0320160037
06-23-2016
Truman B.,1 Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Truman B.,1
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320160037
MSPB No. PH-0752-15-0499-I-1
DECISION
On April 15, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his 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.
ISSUE PRESENTED
The issue presented is whether the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish his affirmative defenses of unlawful disability and reprisal discrimination in connection with his removal.2
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Contract Specialist,
GS-1102-13, at the Agency's Naval Air Systems Command in Patuxent River, Maryland. Petitioner had two different First Level Supervisors - one before March 9, 2016 (FS1) and one beginning March 9, 2015 (S1). Petitioner's Second Level Supervisor was the Deputy Department Head (S2).
On January 29, 2015, Petitioner submitted a request for reasonable accommodation. Specifically, Petitioner stated that he had a back injury, a knee injury, sleep apnea, insomnia, and severe allergies. In addition, Petitioner stated that he was requesting a lateral transfer to a different division as an accommodation. On February 3, FS1 and the Reasonable Accommodation Program Manager (PM) met with Petitioner to discuss his request and explain what to expect in the reasonable accommodation process. On February 23, FS1 again met with Petitioner to discuss his request. That day, Petitioner submitted an updated request which included the following additional accommodations: ergonomic seating, moving to a desk that was not under a vent, and unspecified interim accommodations.
On February 25, March 30-31, and April 8, 2015, the Agency (FS1, PM, S1, and S2) asked Petitioner for current medical documentation to support his request. Petitioner, however, did not submit any medical documentation. Instead, Petitioner informed the Agency that he had previously submitted sufficient documentation on February 23, in the form of a February 6 note from a healthcare professional. In response, the Agency informed Petitioner that it had not received any medical documentation and that what it had received on February 23 was his updated request. On April 16, the Agency denied Petitioner's request and cited Petitioner's failure to provide medical documentation.
From March 9 to May 13, 2015, Petitioner did not report to work. On March 9, Petitioner requested sick leave through March 25, invoked his entitlement to Family and Medical Leave Act (FMLA) leave, and indicated that he would provide medical documentation upon his return. In response, S1 informed Petitioner that the sick leave request was provisionally approved, but that final approval was contingent upon him submitting medical documentation by March 19. On or about March 25, Petitioner requested sick leave through April 9 and again invoked his entitlement to FMLA leave. In response, S1 informed Petitioner that, because he did not submit medical documentation, his sick leave for the March 9-25 time period was being changed to absence without leave (AWOL) and his AWOL status would continue until he reported to work or submitted medical documentation. On April 10, Petitioner submitted an April 6 FMLA certificate from a healthcare professional that referenced an April 2 motor vehicle accident and stated that Petitioner's resulting condition (neck pain, an exacerbation of his chronic back pain, and an inability to focus and concentrate at work due to prescribed medications) would last until April 30. In response, S1 informed Petitioner that his March 9 and March 25 requests for FMLA leave were not approved because the FMLA certificate did not address any medical conditions that existed before April 2. On May 1, Petitioner requested that his leave be extended for an additional six weeks and again invoked his entitlement to FMLA leave. In response, S1 informed Petitioner that any additional leave requests could not be approved for the reasons previously cited.
On May 14, 2015, S1 issued Petitioner a notice of proposed removal for being AWOL for 43 consecutive work days from March 9 to May 13. In response to the notice of proposed removal, Petitioner submitted additional medical documentation pertaining to the March 9 to May 13 time period. On August 11, S2 issued a decision to remove Petitioner, effective August 17.
Petitioner filed a mixed case appeal with the MSPB alleging, in pertinent part, that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when it removed him. On February 11, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the charge, finding no discrimination, and affirming the Agency's removal action. Regarding the charge of AWOL, the MSPB AJ found that Petitioner refused to comply with the Agency's multiple requests to timely provide adequate medical documentation. In addition, the MSPB AJ found that the only medical documentation Petitioner proved he actually submitted to the Agency, prior to his proposed removal, was the April 6 FMLA certificate on April 10. Further, the MSPB AJ found that, even excluding the days of AWOL covered by the April 6 FMLA certificate (April 2-30), Petitioner was still AWOL on 24 occasions over a nine-week period. Regarding disability discrimination, the MSPB AJ found that Petitioner did not prove that the Agency improperly failed to accommodate him. Regarding reprisal discrimination, the MSPB AJ found that Petitioner did not prove that the Agency retaliated against him for his April 16, 2015 EEO Counselor contact. Petitioner then filed the instant petition. We will address Petitioner's arguments in his petition below.3
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 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).
