The opinion of the court was delivered by: HARRIS
In December 1979, the U.S. Department of Health, Education and Welfare ("HEW") hired plaintiff Patricia Langon as a Computer Program Analyst at GS level 11. HEW was the predecessor agency of defendant U.S. Department of Health and Human Services ("HHS"). Plaintiff, who has multiple sclerosis, was hired pursuant to an affirmative action program for handicapped individuals.
Shortly after being hired, plaintiff began to inquire about the possibility of her promotion to GS level 12, and in December 1981, she requested a written explanation as to why she was not granted a promotion. Meanwhile, in July 1981, plaintiff had made the first of many requests that she be permitted to work at home. She alleged that her illness progressively had worsened to the point at which it prevented her from commuting to work without endangering her health. Plaintiff claimed that she could maintain her satisfactory standard of performance and could continue to accomplish her work assignments in a timely manner, were defendant to install the equipment necessary for her to do her work in her home.
Defendant did not grant either of plaintiff's requests, and notified her of the reasons for its denials. As to plaintiff's non-promotion, defendant stated that plaintiff had not met the criteria necessary for promotion to GS level 12. In addition, defendant explained that it could not allow plaintiff to work at home because it did not have a policy on work done at home, and because her work required exactness, involved short deadlines, and required face-to-face contact with program requestors.
On October 14, 1981, HHS issued a policy regarding compensation for work done at home. While the policy generally prohibited work done at home, it authorized exceptions to this policy for "severely handicapped persons for whom it would be difficult to commute to the work site."
In February 1982, plaintiff filed with defendant a formal complaint of handicapped discrimination for her failure to receive a career ladder promotion and for defendant's refusal to accommodate her handicap. Plaintiff had received satisfactory performance ratings from the date of her hiring through September 1981. Her performance level subsequently began to deteriorate, and on June 7, 1982, plaintiff received notification that her employment would be terminated according to Federal Personnel Regulations, should her performance fail to improve. On September 17, 1982, plaintiff's supervisor informed plaintiff of his proposal to terminate her for her failure to satisfy the critical elements required by her position. HHS formally terminated plaintiff for unacceptable performance on January 14, 1983.
On March 31, 1983, plaintiff filed with defendant another complaint of handicapped discrimination with regard to her termination. On December 23, 1983, defendant issued a proposed disposition of plaintiff's claims of discrimination with regard to her non-promotion and refused accommodation. Defendant adopted the proposed disposition, which found no discrimination, as its final decision on February 15, 1984. Plaintiff appealed that decision to the Equal Employment Opportunity Commission ("EEOC") on March 13, 1984. The EEOC issued its affirmance of defendant's decision early in 1986.
On August 17, 1984, defendant issued a decision finding no discrimination as to plaintiff's termination complaint. Plaintiff then sought review by the Merit Systems Protection Board ("MSPB") of HHS's decision, according to MSPB Regulation § 1201. The MSPB issued a decision on February 1, 1985, concurring with defendant's decision that plaintiff's termination had not been motivated by discrimination. On May 28, 1985, the MSPB issued a final order denying plaintiff's petition for review of its February 1 decision, and adopting the initial decision as its final decision.
The Court must exercise de novo review of the administrative record with regard to plaintiff's non-promotion and denied accommodation claims to determine whether they were based on handicapped discrimination. Hayes v. U.S. Gov't Printing Office, 221 U.S. App. D.C. 363, 684 F.2d 137, 139 (D.C. Cir. 1982); Prewitt v. U.S. Postal Service, 662 F.2d 292, 303 (5th Cir. Unit A Nov. 1981) (citing Chandler v. Roudebush, 425 U.S. 840, 863-64, 48 L. Ed. 2d 416, 96 S. Ct. 1949 (1976)).
However, because plaintiff's claim of discrimination with regard to her termination is technically a "mixed case" according to 5 U.S.C. § 7702, the Court's review of this claim is bifurcated. That is, the Court must exercise de novo review of the administrative record with regard to plaintiff's claim that her termination was motivated by handicapped discrimination, yet scrutinize HHS's decision to terminate plaintiff for poor performance by a rational basis review of the agency's decision.