Danny Wood v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY WOOD, DOCKET NUMBER
Appellant, CB-7121-18-0001-V-1
v.
DEPARTMENT OF HOMELAND DATE: December 7, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sherry J. Downer , Tucson, Arizona, for the appellant.
Lauren J. Johnson , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a request for review of an arbitration decision,
which affirmed his removal for absence without leave and failure to follow a
leave restriction letter. For the reasons that follow, we DENY the appellant’s
request for review and AFFIRM the arbitrator’s decision, except as MODIFIED
by this order to find that the agency proved the charges and the reasonableness of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 penalty and that the appellant failed to prove his affirmative defense of
status-based disability discrimination.
BACKGROUND
¶2 By letter dated March 21, 2016, the agency proposed to remove the
appellant from his GS-9 Mission Support Specialist position for nine
specifications of being absent without leave (AWOL) and six specifications of
failure to follow a leave restriction letter. Request for Review (RFR) File, Tab 1
at 720-24. In a decision letter dated June 1, 2016, the deciding official found that
the appellant’s removal was warranted but offered him a last chance agreement
(LCA), which would have held his removal in abeyance for 3 years and allowed
him to serve a 21-day suspension in lieu of removal. Id. at 725-28, 737-40. A
union attorney sought to negotiate the terms of the LCA on the appellant’s behalf
beginning on June 14, 2016. Id. at 110, 392-93, 741-45, 749-52. The agency
declined to alter the terms of the LCA but extended the deadline for the appellant
to accept the LCA until July 14, 2016. Id. at 729-31, 746-47. The appellant did
not accept the LCA, and the agency effected his removal on or about July 15,
2016. Id. at 367, 369, 598.
¶3 The union grieved the appellant’s removal action and invoked arbitration on
his behalf, arguing as follows: (1) the leave restriction memorandum was
unlawful and resulted in harmful error mandating reversal; and (2) the agency
discriminated against the appellant on the basis of disability by failing to
reasonably accommodate him and by removing him for disability-related
misconduct. Id. at 112-40. After holding a hearing, the arbitrator issued an
arbitration decision denying the appellant’s grievance. Id. at 39-102. The
appellant has requested review of the arbitrator’s decision, and the agency has
responded. RFR File, Tabs 1, 4-5.
3
ANALYSIS
¶4 The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
§ 7121(d) when the following criteria are met: (1) the subject matter of the
grievance is one over which the Board has jurisdiction; (2) the appellant either
raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action or raises a claim of discrimination in
connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first
time with the Board if such allegations could not be raised in the negotiated
grievance procedure; and (3) a final decision has been issued. Jones v.
Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972(Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c). In the instant case, each of the
necessary conditions has been met, and we therefore find that the Board has
jurisdiction to review the arbitration decision.
¶5 The standard of the Board’s review of an arbitrator’s award is limited; such
awards are entitled to a greater degree of deference than initial decisions issued
by the Board’s administrative judges. Sadiq v. Department of Veterans Affairs,
119 M.S.P.R. 450, ¶ 5 (2013). The Board will modify or set aside such an award
only when the arbitrator has erred as a matter of law in interpreting a civil service
law, rule, or regulation. Id. Even if the Board disagrees with an arbitrator’s
decision, absent legal error, the Board cannot substitute its conclusions for those
of the arbitrator. Id. Thus, the arbitrator’s factual determinations are entitled to
deference unless the arbitrator erred in her legal analysis, for example, by
misallocating the burdens of proof or employing the wrong analytical framework.
Id. Nevertheless, the Board can defer to the arbitrator’s findings and conclusions
only if the arbitrator makes specific findings on the issues in question. Id.Further, the Board may make its own findings when the arbitrator failed to cite
any legal standard or employ any analytical framework for her evaluation of the
evidence. Id.4
The arbitrator did not make specific findings regarding whether the agency
proved the charges, and we modify the arbitration award to find that the agency
did so.
