0320120014
10-26-2012
Randolph S. Koch, Petitioner, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.
Randolph S. Koch,
Petitioner,
v.
Mary L. Schapiro,
Chairman,
Securities and Exchange Commission,
Agency.
Petition No. 0320120014
MSPB No. DC0752100413I1
DECISION
On December 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 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 Financial Analyst, SK-1160-12, in the Agency's Division of Investment Management, Office of Disclosure and Review in Washington, D.C. Petitioner filed an EEO Complaint alleging that the Agency discriminated against him on the basis of age, religion, disability (physical) and in reprisal for prior EEO activity when:
1. On or about June 17, 2009, the Agency failed to provide him a reasonable accommodation; and
2. Effective October13, 2009, he was removed from his position.
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 that the MSPB had jurisdiction over the appeal and affirmed the Agency's action. Petitioner filed a petition for review before the full Board. The full Board found that AJ did not abuse her discretion and denied the petition. Petitioner then filed the instant petition with the Commission.
In his petition for review, Petitioner argues, in relevant part, that the Agency failed to engage in the interactive process once Petitioner made a request for an accommodation and once the accommodation provided was no longer effective. Petitioner also argues that he would not have had attendance issues had the Agency provided him with the requested accommodation of flexi-work, part-time employment, and use of credit hours. Petitioner reiterates his arguments that he was also discriminated against on the bases of his religion and disability when he was terminated for attendance and leave issues.
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).
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 a qualified 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 Petitioner has failed to offer any evidence to corroborate his assertions that he had informed the Agency that the accommodation was he provided was no longer effective. Further, Petitioner failed to show that he provided adequate medical documentation to support such a request. We further 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 Petitioner did not provide any additional medical documentation to support any change in his accommodation.
Likewise with respect to Petitioner's claim that he would not have had attendance issues had the Agency provided him with the requested accommodation of flexi-work, part-time employment, and use of credit hours, we note that an agency may discipline an employee with a disability for violating a workplace conduct standard if it would impose the same discipline on an employee without a disability, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002, Question 30 (Mar. 25, 1997). Here, the record indicates that Petitioner was removed from his position based on falsely reporting his work hours; excessive AWOL; not following his tour of duty; and not making appropriate use of official time. There is no evidence that non-disabled employees would have been treated differently.
With regard to Petitioner's argument that he established he was discriminated against based on his age, religion, and 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 attendance and performance issues that he failed to rectify. Therefore, we find that even if Petitioner established a prima facie of discrimination, the Agency provided a legitimate, nondiscriminatory reason for his removal and that he failed to establish pretext. Petitioner failed to put forth evidence to show that he did not falsely report his work hours; did not have excessive AWOL; did not fail to follow his tour of duty; and did not make inappropriate use of official time. 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.
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
__10/26/12________________
Date
2
0320120014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320120014