0320110027
10-04-2011
Andrew H. Lowe, Petitioner, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Andrew H. Lowe,
Petitioner,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Petition No. 0320110027
MSPB No. DC0432100608I1
DECISION
On February 1, 2011, 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.,
and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq. For the following reasons, the Commission CONCURS with
the MSPB’s decision which found that Petitioner was not discriminated
against based on his disability and prior EEO activity when he was
terminated from his position because of unacceptable performance.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as
an Information Specialist at the Agency’s Washington D.C., facility.
He also worked as the Special Emphasis Program Manager/Disabilities
Program Manager. Petitioner alleged that the Agency discriminated against
him on the bases of disability and reprisal when he was removed from
his position based on unacceptable performance.
The record reveals that Petitioner’s performance plan contained five
critical elements with a rating period which ran from October 1, 2008, to
September 30, 2009. Management noticed that Petitioner was spending most
of his time working as the Special Emphasis Program/Manager/Disabilities
Program Manager. Petitioner was told that he had to focus on his primary
duties. In November 2009, however, Petitioner’s supervisor informed
Petitioner that his performance was unsatisfactory in Critical Element
#1, Work Products, and Critical Element #5, ISSB Projects/Other Duties
as Assigned, and was only minimally satisfactory in Critical Element #2,
Teamwork. Thereafter, Petitioner was placed on a 75-day Performance
Improvement Plan (PIP). The PIP identified specific projects which
Petitioner was expected accomplish in order to meet defined performance
objectives. The PIP requirements included weekly meetings to provide
Petitioner with feedback on the quality of his work and the adequacy of
his progress toward completion of his assignments.1
At the conclusion of the PIP, Petitioner’s supervisor determined
that Petitioner’s performance remained unacceptable. Therefore,
the supervisor on March 3, 2010, issued Petitioner a Notice of Proposed
Removal. Petitioner submitted both oral and written responses to the
proposed notice but the Acting Director found that Petitioner’s
performance was unacceptable under both of the critical elements,
warranting his removal effective May 14, 2010.
Petitioner denied that his performance was unacceptable. He argued that
his performance standards and the PIP violated the collective bargaining
agreement. He also maintained that he failed to get effective assistance
during the PIP. Petitioner also alleged that he was discriminated against
based on his disabilities (profound hearing impaired and cataracts) and
retaliated against for his prior EEO activity.2 Petitioner maintained
that he was subjected to a hostile work environment based on his deafness.
He also alleged that similarly situated employees who were not hearing
impaired were treated more favorably than he was. Petitioner maintained
that the Agency failed to accommodate his visual disability by denying
his request for additional time to complete PIP work products.
An MSPB Administrative Judge (MSPBAJ) held a hearing and issued an initial
decision finding that the Agency’s action was supported by the record.
Specifically, the MSPBAJ found that the performance standards as written
were reasonable, and sufficient to permit an accurate measurement of
Petitioner’s performance, and were adequate to inform him of what was
necessary to achieve an acceptable rating. Further, the MSPBAJ found
that Petitioner’s supervisor provided Petitioner with both verbal and
written instructions prior to and during the PIP. Petitioner was given
additional content of the performance standards when he was informed of
the specific work requirements, given information regarding deficiencies
and methods of improving his performance, and memoranda describing
unacceptable performance. The MSPBAJ also found that the performance
standards did not require Petitioner to achieve an unreasonably high level
of performance, nor did the record provide any basis for concluding that
the standards did not correlate either to the amount of work and actual
duties that Petitioner performed or to his official position description.
The MSPBAJ noted that the PIP identified four projects with which
Petitioner was tasked. They included a mobile devices project (which
had previously been assigned to Petitioner in March 2009); a Facility
Registry System (FRS) data quality project; an FRS security plan project
(which was never actually assigned); and an OIC security planner project.
It was noted that with respect to the mobile devices project, even
though Petitioner was given specific deadlines for producing written
work products; he failed to meet those established deadlines. It was
also noted that during the weekly meetings, Petitioner was hostile and
reminded his supervisor that he was going to sue him.
With respect to Petitioner’s claims of discrimination, the MSPBAJ found
that Petitioner failed to establish a claim of disability discrimination.
