[Redacted], Emerita G., 1 Petitioner,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Dec 29, 2020

Petition No. 2021000349 (E.E.O.C. Dec. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerita G.,1 Petitioner, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency. Petition No. 2021000349 MSPB No. SF-0752-20-0426-I-1 DECISION On October 16, 2020, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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. For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not establish that the Agency discriminated against her. ISSUE PRESENTED The issue presented herein is whether the MSPB AJ properly determined that Petitioner failed to establish that she was subjected to discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Auditor, GS-0511-12/9, at the Agency’s Office of Inspector General (OIG), Office of Audit Services (OAS), in San Francisco, California. On April 8, 2020, Petitioner was removed from federal service for excessive absences. 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. 2021000349 2 As part of her affirmative defenses to the Agency’s removal action, Petitioner alleged that the Agency subjected her to discrimination based on disability (physical) and reprisal for prior protected EEO activity2 when it denied her reasonable accommodation and removed her from federal service. The record reflects that Petitioner joined OAS in December 1999 and began her service at the OAS office in Sacramento, California. In December 2006, Petitioner transferred to the OAS office in San Francisco, California. Her first level supervisor (S1) was the Assistant Regional Inspector General for Audit Services. In November 2018, S1 informed her audit staff, including Petitioner, that they would be required to telework from home for the period of December 10, 2018 to January 7, 2019, due to upcoming renovations to the building. See Appeal File at 640. The following month, all audit staff, including Petitioner, commenced full-time telework from home. Though full-time telework was scheduled to end on January 7, 2019, for all staff, Petitioner did not return to the office until January 10, 2019.3 Id. at 641. On her first day back at the office, Petitioner was assigned to a workspace across the hall from the construction. Id. However, Petitioner fell ill and left work early on approved sick leave. Id. She has not been physically at the office since January 10, 2019, as she has been either teleworking or on leave. Id. at 69 and 642.4 On February 4, 2019, Petitioner emailed S1 a letter dated January 29, 2019, from her treating physician containing a request for reasonable accommodation. See Appeal File at 485. 2 Petitioner previously filed an EEO complaint alleging that on February 7, 2017, the Agency subjected her to discrimination when it failed to reasonably accommodate her chemical sensitivities. In EEOC Appeal No. 0120180504 (Sept. 24, 2019), the Commission concluded that Petitioner was not denied reasonable accommodation, as the Commission found that the Agency had provided Petitioner with various accommodations including additional telework days and reassignment to Sacramento (which she declined). Petitioner filed another EEO complaint on June 7, 2019, wherein she alleged that Agency subjected her to discrimination on the basis of disability when her supervisor denied her requests for reasonable accommodation (i.e., request for reassignment and/or permanent telework) during the period of April 15, 2019 to February 21, 2019). The Agency dismissed the complaint for failure to state a claim, as the issue raised in the complaint had previously been adjudicated in Petitioner’s prior EEO complaint. Petitioner then filed an appeal with the Commission. On October 7, 2020, the Commission procedurally dismissed the appeal due to her failure to timely file an appeal. See Paula V. v. Dep’t of Health and Human Serv., EEOC Appeal No. 2020004015 (Oct. 7, 2020). 3 According to S1, Petitioner did not return to the office as scheduled because Petitioner mistakenly thought that she and her colleagues were supposed to return at a later date. See Appeal File at 641. 4 According to S1, “[e]xcept for one day in January 2019, [Petitioner] was teleworking or on leave in 2019.” See Appeal File at 642. 2021000349 3 In the letter, Petitioner’s treating physician opined that Petitioner should work from home for at least three months and possibly up to six months due to the following conditions: environmental sensitivities, dermatitis, hives, chemical sensitivity, toxic effect solvents, immune deregulation, vasculitis, toxic encephalopathy, autonomic nervous dysfunction, hypothyroid, allergic rhinosinusitis, and allergic food gastroenteritis. Id. Petitioner’s treating physician further opined that Petitioner had developed significant eczema and hives “associated with exposure to chemicals used in the renovation” of Petitioner’s workplace. Id. In response to Petitioner’s email, S1 immediately granted Petitioner’s request to telework while she considered Petitioner’s request. See Appeal File at 486. On February 21, 2019, S1 issued Petitioner a written memorandum formally allowing Petitioner to telework until the completion of construction on the building. Id. at 192. In approving Petitioner for