0320150067
02-03-2016
Chara S.,1 Petitioner, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chara S.,1
Petitioner,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 0320150067
MSPB No. CB7121140018V1
DECISION
On May 19, 2015, 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., and 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 findings.
BACKGROUND
Petitioner, a Staff Assistant, GS-9, was removed from her position on charges of failure to maintain a regular work schedule and failure to follow instructions. Petitioner filed a grievance and the matter went to arbitration. The arbitrator sustained Petitioner's removal for misconduct. The arbitrator explained that, even if he excluded the Petitioner's Family Medical Leave Act and Office of Workers' Compensation Program leave, the Petitioner still was absent from work for a significant and unreasonable amount of time with a total of 1,800 hours over a two year period, which amply supported the charge.
The Petitioner sought review of the arbitrator's decision from the MSPB. The MSPB Board granted the Petitioner's request for review and found that the arbitrator failed to employ the proper legal framework when he analyzed the Petitioner's failure to accommodate disability discrimination claims. The Board also found the arbitrator made an error in civil service law in his penalty analysis. In her "Statement of Grounds on Which Review was Requested" and "Grounds Requiring Reversal of Arbitrator's Decision," the Petitioner identified 16 separate grounds, which were condensed and summarized as follows: (1) the removal was in retaliation for equal employment opportunity (EEO) activity; (2) the Agency improperly denied her request for a reasonable accommodation; (3) the notice of proposed removal was defective because it did not identify the nature of the second charge, the arbitrator used an improper construction of that charge, and the arbitrator committed harmful error in his construction of that charge; (4) the arbitrator improperly evaluated the Petitioner's disability discrimination claim and erroneously ruled that the reasonable accommodation issue was not properly before him; (5) the Agency violated the Petitioner's due process rights because it removed her based on her performance, which was not one of the stated grounds for removal; (6) the arbitrator improperly upheld the removal based on an Agency official's declaration that was submitted one month after the record was closed; and (7) the Agency failed to recognize her medical conditions as a mitigating factor in the penalty analysis.
The Agency, in its response to the request for review, asserted, among other things, that: (1) the Petitioner was precluded from asserting retaliation as an affirmative defense because it was raised for the first time in her request for review; (2) the arbitrator correctly determined that she was not disabled; (3) the arbitrator correctly concluded that she failed to cooperate and to provide sufficient medical documentation to support her request for a reasonable accommodation; (4) the Petitioner understood and responded to the failure to follow instructions charge; and (5) the Petitioner was provided notice that her performance was at issue.
The Board declined to hear Petitioner's claim of retaliation for engaging in protected EEO activity because this issue was not raised before the arbitrator.2 The Board deferred to the arbitrator's decision to sustain both charges.
The Board found, however, that the arbitrator erred by not applying the proper analysis with regard to the Petitioner's claim she was denied a reasonable accommodation. While the Board ultimately agreed with the arbitrator's finding that Petitioner did not establish that she was denied a reasonable accommodation when her request for up to two days per week of telework was denied, the Board found that the arbitrator did not analyze the claim properly. The Board noted that Petitioner's doctor indicated that her medical conditions (migraine headaches, asthma, allergies and acid reflux) at times impaired her capacity for mental concentration. The Board determined that even though Petitioner's impairment was episodic, she had a disability that substantially limited a major life activity. The Board next addressed whether Petitioner was a qualified individual with a disability, the Board found that the Petitioner did not provide any persuasive evidence that she could perform the essential functions of her position with or without an accommodation, and her supervisor indicated that she could not perform her essential functions remotely. Additionally, with regard to her request for two days of telework, the Agency's doctor consulted with Petitioner's doctor and concluded that there was no apparent medical basis for teleworking two days per week. The Board found that Petitioner provided no persuasive evidence or argument to show that the Agency's characterization of her duties was erroneous or that her supervisor improperly concluded that she could not perform her essential functions remotely. Accordingly, the Board found that Petitioner failed to prove that the Agency improperly denied her request to telework as a reasonable accommodation.
