0320150003
02-02-2016
Jaqueline L.,1 Petitioner, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jaqueline L.,1
Petitioner,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 0320150003
MSPB No. SF0752130476I1
DECISION
On October 7, 2014, 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.
BACKGROUND
Petitioner worked as a Program Analyst at the Agency's 916th Support Brigade, Resources Management Branch National Training Center in Fort Irwin, California. Petitioner alleged that the Agency discriminated against her on the basis of disability when on March 28, 2013, the Agency issued Petitioner a Notice of Proposed Removal for "Excessive Absenteeism" and "Failure to maintain a full time work schedule." The Petitioner replied in writing to the proposed action, and on May 7, 2013, the Agency issued a notice sustaining the charges and proposed the penalty of removal. Petitioner was removed effective, May 17, 2013.
Petitioner did not request a hearing, and a telephonic close of record conference was convened on September 9, 2013, where an MSPB Administrative Judge (AJ) set forth the burdens of proof for the parties and identified the issues to be adjudicated in the appeal. The Agency filed a close of record submission, Petitioner submitted nothing additional and the record closed. The AJ issued an initial decision sustaining the Agency's charges, and found removal to be the maximum, reasonable penalty under the circumstances. Additionally, the AJ held that the Agency removed her on the basis of any purported disability. Petitioner then filed the instant petition.
Pursuant to her allegations of disability discrimination, Petitioner is requesting that her employment status be changed from termination to medical disability retirement, and that all references to her termination be removed from her personnel file. Additionally, she is asking that all instances of AWOL during the period of February - May 2013 be removed and/or changed to LWOP.
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 finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on disability, the Commission agrees that the Agency provided legitimate, non-discriminatory reasons for her removal. Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. The record evidence clearly establishes that Petitioner was counseled on several occasions about her leave usage, and failure to maintain a full-time work schedule. Petitioner was advised that her unscheduled absences were adversely affecting work operations. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove her was based on her purported disability.
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 M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/2/16________________
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.
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