George Haas v. Department of Homeland Security , 2022 MSPB 36 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 36Docket No. DA-0752-17-0304-I-1
George Haas,
Appellant,
v.
Department of Homeland Security,
Agency.
November 7, 2022
Robert Glazer, Houston, Texas, for the appellant.
Judith M. Ubando, Esquire and Valerie Barnett, Houston, Texas, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision in this
appeal, which affirmed his removal. For the reasons discussed below, we DENY
the petition for review. We MODIFY the initial decision to apply the proper
standards for the agency’s charge and the appellant’s equal employment
opportunity (EEO) reprisal claim, VACATE the administrative judge’s finding
regarding recurrence of the appellant’s symptoms, and otherwise AFFIRM the
initial decision.
2
BACKGROUND
¶2 The following facts, as set forth in the initial decision and the record, are
undisputed. Initial Appeal File (IAF), Tab 36, Initial Decision (ID).
The appellant was employed as a Customs and Border Protection Officer (CBPO),
a position that has medical standards. ID at 2; IAF, Tab 8 at 129-38, 148-62. He
worked at the Port of Houston Airport, processing passengers as they arrived
from outside the United States. ID at 2; IAF, Tab 8 at 129-38, 148-62. For many
years, the appellant worked exclusively in the “Primary Inspection” area, which
involves the initial questioning of passengers and inspection of thei r documents.
ID at 2, 28 n.11. On May 6, 2015, the agency assigned him to work part of his
day in “Hard Secondary,” which is the second step in the screening process for
passengers who require additional questioning. ID at 2-3.
¶3 The appellant objected to working in Hard Secondary, stating, as relevant
here, that doing so would violate his medical restrictions. ID at 3 -5. He sent an
email to the agency’s EEO office and one of his managers, asserting that he had a
disability “which is permanent and limits and servilely [sic] interferes with a
major life function.” IAF, Tab 8 at 115-16. The email quickly came to the
attention of the Port Director, who instructed the appellant to provide med ical
documentation about his ability to perform his duties. Id. at 108-10, 114;
ID at 4-5. At the same time, the agency revoked the appellant’s authority to carry
a Government-issued firearm. IAF, Tab 8 at 111-12; ID at 5. When the appellant
provided documentation reflecting a diagnosis of bipolar disorder, the agency
deemed it insufficient to determine whether he met the medical requirements of
his position. IAF, Tab 8 at 98-107; ID at 5-6. Therefore, the agency ordered him
to attend first a medical fitness-for-duty examination and then a psychiatric
independent medical evaluation (IME), in August and October 2015, respectively.
ID at 6-8.
¶4 The IME psychiatrist agreed with the appellant’s diagnosis of bipolar
disorder and found the appellant was not symptomatic at the time of the
3
examination. IAF, Tab 8 at 28-29. However, he expressed concern that, when
symptomatic, the appellant could exhibit “impairment in judgment . . . [and]
insight, impulsivity, delusions, hallucinations, severe depression with suicidal
thoughts and impaired cognition.” Id. at 29. The IME psychiatrist stated that, in
these circumstances, the appellant would be unable to make the “quick decisions
required in law enforcement situations to protect the lives of self, the public and
other law enforcement personnel.” Id.
¶5 In December 2015, after receiving the results of the IME, the agency
concluded that the appellant was unable to perform the essential functions of his
position, with or without accommodation. Id. at 14, 16-18, 63-64; ID at 8.
The agency searched for vacant funded positions over the following months but
only found ones outside his local commuting area at lower grade levels. ID at 8.
The agency offered these positions to the appellant, who declined them. Id.
In August 2016, the agency offered the appellant the options of resigning,
applying for retirement, or requesting assistance searching for reassignment to
another agency, but the appellant failed to respond. Id.
¶6 In October 2016, the Port Director proposed the appellant’s removal for
inability to perform the essential duties of a CBPO. Id.; IAF, Tab 8 at 4-8. He
stated that certain limitations on scheduling identified by the IME psychiatrist did
not affect any essential function of the CBPO position. IAF, Tab 8 at 5.
