Robert Repetto v. Department of Transportation ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. REPETTO, DOCKET NUMBER
Appellant, PH-0752-16-0358-I-1
v.
DEPARTMENT OF DATE: December 20, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert J. Repetto , Blackwood, New Jersey, pro se.
Joshua E. Jarrett , Esquire, Des Moines, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The central issue in this appeal is whether the appellant, a former Air
Traffic Control Specialist (with responsibilities to insure the safe, orderly, and
expeditious movement of air traffic along air routes and at airports), is alcohol
dependent, and the dispute over that question is one of long standing. On
October 3, 2013, during an arbitration related to the appellant’s fitness for duty,
an arbitrator issued a Mediated Arbitration Award that required the appellant to
submit to an independent medical examination (IME) to determine whether he is
alcohol dependent. Initial Appeal File (IAF), Tab 10, Subtab 4I. Pursuant to that
award, if the appellant refused to submit to the IME, the agency would be
permitted to take whatever action it deemed appropriate. Id. at 67, ¶ 3.
The appellant had his IME with S.L., M.D., on June 19, 2014, and Dr. S.L.
issued his report on July 9, 2014. IAF, Tab 19 at 22-29. Dr. S.L. concluded that
the appellant met the diagnostic criteria for “Alcohol Use, Mild” contained in the
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and for
“Alcohol Abuse” under the agency’s criteria. 2 Id. at 27, 30. Dr. S.L. suspected
2
More specifically, the diagnosis was “Alcohol Use Disorder, Mild R/O Moderate, and
Alcohol Abuse R/O Alcohol Dependency.” IAF, Tab 19 at 27. The notation “R/O”
means “rule out.” In Dr. S.L.’s view, more information was needed before he could
rule out the appellant’s possible “Alcohol Use Disorder, Moderate, and Alcohol
Dependency.”
3
that the appellant met the criteria for “Alcohol Dependency,” but Dr. S.L. did not
have enough information to make that determination. Id. at 30. The reason he
lacked sufficient information is key to this case. Dr. S.L. reported that, during
the IME, the appellant was “very guarded and evasive, choosing his words very
carefully, disclosing very little information.” Id. at 26. He opined that the
appellant understated his alcohol consumption during a 2010 incident in which he
failed a field sobriety test and that the appellant would have had to consume
significantly more alcohol than he claimed for him to fail the test. Id. at 28.
Dr. S.L., in his report, stated that the appellant was “not forthcoming and was
reluctant to discuss his history of alcohol use, the amount he drank, the frequency
he drank or any of the details of his alcohol use or subsequent symptoms and
consequences.” Id. at 28. Dr. S.L. noted problems with the appellant’s responses
to the Michigan Alcohol Screen Test, a widely used questionnaire designed to
assess possible alcohol abuse. He found that the appellant was “[c]learly . . .
minimizing his responses” and remarked that minimization is one common
indication of an alcohol problem. Id. Dr. S.L. found that some of the appellant’s
answers were obviously false. Id. In a follow-up letter to the arbitrator, Dr. S.L.
stated, “I suspect that [the appellant] meets the criteria for Alcohol
Dependency . . . but as indicated in my evaluation, [the appellant] was not
forthcoming and I was unable to review his [medical records from a treatment
facility]. As a result, I am unable to state that he has a diagnosis of Alcohol
Dependency . . . .” Id. at 30. Based on Dr. S.L.’s report, the arbitrator found that
the appellant “failed fully to submit” to the IME. IAF, Tab 10, Subtab 4H at 5.
On May 28, 2015, Regional Flight Surgeon H.L., M.D., ruled the appellant
medically disqualified on the basis of an established medical history or clinical
diagnosis of substance dependence. Id., Subtab 4G at 5. Dr. H.L.’s
disqualification was upheld on appeal to the Federal Air Surgeon, J.F., M.D., on
September 22, 2015. Id., Subtab 4F at 2-3.
4
Thereafter, the agency removed the appellant from his position, effective
June 10, 2016, based on a charge of Failure to Maintain Medical Certification.
Id., Subtabs 4A, 4C, 4L. Following a hearing, the administrative judge issued an
initial decision that sustained the charge and found that the appellant failed to
prove his affirmative defenses of harmful error and reprisal for filing a prior
Board appeal. IAF, Tab 23, Initial Decision (ID).
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency responds to the petition for review, and
the appellant replies to the agency’s response. PFR File, Tabs 3-4.
The agency has shown by preponderant evidence that the appellant failed to
maintain his medical certification.
The administrative judge correctly found that, to prove a charge of failure
to fulfill a condition of employment, the agency must prove: (1) the requirement
at issue is a condition of employment; and (2) the appellant failed to meet that
condition. Gallegos v. Department of the Air Force, 121 M.S.P.R. 349, ¶ 6
(2014). Failing to maintain a medical certification under circumstances like
these, wherein a position has established medical standards that employees must
meet, is directly parallel to failing to fulfill a condition of employment, and the
administrative judge correctly found that the same elements of proof apply. ID
at 6-7. Moreover, the administrative judge correctly stated that the Board’s
authority generally extends to reviewing the merits of losing or withdrawing a
condition of employment. ID at 7 (citing Adams v. Department of the Army,
105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x. 947 (Fed. Cir. 2008) (Table)).
There is no dispute that maintaining a medical certification was a condition of
employment for an Air Traffic Control Specialist and that the appellant failed to
maintain his certification. ID at 7. The question in this appeal is whether the
agency’s decision to medically disqualify the appellant was justified.
