0320140059
03-01-2016
Jayna A.,1 Petitioner, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jayna A.,1
Petitioner,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Petition No. 0320140059
MSPB No. SF-0752-12-0675-I-1
DECISION
On July 3, 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 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. For the reasons stated below, the Commission concurs with the MSPB's finding that Petitioner did not demonstrated that she was subjected to discrimination, reprisal, or was denied a reasonable accommodation.
BACKGROUND
Petitioner worked as a Criminal Investigator, Special Agent, GS-12 at the Agency's U.S. Fish and Wildlife Service in Sacramento, California. As a Special Agent, Petitioner was required to pass periodic physical examinations, meet physical standards set by the Agency for the position, and otherwise meet the requirements for the position. Petitioner sustained an injury to her back in 1992, which was accepted as work-related by the Office of Workers' Compensation Programs (OWCP). Her back was also injured in October 2005, and in April 2009. On April 15, 2010, Petitioner's doctor submitted medical documentation indicating that "recent acute aggravation of this patient's chronic herniated disc condition had resulted in persistent inflammation of the lumbar spine." Petitioner was restricted from extended travel and participation in vigorous work or training activities until further diagnostic evaluation could be performed.
Despite her injuries, Petitioner argued that she could successfully perform her Law Enforcement (LE) duties. On June 6, 2010, Petitioner's supervisor issued a Medical Review Form stating that based on her restrictions she was not medically qualified to perform the essential functions of her position. In July 2010, Petitioner's supervisor reiterated Petitioner's status that she was not medically qualified to perform the essential functions of the job. He indicated that her back condition posed a significant risk to her safety and the safety of others, based on her restrictions of no lifting over 10 pounds, avoiding vigorous, intense physical activity or confrontation, and aggressive law enforcement functions. Petitioner's supervisor requested a medical clearance form from her doctor.
The medical documentation submitted by her doctor indicated that Petitioner could not perform the rigorous duties of law enforcement such as engaging in vigorous intense physical activity, confrontational situations, subduing individuals, and protecting herself or others from attack. A fitness for duty examination was ordered and it showed that Petitioner had a chronic, unresolved ongoing medical condition that posed a significant risk to the health and safety of herself and others. Petitioner, however, claimed that she was able to perform her law enforcement duties with her current precautionary measures, including the arduous firearms and defensive tactics training she completed in March 2011. Petitioner argued that her doctor disagreed with the Agency's physician and maintained that the Agency's concerns about her back condition and use of medications were exaggerated. Petitioner added additional medical documentation which indicated that she could perform her duties with accommodation. The Agency convened a Medical Review Board and it determined that the Petitioner was unable to perform the essential job functions of her position without endangering the health and safety of others. Petitioner was then issued a Notice of Removal for her inability to safely perform the essential functions of her position.
Thereafter, Petitioner alleged that the Agency discriminated against her on the bases of disability (physical/back) and reprisal for prior protected EEO activity when she was removed from federal service, for inability to safely perform the essential functions of her position, effective June 27, 2012.
A hearing was held and an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency was able to sustain its removal finding but the AJ mitigated the penalty to a demotion to a lower-graded nonlaw enforcement position. The AJ found that the medical documentation revealed that Petitioner was not medically qualified to perform the essential functions of her position. While she could perform basic functions, the documentation indicated that she was not able to perform rigorous law enforcement duties. The AJ noted that despite Petitioner's prolonged treatment and a good prognosis, Petitioner had maintained the same activity restrictions since initiating treatment in 2006. The AJ found that the Agency had successfully argued that Petitioner's inability to maintain a constant state of readiness resulted in a significant safety risk to herself and for others, or at the very least, could have significantly and adversely impacted the investigation, pursuit, and/or apprehension of suspects.
Additionally, the AJ found that Petitioner was unable to establish her affirmative defense of disability discrimination, either on the basis of a failure to accommodate or disparate treatment, and reprisal. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons, for its actions namely, that Petitioner was unable to perform the essential functions of her position. The AJ also found that the Agency did not fail to provide a reasonable accommodation as the Agency interacted with Petitioner and made attempts to reassign her to a position that did not require the physical demands of her Special Agent position.
Thereafter, Petitioner sought review by the full Board. The Board agreed with the AJ's findings. The Board noted that contrary to Petitioner's contentions that the AJ did not consider her medical documentation, the record reflected that the AJ carefully considered medical evidence submitted by her treating physicians, which indicated that her back condition had basically resolved and that she was able to perform the duties of her usual and customary occupation without accommodation. The Board explained that the AJ found that their opinions were not persuasive because they were conclusory assertions not based on a reasoned explanation. By contrast, the AJ found the Agency physician's opinion was more persuasive than the opinions of Petitioner's treating physicians as they were aware of the actual duties that were expected by Petitioner's position.
