0320090030
03-06-2009
Norman Wright, Petitioner, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Norman Wright,
Petitioner,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Petition No. 0320090030
MSPB No. CB7121080020V1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of an Opinion and 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.
Petitioner was employed by the agency's Patent and Trademark Office
as a Patent Examiner. In October 2005, petitioner received a Written
Warning of Unacceptable Performance. In that warning, agency management
informed petitioner that his performance was unacceptable in the critical
element of Production Goal Achievement and that he would have a period
of 14 weeks to increase his production to the Marginal level and then
maintain it for at least one year in order to avoid possible reduction
in grade or removal. Petitioner was able to achieve at least Marginal
production during the 14-week period. However, in August 2006, the
agency proposed petitioner's removal for unacceptable work performance
based on his failure to maintain Marginal production during the year
following the start of the warning period. After providing petitioner
with the opportunity to respond, the agency issued a final letter of
removal effective December 29, 2006.
Petitioner grieved his removal pursuant to the negotiated grievance
procedure, and the matter went to arbitration. During the arbitration,
petitioner alleged that he was discriminated against on the basis of
disability (major depressive disorder) when he was removed from his
position in violation of the Rehabilitation Act.1 After a hearing, the
arbitrator issued a decision upholding the removal. On July 15, 2008,
petitioner filed a request for review of the arbitration decision with
the MSPB. In its Opinion and Order, the Board sustained the arbitrator's
decision, determining that there was insufficient basis to conclude that
the arbitrator erred as a matter of law in interpreting civil service law,
rule or regulation. Petitioner then filed the instant petition.
The arbitrator addressed petitioner's disability discrimination claims,
finding that petitioner did not prove that the agency failed to properly
respond to his request for reasonable accommodation. Specifically,
during the written warning period, petitioner requested voice recognition
software. The record indicates that his supervisor gave him a reasonable
accommodation packet that petitioner had to fill out, but it appears
that petitioner did not do that. In August 2006, when petitioner's
removal was proposed, he again sought reasonable accommodation in the
form of the voice recognition software and a 60 hour bi-weekly work
schedule. The agency's Office of Civil Rights, which administered its
reasonable accommodation program, requested that petitioner provide
documentation from his physicians in support of his accommodation
requests. However, only one of petitioner's three physicians completed
the form and submitted the information that was needed. The one doctor
who did respond to the form indicated that petitioner's condition had
substantially improved by January 2005, and provided no reason to believe
he needed an accommodation. Based on this evidence, the arbitrator found
that petitioner did not meet his burden of showing that the agency failed
to afford him reasonable accommodation. Rather, the arbitrator found that
the agency was engaged in the interactive process with petitioner, but
petitioner and/or his physicians persistently delayed until the schedule
of the removal process overtook efforts to provide the information needed
on his reasonable accommodation request.
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 affirming the
arbitrator's 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 (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
March 6, 2009
__________________
Date
1 The Commission assumes without so finding, for purposes of this
decision, that petitioner is a person with a disability. 29 C.F.R. �
1630.2(g).
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0320090030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090030