0320140047
02-12-2015
Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320140047
MSPB No. CH0752130057I2
DECISION
On April 23, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Health Technician, GS-04 at the Agency's VA Medical Center facility in St. Louis, Missouri. Petitioner alleged that the Agency discriminated against her on the basis of age 62 when: the Agency removed her from her Health Technician position effective September 28, 2012 for "inability to maintain a regular work schedule."
The record reveals that Petitioner began working for the Agency on January 6, 2006. She experienced difficulties with depression throughout her employment. Due to health related issues on September 23, 2011, Petitioner stopped reporting for work. She submitted leave requests, supported by medical evidence, which her supervisors approved. Petitioner used 480 hours of leave under the Family Medical Leave Act (FMLA), and was still unable to report to work due to her condition. On February 2, 2012, the department Chief notified Petitioner that she exceeded the 480 hours allotted under FMLA, and that her position could not remain unmanned. She was asked to notify her Service Chief or Administrative Officer if she could not return to work before February 13, 2012.
On February 21, 2012 Petitioner requested two months of leave without pay (LWOP). Her request was denied because there was an interest in filling her position. On June 26, 2012, the Acting Chief proposed to remove Petitioner for an "inability to maintain a regular work schedule." Petitioner responded to the proposed removal in writing and on September 14, 2012 the Medical Center Director sustained the charge and removed Petitioner from employment effective September 28, 2012. Petitioner subsequently retired under the Federal Employees' Retirement System.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on February 20, 2012 reversing the Agency's action. The AJ's decision found that Petitioner's removal could not be sustained because the Agency failed to show that it warned Petitioner that her failure to report to work could result in discipline. Additionally, with respect to her affirmative defense alleging discrimination based on age, the AJ held that Petitioner failed to present preponderant evidence to support her contention that the removal was based on her age.
Petitioner subsequently filed the instant petition.
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).
The Commission finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on age, the Commission agrees with the MSPB that Petitioner failed to establish that the decision to remove her was based on her age. The record reflects that in a letter dated February 2, 2012, Petitioner was notified that she had exceeded the time off allotted to her under the FMLA. While Petitioner was not advised that disciplinary action would be taken against her if she failed to return to work, she was advised by this same letter that if she was unable to return to work by February 13, 2012, she should advise her Service Chief or Administrative Officer to discuss additional options. We find no persuasive evidence of discriminatory age animus surrounding Petitioner's removal.
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
__2/12/15________________
Date
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0320140047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140047