0320080108
10-23-2008
__________________, Petitioner, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
__________________,
Petitioner,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Petition No. 0320080108
MSPB No. PH0752080095I1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a decision 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.
Petitioner alleged that she was discriminated against on the bases of
race (African-American), sex (female), disability (mental/regarded as
disabled), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when she was removed from her
position of Computer Scientist for being absent without leave (AWOL).
Briefly, petitioner alleged she was subjected to a pattern of harassment
resulting in a hostile work environment. Petitioner saw a physician
who diagnosed her with an adjustment disorder and was absent from work
beginning February 5, 2007. She did not return to work before her removal.
Petitioner's hostile work environment claims involved the possibility of
toxins put on her keyboard, nails in her tires, taking pictures of her
in her office, being glared at, and co-workers talking about her. She also
claimed she was denied a promotion and was denied reasonable accommodation
in the form of a detail to a program at the University of Pennsylvania.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that petitioner was not discriminated
against as alleged. The AJ upheld the removal and placement on AWOL,
noting that pertitioner's physician did not give a prognosis nor expected
return to work date. With respect to petitioner's harassment claims,
the AJ noted that an investigation by the agency into the claims against
the co-workers found that the claims were baseless. The AJ found no basis
for petitioner's claims of harassment. The AJ found nothing inappropriate
about petitioner's supervisor's behavior. With respect to the denial
of reasonable accommodation claims, the AJ noted that the requested
details were to programs outside of the agency and did not relate to
the work of the agency. The AJ found the harassment claims intertwined
with petitioner's disability claim, because petitioner argued that the
harassment caused her stress disorder and she could not work because
of the harassment. The AJ found that petitioner was not a person with
a disability nor was she regarded as a disabled. Further, the AJ found
that petitioner did not support her other claims of discrimination or
reprisal. Petitioner did not seek review by the Board and the initial
decision became the Board's final decision. Petitioner then filed the
instant petition.
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).
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. With respect to petitioner's request to be detailed, even
assuming petitioner is disabled, the Commission's guidance specifically
states that an employer does not need to change a person's supervisor
as a form of reasonable accommodation. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act, (October 17, 2002), Question 33. In addition testimony
by petitioner's supervisor indicated that petitioner was offered a
reassignment within FAA, but petitioner wanted to be reassigned outside
of FAA. Further, petitioner did not return to work, so her other requests
could not be implemented. 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 (W0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 23, 2008
__________________
Date
2
0320080108
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080108