0320160069
12-15-2016
Mike G.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mike G.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Petition No. 0320160069
MSPB No. DC-0752-15-0675-I-1
DECISION
On September 21, 2016, 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 his 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. For the reasons that follow, we CONCUR with the Final Order of the MSPB finding no discrimination.
ISSUE PRESENTED
Whether Petitioner established that the MSPB's Final Order was incorrect when it found, among other things, that he did not establish that he was discriminated against based on disability when he was removed from his position.
BACKGROUND
We note the following salient facts: the Agency removed Petitioner, a GS-14 Immigration Officer with a Top Secret security clearance, on a charge of unauthorized use of the Treasury Enforcement Communications System (TECS)2, which was supported by 45 specifications. Petitioner filed an appeal, but did not request a hearing. He stipulated to the Agency's charges but argued that the Agency discriminated against him on the basis of his disability when it failed to accommodate his Obsessive Compulsive Disorder, Major Depressive Disorder, and Attention Deficit Hyperactivity Disorder medical conditions. Petitioner noted that neither he nor the Agency were aware of his medical conditions prior to the Agency proposing his removal.
The MSPB Administrative Judge (AJ) issued an initial decision that upheld Petitioner's removal. Among other things, the AJ rejected Petitioner's affirmative defense of disability discrimination because the Agency's notice of proposed removal was issued before either party was aware of Petitioner's medical conditions. Therefore, the AJ found that the Agency could not have acted because of his disability. Likewise, the AJ found no evidence that Petitioner had informed the Agency of a reasonable accommodation that would have allowed him to perform the duties of his position. Petitioner filed a Petition for Review with the full Board, which was denied. The instant petition followed.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals or 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).
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, he 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 Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Petitioner has established a prima facie case, the burden of production 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). 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 his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).
In analyzing a disparate treatment claim under the Rehabilitation Act, where an agency denies, as the Agency does here, that its decisions were motivated by an employee's disability and there is no direct evidence of discrimination, Petitioner may demonstrate a prima facie case by establishing that: (1) he is an "individual with a disability;" (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Assuming for the purposes of this decision only that Petitioner was able to successfully establish a prima facie case of disability discrimination, we find that the Agency provided legitimate non-discriminatory reasons for its actions. The record indicates that Petitioner was removed for engaging in misconduct. Petitioner provided no persuasive evidence that his disabilities played any role in the Agency's decision. In fact, the record indicates that the Agency was not aware of Petitioner's condition at the time his removal was proposed. Moreover, the Commission notes that our Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at Question 30 specifically indicates that an employer may discipline an individual with a disability for violating work place conduct standards even if the misconduct results from a disability. Further, to the extent that Petitioner argued that the Agency should have accommodated him after his misconduct instead of removing him, Question 31 of the same guidance states that reasonable accommodation is prospective and employers are not required to excuse past misconduct.
CONCLUSION
Based upon a thorough review of the record, including arguments raised by Petitioner in his petition for review that were not specifically addressed, 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 (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
_12/15/16_________________
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 The record indicates that TECS is a database through which certified Agency personnel access several law enforcement systems, for official use only and on a strict need-to-know basis.
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