However, he identified other restrictions, such as the appellant’s inability to
exercise proper judgment, carry a firearm, or protect himself or others in law
enforcement situations if his bipolar disorder were s ymptomatic, as rendering him
unable to perform the essential functions of his position. Id. at 5-6.
¶7 The next month, the appellant responded to the proposed removal. ID at 8.
At that time, the deciding official and the appellant agreed to search once again
for any vacant positions to which he could be reassigned. Id. In January 2017,
the agency located such a position, but the appellant rejected it 2 months later.
ID at 9. Ultimately, in April 2017, the deciding official removed the appellant for
4
inability to perform the essential functions of his position . Id.; IAF, Tab 7
at 27-33.
¶8 The appellant filed the instant appeal, challenging his removal. IAF, Tab 1.
After developing the record and holding his requested hearing, the administrative
judge issued an initial decision that affirmed the removal. ID at 1, 35; IAF, Tab 1
at 2. She found that the agency met its burden of proving the charge. ID at 9 -15.
She considered whether new medical evidence presented by the appellant showed
that he had recovered sufficiently to perform his duties, but found that it did not.
ID at 15-18. She further found that the appellant failed to prove his affirmative
defenses of disability discrimination, ID at 18-27, reprisal for protected EEO
activity, ID at 27-29, and harmful procedural error, ID at 29-34. Finally, the
administrative judge found that the agency met its burden of proving nexus
between the appellant’s inability to perform his duties and the efficiency of the
service and that removal was reasonable. ID at 34-35. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
a response. PFR File, Tab 3.
ANALYSIS
Because the appellant’s removal was not based solely on his medical history,
5 C.F.R. § 339.206 does not set forth the agency’s burden to prove its charge .
¶9 The agency based the appellant’s removal on a charge of “inability to
perform the essential duties of a [CBPO].” IAF, Tab 8 at 4. In the lone
specification underlying the charge, the agency asserted that the appellant was
“unable to safely, efficiently or reliably perform the essential duties of a
[CBPO].” Id. The agency explained that the duties of the CBPO position
included, inter alia, carrying a firearm, performing apprehensions and arrests,
exercising sound judgment, maintaining mental alertness at all times, and
functioning under dynamic and stressful conditions in which there are concerns
for national security and threats of terrorism. Id. at 6. The proposal further
5
explained that medical documentation indicated that his bipolar disorder could
result in emotional instability and impaired cognition. Id. at 5, 29.
¶10 Though not raised by either party, we modify the initial decision to the
extent that the administrative judge relied on 5 C.F.R. § 339.206 to analyze the
agency’s charge. IAF, Tab 24 at 3; ID at 9; see 5 C.F.R. § 1201.115(e)
(providing that although the Board normally will consider only issues raised by
the parties on review, it reserves the authority to consider any issue in an appeal
before it). We take this opportunity to clarify the proper standard for the removal
of an employee from a position with medical standards, such as the CBPO, based
on a current medical condition that impacts his ability to safely and efficiently
perform the core duties of his position.
¶11 As relevant here, 5 C.F.R. § 339.206 provides that an employee may not be
removed from a position subject to medical standards “solely on the basis of
medical history.” 1 The regulation provides an exception only if the condition
itself is disqualifying, recurrence “is based on reasonable medical judgment,” and
the position’s duties are such that a recurrence “would pose a significant risk of
substantial harm to the health and safety of the . . . employee or others that cannot
be eliminated or reduced by reasonable accommodation or any other agency
efforts to mitigate risk.” 2 This regulation does not define the meaning of the term
1
For the sake of simplicity, this decision will exclusively refer to positions with
medical standards, but the regulation also applies to positions subject to “physical
requirements” and those “under medical evaluation programs.” 5 C.F.R. § 339.206.
