Anthony J. Fushikoshi v. Department of Agriculture ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    ANTHONY J. FUSHIKOSHI,                          DOCKET NUMBER
    Appellant,                        SF-0752-14-0599-I-1
    v.
    DEPARTMENT OF AGRICULTURE,                      DATE: October 29, 2015
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Anthony J. Fushikoshi, Wailuku, Hawaii, pro se.
    Bradly Siskind, Esquire, Riverdale, Maryland, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    REMAND ORDER
    ¶1         The agency has filed a petition for review and the appellant has filed a cross
    petition for review of the initial decision, which mitigated his 30-day suspension
    to a 7-day suspension. For the reasons discussed below, we GRANT the petition
    for review and DENY the cross petition for review.          We AFFIRM the initial
    decision to the extent that it sustained specification three of the charge, found
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    nexus, and found that the appellant failed to prove his affirmative defenses,
    VACATE the initial decision to the extent that it failed to sustain specification
    two of the charge, and REMAND the case to the regional office for further
    adjudication in accordance with this Order.
    BACKGROUND
    ¶2        The appellant is a GS-11 Plant Production and Quarantine Officer with the
    agency, stationed at the Kahului Airport in Hawaii. Initial Appeal File (IAF),
    Tab 12 at 4, Tab 57 at 14. The agency proposed to suspend the appellant for
    30 days based upon three specifications of improper conduct. 2         IAF, Tab 12
    at 25-27, 51-57.     Specification one alleged that, on September 10, 2013, the
    appellant failed to report for duty as scheduled and was absent without leave
    (AWOL) for 8 hours. 
    Id. at 51.
    Specification two alleged that on October 6,
    2013, the appellant failed to report for a 5-hour overtime assignment. 
    Id. at 52.
         Specification three alleged that on February 8, 2014, the appellant was AWOL
    for 45 minutes when he failed to report for duty until a supervisor telephoned
    him and reminded him that he only had requested leave for a later part of the
    day. 
    Id. at 25-26.
    ¶3        After considering the appellant’s response to the notice of proposed
    suspension, the deciding official did not sustain specification one of the charge,
    but sustained specifications two and three, and found that a 30-day suspension
    was an appropriate penalty. 
    Id. at 5-9,
    14-24.
    ¶4        The appellant filed a timely Board appeal challenging his suspension.
    IAF, Tab 1 at 3, 5. During the processing of the appeal, he failed to respond
    fully to the agency’s written discovery requests, even after the administrative
    judge granted in part the agency’s motion to compel. IAF, Tabs 19, 24, 36;
    2
    The agency issued both a proposed suspension and an addendum. IAF, Tab 12
    at 25-27, 51-57. For clarity, we refer to these documents, combined, as the notice of
    proposed suspension.
    3
    see IAF, Tab 39 at 3.       In addition, the appellant failed to cooperate in his
    deposition, file prehearing submissions, or appear for the scheduled prehearing
    conference. 3 IAF, Tab 9 at 2-4, Tab 25 at 7, 18-19, Tab 26 at 1, Tab 28 at 9-10,
    17, Tab 36.
    ¶5         The agency filed a motion for sanctions. IAF, Tab 28. The administrative
    judge ordered the appellant to respond to the motion and scheduled a conference
    call to discuss the status of the appeal. IAF, Tab 29. After the appellant failed
    to respond to the motion and appear for the conference call, the administrative
    judge issued an order to show cause, which informed the appellant that if he
    failed to demonstrate good cause for his refusal to comply with her orders, she
    either would cancel his hearing and issue a decision based on the written record
    or dismiss the appeal for failure to prosecute. IAF, Tab 36.
    ¶6              After considering the appellant’s responses, in which he alleged, among
    other things, that he suffered from depression, stress, and memory loss, and
    lacked sufficient personal time to respond to discovery, the administrative judge
    sanctioned the appellant by canceling his requested hearing. IAF, Tab 37 at 3-4,
    Tab 40 at 4, Tab 50 at 1-2; see IAF, Tab 1 at 2. She afforded the parties an
    opportunity to submit additional evidence and argument before the close of the
    written record.    IAF, Tab 50 at 5.       In response, on November 1, 2014, the
    appellant filed a medical document, dated October 7, 2013, which indicated that,
    on October 6, 2013, the date of the overtime assignment at issue in specification
    3
    For the first time on review, the agency has submitted a complete transcript of the
    appellant’s attempted deposition, only a portion of which was included in the record
    below. Petition for Review (PFR) File, Tab 4 at 13-41, Tab 5; IAF, Tab 25 at 7-24.
