0320180028
05-31-2018
Micheline L.,1 Petitioner, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Micheline L.,1
Petitioner,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 0320180028
MSPB No. CH0432170392I1
DECISION
On February 2, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) seeking 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. For the following reasons, we CONCUR with the MSPB's ultimate decision that Petitioner did not establish that she was discriminated against.
BACKGROUND
Petitioner worked as a Senior Auditor, GS-13 at the Agency's facility in Detroit, Michigan. Petitioner alleged that the Agency discriminated against her on the bases of race (African American), disability (Type I Diabetes), and reprisal for prior EEO activity when she was demoted from a Senior Auditor, GS-13 to a GS-12.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency's demotion of Petitioner from a Senior Auditor, GS-13 to a GS-12 was based on her work performance. The AJ also found that Petitioner did not prove her affirmative defenses of discrimination based on race and disability. The record indicates that Petitioner was placed on a Performance Improvement Plan (PIP), after she did not meet one of the critical elements in her performance plan and received a poor rating. Petitioner was placed on the PIP and given time to improve. The PIP was extended to allow for leave that Petitioner took. The AJ found that the demotion was based on a performance issue and that Petitioner did not show that any of her protected bases were considered with regard to her demotion.
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.
Petitioner then filed the instant petition. Petitioner alleges that two-hundred and ten (210) days after the completion of her PIP, she was issued a Notice of Proposed Removal, based on her performance, and placed on Administrative Leave. On May 5, 2017, the proposed removal was mitigated to a demotion from GS-13 to GS-12. Petitioner argues that she was subjected to disability discrimination because the Agency ignored her request for a narrower scope, or a change in requirements concerning audits she believed were too broad, or time intensive, to complete within the Agency's deadlines. She maintains that the Agency regularly failed to timely address her concerns and when the Agency did respond to her requests, it was often too late for the changes to be beneficial. Petitioner maintains that prior to being placed on a PIP and during the time that she was on the PIP, she experienced numerous hypoglycemic episodes which resulted in her needing to take sick leave. She contends that these episodes contributed to her inability to complete tasks in accordance with deadlines.
Petitioner maintains that she was treated less favorably than her coworkers when the Agency assigned her a greater volume of work than was assigned to her coworkers, refused to narrow the scope of her assignments when she notified management that the assignments were too broad to meet the deadlines of the assignments. Petitioner indicates that had the Agency worked with her to reasonably accommodate her disability, whether by revising the scope of her assignments or responding to her requests for additional staff to be assigned to projects to make those tasks more manageable, or even by assigning her work as an assistant auditor, she would have been able to complete her duties satisfactorily. Petitioner argues that an accommodation would not have resulted in undue hardship.
Petitioner also maintains that she was subjected to retaliation and race discrimination because the Agency was aware of her prior EEO activity and unlike her Caucasian senior auditors she was required to complete all of the survey programs. Petitioner maintained that she was required to complete a greater scope of work, and was without any assistance for much of the time. When Petitioner was assigned two assist auditors, one, was a new auditor who had not performed this type of audit work before, limiting the projects she could perform. Petitioner maintains she was clearly treated less favorably than her similarly situated, Caucasian, coworkers, and the result of this discrepancy in assignments led to her performance being negatively rated.
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).
Disparate Treatment
In Petitioner's case, we find that the Board erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of discrimination when the Agency demoted her; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ and the Board correctly determined that Petitioner did not establish that the Agency discriminated against her, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In the instant case, Petitioner argued that she was subjected to discrimination on the bases of disability, race, and reprisal when she was demoted from a Senior Auditor, GS-13 position to a GS-12 position. We find that even if we assume arguendo that Petitioner established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was demoted when she failed to improve after being placed on a PIP. We find that other than Petitioner's conclusory statement that the work was excessive, that she was not provided enough help, and that the help provided was not adequate, she did not provide any evidence that her race, prior EEO activity, or disability were considered with respect to her performance. Accordingly, we find that Petitioner has not shown that the Agency's legitimate, nondiscriminatory reason was pretext for discrimination.
Reasonable Accommodation
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such 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).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
Assuming, arguendo, that Petitioner is a qualified individual with a disability, like the MSPB, we find that the question becomes whether there was an accommodation available that would have allowed her to perform her duties successfully. In 2008, Petitioner requested an accommodation that was granted. Petitioner requested that she be allowed to use emergency sick leave and be allowed to begin work later than her scheduled shift when necessary. Petitioner was never denied the use of sick leave throughout the PIP period and produced no evidence she was disciplined for doing so. Additionally, the PIP period was extended because of her use of sick leave during the initial PIP period.
Although Petitioner appears to have wanted to have the scope of her audits reduced and for extended deadlines, there is no evidence that she requested these matters as a reasonable accommodation. Even if she asked, the Commission has long held that a reasonable accommodation does not require an agency to lower production or performance standards.2 The only matter, according to the record, that she requested as an accommodation was the use of leave which was granted. As noted by the AJ, Petitioner did not request any accommodation during the PIP period.
Finally, the record shows that Petitioner requested an accommodation in October 2016, which was two months after the PIP had ended. Petitioner requested that the assistant auditor become the auditor in charge for the audit. To the extent this qualified as a reasonable accommodation request, we agree the Agency was under no obligation to cease its demotion action "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." See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) at Question 36.
Accordingly, we agree that Petitioner did not demonstrate that the Agency denied her a reasonable accommodation.
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. 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
___5/31/18_______________
Date
1 This case has been the c assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Petitioner argued that other employees should have been tasked with some of her duties or that she should not have been tasked with the Auditor-In-Charge duties. The record shows, however, that Petitioner was provided additional assistance during the audit, in the form of extra auditors at various times throughout the process, and some reduction in scope when possible.
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