0320180060
09-13-2018
Minnie M.,1 Petitioner, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Minnie M.,1
Petitioner,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180060
MSPB No. SF-0714-18-0137-I-1
DECISION
On June 7, 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 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 Legal Assistant, GS-07 at the Agency's Loan Guaranty National Practice Group in Seattle, Washington. Petitioner alleged that the Agency discriminated against her on the bases of disability (hip and back problems) and in reprisal for Whistleblower activity when, effective December 12, 2017, she was removed from her position for failing to safeguard government equipment.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency's actions were appropriate, namely, that Petitioner was removed from her position after it was discovered that she had been arrested for driving under the influence (DUI), and as a result of her car being impounded her government laptop was left on the back seat of her car unattended for four days. Therefore, Petitioner was removed for failure to safeguard government equipment.
The AJ also found that Petitioner did not prove her affirmative defenses. Petitioner argued that she was removed because she had requested a reasonable accommodation of a standing desk and telework; in addition to complaining about sleep difficulties. Petitioner also maintained that she was removed because she had reported Agency wastefulness. The AJ determined however, that the Agency articulated legitimate nondiscriminatory reasons for its actions, namely that Petitioner was removed because she did not safeguard her government equipment. The AJ found that Petitioner was an individual with a disability based on undisputed evidence that she had hip and back problems as a result of her time as a paratrooper, however she did not demonstrate that she was treated more severely than anyone without a disability. Moreover, the AJ found that Petitioner received the standing desk, and her workgroup was allowed full-time telework so telework as an accommodation was not needed. Also, Petitioner was allowed a flexible schedule to deal with pain and sleep difficulties. Therefore, it was determined that Petitioner did not show that she was denied a reasonable accommodation or that the Agency's reasons were pretext for discrimination.
Petitioner then filed the instant petition. She made no arguments on appeal.
ANALYSIS AND FINDINGS
Standard of 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 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).
At the outset, we note that the Commission has previously held that whistleblower activities are outside the purview of the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). Consequently, we will not address this issue.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing 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 Constr. 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, 441 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 Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case, Petitioner must demonstrate that: (1) she is an "individual with a disability;" (2) she is "qualified" for the position held or desired; (3) she 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).
We find that even if we assume, arguendo, that Petitioner established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated because she failed to safeguard her government computer. We further find that Petitioner did not demonstrate that the Agency's articulated, nondiscriminatory reason for her removal 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, we find no persuasive evidence that she was denied a reasonable accommodation. The record reveals that Petitioner requested a standing desk, a flexible schedule, and telework and that all of these requests were granted. Therefore, we find that Petitioner did not show that she was denied a reasonable accommodation. Moreover, we find no nexus between the accommodations that she requested and her subsequent removal.
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
__9/13/18________________
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.
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