0320120055
11-28-2012
Paul Egri-Hendler, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Paul Egri-Hendler,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320120055
MSPB No. CH-0432-11-0674-I-1
DECISION
On June 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 his 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. For the following reasons we Concur with the MSPB's finding that Petitioner failed to show that discriminatory animus played a role with regard to the Agency's decision to remove him from federal employment.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as an Information Technology Specialist at the Agency's facility in Milwaukee, Wisconsin. Petitioner alleged that the Agency discriminated against him on the bases of disability (physical and mental) and reprisal for prior protected EEO activity when he was removed from his position for failing a critical element of his performance standards.
The record reveals that there were five performance elements associated with the IT Specialist position, three of which were critical - program management, field security goals and objectives, and customer service. In August 2009, Petitioner was issued a "Conduct Memorandum" for failure to adhere to proper procedures and for not following through with customer service requests. On November 2009, Petitioner again received a "Performance Counseling" related to customer service. On January 28, 2010, Petitioner was placed on a Performance Improvement Plan (PIP) because there had been a number of complaints from various customers regarding their inability to obtain assistance from him. Petitioner was given 90 days under the PIP to demonstrate acceptable performance. During the PIP, Petitioner met telephonically with his supervisor and it was agreed that he would receive feedback, suggestions, and guidance to assist him in improving his performance to a fully successful level. During this time, on April 7, 2010, Petitioner was issued another Letter of Counseling for failure to follow a direct order. Petitioner was told to follow up on a user access request matter and was told to have it resolved by the following day but Petitioner failed to do so.
On April 13, 2010, Petitioner's supervisor and the Region Information Security Director (Director) traveled to Milwaukee to meet with the Petitioner to discuss his work performance. The Petitioner indicated during the meeting that he had more work than could be completed in an eight-hour day. Petitioner was asked to provide data that would substantiate his claim of an increased or unreasonable workload. Petitioner failed to submit any information in response to this request. Petitioner's PIP was extended to May 12, 2010, as a result of his taking leave.
On August 5, 2010, Petitioner's supervisor proposed to remove Petitioner from employment for failing a critical element of his performance standards. It was noted that a significant number of customers had continued to complain about the lack of service that he provided to them. Customers indicated that they had become accustomed to submitting follow-up requests for his services and when he did reply, the situation was seldom resolved. The proposed removal letter indicated that customers had reached the point where they had absolutely no confidence in his ability to complete any request they submitted. After considering Petitioner's response to the proposed removal, the removal was sustained and Petitioner was removed from employment effective September 25, 2010.
Petitioner appealed the removal to the MSPB. He did not request a hearing so the MSPB Administrative Judge (AJ) issued an initial decision based on the written record. The AJ found that the Agency had met all of its requirements for a valid performance appraisal system. The AJ concluded that the Agency had shown that it notified Petitioner of his unacceptable performance, adequately instructed him on how to perform his responsibilities as an IT Specialist, and gave him a reasonable opportunity to improve. The AJ found that the Agency had demonstrated that Petitioner's performance in the critical element of customer service was unacceptable. Therefore, the AJ upheld the removal.
The AJ also considered Petitioner's affirmative defenses. Petitioner alleged disability discrimination based on reasonable accommodation, disparate treatment, and disparate impact. The AJ noted that while these theories required different elements of proof, they all required proof of the existence of a disability. The AJ found that the Petitioner had simply failed to establish that he had a disability. The AJ indicated that Petitioner's reliance on the fact that he had a 10-point disabled veteran's preference, in and of itself did not establish he was an individual with a disability for discrimination purposes. The AJ indicated that while the Petitioner also alluded to having "persistent medical problems" and indicated that he had seen doctors "to increase and change medications to counteract the increased intensity of these issues," the Petitioner never provided any supporting medical evidence to explain the extent of any disabling condition or how it substantially limited one or more of his major life activities. The AJ noted that two of the doctor's statements he submitted with leave requests stated that Petitioner could return to work without limitations and may return to work without restrictions.
