Michael Abbott v. Department of Health and Human Services ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL ABBOTT, DOCKET NUMBER
Appellant, AT-0752-15-0427-I-1
v.
DEPARTMENT OF HEALTH AND DATE: May 30, 2024
HUMAN SERVICES,
Agency.
M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.
Alexis Conway Zaloudek, Metairie, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Chairman Harris issues a separate opinion.
Vice Chairman Limon issues a separate opinion.
ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal. The two Board members cannot agree on the
disposition of the petition for review. Therefore, the initial decision now
becomes the final decision of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R.
§ 1200.3(b)). This decision shall not be considered as precedent by the Board in
any other case. 5 C.F.R. § 1200.3(d).
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NOTICE OF APPEAL RIGHTS 1
You may obtain review of the 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 the 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:
1
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.
3
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
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 the final 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
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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:
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
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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. 2 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).
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
2
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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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: /s/
Gina K. Grippando
Clerk of the Board
Washington, D.C.
SEPARATE OPINION OF CATHY A. HARRIS
in
Michael Abbott v. Department of Health and Human Services
MSPB Docket No. AT-0752-15-0427-I-1
The appellant, a GS-12 Auditor, requested that he be transferred due to his
disability. For the reasons set forth below, the agency failed to accommodate his
disability.
An agency is required to make reasonable accommodation to the known
physical and 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. Miller v. Department of the Army,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). In order to establish
disability discrimination based on a failure to accommodate, an employee must
show the following: (1) he is an individual with a disability, as defined by
29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability, as defined
by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Miller, 121 M.S.P.R. ¶ 13.
Here, the administrative judge found that the appellant established that he
had two medical conditions, depression and anxiety, which demonstrated that the
appellant was a person with a disability during the time that he requested an
accommodation. Initial Appeal File (IAF), Tab 83, Initial Decision (ID) at 25.
However, the administrative judge determined that the agency did not fail to
accommodate his disability. Id. I disagree.
After the appellant emailed the agency’s Inspector General in April 2014
stating that his work environment was making him physically and mentally ill,
and that he “pray[ed] every day that [he would] be reassigned,” the agency
promptly followed up with instructions for requesting an accommodation. IAF,
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Tab 9 at 81, Tab 11 at 43-45, 84-86. On or about September 15, 2014, the
appellant provided a letter, dated September 12, 2014, from his psychiatrist,
stating that the appellant was experiencing “symptoms” of depression and
anxiety, and that these symptoms were exacerbated by the appellant’s workplace
environment. IAF, Tab 11 at 80. The letter also identified the requested
accommodation (a transfer). Id.In a September 19, 2014 letter, the appellant’s psychiatrist provided the
diagnoses (Major Depressive Disorder and Anxiety Disorder not otherwise
specified). Id. at 81. Although the appellant’s psychiatrist stated that the
appellant was currently able to perform the essential functions of his job, he also
opined that the appellant might not be able to do so if his symptoms worsened,
and he again stated that the working environment was exacerbating the
appellant’s symptoms. Id.Following receipt of the September 19, 2014 letter, the agency opted to
send the letter to the Federal Occupational Health Service (FOH) for review and
assistance in determining whether the appellant needed an accommodation, and if
so, what kind of accommodation. Id. at 70-72. This process was to take several
weeks, and the agency provided the appellant with a temporary accommodation to
telework. Id. at 57-58. Then, just over a month later, on October 24, 2014, the
agency rescinded its temporary accommodation, citing the appellant’s decline in
work product. Id. at 63. At this juncture, the agency did not offer any other
temporary accommodation, such as leave, reassignment, or increased supervision
to assist the appellant with the decline in his work product. Finally, on October
31, 2014, FOH provided a letter finding the medical information insufficient to
support the requested accommodation at that time. Id. at 7-8.
