Rosa Arellano v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSA I. ARELLANO, DOCKET NUMBER
Appellant, DA-0752-17-0230-I-1
v.
DEPARTMENT OF HOMELAND DATE: January 24, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Robert H. Moore , Esquire, and David V. Sorola , Esquire, Del Rio, Texas,
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 her removal for inability to perform the essential duties of her position.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
except as expressly MODIFIED to set forth the proper standard for evaluating an
affirmative defense of discrimination. 5 C.F.R. § 1201.113(b).
BACKGROUND
The agency employed the appellant as a Customs and Border Protection
(CBP) Officer, GS-1895-12. Initial Appeal File (IAF), Tab 5 at 29. Her position
required her to perform duties of a strenuous and hazardous nature, including
using a firearm, wearing a gun belt to carry her firearm and other “personal
protection equipment,” standing and walking for long periods, running or
sprinting for 150 feet, lifting and carrying up to 85 pounds, pushing and pulling,
and climbing using both hands and feet. Id. at 94, 97-109. On December 4,
2015, she submitted medical documentation from her treating physician assistant
indicating that she had back and leg pain due to a herniated disc and that she
could not wear her gun belt until further treatment “in January.” Id. at 137. She
requested temporary light duty, which the agency approved on December 10,
2015. Id. at 135. Following the initial approval of her temporary light duty
request, the appellant submitted monthly requests for light duty accompanied by
3
authorizations to return to work with restrictions written by her physician
assistant. Id. at 144-50, 159-60.
On July 25, 2016, the Assistant Port Director instructed the appellant to
provide administratively acceptable medical documentation containing the
following information: a diagnosis of her condition and resulting impairments;
an explanation of how her condition affected her ability to perform her duties; a
prognosis; recommendations regarding any specific accommodation she needed;
and a medical opinion regarding whether she was physically capable of using a
firearm and performing “necessary force requirements.” 2 Id. at 130-31. In
response to this request, the appellant provided an August 2016 medical
evaluation from her treating physician assistant stating, among other things, that
her back, neck, and leg conditions limited her ability to sit, stand, and walk, and
precluded her from lifting more than 20 pounds, running, climbing stairs,
performing necessary force requirements, and using a firearm. Id. at 128-29. He
stated that her “current prognosis is not stable, her symptoms are debilitating in
nature and possibly may require surgical intervention for symptomatic relief of
lower back pain and left lower extremity pain since all other conservative
treatments has [sic] failed to alleviate her symptoms.” Id. at 128. He further
opined that the appellant was “not expected to resume full performance of duties
of her current position in the near future.” Id.By notice dated September 6, 2016, the Port Director instructed the
appellant to report for a fitness-for-duty (FFD) examination to determine her
ability to perform her duties as a CBP Officer. IAF, Tab 5 at 78-80. Following
the FFD examination, another physician reviewed the results of the examination,
the appellant’s medical history, and the description, physical requirements, and
medical standards of her CBP Officer position, and issued an FFD report dated
2
Necessary force requirements include the use of a firearm and nonlethal, intermediate
techniques to protect and defend the life of oneself and others. IAF, Tab 5 at 95, 99,
131.
4
October 24, 2016. 3 Id. at 82-84. In the FFD report, the reviewing physician
stated that the appellant was not fit for duty due to her lower back pain, noting
that “[i]t is likely that since [the appellant’s] back pain has not responded to
different modalities of treatment in 3 years, she will not be able to safely perform
the job duties of a CBP Officer for the foreseeable future.” Id. at 82-83.
On November 29, 2016, the agency proposed to remove the appellant on
the basis of her inability to perform the essential duties of her position. Id.
at 59-62. The single specification underlying the charge referenced the
October 24, 2016 FFD report and its conclusion that she was not fit for duty. Id.
at 59-60. The proposal notice stated that the agency conducted a job search for
another position that would meet the appellant’s qualifications and restrictions
but that the search had been unsuccessful. Id. at 60. The appellant provided oral
and written replies to the proposed removal. Id. at 31, 36-48. Effective
February 14, 2017, the agency removed her. Id. at 29, 31-34.
The appellant timely appealed her removal to the Board, arguing that the
agency discriminated against her on the bases of her age, sex, and disability,
committed harmful procedural error, and denied her due process. IAF, Tabs 1,
14-15. After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming her removal. IAF, Tab 21, Initial Decision
(ID).
