0320150019
07-09-2015
Petitioner, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency.
Petitioner,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration,
Agency.
Petition No. 0320150019
MSPB No. DA0752130291I1
DECISION
On September 19, 2014, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, we CONCUR with the MSPB's finding of no discrimination.
ISSUE PRESENTED
Whether Petitioner established that the Agency discriminated against her due to her disability when she was denied a reasonable accommodation and was subsequently terminated by the Agency.
BACKGROUND
Petitioner worked as an Accounting Technician, GS-7 at the Agency's Office of the Chief Financial Officer, Johnson Space Center facility in Houston, Texas. Petitioner's position involved the processing of time-critical travel authorizations and expense reports. Petitioner was diagnosed with numerous serious medical conditions which included multiple auto-immune and hereditary disorders. Petitioner's medical conditions often required her to be absent from work which the Agency maintained placed a serve burden on its other employees in the office who had to cover many of the Petitioner's work assignments and tasks.
On August 5, 2011, Petitioner submitted an official request for reasonable accommodation to the Agency. She requested, among other things, to be allowed to go for her infusions four times a month, ideally for four consecutive days with two additional days for recovery; to be allowed to return home after her infusions and not return to work on those days; that Agency officials be sensitive to her needs so that she could appropriately respond during flare-ups of her condition, either by putting her head down or not coming in to work if the flare-up occurred before work; and being judged on the work she completed while in the office. Petitioner's supervisor agreed to try this for a six month period to determine if she could continue to manage the accommodation with the office's work load. In March 2013, Petitioner was removed from her position for inability to perform the duties of her position and inability to maintain regular attendance for medical reasons. Petitioner alleged that the Agency discriminated against her on the basis of disability (physical) when she was terminated from her position after twenty years with the Agency.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency proved that Petitioner was unable to maintain regular attendance throughout 2011 and during the months of January, February, and October 2012. The AJ also found that the Agency showed that due to Petitioner's medical restrictions she was unable to perform the required duties of her position as evidenced by her physician and the Agency's Medical Officer. Therefore, on November 14, 2012, Petitioner was sent a Notice of Proposed Removal to which she did not respond. On March 1, 2013, the Agency issued its final decision to remove Petitioner from her position based on her inability to perform the duties of her position and her inability to maintain regular attendance for medical reasons.1 The Medical Officer found that based on the medical documentation provided by the Petitioner there was no reasonable accommodation that could be made to enable Petitioner to satisfactorily perform the essential functions of her Accounting Technician position.
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for the Petitioner's removal, that is, her inability to perform the essential functions of her position with or without accommodation. The AJ found that although the Petitioner maintained that the Agency could accommodate her disability by allowing her to be absent from work when necessary, she did not articulate any accommodations that could be made that would allow her to perform the essential duties of her position and still meet the attendance requirements of her position. Further, Petitioner did not contend and the record did not reflect that there were any other positions for which she would be able to perform the essential duties. The record showed that the Agency attempted to accommodate the Petitioner's medical restrictions for eight months, and that the Petitioner was physically unable to return to work when an unrelated suspension ended on October 16, 2012. Therefore, the AJ determined that Petitioner did not establish that, with or without accommodation, she could perform the duties of her position or those of any other vacant position; consequently, she failed to prove that she was a qualified person with a disability. Accordingly, the AJ found that the Agency's action was not the result of disability discrimination. Further, the AJ affirmed the Agency's removal action because it promoted the efficiency of the service. The AJ noted that notwithstanding the Petitioner's work ethic, her satisfactory performance when at work, and her willingness to work within her restrictions the Agency's evidence showed that the Petitioner was physically unable to consistently and predictably meet the requirements of her position and that, in order to meet its mission, the Agency was required to have other employees perform the essential functions of the Petitioner's position, as well as their own. The AJ found that the evidence of record established that the Petitioner could not perform the essential duties of her position because of her medical conditions and there were no other positions available that met her restrictions.
Thereafter, Complainant sought review by the full Board. The Board affirmed the initial decision, but modified the Agency's determination that the inability to perform the duties of her position and the inability to maintain regular attendance for medical reasons were separate charges. Nonetheless, the Board concluded that the Agency met its burden of proving both charges by preponderant evidence. The Board found that for approximately one year prior to her removal, the Petitioner had the opportunity to provide the Agency with medical documentation that she could return to work and perform the duties of her position with accommodation. However, she failed to provide any medical documentation even when notified of her potential removal. The record showed no foreseeable end to the Petitioner's absence. Further, the Board agreed that based on the Petitioner's inability to perform the essential functions of the position and the lack of a foreseeable end to her inability to return to work, her removal promoted the efficiency of the service, and the penalty was sustained.
Additionally, the Board found that the Petitioner failed to prove her affirmative defense that the Agency engaged in disability discrimination. The Board found that Petitioner was not a qualified individual with a disability as she was unable to perform her duties with or without an accommodation. The Board noted that the accommodation that she requested required a minimum of 24 days of absence per month to accommodate her disability. The Board found that Petitioner failed to show that this request was reasonable. The Board also found that Petitioner failed to identify a vacant funded position to which she could be reassigned. The Board affirmed the AJ's finding that the Petitioner did not prove her affirmative defense of disability discrimination.
Petitioner then filed the instant petition.
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).
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. Further, the Board's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.2
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
__7/9/15________________
Date
1 On September 12, 2012, the Agency issued a decision suspending the Petitioner without pay for 30 days based on a violation of the JSC Policy on Workplace Violence and Threatening Behavior. Petitioner did not return to work following her suspension.
2 In reaching the decision above, we assumed for purposes of our analysis that Petitioner was an individual with a disability.
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0320150019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013