0320160046
07-28-2016
Kimber L.,1 Petitioner, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kimber L.,1
Petitioner,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Petition No. 0320160046
MSPB No. SF-0752-13-0050-B-2
DECISION
On May 26, 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 following reasons, the Commission CONCURS with the MSPB.
ISSUES PRESENTED
Whether the Commission should concur with the MSPB's ultimate determination that Petitioner did not establish that the Agency discriminated against her on the bases of race, and in reprisal for prior EEO activity when it removed her and; on the basis of disability when it failed to provide a reasonable accommodation.
BACKGROUND
Petitioner worked as an Administrative Contracting Officer at the Agency's Federal Acquisition Service in San Francisco, California. In October 2008, Petitioner entered into a telework agreement which provided that she telework three days per two-week pay period. The agreement also stated that "a regular teleworker may also telework on a situational basis and/or in response to an emergency."
On May 31, 2011, Petitioner experienced eye pain due to her work computer monitor, and filed a workers' compensations claim.2 From May 31, 2011, through August 29, 2011, Petitioner reported to work sporadically. On August 29, 2011, Petitioner sent an email to the Chief of Staff (COS) (White, no disability, prior EEO activity), copying her first line supervisor (S1) (Caucasian, no disability, no prior EEO activity), stating that she had "returned to work today under the telework provisions of [her] employment agreement." On September 7, 2011, S1 sent Petitioner an email requesting clarification. Petitioner responded on September 9, 2011, requesting the removal of the absent without leave (AWOL) status; and reinstatement of her pay because she had been "fully engaged in the requirements of [her] position," and had "been working regular hours" since August 29, 2011.
On September 23, 2011, S1 emailed Petitioner informing her that the telework agreement only permitted three telework days per pay period, and that she "cannot simply place [herself] on telework on days not covered by [her] Telework Agreement." S1 also noted that Petitioner had not requested leave, and was considered AWOL. S1 informed Petitioner that she had not assigned her any work, and was not aware of any work that she had completed. S1 provided Petitioner an opportunity to provide evidence of work performed on the days she claimed that she was teleworking.3 On September 29, 2011, Petitioner's second line supervisor (S2) (Caucasian, unknown disability, unknown prior EEO activity) sent Petitioner a memo informing her that she was "not authorized to work remotely at will," and that she continued to be AWOL.
On October 13, 2011, Petitioner and her representative met with S1, S2, and other management officials to discuss her leave and attendance issues. When asked to designate a leave category for her absences, Petitioner stated that she was fully engaged while on full-time telework. Petitioner claimed that the COS had approved her full-time telework; that she reported to the COS; and that the COS had not assigned her work. Petitioner also requested a new supervisor, but S2 stated that he had no available vacancies and was unable to reassign Petitioner.
On November 7, 2011, Petitioner emailed S1 requesting 18 hours of annual leave for November 8 and 9, 2011 for a family emergency. S1 denied her request because Petitioner was currently AWOL; she was needed in the office; and "no emergency has been documented." Petitioner reported to work on December 12, 2011. She attended an office holiday party where a gingerbread house was on display. Next to the gingerbread house was an injured gingerbread man, and a sign that read, "Torte Denied."
On December 14, 2011, Petitioner's new second line supervisor (S3) (Asian, no disability, prior EEO activity) issued Petitioner a Notice of Proposed Removal based on 559.5 hours of unauthorized absence from August 29, 2011, through December 8, 2011.4 On December 29, 2011, Petitioner provided a response to the proposal claiming that her absences were excused for medical reasons.
On January 24, 2012, the deciding official (DO) (Black, no disability, prior EEO activity) requested clarification regarding Petitioner's response. The DO asked if Petitioner was stating that she should not be charged AWOL because she was working, or that she should not be charged AWOL because she provided medical notes stating that she was unable to work. The DO also stated that if Petitioner wished to be placed on any sick leave during the identified time period, she should direct those requests to him. On February 2, 2012, Petitioner's representative responded to the DO, and informed him that Petitioner was both unable to work due to medical reasons, and also returned to work during the specified time period. Petitioner also alleged that the Agency failed to accommodate her, and ignored Petitioner's medical documentation. On February 7, 2012, the DO provided Petitioner a deadline of February 20, 2012, to submit any requests for leave. Petitioner emailed the DO on February 8, 2012; she did not request any leave, but requested that her AWOL be converted to either full-time telework, or three days of telework per pay period, and leave under the Family and Medical Leave Act for the remaining days.