The appellant has filed a petition for review of the initial decision, the
agency has responded, and the appellant has submitted a reply. Petition for
Review (PFR) File, Tabs 1, 4-5.
3
The October 24, 2016 FFD report revised an October 12, 2016 report, which
incorrectly stated that the appellant had been on light duty since September 2013 due to
lower back pain. IAF, Tab 5 at 82, 85-86. The record reflects that the appellant
submitted a September 20, 2013 request for light duty but that the agency denied her
request because there was no light duty position available. Id. at 133-34. The revised
report correctly states that the appellant’s treating clinician placed her on restricted duty
on September 20, 2013, due to lower back pain but does not state that she remained on
restricted duty for the following 3 years. Id. at 82.
5
ANALYSIS
We discern no error in the administrative judge’s ruling to allow the agency to
submit the reviewing physician’s affidavit in lieu of her live testimony.
Prior to the hearing, the agency informed the administrative judge that the
reviewing physician, one of its approved witnesses, would be unable to testify on
the date of the scheduled hearing because she had accepted a new job with a
different employer and had training on that date. IAF, Tab 17. In lieu of the
reviewing physician’s testimony, the agency moved to submit her notarized
affidavit. 4 IAF, Tab 19. During the hearing, the administrative judge granted the
agency’s motion over the appellant’s objection and accepted the reviewing
physician’s affidavit into the record. IAF, Tab 20, Hearing Compact Disc (HCD).
On review, the appellant argues that the administrative judge erred in permitting
the agency to submit the reviewing physician’s affidavit in lieu of live testimony
because it deprived her of her “constitutional right to confront” the reviewing
physician. PFR File, Tab 1 at 28-31, Tab 5 at 5-7. She argues that due process
requires confrontation and cross-examination in this case because she is
challenging her removal “as resting on incorrect or misleading factual premises or
the misapplication of rules or policies to the facts of her particular case.” PFR
File, Tab 1 at 30.
As an initial matter, the agency, not the appellant, called the reviewing
physician as a witness. 5 IAF, Tab 13 at 9, Tab 15 at 5. An agency proffers
witnesses for its own—not for the appellant’s—benefit. Therefore, neither the
4
The agency first moved to reschedule the hearing to a date that would allow the
reviewing physician to testify, which the appellant opposed. IAF, Tabs 17-18. The
administrative judge did not grant the agency’s motion to reschedule the hearing.
5
Although the appellant indicated in her prehearing submission that she “adopt[ed] all
of the Agency’s witnesses as the Appellant’s,” IAF, Tab 14 at 16, the administrative
judge approved the reviewing physician as a witness for the agency only, IAF, Tab 15
at 5. She advised the parties that any objections to her order and summary of the
prehearing conference, which included her rulings on witnesses, must be filed within
7 days. Id. at 6. Neither party filed an objection, and the appellant is therefore
precluded from challenging the order regarding witnesses on review. See Sanders v.
Social Security Administration, 114 M.S.P.R. 487, ¶ 9 (2010).
6
agency nor the administrative judge was under any obligation to require the
reviewing physician to appear at the hearing. See Lohr v. Department of the Air
Force, 24 M.S.P.R. 383, 386 (1984). If the appellant wished to examine her at
the hearing, it was incumbent upon her to call her as a witness. See Dubiel v.
U.S. Postal Service, 54 M.S.P.R. 428, 432 (1992). Moreover, the appellant could
have requested, but did not, a subpoena to compel the attendance of the reviewing
physician at the hearing. Id.; 5 C.F.R. §§ 1201.41(b)(2), 1201.81. Furthermore,
upon learning that the reviewing physician would be unavailable for the
scheduled hearing, the appellant could have sought, but did not, a continuance to
obtain her appearance at the hearing; rather, she opposed the agency’s attempt to
do just that. See Dubiel, 54 M.S.P.R. at 432; IAF, Tabs 17-18. Therefore, we
find no merit to the appellant’s contention that the administrative judge denied
her due process because, even assuming she had a due process right to confront
the reviewing physician at the hearing, she failed to avail herself of the Board’s
procedures that might have led to the reviewing physician’s appearance at the
hearing. See Dubiel, 54 M.S.P.R. at 432; Lohr, 24 M.S.P.R. at 386.
In addition, we find that the appellant has not shown that the administrative
judge abused her broad discretion to regulate the course of the hearing and to
receive relevant evidence by accepting the affidavit in lieu of hearing testimony.