Further, the AJ found that Petitioner had not raised an appropriate disparate treatment claim as Petitioner failed to show that other VA employees not of his protected bases who were failing their performance standard were treated with more lenience. Similarly, he did not present any statistical evidence to prove that the Agency employment practices fell more harshly on one group than another; thus, he failed to establish a prima facie case of disparate impact. Finally, the AJ found that Petitioner failed to present evidence that he advised the Agency of any disabling condition or requested any accommodation. The AJ found that Petitioner failed to carry his burden of proving by preponderant evidence that his removal was based on disability discrimination.
Additionally, the AJ determined that Petitioner failed to show that he was subjected to retaliation. Petitioner maintained that he was subjected to retaliation for disclosing to the Director and other higher authorities within the Agency that his supervisor assigned him duties above his pay grade. The AJ found that the Petitioner had not engaged in protected activity but rather had disagreed with the assignments given to him by his supervisor. The AJ noted that discussions and even disagreements with supervisors over job-related duties was a normal part of most occupations and were not seen as engaging in protected activity. Further, the AJ found that the Petitioner failed to show that his removal was in retaliation for filing an EEO complaint because the letter of proposed removal was already in place before Petitioner filed his EEO complaint. Accordingly the AJ concluded that Petitioner failed to show that his removal was based on retaliation. The AJ also found that Petitioner had failed to show that harmful procedural error and violations of law occurred. The AJ concluded that the Agency had shown that the Petitioner's removal was strictly performance based.
ARGUMENTS ON APPEAL
Thereafter, Petitioner filed the instant petition. On appeal, Petitioner contends that the MSPB erred in characterizing his witnesses' statements as "hearsay." He indicates that his witnesses are willing to verify their statements and at least one witness states that she has additional supporting evidence to show that Petitioner was in a hostile work environment. He contends that the MSPB decision did not address: the Agency's prohibited personnel practices; the Agency's failure to pay his government issued credit card in a timely manner; and his claims regarding the Agency's violation of its policies, regulations and law. He also maintained that the MSPB accepted the Agency's filings after it said no filings would be accepted; and did not address the Agency's denial of his access to e-mail and electronic files. Finally, he argued that the decision ignored his supporting medical statements in favor of the Agency; and the decision ignored his specific job duties as they related to the Milwaukee facility.
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).
The Rehabilitation Act prohibits discrimination against qualified individuals with a disability. See 29 C.F.R. � 1630 et seq. Under the Commission's regulations, an Agency is required to make reasonable accommodation of the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the Agency can demonstrate that the accommodation would impose an undue hardship. 29 C.F.R. � 1630.9(a).
Reasonable accommodation means (i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position he or she desires; (ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; (iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. � 1630.2(o)(1)(i)(ii). This may include, but is not limited to, making facilities accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modifications of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, and provision of qualified readers or interpreters. 29 C.F.R. � 1630.2(o)(2).
One bringing a claim of disability discrimination must first establish that he is a member of the class of persons protected by the Rehabilitation Act, i.e., a qualified individual with a disability. An "individual with a disability" is defined as someone who: (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3). A "qualified" individual with a disability satisfies the requisite skills and experiences for the job, and is capable of performing the essential functions of the position with or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
Further, one may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the Agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
In the instant case, the Commission finds that even if we assume arguendo that Petitioner established prima facie cases of reprisal and disability discrimination, we find that the Agency has articulated a legitimate, nondiscriminatory reason for its action, namely, that Petitioner was removed from his position for failing the critical element of customer service in his performance standards. We find the record clearly documents Petitioner's problems related to the area of customer service. We also note that Petitioner never denies that he had a performance problem in this area. Moreover, the record shows that the Agency was not aware of Petitioner's disability and that he never requested a reasonable accommodation. Similarly, with regard to his claim of reprisal discrimination, the record establishes that the removal process was well underway prior to Petitioner filing an EEO complaint and shows that despite his complaints regarding his work assignments, attempts were made to assist him in improving his work, so therefore, it is unlikely that reprisal was involved. We find that other than Petitioner's conclusory arguments he has not shown that the Agency's articulated nondiscriminatory reasons were pretext for prohibited discriminatory animus. We find that Petitioner failed to demonstrate that his disability and/or prior EEO activity were considered with regard to the Agency's decision to remove him.
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
____11/28/12______________
Date
2
0320120055
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320120055