03A20052
06-25-2002
Bianca A. Jimenez, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Bianca A. Jimenez v. Department of the Navy
03A20052
06-25-02
.
Bianca A. Jimenez,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A20052
MSPB No. DC0752010237I1
DECISION
On March 28, 2002, 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791.<1> Petitioner
claimed that the agency discriminated against her on the basis of
disability (residual effects of back injury resulting in sustained
lumbar-sacral back pain) by removing her, effective December 29, 2000.
On January 19, 2001, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge (AJ) found that the removal
charge was sustained in accordance with 5 U.S.C. � 7701 and that
petitioner failed to show that her removal resulted from disability
discrimination. The Board denied petitioner's petition for review.
The agency employed petitioner as an office support assistant in the
office of the Program Manager, Ammunition Office, which is located within
the Marine Corps Systems Command at Quantico, Virginia. She was injured
on the job on December 20, 1993, and her claim for workers compensation
was approved for �post-concussive syndrome and aggravation of pre-existing
degenerative disc syndrome� on October 21, 1994. Beginning on April 24,
2000, and continuously thereafter until her removal on December 29, 2000,
petitioner was continuously absent from work. She was placed in absence
without leave (AWOL) status on May 25, 2000. During her absences, she had
exhausted all of her annual and sick leave, and then used approximately
600 hours of leave without pay. On November 29, 2000, the deputy program
manager notified petitioner that the agency proposed to remove her,
based upon her physical inability to perform the duties of her position.
The notice of proposed removal states, in pertinent part:
2. You continue to be in an LWOP status due to a claimed on-the-job
injury that your doctor states has incapacitated you for duty. However,
to date, you have not provided any definitive medical documentation
regarding your condition or prognosis other than that you are awaiting
approval from the Department of Labor for a MRI, and are experiencing
disabling lumbar-sacral back pain. I am in receipt of your doctor's
note dated 10 November 2000 in which he has checked a block [indicating]
that you are totally incapacitated for duty until January 2001. Again,
I have received no medical documentation that would indicate any end to
this continuing disabling condition.
3. You have been accommodated in every way possible, and the adverse
effects of your absences have impacted adversely on the mission of this
branch and your co-workers who, due to your absences from the workplace,
have had to assume your duties as well as maintaining their own.
Additional hours by both military and civilian personnel have been
authorized in order to accomplish and maintain the workload of this
office. In order to offset some of these additional duties and hours
worked, this office has had to hire a temporary employee to fulfill some
of the duties of your position. I can no longer support your continued
absences from duty.
On December 18, 2000, the program manager notified petitioner that the
removal charge had been sustained, and that the removal would take effect
on December 29th. The program manager noted, again in pertinent part:
2. You have been unavailable for duty since 25 May 2000, exhausting
all annual and sick leave, and are currently being carried in an LWOP
status. Efforts were made to obtain medical information as to when, and
whether, you would be able to return to work. The most current medical
information provided at this time simply has a block checked by your
doctor that you are totally incapacitated for duty until 3 January 2001.
We have experienced this before, i.e., we wait for a date expecting you to
return to duty, and the doctor simply signs another note that says that
you are incapacitated for duty. We never make any progress. Based on
past experience, we have no expectation that you will return in January.
3. You state in your letter that no accommodations have been made
for you. I find no evidence to support this allegation. In fact,
I find that [the deputy program manager and petitioner's first-line
supervisor] have tried unsuccessfully over the last several months to
find some way to ensure your position remained available for your return
to work by carrying you in an approved leave status, and still maintain
the high standards required by this office to support your position in
the systems command. Not only have other civilian personnel assumed
your responsibilities, but military personnel have assisted as well.
In order to offset some of these additional duties and hours worked, this
office has had to hire a temporary employee to fulfill some of the duties
of your position. You allege in your reply that you have received no
accommodation in regard to your workstation being equipped with a chair,
monitor, and keyboard that would allow you to stand and work as necessary.
I find absolutely no evidence to support that this request was ever made,
either orally or in writing, and no medical evidence to support same.
Your doctor has not indicated in any way that with proper equipment you
could return to duty, merely that you are incapacitated for duty.
4. Please note that this removal action is non-disciplinary. While I
am sympathetic to your medical problems, I cannot continue to accommodate
your extended absences from duty.
In the initial MSPB decision, the AJ determined that petitioner was
not a qualified individual with a disability. The AJ based her ruling
on findings that petitioner could not perform the essential functions
of her position without endangering her health, even with reasonable
accommodation. In particular, the AJ found that petitioner's physician
had consistently stated that she was totally incapacitated, and that her
return to work would be against his medical advice. The AJ also found that
neither petitioner nor her physician had ever requested an accommodation
that would allow her to perform her duties. As to an argument that
petitioner raised regarding modifications to her workstation, the AJ
noted that the only evidence petitioner presented to support that argument
was a note from a previous physician, dated July 7, 1994, recommending
that she be given a vertically adjustable work station so that she could
do data entry either sitting or standing. The AJ further found that:
there was no evidence that this note was ever given to an agency official;
the note concerned petitioner's medical condition in 1994, which was
qualitatively different from her condition between May and December of
2000; the note did not address petitioner's need for a chair, monitor,
or keyboard; and the recommendation in the note was inconsistent with
the more recent medical reports of petitioner's physician in 2000.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Petitioner maintains that, in removing her from her position, the agency
failed to provide her with reasonable accommodation.<2> Following
receipt of a request for reasonable accommodation, the agency may seek
documentation establishing that complainant has a disability and that
his disability necessitates an accommodation. Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, EEOC Notice No. 915.002 (March 1, 1999) (Question 6).
The operations manager for ammunition stated that petitioner's use of sick
leave became more frequent between January 1999 and April 2000. He also
stated that petitioner was repeatedly told by her first-line supervisor,
and later by him, to provide medical documentation to substantiate
her extensive leave usage. She did not do so until September 1999,
and the information that was provided did not disclose the nature of
petitioner's condition or provide the diagnosis and prognosis that the
agency requested. The operations manager stated that, between September
1999 and April 2000, petitioner's leave usage became even more frequent,
and that petitioner had never substantiated her absences with anything
more than brief notes from her doctor that never contained any substantive
information. He further stated that, between January and April 2000,
petitioner's absences began to cause considerable hardship upon the
office because of petitioner's inability to complete the projects assigned
to her. Many of petitioner's absences were �spur of the moment,� which
increased the already-considerable workloads of the supervisor and the
operations manager. Appeal File Tab (AFT) 10, Appendix A.
The operations manager and the program manager both stated that petitioner
never returned to work after April 24, 2000, and that she had exhausted
all of her leave. On May 25, 2000, petitioner was placed in LWOP
status, where she remained until her removal in December. The agency
continued to receive the same type of doctor's notes that petitioner
had previously provided. None of these notes contained any substantive
evidence that her continuing absence had any foreseeable end in sight.
The notes stated that petitioner was totally incapacitated, but that was
about all. An example of those notes was the disability certificate dated
November 10, 2000, referenced above. During the seven months that she
was completely absent from work, petitioner never provided the requested
medical documentation, despite being asked to do so on numerous occasions.
AFT 10, Appendix A & attachments 2, 4, 5, Appendix B. Consequently,
the agency cannot be held liable for failure to provide petitioner
with reasonable accommodation. Ross v. Department of the Treasury,
EEOC Appeal No. 01982708 (August 3, 2001).
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____06-25-02______________
Date
1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2 We will assume, arguendo, that petitioner is disabled within the
meaning of the Rehabilitation Act.