5 C.F.R. § 1201.41(b)(3); see Thomas v. U.S. Postal Service, 116 M.S.P.R. 453,
¶ 4 (2011). Even if the appellant had made such a showing, she has not shown
that the outcome of this appeal was affected. See Thomas, 116 M.S.P.R. 453, ¶ 4
(providing that, in order to obtain reversal of an initial decision on the ground
that the administrative judge abused her discretion in excluding evidence, the
petitioning party must show on review that relevant evidence, which could have
affected the outcome, was disallowed).
The administrative judge correctly determined that the agency proved the charge.
When, as here, a removal for inability to perform is based on a current
medical condition, the agency must prove either a nexus between the employee’s
7
medical condition and observed deficiencies in her performance or conduct, or a
high probability, given the nature of the work involved, that her condition may
result in injury to herself or others. Haas v. Department of Homeland Security,
2022 MSPB 36, ¶¶ 15, 20. 6 In other words, the agency must establish that the
appellant’s medical condition prevents her from being able to safely and
efficiently perform the core duties of her position. Id., ¶ 20. The Board has
indicated that the core duties of a position are synonymous with the essential
functions of a position under the Americans with Disabilities Act (ADA), as
amended by the ADA Amendments Act, i.e., the fundamental job duties of the
position, not including marginal functions. Id., ¶ 21. One of the bases for
finding that a function is essential is that it is the “reason the positions exists.”
Id.; 29 C.F.R. § 1630.2(n)(2)(i).
In the initial decision, the administrative judge found that wearing a gun
belt and firearm were essential functions of the appellant’s position as a CBP
Officer. ID at 7. She further found that the medical evidence and hearing
testimony established that the appellant’s medical condition precluded her from
performing those essential functions. Id. Thus, she concluded that the agency
proved that there was a nexus between the appellant’s medical condition and her
inability to perform her job duties and sustained the charge. ID at 7-8.
On review, the appellant does not challenge, and we discern no basis to
disturb, the administrative judge’s finding that wearing a gun belt and firearm are
essential functions of the CBP Officer position. PFR File, Tabs 1, 5. She appears
to argue, however, that the administrative judge erred in relying on the FFD
report to find that she could not perform those duties because the agency violated
its procedures in forcing her to undergo the FFD examination. PFR File, Tab 1
at 20, Tab 5 at 5-8. She further appears to argue that the FFD report is not
6
The Board recently clarified that this standard applies to charges of inability to
perform involving a current medical condition or impairment even when, as in this case,
the appellant occupies a position with medical standards or physical requirements.
Haas, 2022 MSPB 36, ¶ 14.
8
probative regarding her ability to perform the duties of her position because it is
“unauthenticated, un-notarized, undeclared pursuant to 28 USC [§] 1746, nor [sic]
certified as a business record, statement” and because the reviewing physician did
not personally examine her or ever speak to her. 7 PFR File, Tab 5 at 5, 8.
In support of her contention that the agency improperly ordered her to
submit to an FFD examination, the appellant argues that the proposing and
deciding officials testified that the agency’s policy is to order an FFD
examination only after an employee has been on light duty for 1 year and that the
agency violated this policy when it required her to submit to one, even though she
had been on light duty for less than 1 year. PFR File, Tab 1 at 20; HCD (the
appellant’s closing argument). Contrary to her allegation, however, neither the
proposing nor deciding official testified that the agency had such a policy, and
the appellant has provided no other evidence in support of this argument. HCD
(testimony of the deciding and proposing officials). Pursuant to 5 C.F.R.
§ 339.301(b)(3), an agency may require an individual who occupies a position
with medical standards or physical requirements to report to a medical
examination “[w]henever the agency has a reasonable belief, based on objective
evidence, that there is a question about an employee’s continued capacity to meet
the medical standards or physical requirements of a position.” Here, the
appellant’s position was subject to medical standards and physical requirements,
and the medical notes she submitted to the agency between September 2013 and
June 2016 regarding her physical impairments and need for restricted duty
provided the agency with a reasonable basis to question her ability to safely
perform her duties. IAF, Tab 5 at 94, 97-110, 128-29, 133, 137, 145, 148, 150,
160. Therefore, we find that, contrary to the appellant’s argument on review, the
7
On review, the appellant also challenges the FFD report because it erroneously states
that she had been medically restricted for 3 years. PFR File, Tab 1 at 20. As noted
above, however, the revised report contains no such error. Supra ¶ 4 n.3; IAF, Tab 5
at 82-83.
