Kyle Shirley v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYLE WAYNE SHIRLEY, DOCKET NUMBER
Appellant, CH-0752-18-0509-I-1
v.
DEPARTMENT OF JUSTICE, DATE: May 23, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Darrin W. Gibbons , Richmond, Virginia, for the appellant.
Patricia A. Hargrave and Susan E. Gibson , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for medical inability to perform the essential duties of his
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED to
apply the proper standard for the agency’s charge, to supplement the
administrative judge’s analysis of the appellant’s disability discrimination claims
by finding that he is not a qualified individual with a disability, and to find that
the penalty of removal is within the tolerable limits of reasonableness, we
AFFIRM the initial decision.
BACKGROUND
The appellant held the GS-1811-12 position of Deputy United States
Marshal (DUSM) (Criminal Investigator) with the agency’s United States
Marshals Service. Initial Appeal File (IAF), Tab 10 at 7-8. 2 In September 2012,
he injured his lower back and spine while on duty. IAF, Tab 9 at 65, Tab 10
at 16. As explained in the initial decision, the appellant underwent a series of
four back surgeries from July 2013 through May 2016. IAF, Tab 42, Initial
Decision (ID) at 2-4. Beginning in March 2016, the appellant received workers’
compensation and did not perform any work. IAF, Tab 10 at 17, 32. In a June
2
The parties and the record documentation refer to the appellant’s GS-1811 position as
both DUSM and Criminal Investigator. IAF, Tab 10 at 7-8, 14, Tab 11 at 51-52.
The record indicates that there is a separate GS-082 DUSM position. IAF, Tab 16 at 6,
44. For clarity’s sake, we have referred to the appellant’s position as DUSM in this
Final Order.
3
2016 physician evaluation report, the appellant’s treating physician indicated that
he could not perform aggressive law enforcement activities and estimated his
return to duty in December 2016. IAF, Tab 11 at 17-18. In July 2016, the agency
made a fitness-for-duty determination concluding that the appellant was
medically disqualified for his DUSM position based on his back injury. IAF,
Tab 10 at 61-64. After the appellant appealed the determination, IAF, Tab 11
at 4-15, the agency again found him medically disqualified in November 2016,
IAF, Tab 10 at 49-51. The agency informed the appellant of options including
law enforcement retirement, medical disability retirement, accommodation and
reassignment, and resignation. Id. at 50.
The appellant did not choose any of those options, and the agency proposed
his removal in March 2017 based on the charge of medical inability to perform
the essential duties of his DUSM position. Id. at 26-30. Among other things, the
agency noted that the medical standards for law enforcement positions require the
incumbent to have a musculoskeletal system allowing the individual to carry out
the essential functions of the job. Id. at 26. The agency further noted that the
essential duties of the appellant’s DUSM position involved “potentially
dangerous and hazardous situations, including stationary or moving surveillance,
search and seizure activities, pursuit and restraint of suspects, and prisoner
transport and arrests.” Id. The agency concluded that his current diagnosis and
the side effects of his back injury prohibited him from “performing vigorous
exertional exercise and aggressive law enforcement activities.” Id.The appellant, through his representative, acknowledged during his oral reply that
he could not perform his duties. Id. at 15. However, based on his treating
physician’s opinion, he claimed that he would be able to return to duty after a
fifth back surgery that was unscheduled. Id. at 19-22. The deciding official
sustained his removal, effective April 21, 2017. Id. at 7-10.
The appellant thereafter filed a formal equal employment opportunity
(EEO) complaint concerning his removal, IAF, Tab 9 at 33, 39-41, and he applied
4
for disability retirement, IAF, Tab 18 at 4-7. After receiving a final agency
decision on his EEO complaint, IAF, Tab 9 at 20-32, the appellant filed the
instant appeal of his removal with the Board, and he requested a hearing,
IAF, Tab 1 at 1-7. He raised the affirmative defenses of disability discrimination
based on disparate treatment and a failure to accommodate, and retaliation for
requesting a reasonable accommodation and for filing prior EEO complaints.
ID at 13-16; IAF, Tab 21 at 5-6, Tab 23 at 3.