The medical standard at issue is contained in Federal Aviation
Administration (FAA) Order 3930.3B, Appendix A:
5
5. Mental. No established medical history or clinical diagnosis of
any of the following:
....
d. Substance dependence.
(1) Except where there is established clinical evidence,
satisfactory, to the [Federal Air Surgeon], of recovery,
including sustained total abstinence from the substance(s) for
not less than the preceding 2 years.
(2) As used in this section “substance” includes: alcohol . . . ;
and, “substance dependence” means a condition in which a
person is dependent on a substance, [other than tobacco and
caffeine], as evidenced by
(a) increased tolerance;
(b) manifestation of withdrawal symptoms;
(c) impaired control of use; or,
(d) continued use despite damage to physical health or
impairment of social, personal, or occupational functioning.
IAF, Tab 10, Subtab 4J at 28-30. Neither Drs. H.L. nor J.F. provided any detailed
medical findings in their disqualification letters to the appellant. Id., Subtab 4F
at 2, 4G at 1. The administrative judge found, however, that these doctors based
their conclusions about an “established medical history” of alcohol dependence as
evidenced by the appellant’s two driving under the influence (DUI) arrests in
2004 and 2010, his continued use of alcohol after his first arrest, no demonstrable
attempt at rehabilitation, and his increased tolerance of alcohol based on blood
alcohol content readings of .306 and .21 taken after his arrests. ID at 8-10.
For his part, the appellant does not dispute any of the facts that the flight
surgeons relied on, but he disputes their conclusion that he is alcohol dependent.
He argues that the agency cannot prove that he is alcohol dependent because no
professional has clinically diagnosed his alcohol dependence after an actual
physical examination. IAF, Tab 1 at 6, Tab 18 at 4-8; PFR File, Tab 1 at 5-6, 8,
10-13. The appellant is correct to the extent that the agency’s doctors stated that
their determinations were based solely on reviewing available medical records.
6
IAF, Tab 10, Subtab 4G; Tab 19 at 22-29. Dr. S.L.’s findings were inconclusive,
and there are no other medical records available. IAF, Tab 19 at 22-29.
However, Dr. S.L.’s inability to make a definitive diagnosis and the absence of
medical records are the direct result of the appellant’s refusal to cooperate both
during and after the IME. Id. We agree with the flight surgeons that the
appellant’s 2004 and 2010 DUIs were, by themselves, sufficient to establish that
the appellant was substance dependent within the meaning of FAA
Order 3930.3B. IAF, Tab 10, Subtab 4G, Subtab J at 28-30; Tab 19 at 22-29.
Nevertheless, the arbitration award gave the appellant an opportunity, through an
IME, to avoid revocation of his medical certification by giving the agency
evidence of recovery. IAF, Tab 10, Subtab 4I at 2-3. The appellant’s failure to
avail himself of this opportunity does not detract from the agency’s otherwise
sufficient evidence of alcohol dependency. We therefore agree with the
administrative judge’s finding that the agency proved its charge that the appellant
failed to maintain his medical certification based on his alcohol dependency. ID
at 8-10.
The appellant failed to prove his affirmative defenses.
Below, the appellant identified numerous alleged violations of various
agency rules and policies. IAF, Tabs 1, 18. The appellant reiterates these claims
on review. PFR File, Tab 1. However, harmful error cannot be presumed; an
agency error is harmful only when the record shows that the procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). The administrative judge
correctly found that the appellant made no showing that any of these alleged
errors likely caused the agency to reach a different outcome. ID at 10-11. The
appellant’s arguments on review provide no reason to disturb these findings.
The appellant also contended on appeal that the removal constituted
retaliation for his prior successful Board appeal of an enforced leave case. IAF,
7
Tab 1. The administrative judge found that the appellant failed to show that the
deciding official had any knowledge of the prior appeal or that any of the
principals in this case harbored a retaliatory motive. ID at 11-12. On review, the
appellant asserts that Dr. H.L. fabricated her diagnosis because the Board had
rejected her diagnosis that formed the basis for his earlier appeal concerning the
agency’s decision to place him on enforced leave. PFR File, Tab 1 at 6-7.
However, the appellant has identified no evidence of record showing that the
deciding official was aware of his Board appeal, and he has not pointed to any
evidence that would impute Dr. H.L.’s motive, if it existed, to the deciding
official. Therefore, we find that the administrative judge correctly found that the
appellant failed to prove his affirmative defense of retaliation for having filed a
prior Board appeal. 3
The penalty of removal is reasonable.
The administrative judge found that the penalty of removal was within
tolerable limits of reasonableness. ID at 13. We agree. The Board has found that
removal is a reasonable penalty when, as here, the appellant has failed to maintain
a term or condition of employment. Penland v. Department of the Interior,
115 M.S.P.R. 474, ¶ 11 (2010).
NOTICE OF APPEAL RIGHTS 4
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).
3
The appellant did not argue that he was seeking corrective action under the
Whistleblower Protection Enhancement Act of 2012 for reprisal as a result of filing a
previous appeal with the Board. See 5 U.S.C. § 2302(b)(9)(A)(i) (prohibiting an agency
from retaliating against an employee for “the exercise of any appeal, complaint, or
grievance right” related to whistleblowing); Hicks v. Merit Systems Protection Board,
819 F.3d 1318, 1320-21 (Fed. Cir. 2016).
4
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.
8
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.
9
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
10
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. 5 The court of appeals must receive your petition for
5
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
11
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.
12
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.