0320150031
02-09-2016
Karleen R.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karleen R.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Petition No. 0320150031
MSPB No. AT0752140025I1
DECISION
On January 22, 2015, Petitioner filed a 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.
BACKGROUND
Petitioner worked as a Mail-handler at the Agency's U.S. Postal Service facility (Mobile P&DC) in Mobile, Alabama. Petitioner alleged that the Agency discriminated against her on the bases of sex (female) and disability when by letter dated September 9, 2013, the Agency's deciding official and the Plant Manager for the Mobile P&DC sustained her proposed removal for failure to maintain a regular work schedule.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner's removal. The AJ found that the Agency proved its charge of failure to maintain a regular work schedule, and found that the Agency's decision to remove Petitioner was reasonable under the circumstances. Additionally, the AJ found that Petitioner was unable to sustain her affirmative defenses. The initial decision held that the Agency did not breach its obligation to provide a reasonable accommodation because there is no evidence Petitioner engaged in the interactive process, nor was she able to show that her alleged medical conditions caused her to have unscheduled absences on the dates indicated in the notice of proposed removal. With respect to Petitioner's allegations of gender discrimination, the AJ found that she was unable to establish that she was treated more harshly than similarly situated employees who were outside her protected category. Additionally, the Agency presented legitimate non-discriminatory reasons for the removal. Petitioner appealed to the MSPB Board for a review of the initial decision. The Board denied the petition and affirmed the initial decision. Petitioner then filed the instant petition.
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 and gender, 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 had been disciplined four times previously for the same offense, and two of the disciplinary letters advised Petitioner that additional offenses could lead to additional discipline, including removal. Petitioner did not dispute the six instances of unscheduled absences indicated in the notice of proposed removal prior to the hearing. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove her was based on any 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
__2/9/16________________
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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