0320080034
03-27-2008
Margaret E. Rand, Petitioner, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Margaret E. Rand,
Petitioner,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Petition No. 0320080034
MSPB No. DC0752070471I1
DECISION
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.
Petitioner alleged that she was discriminated against on the bases
of disability (psychiatric disorder, adjustment disorder with mixed
disturbance of emotions and conduct) and reprisal for prior protected
EEO activity when she was removed from her position with the agency as
a GS-13 Management Analyst, effective March 2, 2007, on the grounds of
inability to perform the duties of her position.1 In brief, at the time
her removal was proposed in January 2007, petitioner had been absent from
work since July 5, 2006. Medical documentation petitioner submitted
to justify her absence indicated she could not perform her duties at
her "most current place of employment" without severe risk of further
deterioration of her psychiatric condition. No date of anticipated return
to work was provided by petitioner. In her response to the proposed
removal, petitioner indicated that the reason she could not return to
her position was, in essence, because her first-level supervisor was
causing her to become ill. Therefore, she requested to be reassigned
to another office where she would have a different supervisor.
A hearing was held on petitioner's appeal and, thereafter, a MSPB
Administrative Judge (AJ) issued an initial decision upholding
petitioner's removal and finding no discrimination or reprisal. The AJ
found that, even assuming petitioner was a person with a disability,
she did not show that she was a "qualified" within the meaning of the
Rehabilitation Act. The AJ found that petitioner did not articulate
a reasonable accommodation that would have enabled her to perform the
essential functions of her position. Petitioner sought review by the
full Board, which denied her request. Petitioner then filed the instant
petition.
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).
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 record shows that petitioner was out of work for an
extended period of time and sought to be reassigned to another position
in order to obtain a different supervisor, asserting that her current
supervisor was exacerbating her psychiatric disorder. However, even
assuming petitioner is disabled, the Commission's guidance specifically
states that an employer does not need to change a person's supervisor
as a form of reasonable accommodation. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act, (October 17, 2002), Question 33. The Commission also
notes that petitioner testified that she has been unable to work because
she was "in the throes of the panic attack and all its complications."
To that extent, petitioner has not shown she is a qualified person with
a disability. 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
March 27, 2008
__________________
Date
1 Petitioner retired in lieu of this involuntary action on February 28,
2007.
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0320080034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080034