Kristopher D. Kelly v. Tennessee Valley Authority ( 2016 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KRISTOPHER D. KELLY,                            DOCKET NUMBER
    Appellant,                        AT-0752-15-0064-I-1
    v.
    TENNESSEE VALLEY AUTHORITY,                     DATE: June 16, 2016
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Jennifer B. Morton, Esquire, and Pat Kelly, Knoxville, Tennessee, for
    the appellant.
    William T. Terrell, Knoxville, Tennessee, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The agency has filed a petition for review of the initial decision, which
    reversed the appellant’s removal. Generally, we grant petitions such as this one
    only when: the initial decision contains erroneous findings of material fact; the
    initial decision is based on an erroneous interpretation of statute or regulation or
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 erroneous application of the law to the facts of the case; the administrative
    judge’s rulings during either the course of the appeal or the initial decision
    were not consistent with required procedures or involved an abuse of discretion,
    and the resulting error affected the outcome of the case; or new and material
    evidence or legal argument is available that, despite the petitioner’s due
    diligence, was not available when the record closed. See 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).
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶2        The appellant filed this appeal challenging the agency’s action removing
    him from the position of Senior Nuclear Security Officer (NSO) at the Tennessee
    Valley Authority (TVA) Watts Bar Nuclear Plant in Spring City, Tennessee,
    effective September 11, 2014.     Initial Appeal File (IAF), Tab 1.        The agency
    based the action on a charge of failure to meet the requirements of the Senior
    NSO position due to medical restrictions. 2 IAF, Tab 21.
    ¶3        It is undisputed that the appellant was hired in June 2009, and that in 2013,
    he began to experience progressively more severe symptoms of an injury he
    sustained in 2005 while serving in the Department of the Army in Operation Iraqi
    Freedom. IAF, Tab 1. Because he was concerned about his symptoms, which
    include periodic loss of control over his legs, and his ability to respond in the
    event of an emergency, on November 19, 2013, the appellant had his physician
    write a letter detailing his medical restrictions. IAF, Tab 21 at 34. This letter
    stated that the appellant had been diagnosed with spastic gait, which interfered
    2
    The NSO position      is   a   law   enforcement   officer   position   that   includes
    medical standards.
    3
    with “his ability to walk and makes running very difficult and decreases his
    ability to control his legs when necessary to stop,” and that the appellant was
    having pain on the left side of his spine that was worsened by strenuous
    movement or activity.         
    Id. This letter
    was provided to the agency in
    November 2013, and the agency immediately pulled the appellant’s S11-Medical
    Clearance Form and placed him on administrative leave. IAF, Tab 30, Hearing
    Compact Disc (HCD). The appellant later met with the agency’s Site Security
    Superintendent who advised him that the agency would look for a job for him,
    and he provided her with a copy of his résumé. On November 22, 2013, the Site
    Security Superintendent emailed the appellant’s résumé to the Senior Human
    Resources (HR) Generalist for Watts Barr. IAF, Tab 21 at 22. The Site Security
    Superintendent stated in her email that the appellant “had his S11 pulled last
    night” and “he’s asked if we could help finding him another position.” 
    Id. ¶4 The
    Senior HR Generalist testified that she had several conversations with
    the appellant by telephone and email about available jobs in TVA and about
    possible disability benefits and that she told him that he also should look for jobs.
    HCD. She also testified that she told him that she would do everything in her
    power to find him another position and that she followed the agency’s standard
    process for reassignments by emailing his résumé to three other agency HR
    employees and asking if they knew of “anything in TVA in which he would be
    qualified.” HCD; IAF, Tab 21 at 22. The Senior HR Generalist followed up with
    two additional emails asking to be contacted if the agency HR employees knew of
    an opening that might fit the appellant’s qualifications. 
    Id. On June
    1, 2014, the
    agency proposed to remove the appellant from his position for failing to meet the
    medical requirements of his position, and his removal was effective on
    September 11, 2014.