Meanwhile, on October 30, 2014, following the rescission of the
appellant’s temporary accommodation, the agency issued the appellant a 14-day
suspension for two specifications of unprofessional conduct based on two emails
the appellant had sent. IAF, Tab 9 at 14, Tab 10 at 7 n.1. During the meeting
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held to provide the appellant with that proposal, the appellant allegedly engaged
in unprofessional conduct. IAF, Tab 10 at 7 n.1. On December 4, 2014, the
agency proposed to remove the appellant for unprofessional conduct and damage
to Government property. IAF, Tab 1 at 8-15. These charges were in large part
based on the appellant’s alleged misconduct during the October 30, 2014 meeting.
Id. The agency effected his removal on February 21, 2015. IAF, Tab 8 at 52.
The appellant filed a Board appeal in which he claimed, among other
things, that the agency had failed to accommodate him. IAF, Tab 1. Following a
hearing, the administrative judge affirmed the removal action. ID. The appellant
has filed a petition for review arguing, among other things, that the agency
discriminated against him based on his disability and improperly delayed
providing him a reasonable accommodation while his medical assessment was
pending. Petition for Review (PFR) File, Tab 1. The appellant contends that, had
he been accommodated, the events of October 30, 2014 would not have occurred.
Id.It was error for the agency to rescind the appellant’s temporary
accommodation on October 24, 2014, based on the appellant’s alleged decline in
work product and not offer any other temporary accommodation, such as leave,
reassignment, or increased supervision. The agency’s temporary accommodation
was not effective as it became apparent that it was not enabling the appellant to
perform the essential functions of his position. See U.S. Airways v. Barnett,
535 U.S. 391, 400 (2002) (stating that “the word ‘accommodation’. . . conveys
the need for effectiveness”). Thus, at that juncture, the agency should have
considered alternate accommodations. See Lorenzo v. U.S. Postal Service, EEOC
Appeal No. 01973337, 2000 WL 732106, *3 (May 25, 2000) (determining that the
agency should have provided the complainant with an interim accommodation and
that it was not reasonable for the agency to expect the complainant to work
without an accommodation of any type).
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I also agree with appellant that the lengthy amount of time it took for the
agency to obtain a medical review opinion from FOH is not an excuse. It is the
agency’s choice as to whom it selected for its medical review. In any event, when
the temporary accommodation was not effective, the agency should have offered
another if it truly needed the additional time. Doria R. v. National Science
Foundation, EEOC Appeal No. 0120152916, 2017 WL 5564360, * 11 (Nov. 9,
2017) (noting that “an employer should respond expeditiously to a request for
reasonable accommodation” and finding the agency’s delay in granting the
complainant’s request for additional telework days violated the Rehabilitation
Act).
Moreover, FOH’s October 31, 2014 letter contained errors. First, in
response to the question of whether the appellant’s medical condition affected his
ability to perform the essential duties of his position, the FOH Occupational
Medicine Consultant concluded that “[b]ased on a review of the available medical
information and my interaction with the treating healthcare provider, the medical
condition should not affect the appellant’s current ability to perform the essential
functions and/or duties of his job.” IAF, Tab 11 at 7. This did not acknowledge
the fact that the appellant’s psychiatrist had said that the symptoms could worsen
to the point of affecting the appellant’s ability to perform the essential functions
of his job were his environment not to change, as well as the fact that the
appellant’s work deteriorated when he was teleworking. The FOH Occupational
Medicine Consultant further concluded that, because “difficulty interacting with a
co-worker or supervisor(s) is not generally considered a reason for
accommodation under the [American with Disabilities Act Amendments Act], the
medical information is insufficient to support the requested accommodation at
this time.” However, as the appellant points out in his petition for review, the
appellant’s disabilities—depression and anxiety—were the reasons for the need
for the accommodation. PFR File, Tab 1. Under the circumstances, the agency
should have considered other accommodations, such as reassignment. See Bryce
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A. v. Export-Import Bank of the United States, EEOC Appeal No. 2019004342,
2021 WL 4477019, * 13 (Sept. 23, 2021) (finding that the agency should have
conducted additional research to ascertain an effective accommodation for the
complainant instead of simply relying on the FOH doctor’s assessment).