9
agency properly ordered her to submit to a FFD examination. See 5 C.F.R.
§ 339.301(b)(3).
We also find no merit in the appellant’s contention that the FFD report is
not probative regarding her ability to perform the essential functions of her
position. In assessing the probative weight of medical opinions, the Board
considers whether the opinion was based on a medical examination, whether the
opinion provided a reasoned explanation for its findings as distinct from mere
conclusory assertions, the qualifications of the expert rendering the opinion, and
the extent and duration of the expert’s familiarity with the appellant’s medical
treatment. Adams v. U.S. Postal Service, 108 M.S.P.R. 250, ¶ 13 (2008), aff’d,
309 F. App’x 413 (Fed. Cir. 2009). In addition, because neither the reviewing
physician nor the physician assistant testified at the hearing, we must assess the
probative value of their medical reports as hearsay evidence. See Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 83-87 (1981). The Board generally
evaluates the probative value of hearsay evidence by considering various factors
that include the availability of persons with firsthand knowledge to testify at the
hearing, whether the out-of-court statements were signed or in affidavit form,
whether the declarants were disinterested witnesses to the events and whether
their statements were routinely made, the consistency of the out -of-court
statements with other statements and evidence, whether there is corroboration or
contradiction in the record, and the credibility of the out-of-court declarant. Id.Here, the agency represented that the reviewing physician was unavailable
to testify at the hearing due to a conflict. IAF, Tabs 17-18. Her FFD report is
signed, and she also submitted a notarized affidavit signed under oath discussing
and affirming her findings in the FFD report. IAF, Tab 19. While she did not
personally examine the appellant, her affidavit and the FFD report reflect that she
conducted a comprehensive review of the relevant evidence, including the
appellant’s position description, the medical standards and physical requirements
of her position, the FFD examination and bloodwork, the physician assistant’s
10
report, and the appellant’s 2013 and 2015 -2016 requests for light duty and related
correspondence. IAF, Tab 5 at 82-83, Tab 19 at 7 (citing IAF, Tab 5 at 82-84,
87-110, 112-24, 128-35, 138-40, 144-50, 153-55, 153-56, 159 -60, 163). Her
affidavit further reflects that she is a medical doctor and that she has been
licensed to practice medicine in Virginia since 2014. IAF, Tab 19 at 6.
The availability of the physician assistant to testify at the hearing is
unknown as neither party called him to testify. IAF, Tab 15 at 5. His medical
report was signed, though not sworn. IAF, Tab 5 at 128-29. The record reflects
that he had been treating the appellant for several months and was thus familiar
with her treatment. Id. at 128-29, 137, 145, 148, 150, 160. His letterhead reflects
that he is a Board Certified Physician Assistant at an office specializing in
treatment of the spine. Id.Both the reviewing physician’s FFD report and the physician assistant’s
report contain reasoned explanations in support of their conclusions, are routinely
made medical reports by disinterested medical providers, and are consistent with
each other, the FFD medical examination, and other evidence of record. See
Adams, 108 M.S.P.R. 250, ¶ 13; IAF, Tab 5 at 82-84, 111-29. Moreover, these
reports are consistent with the appellant’s own hearing testimony that she could
not carry her gun belt in 2016. HCD (testimony of the appellant). The record is
devoid of any evidence contradicting the conclusions of the reviewing physician
and the physician assistant that the appellant was not fit for duty in 2016 and that
she was not expected to be able to perform the full range of her duties in the near
or foreseeable future.
In light of the foregoing, we find that both the FFD report and the
physician assistant’s reports are highly probative regarding the appellant’s ability
to perform the duties of her position and her prognosis. We further find that the
administrative judge and the agency properly relied on this documentary evidence
and agree that preponderant evidence demonstrates that the appellant’s medical
condition precluded her from performing the essential duties of her position. ID
11
at 7-8; Haas, 2022 MSPB 36, ¶¶ 15, 20. Thus, we discern no basis to disturb the
administrative judge’s determination that the agency proved the charge.
The appellant failed to establish discrimination based on disparate treatment.
