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.