0320090023
02-12-2009
Jacqueline Lee, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jacqueline Lee,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090023
MSPB No. DA-0752-08-0155-I-1
DECISION
On December 8, 2008, 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) dated
November 7, 2008, 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.
Petitioner alleged that she was discriminated against on the basis
of disability (neck and back) when she was removed effective December
14, 2007.
Petitioner, a customer services supervisor, was removed, in relevant
part, for improper conduct by violating her medical restrictions.
The record reflects that she was injured at work on January 31, 2005,
and stopped working. After her injury, petitioner signed an agency
form acknowledging that she must immediately return to work if she was
medically able to do so, including to limited duty work which would
be compatible with work restrictions caused by her injury. The form
advised petitioner that she must notify her physician that the agency
is willing to provide such limited duty work, and advise the physician
to specify medical limitations.
Petitioner submitted medical documentation to the agency dated September
30, 2005, limiting her to no standing, no kneeling and squatting,
no bending and stooping, and no pushing and pulling. According to
petitioner's supervisor, petitioner was offered a limited duty position
within these restrictions. Petitioner responded that she could not work.
Thereafter, approximately every month or two, petitioner submitted
workers' compensation status reports by her physician indicating that
she could not work, resulting in the payment of wage loss compensation.
On March 16, 2006, an agency Office of Inspector General (OIG) special
agent, conducting a fraud investigation, videotaped petitioner gardening
in her yard. She was seen by the special agent gardening for nearly
three hours, and was working in the yard when the special agent arrived
and left. The special agent witnessed petitioner raking leaves from
under bushes in flower beds, pulling weeds, bending, squatting, twisting,
kneeling, spreading a substance around the entire yard, and walking around
the front, side, and back of the 2.2 acre property. The special agent
stated that at no time during his surveillance did petitioner exhibit
any signs of pain or discomfort or physical impairment like limping,
and she was not using a cane.
The special agent showed the videotape to petitioner's supervisor,
who said that if petitioner could do yard work, she could work as
a supervisor. On March 19, 2007, the special agent showed some of
the videotape to petitioner's physician of record, a pain specialist.
The special agent described the physician's reaction as follows.
The physician was shocked by what he saw, saying that when he last saw
petitioner on March 6, 2007, she did not portray herself like what he
saw on the video. The physician explained that petitioner was acting
feeble as if in great pain during that office visit, complaining of
right shoulder pain and numbness in the arm, and her raking and working
in the yard was inconsistent with this. The physician opined that if
petitioner could work in the yard, she could work as a supervisor, and
he completed and signed a medical form on March 19, 2007, releasing her
to work with no restrictions. Petitioner returned to work in March 2007.
Petitioner testified that she gardened as part of physical therapy to
allow her to return to work, and was heavily medicated and wearing an
electronic stimulator while doing so.
Following the hearing on petitioner's appeal, an MSPB Administrative
Judge (AJ) issued an initial decision upholding the removal and finding
no discrimination. In sustaining the charge of misconduct of violating
her medical restrictions, the AJ noted that two weeks before the video,
petitioner resisted walking without a cane despite being encouraged to
do so, but gardened without a cane, discussed the physician's reaction
to the video including the release of petitioner to return to work,
petitioner's return to work, and the supervisor's rationale that if
petitioner could garden, she could work as a supervisor, something the AJ
found particularly persuasive. In finding no disability discrimination,
the AJ found petitioner did not show the agency's action was based
on petitioner's claimed disability, or that it was a pretext for
discrimination. Petitioner filed a petition to review the initial
decision with the Board, which was denied.
On petition, petitioner argues that she is an individual with a
disability, and was not reasonably accommodated when she retuned to
work.1 Until the videotape, petitioner regularly submitted medical
documentation claiming she could do no work, despite being instructed
that she should return to duty even if she could only work in a
limited capacity. Petitioner has not shown she could not return to
work because the agency would not give her work within her restrictions.
Her supervisor testified that he could do so. 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).
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 (W0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 12, 2009
__________________
Date
1 For purposes of analysis only, we assume without finding that petitioner
is an individual with a disability.
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0320090023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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