telework, S1 informed Petitioner that she believed that the January 29, 2019 letter from Petitioner’s treating physician appeared to indicate that Petitioner could return to work once construction ended. S1 advised Petitioner that if Petitioner desired a different accommodation than the one provided (i.e., full time telework until the end of the construction), Petitioner would need to provide current medical documentation, specific to the condition for which she sought accommodation. Id. In the same month, February 2019, S1 issued Petitioner a “fully successful” performance rating for the previous fiscal year. See Appeal File at 516. In the days following the appraisal, S1 began noticing issues with Petitioner’s work performance. The alleged deficiencies related to issues with missed deadlines, insufficient audit analysis, and audit assignments that were not completed as instructed. Id. at 642. In response to the criticisms about her performance, Petitioner took leave. Id. On March 12, 2019, Petitioner called S1 to inform her that she would be unable to perform the essential functions of her position. See Appeal File at 644. During the call, Petitioner also expressed concerns that she would be placed on a performance improvement plan (PIP). Id. However, S1 advised Petitioner that she had no intention of placing Petitioner on a PIP and just wanted to focus on the identified performance deficiencies. Id. Following the call, Petitioner took leave for the remainder of the day. Id. Beginning March 13, 2019, Petitioner sent daily text messages to S1 stating that she was too ill to work. Id. at 645. S1 allowed Petitioner to take leave under the Family and Medical Leave Act (FMLA) through the end of May 2019, when her FMLA entitlement expired. Id. On April 15, 2019, while Petitioner was on FMLA leave, Petitioner’s attorney reached out to the Agency’s Reasonable Accommodations Case Manager (RA Manager) to request reassignment as a reasonable accommodation. See Appeal File at 657. The RA Manager forwarded Petitioner’s request to S1 on April 18, 2019. Id. Following a nationwide search of all Agency components, the Agency informed Petitioner on April 26, 2019, that it would be able to reassign her to vacant, funded positions in the following locations: 1) Sacramento, California (i.e., her previous office location); 2) Los Angeles, California; and 3) Seattle, Washington. Id. On May 15, 2019, Petitioner’s attorney declined the offered geographic reassignment options because Petitioner would be unable to relocate due to her health. Id. at 658. 2021000349 4 Petitioner’s attorney requested that the Agency reassign Petitioner to a vacant, funded position within reasonable commuting distance of San Francisco. Id. In response to this request, the Agency conducted another search and found only one potential position for Petitioner. See Appeal File at 658. That position was located in the same office building that Petitioner could no longer work in due to her health. Id. As there were no available vacant, funded positions that were acceptable to Petitioner, the Agency formally denied Petitioner’s request for reassignment on June 3, 2019. Id. Following the expiration of her FMLA entitlement in May 2019, Petitioner went on leave without pay. She remained on leave without pay until her eventual removal. On January 13, 2020, S1 contacted Petitioner to request additional information as to when Petitioner would be able to return to work. See Appeal File at 132. In her memorandum to Petitioner, S1 advised Petitioner that failure to maintain a regular work schedule could result in adverse action, including removal from federal service. Id. Petitioner responded to S1 on January 26, 2020. In her response, Petitioner informed S1 that she had no estimate as to when she could return to work and that her physician had not cleared her to return to work. Petitioner emphasized that she was trying to recover from the chemical exposure. On January 27, 2020, S1 sent an email to Petitioner requesting medical documentation from Petitioner to corroborate her claimed inability to work, as the medical documentation that Petitioner provided in 2019 did not state that Petitioner could not work. See Appeal File at122. However, Petitioner never provided the requested documentation. The following month, S1 sent Petitioner another email, which reiterated the need for Petitioner to provide additional medical documentation or face potential discipline. Id. On March 10, 2020, S1 proposed to remove Petitioner from federal service due to excessive absences. Petitioner did not respond to the proposal. See Appeal File at 106-111. On April 2, 2020, Petitioner’s second-level supervisor (S2) issued a decision effectuating the proposed removal, effective April 8, 2020. Id. at 83-97. MSPB Decision Following her removal, Petitioner challenged her removal by filing an appeal with the MSPB. Though Petitioner initially requested a hearing before an MSPB Administrative Judge (AJ), she subsequently withdrew her request. As such, the assigned MSPB AJ issued the initial decision based on the pleadings and ultimately affirmed the Agency’s removal action. In affirming the removal action, the AJ rejected Petitioner’s affirmative defenses. With regard to Petitioner’s affirmative defense based