0320120004
08-16-2012
Sherdona D. Fryer, Petitioner, v. Stephen Chu, Secretary, Department of Energy, Agency.
Sherdona D. Fryer,
Petitioner,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Petition No. 0320120004
MSPB No. DC0752100364I1
DECISION
On October 21, 2011, 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.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect to Petitioner's allegation of national origin, sex, disability, and reprisal 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.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Human Resources Assistant at the Agency's Office of Innovations and Solutions, Office of the Chief Human Capital Officer, in Washington, DC. Petitioner alleged that the Agency discriminated against her on the bases of national origin (Native American), sex (female), disability (job related stress and high blood pressure), and reprisal for prior protected EEO activity when: the Agency made a decision to remove her from her position based on her continued absence without official leave (AWOL) and failing to follow proper instructions for securing leave approval.
A hearing was held on July 8, 2010 and thereafter an MSPB Administrative Judge (AJ) issued an initial decision upholding the Agency's removal finding Petitioner failed to meet her burden by establishing by the preponderance of the evidence that the Agency had discriminated against her on the bases of national origin, sex, disability, or retaliation for her participation in prior EEO activity.
In finding no discrimination on the bases of national origin and sex, the MSPB AJ found that Petitioner failed to put forward a comparative employee who had engaged in similar misconduct, or any other evidence raising an inference of discrimination.
In finding no discrimination on the basis of disability, the MSPB AJ found that Petitioner failed to establish that she met the regulatory definition of an individual with a disability. The MSBP AJ also found that the documentation which Petitioner provided was insufficient to establish that she has a disability under the Rehabilitation Act, as she failed to offer any evidence to show her health conditions were of a severity as to render her an individual with a disability. Additionally, the MSPB AJ found that Petitioner failed to demonstrate that she was substantially limited in the major life activity of working. Finally, with respect to Petitioner's reasonable accommodation claim, the MSPB AJ found that the Agency made good faith efforts to accommodate her. Although her status as an individual with a disability was in question, it is undisputed that the Agency granted her leave to cover some of her absences and approved some of her requests to work from home for periods of time.
In finding no reprisal discrimination, the MSBP AJ determined that Petitioner failed to establish a prima facie case. Specifically, the MSPB AJ found that Petitioner failed to establish that the deciding official was aware of her protected activity.
Petitioner sought review of the initial decision sustaining her removal by the full Board. The Board denied Petitioner's request for review stating that she presented no new, previously unavailable evidence which warranted consideration by the Board. Additionally, the Board found that the MSPB AJ made no error in law or regulation which affected the outcome. Petitioner then filed the instant petition.
Although she requested that the Commission review the MSPB's final decision, Petitioner did not submit any specific arguments or contest any particular finding made by the MSPB AJ or the full Board.
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).
For the purposes of analysis, the Commission assumes, but does not specifically find, that Petitioner is a qualified individual with a disability within the meaning of the Rehabilitation Act.1 Upon review of the record, we concur with the MSPB AJ's decision that Petitioner did not establish that the Agency's actions constituted national origin, sex, disability, or reprisal discrimination. Assuming arguendo, that Petitioner established a prima facie case of discrimination on all her alleged bases, we concur with the MSPB AJ that the Agency articulated a legitimate, non-discriminatory reason for her removal, namely Petitioner's continued AWOL status and failure to follow proper instructions for securing leave approval. Additionally, we agree with the MSPB AJ that Petitioner failed to establish that the Agency's reason was a pretext. Likewise, we agree that the Petitioner failed to establish that she was denied a reasonable accommodation in that she was granted leave to cover some of her absences and the Agency approved some of her requests to work from home for periods of time.
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
____8/16/12______________
Date
1 According to the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); and Appendix.
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0320120004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120004