After holding a telephonic hearing, the administrative judge issued an
initial decision affirming the agency’s removal action. ID at 1, 17. Specifically,
she found that the agency met its burden of proving the charge and that the
penalty of removal promotes the efficiency of the service. ID at 8-12. She
further found that the appellant did not meet his burden of proving the affirmative
defenses. ID at 13-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. 3 The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly considered Dr. T.A.’s written report despite his
absence at the hearing.
In proposing the appellant’s removal, the agency relied on a June 2016
report in which Dr. T.A. conducted an independent medical review of the
appellant’s medical documentation. IAF, Tab 10 at 27-28, 65-67. After both
parties requested Dr. T.A. as a witness, IAF, Tab 15 at 10, Tab 21 at 6, the
3
The appellant does not dispute, and we decline to disturb, the administrative judge’s
finding that he failed to prove his claims of retaliation for requesting a reasonable
accommodation and for filing prior EEO complaints regarding disability discrimination
and retaliation. ID at 13-16; IAF, Tab 9 at 62. In our recent decision, Pridgen v. Office
of Management and Budget, 2022 MSPB 31, ¶¶ 44-47, we held that such claims are
analyzed under the “but for” causation standard, i.e., if the agency would not have taken
the same action in the absence of the protected activity. Here, even if we applied the
“but for” causation standard to the appellant’s retaliation claims, he would not be able
to meet it because the administrative judge found that he failed to meet the lower
motivating factor standard. ID at 15-16.
5
administrative judge approved him as a witness and granted the agency’s motion
to issue him a subpoena to testify at the hearing, IAF, Tab 20, Tab 23 at 4,
Tab 32. 4 However, Dr. T.A. did not appear at the hearing. IAF, Tab 39,
Hearing Recording (HR). The administrative judge discussed Dr. T.A.’s report in
the initial decision. ID at 4.
In his petition for review, the appellant challenges the agency’s purported
inability to locate Dr. T.A. and the administrative judge’s reliance on Dr. T.A.’s
report. PFR File, Tab 1 at 4, 7. We discern no reason to disturb the initial
decision based on such alleged errors. The Board’s regulations establish
procedures for enforcing a subpoena and for postponing a hearing upon motion by
a party. 5 C.F.R. §§ 1201.51(c), 1201.85(a). Here, the appellant does not allege,
and the record does not suggest, that he availed himself of such procedures that
might have led to Dr. T.A.’s appearance at the hearing. See Porter v. Department
of the Navy, 6 M.S.P.R. 301, 305-06 (1981) (finding that the presiding official
properly proceeded with the hearing in the subpoenaed witness’s absence when
no motion for enforcement was submitted, either orally during the hearing or in
writing prior to the issuance of the initial decision); see also Kinsey v. U.S. Postal
Service, 12 M.S.P.R. 503, 505-06 (1982) (finding that the appellant could not
claim harm on review by the agency’s refusal to provide documents when he
failed to avail himself of the Board’s discovery and subpoena procedures).
Even if the appellant had raised Dr. T.A.’s absence as an issue at the hearing, he
has not explained how Dr. T.A.’s testimony could have changed the outcome of
this appeal. See Thomas v. U. S. Postal Service, 116 M.S.P.R. 453, ¶ 4 (2011)
(explaining that, 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). Further, we find that, pursuant to 5 C.F.R.
4
According to the agency, Dr. T.A. is a former Government contractor and not a
Federal employee. IAF, Tab 20 at 5, Tab 28 at 4.
6
§ 1201.41(b)(3), it was within the administrative judge’s discretion to consider
Dr. T.A.’s report as relevant medical evidence. See Tisdell v. Department of the
Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (observing that an administrative judge
has wide discretion to receive relevant evidence); see also Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 83 (1981) (stating that it is well-settled law
that relevant hearsay evidence is admissible in administrative proceedings).
We affirm the administrative judge’s finding that the agency proved its charge, as
modified to apply the correct standard set forth in Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶¶ 15, 20.
After the administrative judge issued the initial decision, the Board issued
Haas, 2022 MSPB 36, ¶¶ 10-15, which clarified the standard for analyzing an
agency’s charge of inability to perform based on a current medical condition.