Denial of Reasonable Accommodation - Disability
In his petition, Petitioner argues that the MSPB AJ erred in finding no disability discrimination. Specifically, Petitioner asserts that all of the absences triggering his removal were related to his disability and that his requests for leave were requests for reasonable accommodation.
We assume, without so finding, that Petitioner is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation of the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. See 29 C.F.R. � 1630.9.
Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Leave (as revised Oct. 17, 2002). When the disability and/or the need for accommodation is not obvious, the agency may ask the employee for reasonable documentation about his disability and functional limitations. Id. Question 6. If the employee's disability or need for reasonable accommodation is not obvious, and he refuses to provide the reasonable documentation requested by the agency, then he is not entitled to reasonable accommodation. Id.
An agency never has to withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity. Id. Question 35. An agency may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Id. An agency must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination. Id. Question 36. Since reasonable accommodation is always prospective, an agency is not required to excuse past misconduct even if it is the result of the employee's disability. Id.
Upon review of the record, we concur with the MSPB's finding that Petitioner did not establish his affirmative defense of disability discrimination in connection with his removal. Specifically, we find that Petitioner was not entitled to reasonable accommodation before April 10 because, despite the Agency requesting medical documentation from him on numerous occasions, he did not provide any medical documentation to the Agency until that date. In addition, we find that the Agency was not required to excuse Petitioner's AWOL before April 10 (AWOL from March 9 to April 9), even if those absences were the result of his disability. Moreover, Petitioner did not show that Agency would not have removed non-disabled employees who were AWOL for a similar period of time.
Disparate Treatment - Reprisal
In his petition, Petitioner argues that FS1 and S1, in retaliation for his April 16, 2015 EEO Counselor contact, influenced S2 to uphold the proposed removal.
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A petitioner carries the initial burden of establishing a prima facie case by demonstrating that he 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, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Typically, pretext is proved through evidence that the agency treated the petitioner differently from similarly situated employees, that the agency's explanation for the adverse action is not believable, or that the agency subjected the petitioner's work performance to heightened scrutiny after he engaged in protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-17 (May 20, 1998).
Upon review of the record, we concur with the MSPB's finding that Petitioner did not establish reprisal discrimination. Assuming, arguendo, that Petitioner established a prima facie case of reprisal discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing him. Specifically, S1 and S2 testified that Petitioner was AWOL from March 9 to May 13. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Petitioner to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for reprisal discrimination. Based on the record evidence, we find that Petitioner did not show that, more likely than not, the Agency's reason was pretextual. Specifically, there is no evidence that the Agency treated Petitioner differently from similarly situated employees who were AWOL but did not have any prior protected EEO activity. In addition, the evidence shows that Petitioner was absent from work, and without approved leave, on the cited dates. Moreover, there is no evidence that the Agency subjected Petitioner's attendance to heightened scrutiny after he contacted an EEO Counselor. Finally, there is no evidence, aside from Petitioner's bare assertions, that FS1, S1, or S2 held any retaliatory animus against him.
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 disability or reprisal 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 defenses of unlawful disability or reprisal 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
__6/23/16________________
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 Petitioner also asserted the affirmative defenses of race and sex discrimination. Because Petitioner did not dispute the MSPB's finding of no race or sex discrimination, our decision will not address the MSPB's analysis of those matters.
3 Citing FMLA regulations and MSPB decisions, Petitioner argues that the MSPB AJ erred in sustaining the AWOL charge because the Agency improperly denied his requests for FMLA leave. To the extent that Petitioner is arguing that the Agency violated the FMLA, we emphasize that the Department of Labor enforces the FMLA and the Commission has no authority under the FMLA. See Bonner v. U.S. Postal Serv., EEOC Petition No. 03960057 (Feb. 18, 1997); see also EEOC Fact Sheet on The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question 2.
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