0320090046
05-21-2009
Nasengae M. Heath, Petitioner, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Nasengae M. Heath,
Petitioner,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Petition No. 0320090046
MSPB No. NY-0432-08-0286-I-1
DECISION
On March 27, 2009, 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 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.
During the relevant period, petitioner worked as an Investigative Analyst
at a Garden City, New York center of the agency. On August 24, 2007,
petitioner's supervisor (S1) proposed petitioner's removal from Federal
service citing "unacceptable performance." In a letter dated June 4,
2008, a Division Director sustained S1's proposal and removed petitioner
from employment effective June 6, 2008. In a mixed case appeal to the
MSPB dated June 28, 2008, petitioner alleged that the agency discriminated
against her on the basis of disability (Severe Depression and Anxiety)
when it terminated her employment.
An MSPB Administrative Judge (AJ) held a hearing and, subsequently,
issued an Initial Decision affirming the agency removal and finding
no discrimination. The AJ found that petitioner's work performance
was properly reviewed in accordance with written performance standards
provided to her in advance under an OPM-approved performance appraisal
system. The AJ reviewed the factual bases for each of specifications
offered by the agency concerning petitioner's performance deficiencies
and found adequate evidence to sustain the charges that petitioner had
significant deficiencies in critical elements of her job. The AJ also
concluded that petitioner was made aware of her performance deficiencies
and given a reasonable opportunity to improve, including being placed
on a 120-day performance improvement plan (PIP). Finally, the AJ
concluded that the evidence did not support a finding that petitioner is
an individual with a disability, or that her termination was related to
her medical condition. In reaching this conclusion, the AJ noted that
letters from petitioner's physician indicated that she had made a full
recovery from her condition by April 11, 2006-more than six month before
she was placed on the PIP.
The Initial Decision became final on February 26, 2009. Petitioner then
filed the instant petition, stating that the AJ erred in interpreting
and applying the law regarding disability discrimination.
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).
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 discrimination1. 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 (W0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 21, 2009
__________________
Date
1 This is the result even if we assume for the purpose of analysis
that petitioner is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).
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0320090046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090046