¶6 As noted above, the agency charged the appellant with AWOL and failure to
follow a leave restriction letter. RFR File, Tab 1 at 720-22. The arbitrator found
that these charges must be reviewed together because they arose from the same
misconduct. Id. at 90-91. However, she did not determine how the charges
should be merged, and we therefore make our own findings on this issue. See
Sadiq, 119 M.S.P.R. 450, ¶ 5.
¶7 The Board will “merge” charges if they are based on the same conduct and
proof of one charge automatically constitutes proof of the other charge. Powell v.
U.S. Postal Service, 122 M.S.P.R. 60, ¶ 10 (2014). Here, the agency charged the
appellant with AWOL on December 22, 2015, and January 8, 13-14, 20, and 28,
2016, because he failed to provide medical documentation regarding his absences
on those dates pursuant to the leave restriction letter. RFR File, Tab 1 at 680,
688, 694, 700, 705, 709, Tab 4 at 28, 38-39. The agency also charged him with
failure to follow the leave restriction letter on those same six occasions. RFR
File, Tab 1 at 721-22. Therefore, we find that it is appropriate to merge the six
specifications of failure to follow the leave restriction letter into the AWOL
charge. See McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014)
(finding that the administrative judge properly merged into the AWOL charge
specific instances of failure to follow leave restriction letter procedures that were
also listed under the AWOL charge); Westmoreland v. Department of Veterans
Affairs, 83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow
leave-requesting procedures into the charge of AWOL when the charge of AWOL
was based solely on the appellant’s failure to follow the leave requesting
procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds
as recognized in Pickett v. Department of Agriculture , 116 M.S.P.R. 439, ¶ 11
(2011). Because the failure to follow the leave restriction letter charge merges
5
into the AWOL charge, proof of the AWOL charge will constitute proof of the
failure to follow the leave restriction letter charge. See Powell, 122 M.S.P.R. 60,
¶ 10.
¶8 To prove a charge of AWOL, an agency must show by preponderant
evidence that the employee was absent without authorization and, if the employee
requested leave, that the request was properly denied. 2 Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 28 (2015), overruled on other grounds by Pridgen
v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Here, although
the arbitrator found that the agency removed the appellant for “just and sufficient
cause,” she did not cite any legal standard, employ any analytical framework for
her evaluation of the evidence, or consider whether the agency proved either
charge. 3 RFR File, Tab 1 at 90-102. Therefore, the Board herein makes its own
findings as to whether the agency proved the charges. See Sadiq, 119 M.S.P.R.
450, ¶ 5.
¶9 In support of the AWOL charge, the agency alleged the following: on
December 22, 2015, the appellant failed to report for duty and did not contact his
supervisor until 3.5 hours after the beginning of his scheduled shift, resulting in
3.5 hours of AWOL; on January 8, 13-14, 20, 28, and February 1 and 2, 2016, he
failed to report for duty as scheduled without authorization and, as a result, was
charged 8 hours of AWOL for each day; and, on February 18, 2016, he failed to
report for duty at his scheduled time and, after the agency denied his request for
annual leave because he needed more sleep, reported for duty approximately
1 hour after his scheduled start time, resulting in 1 hour of AWOL. RFR File,
2
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
In the background section of the arbitrator’s decision, the arbitrator set forth the
parties’ arguments, which included citation to legal standards and argument regarding
whether the agency proved the charges. RFR File, Tab 1 at 56-90. However, her own
analysis is devoid of any reference to the applicable legal standards and does not
address whether the agency proved the charges. Id. at 90-98.
6
Tab 1 at 720-21. The agency conceded, and the record reflects, that the
specification alleging that the appellant was AWOL on February 2, 2016, was in
error. RFR File, Tab 1 at 360-61, 715, Tab 4 at 39. Therefore, we do not sustain
that specification. It is undisputed, however, that the appellant was absent on the
other dates and for the other hours for which he was charged AWOL and that the
agency did not authorize those absences. RFR File, Tab 1 at 686, 692, 698, 703,
708, 715, 719. Thus, we next determine whether the appellant requested leave for
those absences and, if so, whether the agency properly denied his requests. See
Savage, 122 M.S.P.R. 612, ¶ 28.
