0320140048
02-12-2015
Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320140048
MSPB No. NY-0752-10-0185-I-1
DECISION
On May 5, 2014, Petitioner filed a timely petition 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 Teller (Typing), GS-0530-06, at the Agency's VA Health Care System, Fiscal Service, in East Orange, New Jersey.
On July 28, 2008, the Agency issued Petitioner a notice of proposed removal based on the following charges: (1) rudeness and an unacceptable level of customer service to patients; and (2) making threatening remarks in the workplace. Regarding charge 1, the notice cited a March 13, 2008 patient complaint and an attached petition. In the complaint, a patient stated that Petitioner provided her with poor customer service at the cashier window when: (a) on one occasion, Petitioner waited approximately 16 minutes before attending to her and then gave her the incorrect amount of money; and (b) on another occasion, Petitioner was mean to some of the severely disabled veterans and told the patient to mind her business when she spoke up on their behalf. The attached petition, signed by 19 patients, stated that Petitioner was rude and requested that she not be assigned to the cashier window. Regarding charge 2, the notice cited a May 28, 2008 incident in which Petitioner repeatedly said, "I'm going to get my pistol, bring it in and shoot up everybody." The notice stated that three of Petitioner's coworkers heard the remarks and feared for their lives. On September 18, 2008, the Agency issued a decision to remove Petitioner, effective October 3, 2008.
Petitioner filed an appeal with the MSPB. On January 3, 2011, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the charges and affirming the Agency's removal action. First, the MSPB AJ found that Petitioner engaged in the charged misconduct. Regarding charge 1, the MSPB AJ noted that the record contained a copy of the patient's complaint and the attached petition. Regarding charge 2, the MSPB AJ noted that the record contained written statements from three of Petitioner's coworkers who witnessed the remarks. Although Petitioner denied making the remarks, the MSPB AJ found that the hearing testimony of the three coworkers was credible and consistent with their written statements. Second, the MSPB AJ found that Petitioner did not raise discrimination as an affirmative defense. The MSPB AJ did not provide Petitioner with appeal rights to the Commission.
Petitioner then filed a petition for review with the full Board. In her petition, Petitioner alleged that the Agency discriminated against her on the bases of disability (bipolar disorder), race (African-American), and age (65). On April 10, 2014, the Board issued a final order denying the petition. First, the Board found that Petitioner did not previously raise discrimination as an affirmative defense. Specifically, the Board noted that Petitioner did not indicate on her appeal form that she intended to raise discrimination, even though the appeal form provided her with an explicit opportunity to do so. In addition, the Board found that nothing in the record below could have been construed as an attempt by Petitioner to raise discrimination in even a general or imprecise way. Second, the Board found that, "[e]ven considering [Petitioner]'s allegations of disability discrimination on review," nothing warranted disturbing the initial decision. Specifically, the Board found that the Agency could discipline Petitioner for workplace misconduct if it would impose the same discipline on nondisabled employees. In addition, the Board found that Petitioner did not allege that the Agency would do otherwise. Moreover, although Petitioner argued that the Agency should have accommodated her condition in ways other than removal, the Board found that the Agency had no obligation to do so. The Board provided Petitioner with appeal rights to the Commission.
Petitioner then filed the instant petition. In her petition, Petitioner requested that the Commission review her allegations of discrimination. Specifically, Petitioner argued that Agency employees harassed her and conspired to falsely accuse her of misconduct.
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).
Here, the MSPB found that Petitioner did not timey raise her allegations of disability, race, and age discrimination. The MSPB, however, then proceeded to consider and analyze Petitioner's allegation of disability discrimination. Accordingly, we find that the MSPB has issued a decision that makes a determination on Petitioner's allegation of disability discrimination and we will address that allegation in our decision.
Disparate Treatment
To prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we agree with the MSPB's finding of no disparate treatment on the basis of disability. Assuming, arguendo, that Petitioner established a prima facie case, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal; namely, Petitioner engaged in the charged misconduct. Moreover, we find that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's explanation is pretextual.
First, although Petitioner argued that Agency employees conspired to falsely accuse her of misconduct, the record supports the MSPB's finding that Petitioner engaged in the charged misconduct. The documentary evidence, specifically the patient complaint and the attached petition, supports the MSPB's finding that Petitioner was rude to and provided an unacceptable level of customer service to patients. The testimonial evidence, specifically the coworker testimony determined to be credible by the MSPB AJ,1 supports the MSPB's finding that Petitioner made threatening remarks in the workplace.
Second, even if Petitioner's misconduct resulted from her medical condition, we find that 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 rude behavior towards patients and threats of violence - are job-related for Petitioner's Teller position and are consistent with business necessity. Moreover, we find that Petitioner failed to show that the Agency did not remove nondisabled employees who engaged in similar misconduct.
Denial of Reasonable Accommodation
We assume, without so finding, that Petitioner is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. See 29 C.F.R. � 1630.9.
Barring undue hardship, an agency must make reasonable accommodation to enable an otherwise qualified individual with a disability to meet, in the future, a workplace conduct standard that is job-related for the position in question and consistent with business necessity. See Psychiatric Disabilities Guidance, Question 31. Because reasonable accommodation is always prospective, however, an agency is not required to excuse past misconduct. See id.
Upon review of the record, we agree with the MSPB's finding of no denial of reasonable accommodation. To the extent Petitioner argued that the Agency should not have disciplined her as a reasonable accommodation, we emphasize that the Agency was not required to excuse Petitioner's past misconduct.
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
__2/12/15________________
Date
1 An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B.2 (Nov. 9, 1999).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320140048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140048