0320160066
02-17-2017
Marya S.,1 Petitioner, v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marya S.,1
Petitioner,
v.
Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.
Petition No. 0320160066
MSPB No. DC-0752-09-0881-B-2
DECISION
On August 29, 2016, 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. For the reasons that follow, we CONCUR with the MSPB's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a GS-13 Administrative Officer at the Agency's Office of Information Technology (OIT), Resource Management Division (RMD). On February 17, 2009, via email, Petitioner told the Deputy Inspector General (DIG) that her home had been broken into a number of times since she had passed on information to DIG's former colleague and asked whether any of DIG's staff had been in her home without her consent.
On March 11, 2009, via email, Petitioner accused the RMD Manager (FS1) of providing a transit officer with the number of the train car in which she had been riding, harassing her, and trying to get her fired. Petitioner told FS1, "I pray that whatever stronghold has you captive will set you free." Petitioner stated, "I am also sending a copy of the email to EEO, CIO, DCIO,2 and the OIG for documentation in case anything happens to me while I am here on the job or anywhere else. I hope that they are not part of this unprofessionalism that is being orchestrated." Petitioner copied the EEO Office, CIO, DCIO, and the OIG on the email.
On May 22, 2009, during a meeting with the Acting RMD Manager (S1), Petitioner accused S1 and DCIO of listening to her conversations and stated that she knew about the "earpiece." Later that day, via email, Petitioner told S1, "Hope you presented yourself well before the hidden camera." In response, S1 suggested that they meet with DCIO to address Petitioner's views. In reply, via email, Petitioner told S1, "Thanks for the invite but based on the conversation we just had and your hidden agenda, I will not accept."
After the meeting, management contacted Human Resources (HR) about Petitioner's behavior. On May 26, 2009, HR contacted Federal Occupational Health (FOH) and forwarded Petitioner's emails for review. On May 27, 2009, a FOH physician (D1) completed a worksheet indicating that he had spoken with HR about Petitioner's paranoid behavior and would recommend a fitness for duty examination (FFDE). On May 27, 2009, via fax, D1 told an Agency medical consultant (D2) that management was concerned about Petitioner's paranoid behavior, forwarded Petitioner's emails for review, stated that "the real issue is whether [Petitioner] is a danger to herself or others," and requested that D2 evaluate Petitioner.
On May 28, 2009, the Agency ordered Petitioner to undergo a FFDE with D2 on June 4, 2009 based on the behavior she had exhibited during the past several months. The Agency placed Petitioner on administrative leave pending the results of the FFDE.
On June 4, 2009, in a report summarizing the results of the FFDE, D2 found that Petitioner was experiencing a psychotic delusional disorder and was unfit for duty.
Effective August 4, 2009, the Agency placed Petitioner on enforced leave pending her submission of documentation from her health care provider confirming that she was fit to return to work.
On September 9, 2009, Petitioner submitted a medical report from her health care provider (D3) stating that she was able to return to work without restriction. Based on that submission, the Agency removed Petitioner from enforced leave and placed her on administrative leave effective September 9, 2009, pending D2's review of D3's report. D2 identified various deficiencies in D3's report and recommended that Petitioner undergo an independent medical examination sponsored by the Agency. The Agency then ordered Petitioner to undergo another FFDE by D2 on October 8, 2009, who issued a report on October 13, 2009 stating that Petitioner was "still evidencing severe mental illness" and was "too fragile to be safely returned to the workplace."
On October 28, 2009, the Agency instructed Petitioner that, for it to determine her ability to return to work, she had to allow D2 to consult directly with D3 to attempt to resolve the deficiencies in the medical documentation or undergo a psychiatric evaluation with another health care provider. The Agency advised Petitioner that failure to comply with the instruction would result in her pay status being changed from administrative leave to absence without leave (AWOL). Petitioner did not comply with the instruction and, effective November 9, 2009, the Agency placed her on AWOL.