¶10 The appellant requested sick leave or “emergency annual leave” due to a
“flare up (disability related)” or illness after his December 22, 2015, January 8,
13-14, 20, 28, and February 1, 2016 absences and requested 1 hour of annual
leave on February 18, 2016. RFR File, Tab 1 at 681, 685, 688, 690, 694 -95, 701,
705-06, 710, 717, Tab 4 at 158. According to the agency, it properly denied the
appellant’s requests for leave on these dates because he failed to comply with an
August 6, 2015 leave restriction letter, which required him to request
nonemergency leave 3 workdays in advance and to provide, within 3 days of
returning from a medical-related absence, a medical certification containing the
date he was seen by a healthcare provider, the dates and the reason he was
incapacitated for work, and the provider’s name, telephone number, signature,
and date. RFR File, Tab 1 at 678-79, Tab 4 at 28, 38 -39. The agency argued that
the appellant did not submit any medical documentation regarding his absences on
January 8, 14, 20, 28, or February 1, 2016, and that, although he submitted notes
regarding his December 22, 2015 and January 13, 2016 absences, they were
insufficient because they did not give any reason for excusal or state that he was
incapacitated for work. 4 RFR File, Tab 4 at 38-39. The agency further argued
4
Regarding his December 22, 2015 absence, the appellant submitted a note from the
Yuma Vet Center stating that he “was present at the Yuma Vet Center on Tuesday,
December 22, 2015, to initiate services with this agency.” RFR File, Tab 1 at 683.
Regarding his January 13, 2016 absence, he submitted a note stating that he checked in
7
that it properly denied the appellant’s request for 1 hour of annual leave on
February 18, 2016, which he made 5 minutes before the start of his shift, because
he did not make the request 3 days in advance, as required by the leave restriction
letter, or submit medical documentation of incapacitation. Id. at 40.
¶11 The appellant did not dispute the agency’s contention that he failed to
timely request leave or submit medical documentation in accordance with the
leave restriction letter but argued that the charges could not be sustained because
the leave restriction letter was unlawful. Id. at 112-19. Specifically, he alleged
that the requirement in the leave restriction letter that he submit an application for
leave accompanied by an acceptable medical certification within 3 days following
his return to work from an absence for medical reasons violated an Office of
Personnel Management (OPM) regulation, 5 C.F.R. § 630.405(b), which allows an
employee between 15 and 30 days to provide medical documentation regarding an
absence. RFR File, Tab 1 at 112-14. He argued that the agency’s failure to
comply with the time provisions of section 630.405(b) constituted harmful error
under 5 U.S.C. § 7701(c)(2)(A) and warranted reversal of his removal. Id.
at 115-19.
¶12 The arbitrator found that, although the appellant was on notice of the
requirements of the leave restriction letter, he failed to submit adequate medical
documentation in connection with any of his absences at any time within 30 days
from the date of his absence. Id. at 94-98. She considered the appellant’s
contention that the leave restriction letter violated OPM’s regulation and found
that, although the 3-day requirement in the leave restriction letter was
inconsistent with the regulation, the inconsistency was not harmful error or
prejudicial to the appellant because the record did not show that he would have
provided sufficient medical documentation, even if he had been given 30 days to
for a 10 a.m. appointment using the automated check-in system at the Yuma Community
Based Outpatient Clinic. Id. at 697.
8
do so. 5 Id. Although the appellant disagrees with these findings on review, id.
at 11-20, he has not shown that the arbitrator erred as a matter of law in
interpreting civil service law, rule, or regulation. Therefore, we defer to her
conclusions. Sadiq, 119 M.S.P.R. 450, ¶ 5.
¶13 It is unclear from the record whether the appellant had accrued sick or
annual leave balances at the time of the AWOL charges at issue in this appeal
between December 2015 and February 2016. RFR File, Tab 1 at 678 (reflecting
that, as of August 6, 2015, the appellant had a balance of 12.2 hours of annual
leave and 13.3 hours of sick leave). The Board has found, however, that whether
an employee has an accrued annual leave balance is irrelevant to the question of
whether the agency abused its discretion in denying his request for leave. Roby v.
