0320160026
05-11-2016
Stephany A.,1 Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stephany A.,1
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Petition No. 0320160026
MSPB No. SF-0752150499-I-1
DECISION
On February 24, 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 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 MSPB's finding that Petitioner did not demonstrate that she was subjected to discrimination as alleged.
BACKGROUND
Petitioner worked as an Information Assistant, GS-05 at the Agency's Beckwourth Ranger District in Plumas National Forest, California. Petitioner alleged that the Agency discriminated against her on the basis of disability (mental/physical) when effective April 20, 2012, she was removed. Petitioner waived her right to a hearing. An MSPB Administrative Judge (AJ) issued an initial decision which affirmed the Agency's action to remove Petitioner.
The record revealed that Petitioner was issued a notice of proposed removal based on the charges of (1) unauthorized absence (5 specifications), and (2) failure to follow instructions (5 specifications). It was noted that Petitioner suffered from alcoholism, possible bipolar disorder, depression, anxiety, and a foot impairment. The Agency also considered Petitioner's prior disciplinary record in determining the appropriate penalty. Her prior disciplinary record included: a May 2, 2011, suspension for 10 calendar days due to negligence in complying with supervisory instruction; a March 7, 2011, suspension for five calendar days due to AWOL and negligent failure to comply with supervisory instructions; a December 13, 2010, suspension for four calendar days due to the deliberate refusal to comply with supervisory instructions and insubordination; and a 2008, suspension for seven calendar days due to an unauthorized use of intoxication while on duty.
In Petitioner's reply to the proposed notice of removal, she maintained that she had been treated unfairly and that her absences and failure to follow instructions were related to her medical conditions. She described her medical conditions as severe depression, possible bipolar disorder, and alcoholism. On February 10, 2012, Petitioner and her union representative wrote to the deciding official requesting a disability retirement as a reasonable accommodation, explaining that due to her medical conditions she was unable to perform the duties of her position. On April 19, 2012, Petitioner's supervisor issued a notice finding that her removal was the appropriate penalty.
On December 2, 3013, the Office of Personnel Management granted Petitioner's application for a disability retirement retroactive to her last day in pay status, based on the disabling conditions of alcoholism, cirrhosis of the liver, and depression. On December 8, 2014, Petitioner also was approved for Social Security disability benefits, effective April 20, 2012.
The AJ found that the Agency proved its charges. The AJ found that the Petitioner did not show the Agency discriminated against her based on disability. After her proposed removal, Petitioner requested that the Agency remove her from one of the two days she worked as the receptionist, allow her to work part-time while she attended rehabilitation one day per week, take her off a fixed schedule, and assign her a different supervisor. Petitioner's request was submitted in December 2011 and/or January 2012, after the dates she was AWOL and failed to follow instructions as set forth in the proposed removal notice. The AJ found that Petitioner was not a qualified individual with a disability because she was unable to perform the essential functions of the position even with accommodation.
Notwithstanding, the AJ analyzed the complaint under two theories one being the failure to accommodate and the other being disparate treatment based disability discrimination. The AJ found that even assuming Petitioner was a qualified individual with a disability the Agency did not fail to reasonably accommodate her disability because she did not request a reasonable accommodation prior to her misconduct other than leave. The AJ found that the Agency granted Petitioner's requests for leave, including leave without pay and advanced sick leave, for time periods that she supported her leave requests with medical documentation. She did not request other accommodations that would enable her to perform the essential functions of her position until late December 2011. The AJ also noted that Petitioner told her supervisor, the deciding official, that she was unable to perform her job and wished to be granted a disability retirement. The AJ found that Petitioner offered no evidence that there was a reasonable accommodation available that would have allowed her to perform the essential functions of her position from September 2011 until she was removed in 2012. Petitioner acknowledged that she was unable to perform her former duties. The AJ noted that Petitioner was granted a disability retirement as well as Social Security disability benefits because her disabilities precluded her from working. Therefore, the AJ found that even if Petitioner was a qualified individual with a disability, the Agency did not fail to reasonably accommodate her disability.
The AJ also found that the Petitioner did not demonstrate that the Agency discriminated against her based on her disability under a disparate treatment theory. Petitioner alleged that ever since she admitted to drinking alcohol while on a fire assignment in 2008 it "haunted" her relationships with her supervisors. Petitioner maintained that she was treated differently than similarly situated employees. She believed that no other employee was required to report their daily activities to their supervisors. She had to use nine different codes for her time and attendance, perform duties that were not her position description, and wear her uniform even when not working the front desk. Petitioner maintained that this situation was extremely stressful for her and was more than she could handle, and she used alcohol to cope with the work stress. Petitioner contends that S2, one of the supervisors involved, was also an alcoholic. Petitioner felt that S2 was overly critical of her work because she continued to drink.
The AJ found that Petitioner submitted little persuasive evidence that the Agency treated her differently from other employees who engaged in similar actions The AJ determined that the comparator named by Petitioner was not similarly situated to her because he had a sick leave balance while she did not. Further, Petitioner did not provide sufficient details regarding the comparator's situation from which the AJ could draw an inference of discrimination, such as whether he called his supervisors prior to his absences, whether he provided medical documentation or whether he had a disciplinary record. The AJ found that assuming that management was strict with Petitioner, it was more likely due to the ongoing issues with her unreliability, unexcused absences, and her admittance of drinking during work hours than it was animus based on her disability.
The AJ also found that there was no evidence that S2 was involved in the Petitioner's removal, since S2 was no longer working at the Agency when the misconduct occurred and the removal was proposed. Finally, the AJ noted that the Agency was not required to excuse a disabled employee's violation of a uniformly-applied, job-related rule of conduct, even if the employee's disability caused the misconduct. Accordingly, the AJ found that Petitioner did not establish that the Agency's removal action was motivated by her disability.
Petitioner then filed the instant petition. On appeal, Petitioner requests that a review of the decision be made. The Agency did not submit a brief.
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).
In the instant case, we agree with the AJ that Petitioner did not demonstrate that she was denied a reasonable accommodation or that she was subjected to disability discrimination. We agree with the AJ that the Agency provided her with the accommodation of leave when she requested it and it was not until after her removal was proposed that she requested additional forms of accommodation. As such, we agree that Petitioner was accommodated by the Agency. Further, we agree with the AJ that assuming arguendo that Petitioner established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions as noted above and Petitioner did not demonstrate that the reasons were pretext for discrimination. Finally, Petitioner did not provide any evidence on appeal that demonstrated that the AJ erred in her findings.
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
_5/11/16_________________
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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