    The agency has not explained why the complete transcript of the deposition, which
    predated the initial decision by several months, was previously unavailable despite due
    diligence. PFR File, Tabs 4-5; see 5 C.F.R. § 1201.115(d) (new evidence will be
    considered on review only if it was not available despite due diligence before the record
    below closed). Therefore, we have not considered any portions of the transcript that
    were not included in the record below.
    4
    two, he was “unable to perform regular duties due to medical reasons.” 4
    IAF, Tab 51 at 10.
    ¶7         After considering additional responses submitted by the appellant and the
    agency, IAF, Tabs 52-58, the administrative judge issued an initial decision
    sustaining the charge of improper conduct, which she construed as equivalent to
    an AWOL charge, IAF, Tab 59, Initial Decision (ID) at 4-8. 5 However, she did
    not sustain specification two of the charge because she found that the October 7,
    2013 medical document that the appellant filed after the hearing was cancelled
    was administratively acceptable evidence that he was incapacitated for duty on
    October 6, 2013, and was sufficient to support his request for sick leave on that
    date. ID at 6-7; see Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9
    (2007) (finding that a charge of AWOL will not be sustained if an appellant
    presents administratively acceptable evidence that he was incapacitated for duty
    during the relevant period, provided that he has sufficient sick leave to cover the
    period of absence).
    4
    Before the agency issued the notice of proposed suspension, the appellant provided the
    agency with a different medical document, also dated October 7, 2013, which indicated
    that he was seen at a medical practice on October 7, 2013, and that he required
    “supervision of healthcare needs” on October 6, 2013. IAF, Tab 12 at 52, Tab 13 at 13,
    24. In the notice of proposed suspension, the agency informed the appellant that such
    medical documentation was insufficient to excuse his absence because it did not reflect
    that he was incapacitated for duty on October 6, 2013. IAF, Tab 12 at 52.
    5
    On review, the agency does not challenge the administrative judge’s characterization
    of the charge or argue that the charge should have been construed as a failure to follow
    leave procedures. See PFR File, Tabs 1, 4-5. Having reviewed the proposed
    suspension, we agree with the administrative judge that the improper conduct charge
    was equivalent to an AWOL charge. IAF, Tab 12 at 25-27, 51-57; see Alvarado v.
    Department of the Air Force, 103 M.S.P.R. 1, ¶ 22 (2006) (finding that a charge of
    improper conduct has no specific elements of proof, but is established by proving that
    the appellant committed the acts alleged in support of the charge); Atchley v.
    Department of the Army, 46 M.S.P.R. 297, 301 (1990) (holding that the Board is
    required to review the employing agency’s decision on an adverse action solely on the
    grounds invoked by the agency and may not substitute what it considers to be a more
    adequate or proper basis).
    5
    ¶8          The administrative judge further found that the appellant failed to establish
    his affirmative defenses of harmful error, discrimination on the basis of disability
    and age, and retaliation for prior protected equal employment opportunity (EEO)
    and Board activity. ID at 8-16; see IAF, Tab 1 at 5, Tab 34 at 3, Tabs 35, 41.
    She held that discipline based on the appellant’s failure to report for work
    promoted the efficiency of the service. ID at 16-17. However, she mitigated the
    30-day suspension to a 7-day suspension because, among other factors, the
    sustained misconduct involved only a single instance of 45 minutes of AWOL.
    ID at 17-19.
    ¶9          The agency has filed a petition for review, the appellant has filed a response
    to the petition for review and cross petition for review, 6 and the agency has filed
    a combined reply and response to the cross petition for review.              Petition for
    Review (PFR) File, Tabs 1-2, 4.
    DISCUSSION OF ARGUMENTS ON REVIEW
    The agency was prejudiced as an unintended consequence of the sanction
    imposed against the appellant.
    ¶10         On review, the agency argues that administrative judge erred in failing to
    sustain specification two of the charge. PFR File, Tab 1 at 5, 12-16, 21-23, Tab 4
    at 7-11. Specifically, the agency contends that the administrative judge abused
    her discretion in sanctioning the appellant by canceling his requested hearing.
