Joyce Bullock v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOYCE L. BULLOCK, DOCKET NUMBER
Appellant, AT-0752-21-0230-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: March 7, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joyce L. Bullock , Biloxi, Mississippi, pro se.
Benjamin Signer , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal. On petition for review, the appellant does not
challenge the administrative judge’s findings and instead restates her previous
assertions that someone has stolen her identity and that she is in jeopardy of
having her life stolen, states her concern that someone has been reinstated into
her position using her social security number, and expresses her belief that
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
people’s identities are being changed. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the 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. Except as expressly
MODIFIED to clarify the proper legal standard for analyzing the appellant’s
affirmative defense of disparate treatment disability discrimination, we AFFIRM
the initial decision.
On review, the appellant does not appear to challenge the substance of the
administrative judge’s findings that the agency met its burden of proving the
medical inability charge and that she failed to prove her affirmative defenses.
With the exception of the clarification of the legal standard used to analyze the
disparate treatment disability discrimination defense, discussed below, we see no
reason to disturb those findings. 2 Petition for Review (PFR) File, Tab 1 at 1-6;
2
With her petition for review, the appellant includes copies of a June 18, 2018 EEO
Counselor’s report and a June 14, 2018 notice of right to file a discrimination
complaint. PFR File, Tab 1 at 7-20. Both of these documents were already included in
the record below, so they are not new. Compare PFR File, Tab 1 at 7-9, 13-20, with
IAF, Tab 12 at 23-33 and compare PFR File, Tab 1 at 11-12, with IAF, Tab 13
at 110-11; see Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10
(2009) (noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time with a petition for review absent a showing that it is both
new and material); Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)
(explaining that evidence that is already a part of the record is not new). The appellant
also has not explained how these documents are relevant or how they would warrant a
3
Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
We modify the initial decision to clarify the proper legal standard for analyzing
the appellant’s disparate treatment disability discrimination affirmative defense.
In the initial decision, the administrative judge found that the appellant
failed to prove her affirmative defenses of disability discrimination based on a
failure to accommodate and disparate treatment. Initial Appeal File (IAF),
Tab 23, Initial Decision (ID) at 7-11. He determined that she failed to prove the
failure to accommodate claim because she failed to demonstrate that she could
perform the essential function of her position, with or without accommodation,
and failed to prove the disparate treatment claim because she did not identify any
similarly situated comparators who were treated less harshly, and further, because
the medical evidence formed the basis for the agency’s determination that the
appellant could not perform the essential functions of her position. ID at 9-11.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the Americans with Disabilities Act (ADA), as amended. Id.Therefore, we apply those standards here to determine if there has been a
Rehabilitation Act violation. Id. In particular, the ADA provides that it is illegal
for an employer to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a); Haas v. Department of Homeland Security,
2022 MSPB 36, ¶ 28. An employer is also required to provide reasonable
different outcome in her appeal, so they are not material and we have not considered
them.
4
accommodations to an otherwise qualified individual with a disability. 42 U.S.C.
§ 12112(b)(5); Haas, 2022 MSPB 36, ¶ 28. Both claims require that the
individual be “qualified.” Haas, 2022 MSPB 36, ¶ 28. A qualified individual
with a disability is one who can “perform the essential functions of
the . . . position that such individual holds or desires” with or without reasonable
accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28.
Although the administrative judge did not make a specific finding that the
appellant was not a “qualified” individual with a disability, he concluded that she
could not perform the essential functions of her position with or without
accommodation, based on the fact that her position required regular interaction
with the public and coworkers, which both of the appellant’s psychiatrists
concluded was incompatible with her Delusional Disorder condition, absent
medication or psychotherapy—both of which the appellant declined. ID at 9-10;
see 29 C.F.R. §§ 1630.2(m), 1630.3; ID at 6-7. In addition, the agency provided
evidence that it searched for but was unable to find a reassignment position for
the appellant, despite the appellant’s rejection of the agency’s offer to search for
such positions, and the appellant failed to present any argument or evidence to the
contrary. IAF, Tab 12 at 51-55; see Rosario-Fabregas v. Department of the
Army, 122 M.S.P.R. 468, ¶ 18 (2015) (indicating that an appellant failed to
engage in the interactive process when he did not identify any vacant, funded
position to which the agency might have reassigned him), aff’d, 833 F.3d 1342(Fed. Cir. 2016); IAF, Tab 22 at 37; ID at 14. Accordingly, we agree with the
administrative judge’s determination that the appellant failed to prove that she
could perform the essential functions of her position, with or without reasonable
accommodation. ID at 8-10. Thus we agree that the appellant failed to prove her
disability discrimination claim based on a failure to accommodate.
Additionally, despite finding that the appellant was unable to perform the
essential functions of her position (and was thus not a qualified individual with a
disability), the administrative judge mistakenly further analyzed the appellant’s
5
disparate treatment disability discrimination claim under the standard identified
in Smith v. Department of the Interior, 112 M.S.P.R. 173, ¶ 18 (2009), which
considers the following: (1) was the appellant a member of protected group;
(2) was he similarly situated to an individual who was not a member of a
protected group; and (3) was he treated more harshly than the individual who was
not a member of his protected group. ID at 10-11 (citing Smith, 112 M.S.P.R.
173, ¶ 18). In Pridgen, 2022 MSPB 31, ¶ 42, the Board clarified that disparate
treatment disability discrimination claims should be analyzed under the same
analytical framework as disparate treatment discrimination claims under
Title VII. Nevertheless, because the appellant failed to meet the threshold
requirement of showing that she is a qualified individual with a disability—a
finding the appellant does not challenge on review—the administrative judge’s
application of the incorrect standard does not warrant a different outcome. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
Accordingly, the initial decision is affirmed as modified by this Final
Order.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.