0320090014
01-30-2009
Marisa Taylor, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marisa Taylor,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090014
MSPB No. CH07520063
DECISION
On November 18, 2008, 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.
Petitioner alleged that she was discriminated against on the basis of
disability (Knee) when, effective October 10, 2007, she was removed from
the position of Supervisor Customer Services at the agency's Cleveland
Processing and Distribution Center in Cleveland, Ohio. The record
reflects that the agency removed petitioner based on the charge of
improper conduct. In its notice of proposed demotion, the agency charged
petitioner with improper conduct specifically because of her absences
from work and receipt of OWCP benefits even though she was not totally
disabled from limited duty; misrepresenting her physical abilities in
relation to an OWCP claim; and lying during an official investigation.
The proposal notice cited numerous postal service regulations found in the
agency's Employee Labor Manual concerning loyalty; discharge of duties;
behavior and personal habits; and cooperation in investigations.
Further review of the record reveals that since petitioner had been
observed by an agency manager acting outside of her reported medical
limitations, an internal investigation ensued, revealing petitioner
routinely functioning outside of her reported limitations both at
work and outside of work. The record also reveals that petitioner
"purposely remained out of work and failed to get an amended report from
her orthopedic surgeon (petitioner's private specialist) for the purpose
of receiving OWCP benefits."
Following a hearing, the MSPB Administrative Judge (AJ) found that the
testimony of agency officials was more credible than that of petitioner.
With respect to petitioner's claim of disability discrimination, the AJ
found that petitioner failed to show that agency officials were motivated
by discriminatory animus. Of note, petitioner's immediate supervisor
stated that several attempts were made to accommodate petitioner's
medical restrictions, though little cooperation/initiative was shown
by petitioner. Also, petitioner did not show that she was unable to
work within the medical restrictions outlined in the record; thus,
she could have been reasonably accommodated if good faith effort
were made by petitioner. Further, petitioner did not disprove her
deceptive and inappropriate behavior indicated in the record. The AJ
noted that the record supports the charges of misconduct brought by
the agency. In effect, petitioner failed to show a nexus between her
purported disability and the agency's actions or that the actions were
a pretext for unlawful discrimination. Petitioner sought review by
the full Board, but the Board denied petitioner's petition for review.
Thereafter petitioner filed the instant petition with the Commission.
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).
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
January 30, 2009
__________________
Date
2
0320090014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090014