Based on the foregoing, the appellant established that the agency failed to
provide him with a reasonable accommodation. While I do not condone the
appellant’s alleged behavior, the agency must still fulfill its obligations under the
Rehabilitation Act, which has incorporated the standards of the Americans with
Disabilities Act (ADA). 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). There may be certain misconduct which, by its very nature, takes an
employee outside the scope of protecting legislation because the misconduct
prevents the employee from meeting all of their job requirements, therefore
rendering them not “qualified.” However, this is not the case here. Accordingly,
the appellant’s petition for review should be granted and the initial decision
reversed.
/s/
Cathy A. Harris
Chairman
SEPARATE OPINION OF RAYMOND A. LIMON
in
Michael Abbott v. Department of Health and Human Services
MSPB Docket No. AT-0752-15-0427-I-1
For the following reasons, I agree with the administrative judge’s initial
decision sustaining the appellant’s removal and finding that he failed to prove his
affirmative defenses. I would, therefore, deny his petition for review.
The agency removed the appellant from his GS-12 Auditor position with
the agency’s Office of Audit Services, Office of Inspector General, based on
(1) unprofessional conduct (seven specifications), and (2) damage to Government
property. Among other things, the agency alleged that, after an October 30, 2014
meeting at which the agency issued the appellant a proposed 14-day suspension
for unprofessional conduct relating to the first two of the seven specifications, the
appellant returned to his cubicle, repeatedly slammed his Government laptop on
his desk with great force, thereby damaging it, yelled at his first-level supervisor
using vulgar language, including such statements as “YOU BITCH! YOU LIAR!
YOU ARE SUCH A LIAR,” and charged at the supervisor with his fists clenched,
causing her to fear that he was going to attack her before veering around her.
Initial Appeal File (IAF), Tab 8 at 54-64, Tab 10 at 7-11.
On appeal and after a hearing, the administrative judge found that the
agency proved six of the seven specifications of the unprofessional conduct
charge, including the allegations set forth above, as well as the damage to
Government property charge. IAF, Tab 83, Initial Decision (ID) at 5-21. The
administrative judge found that the appellant’s testimony denying the charged
misconduct was inherently improbable and unworthy of belief. ID at 12-21. The
administrative judge also held that the appellant did not prove, among other
things, disability discrimination based on a failure to accommodate his
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disabilities (Major Depressive Disorder and Anxiety Disorder). ID at 22-31. The
administrative judge further found that there was a nexus between the misconduct
and the efficiency of the service and that the penalty of removal was reasonable.
ID at 31-34. On review, the appellant reasserts, among other things, his claim
that the action was based on a failure to accommodate his disability. 1
To the extent that the appellant alleges that the agency should have
provided him with a different supervisor as a form of accommodation, the agency
had no such obligation. Davina W. v. Department of the Treasury, EEOC Appeal
No. 0120160978, 2018 WL 3416030, at *4 (June 29, 2018); Equal Employment
Opportunity Commission (EEOC) Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC Notice No. 915.002 (Oct. 17, 2002) (EEOC Guidance), Response to
Question 33 (“An employer does not have to provide an employee with a new
supervisor as a reasonable accommodation.”), 2 available at
https://www.eeoc.gov/laws/guidance/enforcement-guide-reasonable-
accommodation-and-undue-hardship-under-ada#reassignment; see Lewis v.
Department of the Army, 38 M.S.P.R. 91, 96 (1988) (holding that an agency is not
required to assign a disabled employee to an encumbered position). Although a
reasonable accommodation may include reassignment to a vacant, funded
position, e.g., Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 28-29, the
appellant has not identified such a position, e.g., Petition for Review File, Tab 7;
see Desjardin, 2023 MSPB 6, ¶ 29 n.13 (holding that even an agency’s failure to
conduct a proper search does not relieve the appellant of the burden to establish
1
I would find that the appellant has shown no error by the administrative judge in
sustaining the charges, finding nexus, and finding the penalty of removal reasonable.
2
Although the appellant’s claim of disability discrimination arises under the
Rehabilitation Act, the standards under the Americans with Disabilities Act have been
incorporated by reference into the Rehabilitation Act. See Miller v. Department of the
Army, 121 M.S.P.R. 189, ¶ 13 n.3 (2014).