Petitioner also argued that the Agency improperly denied her request for a flexible work schedule and that the Agency's decision to allow her to report by 9:30 a.m., as a result of her third accommodation request "was no accommodation at all since she could already start at 9:30 a.m., due to a flexitour schedule. The Board indicated that it could not discern if she raised this issue during the negotiated grievance procedure, nevertheless, the Board found that Petitioner was not persuasive in showing that the Agency improperly denied her such an accommodation.
The Board indicated that, on May 2, 2012, Petitioner requested an accommodation to address medical conditions. On June 5, 2012, the Human Resources Specialist indicated that she and Petitioner discussed a flexible work schedule. A subsequent email from the Human Resources Specialist to Petitioner stated that she "will have to get back to [Petitioner] on the core hours [Petitioner] could work;" and the Agency granted Petitioner's accommodation request for a flexible schedule, so that Petitioner could start as late as 9:30 a.m., and as early as 7:30 a.m., which would allow her to take her prescribed medication as needed.
Further, the Board found that while it was true that the Agency had a responsibility to participate in the interactive process, Petitioner also had a duty to explain what she needed. The Board found that in this instance, it appeared that Petitioner did not clearly communicate with the Human Resources Specialist that she wanted to be able to arrive at work after 9:30 a.m. The medical evidence that she provided to the Agency shed no light on this issue. Notably, her doctor's notes stated that she should be permitted to come in "late," but did not explain what "late" meant. Additionally, the record showed that Petitioner's testimony about the nature of her accommodation request was confusing. There was no evidence that, between the Agency's decision, on June 18, 2012, to grant her an accommodation of a flexible work schedule, and July 2, 2012, when she was placed on leave following the issuance of the notice of proposed removal, she ever communicated to the Human Resources Specialist that the approved accommodation was not what she was seeking.
To the contrary, the record reflected only that Petitioner raised this issue in her response to the notice of proposed removal. Given the confusing nature of her testimony and the lack of supporting documentation in the record, the Board could not discern whether Petitioner communicated or the Agency understood that her request for a flexible schedule was a request to come to work after 9:30 a.m. Based on the evidence, the Board determined that Petitioner did not demonstrate that she was subjected to disability discrimination as the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the Petitioner was removed for failure to maintain a regular work schedule and failure to follow instructions.
With respect to Petitioner's claim that she was denied a reasonable accommodation, the Board found that the Agency provided her with an effective accommodation albeit not the accommodation of her choice. Regarding her request for telework, the Board found that the Petitioner did not provide any medical documentation that supported her request for two days of telework and management testified that she could not perform the essential functions of her duties while teleworking.
Petitioner then filed the instant petition. Petitioner contends, among other things, that the Board erred in finding that she was not subjected to discrimination based on her disability. The Board also erred, she maintained, in finding that her request for two days of telework was not supported by the record and that her request for a flexible work schedule was granted. Petitioner also alleges that the Agency did not engage in the interactive process and that the HR person assigned to her was not familiar with the flexible work schedule system.
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). When an individual's disability or need for reasonable accommodation is not obvious, and the individual fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915,002, Question 6 (rev. Oct. 17, 2002).
With regard to Petitioner's disability accommodation claim, we agree with the Board that the Agency provided her with an effective accommodation by offering her a flexi-tour schedule. Petitioner should note that while the Rehabilitation Act mandates that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002).
Further, we agree with the Board that the Agency participated in the interactive process as the Agency made decisions based on the information provided by the Petitioner's doctor, management, Human Resources and Petitioner's own testimony. In this instance, we agree that the record indicates that Petitioner was not clear in communicating her needs and the Human Resources specialist assigned to Petitioner's case was not aware of the flexi-tour parameters but provided the Petitioner with an effective accommodation notwithstanding.
With regard to Petitioner's request for two days of telework, the record supports its denial as the medical documentation that she provided did not indicate that she needed this accommodation. Moreover, the record indicated that Petitioner could not perform the essential functions of her job while teleworking. Finally, we also agree that she was not subjected to discrimination based on her disability with respect to her removal. Even if we assume arguendo that she established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Petitioner did not establish pretext.
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:
______________________________ Cden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/3/16________________
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 The Commission like the MSPB will not entertain the Petitioner's reprisal claim as this issue was not previously raised during arbitration.
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