on the denial of reasonable accommodation, the MSPB AJ found that the Agency had reasonably accommodated Petitioner. The MSPB AJ also found that Petitioner was not a qualified individual with a disability because Petitioner expressly “maintained that she would be unable to perform the duties of her position beginning in March 2021000349 5 2019.” The MSPB AJ determined that “[t]here is nothing in the record to suggest that permitting [Petitioner] to permanently telework or reassigning her to another building in San Francisco would have permitted her to return to her duties at that time.” Therefore, the MSPB AJ concluded that Petitioner could not prevail on her affirmative defense. As for Petitioner’s affirmative defense based on reprisal for prior protected EEO activity, the MSPB AJ found no evidence that the Agency’s removal action was retaliatory. In reaching this conclusion, the MSPB AJ considered Petitioner’s contention that S1 knew about Petitioner’s prior EEO activity when she allegedly denied Petitioner’s request for full time telework, denied her request to move to another building, threatened to put Petitioner on a PIP, and made sensitive remarks such as telling Petitioner to get herself together. However, the MSPB AJ concluded that the record failed to persuasively support Petitioner’s allegations or show that the alleged incidents were retaliatory in nature. The decision became the final decision of the MSPB on September 18, 2020. This petition followed. ARGUMENTS IN PETITION Through her attorney, Petitioner argues that the MSPB AJ erred in finding that she was not a qualified individual with a disability. In this regard, while Petitioner admits that she was unable to perform the essential functions of her position beginning March 2019, she states that this was due to the Agency’s failure to provide her with reasonable accommodation. Petitioner maintains that the record as a whole reflects that she was a qualified individual with a disability during the relevant period, as the record reflects that she received a “fully successful” performance rating in her most recent appraisal and has successfully performed her job for the last 19 years. Petitioner emphasizes that she was successful in performing her duties in the preceding years because her previous supervisor had provided accommodated that aided her. These accommodations included but were not limited to: use of an alternate entrance; permission to leave when the air quality was poor; and two days of telework and one flex day per pay period. She claims that her new supervisor discontinued these accommodations, which led to her inability to work. While Petitioner also acknowledges that the Agency offered her reassignments to three cities, she asserts that the Agency should have been able to reassign her somewhere in San Francisco. In this regard, she maintains that “it would not have been very difficult for the Agency to move her” given “the large [number] of auditors needed in such a large Agency.” Petitioner further argues that the MSPB AJ erroneously found that the record did not support a connection between the denial of her requested accommodations in 2016 and 2017, and her inability to work in 2020, which resulted in her removal. In this regard, Petitioner asserts that she attempted to request reasonable accommodation in 2017, but the Agency denied her request on February 7, 2017. 2021000349 6 She asserts that the denial played a role in her removal, as she continued to be exposed to chemicals. Moreover, Petitioner argues that the Agency failed to grant her reasonable accommodation request to be transferred to another building. She also asserts that the Agency’s offer to allow her to enter the building from a back entrance was ineffective because she would still be exposed to chemicals. Petitioner further asserts that the Agency denial of her request for reassignment in 2019 forced her to take leave without pay, as she was unable to work. She asserts that the Agency removed her despite a medical statement from a treating physician stating that she should be working from home at least three to six months to ensure that the chemicals that she had been exposed to would leave her system. Petitioner claims that the Agency removed her before the recommend three to six months had elapsed. Finally, Petitioner asserts that removal action was based on reprisal for her prior protected EEO activity. Specifically, Petitioner asserts that the Agency removed her from federal service on April 2, 2019, less than one month after her initial EEO contact on March 26, 2019. She contends that the Commission can infer a nexus given the close timing between her protected EEO activity and her removal. Petitioner also challenges the MSPB AJ’s finding that S1 granted Petitioner’s request to telework full time for three to six months. She contends that the MSPB AJ failed to consider the fact that Petitioner’s treating physician recommended a three to six-month window for the chemical to exit her system, but the Agency removed her just two months after receiving the letter from her physician. Petitioner maintains that these actions were taken by the Agency in reprisal for her prior protected EEO activity. In response, the Agency requests that the Commission concur with the