0320140068
02-04-2015
Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320140068
MSPB No. CH-0752-10-0353-I-1
DECISION
On or about March 1, 2011, Petitioner filed a timely petition1 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.
At the time of the events at issue, Petitioner worked as a Social Worker, GS-0185-11, at the Agency's Naval Health Clinic Great Lakes in Illinois. On April 20, 2009, Petitioner and the Agency entered into an EEO settlement agreement that stated, in pertinent part, the following:
The [Petitioner] will pass the Licensed Clinical Social Worker Examination and obtain a Licensed Clinical Social Worker (LCSW) status by 15 November 2009. The [Petitioner] understands that LCSW status is a condition of employment and understands that failure to obtain LCSW status, while not a breach of this agreement, could result in her removal from her position.
In September 2009, Petitioner took and failed the LCSW examination. Because the LCSW examination could only be taken every 90 days, this was the last LCSW examination Petitioner could take prior to November 15, 2009. On November 16, 2009, the Agency issued Petitioner a notice of proposed removal for failure to obtain her LCSW credential by November 15, 2009. On December 14, 2009, the Agency held in abeyance its decision on the proposed removal so that Petitioner could take the LCSW examination again later in the month. Petitioner took and failed that LCSW examination. On January 11, 2010, the Agency issued a decision to remove Petitioner.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity when it removed her.
On June 2, 2010, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision finding no disparate treatment on the alleged bases.2 First, the MSPB AJ found that the Agency articulated a legitimate, nondiscriminatory reason for Petitioner's removal; namely, Petitioner's failure to obtain her LCSW credential by November 15, 2009. Second, the MSPB AJ found that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for disability or reprisal discrimination.
Regarding the issue of disability discrimination, Petitioner argued that, from April to November 2009, the Agency subjected her to adverse treatment because she used a wheelchair and that this adverse treatment was one of the reasons she failed the LCSW examination. Specifically, Petitioner alleged that the Agency: (1) initially assigned her an office space where she had difficulty manipulating her wheelchair;3 (2) told her coworkers to refer her questions to her supervisor instead of answering them; (3) did not tell her about weekly staff meetings; (4) did not tell her about a form change; (5) planned a work luncheon at a restaurant that was not wheelchair accessible; (6) reviewed her work in an accusatory manner; (7) referred to her by the credential of Master of Social Worker instead of the superior credential she held of Licensed Social Worker; (8) conspired with a patient to file a complaint against her; (9) placed the "in-out" board in a location she could not access; and (10) stated on one occasion, in response to her request for flex-time, that she should not make a habit of "this."4 The MSPB AJ, however, found that none of the incidents - except the work luncheon - were intentional.
Moreover, the MSPB AJ found that Petitioner provided no testimony or evidence to show that the incidents were so stressful that they impacted her ability to obtain her LCSW credential by November 15, 2009. The MSPB AJ noted that Petitioner had failed the LCSW examination eight times since she was hired by the Agency in 2008, including two times after the April to November 2009 period. The MSPB AJ found that this lessened the validity of Petitioner's argument that her workplace circumstances during that time period had any effect on her failing the LCSW examination.
Regarding the issue of reprisal discrimination, the MSPB AJ found that Petitioner could not show that her removal was retaliatory when the Agency acted in accordance with an EEO settlement agreement that she had signed.
Petitioner filed a petition for review by the full Board, but her petition was denied. Petitioner then filed the instant petition. Petitioner's petition consisted of the following documentary evidence: (a) documents related to her EEO complaint, including a copy of the April 20, 2009 EEO settlement agreement; (b) documents related to the removal; (c) her MSPB prehearing memorandum and supporting documents; and (d) her petition for review by the full Board and supporting documents.
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).
Upon review of the record, we agree with the MSPB's finding of no disparate treatment on the bases of disability and reprisal. Assuming, arguendo, that Petitioner established a prima facie case on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal; namely, her failure to obtain her LCSW credential by November 15, 2009. Moreover, we find that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's explanation was pretextual. Specifically, we agree with the MSPB that there is insufficient documentary and testimonial evidence to establish a nexus between the alleged incidents and Petitioner's inability to pass the LCSW examination between April and November 2009. Instead, the record reflects that Petitioner was unable to pass the LCSW examination on numerous occasions both before and after the time period at issue here.
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
__2/4/15________________
Date
1 In addition to her petition, Petitioner filed a March 28, 2011 supporting statement.
A petitioner is required to file any supporting statement concurrently with the petition.
See 29 C.F.R. � 1614.304(b). Accordingly, we decline to consider Petitioner's March 28, 2011 statement as it was untimely filed.
2 According to the MSPB AJ's April 12, 2010 summary of an April 8, 2010 prehearing conference, Petitioner stated that she was not alleging a denial of reasonable accommodation.
3 The MSPB AJ found that the Agency offered Petitioner a more suitable office space in a separate building, but she refused. In addition, the MSPB AJ found that, six weeks later, the Agency assigned Petitioner to a more suitable office space when the entire department moved to another floor of the building.
4 The MSPB AJ found that the Agency always approved Petitioner's requests for flex-time.
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0320140068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140068