MSPB
Petitioner filed two mixed case appeals with the MSPB: (1) MSPB No. DC-0752-09-0881-I-1 (Appeal 1), alleging that the Agency discriminated against her on the basis of disability when, from August 4, 2009 to September 9, 2009, it placed her on enforced leave; and (2) MSPB No. DC-0752-10-0223-I-1 (Appeal 2), alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when, beginning on November 9, 2009, it placed her on AWOL.
In Appeal 1, the MSPB Administrative Judge (AJ) issued an initial decision finding, in pertinent part, no disability discrimination. Petitioner filed a petition for review with the Board. In Appeal 2, the MSPB AJ issued an initial decision finding, in pertinent part, that Petitioner was not entitled to a hearing on her disability discrimination or retaliation claims. Regarding her retaliation claim, the MSPB AJ found that Petitioner's March 11, 2009, email was not protected activity because, although she sent the EEO Office a copy of the email, she did not contact the EEO Office with the intent to begin the EEO process. Petitioner filed a petition for review with the Board.
The Board joined both appeals on review. Subsequently, on March 27, 2012, the Board issued an opinion and order affirming in part, vacating in part, and remanding certain claims for further adjudication. Regarding Appeal 1, the Board vacated the part of the initial decision addressing Petitioner's disability discrimination claim and remanded that claim for further adjudication. Regarding Appeal 2, the Board affirmed the initial decision insofar as it denied Petitioner's retaliation claim, but vacated the part of the initial decision addressing Petitioner's disability discrimination claim and remanded that claim for further adjudication. Among other things, the Board noted that the direct threat affirmative defense was still available to the Agency and that, in vacating the initial decision; it had not made a determination regarding that defense.
On June 30, 2015, after a hearing, the MSPB AJ issued a remand initial decision finding no disability discrimination. First, the MSPB AJ found that the Agency regarded Petitioner as an individual with a disability. Second, the MSPB AJ found that the Agency's order directing Petitioner to undergo a FFDE did not violate the Rehabilitation Act because it was job-related and consistent with business necessity. Specifically, the MSPB AJ found that the ability to take direction from one's supervisor was an essential function of every job, and the record showed that Petitioner could not meet that requirement. In a footnote, the MSPB AJ further found that Petitioner did not pose a direct threat because her behavior might have suggested a potential threat, but that threat was too remote and speculative to constitute a direct threat. Third, the MSPB AJ found that Petitioner did not establish that the Agency subjected her to hostile work environment harassment on the basis of disability. Specifically, the MSPB AJ cited Petitioner's testimony that all of the Agency's actions, including placing her on enforced leave and AWOL, were in retaliation for her disclosing a Ponzi scheme3 within OIT. Although Petitioner's attorneys argued in their closing brief that the Agency harassed her because of her disability, the MSPB AJ found the legal arguments unpersuasive because they were "disconnected" from Petitioner's testimony about the alleged harassment.
Petitioner filed a petition for review with the Board. On July 28, 2016, the Board issued a final order denying Petitioner's petition. Specifically, the Board agreed with the MSPB AJ's finding that the FFDE was job-related and consistent with business necessity because the Agency reasonably believed that Petitioner's ability to perform essential functions would be impaired by a medical condition. Moreover, because it agreed with the MSPB AJ's finding on that matter, the Board found it unnecessary to address the MSPB AJ's finding that Petitioner did not pose a direct threat.
Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner contends that the MSPB erred in finding no discrimination on the bases of disability and reprisal. First, Petitioner argues that the MSPB erred in finding that the FFDEs was job-related and consistent with business necessity. Among other things, Petitioner asserts that the Agency had waived a direct threat defense. In addition, Petitioner asserts that, even if the Agency were not precluded from presenting such a defense, such a defense would fail on the merits. Moreover, Petitioner asserts that, because the FFDEs were unlawful, the Agency could not rely on them to justify her placement on enforced leave and AWOL. Second, Petitioner argues that the MSPB erred in finding that the Agency did not subject her to hostile work environment harassment on the basis of disability. Specifically, Petitioner asserts that the Agency harassed her when it repeatedly told her she had a medical condition, subjected her to highly personal and invasive unlawful FFDEs, and threatened to take away her job and livelihood if she did not submit to the FFDEs and produce medical documentation. Third, Petitioner argues that the MSPB erred in denying her retaliation claim. Specifically, Petitioner asserts that her March 11, 2009 email to the EEO Office was protected activity. In addition, Petitioner asserts that management heavily relied on the protected activity to justify the FFDEs and placing her on enforced leave and AWOL.
