Petitioner, )

Equal Employment Opportunity CommissionAug 31, 2000
03990129 (E.E.O.C. Aug. 31, 2000)

03990129

08-31-2000

Petitioner, )


Gloriann Sanchez v. Department of the Army

03990129

August 31, 2000

Gloriann Sanchez, )

Petitioner, )

) Appeal No. 03990129

v. ) MSPB No. CH-0432-97-0396-I-1

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

INTRODUCTION

On July 14, 1999, the Equal Employment Opportunity Commission (the

Commission) received a petition from Gloriann Sanchez (petitioner) for

review of the Final Order of the Merit Systems Protection Board (MSPB or

the Board) issued June 8, 1999, concerning an allegation of discrimination

in violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq. The MSPB found that the Department of the Army

(agency) had not engaged in discrimination as alleged by petitioner.

For the reasons that follow the Commission concurs with the decision of

the MSPB.

ISSUE PRESENTED

The issue presented is whether the Board's determination that petitioner

failed to prove that the agency discriminated against her on the bases of

disability and reprisal in its decision to remove petitioner is supported

by the record as a whole.

BACKGROUND

Petitioner was employed as a Technical Manuals Writer-Editor. Based

upon her poor evaluations and warnings from her supervisor to improve

the quality of her work product from October 1993 through July 1995,

the agency decided to remove petitioner from her position. Upon the

agency's action, petitioner filed an EEO complaint regarding her removal.

Following the agency's final decision in the EEO complaint, petitioner

appealed the action to the MSPB alleging discrimination on the bases

of disability (left shoulder and knee) and reprisal.<1> No hearing

was held and the MSPB AJ sustained the agency's decision and upheld

petitioner's removal.

Upon a review of the evidence submitted by petitioner and the agency,

the MSPB AJ found that the evidence supported the agency's removal

of petitioner based upon her unacceptable performance appraisals from

October 1, 1993 through July 7, 1995. The MSPB AJ found that the agency

provided petitioner with two notices of her poor performance and time to

improve the quality of her work. The record indicated that the agency's

concerns centered around petitioner's unacceptable numbers of errors and

inconsistencies with her work on the Equipment Improvement Report (EIR)

and Maintenance Digest (MD).<2> The MSPB AJ noted that petitioner failed

to challenge the agency's reason for her poor performance appraisals,

namely the numerous errors she committed while working on EIR and MD.

The MSPB AJ also held that the appraisal standards used by petitioner's

supervisor were not unreasonable. As to petitioner's allegation of

discrimination, the MSPB AJ found incredible petitioner's general

assertions that she did not have sufficient computer time to produce

her assigned tasks and that the amount of her assigned work during her

review period and performance improvement period exceeded her medical

restrictions. The MSPB AJ also found that petitioner failed to make

use of available resources which would have improved her performance

despite her limitation. In particular, the MSPB AJ noted that the

quality of work would not have been affected by petitioner's limitation

because a large portion of her work involved making small changes to

earlier final editions of the EIR and MD already on the computer. Also,

the AJ found that petitioner would have made less mistakes had she used

ordinary devices such as "spell check" in preparing drafts of the digest

publications. Finally, on the claim of reprisal discrimination, the MSPB

AJ held that petitioner's protected activity (acting as an EEO Counselor)

occurred from 1988-1989, some five years prior to the negative performance

evaluations. Therefore, the agency's action was upheld by the MSPB AJ.

Petitioner filed a petitioner for review of her case to the MSPB to

reconsider the initial decision. The MSPB denied petitioner's request

because her request failed to meet the statutory criteria for review.

In her petition for review, petitioner alleges that the standard used

by her supervisor in the performance evaluations was �arbitrary and

capricious.� She alleges that she was never given the opportunity nor

the training to improve her performance. Finally, she alleges that the

agency removed her due to her race and national origin.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the Board with

respect to the allegation of discrimination based on disability and

reprisal constitutes a correct interpretation of applicable law, rule,

regulation or policy directive and is supported by evidence in the record

as a whole.<3> 29 C.F.R. � 1614.305(c).