The Board found the AJ's decision was supported by the weight of the record evidence. Further, the Board found that the AJ, correctly, did not consider post-removal medical evidence from Petitioner's treating physicians. The Board noted that the AJ referenced the report and found that the physician's diagnosis remained the same after a new MRI and his examination of Petitioner. Furthermore, the Board found that the AJ correctly denied Petitioner's motion to submit a November 10, 2012 medical report from one of her treating physicians because Petitioner did not show that the information was not readily available before the close of the record.
With regard to Petitioner's affirmative defenses, the Board found that the AJ correctly determined that the Agency articulated a legitimate, nondiscriminatory reason for its action, and Petitioner did not demonstrate that the reason was pretext for discrimination. The Board noted that the AJ correctly considered that the comparator offered by Petitioner was not similarly situated to her as that employee had unique expertise in a subject area involving extensive activity on the internet and Petitioner's supervisors were not involved in this employee's work duties. Further, the AJ considered that the deciding official was not involved in Petitioner's prior EEO activity and Petitioner provided no evidence as to why he would have a retaliatory motive against her. The Board noted that the AJ correctly found that Petitioner was an individual with a disability and after finding that Petitioner could not be accommodated in her current position, the AJ considered whether there was a vacant position to which Petitioner could be reassigned. The AJ found that there were two vacant Law Enforcement Support Assistant positions, GS-7 and GS-8 that were suitable for Petitioner, and that the Agency did not fail to reasonably accommodate Petitioner concerning these positions because it offered to noncompetitively convert her to either of them.
The Board also found that the AJ considered whether the Agency was required to reasonably accommodate Petitioner in a position at the Federal Law Enforcement Training Center (FLETC), as a GS-12 Instructor. The AJ found the FLETC Instructor job was not a vacant position which the Agency was required to fill as a reasonable accommodation for Petitioner. Specifically, the AJ found that the position was not a permanent one but rather one that the Agency could fill on a short-term basis at its discretion. The Board discerned no basis for disturbing the AJ's finding on this matter.
Petitioner then filed the instant petition. Petitioner, among other things, contends that the AJ discounted the fact that she was medically cleared by her physician. She maintains that all of her physicians had read her job description and were fully aware of the position and understood her law enforcement duties and deemed her capable of performing these duties in a safe manner. She maintains that the AJ also discounted the fact that she had been safely and successfully performing the duties of her law enforcement position without any accommodation. Petitioner asserts that she was not incapacitated at the time of her injury, has never been incapacitated, and is not expected to be incapacitated. Petitioner maintains that she had always safely and successfully performed her law enforcement position without any re-occurrence from the date of her injury on October 4, 2005. Petitioner asserts that at all times her condition was listed as stable.
Further, Petitioner notes that her reprisal claim was not actively pursued in this case because this issue is being actively argued in an EEO case that is still pending. Petitioner indicates that as there was no meeting of the minds between her physicians and those of the Agency her removal must be overturned. Petitioner maintains that a teaching position was originally offered to her but it was rescinded when she refused to drop her EEO complaint.
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).
In the instant case, we agree with the MSPB's decision that Petitioner did not demonstrate that she was subjected to disability discrimination, reprisal, or denied a reasonable accommodation. Specifically, we find that even if we assume arguendo that Petitioner established a prima facie case of disability discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., Petitioner was removed from her position because she was unable to safely perform the essential functions of her position. Although the record certainly contains contradictory medical information, we find that there is certainly enough evidence to support the AJ's determination that Petitioner was not medically qualified to perform the essential functions of her position. In this regard, we note, among other things, the results of the fitness for duty examination and the findings of the Medical Review Board. Although the AJ considered Petitioner's positive medical documentation, he found that it was outweighed by the Agency physician's opinion. Consequently, we do not find the Agency's reasons to be a pretext for disability and reprisal discrimination.
We also find that the MSPB properly found that Petitioner was not denied a reasonable accommodation. As was stated above, it was determined that Petitioner could not perform the essential functions of her position. While we note Petitioner's contention that for five years she successfully performed her duties, the Agency was not obligated to allow her to permanently perform non-essential duties. The Commission has long held that an agency is under no obligation to allow an employee to permanently perform nonessential duties. See Spry v. U.S. Postal Serv., EEOC Petition No. 03980078 (Dec. 11, 1998). Moreover, we note that the Agency offered Petitioner the accommodation of reassignment and while that might not have been the accommodation of her choice, there is no indication that it would not have been effective. Accordingly, we find that Petitioner did not show that the Agency failed to provide her a reasonable accommodation.
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. n's signature
Carlton M. Hadden, Director
Office of Federal Operations
_3/1/16_________________
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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