0320160033
05-26-2016
Krysten M.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Krysten M.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160033
MSPB No. DC-0752-16-0002-I-1
DECISION
On March 1, 2016, 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. For the following reasons, we CONCUR with the MSPB's Final Order.
ISSUE PRESENTED
Whether Petitioner established that the MSPB's Final Order was incorrect when it found, among other things, that she did not establish that she was discriminated against based on a perceived mental disability when she was removed from her position.
BACKGROUND
Petitioner was hired by the Agency as a Recreation Therapist, GS-0638, on February 27, 2012. On October 20, 2013, she transferred to the Fayetteville VA Medical Center (VAMC) in Fayetteville, North Carolina. On November 5, 2014, she did not report to work. On December 11, 2014, her supervisor, A-1, issued an Order to Return to Duty, notifying her that she had been absent from the office for over one month, and warning her that failure to report to work or to submit a proper leave request could lead to disciplinary action up to and including removal. Upon receiving the letter, Petitioner requested and was granted 480 hours of leave under the Family Medical Leave Act (FMLA), which took effect on November 12, 2014, and expired on February 10, 2015.
On February 4, 2015, the Agency sent a second Order to Return to Duty to Petitioner informing her that she would exhaust her FMLA leave on February 11, 2015, and again warning her that failure to return to duty could result in disciplinary action, up to and including removal. On February 19, 2015, Petitioner told A-1 that she had been out sick and was unable to return to work. She also told A-1 that she could not bring herself to return to Fayetteville, but would be willing to accept a transfer to another VA facility.
On February 26, 2015, A-1 sent a Clarification of Intent letter, informing Petitioner that she must clarify her intent to return to work, and stating that any absences must be covered by approved leave requests. Petitioner responded to the letter on March 13, 2015. In her response, Petitioner stated that she did not wish to return to the Fayetteville VAMC, but was requesting a transfer to the Cleveland VAMC or to be placed in an alternate leave status. Petitioner stated that she could not return to Fayetteville because she believed her computer was being hacked and that someone had remote access of her computer. She also stated that someone broke into her personal residence in North Carolina.
The Agency investigated Petitioner's allegations and found that her computer had not been hacked. In a letter dated May 7, 2015, A-1 told Petitioner that her request to be placed in an alternate leave status was denied because she did not provide any medical documentation to support her ongoing absence. A-1 also stated that she needed to return to work as the Agency could not continue to cover her position in the current manner, and warned that if she did not return to work within 10 days of her receipt of the letter, he would take administrative action to separate her from the Federal service. The record indicates that Petitioner did not return to work within the 10-day period.
On August 18, 2015, the Agency issued a proposal to remove Petitioner for excessive absenteeism and failure to comply with her supervisor's instructions. In her response dated August 27, 2015, Petitioner, among other things, stated that due to the hacking of her work station and all of her personal devices upon her arrival in October 2013, she did not:
[w]ant to find myself in a situation with [the] Fayetteville police department, only to discover that a history of mental health phone calls and police reports have been strategically generated and documented in my name and appears to have been made by me. There are at least 8-10 police reports that appear to have been generated from my old address in Fayetteville and are documented with police codes for a mentally ill person. They have police reports stating that I called and said that the TV was talking to me and that people were coming out of the television and talking to me. This is criminal in and of itself . . . I did not make or initiate any of those reports, however; they still remain on record there in my name. I have made numerous requests for the Fayetteville police department to remove them but they will only amend them, adding that I said I didn't make the reports. I have made police reports and I tried to make one regarding the violations of my privacy and peace but the female detective insisted that I send it electronically when I told her I had no internet access. It felt as though she used it as a passive way to refuse to make a report against VAMC officials. The falsified police reports in my name show that they changed the nature, location of origination and other identifiable information to make it appear to have come from me. They did not!
Petitioner was removed on September 8, 2015. She filed an appeal with the MSPB. In her appeal, she alleged that she was terminated for filing a whistleblower complaint; that she was "constantly harassed" inside and outside of her home; that she could not use the internet because of the Agency's actions against her; and that her mail was tampered with.
On January 5, 2016, during a prehearing teleconference with the MSPB Administrative Judge (AJ), Petitioner and her representative indicated that although she did not have a mental disability, she wanted to raise the affirmative defense of perceived mental disability.2 On January 7, 2016, she notified the MSPB AJ that she wished to waive her right to a hearing, and requested a ruling on the record. Petitioner's request was granted, and on January 8, 2016, the MSPB AJ cancelled the hearing and closed the record.
In his decision, the MSPB AJ found, among other things, that Petitioner did not establish the affirmative defense of disability discrimination. According to the MSPB AJ, Petitioner did not present any evidence, other than her own arguments, to indicate that she was regarded as having a disability, or that she was removed due to discrimination. Consequently, he found that Petitioner did not meet her burden of proof and her affirmative defense was not sustained. Petitioner filed this petition with the Commission to review the MSPB's Final Order.
Petitioner did not submit a statement in support of her petition. The Agency asks that we affirm the MSPB's Final Order.
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).
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Petitioner has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).
In analyzing a disparate treatment claim under the Rehabilitation Act, where an agency denies, as the Agency does here, that its decisions were motivated by an employee's disability and there is no direct evidence of discrimination, Petitioner may demonstrate a prima facie case by establishing that: (1) she is an "individual with a disability;" (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Assuming for the purposes of this decision only that Petitioner was able to successfully establish a prima facie case of disability discrimination, we find that the Agency provided legitimate non-discriminatory reasons for its actions. With respect to its charge of excessive absenteeism, the record indicates that Petitioner did not report to work from February 10, 2015, until the date of her proposed removal (August 18, 2015), and was in an AWOL status for the entire time. The record also indicates that she was warned on at least two separate occasions that an adverse action may be initiated if she did not return to duty. There was evidence in the record that as a result of Petitioner's absences, programming had to be cancelled, and other employees had to handle her duties, which, according to the Agency, limited the therapeutic opportunities that Petitioner's co-workers could offer patients. With respect to its charge of failure to follow supervisory instructions, the record indicates that the Agency notified Petitioner in writing that she must return to duty within 10 days of May 7, 2015, and she failed to do so. There is no dispute that Petitioner received the letter.
Petitioner has not offered any persuasive evidence that the Agency's explanations for its actions were a pretext for disability discrimination. As noted by the AJ, Petitioner did not present any evidence to indicate that she was regarded as having a disability, or that she was removed due to discrimination.
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
__5/26/16________________
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.
2 At one time, Petitioner had also alleged that the Agency failed to accommodate a mental disability, but she withdrew this allegation at the prehearing conference when she stated that she did not have a disability.
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0320160033