03A10110
02-25-2002
Mary-Louise Quinn, Petitioner, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Mary-Louise Quinn v. Department of the Interior
03A10110
02-25-02
.
Mary-Louise Quinn,
Petitioner,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Petition No. 03A10110
MSPB No. SF-0752-00-0625-I-1
DECISION
On August 16, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC or the Commission) asking for
review of a Final Order issued by the Merit Systems Protection Board
(MSPB or the Board) concerning her claim of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. Petitioner, a Water Rights Specialist, GS-11, at
the agency's Bureau of Reclamation, Mid-Pacific Region, in Sacramento,
California, alleged that she was discriminated against on the bases of
sex (female), age (59), and disability (advanced education)<1> when she
was removed from her position effective July 21, 2000, for inability to
sustain a 40-hour work-week schedule.
On August 21, 2000, petitioner filed a mixed case appeal with the MSPB.
Petitioner initially requested a hearing, but subsequently withdrew
her request. Accordingly, after affording the parties an opportunity
to submit evidence, the MSPB Administrative Judge issued a decision
on the record. The MSPB AJ's decision sustained petitioner's removal.
The MSPB AJ noted that petitioner was absent from work as follows: in
1996, 663 hours; in 1997, 666.25 hours; in 1998, petitioner was granted
an unpaid one-year leave of absence; and in 1999, petitioner was granted
12 months of leave without pay (LWOP). Petitioner was to return to work
on March 9, 2000, and when she did not, the agency placed her in absent
without leave (AWOL) status. The MSPB AJ noted that petitioner's absence
stemmed from the need for her to provide care for her ailing mother.
The MSPB AJ found that the agency had met all of its obligations toward
petitioner under the Family and Medical Leave Act (FMLA). The MSPB
AJ rejected petitioner's claims of unlawful discrimination. He noted
that petitioner had adduced no evidence beyond her bare assertions that
the agency harbored discriminatory animus toward older women, and that
the disability asserted in her appeal � advanced education, in that she
has a Ph.D. � was not a disability within the legal meaning of the term.
The MSPB AJ further noted that the little medical information provided by
petitioner indicated that she was in a stressful situation, but did not
contain a diagnosis, a prognosis, or an explanation of how the claimed
disability impacted her life.
Petitioner petitioned the Board for review of the MSPB AJ's decision.
On July 11, 2001, the Board issued its denial of the petition for review.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Here, the MSPB AJ correctly found that petitioner had not established a
prima facie case of sex, age, or disability discrimination. Petitioner is
a member of the protected groups sex (female) and age (over 40). However,
petitioner adduced no evidence to show that she was treated less favorably
than any similarly situated employee on account of her sex, her age,
or her claimed disability. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978); Swanks v. WMATA, 179 F.3d 929, 934 (D.C.Cir. 1999); Heyman
v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, 198 F.3d 68 (2d Cir. 1999). Nor did petitioner
present other evidence from which the Commission might infer unlawful
discrimination. See O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).
Based upon a thorough review of the record and for the foregoing reasons,
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 (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
__02-25-02________________
Date
1Petitioner also alleged reprisal for �whistle blowing� activity.
Petitioner does not claim that her �whistle blowing� disclosures pertained
to employment practices which are unlawful under the statutes enforced by
the Commission. Accordingly, petitioner's claim of reprisal is outside
of the Commission's purview. See Honeycutt v. Department of Defense,
EEOC Request No. 05930744 (February 17, 1994).