0320090075
09-09-2009
Sandra Reid, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sandra Reid,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320090075
MSPB No. AT0432090266I1
DECISION
On June 29, 2009, petitioner filed a timely 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 Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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.
In an appeal to the MSPB, petitioner alleged that she was discriminated
against on the bases of race (Black), sex (female), disability (wrist),
age, and reprisal for prior protected EEO activity when, effective
February 15, 2008, she was removed from her position of Upstream Program
Support Assistant at the agency's Educational Benefits Office in Atlanta,
Georgia.
MSPB DECISION
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding no discrimination had occurred.
The MSPB AJ determined that the agency articulated legitimate,
nondiscriminatory reasons for the removal action. In particular,
the agency had production statistics for one year and determined that
petitioner's performance was far below the fully successful standard.
Petitioner was placed on a Performance Improvement Plan (PIP). During
that time, the agency produced evidence that petitioner's performance
continued to be unacceptable. Therefore, based on her failure to improve,
the agency removed petitioner from her position.
The MSPB AJ determined that petitioner failed to show that the
agency's reasons were pretext for discrimination. The MSPB AJ noted
that the proffered comparators were not in fact comparable employees.
The MSPB AJ found that the employees were placed on PIPs, however, unlike
petitioner, their production levels improved during the PIP period. The
MSPB AJ concluded that petitioner failed to meet her burden of showing
that the removal action was based on her race, sex, age and/or prior
protected activity. As to petitioner's disability claim, the MSPB AJ
determined that petitioner failed to prove that her injury prevented her
from meeting her production standards. Therefore, the MSPB AJ concluded
that petitioner failed to establish her affirmative defenses of disability
discrimination.
PETITION FOR REVIEW
Petitioner then filed the instant petition. Petitioner specifically
asserted that the agency forced older employees to retire in order to
fill positions with younger, tech-savvy workers. Further, petitioner
argued that her performance was misrepresented and that she was singled
out by management.
FINDINGS AND ANALYSIS
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).
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Upon review of the record, we find that the MSPB AJ properly determined
that the agency articulated legitimate, nondiscriminatory reasons for
the removal action. Further, petitioner has not shown that the agency's
reasons were pretext for discrimination based on her race, age, sex,
disability and/or prior protected activity. Therefore, we concur with
the MSPB AJ's decision finding no discrimination.
Reasonable Accommodation
Petitioner also argued during the hearing that she injured her wrist in
2004 on the agency's scanner. Based on the injury, petitioner, through
counsel, asserted that petitioner required an accommodation to meet the
production standards. In support of her claim, petitioner provided a
medical note from 2004 and another from 2008.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
For the purposes of analysis, we assume petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
Petitioner provided the two medical documents. However, during the
hearing, petitioner's supervisors indicated that they never received
either of those documents regarding her on-the-job injury. Further,
petitioner failed to indicate to the agency that her failure to meet
the production standards was related to her wrist injury. Therefore, we
find that petitioner did not make her condition known to the agency in
order for the agency to consider providing a reasonable accommodation.
Accordingly, we conclude that petitioner has not shown that the agency
violated the Rehabilitation Act when she was removed from her Program
Support Assistant 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 (W0408)
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 (Z1008)
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
September 9, 2009
__________________
Date
2
0320090075
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0320090075