0320150017
03-22-2016
Simonne J.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Simonne J.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Petition No. 0320150017
MSPB No. PH0752140515I1
DECISION
On December 6, 2014, 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. For the following reasons, the Commission CONCURS with the MSPB.
ISSUES PRESENTED
The issues presented are whether the MSPB correctly determined that the Agency did not discriminate against Petitioner (1) by failing to provide Petitioner with a reasonable accommodation and (2) when it removed her from employment.
BACKGROUND
Petitioner worked as a Mail Handler Equipment Operator at the Agency's Incoming Processing and Distribution Center in Baltimore, Maryland. Petitioner alleged that the Agency discriminated against her on the basis of disability (bad knees) when it failed to provide her with a reasonable accommodation. Petitioner also alleged that the Agency discriminated against her on the bases of race (African-American), sex (female, sexual orientation), and age (over 40), when it removed her on February 7, 2014.
The Agency notified Petitioner of her proposed removal on December 30, 2013, for Unsatisfactory Attendance based on seven instances of unscheduled absences. After Petitioner submitted a written reply, the Agency issued its decision to remove Petitioner on January 23, 2014, with an effective date of February 7, 2014. In its decision to remove Petitioner, the Agency also took into consideration her past disciplinary record and noted that Petitioner made no effort to correct her attendance deficiency.
Petitioner filed a timely appeal with the MSPB on February 9, 2014. A hearing was held on May 15, 2014, and thereafter a MSPB Administrative Judge (AJ) issued an initial decision on June 9, 2014. The AJ affirmed the removal and found that Petitioner had not proven her affirmative defenses of disability discrimination for failure to accommodate and discrimination based on race, sex, and age for her removal. Petitioner also raised the claim that she was discriminated against based on sexual orientation (gay) but the AJ did not address this claim because the MSPB has held that a claim of discrimination based on sexual orientation is not cognizable discrimination under Title VII as incorporated into the Civil Service Reform Act at 5 U.S.C. � 2302(b)(1), nor as any other prohibited personnel practice under 5 U.S.C. � 2302(b).
With respect to Petitioner's claim that she was discriminated against on the basis of her disability when the Agency failed to provide her with a reasonable accommodation, the AJ found that Petitioner had not provided sufficient medical documentation showing that she was an individual with a disability. While Petitioner provided some medical documentation, it did not show that Petitioner had an impairment which substantially limited one or more major life activities. Additionally, Petitioner's managers stated that she never requested an accommodation and Petitioner did not provide any evidence showing that she requested reasonable accommodation. Petitioner stated that she verbally informed her supervisors that she needed to take breaks during the day to rest her knee.
For her claim that she was discriminated against based on her race, sex, and age, Petitioner provided the names of four comparators whom she alleged the Agency treated more favorably when it gave them Last Chance Agreements (LCAs) and did not remove them. The AJ found that Petitioner had not provided any of their ages so it was impossible to determine if the Agency treated them more favorably than Petitioner based on age. Two of the comparators were the same race and sex as Petitioner while the other two comparators differed in race and sex, which the AJ found was "scant evidence" that Petitioner was treated differently than those outside of her protected class.
On July 4, 2014, Petitioner submitted a Petition for Review. The Agency submitted its response to the Petition for Review on July 24, 2014. After Petitioner submitted her reply to the Agency's response on August 3, 2014, the MSPB issued its Final Order on November 7, 2014.
The MSPB denied the petition for review and affirmed the initial decision. With regard to Petitioner's claim that the Agency discriminated against her based on her disability when it failed to reasonably accommodate her, the MSPB found that Petitioner was incorrect in assuming that qualifying for leave under the Family and Medical Leave Act (FMLA) was enough to deem her an individual with a disability, and that the record did not substantiate her claim as an individual with a disability. The MSPB further noted that assuming, arguendo, that Petitioner was an individual with a disability, she did not show that she requested an accommodation. Accordingly, the MSPB affirmed the AJ's finding that Petitioner did not prove her affirmative defense of disability discrimination based on failure to accommodate.
The MSPB also affirmed the AJ's finding that Petitioner did not show that the Agency discriminated against her based on her race, sex, and age. Specifically, Petitioner did not provide evidence that coworkers outside of her protected class were similarly situated but treated more favorably. While Petitioner named a Caucasian male as a comparator, the MSPB found that he was not similarly situated because there was no record that he, or any other comparator, had received prior discipline.
While noting that the AJ did not address Petitioner's claim of discrimination based on her sexual orientation, the MSPB found that it was unnecessary for it to establish a precedent with this case and further noted that there was insufficient evidence to support a violation under any view of the statute. Although Petitioner alleged that several Agency officials were aware of her sexual orientation, the MSPB found that this fact alone, without any corroborative evidence, was insufficient to establish that the Agency discriminated against Petitioner based on her sexual orientation.
