0320160003
03-01-2016
Zola R.,1 Petitioner, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zola R.,1
Petitioner,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 0320160003
MSPB No. AT0752150138I1
DECISION
On October 16, 2015, Petitioner filed a 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.
BACKGROUND
Petitioner worked as a Nursing Assistant at the Agency's Dwight D. Eisenhower Army Medical Center facility in Fort Gordon, Georgia. Petitioner alleged that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when the Agency removed her, effective October 28, 2014, based upon a charge of "False Statements." The Agency alleged that Petitioner forged the initials of her supervisors on a request for advanced sick leave for an absence that occurred prior to the request.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision sustaining the Petitioner's removal. Specifically, the AJ found Agency witnesses more credible than Petitioner and he rejected the testimony of the Petitioner's handwriting expert. The AJ held that the Agency's charge was supported by preponderant evidence. Additionally, the AJ held that Petitioner was unable to prove her asserted affirmative defenses. With respect to her allegation of retaliation, the AJ found that Petitioner presented little to no evidence to support the claim, and that the record was void of any documentary evidence of retaliation to offer any support. According to the AJ, Petitioner was only able to meet the first prong in the retaliation analysis for establishing a prima facie case. Similarly with respect to Petitioner's allegation of disability discrimination, the AJ found that Petitioner failed to successfully establish the existence of discrimination on this basis. Petitioner failed to submit any evidence to establish that she was an individual with a disability entitled to protections under the Rehabilitation Act. Petitioner also failed to submit evidence to establish that Agency management perceived her as disabled. Finally, the AJ reasoned that any assertion of disparate treatment as a result of any asserted disability by Petitioner was defeated by the Agency's legitimate, non-discriminatory reason for denying the leave request - timeliness and forgery.
Petitioner sought review by the full MSPB Board (the Board), and in an order dated September 21, 2015, the Board denied the petition and affirmed the AJ's initial decision. Petitioner then filed the instant petition.
In the instant petition, through her undersigned attorney Petitioner requests that the Commission reject the conclusions of the Board and find that she was terminated as direct interference with her leave granted under the Family Medical Leave Act (FMLA), and that this interference was a "violation of the American with Disabilities Act in that the use of advanced leave was a reasonable accommodation to workers suffering a total but temporary disability." Petitioner contends that the AJ in the case improperly applied the factors from Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) in resolving the credibility and factual disputes in this matter. Petitioner asserts that this misapplication warrants overturning the Board's order.
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 reprisal and disability, the Agency provided legitimate, non-discriminatory reasons for her removal. Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. We must defer to the credibility determinations made, and the conclusions drawn from those determinations, by the AJ absent persuasive evidence that would support disturbing them. We find that no such evidence exists here. Petitioner's contention that her termination was a direct interference with her rights under the FMLA, and therefore a violation of the Rehabilitation Act is not relevant for the purposes of our analysis in this petition. Assuming for purposes of this decision that Petitioner is an individual with a disability, the record evidence clearly establishes that she was terminated because the Agency determined that she falsified official leave documents, not because she took leave in order to undergo and recover from surgery as a reasonable accommodation. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove her was retaliatory or based on any purported disability.
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
__3/1/16________________
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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