MSPB and emphasizes that it provided Petitioner with reasonable accommodation. The Agency also maintains that Petitioner never requested to be transferred to another building and never sought permanent telework. In this regard, the Agency asserts that Petitioner only requested permission to work from home for three to six months and sought reassignment to a different geographic location, not a different building. The Agency asserts that it granted Petitioner’s request for telework and offered her reassignment to three locations. The Agency further contends that it did not retaliate against Petitioner. In this regard, the Agency asserts that Petitioner incorrectly stated in her brief that she was removed from federal service on April 2, 2019. The Agency maintains that it issued Petitioner a decision effectuating the proposed removal on April 2, 2020, with an effective date of April 8, 2020. The Agency emphasizes that “[t]he over [one] year separation between Petitioner’s protected activity and her removal is not sufficiently close to establish a nexus between the protected activity and Petitioner’s adverse action.” In addition, the Agency contends that it had a legitimate, nondiscriminatory reason for removing Petitioner, namely her excessive absences, for which she cannot persuasively establish pretext. 2021000349 7 STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS Denial of Reasonable Accommodation We will first analyze Petitioner’s affirmative defense based on the denial of reasonable accommodation. Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Assuming arguendo that Petitioner was a qualified individual with a disability, we conclude that the Agency did not fail to reasonably accommodate her disabilities. Our review of the record shows that Petitioner requested two accommodations during the relevant period. First, on February 4, 2019, Petitioner emailed S1 a letter dated January 29, 2019, from her treating physician containing a reasonable accommodation request to telework for at least three months and possibly up to six months. In response to the letter, S1 immediately allowed Petitioner to telework while she considered the request. On February 21, 2019, S1 formally authorized Petitioner to telework until the end of construction on the building and advised Petitioner that if she wanted a different accommodation, she should submit medical evidence clearly stating the desired accommodation. While we are mindful that S1, in allowing Petitioner to telework until the end of construction, did not expressly allow Petitioner to telework for three to six months, we find that the afforded accommodation was consistent with Petitioner’s requested accommodation as Petitioner was allowed to telework and/or take leave until her removal in 2020. 2021000349 8 We note that Petitioner did not submit any additional medical documentation to the Agency indicating a need for more/different accommodations. We note that, in Admission No. 11 of Petitioner’s interrogatory, Petitioner admitted that the only medical documentation that she submitted in 2019 in support of her need to telework was the January 29, 2019, letter from her treating physician, which she submitted to S1 on February 4, 2019. See Appeal File at 443. Our review of the record also shows that on March 10, 2020, the date when Petitioner received the proposed removal notice, she underwent a neuropsychological examination. The examining psychologist found that Petitioner exhibited superior intellectual functioning, normal memory, normal executive functions (new learning, problem solving, abstract reasoning, concept formation, mental efficiency, and judgment), no significant anxiety or depression, and intact self-esteem. Id. at 465-467. However, the psychologist concluded that Petitioner was disabled due to mild neurocognitive disorder, depressive disorder, and anxiety disorder. Id. at 468. It is unclear whether Petitioner submitted this report to the Agency, as neither Petitioner nor the Agency cited the report in their pleadings before the MSPB or the Commission. With regard to Petitioner’s request for reassignment, we note that the Agency responded to her request by conducting a nationwide search of all Agency components for vacant, funded positions. Following the search, the Agency offered Petitioner three possible geographic reassignment options, which included reassignment to Petitioner’s previous office in Sacramento, California. When Petitioner’s attorney specifically requested reassignment to a location within reasonable commuting distance of San Francisco, the Agency conducted another search and found only one vacant, funded position located in the same building as Petitioner’s office. The record reflects that the Agency denied Petitioner’s request for reassignment only after Petitioner declined all of the reassignment options offered to her. While Petitioner asserts in her petition that the Agency could have reassigned her to a position in or near San Francisco given the large number of auditors in its employ, we find that contention to be speculative and unsupported, as the record clearly shows that the Agency conducted two searches for available positions. We note that an employer is not required to create a job for a disabled employee. See Phoebe