The appellant argued below that the agency discriminated against her on
the bases of age and sex by ordering her to furnish medical evidence regarding
her ability to perform her duties and to submit to an FFD examination before she
was on light duty for a full year. IAF, Tab 14 at 6; HCD (testimony and closing
argument of the appellant). She alleged that certain male employees and
employees under 40 years of age who had injuries or disabilities or who were on
light duty were not sent for FFD examinations. IAF, Tab 14 at 6; HCD
(testimony and closing argument of the appellant).
After the initial decision was issued, the Board clarified its analytical
framework for sex and age status-based discrimination claims in Pridgen v. Office
of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, and we apply that
framework here. To establish a claim of discrimination based on age or sex, an
appellant must prove by preponderant evidence that her membership in a
protected class was a motivating factor in the contested personnel action, even if
it was not the only reason. Pridgen, 2022 MSPB 31, ¶¶ 23-25. In determining
whether the appellant has met his initial burden to show a motivating factor, the
Board must consider all of the evidence together as a whole, without sorting
evidence into different piles, labeled “direct” or “indirect,” that are evaluated
differently. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 36
(2017).
As noted above, the appellant relied on comparator evidence in support of
her claim that the agency discriminated against her on the bases of age and sex.
For another employee to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, a comparator
must have reported to the same supervisor, been subjected to the same standards
12
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27.
The administrative judge considered the appellant’s claim that the agency
treated male and younger employees more favorably by not requiring them to
submit to an FFD examination but found that the appellant failed to identify any
similarly situated comparator without differentiating circumstances, i.e., one who,
like the appellant, provided medical documentation indicating that she would not
be able to return to duty in the “near future.” ID at 9-12. She further found that
the appellant failed to provide anything more than unsupported allegations to
show that the agency removed her based on her age or sex. ID at 8-13. She
considered the hearing testimony of the deciding and proposing officials and
found that they credibly testified that the appellant’s age and sex were not factors
in their actions. ID at 10-12. She also found that the agency’s proffered reason
was the real reason for the action. ID at 13.
On review, the appellant argues that the agency failed to provide any
evidence to controvert her allegation that it treated certain other employees more
favorably and that the proposing and deciding officials failed to articulate a
legitimate reason for their discriminatory treatment of the appellant. PFR File,
Tab 1 at 21-22, Tab 5 at 14-15. Contrary to the appellant’s argument that the
agency must controvert her allegations of discrimination, it is her burden to show
in the first instance that the agency’s action was motivated by discriminatory
animus. See Pridgen, 2022 MSPB 31, ¶¶ 23-23. The administrative judge
thoroughly considered the appellant’s arguments and the evidence as a whole and
concluded that she failed to meet her burden. ID at 8-13. The appellant’s
allegation that the proposing and deciding officials failed to articulate a
legitimate reason for their actions is likewise unavailing. As discussed above, the
appellant could not perform the duties of her position, and the agency properly
referred her for an FFD examination. Therefore, we find no basis to disturb the
13
administrative judge’s well-reasoned determination that the appellant failed to
show motivating factor by preponderant evidence.
The appellant failed to prove her affirmative defense of disability discrimination
based on a failure to accommodate.
On review, the appellant argues that the agency discriminated against her
by failing to provide her a reasonable accommodation to a position that did not
require her to carry her firearm. PFR File, Tab 1 at 23 -25. The Rehabilitation
Act requires an agency to provide reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. Clemens v. Department of the Army,
120 M.S.P.R. 616, ¶ 10 (2014). Once such an employee requests a reasonable
accommodation, the employer must engage in the interactive process to determine
an appropriate accommodation. Id., ¶ 12. An agency’s failure to engage in the
interactive process alone, however, does not violate the Rehabilitation Act;
rather, the appellant must show that this omission resulted in failure to provide
reasonable accommodation. Id., ¶ 17. The appellant bears the burden of proving
that an accommodation she seeks is reasonable and, when she seeks a
reassignment, that there was a position that the agency would have found and to
which it could have assigned her if it had looked. Id.Here, the administrative judge found that, although the appellant identified
several positions to which she believed she could have been reassigned, she
provided no evidence showing that there was a vacant funded position available
at the time of her removal. ID at 14. Therefore, the administrative judge
concluded that the appellant failed to prove her affirmative defense of disability
discrimination based on a failure to accommodate. Id.On review, the appellant argues that the agency failed to conduct an
adequate search for a reassignment and that the deciding official’s hearing
testimony regarding the agency’s search was not credible. PFR File, Tab 1
14
at 24-25. As noted above, however, regardless of whether the agency conducted
an adequate search for a reassignment, the appellant still bears the ultimate
burden of proving that there was a position that the agency would have found and
to which it could have assigned her if it had looked. Clemens, 120 M.S.P.R. 616,
¶ 17. The appellant did not identify any available position, and her assertion that
she believes the agency failed to search outside of a 50-mile radius is insufficient
to meet her burden of proof. Id. Thus, we find no basis to disturb the
administrative judge’s determination that the appellant failed to prove her
disability discrimination affirmative defense based on a failure to accommodate.
