03a10082
04-05-2002
Eugenie M. Boland, Petitioner, v. Elaine Chao, Secretary, Department of Labor, Agency.
Eugenie M. Boland v. Department of Labor
03A10082
April 5, 2002
.
Eugenie M. Boland,
Petitioner,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Petition No. 03A10082
MSPB No. BN-0752-99-0011-I-2
DECISION
On May 21, 2001, Eugenie M. Boland (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 Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The petition is governed by the provisions of
the Civil Service Reform Act of 1978 and EEOC regulations, 29 C.F.R. �
1614.303 et seq. The MSPB found that the Department of Labor (agency)
did not engage in discrimination as alleged by petitioner.<1> For the
reasons that follow, the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on race
(Asian), color (dark skin), national origin (Indonesian/European),
sex (female) and disability (anxiety disorder, seizures) when she was
removed from her position, effective September 25, 1998, constitutes
a correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.
29 C.F.R. � 1614.305(c).
BACKGROUND
The full factual history of this case is set forth in the Initial Decision
of the MSPB Administrative Judge (AJ) and will only be restated as
necessary in this decision. The record reveals that during the relevant
time, petitioner was employed as a Personal Assistant at the agency's
Office of the Assistant Secretary for Administration and Management
(OASAM), Boston/New York Region. At some point prior to June 1997,
petitioner's supervisor (S1) became aware that problems were developing in
the Boston office due to petitioner's frequent and unpredictable absences.
S1 met with petitioner to discuss these concerns and when petitioner
indicated that her absences were related to her medical problems,
S1 raised the possibility of part-time work or disability retirement.
When petitioner indicated that she was not interested in either of these
options, S1 suggested that she give petitioner a letter describing
the requirements of her job and the problems petitioner was having,
so that petitioner could go to a medical provider and, thereafter,
provide the agency with information about possible accommodations for her
medical conditions. Petitioner did not provide any medical information
in response to the letter S1 drafted, nor did she suggest any possible
accommodations.
Thereafter, petitioner's frequent use of unscheduled leave continued.
In response to S1's concerns, petitioner noted that if work needed
to be done in petitioner's absence, someone else could be assigned to
do it. Petitioner did not request an accommodation, nor did she provide
information from a medical professional describing her impairment or
detailing any possible accommodations. After encouraging petitioner to
seek the assistance of the Employee Assistant Program and the Department
of Veterans Affairs (from whom petitioner said she was receiving help),
S1 placed petitioner on leave restriction on December 18, 1997. In order
to comply with the leave restriction letter, petitioner had to follow
a number of requirements, including scheduling leave in advance and
submitting a medical note for each illness-related absence. Despite this
restriction, petitioner continued to use unscheduled leave and failed
to provide medical documentation in support of her use of sick leave.
When this behavior led the agency to propose a five-day suspension,
petitioner responded, in writing, that she was not going to submit
medical notes when using sick leave because it would jeopardize her
relationship with her doctors. Petitioner also noted that she informed
S1 of her absences in advance and that this should be sufficient.
Petitioner still did not provide any medical information relating to
her impairments or suggesting accommodations The Regional Administrator
sustained S1's proposed suspension.
Despite this discipline, petitioner continued to fail to comply with the
leave restriction letter. Finally, on August 14, 1998, S1 proposed to
remove petitioner for Violation of Leave Restrictions and Unauthorized
Absence (AWOL), citing three specific violations.
Petitioner filed a complaint of discrimination and the agency issued a
decision, finding that petitioner failed to establish that her removal was
motivated by a discriminatory animus. Petitioner appealed to the MSPB.
In the Initial Decision, the MSPB AJ, after providing a detailed
account of the events leading up to petitioner's removal, concluded
that petitioner failed to establish she was subjected to discrimination.
The AJ first found that petitioner did not sustain her burden of proving
disability discrimination, noting that petitioner neither alleged nor
demonstrated that her medical condition prevented her from complying
with the agency's leave restrictions. Furthermore, the AJ noted that
petitioner offered no evidence to establish that her race, color, national
origin or sex motivated her removal. The AJ found that even if true,
petitioner's argument that her workload was excessive and exacerbated
her medical problems did not establish that the agency's actions were
related to petitioner's protected bases. The AJ concluded that there
was no evidence in the record to support a finding that the removal was
based on a discriminatory motivation. Petitioner filed a petition for
review by the full MSPB Board, which was denied on April 27, 2001.
Petitioner raises no new contentions in her petition for EEOC review.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), we find that petitioner failed to establish that
she was subjected to discrimination on the bases of race/color, national
origin, or sex. Although petitioner alleged that individuals outside
her protected classes with leave records similar to hers were treated
more favorably than she, the agency established that the individuals
named by petitioner were not valid comparators. Specifically, the
agency established that, unlike petitioner, when the named comparators
developed leave-related problems, they cooperated with the agency to
create schedules which they could maintain and, subsequently, abided by
those schedules. Petitioner offered no other evidence to suggest that
her removal was motivated by her race/color, national origin, or sex,
as opposed to her failure to abide by the agency's leave policies.