Although we agree with the administrative judge’s finding that the agency proved
its charge, we modify the initial decision to apply the correct standard set forth in
Haas. ID at 8-9. We find that remand is unnecessary because the existing record
is fully developed on the relevant issues, and we discern no prejudice to the
appellant’s substantive rights. See, e.g., Haas, 2022 MSPB 36, ¶ 20. Further, we
vacate as unnecessary the administrative judge’s findings that the agency showed
that the appellant had a disabling condition that is disqualifying and that a
recurrence of his back pain cannot be ruled out. ID at 8-9.
The Board held in Haas that, regardless of whether an employee occupies a
position with medical standards, if an agency removes an employee for inability
to perform based on a current medical condition, the agency must prove either a
nexus between the employee’s medical condition and observed deficiencies in his
performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others.
Haas, 2022 MSPB 36, ¶¶ 15 & n.3, 20. In other words, the agency must establish
that the appellant’s medical condition prevents him from being able to safely and
efficiently perform the core duties of his position. Id., ¶ 20. In determining
7
whether the agency has met its burden, the Board will consider whether a
reasonable accommodation, short of reassignment, exists that would enable the
appellant to safely and efficiently perform his core duties. Id., ¶ 25. 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 of 1990 (ADA),
as amended by the ADA Amendments Act of 2008, 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 position
exists.” Id.; 29 C.F.R. § 1630.2(n)(2)(i).
Here, the administrative judge found that the duties of the appellant’s
DUSM position are to apprehend fugitives, execute arrest warrants, transfer
prisoners in hands-on operations, control crowds, and protect the Federal
judiciary. ID at 9. The appellant does not challenge this finding on review,
which is consistent with the relevant position description and the associated
medical standards. IAF, Tab 11 at 52-58, Tab 16 at 6, 44, 70. Accordingly, we
find that the administrative judge properly described the appellant’s core duties as
set forth above.
We further find that the agency proved by preponderant evidence that, at
the time of the appellant’s removal in April 2017, he had a medical condition that
prevented him from being able to safely and efficiently perform the core duties of
his position. The appellant’s position description states that the work “requires
considerable and strenuous physical exertion such as long periods of standing,
walking, and running over rough, rocky, uneven, and hazardous terrain; crawling
in restrictive areas; and climbing fences and walls,” as well as the ability “to
protect themselves or others from physical attacks at any time and without
warning.” IAF, Tab 11 at 57. The appellant’s treating physician indicated in
Physician Evaluation Reports dated August and December 2016 that he was
restricted from heavy lifting and carrying (45 pounds and heavier), reaching
above the shoulder, running, climbing stairs, stooping, crawling, standing or
8
sitting for long periods of time, and aggressive law enforcement activities.
IAF, Tab 10 at 56-59. In a July 2017 letter, the appellant’s treating physician
stated that he “continues to experience pain which is aggravated by even minimal
activity and is only able to do minimal bending, twisting or stooping” and he “is
not able to reach overhead or walk for more than one block without severe
aggravation of his pain.” Id. at 6. The appellant, through his representative,
conceded during his oral reply that he was not medically fit for duty. Id. at 15.
Further, the appellant does not dispute his treating physician’s medical opinions.
Moreover, the record reflects that, despite being informed of the option to request
an accommodation in response to the agency’s determinations in July and
November 2016 that he was not medically qualified for the DUSM position, he
did not do so. IAF, Tab 10 at 49-51, 53-55, 61-64, Tab 11 at 4-6, 14-15;
see Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶¶ 2, 5, 9 (2014)
(finding that the agency proved the charge of physical inability to perform the
duties of the position when, among other things, the appellant did not suggest or
request an accommodation). Based on the foregoing, we agree with the
administrative judge’s conclusion that the agency proved its charge of medical
inability to perform the essential duties of the DUSM position. ID at 8-9.
On review, the appellant claims that he requested a reasonable
accommodation to perform a lifting procedure during a training exercise.
PFR File, Tab 1 at 6; IAF, Tab 21 at 10-11. However, given the undisputed
severity of the appellant’s medical restrictions at the time of his removal, we are
not persuaded that he would have been able to perform safely a lifting procedure
with a reasonable accommodation. The appellant further claims that he did not
believe he was entitled to a reasonable accommodation based on a
December 2015 email in which the Affirmative Employment Programs Chief
advised him that his position does not allow for reasonable accommodations.