Specifically, the MSPBAJ found that even assuming arguendo that the
Petitioner is an individual with a disability, the record contained
no evidence to support Petitioner’s claim that he was discriminated
against because of his disability. The MSPBAJ also found that Petitioner
did not show that he was subjected to a hostile work environment, as
he did not show that the assignments given to Petitioner were severe
or pervasive enough to establish a hostile work environment. In fact,
the MSPBAJ found that the record was replete with examples of proactive
agency accommodation efforts that would enable Petitioner to function
effectively in his position despite his disability. Further, the
MSPBAJ found that Petitioner failed to identify any similarly-situated
employee who was not within his protected bases that was treated more
favorably than he was, i.e., he identified no employee whose performance
was determined by Agency management to be unacceptable and who was not
thereafter removed for that reason.
Next, the MSPBAJ held that Petitioner’s argument that the Agency
failed to accommodate his visual disability when the Agency did not give
him additional time to complete his PIP work products, was not true.
As background, the MSPBAJ noted that the record showed that Petitioner
told his supervisor that he suffered from cataracts on December 11, 2009.
The supervisor referred Petitioner to the Reasonable Accommodation
Coordinator (RAC). Petitioner told the RAC that the medical condition
that affected his eyes did not constitute a disability in accordance with
the Rehabilitation Act and therefore he was not requesting a reasonable
accommodation. Moreover, the record showed that Petitioner was given
additional time on several occasions to complete his PIP projects.
Finally, with respect to Petitioner’s claim of retaliation because of
prior protected EEO activity, the MSPBAJ found that both the first-line
and second-line supervisors were aware of Petitioner’s prior EEO
activity, but no evidence was produced which supported Petitioner’s
claim that his removal was retaliatory and not based solely on
his performance. The MSPBAJ found that the evidence supported the
Agency’s argument that Petitioner’s removal was based exclusively on
his unacceptable performance. The MSPBAJ concluded that Petitioner
failed to show that he was discriminated against as was alleged.
Petitioner then filed the instant petition.
PETITIONER’S CONTENTIONS
Petitioner contends that the Agency repeatedly violated the collective
bargaining agreement (CBA) and the Performance Appraisal and Recognition
System (PARS). He maintains that had the Agency not violated the
CBA/PARS and OPM clauses, he would have had a better understanding of his
supervisor’s expectations. He further contends that he was repeatedly
subjected to discrimination and maintains that his supervisors were aware
of his prior EEO activity. He claimed that his supervisor interfered
with his work, and maintains that his request to attend EEO training
was denied on multiple occasions even though he was the Special Emphasis
Program Manager/Disabilities Program Manager as stipulated in his PARS.
Finally, Petitioner maintains that, contrary to management’s argument,
Special Emphasis was one of his primary functions.
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.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of
all statements submitted by Petitioner in his petition for review, it is
the decision of the Equal Employment Opportunity Commission to CONCUR with
the MSPB’s decision finding no discrimination. The Commission finds
that even if we assume arguendo, that Petitioner established a prima facie
case of discrimination as to all bases, the Agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that Petitioner was
removed due to his poor performance. To support its decision the Agency
cites incidents which include failing to complete assignments, failing
to attend meetings, failing to participate, failing to turn in materials
in a timely manner, and failing to work on projects that were assigned.
We find that other than Petitioner’s statements in his petition, he has
presented no evidence which shows that he was subjected to discrimination
or reprisal. We find that the MSPBAJ correctly found that Petitioner
was not subjected to reprisal and disability discrimination.
Further, to the extent that Petitioner is alleging that the Agency failed
to provide him with a reasonable accommodation for his disabilities,
we find, that the record does not show that Petitioner ever requested
an accommodation, nor does the record show that management believed
that Petitioner needed an accommodation to complete his assignments.
Additionally, the record shows that during the period of the PIP,
Petitioner met with his supervisor on a weekly basis and there were
discussions regarding how to assist Petitioner to successfully accomplish
his assignments. There is no evidence, however, that Petitioner ever
asked for an accommodation during these meetings.
With respect to Petitioner’s contention that he was subject to a hostile
work environment with respect to the matters set forth in his appeal, we
find that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) that Petitioner’s claim of hostile work
environment must fail. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a
hostile work environment is precluded by our determination that he failed
to establish that any of the actions taken by the Agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (Sept. 21, 2000).
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’s finding
of 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
___10/4/11_______________
Date
1 The PIP was to run from December 4, 2009, to February 17, 2010, but
was extended through February 26, 2010 because of a blizzard which closed
the Federal government in Washington, D.C.
2 Petitioner’s most recent EEO activity occurred two years prior to
the matter at issue here.
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0320110027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110027