed to report on November 22, 2010, she would be charged with absence without leave (AWOL) and face possible disciplinary action. Instead of returning to her duty station, in November 2010, Petitioner requested that she be able to use her accrued annual leave and sick leave. S1 approved Petitioner's leave requests for ongoing medical therapy, treatments, testing, and recuperation. Notwithstanding, S1 notified Petitioner that she was no longer eligible for participation in the Voluntary Leave Transfer Program because she had not exhausted her own leave. Thereafter, S1 noted that Petitioner had not worked in a duty status at all in 2011 and had used 237.5 hours of annual leave, 163.5 hours of sick leave, and 375 hours of leave without pay (LWOP) through the pay period ending May 21, 2011. Petitioner had been charged with absence without leave (AWOL) but at some point it had been converted to LWOP or another leave status.
In December 2010, additional medical documentation was provided. Petitioner's physician (Dr. 1) noted that Petitioner suffered from heavy metal poisoning, which affected her mobility and equilibrium and as a result she had fallen numerous times, and she required a wheelchair or cane to move around. Petitioner's physician further noted that Petitioner was undergoing heavy metal chelation therapies, which limited her ability to work away from home. Dr. 1 indicated that Petitioner was currently unable to commute back and forth to work and that it was "difficult to determine" when she would be able to return to the workplace. Dr. 1 recommended that Petitioner be allowed to continue teleworking until her condition improved.
Petitioner also included medical documentation from a second physician (Dr. 2). Dr. 2 who indicated that Petitioner suffered "degrees of depression," and that "it would be in everyone's interest that she continues telecommuting five-days per week." In another letter, Dr. 2 stated that Petitioner "continues to suffer from a myriad of ongoing debilitating and chronic mental and physical symptoms," but had successfully telecommuted full-time over the past 1.5 years, "proving that her physical presence in the workplace is not only unnecessary in the performance of her duties, but also that she is well-capable of effectively and productively telecommuting medically for extended periods of time." Petitioner's chiropractor also supported Petitioner's request to work from home. S1 indicated that Petitioner's documentation was administratively unacceptable because, with the exception of the chiropractor's documentation, the documents merely indicated that Petitioner had an appointment or was under the facility's care. S1 explained the type of medical documentation that would be administratively acceptable and instructed Petitioner to provide documentation within 15 days. Petitioner thereafter provided additional medical documentation that purportedly showed that she was medically incapacitated from performing duties at Headquarters, but was medically capable of performing her duties via telework. It was also noted that Petitioner suffered from gait disturbance, spinal disc degeneration, spinal disc stenosis, chronic lumbago, chronic inflammation, hypertension, and the inability to walk unassisted or propel herself in her wheelchair. A third physician (Dr. 3) noted, that Petitioner was receiving physical therapy three to five times a week and would undergo a reevaluation on March 31, 2011, after which he would reconsider her ability to return to the workplace.
The Agency referred Petitioner's accommodation requests to the Federal Occupation Health Service. The assigned Occupational Medicine Consultant (OMC) reviewed Petitioner's medical documentation and consulted with her medical providers. He advised Agency officials that several of Petitioner's medical conditions greatly limited her mobility and impaired her ability to leave her home to work. The OMC informed the Agency that it was his opinion that Petitioner's medical condition, treatment, and leave usage was unlikely to change in the foreseeable future and thus, she was determined to be incapacitated for duty at her permanent duty location and not qualified for any position that required travel or attendance at her duty station.
Therefore, Petitioner's request to telework five days a week was denied because an accommodation would cause undue hardship and would require removal of one or more of her essential job functions. After it was determined that Petitioner could not return to work Human Resources made efforts to determine whether Petitioner could be reassigned to a vacant, fully-funded qualifying position in which she could telework full-time with no temporary duty (TDY) requirements. The record indicates that no positions were found that allowed Petitioner to telework five-days per week. On June 7, 2011, the Agency maintained that a proposal to remove notice was sent by email, regular mail, and certified mail to Petitioner's address of record. Petitioner, according to the Agency, did not respond to the proposed notice, and she was removed on July 12, 2011.
On July 13, 2011, Petitioner submitted an Application for Immediate Retirement to the Army Benefits Center (ABC). On advise of an ABC employee, Petitioner backdated the application to July 1, 2011, and indicated that her retirement would be effective that same date.