Department of Justice, 59 M.S.P.R. 426, 429 (1993). An employee must request
approval to take annual leave in accordance with agency policies; he cannot
simply demand it. Id. Because we defer to the arbitrator’s finding that the
appellant did not comply with the leave restriction letter in connection with his
absences on December 22, 2015, January 8, 13-14, 20, 28, and February 1 and 18,
2016, we find that the agency properly denied his requests for annual leave and
“emergency annual leave” on those dates.
¶14 As noted above, in addition to requesting “emergency annual leave” for his
absences on December 22, 2015, January 8, 13 -14, 20, 28, and February 1, 2016,
5
As the agency points out on review, the alleged impropriety of the leave restriction
letter does not come within the harmful error rule because it does not concern the
procedures that the agency applied in arriving at its decision to remove him. RFR File,
Tab 4 at 10-11; see 5 U.S.C. § 7701(c)(2)(A) (providing that an agency action may not
be sustained if an appellant “shows harmful error in the application of the agency’s
procedures in arriving at such decision”); Boatman v. Department of Justice,
66 M.S.P.R. 58, 63 (1994). Rather, the alleged impropriety of the leave restriction
letter, which concerns the circumstances under which the charged misconduct occurred,
is relevant to the merits of the action or to the reasonableness of the penalty imposed.
See Boatman, 66 M.S.P.R. at 63. It appears that the arbitrator properly considered the
appellant’s challenge to the propriety of the leave restriction letter as it related to the
charges and not whether it constituted harmful error under 5 U.S.C. § 7701(c)(2)(A).
RFR File, Tab 1 at 93-99.
9
the appellant also requested sick leave or informed the agency that his absence
was due to illness or a disability-related “flare up.” RFR File, Tab 1 at 681, 688,
690, 694-95, 701, 705-06, 710, Tab 4 at 158. Pursuant to OPM’s regulations,
“[a]n agency may grant sick leave only when the need for sick leave is supported
by administratively acceptable evidence.” 5 C.F.R. § 630.405(a). While an
employee’s self-certification of the reasons for his absence may be
administratively acceptable in some circumstances, “[a]n agency may also require
a medical certificate or other administratively acceptable evidence as to the
reason for an absence for any of the purposes described in § 630.401(a) for an
absence in excess of 3 workdays, or for a lesser period where the agency
determines that it is necessary.” Id. Section 631.401(a) provides, among other
things, that an agency must grant sick leave to an employee when he receives
medical treatment or is incapacitated for the performance of his duties by physical
or mental illness. Generally, an employee must “provide administratively
acceptable evidence or medical certification for a request for sick leave no later
than 15 calendar days after the date the agency requests such medical
certification” but may have up to 30 days if 15 days is not “practicable under the
particular circumstances.” 5 C.F.R. § 630.405(b). The regulations further
provide that an employee who fails to submit the “required evidence or medical
certification within the specified time period is not entitled to sick leave.” Id.¶15 Here, the agency was well within its right to require medical documentation
from the appellant and, with the exception of the 3-day requirement discussed
above, the requirements set forth in the leave restriction letter were reasonable
and consistent with the regulations. RFR File, Tab 1 at 678-79; see 5 C.F.R.
§§ 630.401, 630.405(a). Although the 3-day requirement was inconsistent with
the regulations, the agency did not deny any request for leave because of the
appellant’s failure to submit medical documentation within that timeframe.
Rather, the agency memoranda documenting these absences each state that,
pursuant to the leave restriction letter, the appellant would be charged AWOL
10
“until such time that he provides medical documentation of his illness,” or words
to that effect. RFR File, Tab 1 at 680, 688, 694, 700, 705, 709. As the arbitrator
found, the appellant did not submit adequate medical documentation within
30 days of any absence, id. at 98, and the March 21, 2016 proposed removal
indicates that “to date” the appellant still had not submitted adequate medical
documentation of his absences, id. at 722-23. Because the appellant failed to
comply with the valid provisions of the leave restriction letter by submitting
acceptable medical documentation within 30 days of his absence or at any time
prior to his proposed removal, we find that the agency properly denied his
requests for sick leave on December 22, 2015, January 8, 13-14, 20, 28, and
February 1, 2016.
