0320160019
04-20-2016
Scarlet M.,1 Petitioner, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Scarlet M.,1
Petitioner,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 0320160019
MSPB No. DC-0752-14-0155-I-1
DECISION
On January 20, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons stated below the Commission CONCURS with the MSPB's determination that Petitioner did not demonstrate that she was subjected to disability discrimination or reprisal.
BACKGROUND
Petitioner was employed as a nursing assistant when the Agency issued a notice proposing to remove her for excessive absence over a one year period with no foreseeable end in sight. Petitioner did not respond to the proposal. The deciding official sustained the charge and decided to remove her, effective September 23, 2012. Petitioner filed an appeal, admitting that she was absent as charged but alleging that her removal was discriminatory based on her disability and retaliatory for engaging in prior EEO activity. She also argued that the penalty was too harsh.
After several continuances of the hearing at Petitioner's request, she did not appear for the hearing that was scheduled on October 31, 2014. Therefore, the MSPB AJ cancelled the hearing and informed Petitioner that she would decide the case on the written record. Both Petitioner and the Agency timely filed close of record submissions.
The notice of proposed removal charged that Petitioner had been absent for a total of 1104 hours during the 12-month period beginning August 1, 2011, and ending July 31, 2012. The notice stated that Petitioner's absences "were for compelling reasons beyond your control" so that whether or not the leave was approved "was immaterial," but that the absences had continued beyond a reasonable time period. The notice cited an April 6, 2012 letter to Petitioner advising her that her position needed to be filled on a full-time basis and that she needed to return to work. According to the notice, Petitioner continued to be absent for another 424 hours after the return to work letter was issued.
The notice stated that pursuant to medical documentation provided by Petitioner on December 12, 2011, the Agency had offered her the accommodation of a more sedentary position as a medical support assistant, but Petitioner declined the offer. The notice also stated that the Agency had provided additional accommodations in the form of light duty. The notice indicated that Petitioner had exhausted her entitlement to leave under the Family and Medical Leave Act on July 16, 2012, at which time she had used 480 hours of leave on an intermittent basis. The notice concluded that as Petitioner's absences had no foreseeable end.
After receiving the notice of proposed removal, Petitioner filed a formal complaint of discrimination with the Agency's EEO office on October 12, 2012 alleging that her removal was discriminatory on the basis of disability and retaliatory on the basis of her prior EEO activity. The Agency issued a Final Decision on October 18, 2013, finding no discrimination or retaliation had occurred. The Agency's decision referred to an October 19, 2011 settlement agreement between the Agency and Petitioner pursuant to which Petitioner was offered a medical support assistant (MSA) position to accommodate her restrictions. Petitioner did not accept the offered position on January 11, 2012. The decision then noted the April 6, 2012 letter directing Petitioner to return to duty and warning her that her excessive absences had become too burdensome on the Agency, her supervisors, and her coworkers. The decision quoted from a September 1, 2012 memorandum Petitioner sent to her first-level supervisor noting that she was not challenging the number of hours she had been absent from work. The decision quoted from Petitioner's memorandum as follows: "My excessive absences are due to the unavailability of an open position that is funded and accommodate [sic] my restrictions in the clinic. . . ."
In addition to these documents, the Agency provided a declaration by the deciding official, a physician working at the Womack Family Medicine Residency Clinic at Womack Army Medical Center in Fort Bragg, North Carolina, which declared that his decision to remove Petitioner "was based on her excessive absenteeism and was in no way discriminatory." He declared that he believed "removing [Petitioner] was necessary for the continued effective operations of the Family Residency Clinic and necessary in order to continue providing quality medical care to Soldiers, their families and retirees." He added that Petitioner's removal was "necessary as she refused to participate in alternative actions and solutions offered by management."
