03a20007
06-07-2002
Bonnie Gallardo v. United States Postal Service 03A20007 06-07-02 .Bonnie Gallardo, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bonnie Gallardo v. United States Postal Service
03A20007
06-07-02
.Bonnie Gallardo,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A20007
MSPB No. SF-0353-00-0438-I-3
DECISION
On October 11, 2001, the Equal Employment Opportunity Commission
(Commission) received a petition from Bonnie Gallardo (hereinafter
referred to as petitioner) for review of the Merit Systems Protection
Board's (MSPB or the Board) final decision on her case. In that decision,
the MSPB found that petitioner was not subjected to sex (female), age
(60), and disability (perceived mental condition) discrimination when she
was not restored to her former supervisor position after the termination
of her workers' compensation benefits. See Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621et seq; and �
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The Commission accepts this petition in accordance with the Civil Service
Reform Act of 1978 and EEOC Regulations at 29 C.F.R. � 1614.303 et seq.
The issue herein is whether the Board's determination that the agency had
not discriminated against petitioner on the bases of her sex (female),
age (60), and disability (perceived mental condition) constitutes a
correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.
Petitioner filed a mixed case complaint in November 1997, alleging that
she had been subjected to sex, age, and disability discrimination when she
was not restored to her former supervisor position after the termination
of her workers' compensation benefits. Following an investigation,
petitioner appealed the matter to the MSPB. The MSPB Administrative Judge
(AJ) held a hearing, and subsequently issued an initial decision, finding
no discrimination.<1> This decision became final on October 5, 2001.
Petitioner timely filed a petition for review with this Commission.
A review of the record reveals that petitioner became ill while at work on
October 16, 1989, and did not subsequently return to her job. Petitioner
filed a workers' compensation claim, which was accepted in September 1990,
and was granted disability retirement in April 1991. In August 1997,
petitioner received notification that the Office of Workers' Compensation
Programs (OWCP) was proposing to terminate her compensation benefits,
because she was no longer disabled based upon the accepted condition.
Petitioner then requested that the Postmaster and the Manager of Human
Resources give her priority consideration so that she could return to
her former position. The agency subsequently notified petitioner that
she must first provide medical documentation so that it could determine
whether she was fit to return to duty. Petitioner failed to provide
the requested information, and was not given priority consideration.
According to the record, petitioner was treated by a psychologist (Dr. G)
in June 1990. Dr. G submitted numerous notes, stating that petitioner
was temporarily totally disabled from that time until February 1997.
Dr. G diagnosed petitioner with "psychological factors affecting her
physical condition," and adjustment disorder. Dr. G related petitioner's
condition to stress at work. Petitioner was subsequently examined by a
second psychologist (Dr. V), and a psychiatrist (Dr. F) in early 1996,
both of whom questioned Dr. G's diagnoses, and concluded that petitioner
had dementia which was not related to her employment. Dr. G then issued
a report dated February 21, 1997, finding that petitioner did not have
dementia, and was able to return to work. Dr. G noted, however, that
she continued to experience residual effects from her condition.
As stated, the MSPB AJ issued a decision finding no discrimination.
The AJ determined that the medical documentation was not sufficient
to show that petitioner was an individual with a disability, and that
the record did not support a finding that petitioner was perceived as
disabled by the agency. Further, the AJ found no evidence to support
a finding of sex or age discrimination.
The Commission must determine whether the MSPB's decision with respect
to petitioner's allegations of discrimination constitutes a correct
interpretation of the applicable laws, rules, regulations and policy
directives, and is supported by the evidence in the record as a whole.
See 29 C.F.R. �1614.305(c). The Commission concurs with the Board,
and finds that the agency's failure to provide petitioner with priority
consideration and restore her to her former position was not the result
of discrimination.
Assuming for purposes of this decision that petitioner is a qualified
individual with a disability, the agency articulated a legitimate,
nondiscriminatory reason for the action cited, that is, petitioner's
failure to respond to its request for medical documentation in order
to determine whether she was fit to return to duty. It is noted
that, even assuming the agency was aware of Dr. G's 1997 report,
Dr. G noted that petitioner continued to experience residual effects
from her condition. Given petitioner's lengthy period of disability,
during which Dr. G indicated that she was unable to perform the duties
of her position, and the existence of residual effects noted in the most
recent medical documentation, we find the agency's request for additional
documentation to be job-related and consistent with business necessity.
See Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act, EEOC
Notice No. 915.002 (July 2000). Further, while petitioner stated that she
was required to take an entry-level test, the record shows that agency
policy required all individuals applying for reinstatement to do so.
Thus, the Commission concurs with the MSPB that petitioner failed to
prove that she was discriminated against on the basis of disability.
Finally, the Commission agrees with the MSPB that the record fails to
show that the action in question was in any way related to her sex or age.
CONCLUSION
For the reasons as set forth above, the Commission CONCURS with the MSPB's
finding that petitioner failed to show that the agency discriminated
against her on the bases of her sex, age, and disability when she was
not restored to her former position.
STATEMENT OF PETITIONER'S RIGHTS
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
_______06-07-02___________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1The AJ noted that the agency agreed to retroactively place petitioner
on the priority consideration list and pay specified attorneys fees.
Thus, the AJ stated that the only issue remaining concerned whether the
action in question resulted from discrimination.