¶16 In light of the foregoing, we find that the agency proved that the appellant
was AWOL on December 22, 2015, and on January 8, 13 -14, 20, 28, February 1
and 18, 2016, and we therefore sustain the charge of AWOL. The failure to
follow the leave restriction letter charge is likewise proven and sustained by
virtue of its merger into the AWOL charge. See Powell, 122 M.S.P.R. 60, ¶ 10.
The arbitrator correctly found that the agency established nexus between the
charges and the efficiency of the service.
¶17 In addition to the requirement that the agency prove its charge against the
appellant, the agency also must prove that there is a nexus, i.e., a clear and direct
relationship between the articulated grounds for the adverse action and either the
appellant’s ability to accomplish his duties satisfactorily or some other legitimate
Government interest. Powell, 122 M.S.P.R. 60, ¶ 11. The arbitrator appeared to
find that the agency established nexus, stating that the agency removed the
appellant for reasons that promoted the efficiency of the service and explaining
that the appellant’s AWOL required the agency to use staff for “welfare checks”
on him and to cover his important work. RFR File, Tab 1 at 98-99. Id. We
discern no legal error in the arbitrator’s finding, which the appellant has not
challenged on review, and we therefore defer to it. See Adams v. Department of
11
Labor, 112 M.S.P.R. 288, ¶ 8 (2009) (holding that any sustained charge of AWOL
is inherently connected to the efficiency of the service as an essential element of
employment is to be on the job when one is expected to be there).
The arbitrator correctly found that the appellant did not prove his affirmative
defense of disability discrimination based on failure to accommodate.
¶18 The Rehabilitation Act requires an agency to make a 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.
Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 17 (2014). While an
individual with a disability may request a modification to the work environment
or adjustments in how and when a job is performed due to a medical condition,
this request does not necessarily mean that the employer is required to provide the
requested modification or adjustment. White v. Department of Veterans Affairs,
120 M.S.P.R. 405, ¶ 12 (2013). A request for reasonable accommodation is the
first step in an informal, interactive process between the individual and the
employer. Id. The employer may ask the individual relevant questions that will
enable it to make an informed decision about the request. Id. When the existence
or nature of a reasonable accommodation is not obvious, and the employee fails to
respond to the employer’s reasonable request for medical information or
documentation, an agency will not be found to have violated its duty to provide a
reasonable accommodation. Id.¶19 Here, the arbitrator found that, by virtue of his diagnosis of post-traumatic
stress disorder (PTSD), the appellant was an individual with a disability. RFR
File, Tab 1 at 99-100. She did not address whether the appellant was a qualified
individual, but concluded that the agency did not fail to reasonably accommodate
him because he did not fulfill his obligation to engage in the interactive process.
Id. at 100-02. In so finding, she determined that the agency’s requests for
information regarding the appellant’s disability and the accommodation he
12
required were reasonable and lawful and that the appellant failed to sufficiently
participate in the interactive process prior to his removal. Id. at 101-02.
¶20 The appellant challenges this finding on review, arguing that the agency
was aware that his absences were related to his disability and had medical
documentation regarding his disability as of November 16, 2015. Id. at 26-27.
He argues that his need for an accommodation—such as a liberal leave policy,
telework or reassignment—was obvious and medical documentation was therefore
not necessary. Id. at 31-36. He further argues that the arbitrator ignored the
agency’s failure to engage in the interactive process after he requested an
accommodation in September 2015 and failed to address the agency’s obligation
to provide temporary accommodations and prospective accommodations. 6 Id.
at 29-32.
¶21 Although the appellant disagrees with the arbitrator’s factual findings and
takes issue with her failure to expressly consider his right to temporary and
prospective accommodations, he has not shown any legal error in her analysis.
Therefore, we defer to her conclusion that the appellant failed to prove that the
agency violated the Rehabilitation Act by failing to reasonably accommodate him.
See Sadiq, 119 M.S.P.R. 450, ¶ 5; Young v. Department of Justice, 93 M.S.P.R.
