0320180026
04-24-2018
Merilyn W.,1 Petitioner, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merilyn W.,1
Petitioner,
v.
Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180026
MSPB No. AT-0752-17-0633-I-1
DECISION
On January 22, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's ultimate finding that Petitioner did not establish that the Agency discriminated against her on the bases of race (African American), disability, and reprisal for prior protected EEO activity when it removed her from employment.
BACKGROUND
Petitioner worked as a Licensed Practical Nurse, GS-0620-06, at the Veterans Affairs Medical Center in Orlando, Florida. On October 1, 2014, Petitioner asked for leave without pay (LWOP) from October 6 through November 6, 2014. She stated in the leave-request form that she was requesting "mental health leave due to overwhelming stress at work within the last several months" and that she had sought "mental and medical treatment due to a stressful work environment." The Chief Nurse (CN) denied the request and wrote on the form that the denial was because of "workload demands."
On December 4, 2014, CN issued Petitioner a Notice of Proposed Removal for "[m]aking disruptive anxiety producing statements." According to the Notice, Petitioner informed her supervisor on October 17, 2014, that she had been admitted to a behavioral health treatment facility. The Agency placed Petitioner on authorized absence and ordered her not to return to Agency premises pending an investigation. The Notice stated that, on October 21, 2014, Petitioner told an employee of the Agency's Human Resource Management Service (HRMS) that she recently had thoughts about shooting her supervisors, she had admitted herself to a hospital and been released, and she felt "like going over there right now and that would be a problem." The Notice also stated that CN and a Human Resource Specialist (HRS) called Petitioner on November 18, 2014, regarding her return to duty and a temporary detail to the Allergy Clinic. According to the Notice, Petitioner accused CN of punishing her and "playing games" and stated to HRS, "If I wanted to get you I could. I know where your office is or I would see you in the hallway. . . . I know where [CN and Petitioner's supervisor] live."
Petitioner, through her attorney, responded to the Notice of Proposed Removal on January 6, 2015. She argued that mitigating factors called for a penalty less than removal. In addition, Petitioner noted that "the Rehabilitation Act prohibits discrimination and also requires that reasonable accommodation be made where appropriate." :She maintained that "[t]he issues alleged appear to be symptoms of [her] disability," that "her disability can be accommodated and that she should not be punished for seeking treatment and revealing the symptoms that led to her hospitalization."
On February 17, 2015, the Medical Center Director sustained the charge of "[m]aking disruptive anxiety producing statements" and upheld the removal. In the Notice of Removal, the Director stated that he had considered Petitioner's "length of service and [her] otherwise good work record, [her] stated mental impairment, and other factors that would justify mitigation of the proposed penalty." According to the Director, he gave Petitioner "an opportunity to provide additional medical information but" had not "received anything to resolve the question of [her] potential rehabilitation." He determined that the charge was "of such gravity that mitigation of the proposed penalty is not warranted and that the penalty of removal is appropriate and within the range of reasonableness." In a February 17, 2015, statement of "Relevant Factors in Assessing Penalties," the Director stated that he had considered medical documents that Complainant provided, that he "found a causal effect between" her impairment and the conduct at issue, and that there was "no evidence the impairment has been remedied or come under control." He concluded that there was "no potential for the employee's rehabilitation and ability to return to duty without like behavior or acting on the types of comments she made previously."
On February 19, 2015, Petitioner filed a mixed-case complaint alleging that the Agency discriminated against her on the basis of race (African American) with respect to several matters, including her removal.2 On June 12, 2017, the Agency issued a decision finding that it did not discriminate against Petitioner when it removed her from the Agency. Petitioner then filed an appeal with the MSPB. On November 16, 2017, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's action.
The MSPB AJ sustained the charge of making disruptive, anxiety-producing statements. He found that the HRMS employee credibly testified that Petitioner had stated that she had thoughts of shooting supervisors and wanted to "go over there" where her supervisors were. He similarly found that CN credibly testified that Petitioner had made the November 18, 2014, statements cited in the Notice of Proposed Removal.
