0320120042
10-16-2012
Karen Samayoa-Lunt, Petitioner, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Karen Samayoa-Lunt,
Petitioner,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 0320120042
MSPB No. SF0752110669I1
DECISION
On April 20, 2012, 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. The Commission CONCURS with the MSPB's finding of no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a GS-13 Criminal Investigator at the Agency's Bureau of Immigration and Customs Enforcement (ICE) in San Diego, California. Petitioner alleged that the Agency discriminated against her on the bases of disability (infertility and post traumatic stress disorder) and reprisal for prior protected EEO activity when she was terminated from her position.
The record reveals that on or about August 10, 2009, Petitioner submitted a sick leave request to the Acting Group Supervisor. The leave request was approved on August 11, 2009. Petitioner also submitted a medical excuse note in support of her sick leave request. The note was dated July 31, 2009, and was written on a clinic's letterhead. The note stated the following, "Please excuse [Petitioner] from work 8/19/09 -9/11/09. She will be having some routine procedures during that time. This will give her the time needed for medical care and proper recovery." The note was signed by the Office Manager at the Idaho Center for Reproductive Medicine (ICRM).
Following receipt of the medical note and request for leave the Assistant Special Agent in Charge (ASAC) learned from a coworker that notes on Petitioner's desk indicated that Petitioner was planning a trip to Greece during the same time period as her sick leave request. On September 3, 2009, the ASAC forwarded the matter to the Agency's Joint Intake Center via e-mail and indicated that she suspected Petitioner may have submitted a fraudulent letter from a doctor's office in support of her sick leave request. The ASAC reported that in addition to a coworker indicating that Petitioner was planning to go to Greece, the medical excuse was signed by an Office Manager and not a doctor. After looking at the ICRM's website the ASAC discovered that the Office Manager's last name on the excuse note was listed as one name but on the website it was the same last name as Petitioner's. It was discovered that the Office Manager was in fact, Petitioner's cousin's wife. Upon further investigation, including interviewing the doctor and nurse at the ICRM, the Agency decided to terminate Petitioner for conduct unbecoming relating to the procurement and submission of the July 31, 2009 sick leave request; and for lack of candor relating to her responses to certain questions during the OPR investigation.
Petitioner filed a claim with the MSPB. Petitioner maintained that: (1) in June 2009, her Group Supervisor engaged in discrimination and harassment against her when the Group Supervisor subjected her to increased scrutiny, started and/or spread and/or failed to stop rumors that Petitioner was a malinger, leave abuser and/or disruptive employee and other disparate treatment," (2) in approximately August 2009, she exercised her right to withhold confidential medical information when she submitted a sick leave excuse note designed to protect her from disclosing her disability; (3) during the Agency's review on November 5, 2009, because of her disability, Petitioner asked that she be allowed to consult with her attorney for guidance on how to respond to questions without waiving her right to medical confidentiality; and (4) on February 7, 2011, she asked that an independent medical officer be appointed to receive confidential medical information that was a necessary part of her response to the investigation. Additionally, Petitioner maintained that her request for sick leave was a request for reasonable accommodation and thus protected activity. She maintained that the Agency engaged in unlawful retaliation when it disciplined her for refusing to answer medical inquiries that were impermissible under the ADA.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision reversing the Agency's removal action based on a finding that a due process violation had occurred. Specifically, the AJ found that the Agency had not provided Complainant with notice of an aggravating factor - the likely adverse impact of her sustained misconduct on her ability to testify in federal criminal proceedings, which the deciding official considered to be an essential function of her Criminal Investigator position. The AJ found that the consideration of this aggravating factor without the Petitioner's knowledge "was so likely to cause prejudice that no employee could fairly be required to be subjected to a deprivation of property under such circumstances." Therefore, the AJ reversed the removal action because a "due process violation occurred and found that the Petitioner was entitled to a new constitutionally correct removal procedure."
The AJ also noted that Petitioner had raised the following affirmative defenses in the appeal: (1) disability discrimination/failure to reasonably accommodate her disabilities (identified as infertility and post-traumatic stress disorder (PTSD); (2) reprisal for prior EEO activity; and harmful procedural error. According to Petitioner, her accommodation request consisted of her seeking the appointment of a medical reviewing officer during the investigation of her complaint; and not allowing her to consult with an attorney during the investigation.
The AJ found that even assuming that Petitioner was an individual with a disability she did not show that the Agency denied her a reasonable accommodation for her alleged disabilities. The AJ found that Petitioner did not articulate the need for a reasonable accommodation in order for her to perform the essential functions of her position. The AJ was also not convinced by Petitioner's argument that the appointment of an independent medical reviewer as an alternate means of ensuring the confidentiality of her medical information fell within the definition of a reasonable accommodation because it would have enabled her to "enjoy equal benefits and privileges of employment as enjoyed by other similarly situated employees without disabilities." In summary, the AJ found that the Petitioner did not show that the Agency denied her a reasonable accommodation for her alleged disabilities, because the subject requests did not pertain to her ability to perform the essential functions of her position or her ability to enjoy any benefit or privilege of employment. The AJ also found that the Petitioner failed to show that she had been subjected to discrimination based on prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Petitioner contends that the MSBP made two critical misinterpretations of law in her case. She maintains that the AJ erred by finding that employees with disabilities are not entitled to reasonable accommodation when being questioned by the Agency's Office of Professional Responsibility; and secondly when the AJ found that it is not a protected activity when an employee with disabilities requests sick leave for treatment for his/her disability. Petitioner also requests that the Commission forgive her mistake regarding service by first class mail instead of as dictated by the regulations.
In response, the Agency contends that Petitioner committed a procedural error in filing her petition for review, as she failed to send her petition to the Commission by certified mail. Additionally, the Agency maintains that Petitioner failed to serve all parties as is required by regulations. Further, the Agency contends that Petitioner's petition is untimely.1 The Agency requests that the Commission concur with the AJ's decision finding no discrimination as Petitioner provided no evidence which demonstrates that she was subjected to discrimination.
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).
ANALYSIS AND FINDINGS
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. Upon review of the record, the Commission finds that even if we assume arguendo that Petitioner is a qualified individual with a disability, Petitioner, for the reasons set forth by the AJ, failed to show that she was denied an accommodation that would have allowed her to have performed the essential functions of her position. Likewise, the Commission agrees that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated from her position for conduct unbecoming relating to the procurement and submission of the July 31, 2009 sick leave request; and for lack of candor relating to her responses to certain questions during the OPR investigation. Like the MSPB, we find that Petitioner failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
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
___10/16/12_______________
Date
1 The Commission notes that the petition for review was filed on April 20, 2012.
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03-2012-0042
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120042