2
Effective March 21, 2017, five months after the agency proposed the appellant’s
removal but weeks before its effective date, the Office of Personnel Management
amended 5 C.F.R. § 339.206 as to the degree of risk required. 5 C.F.R. § 339.206(indicating an effective date of March 21, 2017); Medical Qualification Determinations,
82 Fed. Reg. 5340-01, 5346-47, 5352 (Jan. 18, 2017) (Final Rule), 82 Fed. Reg.
10959-01 (delaying the effective date of the Final Rule to March 21, 2017). The
previous version required only a “reasonable probability of substantial harm.” 5 C.F.R.
§ 339.206 (2017). Because we find, as discussed below, that the regulation does not
apply to the agency’s charge here, we need not address whether the changes to the
regulation apply retroactively.
6
“medical history.” However, 5 C.F.R. part 339 contains a provision stating that a
“history of . . . medical condition(s) . . . includ[es] references to findings from
previous examinations, treatment, and responses to treatment.”
5 C.F.R. § 339.104(1). This explanation of medical history suggests that such a
history exists when the employee’s medical records indicate that he was examined
or treated for the medical condition in question.
¶12 Similarly, the dictionary defines “history” to include “an account of a
patient’s medical background.” Merriam-Webster’s Collegiate Dictionary 549
(10th ed. 2002). Further, the Office of Personnel Management (OPM) expressed
the intent that actions covered by 5 C.F.R. part 339 comply with the
nondiscrimination provisions of the Rehabilitation Act of 1973 and the Americans
with Disabilities Act (ADA) of 1990, as amended. 5 C.F.R. § 339.103(a).
The ADA defines disability to include a “record of . . . an impairment,” as
distinct from having a current impairment. 42 U.S.C. § 12102(1)(A), (B).
The ADA’s implementing regulations provide that an individual has a record of
impairment if he “has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more major life activities.”
29 C.F.R. § 1630.2(k). Given these definitions, we find that a removal is based
solely on medical history if the only basis for concluding that the employee is
medically unable to perform the core duties of his position is the fact that his
medical records reflect that, at some time in the past, he was classified as having,
was examined for, or was treated for the medical condition or impairment in
question.
¶13 Contrary to our current finding and beginning with Lassiter v. Department
of Justice, 60 M.S.P.R. 138, 141-42, 146 (1993), the Board applied 5 C.F.R.
§ 339.206 to all cases in which an appellant who was subject to medical standards
was removed for medical inability to perform his position . It applied this
standard regardless of whether an appellant’s medical history was the sole basis
for his removal. For example, in Lassiter, the Board recognized that the appellant
7
had not shown that he had been cured of his delusional paranoid disorder, which
had been the basis for his removal. 60 M.S.P.R. at 145-46 & n.3. It nonetheless
found that 5 C.F.R. § 339.206 represented the proper standard for the agency’s
charge because the appellant occupied a position subject to medical standards.
60 M.S.P.R. at 141-42. In making this finding, however, the Board failed to cite
or consider the regulatory requirement that the appellant’s removal be “solely on
the basis of medical history.” See id.; 5 C.F.R. § 339.206.
¶14 Following Lassiter, the Board continued to apply the same standard to cases
involving present medical inability to perform. See Sanders v. Department of
Homeland Security, 122 M.S.P.R. 144, ¶¶ 2, 11-16, 18-19 (applying the standard
in 5 C.F.R. § 339.206 when an appellant was removed based on his inability to
perform his duties due to an existing medical condition, rather than his medical
history), aff’d per curiam, 625 F. App’x 549 (Fed. Cir. 2015); Brown v.
Department of the Interior, 121 M.S.P.R. 205, ¶¶ 4, 8 (2014) (applying 5 C.F.R.
§ 339.206 when an appellant was removed based not only on her medical history
but also on current physical restrictions affecting her ability to perform her job
duties); Slater v. Department of Homeland Security, 108 M.S.P.R. 419, ¶¶ 6-7,
13-17 (2008) (finding that 5 C.F.R. § 339.206 applied to the removal of an
employee due to his current diabetes-related polyneuropathy, which caused his
inability to perform his duties safely and efficiently without undue risk of harm to
self or others). These cases continued the error of applying 5 C.F.R. § 339.206 to
a charge of inability to perform involving current medical conditions.
