0320140064
02-05-2015
Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320140064
MSPB No. DA0752140026I1
DECISION
On June 23, 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.
BACKGROUND
Petitioner worked as a Paralegal Specialist at the Agency's Office of Field Operations in El Paso, Texas. Petitioner alleged that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: the Agency removed her from employment effective September 20, 2013,1 on the grounds that she was not physically able to perform the duties of her position for medical reasons, and because she was unavailable for duty.
The record reveals that on or about November 9, 2011, Petitioner reported a recurrence or aggravation of an injury that occurred to her right shoulder in 2006. Petitioner had surgery on her shoulder on December 13, 2011, and has reportedly been unable to perform the duties of her position since that time. On or about March 25, 2013, one of Petitioner's treating physicians reported that she was unable to return to work. The record reflects that the physician was unable or unwilling to provide a reasonable estimate of when Petitioner would be able to return to work. Petitioner was unavailable to perform any of her Paralegal Specialist duties from December 13, 2011 until her removal, and remained on leave without pay (LWOP) and Office of Workers Compensation (OWCP) benefits for the entire period of time.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on May 9, 2014, concluding that the Agency met its burden of proving Petitioner was unable to perform the duties of her position and was unavailable for work. The AJ's decision affirmed Petitioner's removal. Additionally, with respect to each of the affirmative defenses alleging discrimination based on disability and reprisal for prior EEO activity, the AJ held that Petitioner was either unable to establish a prima facie case of discrimination, or failed to present preponderant evidence to support her contention that the removal was based on any protected basis. With respect to Petitioner's retaliation claim, the AJ found that Petitioner was unable to establish that the proposing official knew of her protected activity, or that the proposing or the deciding officials were named in her complaint. Additionally, the AJ held that the Agency presented sufficient evidence that it would have removed Petitioner absent the protected activity.
Petitioner subsequently 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).
We concur with the decision of the AJ that due to her medical shoulder injury, and subsequent surgery, Petitioner was unable to perform the essential functions of the Paralegal Specialist position. The record reflects that Petitioner had not reported for duty since December 13, 2011, and that she was in LWOP status receiving OWCP benefits during this time. We concur with the MSPB's decision that the Agency was under no obligated to permit Petitioner to stay on LWOP indefinitely.
Petitioner did not report to work for over one year following her surgery. In response to the Agency's request for information on Petitioner's possible return date, one of her treating physicians offered nothing more than that she was unable to return to work, and he was uncertain as to when she would be able to return. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner was an individual with a disability and could establish a prima facie case of discrimination based on disability and reprisal, the Commission agrees with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for Petitioner's removal from her position as a Paralegal Specialist. We also agree that Petitioner failed to demonstrate that any conduct on the part of the Agency surrounding her removal was based on discriminatory animus, or that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The evidence of record supports the Agency's decision to remove Petitioner from the Paralegal Specialist position, specifically, that she was unable to perform the essential functions of the position and that she was unavailable to report for duty.2
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 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
___2/5/15_______________
Date
1 The Commission notes that the MSPB decision dated May 9, 2014 inaccurately states that Petitioner's shoulder surgery was December 13, 2013. After reviewing the record, the Commission has determined that this surgery must have taken place on December 13, 2011. December 13, 2011 is the surgery date this decision will use to address the matters raised in the instant petition.
2 As noted by the AJ, Petitioner did not identify any accommodation that would have enabled her to perform the essential functions of her position nor did she identify any vacant, funded position to which she could have been reassigned.
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0320140064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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