PFR File, Tab 1 at 6; IAF, Tab 21 at 9. However, we find that his alleged belief
was unreasonable because the agency clearly informed him of the option to
9
request an accommodation in July and November 2016. IAF, Tab 10 at 49-51,
61-64. Based on the foregoing, we find that the appellant’s arguments regarding
the following issues are immaterial to whether the agency proved its charge:
the probative weight of the agency’s medical opinions; the credibility of the
agency’s witnesses; the administrative judge’s reliance on “stale information”;
her consideration of the length of time he was out of work; and her finding that
the recurrence of his back pain cannot be ruled out. PFR File, Tab 1 at 4-7;
ID at 8-9. To the extent such arguments relate to his claim that he has fully
recovered from his medical condition, we will address them as part of our penalty
analysis below.
We affirm the administrative judge’s finding that the appellant failed to prove his
disability discrimination claims, as modified to find that he is not a qualified
individual with a disability.
The appellant reasserts on review his disability discrimination claims under
the theories of failure to accommodate and disparate treatment. PFR File, Tab 1
at 4-7. For the following reasons, we affirm the administrative judge’s finding
that the appellant failed to prove such claims, as modified to find that he is not a
qualified individual with a disability. ID at 13-16. Further, we vacate as
unnecessary the administrative judge’s findings that the appellant proved that he
is an individual with a disability, proved that the agency took its action as a result
of a disabling back condition, did not assert there was a reasonable
accommodation under which he believes he could perform the essential functions
of his position or of a vacant position, and did not meet his burden of showing
that disability discrimination was a motivating factor in his removal. 5
ID at 14-16.
5
Because we vacate such findings, we decline to address the appellant’s argument that
the administrative judge improperly determined that he is incapacitated from lifting
more than 10 pounds and maintaining sufficient strength to subdue an attacker, control
violent or unruly crowds, and respond to an emergency. PFR File, Tab 1 at 6; ID at 15.
Similarly, we find that the appellant’s assertions on review about the agency’s treatment
of a purported similarly situated employee are immaterial to the outcome of his
discrimination claims. PFR File, Tab 1 at 6-7; ID at 15-16.
10
Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas, 2022 MSPB 36,
¶ 28; see 42 U.S.C. § 12112(a), (b)(5)(A). The term “qualified individual” means
“an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8); see Haas, 2022 MSPB 36, ¶ 28.
Here, the record is devoid of evidence to establish that the appellant could
have performed the essential functions of his position, with or without reasonable
accommodation. As discussed above, the appellant had severe medical
restrictions in place at the time of his removal, the agency proved its charge of
medical inability to perform the essential duties of his DUSM position, we are not
persuaded that he would have been able to perform a lifting procedure with a
reasonable accommodation, and he did not request an accommodation after the
agency informed him of the option in July and November 2016. See Paris v.
Department of the Treasury, 104 M.S.P.R. 331, ¶ 24 (2006) (observing that an
appellant cannot prevail on a disability discrimination claim merely by
articulating a reasonable accommodation). Further, the appellant has not
identified an alternative position that he desires. 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, as relevant here, he did
not identify any vacant, funded position to which the agency might have assigned
him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Instead, the appellant ignored the
agency-provided option of requesting a reassignment to a vacant administrative
position. IAF, Tab 10 at 50, 63. Therefore, we find that the appellant has failed
to prove that he is a qualified individual with a disability. Accordingly, he cannot
prevail on his claims of disability discrimination based on the agency’s alleged
11
failure to reasonably accommodate him or based on alleged disparate treatment. 6
See Haas, 2022 MSPB 36, ¶¶ 29-30.
We affirm the administrative judge’s finding that the appellant’s removal
promotes the efficiency of the service, and we modify the initial decision to find
that the penalty of removal is within the tolerable limits of reasonableness.
As properly explained in the initial decision, removal for medical inability
to perform essential position functions generally promotes the efficiency of the
service. ID at 10; see Brown v. Department of the Interior, 121 M.S.P.R. 205,
¶ 17 (2014), overruled on other grounds by Haas, 2022 MSPB 36, ¶ 14.