    PFR File, Tab 1 at 16, 23. It argues that instead, she should have precluded the
    appellant from submitting additional evidence, including the October 7, 2013
    medical document that he filed at the close of the record below or, in the
    6
    Because the appellant alleges that the initial decision was incorrectly decided in part,
    we construe his filing as a cross petition for review. PFR File, Tab 2; see 5 C.F.R.
    § 1201.114(a)(1)-(2).
    6
    alternative, dismissed the appeal for failure to prosecute. 7        PFR File, Tab 1
    at 14-16, 21-23, Tab 4 at 7-11.
    ¶11           We find that the administrative judge did not abuse her discretion in
    sanctioning the appellant by canceling the hearing. See IAF, Tab 50 at 2. An
    administrative judge may impose various sanctions as necessary to serve the ends
    of justice. 5 C.F.R. § 1201.43. Once an administrative judge imposes a sanction,
    the Board ordinarily will not disturb such a determination unless it is shown that
    the administrative judge abused her discretion or that her ruling adversely
    affected a party’s substantive rights.       Wagner v. Department of Homeland
    Security, 105 M.S.P.R. 67, ¶ 9 (2007).
    ¶12           The Board’s regulations authorize an administrative judge to cancel a
    scheduled hearing as a sanction where an appellant engages in contumacious
    conduct or conduct prejudicial to the administration of justice.         See 5 C.F.R.
    § 1201.43(e); see also Hart v. Department of Agriculture, 81 M.S.P.R. 329, ¶ 5
    (1999) (finding that an appellant’s right to a hearing should not be denied as a
    sanction absent extraordinary circumstances).        In the present case, the record
    reflects that the appellant repeatedly refused to cooperate in discovery and failed
    to comply with three separate orders issued by the administrative judge. See IAF,
    Tab 9 at 2-4, Tabs 19, 24, Tab 25 at 7-19, Tab 26 at 1, Tabs 28-29, 36, Tab 39
    at 3.   The appellant’s assertions that he suffered from depression, stress, and
    7
    On review, the agency also claims that the administrative judge failed to rule on its
    second motion to compel regarding the appellant’s conduct during his deposition. PFR
    File, Tab 1 at 8, 16; IAF, Tab 25. We agree that an administrative judge is obligated to
    rule on motions filed by the parties.          See Johnson v. U.S. Postal Service,
    37 M.S.P.R. 388, 392 (1988) (finding that an administrative judge’s failure to rule on a
    motion was error). However, after the agency filed the second motion to compel, the
    agency subsequently filed the motion for sanctions in which it argued, among other
    things, that the appellant should be sanctioned for his failure to cooperate in his
    deposition. IAF, Tab 28 at 4-7. It appears that the administrative judge construed the
    motion for sanctions as superseding the second motion to compel and in fact considered
    the appellant’s refusal to cooperate in his deposition when imposing sanctions.
    See IAF, Tab 50 at 2. Therefore, we find that the administrative judge did not err in
    failing to rule on the agency’s second motion to compel.
    7
    memory loss, and lacked sufficient personal time did not establish good cause for
    his noncompliance and lack of cooperation. IAF, Tab 37 at 3-4, Tab 40 at 4. We
    find that, in light of the egregious and persistent nature of the appellant’s
    conduct, the administrative judge appropriately exercised her discretion in
    sanctioning him by canceling his requested hearing. See Heckman v. Department
    of the Interior, 106 M.S.P.R. 210,       ¶¶ 8-12 (2007) (determining       that an
    administrative judge did not abuse her discretion in sanctioning an appellant by
    canceling his requested hearing when the appellant failed to comply with three
    orders directing him to submit evidence or argument regarding his claims).
    ¶13        We have considered the agency’s arguments on review that other
    administrative judges imposed more appropriate sanctions based upon conduct
    similar to the appellant’s. PFR File, Tab 1 at 22, Tab 4 at 7-8; see, e.g., Smets v.
    Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011) (declining to find that an
    administrative judge abused her discretion by precluding an appellant from
    submitting additional evidence regarding her claim of disability discrimination
    after she failed to comply with an order to appear for a deposition), aff’d, 498 F.
    App’x 1 (Fed. Cir. 2012); Williams v. U.S. Postal Service, 116 M.S.P.R. 377,
    ¶¶ 9-12 (2011) (finding that dismissing an appeal for failure to prosecute after an
    appellant failed to comply with multiple orders was not an abuse of discretion).