    ¶5         On appeal, the administrative judge found that the medical documentation
    supported the agency’s removal action by preponderant evidence. IAF, Tab 33,
    Initial Decision (ID) at 5.     However, the administrative judge found that the
    4
    agency failed to make a good faith effort to accommodate the appellant through
    reassignment. ID at 8. The administrative judge found no documentary evidence
    that the agency ever performed a search of available positions for the appellant or
    any other evidence showing that anyone looked at the appellant’s qualifications to
    see if he could be placed in any of the vacant, funded positions during the
    relevant time period. Furthermore, the administrative judge found that the agency
    failed to produce any position descriptions of available funded positions. Thus,
    the administrative judge found that the agency failed to engage in a good faith
    effort to accommodate the appellant. ID at 9. The administrative judge found
    further that the appellant identified a vacant position, Custodian (Trainee) (Job
    Opening ID No. 501479), as one of the positions to which he could be reassigned
    and that the agency failed to address the appellant’s qualifications for this
    position or otherwise rebut his assertions that he was qualified to perform the
    position of Custodian (Trainee).      ID at 10.    Thus, based on the appellant’s
    unrebutted testimony that he was qualified for at least one position on the
    vacancy list, the administrative judge found that the appellant established by
    preponderant evidence that the agency failed to meet its obligation to reasonably
    accommodate him by reassigning him to another position.             Accordingly, the
    administrative judge reversed the agency’s removal action finding that the agency
    discriminated against the appellant based on his disability. ID at 10-11.
    ¶6         On review, the agency argues that the appellant failed to prove his
    affirmative defense of disability discrimination. 3 Petition for Review (PFR) File,
    Tab 1. The agency asserts that the appellant failed to meet his burden of proof by
    identifying a vacant, funded position for which he was qualified, with or without
    accommodation, that existed at the time he requested accommodation. 
    Id. at 17.
    3
    The appellant, who was represented by his mother below and who is now represented
    by an attorney on review, does not challenge the administrative judge’s determination
    that the agency proved the charge that he failed to meet the requirements of the Senior
    NSO due to medical restrictions. PFR File, Tab 8.
    5
    The agency contends that the appellant did not “request any particular
    reassignment opportunity” and he did not “articulate” prior to the hearing which
    of the 75 jobs on the job listing that he believed he was qualified for. 
    Id. at 9.
         The agency argues that, it is only if the appellant satisfies his burden of
    establishing that he met the minimum requirements for a reassignment job that the
    burden shifts back to the agency to establish that the requested accommodation
    would create an undue hardship. 
    Id. ¶7 We
    disagree. An agency must provide reasonable accommodation to the
    known limitations of a qualified individual with a disability unless to do so would
    create an undue hardship. 42 U.S.C. § 12112(a); Simpson v. U.S. Postal Service,
    113 M.S.P.R. 346, ¶ 13 (2010); 29 C.F.R. § 1630.9. A qualified individual with a
    disability is a person with skills, training, and experience to perform the essential
    functions of a position, with or without reasonable accommodations. Simpson,
    113 M.S.P.R. 346, ¶ 13; 29 C.F.R. § 1630.2(m).        Reasonable accommodations
    may entail modifications to the individual’s current position or reassignment to a
    vacant position.     42 U.S.C. § 12111(9); Simpson, 113 M.S.P.R. 346, ¶ 13;
    29 C.F.R. § 1630.2(o).
    ¶8         A disability discrimination claim will fail under the Americans with
    Disabilities Act or the Rehabilitation Act if the employee never requested
    accommodation while employed.           Paris v. Department of the Treasury,
    104 M.S.P.R. 331, ¶ 17 (2006). Nevertheless, an employee only has a general
    responsibility to inform his employer that he needs accommodation for a medical
    condition.   Id.; 29 C.F.R. Pt. 1630 App. § 1630.9.        Once the employee has
    requested accommodation for a medical condition, the employer must engage in
    the interactive process in an effort to determine an appropriate accommodation.
    Paris, 104 M.S.P.R. 331, ¶ 17; see 29 C.F.R. § 1630.2(o)(3). As the Board has
    repeatedly stated, an employing agency is in a better position than a disabled
    employee to modify duties or working conditions to meet the needs of the
    6
    employee.     Paris, 104 M.S.P.R. 331, ¶ 17; Baker v. U.S. Postal Service,
    71 M.S.P.R. 680, 693 (1996).
    ¶9          With these principles in mind, we agree with the administrative judge that
    the appellant met his responsibilities. In November 2013, the appellant provided
    the agency a letter from his physician dated November 19, 2013, which advised
    the agency of his diagnosed medical condition of spastic gait and of his related
    medical restrictions.     IAF, Tab 21 at 34.        The appellant also discussed
    reassignment with the Site Security Superintendent.       HCD.     On November 22,
    2013, the agency’s Site Security Manager emailed the appellant’s résumé to the
    Senior HR Generalist.      IAF, Tab 21 at 23.     After receiving his résumé, the
    appellant and the Senior HR Generalist had several conversations by telephone
    and email about available jobs in TVA, and the Senior HR Generalist testified
    that she told the appellant that she would do everything in her power to find him
    another job. 