A removal for medical inability to perform will be reversed on the basis that such
action does not promote the efficiency of the service if, during the pendency of
the Board appeal, the appellant presents new medical evidence that clearly and
unambiguously shows he has recovered such that he is able to perform the
essential duties of his position. ID at 10; see Sanders v. Department of Homeland
Security, 122 M.S.P.R. 144, ¶ 9, aff’d, 625 F. App’x 549 (Fed. Cir. 2015),
overruled on other grounds by Haas, 2022 MSPB 36, ¶ 14; see also Owens v.
Department of Homeland Security, 2023 MSPB 7, ¶ 15 (observing that the Board
has held that, when an appellant recovers from the medical condition that resulted
in his removal before the administrative judge has issued an initial decision in his
removal appeal, the removal action does not promote the efficiency of the
service).
Here, in finding that the appellant’s removal promotes the efficiency of the
service, the administrative judge addressed his argument that he has recovered
entirely after his fifth back surgery in September 2017. ID at 7, 10-12. In
particular, she considered the testimony of the appellant’s treating physician that
he examined the appellant in August 2018, he determined that the appellant is
6
Based on the foregoing, the appellant’s assertion on review that the administrative
judge inaccurately described who approved an ergonomic chair and raised his desk is
immaterial to the outcome of this appeal. PFR File, Tab 1 at 4; ID at 2. Moreover, we
discern no error in the administrative judge’s characterization of the appellant’s training
drill. PFR File, Tab 1 at 6; ID at 3.
12
able to return to work with no restrictions and to perform the full duties of a
DUSM, and the appellant’s likelihood of further back injury is no higher than
anyone else’s. ID at 10; HR (testimony of the appellant’s treating physician).
However, she found that the treating physician’s testimony does not clearly and
unambiguously demonstrate that the appellant has recovered sufficiently to
perform the essential duties of his position. ID at 10-11. In so finding, she
considered the following: the treating physician’s history of unsuccessfully
returning the appellant to work and inaccurately predicting when he could return
to work; the absence of testing results or a medical report providing the basis for
the treating physician’s August 2018 opinion; the testimony of Dr. T.S.,
an agency Reviewing Medical Officer, that back surgeries cause scarring and
changes to normal anatomy and physiology of the body’s core; the appellant’s
October 27, 2017 sworn affidavit and his August 1, 2017 application for disability
retirement; the appellant’s September 26, 2018 prehearing submission in which he
asserted that he continues to suffer “sporadic” pain; and the testimony of
Dr. F.G., an agency Reviewing Medical Officer, regarding the appellant’s use of
narcotic pain medication. ID at 2-6, 8-9, 11-12; HR (testimonies of Dr. T.S. and
Dr. F.G.); IAF, Tab 9 at 60-72, Tab 10 at 45-48, Tab 18 at 4-5, Tab 21 at 5.
On review, the appellant reasserts his claim that he has fully recovered, and
he challenges the administrative judge’s weighing of the medical evidence, her
credibility findings, her failure to ask him questions at the hearing about his
current symptoms and use of narcotics for pain management, and her
consideration of his affidavit and application for disability retirement. PFR File,
Tab 1 at 4-5, 7. For the following reasons, we discern no reason to disturb the
initial decision based on the appellant’s arguments on review. The appellant’s
conclusory allegations of the agency’s discrimination and inability to locate
Dr. T.A. are insufficient to question the credibility of the agency’s witnesses as a
whole. Id. at 7. Further, we discern no abuse of discretion in the administrative
judge’s failure to ask the appellant questions during the hearing. See Thomas v.
13
U.S. Postal Service, 116 M.S.P.R. 453, ¶ 4 (2011) (stating that an administrative
judge has broad discretion to regulate the course of the hearing). Even if the
administrative judge improperly considered the appellant’s sworn affidavit and
disability retirement application, he has not explained how his substantive rights
have been harmed. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
In assessing the probative weight of a medical opinion, 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 treatment. Wren v.