O. v. Soc. Sec. Admin., EEOC Appeal No. 0120150304 (Mar. 30, 2017). Given the facts in this case, we conclude that the Agency did improperly fail to reassign Petitioner. We also reject Petitioner’s contention that the Agency failed to consider her request to transfer to another building. Our review of Petitioner’s interrogatory shows that Petitioner admitted that the only medical documentation that she provided to the Agency in 2019 was the one from her treating physician dated January 29, 2019, which she submitted to S1 on February 4, 2019. See Appeal File at 443. We note that the documentation from Petitioner’s treating physician contains only one recommended accommodation: telework for at least three months and possibly up to six months. Having reviewed the record, we find no evidence that Petitioner ever requested to transfer to another building. We note that OAS has only one office in San Francisco. See Appeal File at 646. With regard to Petitioner’s contention that her previous supervisor effectively accommodated her chemical sensitivities by allowing her to use alternate entrance, leave when the air quality was poor; telework for two days a week and flex one day per pay period, we note that in this case, the Agency allowed her to telework from home every single day. 2021000349 9 Because the Agency’s offer to allow Petitioner to telework effectively eliminated her exposure to chemicals in the workplace, we are unpersuaded that the accommodations offered by Petitioner’s previous supervisor were more effective. As for Petitioner’s contention that the Agency’s failure to accommodate her in 2016 and 2017 resulted in her removal in 2020, we also find that contention to be unpersuasive. In this regard, we note that in EEOC Appeal No. 0120180504 (Sept. 24, 2019), the Commission specifically addressed Petitioner’s contention that the same Agency/component unlawfully denied her 2017 reasonable accommodation request for telework and reassignment due to her chemical sensitivities. There, we found that the Agency properly accommodated Petitioner by affording her one additional day of telework and offering her the option of transferring to her previous office in Sacramento, California. Consequently, we decline to re-adjudicate whether Petitioner was subjected to discrimination in 2016 and 2017. As for the instant complaint, for the reasons discussed above, we find that record clearly shows that the Agency made repeated good faith attempts to accommodate Petitioner. Therefore, the Commission concurs with the MSPB that the Agency did not fail to provide Petitioner with reasonable accommodation. Disparate Treatment For Petitioner to prevail on her claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. To establish a prima facie case of disability discrimination under a disparate treatment theory, Petitioner must demonstrate that: (1) she is an “individual with a disability” (2) she is “qualified” for the position held or desired; (3) she was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied a reasonable accommodation. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020). To establish a prima facie case of disparate treatment on the basis of reprisal, Petitioner must show that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132503 (Aug. 28, 2014), citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2021000349 10 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Petitioner must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Petitioner established a prima facie case of discrimination based on disability and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to the Agency’s removal action, our review of the record shows that the Agency removed Petitioner from federal service due to her excessive absences. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Petitioner now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. See, e.g., Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). After careful consideration, we find that Petitioner cannot persuasively establish pretext. In reaching this conclusion, we considered Petitioner’s contention that a nexus can be inferred by the close timing between Petitioner’s initial EEO contact on March 26, 2019 and her removal on April 2, 2019. However, our review of the record shows that Petitioner was actually removed from federal service in April 2020, not April 2019, as she alleges.5 Having reviewed the record, we find no evidence to suggest that Petitioner’s removal was for any reason other than her excessive absences. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See, e.g., Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Given the facts in this case, we find that Petitioner has failed to show by the preponderant evidence that she was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its action. 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. 5 We note that on page 16 of Petitioner’s brief in support of her petition, she states that she was removed from federal service on April 2, 2019. However, on page 8 of the same brief, Petitioner states that she was removed on April 2, 2020. 2021000349 11 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 Petitioner’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 December 29, 2020 Date