326, ¶ 7 (2003) (holding that an arbitrator’s finding that an appellant did not
prove her discrimination claims is a factual determination entitled to deference,
unless the arbitrator erred in his legal analysis).
The arbitrator did not address the appellant’s affirmative defense of status - based
disability discrimination, and we modify the arbitration award to find that the
appellant failed to prove this claim.
¶22 The appellant argued before the arbitrator that his removal was
“unquestionably based on his disability-related absences” and that, because his
6
The appellant also appears to argue that the agency discriminated against him when it
offered him an LCA in which he had to “forfeit his right to seek future accommodations
in order to keep his job.” RFR File, Tab 1 at 36-38. However, the LCA in the record
contains no such provision. Id. at 737-40.
13
removal was premised on disability-related conduct, it constituted a per se
violation of the Rehabilitation Act. RFR File, Tab 1 at 137-40. In his request for
review, he argues that the arbitrator failed to consider this affirmative defense and
reiterates his contention that the agency discriminated against him on the basis of
his disability by removing him for his disability-related absences. 7 Id. at 21-24.
Although the arbitrator observed that the appellant raised this claim, she did not
address it in her analysis. Id. at 86-89, 90-102. Therefore, we have no basis upon
which to defer to the arbitrator on this affirmative defense and make our own
findings. See Sadiq, 119 M.S.P.R. 450, ¶ 5.
¶23 To establish an affirmative defense of status-based disability discrimination,
an appellant must show by preponderant evidence that his disability was a
motivating factor in the contested personnel action, even if it was not the only
reason. Pridgen, 2022 MSPB 31, ¶¶ 37, 40; 5 C.F.R. § 1201.56(b)(2)(i)(C).
Here, the only argument in support of this affirmative defense advanced by the
appellant is that his removal was based on his disability-related absences. RFR
File, Tab 1 at 21-24. Contrary to his characterization of the reasons for his
removal, however, the agency did not remove him for excessive absences; rather,
it removed him for eight instances of AWOL within 2 months and failure to
follow the leave restriction letter. Id. at 21-24, 137-40, 720-22. The appellant
has not alleged that his disability prevented him from complying with the leave
restriction letter, which resulted in his absences being designated as AWOL, and
therefore has not shown that his removal was based on his disability rather than
on the charged misconduct. See Adams, 112 M.S.P.R. 288, ¶ 18 (finding that the
7
In support of his contention that his removal based on disability-related absences
constitutes a per se violation of the Rehabilitation Act, the appellant cites cases from
the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). RFR File, Tab 1
at 22-24. While decisions of the U.S. Court of Appeals for the Federal Circuit are
controlling authority for the Board, other circuit courts’ decisions are considered
persuasive, but not controlling, authority. See Morris v. Department of the Navy,
123 M.S.P.R. 662, ¶ 15 n.12 (2016). The appellant has not explained why the Board
should follow Ninth Circuit precedent here, rather than the Board’s case law, and we
find no basis to do so.
14
appellant failed to show that he was removed on the basis of his drug addiction
rather than the charged misconduct because, among other things, he did not show
that his drug addiction precluded him from complying with his leave restriction).
¶24 We acknowledge that many of the appellant’s unscheduled absences were
likely occasioned by his PTSD and that his removal was therefore at least
indirectly related to his disability. Nonetheless, the Rehabilitation Act does not
immunize an employee with a disability from being disciplined for misconduct in
the workplace, provided that the agency would impose the same discipline on an
employee without a disability. Laniewicz v. Department of Veterans Affairs ,
83 M.S.P.R. 477, ¶ 5 (1999). Here, the appellant has not alleged, or presented
any evidence to suggest, that the agency tolerated the sort of misconduct that he
committed from employees who did not have a disability. Therefore, even if his
misconduct was related to his disability, he has not shown that it was a motivating
factor in the agency’s decision to remove him. 8
¶25 In light of the foregoing, we find that the appellant failed to prove his
status-based disability discrimination affirmative defense.
The arbitrator failed to make specific findings regarding the reasonableness of the
penalty, and we modify the arbitration decision to find that the penalty of removal
is within the tolerable limits of reasonableness for the sustained charges.