    However, in light of the great deference afforded to administrative judges in
    selecting an appropriate sanction, we cannot conclude that the administrative
    judge abused her discretion in declining to impose such sanctions here, and
    instead electing to sanction the appellant by canceling the scheduled hearing. See
    Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010) (observing
    that the abuse of discretion is a very high standard and allows for great
    deference).
    ¶14        Although the administrative judge did not abuse her discretion, we agree
    with the agency that, as an unintended consequence of the sanction imposed by
    the administrative judge, the agency was prejudiced. PFR File, Tab 1 at 14-15,
    8
    23. As a direct result of the appellant’s conduct during the processing of his
    appeal, the agency was deprived of the opportunity to question him regarding the
    medical documentation he submitted after the hearing was cancelled.             IAF,
    Tab 50 at 5, Tab 51 at 10; ID at 6-7. The medical documentation would have
    been responsive to several of the agency’s discovery requests. 8       IAF, Tab 19
    at 31-33. The appellant does not dispute the agency’s assertion that he failed to
    produce the medical documentation in the normal course of discovery, or after he
    was ordered to do so by the administrative judge in response to the agency’s
    motion to compel. PFR File, Tab 1 at 14-15, Tab 2; IAF, Tab 24 at 2. The
    appellant’s failure to produce the documentation, in combination with his failure
    to cooperate in his deposition, precluded the agency from developing evidence
    that potentially would have enabled it to rebut the assertion that he was
    incapacitated for duty on the date at issue. See, e.g., IAF, Tab 23 at 19 (reflecting
    that the appellant’s attempted deposition concluded before the agency could
    question him regarding his absence on October 6, 2013).
    ¶15         Notably, after the appellant filed the medical documentation, the agency
    argued that the documentation was inconsistent with a statement that the
    appellant made to his supervisor on October 6, 2013. IAF, Tab 57 at 5, 16-17, 29.
    The agency reiterates this argument on review. PFR File, Tab 1 at 12-13. Below,
    the agency submitted an affidavit from the appellant’s supervisor, which stated
    that on October 6, 2013, approximately 40 minutes after the appellant’s overtime
    assignment was scheduled to begin, he telephoned his supervisor, and stated that
    he “just woke up.” IAF, Tab 57 at 16. The administrative judge found that the
    medical documentation was not inconsistent with the appellant’s statement that he
    had overslept, because he described his symptoms as including physical
    exhaustion. ID at 7 n.1. However, the medical documentation did not indicate
    that the appellant suffered from exhaustion, and the agency was not afforded the
    8
    At a minimum, the medical documentation was responsive to requests for document
    numbers 1, 10, and 13. IAF, Tab 19 at 31-33.
    9
    opportunity to question the appellant regarding any potential inconsistencies
    between the medical documentation and his statement to his supervisor. 9 IAF,
    Tab 51 at 10.
    ¶16         We find that, because the agency was denied the opportunity to develop the
    record regarding the documentation that the appellant relied on to rebut
    specification two of the charge, and the agency otherwise would have proven this
    specification, as an inadvertent consequence of the sanction imposed against the
    appellant, the agency’s substantive rights were adversely affected.                 See
    Wagner, 105 M.S.P.R. 67, ¶ 9. Under the circumstances of this case, we conclude
    that it is in the interest of justice to afford the agency an opportunity to rebut the
    medical documentation submitted by the appellant. Accordingly, we vacate the
    administrative judge’s finding that the agency failed to sustain specification two
    of the charge, and remand the case to the regional office for the administrative
    judge to conduct a limited hearing on the subject of the medical documentation
    that the appellant filed on November 1, 2014. The scope of the hearing shall
    include, but not be limited to, the consistency of the medical documentation with
    the appellant’s prior statements to his supervisor. 10 In the event that the appellant
    fails to cooperate in this limited hearing, the administrative judge shall determine
    whether additional sanctions are appropriate. 11
    9
    On review, the agency also argues that the medical documentation that the appellant
    filed on November 1, 2014, was not administratively acceptable evidence that he was
    incapacitated for duty because it did not specify the medical condition that caused him
    to be incapacitated. PFR File, Tab 1 at 13-14. Under the circumstance of the present
    appeal, we find this argument unpersuasive. The deciding official relied on nearly
    identical medical documentation, which also failed to specify the appellant’s diagnosis,
    in finding that the appellant’s absence at issue in specification one should not be
    sustained. IAF, Tab 12 at 5, 50.