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
Disability-Related Inquiries and Medical Examinations
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquiries or require medical examinations of employees. The inquiry may be made or the examination ordered only if it is job-related and consistent with business necessity.
See 29 C.F.R. �� 1630.13(b), 1630.14(c). Generally, a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, EEOC Notice No. 915.002, Question 5 (July 27, 2000). Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will impair her ability to perform essential job functions or will pose a direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. Id.
"Direct threat" means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
29 C.F.R. � 1630.2(r). The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. Id. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.
As an initial matter, we find that the Agency did not waive a direct threat defense. Nothing in the Board's March 27, 2012 opinion and order, the MSPB AJ's June 30, 2015 remand initial decision, or the Board's July 28, 2016 final order, indicates that such a waiver occurred. Specifically, in its March 27, 2012 opinion and order, the Board stated that the defense was still available to the Agency. In addition, in the June 30, 2015 remand initial decision, the MSPB AJ addressed the merits of that defense. Moreover, in its July 28, 2016 final order, the Board found it unnecessary to address that defense - not because the Agency had waived it, but because the Board did not need to address it to resolve the appeal in the Agency's favor.
Upon review of the record, we find that the Agency lawfully required Petitioner to undergo the FFDEs because it had a reasonable belief, based on objective evidence, that she would pose a direct threat due to a medical condition. Specifically, the record reflects that, in her February to May 2009 email and in-person interactions with Agency employees, Petitioner accused them of breaking into her home, providing information to a transit officer about her location on a train, orchestrating things to happen to her at work and outside of work, listening to her work conversations, communicating with each other at work via earpieces, observing her at work via hidden cameras, and having a hidden agenda towards her. In addition, the record reflects that, after reviewing those emails, an Agency medical professional determined that Petitioner exhibited paranoid behavior, could be a danger to herself or others, and should undergo a FFDE. Moreover, the record reflects that the Agency relied on that determination in ordering Petitioner to undergo a June 2009 FFDE. Further, the record reflects that the Agency ordered Petitioner to undergo a follow-up FFDE in October 2009 to resolve conflicting information between D2's June 2009 FFDE report and D3's September 2009 medical report. Finally, to the extent that Petitioner argues that the Agency's actions related to the FFDEs constituted harassment on the basis of disability, we decline to make such a finding based on our determination that the FFDEs were lawful.
Retaliation
A retaliation claim challenging action taken because of EEO-related activity has three elements, the first of which is protected activity. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II (Aug. 25, 2016). Protected activity includes "participating" in an EEO process or "opposing" discrimination. Id. Participation in an EEO process is more narrowly defined to refer specifically to raising a claim, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the EEO laws. Id. By contrast, opposition activity encompasses a broader range of activity by which an individual opposes any practice made unlawful by the EEO statutes. Id.
Upon review of the record, we find that the MSPB properly found that Petitioner's March 11, 2009, email was not protected activity. First, we find that the email was not "participation" because Petitioner did not exhibit the intent to begin the EEO process. Although Petitioner copied the EEO Office (and CIO, DCIO, OIG) on the email, she stated that she was doing so "for documentation in case anything happens to me while I am here on the job or anywhere else." Second, we find that the email was not "opposition" because Petitioner did not oppose any practice made unlawful by the EEO statutes. Although Petitioner accused FS1 of harassing her, the email did not allege harassment that was discriminatory in nature, but only harassment in the general sense of the word.
CONCLUSION
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 unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_2/17/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The CIO was the Chief Information Officer and the DCIO was the Deputy Chief Information Officer.
3 A Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors.
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