Leslie A. Harden v. Department of Veterans Affairs ( 2017 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    LESLIE A. HARDEN,                               DOCKET NUMBER
    Appellant,                        DA-0752-15-0597-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: January 6, 2017
    AFFAIRS,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Leslie A. Harden, Dallas, Texas, pro se.
    Letha Miller, Denver, Colorado, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    sustained her removal. Generally, we grant petitions such as this one only when:
    the initial decision contains erroneous findings of material fact; the initial
    decision is based on an erroneous interpretation of statute or reg ulation or the
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    erroneous application of the law to the facts of the case; the administrative
    judge’s rulings during either the course of the appeal or the initial decision were
    not consistent with required procedures or involved an abuse of discretion, and
    the resulting error affected the outcome of the case; or new and material evidence
    or legal argument is available that, despite the petitioner’s due diligence, was not
    available when the record closed. Title 5 of the Code of Federal Regulations,
    section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
    appeal, we conclude that the petitioner has not established any basis under section
    1201.115 for granting the petition for review. Therefore, we DENY the petition
    for review and AFFIRM the initial decision, which is now the Board’s final
    decision. 5 C.F.R. § 1201.113(b).
    ¶2        The agency imposed the appellant’s removal on the basis of one charge of
    excessive absence.   Initial Appeal File (IAF), Tab 5 at 28 -31.      She filed the
    instant appeal challenging her removal and requested a hearing.        IAF, Tab 1.
    After holding the appellant’s requested hearing, the administrative judge
    sustained her removal, finding that she had failed to establish her affirmative
    defense of disability discrimination based upon the agency’s alleged failure to
    accommodate her. IAF, Tab 22, Initial Decision (ID). The appellant has filed a
    3
    petition for review, 2 and the agency has responded. Petition for Review (PFR)
    File, Tabs 1, 5.
    ¶3         On review, the appellant challenges the agency’s charge by stating that the
    agency prevented her from identifying a date when she could have returned to
    work and from proving that she had identified such a date. 3                 PFR File,
    Tab 1 at 11. Despite these assertions, the appellant still has not shown that there
    was a date when she could have resumed a regular work schedule .
    IAF, Tab 5 at 51-68.    Thus, even if the agency interfered with the appellant’s
    ability to identify her own anticipated return date at the time, such a date would
    not have been supported by the evidence. Accordingly, we agree that the agency
    proved its charge of excessive absences because the appellant was absent due to
    illness such that the agency’s approval or disapproval of leave was immaterial;
    the absences continued beyond a reasonable time; the agency warned her that an
    2
    Although the appellant’s petition for review presents a timeliness issue, we find that
    the appellant has shown good cause for the delay in filing. See 5 C.F.R. §§ 1201.12,
    1201.114(f) (the Board will waive its filing deadline only upon a showing of good cause
    for the delay in filing); Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201,
    ¶ 5 (2014) (to establish good cause for an untimely filing, a party must show that he
    exercised due diligence or ordinary prudence under the particular circumstances of the
    case). Under the circumstances set forth in the appellant’s statement, signed under
    penalty of perjury, we find that the appellant, an e-filer, exercised due diligence under
    the particular circumstances present in this case. See PFR File, Tab 1 at 3, 6-10, 14-15,
    Tab 3 at 4. Therefore, we find that the appellant has shown good cause for the delay in
    filing. See Salazar v. Department of Army, 115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing
    a filing delay when the appellant alleged that he attempted to electronically file his
    petition for review on time and the e-Appeal system showed that the appellant had, in
    fact, accessed the system prior to the date that his petition was due and once he became
    aware that his petition had not been filed, the appellant contacted the Board and
    submitted a petition for review that included an explanation of his untimeliness).
    3
    The appellant has submitted evidence on review in the form of correspondence with an
    attorney. PFR File, Tab 1 at 22-62. We have not considered this evidence because it is
    not new in that it was not unavailable when the record was closed below despite the
    party’s due diligence and it is not material in that the appellant has not explained why
    she believes that it warrants an outcome different from that of the initial decision .
    See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
    § 1201.115(d).