Petitioner then filed the instant petition with the Commission. Petitioner alleges that the MSPB erred in finding that the Agency did not discriminate against her based on disability when it did not provide a reasonable accommodation. Petitioner alleges that the Agency was aware that she had a medical condition based on her use of FMLA leave and that her managers regarded her as having a disability. She also alleges that she verbally requested an accommodation from one of her supervisors.
Petitioner further alleges that the MSPB erred because the Agency discriminated against her when it treated her differently by refusing to grant her a LCA. Petitioner also alleges that the MSPB erred in finding that the Agency did not discriminate against her based on her sexual orientation. Petitioner states that management officials knew that she is gay and that none of the named comparators are gay.
Finally, Petitioner alleges that she was discriminated against based on reprisal for prior EEO activity. She states that she was not informed that she needed to bring all of her allegations of discrimination before the MSPB and would now like to raise the allegation that she was discriminated against based on reprisal.
On December 22, 2014, the Agency filed an Opposition to Petitioner's Petition for Review. Among other things, the Agency asks that we concur with the MSPB final decision finding no discrimination.
ANALYSIS AND FINDINGS
Standard of Review
EEOC regulations provide that the Commission has jurisdiction over mixed-case appeals on which the MSPB has issued a decision that rules 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).
Failure to Provide Reasonable Accommodation
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. In order to establish that Petitioner was denied a reasonable accommodation, Petitioner must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id.
Assuming, arguendo, that Petitioner is a qualified individual with a disability, she did not provide any evidence that she requested a reasonable accommodation. While Petitioner alleges that she verbally requested an accommodation from one of her managers, the managers stated that she did not request an accommodation and nothing in the record supports a finding that she made such a request. The Commission concurs with the MSPB that the Agency did not fail to provide Petitioner with a reasonable accommodation because she did not establish that she requested an accommodation. Moreover, the accommodation that Petitioner maintained was verbally agreed upon was that she needed to take breaks during the day to rest her knee. We find no nexus between this request and the reason for her removal, i.e., unsatisfactory attendance based on seven instances of unscheduled absences.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Regarding the basis of sexual orientation, the MSPB AJ in this case noted that the MSPB does not hold that a claim of discrimination based on sexual orientation is cognizable discrimination under Title VII.2 However, the Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII. Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). In this case, the MSPB determined that ,even if Petitioner's managers were aware of her sexual orientation, she did not provide any evidence that the Agency discriminated against her on that basis. Because we find that the record has been adequately developed on this point, we can proceed without remanding this matter for further investigation.
Petitioner alleges that she was discriminated against based on her race, sex (sexual orientation), and age because she was removed while four coworkers outside of her protected classes were given LCAs. However, Petitioner did not provide any evidence showing that her coworkers fall outside her protected bases of age and sex (female, sexual orientation). Additionally, Petitioner did not provide evidence to support that they were similarly situated. Specifically, there is no record that any of the co-workers had similar prior discipline to Petitioner.
Assuming, arguendo, that Petitioner established a prima facie case of discrimination based on race, sex (female, sexual orientation), and age, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing Petitioner based on her history of unacceptable attendance since 2012. Prior to Petitioner's removal, she had the following disciplinary record:
1. Fourteen (14) day suspension for Unsatisfactory Work Performance issued on September 25, 2013;
2. Fourteen (14) day suspension for unscheduled absences issued on January 31, 2013;
3. Seven (7) day suspension for unscheduled absences issued on December 21, 2012; and
4. Letter of Warning for unscheduled absences issued on June 6, 2012.
Additionally, Petitioner did not demonstrate that any conduct on the part of the Agency was based on any discriminatory animus. While she alleges that the official who decided to remove her had "a certain disdain for gay individuals," Petitioner did not provide any evidence to support this assertion.
The Commission has long held that an Agency has 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. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove her was based on any of these protected bases.
Finally, while Petitioner alleges that she did not know she had to bring her reprisal claim before the MSPB, the record shows that she included reprisal as a basis in her March 12, 2014, Response to Agency Narrative and Motion to Dismiss. The AJ did not address the reprisal claim in the Initial Decision and Petitioner did not raise the issue in her Petition for Review before the MSPB. Accordingly, the MSPB did not make a determination on her reprisal claim in the Final Order that is before the Commission. We note, however, that claims of disparate treatment based on reprisal are subject to the same analysis as claims premised on peitioner's other bases. Because Complainant did not meet her burden to establish her claims of race, sex, and age discrimination, she likewise would not have met her burden to establish a claim of reprisal discrimination.
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 unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
__3/22/16________________
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.
2 The MSPB AJ in this case also declined to consider whether the claim of sexual orientation discrimination may constitute a violation of the prohibited personnel practices under 5 U.S.C. � 2302(b).
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