Department of the Army, 121 M.S.P.R. 28, ¶ 9 (2014). Here, we find that the
administrative judge properly relied on the testimonies of Drs. T.S. and F.G.
based on the reasoned explanations for their opinions. We further find that the
administrative judge properly deemed the treating physician’s testimony as not
probative because he did not address the potential for musculoskeletal impairment
as a result of five surgeries. ID at 11. Moreover, it is undisputed that the medical
reports (including the treating physician’s reports) from March 2016 through July
2017 consistently expressed the opinion that the appellant was unable to perform
to perform his duties during that time period. ID at 3-6; IAF, Tab 10 at 6, 45-48,
56-59, 65-67, Tab 11 at 17-21. 7 Accordingly, we affirm the administrative
judge’s finding that the testimony of the appellant’s treating physician does not
clearly and unambiguously demonstrate that the appellant has recovered
sufficiently to perform the essential duties of his position. See Wren,
121 M.S.P.R. 28, ¶¶ 9-11 (finding that the conclusory opinion expressed in a new
medical report did not outweigh the consistent medical reports over more than a
7
Although the appellant disputes the probative value of the agency-provided medical
opinions, we find that they are probative based on the reasoned explanations for their
findings. PFR File, Tab 1 at 4.
14
2-year period that the appellant was unable to engage in the work-related travel
necessary to his position). Therefore, we discern no basis to disturb the
administrative judge’s well-reasoned determination that the appellant’s removal
promotes the efficiency of the service. ID at 12.
In addition, the administrative judge correctly explained in the initial
decision that a removal for medical inability to perform is considered a
nondisciplinary action and that the appropriate standard in assessing the penalty
in such cases is whether the penalty of removal exceeded the tolerable limits of
reasonableness. 8 ID at 10; see Brown, 121 M.S.P.R. 205, ¶ 18. She properly
considered the agency’s evidence that it notified the appellant that he had the
option of a reassignment to a non-law-enforcement position, and his testimony
that he did not pursue that option. ID at 12; HR (testimony of the appellant);
IAF, Tab 10 at 49-51; see Brown, 121 M.S.P.R. 205, ¶ 19 (considering, in
assessing the reasonableness of the penalty, whether the agency had any vacant
positions within his restrictions to which he could be assigned). Although the
appellant disputes the agency’s evidence that he was offered a reassignment, he
does not dispute that he received the agency’s fitness-for-duty determinations in
8
The “consistency of the penalty with those imposed upon other employees for the
same or similar offenses” is one of 12 factors that the Board generally considers as
relevant in assessing the reasonableness of the penalty. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). However, none of the Douglas factors
are relevant in a case when the agency’s action is based on medical inability to perform
because such a case does not involve an appellant’s alleged misconduct. Brown,
121 M.S.P.R. 205, ¶ 18. Thus, to the extent the appellant is raising a disparate penalties
claim, we need not consider it. PFR File, Tab 1 at 6-7; cf. Munoz v. Department of
Homeland Security, 121 M.S.P.R. 483, ¶¶ 14-16 (2014) (declining to consider the
appellant’s disparate penalties claim when the agency’s indefinite suspension action
was not a sanction or penalty for misconduct but was based on the revocation of the
appellant’s security clearance required for his position). Nevertheless, we find that the
employee identified by the appellant is not a proper comparator for disparate penalties
purposes because the employee is able to perform the duties of a DUSM position with
an accommodation and, as explained above, the appellant cannot. PFR File, Tab 1
at 6-7; ID at 15-16; see Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 13 (holding that,
for purposes of a disparate penalties claim, potential comparators should be limited to
those employees whose misconduct and/or other circumstances closely resemble those
of the appellant).
15
July and November 2016, explaining the option for a reassignment to an
administrative position. PFR File, Tab 1 at 5; IAF, Tab 10 at 49-51. As
explained above, we are not persuaded by the appellant’s argument that he
believed he was not entitled to an accommodation based on a prior email.
Because the administrative judge did not make an explicit finding on the
reasonableness of the penalty, we modify the initial decision to find that the
agency-imposed penalty of removal is within the tolerable limits of
reasonableness. See Brown, 121 M.S.P.R. 205, ¶ 22 (observing that the penalty of
removal may be justified when the appellant falls short of his obligations during
the interactive reasonable accommodation process).
Accordingly, we affirm the agency’s removal action.
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.
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.
16
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.
17
(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
with the EEOC no later than 30 calendar days after your representative receives
this decision.
18
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. 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.
19
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.