    4
    adverse action could be taken unless she could become available for duty on a
    regular full-time or part-time basis; and the position needed to be filled on a
    regular, full-time or part-time basis.    ID at 4-9; IAF, Tab 5 at 51-68, 251;
    see Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 31 (2014) (identifying
    the elements of proof for a charge of excessive absences).
    ¶4        The appellant next asserts that the agency treated her unfairly, including by
    not allowing her to adjust her schedule or to telework and that the administrative
    judge incorrectly found that she failed to participate in the reasonable
    accommodation process. PFR File, Tab 1 at 4, 12. The administrative judge
    found that the appellant did not submit evidence that she could perform the
    essential functions of her position by teleworking full time and that, to the
    contrary, agency officials testified that her position required personal interaction
    that was not suitable for telework. ID at 12. She also noted that the proposing
    official testified that he would have considered a modified schedule for the
    appellant. ID at 6; IAF, Tab 21, Hearing Compact Disc. However, she found
    that, although the appellant verbally requested an accommodation, she failed to
    specify the type of accommodation that she needed and did not submit
    documentation in support of her request. ID at 11-12; IAF, Tab 5 at 47-49.
    ¶5        We agree with the administrative judge that the appellant failed to establish
    her affirmative defense of disability discrimination because she did not show that
    she is a qualified individual with a disability who could perform the essential
    functions of her job, such as the required personal interaction, with or without
    accommodation. See Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 11
    (2014); ID at 12. Additionally, the appellant has not provided a basis to disturb
    the administrative judge’s finding that she failed to participate in the interactive
    process, and thus this finding also precludes her from establishing disability
    discrimination as an affirmative defense.      White v. Department of Veterans
    5
    Affairs, 120 M.S.P.R. 405, ¶ 12 (2013).         Accordingly, we find no basis for
    disturbing the initial decision. 4
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request further review of this final decision.
    Discrimination Claims: Administrative Review
    You may request review of this final decision on your discrimination
    claims by the Equal Employment Opportunity Commission (EEOC). See title 5
    of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
    request by regular U.S. mail, the address of the EEOC is:
    Office of Federal Operations
    Equal Employment Opportunity Commission
    P.O. Box 77960
    Washington, D.C. 20013
    If you submit your request via commercial delivery or by a method requiring a
    signature, it must be addressed to:
    Office of Federal Operations
    Equal Employment Opportunity Commission
    131 M Street, NE
    Suite 5SW12G
    Washington, D.C. 20507
    You should send your request to EEOC no later than 30 calendar days after
    your receipt of this order. If you have a representative in this case, and your
    representative receives this order before you do, then you must file with EEOC no
    later than 30 calendar days after receipt by your representative. If you choose to
    file, be very careful to file on time.
    4
    The appellant asserts that she has experienced a history of disparate treatment, hostile
    working conditions, and equal employment opportunity violations.              PFR File,
    Tab 1 at 17. Based upon the administrative judge’s summaries of telephonic status
    conferences, we have considered these arguments in the context of the appellant’s
    disability discrimination claim and not as separate claims. See Booker v. Department of
    Veterans Affairs, 110 M.S.P.R. 72, ¶ 11 n.3 (2008); IAF, Tabs 13, 17.
    6
    Discrimination and Other Claims: Judicial Action
    If you do not request EEOC to review this final decision on your
    discrimination claims, you may file a civil action against the agency on both your
    discrimination claims and your other claims in an appropriate U.S. district court.
    See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
    no later than 30 calendar days after your receipt of this or der. If you have a
    representative in this case, and your representative receives this order before you
    do, then you must file with the district court no later than 30 calendar days after
    receipt by your representative. If you choose to file, be very care ful to file on
    time.    If the action involves a claim of discrimination based on race, color,
    religion, sex, national origin, or a disabling condition, you may be entitled to
    representation by a court-appointed lawyer and to waiver of any requirement of
    prepayment of fees, costs, or other security.    See 42 U.S.C. § 2000e-5(f) and
    29 U.S.C. § 794a.
    FOR THE BOARD:                           ______________________________
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 1/6/2017

Precedential Status: Non-Precedential

Modified Date: 4/17/2021