0320120043
10-12-2012
Jacquelyn R. Brooks, Petitioner, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Jacquelyn R. Brooks,
Petitioner,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Petition No. 0320120043
MSPB No. CH-0752-11-0119-I-1
DECISION
On May 5, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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
At the time of events giving rise to this appeal, Petitioner worked as an Accountant, GS-0510-12, at the Agency's office in Indianapolis, Indiana.
On May 11, 2010, the Agency issued Petitioner a notice of proposed removal. Specifically, the notice charged Petitioner with 200 hours of absence without leave (AWOL) from April 6, 2010 to May 10, 2010. On September 28, 2010, the Agency issued a decision to remove Petitioner, effective October 4, 2010.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity (EEO complaints initiated in October 2009 and May 2010) when she was removed from her position. On February 25, 2011, based on the written record,1 an MSPB Administrative Judge (MSPB AJ) issued an initial decision sustaining the AWOL charge, finding no discrimination, and upholding the Agency's removal action.
In sustaining the charge, the MSPB AJ found that the Agency properly placed Petitioner in an AWOL status because she was absent from duty and had no sick leave. Specifically, the MSPB AJ noted that the parties stipulated to the following: (1) Petitioner was recorded in an AWOL status for the period charged; (2) Petitioner had no right to receive Family and Medical Leave Act of 1993 (FMLA) leave during the period at issue; and (3) Petitioner had no accrued sick leave to use. In addition, the MSPB AJ found, based on documentary evidence, that Petitioner's absence from duty began on January 12, 2010 and that she exhausted her FMLA leave entitlement on April 5, 2010. Further, the MSPB AJ found that the Agency gave Petitioner notice that her AWOL could lead to her removal. The MSPB AJ cited a March 19, 2010 letter in which the Agency warned Petitioner that if her absence continued beyond April 5, 2010, she would be charged AWOL and be subject to removal. The MSPB AJ also cited an April 14, 2010 letter in which the Agency notified Petitioner that her continuing absence after April 5, 2010 was resulting in a charge of AWOL which could lead to her removal. Although Petitioner stated that she did not receive the April 14, 2010 letter until May 20, 2010, the MSPB AJ found that Petitioner did not "receive" the letter because she did not pick it up when it was delivered.
In finding no disability discrimination, the MSPB AJ determined that Petitioner was not a "qualified" individual with a disability2 within the meaning of the Rehabilitation Act because she did not show that a reasonable accommodation for her condition was possible. Specifically, the MSPB AJ found that Petitioner did not identify a reasonable accommodation that would allow her to perform the essential functions of her Accountant position. In addition, the MSPB AJ found that Petitioner did not identify another vacant, funded position to which she could have been reassigned. Further, the MSPB AJ cited an August 30, 2010 letter from an Occupational Health Consultant (OMC)3 stating, in pertinent part, that: (a) the OMC had reviewed medical documentation submitted by Petitioner; (b) "[t]he documentation establishes that [she] is seriously ill and suffering from several significant impairments;" (c) "[g]iven the severity and multitude of impairments caused by this condition and their progressive nature, any attempt to accommodate [her] would have to be heroic in scope and unlikely to be effective;" and (d) there is "little reason to believe that she will be able to return to work in the future, with or without accommodation."
In finding no reprisal discrimination, the MSPB AJ determined that Petitioner failed to establish that her EEO activity was the reason for her removal. Specifically, the MSPB AJ found that Petitioner was absent from work for four months before the Agency proposed her removal and that, for the last month of this time, she was carried in an AWOL status without any indication of when she might return to work. In addition, the MSPB AJ noted that no agency can reasonably tolerate an employee's indefinite absence from work without any indication of return. Further, the MSPB AJ found that the Agency repeatedly notified Petitioner of the unacceptability of her absence and the possibility of her removal. Moreover, the MSPB AJ found that Petitioner provided no evidence that the Agency treated her differently from similarly situated employees or that the Agency's explanation for her removal was pretextual. Finally, the MSPB AJ, citing the above reasons, found that the fact that Petitioner was coincidentally prosecuting an EEO complaint did not show reprisal.
Petitioner filed a petitioner for review by the full Board, but her petition was denied. The Board found that the MSPB AJ did not err in finding no disability or reprisal discrimination. In so finding, the Board cited the OMC's statements in his August 30, 2010 letter. In addition, the Board determined that Petitioner did not dispute that she failed to report to work and was likely to remain unable to report to work for an indeterminate period. Moreover, the Board noted that AWOL is a serious offense and that Petitioner failed to prove that her removal was the result of retaliatory animus.
Petitioner then filed the instant petition. Petitioner's petition did not contain a statement of the reasons why the decision of the MSPB is alleged to be incorrect, in whole or in part, with regard to the issues of disability and reprisal discrimination.4 The Agency did not file a timely opposition to Petitioner's petition.5
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).
Upon review of the record, we agree with the MSPB's finding of no disability or reprisal discrimination. In doing so, we note that Petitioner did not specifically challenge any part of the MSPB's decision in her petition to the Commission. In addition, we agree with the MSPB that Petitioner has not shown that she is a "qualified" individual with a disability. Further, we agree with the MSPB that Petitioner has not shown that the Agency's stated reason for her removal - 200 hours of AWOL from April 6, 2010 to May 10, 2010 - was a pretext for reprisal discrimination. Petitioner has the overall burden of proving discrimination and we agree with the MSPB that she has not done so here. 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 (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
__10/12/12________________
Date
1 Petitioner requested a hearing, but subsequently withdrew her request.
2 The MSPB AJ determined that Petitioner was an individual with a disability.
3 According to the signature on the letter, the OMC is a medical doctor.
4 Petitioner filed her petition on May 5, 2012. Petitioner filed a supporting statement on June 18, 2012. The regulation set forth at 29 C.F.R. � 1614.304(b)(3) requires the concurrent submission of the petition for review and the supporting statement. Accordingly, the Commission declines to consider Petitioner's supporting statement, as it was not timely filed.
5 The Agency received Petitioner's petition on May 7, 2012. The Agency filed its opposition on May 24, 2012. The regulation set forth at 29 C.F.R. � 1614.305(a) requires an agency to file its opposition within 15 days from the date the petition was received. Accordingly, the Commission declines to consider the Agency's opposition, as it was not timely filed.
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0320120043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120043