03A10087
03-08-2002
Edwin M. Silva, Petitioner, v. Yolanda T. Wheat, Chairman, National Credit Union Administration, Agency.
Edwin M. Silva v. National Credit Union Administration
03A10087
03-08-02
.
Edwin M. Silva,
Petitioner,
v.
Yolanda T. Wheat,
Chairman,
National Credit Union Administration,
Agency.
Petition No. 03A10087
MSPB No. SF-0752-01-0133-I-1
DECISION
INTRODUCTION
On July 5, 2001, 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 or Board)
concerning his 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.
ISSUE PRESENTED
The issue presented herein is whether the Commission concurs with
the MSPB's determination that Petitioner failed to establish, by a
preponderance of the evidence, that the agency discriminated against him
on the bases of disability (Attention Deficit Disorder or ADD) and/or
reprisal (prior EEO activity) when it removed him from his position
effective November 17, 2000.
BACKGROUND
Petitioner was an Auditor, GS-11-03, at the agency's Region VI
Offices. Petitioner's Supervisory Examiner (SE) gave him a Notice
of �Unacceptable Performance� on March 15, 2000, and placed him on a
Performance Improvement Plan (PIP). Petitioner was given ninety (90)
days to improve his performance. On September 19, 2000, the Associate
Regional Director issued a proposal to remove petitioner for failure
to improve his performance during the ninety-day period. Accordingly,
the agency removed petitioner from his position for �Unacceptable
Performance� effective November 17, 2000.
On December 15, 2000, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the MSPB Administrative Judge (MSPB AJ) reversed the
agency's action. In the PIP letter, the SE noted that petitioner had five
specific examinations which were found to be unacceptable, however, at
the hearing, he admitted that only three were in fact �unacceptable.�<1>
The MSPB AJ determined that of the fifteen reports the SE reviewed,
only two were originally assessed as less than minimally acceptable.
The MSPB AJ noted that petitioner had completed five evaluation reports
after receiving the PIP. The SE rated petitioner as unacceptable for the
entire period because one of the five reports did not meet acceptable
standards. Finding that the agency failed to show that petitioner's
performance was unacceptable, the MSPB AJ concluded that the agency's
action could not be sustained.
Although the MSPB AJ determined that the agency's action was improper,
he did not find that the action was based on discrimination against
petitioner's disability or in reprisal for his prior EEO activity. As to
the claim of unlawful retaliation, the MSPB AJ noted that the removal
action was proposed shortly after a recent development in his prior
EEO complaints. He also found, however, that the record indicates that
petitioner had performance difficulties before he filed EEO complaints
and had been on two previous PIPs during the course of his employment.
Accordingly, the MSPB AJ determined that petitioner failed to prove that
the agency's action was in reprisal for his prior EEO activity.
As to petitioner's claim of disability discrimination, the MSPB AJ
determined that petitioner failed to show that he was an individual
with a disability covered by the Rehabilitation Act. In particular,
the MSPB AJ gave more weight to the agency's physician's detailed report
over the sparse medical reports provided by petitioner's physician.<2>
Furthermore, the MSPB AJ noted, assuming petitioner established that he
is an individual with a disability, that he failed to show any causal
connection between the agency's action and his assumed disability.
It is from this decision petitioner petitions for review. In his
petition, he argues that the MSPB AJ, in addition to reversing the
agency's action, should have found that the action was discriminatory
based on his disability and in reprisal for his prior EEO activity.
Petitioner contends that the PIP was an act of reprisal. Petitioner
submitted his responses to interrogatories which he feels will
establish his claim of unlawful retaliation. As to his claim of
disability discrimination, petitioner argues that the agency has gone
to great lengths to show that he does not suffer from ADD. Petitioner
contends that there is a causal connection between his condition and
his work performance. In particular, he states that it was difficult
to concentrate in completing his assignments.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). Petitioner alleged a claim of disparate
treatment based upon his disability and reprisal when he was removed.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by petitioner's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, petitioner
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, petitioner must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Petitioner 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. Social Security 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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a petitioner may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). The burden of production then shifts to the
agency to articulate a legitimate, non-discriminatory reason for the
adverse employment action. In order to satisfy his burden of proof,
petitioner must then demonstrate by a preponderance of the evidence that
the agency's proffered reason is a pretext for disability discrimination.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that petitioner established his prima facie cases
of disability and reprisal discrimination, we find that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
The record indicates that petitioner was placed on two previous PIPs
during the course of his employment. Based on his performance during
the most recent PIP, the agency removed petitioner from his position.
Upon review, the Commission finds that the agency provided legitimate,
nondiscriminatory reasons for its action.
The burden now turns to petitioner to show that the agency's reasoning
was pretext for discrimination. In addition to finding that the
agency failed to sustain its charge, petitioner argued that the MSPB
AJ should have also found that the agency's action was discriminatory.
The Commission notes that although the MSPB AJ determined that the agency
failed to meet its burden regarding the removal action, it does not mean
that discrimination was the agency's motive. Upon review of the record,
we find that petitioner failed to present any evidence that the agency's
actions were in retaliation for his prior EEO activity or were motivated
by discriminatory animus toward petitioner's disability.
Reasonable Accommodation
The Commission notes that petitioner alleged that the agency failed to
provide him with a reasonable accommodation which resulted in the PIP
action and subsequent removal. Under the Commission's regulations,
an agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with
a disability unless the agency can show that accommodation would cause
an undue hardship. 29 C.F.R. �1630.9. The Commission also notes that
an employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997). As a threshold matter in a
case of disability discrimination under a failure to accommodate theory,
the petitioner must demonstrate that he is a qualified "individual with
a disability."
Initially, we note that this case is being decided based upon the evidence
before us in the petition for review of the MSPB decision. Upon review,
the Commission finds that petitioner has not established that he is an
individual with a disability. We find that he has established that he
has ADD, however, he failed to provide evidence to demonstrate that he
is substantially limited in any major life activity. His own physician
(Physician 1) noted that petitioner has been stable on his medication but
does not provide details of possible limitations such as his ability to
concentrate. See Physician 1's Note dated June 26, 1995. The physician
merely states that his condition �may also be affecting his ability to
concentrate� without additional explanation. Id. (emphasis added).
Furthermore, the record contains a note from another of petitioner's
physicians (Physician 2) stating that petitioner was not under any
limitations �as long as he is treated with medication.� Physician 2's
Medical Assessment dated July 19, 1992. Based upon the evidence presented
before us in this case, we find that petitioner has not demonstrated that
he has a disability which substantially limits a major life activity.<3>
We also note that, in the case at hand, petitioner has not shown that
he has a record of such a disability or that he was regarded as having
such a disability.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision of
the MSPB finding no discrimination and to find that the final 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 (W0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__03-08-02________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), the agency, and the MSPB on:
__________________
Date
______________________________
1 The record indicates that the three instances were initially evaluated
in March 1999, June 1999, and January 2000, of which only two were
unacceptable at their initial review.
2 The record also contains a note from Petitioner's physician indicating
that petitioner �has been quite stable on his medication.� See MSPB File,
Tab 6.
3 The Commission notes that petitioner has three EEO complaints pending
before an EEOC Administrative Judge pertaining to his requests for a
reasonable accommodation. See Silva v. National Credit Union Admin.,
EEOC Request No. 05971113 (July 31, 2000); Silva v. National Credit Union
Admin., EEOC Appeal No. 01972528 (November 1, 2000); and Silva v. National
Credit Union Admin., EEOC Appeal No. 01A10552 (September 25, 2001).