The agency did not deny the appellant due process or commit harmful error.
The appellant argues on review, as she did below, that the agency violated
her right to due process and committed harmful error by allegedly changing the
deciding official identified in the proposal notice and by requiring her to provide
her oral response to a hearing official, who did not make a final decision on the
proposed removal or make a recommendation to the deciding official. PFR File,
Tab 1 at 25-28, Tab 5 at 8-10. We find no merit to these arguments.
As the administrative judge correctly found, the agency identified who the
deciding official would be in the proposal notice and did not subsequently change
the deciding official. ID at 16; IAF, Tab 5 at 31-34, 61. The administrative
judge further found, and we agree, that the agency did not violate the appellant’s
due process rights because it afforded her notice and an opportunity to respond to
the proposed action, and the deciding official considered the recording of her oral
response and her written response in arriving at his decision to impose the
proposed removal. ID at 14-16; IAF, Tab 5 at 31, 36-48, 61, HCD (testimony of
the deciding official); see Cleveland Board of Education v. Loudermill , 470 U.S.
532, 546 (1985). Lastly, the administrative judge correctly found that the agency
did not commit harmful procedural error by designating a hearing official to hear
the appellant’s oral response because, even if this were error, the appellant failed
to show that she was prejudiced by giving her oral response to the hearing
15
official, rather than the deciding official. See Salter v. Department of the
Treasury, 92 M.S.P.R. 355, ¶ 7 (2002) (stating that harmful error cannot be
presumed and that, to show harmful error, an appellant must prove that any
procedural error substantially prejudiced her rights by possibly affecting the
agency’s decision).
The penalty of removal is reasonable.
Generally, removal for physical inability to perform the essential functions
of a position promotes the efficiency of the service. Brown v. Department of the
Interior, 121 M.S.P.R. 205, ¶ 17 (2014), overruled on other grounds by Haas,
2022 MSPB 36, ¶ 14. An action taken for physical inability to perform is
considered a nondisciplinary removal, and the appropriate standard in assessing
the chosen penalty is whether it exceeded the tolerable limits of reasonableness.
Id., ¶ 18. Generally, when an employee cannot perform the essential functions of
her position, the Board must examine whether this is true with or without
reasonable accommodation and whether the agency has any vacant positions to
which it can assign the appellant within her restrictions. Id., ¶ 19.
In the initial decision, the administrative judge found that the appellant’s
removal was reasonable and promoted the efficiency of the service. ID at 17.
She explained that the hearing testimonies of the deciding and proposing
officials, as well as the appellant, established that the appellant could not perform
the essential duties of her position because of her medical condition and that there
were no other vacant positions at the same grade or pay level or below that met
her restrictions. Id. On review, the appellant argues that her removal was not
reasonable because the agency could have accommodated her by moving her to a
16
Mission Support position and could have provided her additional time to recover. 8
PFR File, Tab 1 at 28.
Although the appellant disagrees with administrative judge’s finding that
the penalty was reasonable, she has not alleged that she could perform the
essential duties of her position. Moreover, she has not cited any evidence in the
record to establish that there was a vacant funded position to which she could
have been reassigned. Therefore, we find no basis to disturb the administrative
judge’s well-reasoned determination that removal did not exceed the tolerable
limits of reasonableness. Brown, 121 M.S.P.R. 205, ¶¶ 17, 22.
NOTICE OF APPEAL RIGHTS 9
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
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.
8
The appellant also argues on review that the penalty was not reasonable because the
agency substituted the deciding official with another agency official and because the
hearing official did not provide a summary and recommendation to the deciding official.
PFR File, Tab 1 at 28. These arguments, which we addressed above and found to be
without merit, do not pertain to the reasonableness of the penalty. See supra ¶¶ 28-29.
9
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.
17
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
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
18
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
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:
19
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. 10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
10
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.
20
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.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.