The MSPB AJ stated that Petitioner raised the affirmative defenses of discrimination based on race, disability, and reprisal for prior protected EEO activity. He found that Petitioner's October 1, 2014, request for LWOP did not constitute a request for reasonable accommodation, that Petitioner did not establish that she had a disability, and that the Agency established that it would have been an undue hardship to grant her request for LWOP. In addition, noting that reasonable accommodation is prospective, the MSPB AJ concluded that the Agency properly denied "any request for reasonable accommodation found in [Petitioner's] written reply to the notice of proposed removal." He also concluded that Petitioner did not establish that disability was a motivating factor in her removal.
In finding no discrimination on the basis of race or reprisal, the MSPB AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
The MSPB AJ stated that Petitioner presented no evidence of discrimination based on race or reprisal. He noted that she did not show that the Agency treated her more harshly than it treated similarly situated employees not of her protected group or that her removal was based on a discriminatory intent. He found that Petitioner did not establish the affirmative defense of discrimination based on race or reprisal.
On December 21, 2017, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner, through her attorney representative, argues that her request for LWOP constituted a request for reasonable accommodation. She also argues that the MSPB AJ erroneously found that she was not an individual with a disability and that the Agency had no duty to accommodate her when considering whether to sustain the Notice of Proposed Removal. According to Petitioner, "under the unique circumstances of this case, in the context of considering the appropriate penalty for the offense, Petition[er] submits that considerations of reasonable accommodation would be appropriate."
In response, the Agency argues that the record supports the MSBP AJ's decision and that Petitioner has not shown that the Agency's reasons for its action were a pretext for discrimination. The Agency also argues that Petitioner's claim of disability-based discrimination "consisted solely of her dissatisfaction with the process in which her reasonable accommodation was denied."
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Petitioner must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). "Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability." Enforcement Guidance on Reasonable Accommodation at Question 36.
We assume, for purposes of analysis only and without so finding, that Petitioner is an individual with a disability. We agree with the MSPB AJ that the Agency was not required to provide Petitioner with a reasonable accommodation in response to the statements in her reply to the Notice of Removal. Petitioner already had engaged in the conduct that the Agency deemed worthy of removal. The Agency was not required to excuse the conduct or to mitigate the penalty as a form of reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation at Question 36.
We make no finding regarding Petitioner's allegation that the Agency discriminatorily denied her October 1, 2014, request for LWOP. The allegation is one of the claims currently pending a hearing in the hearings unit of the EEOC Miami District Office.3
Disparate Treatment
In Petitioner's case, we find that the MSPB AJ erred by not applying the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner's claims under the disparate-treatment theory of discrimination. We will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her as alleged.
To prevail in a disparate-treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Assuming, arguendo, that Petitioner established prima facie cases of discrimination based on race, disability, and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. CN stated in the Notice of Proposed Removal that Petitioner had made "disruptive anxiety producing statements." In sustaining the removal, the Medical Center Director concluded that the charge was so grave that removal was appropriate.
Petitioner has not established that the Agency's reasons are pretextual. She has not shown that the Agency's explanation is unworthy of credence. For example, Petitioner has not shown that other any other employee made similar statements or otherwise engaged in similar conduct but was not removed. Further, she has not shown that a discriminatory reason more likely motivated the Agency. She has presented no persuasive evidence of unlawful motivation.
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 that Petitioner did not establish that the Agency discriminated against her when it removed her from employment. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___4/24/18_______________
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.
2 Petitioner also alleged that the Agency subjected her to a hostile work environment and discriminated against her based on race when, among other things, it denied her request for LWOP on October 1, placed her on administrative leave on October 22, and gave her a "Fully Successful" rating on her performance appraisal on October 30, 2014. Petitioner requested a hearing on those matters before an EEOC Administrative Judge, and her request is currently pending in the hearings unit of the EEOC Miami District Office.
3 Petitioner's formal complaint cited race as the basis for the alleged discrimination. It is not clear whether she subsequently also alleged discrimination based on disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320180026
7
0320180026