0320090053
06-24-2009
Laura Martinez, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Laura Martinez,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320090053
MSPB No. SF0752080462I2
DECISION
On April 29, 2009, 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.
Petitioner worked as a Human Resources Assistant at the agency's Medical
Center facility in Las Vegas, Nevada. On May 21, 2007, petitioner
was issued a Notice of Proposed Removal (Notice) alleging deliberate
refusal to carry out a proper order and failure to follow instructions.
Specifically, the Notice alleged that petitioner deliberately failed to
register with the Electronic Questionnaires for Investigations (e-Qip)
program despite an order from her supervisor (RMO: no disability) to
do so. The Notice further alleged that petitioner failed to follow
instructions when she repeatedly allowed visitors past the front desk
and repeatedly failed to log in applications as required.
Petitioner alleged that she was discriminated against on the bases of
disability1 (central auditory processing disorder, depression, post
traumatic stress disorder) and reprisal for prior protected EEO activity
under a statute that was unspecified in the record when she was removed
from the agency, effective July 27, 2007.
Petitioner filed a mixed case complaint and the agency issued a decision
finding that petitioner was not discriminated against as alleged.
Thereafter, petitioner filed an appeal with the MSPB and a MSPB
Administrative Judge (AJ) issued a decision finding no discrimination.
Petitioner next sought review by the full Board, but in a Final Order
dated March 26, 2009, the Board denied her request. Petitioner then
filed her petition with this Commission.
In its decision, the MSPB found that petitioner failed to establish
a prima facie case of disability discrimination because she failed to
establish that she was a qualified individual with a disability. The AJ
found that petitioner argued that her medical condition prevented her from
performing essential function of her position, and therefore, according
to the AJ, petitioner was not qualified for her position and hence was
not a qualified individual with a disability. The AJ further found that
petitioner failed to identify otherwise similarly situated individuals
who were treated differently. The AJ next found that petitioner failed to
establish a prima facie case of reprisal because she failed to establish
a nexus between her prior EEO activity and the agency's action.
In her request, petitioner argues that she sought a reasonable
accommodation and that the agency failed to engage in the interactive
process and denied the requested accommodation. Petitioner further
argues that the AJ erred in finding complainant was not a qualified
individual with a disability. Petitioner argues that since she was hired
under the State Vocational Rehabilitation Program, that is sufficient
to establish that she has a disability and further, that the agency
was aware of her disability. Petitioner next argues that the AJ erred
in finding that she was not qualified for her position. In addition,
petitioner argues, the AJ erred in finding that she was not denied a
reasonable accommodation. Petitioner maintains that the AJ found that
petitioner was not denied a reasonable accommodation when she was allowed
to fingerprint job applicants without having to touch them or use her
injured finger, but that the AJ failed to address whether petitioner
was denied a reasonable accommodation when she was not excused from the
requirement to register and use the agency's e-Qip system. As regards
reprisal, petitioner argues that the AJ erred in finding that she failed
to establish a prima facie case of reprisal.
EEOC regulations provide that the Commission has jurisdiction over
mixed case complaints 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).
To prevail in a disparate treatment claim such as this, petitioner must
satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). The Notice said that petitioner was
removed because she deliberately failed to carry out a proper order when
she failed to register with the e-Qip program despite an order from RMO,
and that she failed to follow instructions when she repeatedly allowed
visitors past the front desk and repeatedly failed to log in applications
as required.
To ultimately prevail, petitioner must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Petitioner has not presented any argument or evidence showing that the
agency's articulated reason is a pretext for discrimination. For example
petitioner has not indicated that other employees who acted as she did
were treated more leniently. Indeed, petitioner testified before the
MSPB AJ that she was aware that she could lose her job if she did not
register for e-Qip.
Instead of showing that the agency's articulated reason was a pretext,
petitioner argues that she was denied a reasonable accommodation and
that this led to her being removed. Petitioner maintains that she
sought a reasonable accommodation regarding her e-Qip duties but that
her request was not granted. Petitioner further maintains that she did
not need to comply with the agency's request for additional medical
information because since she was hired as a Schedule A employee the
agency already had her medical information on file. Petitioner's Petition
For Review, p. 5. We note, however, that an employer is entitled to
request "reasonable documentation about [an employee's] disability and
its functional limitations that require reasonable accommodation."
EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans With Disabilities Act
(Enforcement Guidance I) Example 7, p. 20.
Petitioner states in her Initial Appeal that she was hired in 1997,
while the record shows that her request for reasonable accommodation
was not made until April 16, 2007, approximately ten years later.
Since e-Qip duties were a new requirement, petitioner has not shown that
whatever medical information the agency may have had on file from when
she was hired ten years earlier would have shown that she required an
accommodation to perform the new e-Qip duties. In addition we note that
petitioner does not dispute that she did not comply with the agency's
request for additional information. We further note that generally were
an employee refuses to provide the reasonable documentation requested by
an employer, the employee is not entitled to reasonable accommodation See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, (Enforcement Guidance II),
Example 6, pp. 12, 13.
Petitioner argues on appeal that the MSPB AJ only addressed her claim that
she was denied a reasonable accommodation regarding her fingerprinting
duties but did not address her claim that she was denied a reasonable
accommodation regarding being excused from her e-Qip duties. We note
however that the AJ found that "other than suggesting the elimination of
[such duties] the appellant has not suggested any manner of modifying
this position that would allow her to perform the essential functions of
[her position]." MSPB Initial Decision, p. 20.
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
June 24, 2009
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that petitioner is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0320090053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090053