03A30050
07-18-2003
Irma J. Morrison, Petitioner, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Irma J. Morrison v. Department of the Navy
03A30050
July 18, 2003
.
Irma J. Morrison,
Petitioner,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Petition No. 03A30050
MSPB No. AT-0752-01-0151-I-1
DECISION
On September 23, 2002, 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. Petitioner, a Motor Vehicle Operator at an agency's
Navy Public Works Center in Pensacola, Florida facility, alleged that
she was discriminated against on the bases of race (African-American),
sex (female), disability (physical limitations),<1> and reprisal (prior
EEO activity)<2> when she was removed from her position effective October
6, 2000.
The record indicates that petitioner's primary duties included driving
a runway sweeper and a street sweeper. Since 1992, the agency has
provided petitioner with a number of accommodations due to her physical
restrictions. In 1999, petitioner informed her First Line Supervisor
that she could not work because she was taking medication. She showed
him the prescription bottle which stated that one should not operate heavy
machinery while on the medication. The First Line Supervisor informed her
Second Line Supervisor of the situation. Petitioner's physician wrote
the Second Line Supervisor a letter dated December 9, 1999, in which
he stated "I question [petitioner's] ability to perform heavy type work
and particularly to operate heavy vehicles such as heavy trucks, etc."
On February 24, 2000, the agency received a second note from petitioner's
physician which stated that she may drive heavy vehicles as long as she
is not taking medication which would interfere with her ability to drive.
Petitioner was moved into a make-work position in the Tool Room until
the agency could find a solution. Based on the physician's notes, the
agency determined that petitioner could no longer perform the duties
of her position. Therefore, petitioner was separated from the rolls of
the agency.
On November 8, 2000, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge (MSPB AJ) found that petitioner
failed to establish her claims of discrimination.
As to her claim of disability discrimination, the MSPB AJ determined
that petitioner's conditions and her use of medication significantly
interfered with her ability to perform the essential duties on a
regular and consistent basis. The record indicated that petitioner was
often unable to report to work and, when she appeared, she frequently
requested light duty.<3> The agency could no longer continue to provide
petitioner with light duty in such a manner. The MSPB AJ noted that the
agency canvassed for another position but could not find one for which
she was qualified.<4> Since petitioner could not perform her position
and there was no vacant position to which she could be reassigned, the
agency removed her. The MSPB AJ determined that the removal action did
not violate the Rehabilitation Act.
As to petitioner's claim of race and sex based discrimination, the MSPB
AJ found that petitioner failed to establish her prima facie cases of
discrimination in that proffered comparators were not similarly situated.
As to retaliation, the MSPB AJ found that the agency articulated
a legitimate, nondiscriminatory reason for its action, namely that
petitioner was unable to perform her duties. Further, the MSPB AJ
determined that petitioner failed to show that the agency's reason was
pretext for discrimination.
Petitioner then petitioned the Board for review. The Board denied
her petition. A Member of the Board (Member) issued a separate
opinion supporting the denial. The Member clarified that the agency
could not rely on petitioner's absences to support the removal action.
The Member did find that the agency's removal action was appropriate
based on petitioner's inability to perform her duties. Therefore,
the Member found that the Initial Decision was correct.
Petitioner petitioned the Commission following the Final Order without
comment.
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).
For the purposes of analysis, we assume petitioner is an individual with
a disability. 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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2003
__________________
Date
1 Petitioner has had a back problem since 1990, knee replacements
since 1975, and monocular vision since 1983. Petitioner's conditions
prohibit her from prolonged lifting, standing, stooping, or climbing.
Further, when petitioner uses medication for pain and muscle spasms,
she is prohibited from operating motor vehicles.
2 The record indicates that petitioner has filed prior EEO complaints
alleging discrimination in violation of Title VII and the Rehabilitation
Act.
3 The record indicates that petitioner would appear at work stating
that she had taken medication and, therefore, could not operate heavy
machinery such as the sweeper. Petitioner's supervisor would have to pull
a co-worker off of his duty and have the co-worker do petitioner's job.
Petitioner would fill in for the co-worker. The Second Line Supervisor
averred that the co-worker's duties would not be completed and that the
co-worker would have to put in overtime to catch up on the back log.
4 The Second Line Supervisor testified that he found two vacant positions.
However, petitioner did not have the computer, word processing, and typing
skills necessary for one position. The other, a Custodian position,
was not within petitioner's physical restrictions.