0320120047
04-17-2014
Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320120047
MSPB No. SF-0432-10-0699-I-1
DECISION
On December 22, 2011, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
At the time of events giving rise to this appeal, Petitioner worked as a Contract Specialist,
GS-1102-12, at the Agency's Naval Air Warfare Center, Weapons Division, Contracts Competency, in Point Mugu, California. Petitioner's First Level Supervisor was the Deputy Director for Contracts (S1). Petitioner's Second Level Supervisor was the Director for Contracts (S2).
On March 25, 2010, S1 issued Petitioner a notice of proposed removal for unacceptable performance. The notice cited Petitioner's unacceptable performance under critical element #1 (execution of duties) during the January 12, 2010 to March 13, 2010 performance improvement plan (PIP) period. Specifically, the notice stated that Petitioner was tasked to partially work two major contracting actions during the PIP period but was unable to complete any of the established milestones on the two actions. On April 29, 2010, S2 issued a decision to remove Petitioner, effective May 5, 2010.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of age (64) and reprisal for prior protected EEO activity (EEO complaint filed in February 2010) when she was removed from her position. After filing the appeal, Petitioner raised an additional allegation of disability discrimination.
Petitioner requested a hearing before an MSPB Administrative Judge (MSPB AJ). At the April 26, 2011 hearing, Petitioner withdrew her request for a hearing and requested a decision based on the written record. The MSPB AJ gave the parties an opportunity to supplement the record and advised the parties that the record would close on May 16, 2011. The MSPB AJ, however, precluded Petitioner from supplementing the record with any additional evidence regarding her disability discrimination claim as a sanction for failing to comply with an April 15, 2011 order to appear for the Agency's April 18, 2011 deposition.1
On June 3, 2011, based on the written record, the MSPB AJ issued an initial decision finding that the Agency did not discriminate against Petitioner as alleged.
In sustaining the unacceptable performance charge, the MSPB AJ found that the PIP enumerated target dates for Petitioner to accomplish assigned tasks on two major contracting actions. In addition, the MSPB AJ found that Petitioner failed to complete any of the assigned tasks during the PIP period.
In finding no denial of reasonable accommodation, the MSPB AJ determined that Petitioner failed to establish that she was an individual with a disability or that she had requested a reasonable accommodation with regard to her duties and responsibilities in the workplace. Specifically, the MSPB AJ found that the medical documentation included in Petitioner's December 28, 2010 prehearing submission only indicated that Petitioner was diagnosed with "hyperactive airways disease with a significant atopic component resulting in recurrent rhinitis and asthma" and that Petitioner had undergone treatment for various medical conditions beginning in June 2006. In addition, the MSPB AJ noted that an April 15, 2011 order required Petitioner to provide more specific information about her disability discrimination claim by April 19, 2011, but that Petitioner had failed to do so.
In finding no disparate treatment, the MSPB AJ initially determined that the Agency articulated a legitimate, nondiscriminatory reason for Petitioner's removal; namely, Petitioner's unacceptable job performance during the PIP period. Next, the MSPB AJ found that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's explanation was a pretext for disability, age, or reprisal discrimination. Regarding disability discrimination, the MSPB AJ cited affidavit testimony from S1 and S2 that, at the time of the removal, they were unaware that Petitioner had a disability. Regarding age discrimination, the MSPB AJ found that the record did not support Petitioner's assertion that younger employees (CW1, CW2) received preferential treatment based on their age. Although Petitioner asserted that CW1 was assigned a follow-on contract that had a significant amount of money associated with it, the MSPB AJ cited affidavit testimony from S1 and CW1 that the work assignment was made for business continuity and efficiency reasons; specifically, the customer had requested that CW1 work on the follow-on contract because CW1 had previously worked on the original contract in place at the time and was already familiar with the customer's needs, the contractor's business organization and employees, and the contractor's typical documentation. Although Petitioner asserted that CW2 received more training opportunities and tuition assistance, the MSPB AJ cited affidavit testimony from S1 that CW2 worked in a different field and was not under her supervision. Regarding reprisal discrimination, the MSPB AJ found that Petitioner failed to introduce evidence to suggest that S1 or S2 held any retaliatory animus against her.
Petitioner filed a petition for review by the full Board, but the Board denied her petition.
Petitioner then filed the instant petition. In her petition, Petitioner argued that the MSPB AJ erred in sanctioning her for failing to appear for the April 18, 2011 deposition. Specifically, Petitioner asserted that she later submitted medical documentation indicating that she was unable to complete the deposition.
ANALYSIS AND FINDINGS
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).
Upon review of the record, we agree with the MSPB's finding of no disability, age, or reprisal discrimination. As an initial matter, we note that the Commission generally has no jurisdiction to review the MSPB's imposition of sanctions. See Howard v. Dep't of Commerce, EEOC Petition No. 0320090065 (July 7, 2009) (finding that the Commission has no authority to review the MSPB's issuance of sanctions); O'Shell v. Dep't of the Army, EEOC Petition No. 03920185 (Nov. 4, 1992) (finding that the Commission has no jurisdiction to review the MSPB's imposition of sanctions). In addition, we note that Petitioner, in her petition to the Commission, did not specifically challenge any part of the MSPB's decision with respect to the merits of her discrimination claims. Regarding her denial of accommodation claim, we agree with the MSPB that Petitioner failed to establish that she requested a reasonable accommodation, i.e., an adjustment or change at work for a reason related to a medical condition that would enable her to perform the essential functions of her Contract Specialist position. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, General Principles and Question 1 (as revised Oct. 17, 2002). Regarding her disparate treatment claims, we agree with the MSPB that Petitioner failed to establish that the Agency's articulated reason for her removal - her unacceptable performance during the PIP period - was a pretext for disability, age, or reprisal discrimination. Petitioner has the overall burden of proving discrimination and we agree with the MSPB that she has not done so here.
Based upon a thorough review of the record, it is the decision of the Commission to CONUR with the final decision of the MSPB 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 (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 (Z0610)
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
__4/17/14________________
Date
1 The Agency filed a motion for sanctions against Petitioner on April 19, 2011.
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0320120047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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