On August 11, 2011, Petitioner filed an appeal with the MSPB in which she contested her July 12, 2011 removal but also alleged that she retired involuntarily on July 1, 2011. The MSPB Administrative Judge (AJ) afforded both parties an opportunity to address the issue of jurisdiction. Based on the parties' submissions, the AJ found that Petitioner had been removed effective July 12, 2011, as recorded on the SF-50 and that the scope of the appeal would be limited to the removal action. Petitioner initially requested a hearing, but withdrew her request the day before the hearing was scheduled.
The AJ issued an initial decision finding that the Agency had proven it charges by preponderant evidence, that Petitioner failed to establish her affirmative defenses, and that her removal promoted the efficiency of the service. The AJ sustained the removal action. On June 6, 2012, Petitioner sought review by the full Board. Petitioner essentially contested all of the AJ's findings and rulings. The Board found that while the medical documentation supported Petitioner's argument that she could perform some of her duties while teleworking, the essential functions of Petitioner's position required at least some 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. The Board therefore concluded that permanent full-time telework would not be a reasonable accommodation. Additionally, the Board found that S1 established that she alone was tasked with all of the duties that Petitioner could not perform which included juggling mandatory meetings and mission execution. The Board, however, determined that the Agency did not prove the charge of excessive absences as Petitioner did not take any sick leave while she was teleworking.
Further, the Board found that Petitioner failed to establish her discrimination claims. The Board found that Petitioner could not perform the essential functions of her position even with a reasonable accommodation. As such, the Board found that Petitioner was not a qualified individual with a disability so her failure to accommodate claim failed. With regard to Petitioner's disparate treatment and retaliation claim, the Board found that the comparators suggested by Petitioner were not similarly-situated to her as they worked for other supervisors and as she presented no other evidence to establish that the Agency discriminated against her based on her disability her claim of disparate treatment failed. The Board also determined that Petitioner did not show that she was subjected to reprisal because while it was undisputed that she filed multiple EEO complaints, S1 was not named as a discriminating official until March 2011. S1 did not learn of Petitioner's EEO activity until after her November 9, 2010 decision to deny Petitioner's full-time telework agreement. And, while her second-line supervisor was aware of Petitioner's prior EEO activity, the decision to deny the telework request was made by S1. The Board also found that Petitioner's removal promoted the efficiency of the service and Petitioner failed to prove her claims of abuse of discretion and bias on the part of the AJ. Finally, the Board declined to address Petitioner's hostile work environment claim because Petitioner did not allege that the alleged hostile work environment was a basis for the Agency's removal action. Petitioner then filed the instant petition.
On appeal, Petitioner contends, among other things, that the instant case should have been an EEO case and that the Agency did inform her of the proper appeal rights. Petitioner maintains that the Board and AJ relied exclusively on the Agency's narration of the facts in this case. Petitioner indicated that there was nothing in her performance appraisal to support the Agency's after the fact argument that she was a poor worker.
Further, Petitioner maintains that, contrary to the Agency's statement, she did respond to the Notice of Proposed Removal. Petitioner notes that she never gave the Agency approval to forward any documentation to her email. Petitioner also maintains that the Agency mischaracterized her duties as one of management when they were not. Finally, contrary to the Agency's position otherwise, her physician found that there was a foreseeable end to her incapacity thus making her eligible to return to her position.
In response, among other things, the Agency argues that the Board properly found that Petitioner did not demonstrate that she was subjected to discrimination. The Agency requests that the Commission concur with the MSPB's findings.
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).
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.
An employee can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Petitioner may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 11384139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
We agree with the MSPB that Petitioner did not demonstrate that she was subjected to discrimination, reprisal, harassment, or was denied a reasonable accommodation. We find the record clearly shows that even if we assume arguendo that Petitioner was a qualified individual with a disability, 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, namely that Petitioner's position required her to be in the office, travel, 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. We find that Petitioner did not demonstrate that discriminatory animus was involved in this case as she was allowed to telework five-days a week for over a year and a half.
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).
Additionally, we find that Petitioner 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 a year and half. The essential functions of her position required at least some 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 the office, Human Resources made efforts to determine whether Petitioner could be reassigned to a vacant, fully-funded qualifying position in which she could telework full-time with no TDY requirements. The record indicates that no positions were found that allowed Petitioner to telework five-days per week. With respect to Petitioner's contentions on appeal, while it is clear that Petitioner disagrees with the Board'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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/19/16________________
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.
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