0320150045
02-19-2016
Marguerita D.,1 Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marguerita D.,1
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320150045
MSPB No. PH-0752-14-0104-I-1
DECISION
On March 23, 2015, 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 reasons stated below, the Commission concurs with the MSPB's finding that Petitioner did not demonstrate that she subjected to discrimination or denied a reasonable accommodation.
BACKGROUND
Petitioner worked as a Supervisory Security Specialist, GS-12 at the Agency's Security Office, Mechanicsburg Naval Depot in Mechanicsburg, Pennsylvania. Due to a variety of medical issues (Lyme Disease, Chronic Fatigue Syndrome, and Fibromyalgia), Petitioner had not reported to work since on or before March 1, 2013. During this period of incapacity, the Agency received numerous medical notes and letters. According to Petitioner's treating physician, Petitioner was not "able to perform work of any kind" as of April 30, 2013. None of the medical documentation predicted a foreseeable end to Petitioner's incapacity, so on September 20, 2013, Petitioner was removed from the Agency. Petitioner appealed her removal to the MSPB, and asserted that the Agency subjected her to discrimination based on her disability. She also alleged that the Agency failed to provide a reasonable accommodation of situational telework for her disabilities when she was removed from her position for medical inability to perform the essential functions of her position.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision which affirmed the Agency's removal and found that Petitioner did not demonstrate that she was denied the reasonable accommodation of periodic telework. The AJ found that Petitioner was not a qualified individual with a disability as she was unable to perform the essential functions of her position and there was no medical documentation provided that indicated when she would be able to do so. Thereafter, Petitioner sought review by the full Board. The Board agreed with the AJ that the Agency clearly had a valid basis for removing Petitioner under these facts. The Board also agreed that Petitioner was unable to perform the core duties of her position and that her continued absence from work not only negatively impacted her performance, but also had an adverse effect on the Agency. Thus the Board agreed with the AJ that the Agency proved the elements of its charge, and found, uncontroverted, that there existed a nexus between Petitioner's medical condition and her absence from employment. The Board also agreed with the AJ that based on the nature of Petitioner's medical conditions and diagnosis, reassignment was neither reasonable nor feasible.
With respect to Petitioner's argument that the AJ erred by denying her failure to accommodate claim. Petitioner asserted that the AJ should have assessed whether her reasonable accommodation request to telework on an as-needed basis (situational) imposed an undue hardship on the Agency. Petitioner argued that the AJ erred in finding that she was not a qualified individual with a disability. The Board disagreed with Petitioner's arguments. The Board found that the AJ correctly determined that Petitioner was not a qualified individual with a disability because she was unable to perform the essential functions of her position either with or without a reasonable accommodation. The Board agreed with the AJ that the record did not support Petitioner's assertion about the extent of her capabilities. The Board found that based on her treating physician's conclusion that she was completely incapacitated, Petitioner's request to telework on an as-needed basis could not have been an effective accommodation which would have allowed her to perform the essential functions of her position. Therefore, the Board affirmed the AJ's decision.
Petitioner then filed the instant petition. Petitioner argues that the AJ did not apply the proper standard for determining whether she was a qualified individual with a disability. Petitioner maintains that she was able to perform some of her duties. Petitioner also argues that the AJ erred by not applying an undue hardship analysis. Further, Petitioner maintains that the Agency waited 18 months before filing her position which contradicts the Agency's reasons for her removal (the need to fill the position). Among other things, Petitioner requests, by way of a Motion, that the Commission refer this matter to the Board for the taking of additional evidence.
In response, the Agency maintains that Petitioner simply reiterates her argument that the AJ failed to apply an undue hardship analysis regarding her request to telework. The Agency also maintains that Petitioner has not provided any evidence which supports changing the Boards finding. Further, the Agency argues that Petitioner's motion regarding the taking of new evidence should be denied on the basis that it is outside the scope of the Commission's authority. Moreover, the Agency contends that as the Motion has nothing to do with Petitioner's affirmative defense of discrimination, and it should be denied.
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 finding that Petitioner did not demonstrate that she was subjected to discrimination on the basis of her disability or that she was denied a reasonable accommodation. We find that even if we assume arguendo that Petitioner is an individual with a disability, the record shows that she was not qualified because the medical documentation submitted by Petitioner indicated that she was unable to work in any capacity; consequently, she was unable to perform the essential functions of her position with or without an accommodation. Accordingly, she was not entitled to an accommodation. Likewise, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal, i.e., Petitioner was removed from the Agency because she was unable to work in any capacity and therefore, there were no duties that she could perform.
Further, we agree with the Board that the AJ did not err by not applying the undue hardship analysis. Petitioner, in order to establish an entitlement to a reasonable accommodation, must first established that she is a qualified individual with a disability. As indicated above, she did not meet this threshold requirement; therefore, it was unnecessary to determine whether the Agency met the undue hardship defense. We also find no reason to remand this matter to the MSPB for the taking of additional evidence.
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.
Carlton M. Hadden, Director
Office of Federal Operations
___2/19/16_______________
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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