Furthermore, assuming for the purposes of this decision that petitioner is
a qualified individual with a disability and applying the standards set
forth in Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th
Cir. 1981), we find that she failed to establish that she was subjected
to disability-based discrimination.<2> Again, petitioner offered no
evidence that she was treated differently than any other employee when she
was removed after repeatedly failing to abide by the leave policies of
the agency, even after being placed on leave restriction. S1 testified
that when petitioner indicated that her frequent absences were due to
her medical condition, S1 mentioned the possibility of providing an
accommodation and drafted a letter for petitioner to give to her doctor,
requesting information about her impairments and possible accommodations.
S1 noted that petitioner did not return the letter and did not respond
to S1's suggestion that an accommodation might be appropriate. Instead,
petitioner simply continued to be frequently and unexpectedly absent
or late and the agency therefore placed her on leave restriction.
The agency noted that other employees with similar leave use problems
were also placed on leave restriction. When petitioner continually
failed to abide by the requirements of the leave restriction, she was
terminated. Although the agency acknowledged that it had never before
removed an employee for violations of leave policies, agency officials
testified that other employees who abused leave policies were placed on
leave restriction and, unlike petitioner, abided by the terms of those
restrictions and were therefore not removed.
Petitioner provided no evidence to establish that the agency's
explanations for its actions were a pretext for discrimination. She did
not dispute S1's testimony that she was placed on leave restriction
only after multiple attempts on S1's part to find another way to address
the fact that petitioner was frequently absent without advanced notice.
Petitioner did not establish that others outside her protected classes
who engaged in similar conduct were not placed on leave restriction.
Moreover, petitioner openly acknowledged that she did not abide by
the terms of the leave restriction, asserting that compliance with the
restrictions would have jeopardized her relationship with her doctors.
The record establishes that despite receiving a multitude of opportunities
to improve her conduct between June 1997 and August 1998, petitioner
continued frequently to use unscheduled leave, failed to respond to
S1's attempts to learn more about her impairments or to discuss possible
accommodations, refused to provide doctor's notes substantiating claimed
doctor's appointments after being placed on leave restriction, and,
in response to S1's concerns, argued that others could do her work
if something needed to be done while she was absent. Petitioner,
therefore, failed to establish by a preponderance of the evidence that
her disability, rather than her failure to abide by the agency's leave
policies, motivated the agency's decision to remove her.
Similarly, the agency did not fail in its responsibility to provide
petitioner with a reasonable accommodation. See 29 C.F.R. � 1630.2(o);
29 C.F.R. � 1630.2(p).<3> To the extent that petitioner claimed that
her absences were related to a disability and therefore should be
excused whether or not she abided by the agency's policies, we note
that the agency does not have to excuse a violation of a uniformly
applied conduct rule that is job-related and consistent with business
necessity as a form of reasonable accommodation. See Mincer v. Small
Business Administration, EEOC Petition No. 03990021 (May 25, 2000);
EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (Reasonable Accommodation Guidance),
March 1, 1999, at questions 34 and 35. Here, petitioner continually
violated the agency's uniformly applied leave procedures, even when placed
on leave restriction. When the agency learned that petitioner's absences
might be related to a medical problem, it attempted to make reasonable
accommodation to enable petitioner to abide by the leave procedures in
the future, but petitioner would not cooperate with these attempts.
Furthermore, Commission guidance provides that when an individual requests
a reasonable accommodation, the agency may ask for medical documentation
to substantiate that the individual has a disability and needs the
requested reasonable accommodation, unless both the disability and the
need for a reasonable accommodation are obvious, or the individual has
already provided the agency with sufficient information. See Reasonable
Accommodation Guidance, at question 8.
Here, when S1 first approached petitioner about her misuse of leave,
petitioner indicated that her absences were related to her medical
problems. In response to what appeared to be a request for a reasonable
accommodation, S1 provided petitioner with a letter to share with her
doctor outlining petitioner's job responsibilities and the problems
petitioner was having so that her doctor could provide the agency
with information about petitioner's impairments and suggest possible
accommodations. Given that it was not clear that petitioner's impairment
rose to the level of a disability, nor what kind of accommodation
might allow petitioner to abide by the leave policies of the agency,
S1's actions were proper.
Petitioner, on the other hand, submitted no response to this letter and
did not otherwise indicate what kind of reasonable accommodation would be
effective, instead noting that if there was work that needed to be done in
her absence, it should be assigned to others. She continued this behavior
despite S1's continued attempts to address the situation. Accordingly,
we find that petitioner failed to establish that she was improperly denied
a reasonable accommodation. See Reasonable Accommodation Guidance, at
question 6 (if an individual's need for reasonable accommodation is not
obvious and she refuses to provide the reasonable documentation requested
by the employer, she is not entitled to a reasonable accommodation).
Based on the foregoing, the Commission finds that petitioner's removal
did not constitute unlawful discrimination on the bases of race/color,
national origin, sex or disability.
Accordingly, after 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 (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
April 5, 2002
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 Petitioner initially filed an MSPB appeal on October 23, 1998,
which was dismissed without prejudice due to her concurrent filing
of a discrimination complaint. The agency issued a final decision on
the discrimination complaint on March 10, 2000, finding no evidence of
discrimination due to race/color, national origin, sex or disability.
2 Although petitioner was removed because she violated leave procedures
and was absent without leave on numerous occasions, the agency did not
argue that petitioner was not qualified for her position due to her
excessive absence.
3The 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.