    Id. Thus, the
    record establishes that the appellant fully cooperated
    in the interactive process envisioned in 29 C.F.R. Pt. 1630 App. § 1630.9 by
    providing the letter from his physician and in his meeting and discussion with the
    Site Security Manager and the Senior HR Generalist.
    ¶10         The agency argues, in essence, that it was the appellant’s duty to do all the
    searching for positions and to determine whether he met the requirements for the
    position descriptions for those positions.     PFR File, Tab 1.     The agency also
    contends that the Senior HR Generalist would have “assisted him if he had
    identified an open job that he was interested in.” 
    Id. at 9.
    The agency asserts
    that, because the appellant did not identify a specific position prior to the hearing,
    the agency “was not able to, and therefore did not, present rebuttal evidence,
    including medical testimony, to establish Appellant’s lack of physical ability to
    perform the essential job duties of a custodian trainee.” 
    Id. at 9-10.
    ¶11         Courts generally have required the parties to engage in the interactive
    process in good faith. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 15
    (2014). Here, the agency appears to have made no effort to identify whether the
    7
    appellant met the qualifications for any of the positions on the job listing that it
    provided to him, and it is undisputed that the agency failed to provide him with
    the position descriptions to accompany any of the positions on those listings. The
    agency further failed to provide any of the position descriptions during the
    proceedings below, including the position description for the Custodian (Trainee)
    position. Thus, we agree with the administrative judge that the agency failed to
    make a good faith effort during the interactive process.
    ¶12         The administrative judge found, moreover, that the appellant proved by
    preponderant evidence that the agency discriminated against him based on his
    disability because he identified a vacant position to which he could be assigned
    and the agency failed to address his qualifications for this position or otherwise
    rebut his assertions that he was qualified to perform the Custodian (Trainee)
    position. We agree with the administrative judge that the appellant identified a
    vacant funded position and the agency failed to rebut his assertions that he was
    qualified for that position below. 4 Accordingly, we affirm the initial decision.
    ORDER
    ¶13         We ORDER the agency to cancel the removal and to restore and reassign
    the appellant to the Custodian (Trainee) position, or to another position at or
    below the appellant’s former grade level for which he is qualified, effective
    September 11, 2014. See Kerr v. National Endowment for the Arts, 
    726 F.2d 730
          (Fed. Cir. 1984). The agency must complete this action no later than 20 days
    after the date of this decision.
    ¶14         We also ORDER the agency to pay the appellant the correct amount of back
    pay, interest on back pay, and other benefits under the Office of Personnel
    4
    On review, the agency has submitted alleged new evidence in support of its argument
    that the appellant is not qualified to perform the Custodian (Trainee) position. PFR
    File, Tab 1 at 29-62. Because the agency has failed to show that this evidence was
    unavailable prior to the close of the record below despite its due diligence, we have not
    considered it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
    8
    Management’s regulations, no later than 60 calendar days after the date of this
    decision. We ORDER the appellant to cooperate in good faith in the agency’s
    efforts to calculate the amount of back pay, interest, and benefits due, and to
    provide all necessary information the agency requests to help it carry out the
    Board’s Order. If there is a dispute about the amount of back pay, interest due,
    and/or other benefits, we ORDER the agency to pay the appellant the undisputed
    amount no later than 60 calendar days after the date of this decision.
    ¶15        We further ORDER the agency to tell the appellant promptly in writing
    when it believes it has fully carried out the Board’s Order and of the actions it
    took to carry out the Board’s Order. The appellant, if not notified, should ask the
    agency about its progress. See 5 C.F.R. § 1201.181(b).
    ¶16        No later than 30 days after the agency tells the appellant that it has fully
    carried out the Board’s Order, the appellant may file a petition for enforcement
    with the office that issued the initial decision on this appeal if the appellant
    believes that the agency did not fully carry out the Board’s Order. The petition
    should contain specific reasons why the appellant believes that the agency has not
    fully carried out the Board’s Order, and should include the dates and results of
    any communications with the agency. 5 C.F.R. § 1201.182(a).
    ¶17        For agencies whose payroll is administered by either the National Finance
    Center of the Department of Agriculture (NFC) or the Defense Finance and
    Accounting Service (DFAS), two lists of the information and documentation
    necessary to process payments and adjustments resulting from a Board decision
    are attached. The agency is ORDERED to timely provide DFAS or NFC with all
    documentation necessary to process payments and adjustments resulting from the
    Board’s decision in accordance with the attached lists so that payment can be
    made within the 60-day period set forth above.
