0320140031
03-04-2015
Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320140031
MSPB No. SF0752120074I1
DECISION
On March 6, 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 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.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Training Instructor, GS-1712-11 at the Agency's Center for Personal and Professional Development, Learning Sites West (CPPD) in San Diego, California. Petitioner alleged that the Agency discriminated against her on the bases of race (African-American), disability (migraines and depression), and reprisal for prior protected EEO activity when: the Agency removed her from her Training Instructor position, effective June 2, 2011 for "unacceptable behavior."
The record revels that on April 8, 2011, at approximately 10:10 a.m. during a discussion with her supervisor, Petitioner made the following statement: "Someone needs to take Stephanie [Petitioner's own first name] to the Occupational Health clinic because Stephanie is either going to commit suicide or murder someone." When asked whether she wanted her husband contacted, Petitioner replied "Stephanie would not like that very much." The Training Department Head indicated that he had to secure assistance from both emergency medical and security personnel in response to Petitioner's statements.
As a result of Petitioner making these statements, on April 22, 2011, the Department Head issued her a Notice of Proposed removal. The proposal letter noted that this was Petitioner's fourth offense within the past year, having received a letter of reprimand, a 5-day suspension, and a 14-day suspension. Petitioner made a written reply to the proposed removal, but on June 1, 2011, the Regional Director issued a letter sustaining the removal effective June 2, 2011.
Petitioner filed a formal complaint of discrimination on June 9, 2011 over the removal. On October 31, 2011, Petitioner had not received a final decision on her discrimination complainant, and she filed a timely petition with the MSPB. A hearing was held via video conference on May 23-24, 2012, additional evidence was permitted and a third day of hearings was held on July 2, 2012. The MSPB Administrative Judge (AJ) issued an initial decision on July 10, 2012 affirming the Agency's action. The AJ's decision found that Petitioner failed to establish that the removal was discriminatory based on race, disability or in reprisal for prior EEO activity.
On August 14, 2012, Petitioner filed a Petition for Review with the full MSPB Board. On review, Petitioner alleged that the AJ: (1) erred in his due process analysis; (2) failed to consider EEOC regulations regarding direct threat; (3) failed to consider cases cited by Petitioner in her prehearing submission; (4) erred in his conclusion that Petitioner did not prove a violation of the law; (5) incorrectly decided important facts with respect to his discussion of her race discrimination disparate treatment claim; and (6) improperly excluded a witness. She also claims that she has new material evidence. The Board concurred with all the AJ's findings from the initial decision with respect to Petitioner's allegations of discrimination based on race, disability, and reprisal for prior EEO activity, with a single modification on one aspect of the AJ's analysis of the disability discrimination claim. 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).
The Commission finds that the MSPB's decision in the instant matter 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. Assuming, for purposes of this decision only, that Petitioner is able to establish a prima facie case of discrimination based on race, disability and in reprisal for prior EEO activity, the Commission concurs with the MSPB finding that Petitioner failed to meet her burden of proof in the instant matter. With respect to her race discrimination claim, Petitioner failed to establish that she was treated differently than any similarly situated individuals when a decision was made to remove her for the conduct at issue in this matter. While the Board clarified the proper "but for" standard which should have been applied in the instant matter, it still concluded that Petitioner failed to establish that she was removed because of her disability.
The record is clear that the Agency removed Petitioner from her position for "unacceptable behavior." We find that even if Petitioner's misconduct resulted from her medical condition, the Agency did not treat her differently because of disability in violation of the Rehabilitation Act. An agency may discipline an individual with a disability for violating a workplace conduct standard, even if the misconduct resulted from a disability, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002, Question 30 (Mar. 25, 1997) (Psychiatric Disabilities Guidance). For example, nothing in the Rehabilitation Act prevents an agency from maintaining a workplace free of violence or threats of violence. See id. Thus, an agency may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. See id. Here, we find that the workplace conduct standards at issue - rules prohibiting threats of violence - are job-related for Petitioner's position and are consistent with business necessity. Moreover, we find that Petitioner failed to show that the Agency did not remove non-disabled employees who engaged in similar misconduct. Additionally, the Commission finds that the Board properly determined that Petitioner's argument that a "direct threat" analysis should have occurred was displaced. The Agency was not obligated to perform this analysis because it did not allege that Petitioner failed to meet the medical standards of her position.
While Petitioner was able to establish that both deciding officials were aware of her prior EEO activity, both denied that the decision to remove Petitioner was based on prior EEO activity. Petitioner presented no persuasive evidence that the Agency removed her for prior protected activity instead of "unacceptable conduct." Petitioner made no specific challenge to the AJ's decision with respect to the reprisal allegation. The Board concurred with the AJ's conclusion that the conduct at issue in the instant matter was "extremely serious and provided a strong basis for removal." After carefully considering all the evidence of record, we find no persuasive evidence of discrimination based on race, disability, or in reprisal for prior EEO activity. The record reflects no animus surrounding Petitioner's removal.
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
_3/4/15_________________
Date
2
0320140031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140031