Disability Discrimination

The Rehabilitation Act prohibits discrimination against qualified

disabled individuals. See 29 C.F.R. � 1630.<4> In order to establish

disability discrimination, petitioner must first show that: (1) she is

an individual with a disability, as defined by 29 C.F.R. � 1630.2(g);

(2) she is a qualified individual with a disability pursuant to 29

C.F.R. � 1630.2(m); and (3) she was subjected to an adverse personnel

action under circumstances giving rise to an inference of disability

discrimination. See Prewitt v. United States Postal Service, 662 F.2d

292 (5th Cir. 1981).

We turn now to an examination of petitioner's disability claim.

Initially, we must reach a threshold determination as to whether

petitioner falls within the protection of the Rehabilitation Act of

1973. One bringing a claim of disability discrimination must first

establish that he is a member of the class of persons protected by the

Rehabilitation Act, i.e., a qualified individual with a disability. An

individual with a disability is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities;

(2) has a record of such an impairment, or (3) is regarded as having

such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined

"substantially limits" as "[u]nable to perform a major life activity

that the average person in the general population can perform" or

"[s]ignificantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life activity

as compared to the condition, manner, or duration under which the

average person in the general population can perform that same major

life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities

include such functions as caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. EEOC

Regulation 29 C.F.R. � 1630.2(i).

Upon review of the record, we find that petitioner demonstrated that

she has a physical impairment. The record indicates that petitioner's

impairment concerns her left shoulder and her knee. Petitioner's

medical documentation indicates that these injuries impose significant

restrictions on her ability to lift more than twenty (20) pounds and her

ability to type for more than four (4) hours a day. However, whether

petitioner has impairments and whether those impairments affect and

substantially limit a major life activity present separate questions.

Based upon the record, the Commission finds that petitioner's impairment

does not rise to the level of a disability that substantially limits

a major life activity. Further, there is no persuasive evidence that

petitioner was regarded by management officials or co-workers as having

nor had a record of a substantially limiting condition.

Assuming, arguendo, that we found that petitioner established a prima

facie case of disability discrimination, the Commission finds that the

evidence is insufficient to show that petitioner was removed because of

her disability rather than based upon her poor performance evaluations.

To the extent that petitioner is alleging that the agency failed to

reasonably accommodate her disability, the Commission agrees with the

MSPB AJ's determination that petitioner failed to show that she could

not have improved her performance because of her work limitation.

We find that petitioner could have reduced her errors with the use of

the available technology and, further, that these tools would not have

been limited by her disability. Therefore, the Commission finds that

the Board properly found that the agency's decision did not constitute

unlawful disability discrimination.

Reprisal Discrimination

Petitioner also alleges that she was discriminated against on the basis

of reprisal. The Commission finds that petitioner has not established

a prima facie case of reprisal discrimination because the deciding

official who recommended her removal was unaware of petitioner's prior

EEO activity. Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222

(1st Cir. 1976).

Assuming, for argument's sake, that petitioner established a prima facie

case of reprisal, we find that the agency articulated a legitimate,

nondiscriminatory explanation for petitioner's removal. The record

indicates that petitioner was given performance evaluations based on her

performance and quality of her work. Based upon the poor evaluations

she received from October 1993 through July 1995, and her verbal and

written warnings regarding her poor performance, petitioner was removed.

Petitioner failed to show that the agency's reasoning was pretext for

discrimination. Accordingly, the Commission finds that the agency was

not motivated by retaliatory animus when it decided to remove her.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

Board'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.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

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 (Z1199)

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 that the Court

appoint an attorney to represent you and that the Court 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 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:

August 31, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to petitioner, petitioner's representative

(if applicable), the agency, and MSPB on:

Date

1During a conference call on May 21, 1997, petitioner waived the

affirmative defenses of race and national origin discrimination.

2The record indicates that petitioner submitted an initial draft of the

EIR containing 272 technical, typographical and formatting errors in

January 1995. Petitioner failed to meet the date of her final �camera

ready� submission which was February 24, 1995. Petitioner submitted

her final draft on March 9, 1995, which contained 99 total errors.

Her supervisor returned the draft to petitioner with the corrections.

Petitioner then resubmitted the entire draft on March 13, 1995, which

contained a total of 256 errors.

3As noted, petitioner waived her claims of discrimination on the bases

of race and national origin during a conference call on May 21, 1997.

These bases were not addressed by the MSPB, therefore, we will not

address them herein.

4The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.