Pamela D. Tucker v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA D. TUCKER, DOCKET NUMBER
Appellant, CH-0752-13-0421-I-1
v.
DEPARTMENT OF VETERANS DATE: August 15, 2014
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Pamela D. Tucker, Fontana, California, pro se.
Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 The agency removed the appellant effective March 10, 2013, based on the
sole charge of failure to follow instructions. Initial Appeal File (IAF), Tab 8,
Subtabs 4A, 4B. The charge consisted of five specifications involving the
appellant’s failure to report to her assigned work area on December 17-19, and
31, 2012, and January 22, 2013. IAF, Tab 8, Subtab 4B. The appellant appealed
her removal to the Board and requested a hearing. IAF, Tab 1 at 3. She raised
affirmative defenses of whistleblower reprisal, disability and age discrimination,
and retaliation for prior equal employment opportunity (EEO) activity. IAF,
Tab 1 at 7, Tab 3 at 1, 3, 9.
¶3 After holding the requested hearing, the administrative judge issued an
initial decision affirming the removal action. IAF, Tab 38, Initial Decision (ID)
at 1. He found the charge sustained and the penalty of removal appropriate. ID
at 3, 5. He also found that the appellant failed to establish her affirmative
defenses of whistleblower reprisal, disability discrimination, and retaliation for
prior EEO activity. ID at 3-5. The administrative judge did not address the
appellant’s age discrimination claim.
¶4 The appellant has filed a petition for review in which she claims the
administrative judge ignored or failed to consider the evidence she presented
below regarding the charged conduct and her affirmative defenses. Petition for
Review (PFR) File, Tab 2. She also challenges several findings of fact made by
the administrative judge as well as his account of the hearing testimony. Id. The
agency has filed a response in opposition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board has held that an administrative judge must inform an appellant of
the burdens and elements of proof on her affirmative defenses. See Sarratt v.
3
U.S. Postal Service, 90 M.S.P.R. 405, ¶ 12 (2001); Burge v. Department of the
Air Force, 82 M.S.P.R. 75, ¶¶ 28-29 (1999); see also Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an appellant must
receive explicit information on what is required to establish an appealable
jurisdictional issue). Here, although the appellant raised affirmative defenses of
whistleblower reprisal, disability and age discrimination, and retaliation for prior
EEO activity, IAF, Tab 1 at 7, Tab 3 at 1, 3, 9, the administrative judge did not
provide the appellant the required notice regarding her claims and the required
notice does not appear elsewhere in the record. Therefore, remand is necessary.
See Warner v. Department of the Interior, 115 M.S.P.R. 281, ¶ 7 (2010). On
remand, the administrative judge shall fully apprise the appellant of the burdens
and elements of proof on the affirmative defenses she raised below, and afford
the appellant an opportunity for additional discovery and a supplemental hearing
on these affirmative defenses if requested. See Sarratt, 90 M.S.P.R. 405, ¶ 13;
Burge, 82 M.S.P.R. 75, ¶ 29.
¶6 In addition, although an administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision, Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table), an initial decision
must identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests,
Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). If
any of these items is missing or substantially incomplete, the Board will remand
the appeal to the administrative judge for modification. Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 14 (2012).
¶7 Here, the administrative judge, without explanation, made several findings
of fact regarding the charged conduct and the appellant’s affirmative defenses
that were either contested below or appear contrary to the written record. ID
4
at 2-5. For instance, the administrative judge found that the appellant failed to
supply medical documentation to support her request for reasonable
accommodation due to her alleged inability to work in her assigned office. ID
at 2-3. However, the record reflects that the appellant supplied letters from her
primary care provider at the Cincinnati Veterans Affairs (VA) Medical Center to
the agency requesting accommodation, but that the agency found the letters to be
insufficient. 2 IAF, Tab 3 at 51, 100-03, Tab 8, Subtabs 4C, 4D. Further, the
appellant argued that, in any event, she was not obligated under agency policy to
supply additional medical documentation because she was a disabled veteran and
her disabilities were on file with the agency. 3 IAF, Tab 34 at 4-5, Tab 3 at 69.
Additionally, the administrative judge appears to have found that the appellant
failed to establish that she had a disability for purposes of her disability
discrimination claim. ID at 3. The record reflects, however, that the appellant is
a 30% disabled veteran based on her diagnoses of ventricular arrhythmias and
limited flexion of knee. IAF, Tab 3 at 69. The administrative judge also
determined that the appellant’s claim regarding mold in her office was
unfounded. ID at 2, 4-5. The appellant alleged, however, and the record
reflects, that the agency never performed a test for mold in her assigned office as
she had requested. 4 IAF, Tab 3 at 51, 100, 109. Finally, in sustaining the
charge, the administrative judge found that the appellant failed to report to her
regular work station on the dates specified in the notice of proposed removal. ID
2
The appellant’s primary care provider is a Nurse Practitioner and had been providing
care to the appellant for over 10 years. IAF, Tab 3 at 63, 100. The agency informed
the appellant that it required medical documentation from a “qualified physician that
specifically specializes in the field” in order to consider her request for a reasonable
accommodation. IAF, Tab 8, Subtab 4F.
3
Although the administrative judge acknowledged a portion of the appellant’s argument
in the initial decision, he did not make any findings in this regard. ID at 2.
4
The appellant alleged that she probably would have been approved for a non-VA
consult with a qualified physician, and thus would have been able to secure the
requested medical documentation from a medical doctor, had the agency conducted the
proper testing in her assigned office as requested. IAF, Tab 3 at 41.
5
at 2. The administrative judge, however, did not acknowledge either that she had
reported for duty on those dates (but not to the assigned office) or that her
requests for leave under the Family and Medical Leave Act of 1993 on those
dates were denied. IAF, Tab 34 at 8, Tab 3 at 25-29, 84-85.
¶8 Under the circumstances, we vacate the initial decision in its entirety. In
the remand initial decision, the administrative judge shall summarize the
pertinent evidence, including the relevant agency policies regarding reasonable
accommodations, and support his findings with citations to the record and
applicable case law. See Spithaler, 1 M.S.P.R. at 589. On issues that involve
credibility determinations, the administrative judge shall state which version he
believes and explain in detail why he found the chosen version more credible.
See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
ORDER
¶9 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.