    10
    The agency’s arguments also possibly call into question the authenticity of the
    appellant’s November 1, 2014 medical documentation, an issue the administrative judge
    may wish to explore on remand.
    11
    On review, the agency also argues that the administrative judge erred in mitigating
    the penalty to a 7 day suspension. PFR File, Tab 1 at 17-21. We have not addressed
    10
    The appellant has failed to establish any basis for granting his cross petition for
    review.
    ¶17    On review, the appellant argues that his supervisor retaliated and
    discriminated against him when, among other things, he failed to sufficiently
    investigate the circumstances surrounding the charge prior to proposing the
    appellant’s suspension and took “negative action[s]” against him.        PFR File,
    Tab 2 at 4-6. He provides no citations to the record to support his claims. 
    Id. We find
    that these arguments do not establish a basis for disturbing the
    administrative judge’s conclusion that the appellant failed to establish his
    affirmative defenses of retaliation and discrimination. ID at 8-13; see Weaver v.
    Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (holding that, before the
    Board will undertake a complete review of the record, the petitioning party must
    explain why the challenged factual determination is incorrect and identify the
    specific evidence in the record that demonstrates the error).
    ¶18    Next, the appellant reiterates his argument, raised below, that the agency
    failed to provide him with an effective reasonable accommodation. PFR File,
    Tab 2 at 8; see IAF, Tab 35 at 5-6. An agency is required to provide reasonable
    accommodation to the known physical or mental limitations of an otherwise
    qualified individual with a disability unless the agency can show that
    accommodation would cause an undue hardship on its business operations.
    Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). Reasonable
    accommodation includes modifications to the manner in which a position is
    customarily performed to enable a qualified individual with a disability to
    perform the essential job functions, or reassignment to a vacant position whose
    these arguments, as the administrative judge’s findings regarding the agency imposed
    penalty may be affected by the outcome of the limited hearing on remand.
    11
    duties the employee can perform. 12        
    Id. The appellant
    bears the burden of
    proving that an accommodation that he seeks is reasonable. 
    Id., ¶ 17.
    ¶19     We agree with the administrative judge that the appellant failed to prove
    that the agency denied him a reasonable accommodation.              See ID at 13-15.
    Although Plant Production and Quarantine Officers ordinarily rotate between day
    and night shifts, starting in 2009, the agency assigned the appellant to a regular
    tour of duty on the night shift as an accommodation for his depression. IAF,
    Tab 45 at 15, Tab 57 at 26. Subsequently, starting in 2013, the agency granted
    the appellant the accommodation of a regular schedule with fixed days off. 13
    IAF, Tab 12 at 8, Tab 57 at 26.
    ¶20     The agency was not required to provide the appellant’s requested
    accommodation of being allowed to report to work on an unscheduled basis. See
    ID at 14; IAF, Tab 13 at 18. His duties as a Plant Production and Quarantine
    Officer include performing predeparture inspections, which require him to be
    present when flights are scheduled to conduct inspections so that aircrafts can
    depart on time. IAF, Tab 16 at 37, Tab 57 at 26. His requested accommodation
    of a flexible start time would require other employees to perform his duties for
    him to maintain on-time aircraft departures and, accordingly, would not be
    reasonable.    See IAF, Tab 57 at 26; see also 29 C.F.R. § 1630.2(o)(1)(ii)
    (defining a reasonable accommodation to include a modification to the manner in
    which an employee performs work that enables the employee to perform the
    essential functions of the position).      For similar reasons, we agree with the
    administrative judge that the agency was not required to call the appellant each
    12
    Here, the appellant has not established that any vacant, funded positions for which he
    was otherwise qualified were available.         See Jackson v. U.S. Postal Service,
    79 M.S.P.R. 46, 53-54 (1998) (explaining that, in a disability discrimination claim, the
    appellant bears the ultimate burden of proving that vacant, funded positions for which
    he was otherwise qualified were available).
    13
    The appellant was the only Plant Production and Quarantine Officer with primary
    duties involving predeparture passenger and cargo inspection who was assigned a fixed
    schedule with regular days off. IAF, Tab 57 at 26.
    12
    day and remind him to come to work as a reasonable accommodation.            ID
    at 14-15.
    ORDER
    ¶21        For the reasons discussed above, we remand this case to the regional office
    for further adjudication in accordance with this Remand Order.
    FOR THE BOARD:                          ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 10/29/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021