0320110003
12-23-2010
Marc B. Brown, Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Food Safety and Inspection Service), Agency.
Marc B. Brown,
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Food Safety and Inspection Service),
Agency.
Petition No. 0320110003
MSPB No. DC-0752-09-0726-I-1
DECISION
On October 22, 2010, 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 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.
BACKGROUND
Petitioner began his employment with the Agency in 2003. During the
relevant time period, Petitioner was a GS-13 Management Analyst with the
Agency's Food Safety and Inspection Service located in Washington, D.C.
The record indicated that as early as 2005/2006, Petitioner had attendance
problems under his then Supervisor (Supervisor 1). In May 2007, he
was reassigned to the IT Policy and Capital Planning Staff under a new
Supervisor (Supervisor 2). Based on Petitioner's continued use of leave,
Supervisor 2 issued Petitioner a Leave Restriction Letter (Letter) on
April 29, 2008. The Letter noted that Petitioner and Supervisor 2 had
discussed his attendance and leave issues. Supervisor 2 noted that his
attendance problems adversely impacted the functions of the office and his
ability to provide quality and timely work products. As such, Petitioner
was required to request annual leave in advance (except in emergency
situations) and sick leave would be granted if he provided acceptable
medical documentation for the absence. The medical documentation needed
to provide information regarding the date(s) examined by a physician,
the physician's diagnosis, the physician's certification that Petitioner
was not available for work, the name, address and telephone number of
the physician, and the physician's signature.
In June 2008, Petitioner was issued a five-day suspension. Later the
same year, Petitioner was assigned a new supervisor (Supervisor 3) when
Supervisor 2 became the Director for the office. Supervisor 2 reminded
Supervisor 3 that Petitioner was to follow the requirements of his Leave
Restriction Letter. Supervisor 3 issued Petitioner a 14-day suspension
in February 2009 for improper conduct and unsatisfactory attendance.
Petitioner was informed that he could no longer request leave by leaving
voicemail messages with his supervisors. When Supervisor 2 left the
Agency, he informed the new Director about Petitioner's attendance
problems and the Letter. The Director found Petitioner to continue to
have attendance problems and failed to meet the terms of the Letter.
After a six-month review, the Director decided to extend the Letter's
restrictions on Petitioner. The Director noted that Petitioner had
accumulated 88 hours of AWOL and that he had a few discussions about
excessive leave usage with him.
During this time, the record indicated that Petitioner requested
reasonable accommodation in the form of telecommuting. Petitioner
suggested that he could work from home when he was not feeling well.
He contacted the Agency's officials involved with Reasonable Accommodation
requests. Petitioner discussed the issues with the official however;
Petitioner indicated that working at home was not possible because he
did not have enough work to do at home. In addition, Petitioner asked
that the Agency give him more flexibility to request leave. The Agency
official noted that Petitioner failed to provide any medical documentation
to support his requests for accommodations.
From February to May 2009, the Director indicated that Petitioner had
five occasions in which Petitioner was granted leave for he complied with
the Letter. However, during that same time, Petitioner had six occasions
when Petitioner's absences failed to meet the requirements of the Letter.
On June 4, 2009, the Agency's Human Resources Specialist (HR Specialist)
issued Petitioner a Notice of Proposed Removal for improper conduct and
unsatisfactory attendance. On July 24, 2009, HR Specialist issued the
Notice of Removal.
On July 27, 2009, Petitioner filed an appeal with the MSPB. Petitioner
alleged that the Agency discriminated against him on the bases of
disability (ulcer and high blood pressure) and reprisal for prior
protected EEO activity under the Rehabilitation Act when, effective July
24, 2009, Petitioner was removed from his position.
Following a hearing, an MSPB AJ issued a decision finding no
discrimination. Assuming Petitioner was an individual with a disability,
the MSPB AJ determined that Petitioner had not shown that the Agency's
action constituted a violation of the Rehabilitation Act. The MSPB AJ
indicated that the Agency had provided Petitioner with the procedures for
requesting leave under the Family Medical Leave Act (FMLA) and provided
Petitioner with leave when he followed the requirements listed in the
Letter. Further, the MSPB AJ held that Petitioner failed to show that
the removal action was in retaliation for his prior protected activity.
The MSBP AJ found that the Agency provided legitimate, nondiscriminatory
reasons which Petitioner failed to show were retaliatory. Therefore,
the MSPB AJ concluded that Agency's action was appropriate.
Petitioner filed a petition for review with the Board. The Board denied
Petitioner's petition on September 30, 2010. This petition followed.
ANALYSIS AND FINDNGS
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).
Disability Discrimination
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.
For the purposes of analysis, we assume Petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
Upon review of the record, we find that Petitioner failed to show that
the Agency violated the Rehabilitation Act. We note that a significant
amount of Petitioner's claim of denial of leave was based on the Agency's
denial of leave under FMLA. As an initial matter, we note that FMLA falls
under the regulatory ambit of the Department of Labor, not the Commission.
Therefore, the Commission has no jurisdiction over Petitioner's claim that
he was denied leave under FMLA. See, e.g., Jordan v. Dep't of Defense,
EEOC Appeal No. 0120055250 (December 28, 2006) ("[T]he Commission does
not have jurisdiction over FMLA claims."). Further, the record indicated
that Petitioner's attendance problems were related to several issues
and not limited to his medical conditions.1 In addition, the record
showed that Petitioner was placed on the Leave Restriction Letter and
continued to have leave denied based on his failure to provide medical
documentation. The HR Specialist as well as the Agency official that
reviewed Petitioner's request for a reasonable accommodation testified
that Petitioner failed to provide medical documentation to support
his request. As such, we find that Petitioner has not shown that the
Agency violated the Rehabilitation Act. Therefore, we concur with the
MSPB AJ's finding with regard to Petitioner's claim of disability-based
discrimination.
Retaliation
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Petitioner to prevail, he
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
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Tx. Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, the Petitioner bears the
ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Petitioner has shown by a preponderance of the evidence that the Agency's
actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Serv., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Upon review of the record, we find that the Agency articulated legitimate,
nondiscriminatory reasons for the removal action, namely Petitioner's
improper conduct and unsatisfactory attendance. Petitioner has not
shown that the Agency's reasons were pretext. Therefore, we conclude
that the MSBP AJ correctly held that Petitioner failed to show that the
removal action constituted unlawful retaliation.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 23, 2010
__________________
Date
1 For example, officials testified at the hearing that Petitioner was
having issues with child care for his daughter.
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2
03-2011-0003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0320110003