0320150086
02-25-2016
Ranae P.,1 Petitioner, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ranae P.,1
Petitioner,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.
Petition No. 0320150086
MSPB No. DC0752140945I1
DECISION
On August 27, 2015, Petitioner filed a 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.
BACKGROUND
Petitioner worked as an Industry Operations Specialist at the Agency's Policy Development & Evaluation Branch, Bureau of Alcohol, Tobacco, Firearms and Explosives facility in Washington, DC. Petitioner alleged that the Agency discriminated against her on the basis of disability when she was removed from duty effective July 12, 2014 based on excessive absences. The charge was specifically based on Petitioner's absence from December 30, 2012 until the date of the letter of proposed removal, May 21, 2014 - with the exception of one week in January 2013.
A hearing was held and on May 26, 2015, an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency established that Petitioner engaged in the charged misconduct, and that she failed to establish that the Agency engaged in disability discrimination by not providing her with the requested accommodation. Specifically, the decision held that while Petitioner is an individual with a disability, she is not a qualified individual with a disability because she cannot perform the essential functions of the position with or without a reasonable accommodation. Petitioner then filed the instant petition.
In her petition for review, Petitioner requests that the Commission reject the AJ's decision and find that the Agency discriminated against her because of her disability because the AJ failed to consider significant evidence that: (1) she was medically able to perform the essential functions of the position during the time period that her first request for reasonable accommodation was being considered by the Agency; (2) the functions of her position which the Agency considered were required were minimal in frequency; (3) the Agency allowed two other, non-disabled individuals who held the same position as Petitioner to work full-time outside of the Washington, D.C. commuting area; (4) the Agency failed to engage in the interactive process with Petitioner; and (5) the Agency failed to conduct a search for a vacant position after Petitioner's second request for reasonable accommodation.
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).
The Commission finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of disability discrimination, we agree with the MSPB that the Agency provided a legitimate, non-discriminatory reason for Petitioner's removal, and that Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal.
The record evidence clearly establishes, and Petitioner does not dispute, that she was absent December 2012 through May 21, 2014, with the exception of one week in January 2013. Petitioner was absent during this time period because of her medical condition which was "beyond her control." The Agency did not include absences related to the leave Petitioner took pursuant to the Family Medical Leave Act (FMLA) in its consideration of proposing removal. The AJ determined that whether or not Petitioner was out on approved leave was immaterial because she could not be on the job. Although Petitioner testified that she was able to return to work, medical evidence in the record contradicts this.
The Deputy Chief of Field Management Staff (Deputy) considered Petitioner's requests to telework from North Carolina and decided to deny the request. Specifically, he reasoned that Petitioner would be unable to participate in meetings with high ranking officials that were frequently not scheduled in advance, and happened approximately every two weeks. The Deputy indicated that Petitioner could not effectively coordinate programs and work in groups from a home outside the Washington, D.C. commuting area. Additionally, he added that effective communication was critical to any telework situation, and indicated that there had been great difficulty communicating with Petitioner when she was teleworking in the past. Specifically, Petitioner did not respond to email or phone messages in a timely manner. Testimony from Petitioner about her emotional state also caused the Deputy to question whether Petitioner's requested accommodation to work from a home outside the Washington, D.C. commuting area would even enable her to more effectively perform the essential functions of her position. Petitioner testified that she would "cry all day," could not focus, had memory problems, and had difficulty communicating.
While the Agency did not permit Petitioner to telework from North Carolina, she was offered other effective accommodations, including the option to telework from a residence in the Washington, D.C. commuting area. Petitioner would have had some of the comforts of working from a personal space, but still be able to report in on short notice. A search was also conducted to find a vacant, funded alternative position for Petitioner, but that search yielded no results at the time.
We find that the employees Petitioner cited as comparators were not similarly situated to her. Petitioner makes the argument these employees held the same title, grade and job series as she did. The record indicates, however, that "Industry Operations Specialist" is a generic title within the Agency that involves a wide variety of actual duties. These other employees were assigned to an entirely different branch than Petitioner; had a different supervisor than Petitioner; and performed entirely different duties than Petitioner. Additionally, both employees had permanent duty stations in Dallas and Boston, and they never teleworked full-time outside of those stations as Petitioner was requesting to do here.
Ultimately, the Deputy determined that Petitioner's position needed to be filled, because it was uncertain whether, or when, Petitioner would return to fill it. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove her was based on her disability instead of her inability to be present at work to fulfill the essential duties of her position.
CONCLUSION
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 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___2/25/16_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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