¶26 The deference that is due to an arbitrator’s findings extends to findings
related to penalty determinations. Pinegar v. Federal Election Commission,
105 M.S.P.R. 677, ¶ 50 (2007). In making these findings, arbitrators are required
to apply the same rules that the Board applies. Id. When the arbitrator does not
apply those rules, her penalty determination is not entitled to deference, and the
Board will conduct its own analysis. Id.8
Because the appellant failed to show that his disability was a motivating factor in the
agency’s decision to remove him, we do not reach the question of whether
discrimination was a “but-for” cause of the removal action. See Pridgen, 2022 MSPB
31, ¶¶ 20-24.
15
¶27 When, as here, all of the agency’s charges are sustained, the Board will
review the agency-imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion within the tolerable
limits of reasonableness. Id., ¶ 53; see Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 factors that
are relevant in assessing the appropriate penalty for an act of misconduct). In
making this determination, the Board must give due deference to the agency’s
primary discretion in maintaining employee discipline and efficiency, recognizing
that the Board’s function is not to displace management’s responsibility, but to
ensure that managerial judgment has been properly exercised. Pinegar,
105 M.S.P.R. 677, ¶ 53. The Board will modify or mitigate an agency-imposed
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty clearly exceeds the bounds of reasonableness. Id.¶28 The arbitrator found that the agency removed the appellant for just and
sufficient cause and for reasons that promoted the efficiency of the service. RFR
File, Tab 1 at 98-99. However, she did not address whether the deciding official
considered the relevant Douglas factors or exercised management discretion
within the tolerable limits. 9 RFR File, Tab 1 at 58, 91-93. Because the arbitrator
failed to apply the same rules that the Board applies in reviewing an
agency-imposed penalty, we conduct our own analysis. See Pinegar,
105 M.S.P.R. 677, ¶ 50.
¶29 The record reflects that the deciding official considered as aggravating
factors the nature and seriousness of the charge as related to the appellant’s
duties, his prior discipline for AWOL and reporting to work under the influence
of alcohol, his past work record, the fact that he was clearly on notice of the
9
In the arbitration decision, the arbitrator set forth the agency’s argument regarding
penalty and quoted the decision letter, which both included a discussion of the Douglas
factors. RFR File, Tab 1 at 58-60, 91-93. However, her own analysis is devoid of any
reference to the applicable law or consideration of whether the deciding official
considered the relevant factors. Id. at 90-102.
16
agency’s expectations, and the effect of the appellant’s continued disregard of
agency policies and procedures on management’s confidence in his ability to
perform his duties and responsibilities. RFR File, Tab 1 at 362-66, 725-26. As
mitigating factors, the deciding official considered the appellant’s medical issues,
his difficulty obtaining treatment from the Department of Veterans Affairs, and
his potential for rehabilitation. Id. at 366-67, 726. The deciding official testified
that he considered the availability of alternative sanctions and decided to offer the
appellant the LCA, which he ultimately did not accept. Id. at 367-68. Based on
his consideration of these factors, the deciding official concluded that removal
was an appropriate penalty. Id. at 726.
¶30 In light of the foregoing, we find that the deciding official considered the
relevant Douglas factors and that management exercised its discretion within the
tolerable limits of reasonableness in imposing the appellant’s removal. See
McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 14 (2011) (finding
that the penalty of removal for AWOL does not exceed the tolerable limits of
reasonableness, particularly when the employee has prior discipline for the same
offense); Johnson v. General Services Administration, 46 M.S.P.R. 630, 635
(finding removal for the charges of failure to follow proper leave procedures and
AWOL to be within the bounds of reasonableness), aff’d, 944 F.2d 913 (Fed. Cir.
1991) (Table).
¶31 This is the Board’s final decision regarding the request for review of the
arbitration decision.
NOTICE OF APPEAL RIGHTS 10
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).
10
Since the issuance of the arbitration 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
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.
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.
18
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 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
19
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
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. 11 The court of appeals must receive your petition for
11
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
20
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
21
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.