0320120056
10-04-2012
Paul Lewis, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Paul Lewis,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320120056
MSPB No. DC0432110945I1
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Human Resource Specialist, GS-0201-11, at the Agency's Medical Center in Durham, North Carolina. Petitioner alleged that the Agency discriminated against him on the bases of disability (mental) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. The Agency failed to grant him a reasonable accommodation; and
2. he was terminated from his position, effective August 12, 2011.
Petitioner filed a mixed case complaint and the Agency issued a decision finding that Petitioner was not discriminated against as alleged. Thereafter Petitioner filed an appeal with the MSPB and an MSPB AJ (AJ) issued a decision finding, in relevant part, that Petitioner failed to demonstrate that direct evidence of discrimination or retaliation existed. Further, the MSPB AJ determined that Petitioner failed to prove that the Agency was motivated by discriminatory or retaliatory animus when he was terminated and his request for a reasonable accommodation was denied. Petitioner filed this petition for review to the Commission.
In his petition, Petitioner argues that the Agency failed to engage in the interactive process once Petitioner made a request for an accommodation. Petitioner also argues that the Agency failed to consider the medical documentation he provided after his termination. With regard to retaliation, Petition argues that the proximity of his termination to when he first requested an accommodation demonstrates that the Agency was motivated to retaliated against him. In response, the Agency argues, in relevant part, that Petitioner failed to establish that he was discriminated against as alleged and requests that we concur with the MSPB's finding of no discrimination.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints 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, the Commission CONCURS with the final decision of the MSPB finding no discrimination. Assuming for purposes of this decision that Petitioner is an individual with a disability, we find that he was unable to establish that he was denied a reasonable accommodation and that his removal was therefore discriminatory. With respect to Petitioner's contentions, we note that an Agency's failure to engage in the interactive process does not, by itself, demand a finding that a Petitioner was denied a reasonable accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Rather, to establish a denial of reasonable accommodation, a Petitioner must show that the failure to engage in the interactive process resulted in the Agency's failure to provide reasonable accommodation. Id. Here, we find that the record does not show that this was the case. There is no dispute that the Agency sought additional information from Petitioner about his accommodation request and that Petitioner did not provide said information. An employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13.1
With regard to Petitioner's argument that he established he was retaliated against, we find that the AJ properly determined that he failed to demonstrate that this was the case. The record clearly demonstrates that Petitioner had performance issues that he failed to rectify. Therefore, we find that even if Petitioner established a prima facie of reprisal discrimination, the Agency provided a legitimate, nondiscriminatory reason for his removal and that he failed to establish pretext. 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
__10/4/12________________
Date
1 The Commission has recently held that: If an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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0320120056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120056