0320150082
02-03-2016
Cherilyn C.,1 Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cherilyn C.,1
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320150082
MSPB No. DC-0432-13-0347-I-2
DECISION
On July 8, 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 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 Secretary at the Agency's facility in Washington, D.C. On August 14, 2012, Petitioner was placed on a 90-day performance improvement plan (PIP) for not meeting the fully successful level for Critical Element 1, Administrative Support, and Critical Element 2, Planning and Organizing Work, of her Secretary position. The Agency rated Petitioner under a 3-tiered performance appraisal system consisting of the following three element ratings: (1) exceeds; (2) fully successful; and (3) does not meet.
After the Agency determined that Petitioner's performance had not improved to the fully successful level in Critical Elements 1 and 2, on November 16, 2012, the Agency issued a notice of proposed removal. At the same time, the Agency placed Petitioner on administrative leave pending a decision on her proposed removal. Effective January 26, 2013, the Agency removed Petitioner based on her unacceptable performance in Critical Elements 1 and 2 of her position. Petitioner raised the affirmative defense of disability discrimination based upon the Agency's alleged failure to accommodate her disabling conditions of sleep apnea, tendonitis, and diabetes.2
An MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner failed to prove her disability discrimination claim based on a failure to accommodate the conditions of diabetes, sleep apnea, and tendonitis. Specifically, the AJ found that Petitioner failed to provide evidence that she had diabetes, that diabetes caused her unacceptable performance, or that any accommodation was necessary as a result of her diabetes. The AJ also found that, despite Petitioner's medical evidence which showed that she suffered from sleep apnea, Petitioner did not provide any evidence that she sought an accommodation for the condition or that she identified what accommodations would have been required. The AJ noted that the medical evidence indicated that Petitioner's sleep apnea was fully treatable with the use of a "continuous positive airway pressure" or "CPAP machine." Additionally, the AJ found that, although Petitioner submitted a formal request for a reasonable accommodation for tendonitis, her condition was temporary and would not qualify her as being disabled. The AJ further found that Petitioner failed to establish how her tendonitis affected her ability to achieve a fully successful rating in both Critical Elements 1 and 2 or what accommodations would be necessary.
Petitioner thereafter sought review by the full Board. In her petition for review, Petitioner reasserted that she is disabled. She noted that she was originally hired by the Agency under Schedule A hiring authority for people with disabilities. She provided a Schedule A certification. She further alleged that her coworker told her that her disability was documented by the Agency and that he influenced her former supervisor into placing her on a PIP. Petitioner maintained that she told her coworker, her former supervisor, and her current supervisor that she had a disability and wanted an accommodation. She also alleged that the Agency representative told her that the AJ could not find her "Files" and "Disability Documents."
As evidence of her disabilities, Petitioner submitted a certificate of service from her former counselor at the Maryland State Department of Education, Division of Rehabilitation Services, stating that she received services from the organization based on her learning disability and back disorder. She also attached two articles on learning disabilities. The Board found that Petitioner failed to establish her disability discrimination claim because she did not provide evidence that the Agency knew she had a learning disability or back disorder, that she requested a reasonable accommodation for either condition, or that her removal was based on either condition. Although Petitioner submitted a Standard Form (SF) 50 reflecting that she was hired under Schedule A hiring authority, it was noted that the SF-50 was issued by a different agency. She did not allege that she sent the Agency a copy of the letter from the Maryland State Department of Education, Division of Rehabilitation Services certifying her eligibility for Schedule A hiring. Finally, Petitioner did not assert in her EEO complaint or in her appeal before the MSPB that the Agency failed to accommodate her learning disability or back disorder, and she did not show that this new argument was based on any material or previously unavailable evidence. For these reasons, the Board found that the AJ properly denied Petitioner's claim of disability discrimination based on a failure to accommodate.
Petitioner then filed the instant petition. On appeal, Petitioner provided a letter from a former counselor who indicated that Petitioner qualified for a Maryland State Department of Education/Division of Rehabilitation Services based on her learning disability and her back disorder.
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).
In the instant case, we find that even if we assume arguendo that Petitioner is a qualified individual with a disability, we find that the Agency did not deny her a disability accommodation based on the disabilities of sleep apnea, tendonitis, and diabetes. The record did not establish that Petitioner requested an accommodation for these conditions. Likewise, we find no evidence of a nexus between these conditions and her inability to perform the essential functions of her position, i.e., Petitioner did not establish how her medical conditions affected her ability to achieve a fully successful rating in both Critical Elements 1 and 2 or what accommodations would be necessary. Further, with respect to the medical documentation that she provided regarding her learning disability and back problem, there is again no persuasive evidence she requested a reasonable accommodation for these conditions that could help her perform the essential duties of her position or a vacant funded position to which she could be reassigned. Accordingly, we agree that Petitioner did not show that she was denied a reasonable accommodation.
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 MHadden'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 AJ confirmed that, based on discussions during a conference call, Petitioner was not alleging discrimination based on age, race, color, or reprisal for protected activity.
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