    9
    NOTICE TO THE APPELLANT REGARDING
    YOUR RIGHT TO REQUEST
    ATTORNEY FEES AND COSTS
    You may be entitled to be paid by the agency for your reasonable attorney
    fees and costs. To be paid, you must meet the requirements set out at title 5 of
    the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
    regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
    you believe you meet these requirements, you must file a motion for attorney fees
    WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
    must file your attorney fees motion with the office that issued the initial decision
    on your appeal.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request further review of this final decision.
    Discrimination Claims: Administrative Review
    You may request review of this final decision on your discrimination
    claims by the Equal Employment Opportunity Commission (EEOC). See title 5
    of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).       If you
    submit your request 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 your request 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, NE
    Suite 5SW12G
    Washington, D.C. 20507
    10
    You should send your request to EEOC no later than 30 calendar days after your
    receipt of this order. If you have a representative in this case, and your
    representative receives this order before you do, then you must file with EEOC no
    later than 30 calendar days after receipt by your representative. If you choose to
    file, be very careful to file on time.
    Discrimination and Other Claims: Judicial Action
    If you do not request EEOC to review this final decision on your
    discrimination claims, you may file a civil action against the agency on both your
    discrimination claims and your other claims in an appropriate United States
    district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
    the district court no later than 30 calendar days after your receipt of this order. If
    you have a representative in this case, and your representative receives this order
    before you do, then you must file with the district court no later than 30 calendar
    days after receipt by your representative. If you choose to file, be very careful to
    file on time. 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.
    FOR THE BOARD:                             ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    DFAS CHECKLIST
    INFORMATION REQUIRED BY DFAS IN
    ORDER TO PROCESS PAYMENTS AGREED
    UPON IN SETTLEMENT CASES OR AS
    ORDERED BY THE MERIT SYSTEMS
    PROTECTION BOARD
    AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
    CASES
    CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
    OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
    1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
    and POC to send.
    2. Statement that employee was counseled concerning Health Benefits and TSP and the
    election forms if necessary.
    3. Statement concerning entitlement to overtime, night differential, shift premium,
    Sunday Premium, etc., with number of hours and dates for each entitlement.
    4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
    System), a statement certifying any lump sum payment with number of hours and
    amount paid and/or any severance pay that was paid with dollar amount.
    5. Statement if interest is payable with beginning date of accrual.
    6. Corrected Time and Attendance if applicable.
    ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
    1. Copy of Settlement Agreement and/or the MSPB Order.
    2. Corrected or cancelled SF 50's.
    3. Election forms for Health Benefits and/or TSP if applicable.
    4. Statement certified to be accurate by the employee which includes:
    a. Outside earnings with copies of W2's or statement from employer.
    b. Statement that employee was ready, willing and able to work during the period.
    c. Statement of erroneous payments employee received such as; lump sum leave, severance
    pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
    Retirement Funds.
    5. If employee was unable to work during any or part of the period involved, certification of the
    type of leave to be charged and number of hours.
    NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
    Below is the information/documentation required by National Finance Center to process
    payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
    ordered by the Merit Systems Protection Board, EEOC, and courts.
    1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
    information describing what to do in accordance with decision.
    2. The following information must be included on AD-343 for Restoration:
    a. Employee name and social security number.
    b. Detailed explanation of request.
    c. Valid agency accounting.
    d. Authorized signature (Table 63)
    e. If interest is to be included.
    f. Check mailing address.
    g. Indicate if case is prior to conversion. Computations must be attached.
    h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
    be collected. (if applicable)
    Attachments to AD-343
    1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
    Premium, etc. with number of hours and dates for each entitlement. (if applicable)
    2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
    amounts.
    3. Outside earnings documentation statement from agency.
    4. If employee received retirement annuity or unemployment, provide amount and address
    to return monies.
    5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
    6. If employee was unable to work during any or part of the period involved, certification of
    the type of leave to be charged and number of hours.
    7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
    Leave to be paid.
    NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
    Period and required data in 1-7 above.
    The following information must be included on AD-343 for Settlement Cases: (Lump
    Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
    a. Must provide same data as in 2, a-g above.
    b. Prior to conversion computation must be provided.
    c. Lump Sum amount of Settlement, and if taxable or non-taxable.
    If you have any questions or require clarification on the above, please contact NFC’s
    Payroll/Personnel Operations at 504-255-4630.
    

Document Info

Filed Date: 6/16/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021