0320090051
05-15-2009
Jeffrey H. Baird, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jeffrey H. Baird,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0320090051
MSPB No. SF0752080249I2
DECISION
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 his 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 filed an appeal with the MSPB in which he raised an allegation
that he was discriminated against on the basis of disability (depression,
thyroid condition, asthma) when he was removed from his position of
General Attorney, GS-905-14, Office of the Regional Chief Counsel, Seattle
Washington. A hearing was held and thereafter an MSPB Administrative Judge
(AJ) issued an initial decision upholding the removal decision. Petitioner
sought review by the full Board, which denied his petition. Petitioner
then filed the instant petition. Petitioner did not make any arguments
in his petition before this Commission.
Briefly, the MSPB AJ determined that the evidence showed petitioner acted
as a senior attorney responsible for the preparation, development, and
presentation of cases in litigation, and as an appellate attorney in the
Court of Appeals cases. Petitioner was expected to work independently,
with little or no supervision. The Department of Justice also appointed
petitioner as a Special Assistant United States Attorney for the District
of Oregon. In that capacity, he represented not only the agency, but
the U.S. government in his representations in court.
On October 29, 2007, the agency proposed removing petitioner based on
four charges: (1) failure to follow office procedures; (2) inappropriate
conduct involving office communications; (3) inappropriate conduct
involving the court; and (4) failure to follow time-keeping procedures.
The removal became effective on December 28, 2007.
The MSPB AJ found that the agency failed to sustain charge 1, involving
the filing of requests for voluntary remand (RVR) because there appeared
to be an inconsistency as to office procedures regarding RVRs. The
AJ sustained charge 2, finding that petitioner told his supervisor he
would take certain action on RVRs, but failed to do so. The AJ noted
that petitioner, in his testimony, admitted that he misrepresented the
facts to his supervisor. In a footnote, the AJ noted that petitioner's
misrepresentations related to the RVRs happened three times on three
separate dates and suggested a pattern or method to his conduct. The AJ
also sustained charge 3, finding that petitioner told the U.S. District
Court for the District of Oregon, under the penalty of perjury, that he
had taken certain actions when he had not. The admitted conduct occurred
on different days over a course of weeks. Finally, the AJ sustained
the fourth charge, finding that petitioner knowingly signed in with a
time that preceded his arrival. With respect to petitioner's disability
claims, the AJ found that even assuming petitioner was a person with a
disability, his disability did not immunize him from being disciplined
from misconduct. Finally, the AJ found that petitioner did not support
his claims of disparate treatment. Accordingly, the AJ upheld petitioner's
removal.
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 notes that petitioner appeared to argue that managers
were aware of his disabilities and should have accommodated him.
As an initial matter, even assuming petitioner is disabled, we note
that, during the time period in question, there is nothing to indicate
that petitioner requested any type of accommodation for his medical
conditions.1 Moreover, the Commission's Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities at Question
30 specifically indicates that an employer may discipline an individual
with a disability for violating work place conduct standards even if
the misconduct results from a disability. Further, to the extent that
petitioner argued that the agency should have accommodated him after
the incidents instead of removing him, Question 31 of the same guidance
states that reasonable accommodation is prospective and employers are
not required to excuse past misconduct. Finally, to the extent that
petitioner is arguing disparate treatment; he has not shown that the
agency's reasons for its actions were a pretext for discrimination.
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
May 15, 2009
__________________
Date
1 The Commission notes that testimony was provided that petitioner was
on the reasonable accommodation cadre, which gave advice on reasonable
accommodation issues to field office managers, regional office managers,
and hearing office managers on any reasonable accommodation matter. The
attorneys on the cadre were expected to be ready to respond to questions
on reasonable accommodation. As such, it can be assumed that petitioner
knew how to request reasonable accommodation.
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2
0320090051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013