On February 22, 2012, the DO issued his decision to remove Petitioner, effective February 24, 2012. The DO determined that Petitioner's absence was not justifiable as telework, especially given that in the February 2, 2012 response, Petitioner's representative stated that her position entails "months of little activity with no substantial work product." The DO stated that it would be inappropriate to pay Petitioner for "essentially doing nothing." Additionally, the DO found that Petitioner's absences were not supported by medical evidence. The DO reviewed the three medical documents provided by Petitioner and found that they were not consistent with each other; not consistent with the dates of her absences; and were not provided to her supervisors. Additionally, the DO noted that no leave request was ever submitted.
On May 19, 2012, Petitioner filed a mixed-case complaint of discrimination alleging that the Agency discriminated against her on the bases of race (Hispanic),5 sex (female), disability (eye injury and anxiety disorder), and reprisal for prior protected EEO activity when she was removed from the Agency. On September 14, 2012, the Agency issued a decision finding that Petitioner was not discriminated against as alleged.
Thereafter Petitioner filed an appeal with the MSPB and an MSPB Administrative Judge (AJ) issued a decision affirming the Agency's decision on May 15, 2015. As an initial matter, the MSPB AJ found Petitioner's testimony not credible based on her demeanor; inconsistency of her statements; and the inherent improbability of events as described by Petitioner. The MSPB AJ determined that Petitioner made misleading or false statements to her managers and throughout the hearing; and that she, at best, lacked candor. Additionally, the MSPB AJ found S1, and the DO to be credible witnesses because their testimonies were consistent with their actions and the evidence in the record.
In regards to the AWOL charge, the MSPB AJ found that Petitioner was absent during the identified hours and not working, despite her assertion that she was "fully engaged" while teleworking.6 The MSPB AJ determined that Petitioner was not approved to be on full-time telework, and did not show any evidence of compensable work done. The MSPB AJ also found that Petitioner was not approved for leave during this time because she chose not to request leave. The MSPB AJ then found that the removal was reasonable, and affirmed the Agency's action.
For Petitioner's claim that she was retaliated against for engaging in protected EEO activity, the MSPB AJ found that Petitioner filed an EEO complaint in 2011, and that S1 and S2 were aware of her EEO activity. However, the MSPB AJ found that Petitioner had not shown that she was removed because of her EEO activity. While Petitioner claimed that S2's statement that there was "no resolution for you;" the gingerbread house at the holiday party; S1's placing Petitioner on an AWOL status; S1 denying Petitioner full-time telework; and S1 providing information to other management officials that were the bases for her removal were all evidence of retaliation, the MSPB AJ found that there was no evidence that their actions were motivated by reprisal for Petitioner's prior EEO activity. In regards to the gingerbread house, the MSPB AJ found that the legal division was responsible for it, and it was not aimed at Petitioner.
Petitioner alleged that she was discriminated against based on her disability when the Agency failed to provide her with a reasonable accommodation. The MSPB AJ assumed, without finding, that Petitioner was a qualified individual with a disability. The MSPB AJ, however, found that Petitioner requested a new supervisor, which was not an accommodation that the law requires. Additionally, the MSPB AJ determined that Petitioner did not request alternative accommodations, or provide supporting medical documentation, during the time at issue. Accordingly, the MSPB AJ found that the Agency did not fail to provide a reasonable accommodation.
Petitioner also alleged that she was discriminated against based on her national origin (Hispanic) when she was removed.7 The MSPB AJ found that Petitioner had not established a prima facie case of discrimination because she did not identify any similarly situated employees, who were of a different national origin, and treated differently. However, the MSPB AJ assumed, arguendo, that Petitioner had established a prima facie case of discrimination, but found that the Agency articulated legitimate, nondiscriminatory reasons for the removal. Accordingly, the MSPB AJ found that Petitioner did not prove that her removal was discriminatory.
Petitioner filed a petition for review of the initial decision, and on May 3, 2016, the MSPB issued its final order affirming the initial decision, except to modify the burden of proof used in analyzing the reprisal claim. The MSPB noted that Petitioner had not challenged the finding that she did not establish her claim of race/national origin discrimination, and found no basis to disturb the MSPB AJ's finding.
In regards to Petitioner's argument that the Agency discriminated against her based on disability when it failed to provide a reasonable accommodation when it denied her request to telework full-time, the MSPB found that Petitioner could not perform the full scope of her duties if she teleworked full-time, and that an agency is not required to modify or eliminate essential functions of a position as an accommodation. Additionally, in regards to Petitioner's claim that she was denied an accommodation of a new supervisor, the MSPB agreed with the MSPB AJ that an employer is not required to assign an employee a different supervisor as a reasonable accommodation. As such, the MSPB affirmed the MSPB AJ's finding that the Agency did not discriminate against Petitioner based on her disability when it failed to provide her with a reasonable accommodation.
