0320130005
04-15-2014
Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Petition No. 0320130005
MSPB No. SF0752120612I1
DECISION
On December 28, 2012, 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
At the time of events giving rise to this complaint, Petitioner was employed as a GS-13 Criminal Investigator under the Special Agent in Charge, Homeland Security Investigations (HIS) in San Diego, California. Petitioner alleged that the Agency discriminated against her on the bases of disability (infertility and post traumatic stress disorder) and reprisal for prior protected EEO activity, when she was terminated from her position.
The record reveals that on or about August 10, 2009, Petitioner submitted a sick leave request to the Acting Group Supervisor. The leave request was approved on August 11, 2009. Petitioner also submitted a medical excuse note in support of her sick leave request. The note was dated July 31, 2009, and was written on a clinic's letterhead. The note stated the following, "Please excuse [Petitioner] from work 8/19/09 - 9/11/09. She will be having some routine procedures during that time. This will give her the time needed for medical care and proper recovery." The note was signed by the Office Manager at the Idaho Center for Reproductive Medicine (ICRM).
Petitioner's Acting Supervisor received her sick leave request and the medical excuse note. He approved the leave request and forwarded the excuse note to his Second-line Supervisor, the Assistant Special Agent in Charge (ASAC). Following receipt of the medical note and request for leave, the ASAC learned from a coworker that notes on Petitioner's desk indicated that Petitioner was planning a trip to Greece during the same time period as her sick leave request. On September 3, 2009, the ASAC forwarded the matter to the Agency's Joint Intake Center (JIC) via e-mail and indicated that she suspected Petitioner may have submitted a fraudulent letter from a doctor's office in support of her sick leave request. The ASAC reported that in addition to a coworker indicating that Petitioner was planning to go to Greece, the medical excuse was signed by an Office Manager and not a doctor. Additionally, the ASAC had looked up the Clinic on the internet, and saw that the Office Manager's last name was not as reflected on the medical excuse note, but instead was the same name as Petitioner's. The JIC forwarded the case to OPR for investigation. OPR learned in its investigation that on August 19, 2009, Petitioner had gone overseas on a flight to Athens, Greece, and returned to the United States on September 11, 2009, the same time period that she had requested sick leave. OPR completed its investigation in October 2010.
On January 20, 2011, Petitioner was issued a notice of proposed removal based on charges of conduct unbecoming (relating to the July 31, 2009 excuse letter), and lack of candor (relating to responses provided by Petitioner during the OPR investigation prompted by the letter). After receiving Petitioner's written replies to the proposal letter, the deciding official (Special Agent in Charge (SAC)) issued a decision sustaining both charges and the penalty of removal. Petitioner appealed the removal action and a hearing was held on October 3 and 4, 2011. At the hearing, Petitioner raised claims of disability discrimination and reprisal for protected EEO activity, as well as due process and harmful procedural error claims.
In a decision dated February 27, 2012, an MSPB Administrative Judge (AJ) reversed the Agency's action, finding that the Agency had violated Petitioner's constitutional right to due process when the deciding official considered, as an aggravating factor, information that was not included in the proposal letter. The AJ found that the Agency had not provided Petitioner with notice of the likely adverse impact of her sustained misconduct on her ability to testify in federal criminal proceedings, which the deciding official considered to be an essential function of her Criminal Investigator Position. Because the AJ reversed the Agency's decision on due process grounds, she did not reach the merits of the case. However, the AJ did address Petitioner's discrimination and reprisal claims and found that Petitioner failed to meet her burden of proving either defense. The Appellant timely filed a petition for review with the EEOC seeking review of the AJ's findings. In a decision dated October 16, 2012, the EEOC concurred with the final decision of the MSPB on the discrimination and retaliation claims. Petition No. 0320120042 (Oct. 16, 2012).
In accordance with the AJ's February 27, 2012 Initial Decision, the Agency rescinded the removal action and restored Petitioner to her previous position, effective June 9, 2011. However, on or about April 5, 2012, the Agency issued a letter proposing to remove Petitioner based on the same charges. On April 30, 2012, Petitioner, through counsel, presented an oral reply to the notice of proposed removal. By letter dated June 26, 2012, the Special Agent in Charge (SAC) notified Petitioner of his decision to sustain all three charges and the proposed removal. The removal became effective June 27, 2012. Petitioner timely appealed her removal and a hearing was held on September 24-25, 2012. In a September 18, 2012 Order amending the prehearing conference summary and order, the AJ found that Petitioner was collaterally estopped from re-litigating her claims of disability discrimination/denial of reasonable accommodation, and her reprisal claim. Thus, the AJ limited the disability discrimination/denial of reasonable accommodation claim only to the extent that it related to her April 2012 request for appointment of a Medical Review Officer, and limited the reprisal claim to the extent it related to the alleged protected activity identified as June 2009 discrimination complaint, and the August 10, 2009 request for sick leave.
At the hearing Petitioner raised a number of affirmative defenses. The AJ sustained all three of the Agency's charges, and the associated penalty. The AJ declined to sustain any of Petitioner's affirmative defenses, finding in part, that Petitioner did not prove disability discrimination/denial of reasonable accommodation, or reprisal.
Petitioner subsequently filed the instant petition.
CONTENTIONS ON APPEAL
On appeal, Petitioner contends that the affirmative defenses of disability discrimination/failure to accommodate, and reprisal should be sustained based on evidence contained in the record. In response, the Agency contends that Petitioner committed a procedural error in filing her petition for review, filing it later than November 29, 2012.1 The Agency requests that the Commission concur with the AJ's decision finding no discrimination as Petitioner provided no evidence which demonstrates that she was subjected to discrimination.
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
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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner is a qualified individual with a disability, Petitioner, failed to show that she was denied an accommodation that would have allowed her to have performed the essential functions of her position. Likewise, the Commission agrees that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated from her position for conduct unbecoming relating to the procurement and submission of the July 31, 2009 sick leave request; and for lack of candor relating to her responses to certain questions during the OPR investigation. Like the MSPB, we find that Petitioner failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. With respect to the claim of reprisal, the Commission concurs with the AJ's finding that there is no evidence that the proposing official or entity was aware of any prior EEO activity at the time the proposal was made to remove Petitioner.
The Commission finds that the Agency's claim that the Petition should be dismissed as untimely is without merit. The Initial Decision became final on November 29, 2012. Petitioner had until this date to file a petition for review with the full MSPB Board, or thirty (30) calendar days from this date to file a petition for review with the Commission. Petitioner filed a petition for review on December 28, 2012, twenty-nine days after the date the initial decision became final. The petition was timely filed.
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
___4/15/14_______________
Date
1 The Commission notes that the petition for review was filed on December 28, 2012.
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03-2013-0005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320130005