0320180045
05-31-2018
Jaqueline L.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jaqueline L.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Petition No. 0320180045
MSPB No. AT-0752-17-0447-I-1
DECISION
On April 16, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (the Commission) for review of the Final Order of the Merit Systems Protection Board (MSPB or Board) issued February 13, 2018, concerning her claim that the Agency discriminated against her on the bases of race (African-American), color (black), sex (female), disability (stress, depression, anxiety, carpal tunnel syndrome, and ulnar nerve lesion) and reprisal for engaging in prior EEO activity when she was removed from her position as Assistant Special Agent in Charge (ASAC), Office of Inspector General, U.S. Postal Service, Tallahassee, Florida.2 A MSPB Administrative Judge (MSPB AJ), in an initial decision, found that the Agency had not engaged in discrimination as alleged by Petitioner and affirmed her removal. 3 The instant petition for review is from that initial decision.
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).
Based upon a thorough review of the record, including Petitioner's statement on appeal, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's disparate treatment claim of reprisal discrimination when the Agency removed her; we, however, analyzed this case according to the McDonnell Douglas paradigm and found that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her based on her race, color, sex and in reprisal for engaging in prior EEO activity. We also find that the MSPB AJ correctly found that Petitioner did not establish that she was subjected to disability discrimination.4 Consequently, we CONCUR with the MSPB's ultimate determination that Petitioner did not establish that the Agency discriminated against her as alleged. We conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
___5/31/18_______________
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 Agency removed Petitioner for medical inability to perform the essential functions of her position. As of the result of a fitness-for-duty examination, Petitioner was determined to have been medically disqualified from carrying a firearm.
3 In finding no race, color, sex, and reprisal discrimination, the MSPB AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
4 Like the MSPB AJ, we note that the Agency was not obligated to provide a new supervisor to Petitioner as an accommodation.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320180045
2
0320180045