For Petitioner's claim that she was discriminated against in reprisal for her prior EEO activity when she was removed, the MSPB found that she had not met her burden in proving illegal retaliation. While Petitioner argued that the AJ misrepresented the gingerbread house incident, the MSPB determined that even if Petitioner found it "deeply disturbing," she had not shown any error in the AJ's finding. The MSPB also noted that in Savage v. Department of the Army 122 M.S.P.R. 612 � 51 (2015), which was issued after the initial decision, the MSPB modified its test for establishing retaliation for protected EEO activity. Under its new standard, the MSPB will first inquire whether an employee establishes by preponderant evidence that a prohibited consideration was a motivating factor in a personnel action. In this case, the MSPB found that Petitioner had not shown that retaliation was a motivating factor in her removal, and that her substantive rights were not prejudiced by the MSPB AJ's application of the previous method of proving a reprisal claim. Accordingly, the MSPB affirmed the MSPB AJ's finding that Petitioner had not shown that she was discriminated against on the basis of reprisal for prior EEO activity when she was removed.
Petitioner then filed the instant petition, but did not provide a brief in support of her petition. The Agency submitted its Statement in Opposition to Petition on July 5, 2015. The Agency argues that Petitioner's medical documentation does not establish that Petitioner is an individual with a disability because they do not show that she is substantially limited in a major life activity.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints 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).
ANALYSIS AND FINDINGS
In Petitioner's case, we find that the MSPB erred in its final decision when it modified the initial decision that had applied the McDonnell Douglas analysis in deciding Petitioner's reprisal discrimination claim. We will use the McDonnell Douglas analysis in this decision. We find, however, that the MSPB correctly determined that Petitioner did not show that the Agency discriminated against her.
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).
Reprisal
Assuming, arguendo, that Petitioner established a prima facie case of reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for removing her. Petitioner was removed for being AWOL from August 29, 2011, through December 8, 2011. Despite her claims that she was not AWOL because she was working from home, we find that she was not approved for full-time telework. Additionally, Petitioner did not request appropriate leave for this time period, despite being provided multiple opportunities to request leave. As such, the Agency properly placed her on an AWOL status, which was the basis for her removal. We find that Petitioner has not presented any evidence to show that the Agency's proffered reasons were pretext for discrimination. Accordingly, we agree with the MSPB that Petitioner has not shown that the Agency discriminated against her on the basis of reprisal for prior EEO activity when it removed her.
While the MSPB noted that Petitioner had not challenged the AJ's finding of no national origin discrimination, we also find that she has not shown that she was discriminated against on this basis. As discussed above, even assuming that Petitioner had established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions; and Petitioner did not show that their reasons were pretext for discrimination. Accordingly, Petitioner has not shown that the Agency discriminated against her on the basis of her national origin (Hispanic) when it removed her.
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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove her was based on her national origin, or in reprisal of prior EEO activity.
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).
Assuming, arguendo, that Petitioner is a qualified individual with a disability, we agree with the MSPB that Petitioner did not show that the Agency discriminated against her on the basis of her disability when it failed to provide her with a reasonable accommodation. While Petitioner claims that she requested an accommodation and provided medical documentation, we find that the Agency properly denied her request. The record shows that she submitted two medical documents, dated August 31, 2011, and September 21, 2011, from her doctor (DR). In his statements, the DR noted that Petitioner could work with the following modified duties: "[Petitioner] is to be removed from the supervision of [S1]," and "[Petitioner] is not to work in the vicinity of [S1]." We note, however, that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at Q. 33.
Additionally, we find that the record does not contain any evidence showing that Petitioner requested the ability to telework full-time as a reasonable accommodation. Rather, Petitioner asserted that the COS had approved her full-time telework. Therefore, we agree with the MSPB that Petitioner has failed to establish that she was discriminated against based on disability when the Agency denied her a reasonable accommodation.
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 Petitioner'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
__7/28/16________________
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 On June 29, 2011, the Department of Labor denied Petitioner's claim for workers compensation because she did not provide evidence that she had a defective computer monitor.
3 Petitioner testified that she emailed S1 a spreadsheet of the work she performed. However, S1 testified that Petitioner did not send a spreadsheet, and the record does not contain the email and spreadsheet that Petitioner claimed to have sent.
4 S2 retired on November 1, 2011, and S3 was acting in the position of Petitioner's second line supervisor.
5 Although Complainant designated her race as "Hispanic," the Commission recognizes this term as an indication of national origin rather than race. Accordingly, we will address her claim as involving an allegation of national origin discrimination.
6 The MSPB AJ determined that Petitioner's request for 18 hours of leave was properly requested, but improperly denied. As such, the MSPB AJ determined that Petitioner had 541.5 hours of unauthorized absence, not 559.5 hours.
7 Petitioner withdrew her sex discrimination claim at the Prehearing Conference.
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