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the existence of a position to which he could have been reassigned). An agency
does not have to bump an employee from a job to create a vacancy, nor does it
have to create a new position. EEOC Guidance; see Davis v. U.S. Postal Service,
120 M.S.P.R. 122, ¶ 17 (2013), overruled on other grounds by Cronin v. U.S.
Postal Service, 2022 MSPB 13; Larraine S. v. Department of Agriculture, EEOC
Appeal No. 0120180647, 2019 WL 4011692, at *5 (Aug. 15, 2019).
I would further find that the agency did not unreasonably delay in
addressing the appellant’s accommodation request, but instead engaged in the
interactive process in good faith and in a timely fashion. The appellant’s
psychiatrist submitted the requested documentation to support the accommodation
request on September 19, 2014, identifying the appellant’s disability and
indicating that it “does not currently affect his ability to carry out his duties, but
if not improved it may worsen[] in the future.” IAF, Tab 11 at 81; ID at 26. The
psychiatrist also indicated that, if possible, a change in the appellant’s workplace
environment or a transfer would aid his recovery. IAF, Tab 11 at 81. On
September 24, 2014, the agency asked the Federal Occupational Health Service
(FOHS) to review the documentation and assist the agency in determining what
accommodations, if any, might be needed. Id. at 70. On October 6, 2014, the
appellant’s first-level supervisor informed the appellant that, because the
accommodation process may take several weeks, she would grant him a
temporary accommodation of flexiplace, which the appellant accepted. Id. at 57.
On October 8, 2014, the supervisor also provided the appellant with information
regarding taking leave under the Family and Medical Leave Act (FMLA),
assistance that could be provided to him by the Employee Assistance Program,
and an offer for a medical examination at no cost to the appellant. Id. at 60-61.
The appellant declined the medical examination offer, id. at 60, and did not
provide documentation regarding an FMLA leave request until November 3,
2014, by which time he had been placed on administrative leave due to the events
of October 30, 2014, IAF, Tab 9 at 99-105. On October 24, 2014, the appellant’s
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first-level supervisor notified him that flexiplace would no longer be permitted
because of his diminished work product, and asked him if there were any other
accommodations he would like to request. IAF, Tab 11 at 63. In the meantime,
an FOHS Occupational Medicine Consultant had contacted the appellant’s
psychiatrist during the week of October 27, 2014. IAF, Tab 10 at 77. The
appellant engaged in the misconduct underlying part of the reason for his removal
on October 30, 2014. One day later, the FOHS Occupational Medicine
Consultant determined that, based on the available medical information and his
discussion with the appellant’s psychiatrist, “the medical condition should not
affect the employee’s current ability to perform the essential functions and/or
duties of his job.” Id. He further determined, consistent with the prior written
assessment of the psychiatrist, that a “prognosis for future impact on job
performance cannot be determined at this time.” Id. Under these circumstances,
I would find that the agency acted appropriately and there was no improper denial
of accommodation.
The EEOC’s regulations provide that agencies must adopt and implement a
plan addressing reasonable accommodations and explaining that, “when all the
facts and circumstances known to the agency make it reasonably likely that an
individual will be entitled to a reasonable accommodation,” but the
accommodation cannot be provided immediately, the agency shall provide an
interim accommodation that allows the individual to perform some or all of the
essential functions of his or her job, if it is possible to do so without imposing an
undue hardship on the agency. 29 C.F.R. § 1614.203(d)(3)(i)(Q). Here, I would
find that the agency was not obligated to offer an interim accommodation. As set
forth above, the appellant’s psychiatrist indicated in writing and in discussions
with the FOHS Occupational Medicine Consultant that the appellant could
perform the essential functions of his position without an accommodation.
Therefore, all of the facts and circumstances known to the agency at the time did
5
not make it reasonably likely that the appellant would be entitled to a reasonable
accommodation, and no interim accommodation was required.
For all of the above reasons, I would deny the appellant’s petition for
review and affirm the initial decision.
/s/
Raymond A. Limon
Vice Chairman