03a00093
06-11-2002
Marlo C. Thomas v. Office of Personnel Management 03A00093 06-11-02 .Marlo C. Thomas, Petitioner, v. Kay Cole James, Director, Office of Personnel Management, Agency.
Marlo C. Thomas v. Office of Personnel Management
03A00093
06-11-02
.Marlo C. Thomas,
Petitioner,
v.
Kay Cole James,
Director,
Office of Personnel Management,
Agency.
Petition No. 03A00093
MSPB No. PH-844E-99-0236-I-1
DECISION
INTRODUCTION
On January 24, 2000, Marlo C. Thomas (hereinafter referred to as
petitioner) filed a petition with the Equal Employment Opportunity
Commission (Commission) for review of the Merit Systems Protection
Board's (MSPB or the Board) final decision on her case. In that
decision, the MSPB found that petitioner was not subjected to disability
(depression) discrimination when the agency denied her request for
disability retirement. See � 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. The Commission accepts this petition in
accordance with the Civil Service Reform Act of 1978 and EEOC Regulations
at 29 C.F.R. � 1614.303 et seq.
ISSUE PRESENTED
The issue herein is whether the Board's determination that the agency
had not discriminated against petitioner on the basis of her disability
(depression) constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives, and is supported by the record
as a whole.
BACKGROUND
Petitioner filed an appeal with the MSPB on April 14, 1999, alleging
that she had been subjected to disability discrimination when the agency
denied her application for disability retirement. Petitioner did not
request a hearing, and, after providing the parties with an opportunity
to submit information for the record, an MSPB Administrative Judge (AJ)
issued an initial decision, sustaining the agency's action and finding
no discrimination. The full Board subsequently denied petitioner's
petition for review. Petitioner timely filed a petition for review with
this Commission.
A review of the record reveals that petitioner worked for the Department
of Defense as a Procurement Technician. In June 1998, petitioner filed an
application for disability retirement, claiming to have become disabled
for her position due to depression. In an August 24, 1998 decision,
the agency denied petitioner's application. Upon reconsideration,
the agency affirmed its initial decision, stating that the evidence did
not show that petitioner's condition was so severe as to warrant total
restriction from work. Further, the agency noted that the evidence
failed to show that petitioner's condition was unresponsive to treatment.
The agency stated that petitioner failed to submit detailed medical
information to support a finding that she was totally incapacitated.
Instead, the agency indicated that petitioner's condition appeared to
be episodic and situational in nature.
In her appeal to the MSPB, petitioner indicated that the agency
discriminated against her on the basis of her disability. Nevertheless,
petitioner did not present any evidence in support of her allegation
of discrimination. The MSPB AJ issued an initial decision affirming
the agency's action. The MSPB AJ noted that, aside from indicating
that she had been discriminated against on the appeal form, petitioner
did not further address that issue. Thus, the MSPB AJ determined that
petitioner presented no evidence of discrimination.
ANALYSIS AND FINDINGS
The Commission must determine whether the MSPB's decision with respect
to petitioner's allegation of discrimination constitutes a correct
interpretation of the applicable laws, rules, regulations and policy
directives, and is supported by the evidence in the record as a whole.
See 29 C.F.R. �1614.305(c). The Commission finds that the Board's
decision constitutes a correct interpretation of the law governing the
matter at issue, and is supported by the record as a whole. Therefore,
for the reasons set forth below, the Commission concurs with the Board's
findings.
To succeed on a claim of employment discrimination based upon disparate
treatment, petitioner must establish the agency's discriminatory intent
or motivation by either direct or circumstantial evidence. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
In this case, petitioner offered no direct evidence of discrimination.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme
Court set forth the order of proof and the allocation of burdens when
a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive. First, petitioner must establish a
prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency
may rebut petitioner's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
petitioner must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id.<1>
In this case, we agree with the MSPB that petitioner has not presented
sufficient evidence to establish discrimination. Specifically, even
assuming that petitioner was able to establish a prima facie case,
the record does not support a finding of disability discrimination.
Petitioner's assertion that new medical evidence available in September
1999 shows that she cannot work is insufficient to show that the agency
discriminated against her at the time it considered her application.
Further, even assuming that petitioner's contention concerning errors made
by the MSPB AJ was correct, the fact that petitioner's medications were
prescribed by a particular doctor would not cast doubt on the ultimate
determination by the AJ that petitioner had failed to prove her claim
of disability discrimination. It is noted that petitioner presented no
evidence that the agency treated her less favorably than other applicants
for disability retirement, or other evidence in support of her claim.
CONCLUSION
For the reasons as set forth above, the Commission CONCURS with the MSPB's
finding that petitioner failed to show that the agency discriminated
against her on the basis of her disability when it denied her application
for disability retirement.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
______06-11-02____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1It is noted that petitioner did not argue that the Department of
Defense, her employing agency, failed to reasonably accommodate her in
the position she held, nor did she assert that the agency herein failed
to provide accommodation with regard to the application process for
disability retirement.