With regard to Petitioner's claims that she was subjected to discrimination on the basis of disability and retaliation for engaging in EEO activity, the MSPB AJ found that assuming she was disabled under the relevant statutory definitions, Petitioner did not meet her burden of proving her affirmative defenses because she did not articulate a reasonable accommodation that would permit her to perform the essential duties of her position. The MSPB AJ noted that although she argued that reassignment to the MSA position would have constituted a reasonable accommodation of her disabling conditions, the record showed that when she was offered reassignment to such a position, but she refused the offer. Therefore, the MSPB AJ found that Petitioner did not meet her burden of proving the disability discrimination defense. The MSPB AJ also found that while the record showed that Petitioner engaged in prior EEO activity at the Agency, she did not show that her EEO activity rather than her excessive absences were the reason for her removal. Finally, the MSPB AJ determined that the Agency had provided ample evidence to support both its charge and its penalty of removal in this matter.
Petitioner did not seek review by the full Board but instead filed the instant petition with the Commission.
CONTENTIONS ON APPEAL
On appeal, Petitioner maintains that the Agency did not provide her with a reasonable accommodation and did not reassign her to the MSA position which was a sedentary position that would have given her the ability to continue her job without increased pain in her lower lumbar region. Petitioner contends that the Board improperly affirmed the Agency's removal because 1) its finding that Petitioner refused the MSA position offered to her on January 11, 2012, is not supported by the evidence in the record as a whole; and 2) the Board's finding that there was not a genuine nexus between her protected activity and her removal constitutes an incorrect interpretation of the Commission's jurisprudence because there was a significant temporal proximity between her EEO complaints, her prior complaints alleged discrimination by the same individual who proposed her removal, and the Agency's stated reason for removal, i.e., excessive absenteeism was pre-textual, because its assertion that Petitioner refused the reassignment is contrary to the weight of the evidence.
Citing 29 C.F.R. � 1614.305(d), which allows the Commission to refer matters back to the MSPB for the taking of additional evidence, Petitioner also requests that the Commission consider various exhibits that were not part of the record that was before the AJ, but which Petitioner argues are germane to the case. Petitioner did not explain why these exhibits were not presented to the AJ before the record was closed.
The Agency did not submit a brief.
ANALYSIS AND FINDINGS
At the outset, we note that as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available previously. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A.3 (Nov. 9, 1999). Because Petitioner did not make such a showing, we decline to consider the exhibits she submitted on appeal that were not part of the record that was before the MSPB AJ when she made her decision. In this regard, we note that the MSPB AJ provided the parties with the opportunity to submit close of record submissions. Furthermore, we find that the regulatory provision cited by Petitioner is not applicable in this circumstance.
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
In the instant case, we agree with the MSPB AJ that Petitioner did not demonstrate that she was subjected to disability discrimination and/or reprisal. Specifically, we find that even if we assume that Petitioner established a prima facie case of disability discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was removed from her position due to an excessive amount of absences which detrimentally impacted clinic operations. We find that Petitioner did not show that the Agency's reasons were pretext for discrimination. While she argued that the Agency should have reassigned her to the MSA position which was a position that Petitioner claimed that she could perform, the record shows that when the position was offered to her she did not accept it so the offer was rescinded. Although Petitioner sought to explain why she did not accept the offer, i.e., needing more time to confer with her attorneys, the fact remains that she did not accept the offer.
Reasonable Accommodation
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
With respect to Petitioner's contention that she was denied a reasonable accommodation, we find that even if we again assume that she is a qualified individual with a disability, she has not established that she was denied a reasonable accommodation. In this regard, we note that Petitioner's requests for reasonable accommodation were acted upon as Petitioner was allowed to work a light duty position. Petitioner has offered no evidence which suggests that her physicians' requests for light duty were not followed. Moreover, with regard to her requested reassignment into the MSA position, as noted above, the record shows that Petitioner was offered the position but that when she did not accept it during the settlement process the offer was rescinded. Petitioner did not articulate other reasonable accommodations that would have permitted her to perform the essential functions 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
__4/20/16________________
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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