Sheue-Jan Tsay v. Dept. Of the Navy ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as
precedent. It is a public record. The disposition will appear in tables
published periodically.
United States Court of Appeals for the Federal Circuit
04-3363
SHEUE-JAN TSAY,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
DECIDED: January 14, 2005
__________________________
Before MICHEL, Chief Judge, NEWMAN and PROST, Circuit Judges.
PER CURIAM.
Ms. Sheue-Jan Tsay appeals the decision of the Merit Systems Protection Board,
Docket No. SF0752020700-I-1, holding that Ms. Tsay was lawfully removed as unable to
perform the essential duties of her job. We affirm.
BACKGROUND
Ms. Tsay was employed as an Electrical Engineer at the Naval Air Warfare Center
Weapons Division in China Lake, California, having been a federal employee for 14 years.
In 2002, Ms. Tsay asked her psychologist, Dr. Seymour, to submit a report to the Human
Resource Department personnel concerning his treatment of her over the preceding four
years. Dr. Seymour reported that Ms. Tsay suffered from "increasing anger and anxiety,"
an "inability to concentrate," and that she has become "increasingly depressed, angry, and
anxiety ridden" and had a perception "that she was being monitored every minute." Letter
of May 9, 2002 (hereinafter "Psychological Progress Review"). Her symptoms include
"extreme anger and frustration, frequent crying episodes, inability to concentrate,
obsessional thinking, gastro-intestinal problems, insomnia, feelings of persecution, and
increasing social isolation." Dr. Seymour continued, "As the treating psychotherapist, I
have recommended that she consider alternative employment as she appears headed for a
serious mental breakdown."
With Ms. Tsay's consent, Dr. Seymour then met with agency personnel. Dr.
Seymour stated that "she needed a low stress position," a "flexible schedule (morning
hours)," "a workplace free from distraction," and "a new supervisor [with] a higher education
level than Ms. Tsay." When asked, Dr. Seymour agreed that Ms. Tsay would be better able
to concentrate if she had "no performance standards, no deadlines, and no accountability."
Report of Meeting of June 6, 2002. The agency determined that accommodation was not
possible, and issued a Notice of Decision to Remove Ms. Tsay in August of that year. The
Board affirmed the agency decision that Ms. Tsay was unable to perform her job. The
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Board rejected Ms. Tsay's defenses of handicap discrimination, discrimination based on
reprisal, and discrimination based on sex, national origin, race, and age. This appeal
followed. In taking this appeal to the Federal Circuit, Ms. Tsay waived or abandoned the
defenses based on discrimination, and argues solely that there was insufficient evidence to
support the Board's decision.
DISCUSSION
This court reviews agency action to determine whether the action was:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law;
(2) obtained without procedures required by law, rule, or regulation having
been followed; or
(3) unsupported by substantial evidence.
5 U.S.C. §7703(c); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984).
I
An agency may act adversely against an employee "only for such cause as will
promote the efficiency of the service." 5 U.S.C. §7513(a). The agency must support the
reason for the removal with preponderant evidence, and show a nexus between the reason
and the efficiency of the service.
There was substantial evidence that Ms. Tsay had a mental condition that rendered
her unable to meet the requirements of her position. At Ms. Tsay's request, her treating
psychologist disclosed to the Navy that she possessed a mental condition of anger, anxiety,
depression, and paranoia, which had increased in intensity over the four preceding years,
and that she had an inability to concentrate. Her treating psychologist also stated that Ms.
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Tsay needed more flexible work hours, no deadlines or pressure, and that she would do
better with a different supervisor.
There was substantial evidence for the agency's finding that Ms. Tsay's condition
adversely affected her performance of the requirements of her position, and that the
agency was unable to provide the requested accommodations. On this basis, the agency's
action must be affirmed.
II
Ms. Tsay also argues that the Board deprived her of due process of law when it
refused to accept a brief which was mailed on the deadline for receipt and which
consequently was received late. Due process is not violated by enforcing deadlines, see
James v. Office of Personnel Management, 372 F.3d 1365, 1369 (Fed. Cir. 2004)
("requirements of strict adherence to filing and timing rules are ubiquitous in our legal
system"); we also take note that the agency states that her psychologist's reports were
before the Board and that she did not request an oral hearing. We discern no violation of
due process in the Board's procedure.
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