We overrule this line of cases to the extent that the Board applied
5 C.F.R. § 339.206 to a charge of medical inability when the appellant was
removed based on his current medical condition or impairment.
¶15 For cases involving a charge of inability to perform that do not fall under
5 C.F.R. § 339.206, the agency must prove either a nexus between the employee’s
medical condition and observed deficiencies in his performance or conduct, or a
high probability, given the nature of the work involved, that his condition may
8
result in injury to himself or others. Clemens v. Department of the Army,
120 M.S.P.R. 616, ¶ 5 (2014); Fox v. Department of the Army, 120 M.S.P.R. 529,
¶¶ 24-25 (2014). 3 The Board has otherwise described the standard as requiring
that the agency establish that the appellant’s medical condition prevents h im from
being able to safely and efficiently perform the core duties of h is position.
Clemens, 120 M.S.P.R. 616, ¶ 5; Fox, 120 M.S.P.R. 529, ¶ 24.
¶16 The determination of whether the Clemens standard or the standard under
5 C.F.R. § 339.206 applies may well be outcome determinative in some cases.
If section 339.206 is applied, an agency must prove that recurrence of the
condition poses “a significant risk of substantial harm to the health and safety of
the . . . employee or others that cannot be eliminated or reduced by reasonable
accommodation or any other agency efforts to mitigate risk.” Supra ¶ 11 & n.2.
Here, the parties agree that the appellant has bipolar disorder . E.g., IAF, Tab 7
at 36-38, Tab 8 at 28, 103. Although the appellant was “asymptomatic” at the
time of his removal, the parties agree that he had this medical condition when he
was removed. E.g., IAF, Tab 7 at 36-38, Tab 8 at 28, 103. In removing the
appellant, the agency cited to his bipolar disorder as causing him to be unable to
carry a weapon or perform other functions related to law enforcement.
IAF, Tab 8 at 6. If the standard from 5 C.F.R. § 339.206 were applied to the
instant appeal, the agency would be required to prove that recurrence would pose
a risk of harm, even though, as discussed below, the appellant’s removal was not
3
In both Fox and Clemens, the Board rejected the application of Slater, 108 M.S.P.R.
419, ¶¶ 6-7, 13-17, and 5 C.F.R. § 339.206 because the employees at issue did not
occupy positions with medical standards. Clemens, 120 M.S.P.R. 616, ¶ 4;
Fox, 120 M.S.P.R. 529, ¶ 24. But in doing so, those decisions suggested that the
general standard for inability to perform could not apply to positions with medical
standards. Clemens, 120 M.S.P.R. 616, ¶ 4; Fox, 120 M.S.P.R. 529, ¶ 25. Our decision
in the instant appeal finds otherwise. Therefore, the caveat alluded to in Clemens and
Fox—that the employee does not occupy a position with medical standards or physi cal
requirements or that is subject to medical evaluation programs in order for the general
standard to apply—is no longer operative.
9
solely based on his medical history of bipolar disorder, but also on his present
inability to perform his core duties. IAF, Tab 7 at 28, 30-31, Tab 8 at 5-7.
¶17 The appellant argues, in essence, that his removal was based solely on his
medical history. PFR File, Tab 1 at 10-14. For example, the appellant argues
that because he was “asymptomatic” and his bipolar disorder was in “remission,”
the agency’s determination that he was medically unable to perform his core
duties is speculative. Id. at 10-11, 13-14. We disagree. The U.S. Court of
Appeals for the Federal Circuit has found, and the Board has followed, that when
“a party is diagnosed with a medical condition that is by its nature ‘permanent or
progressive’ in severity, it will be assumed to continue to exist after the date
of diagnosis absent rebuttal evidence of record to the contrary.” Pyles v. Merit
Systems Protection Board, 45 F.3d 411, 415 (Fed. Cir. 1995); see Walker v.
Department of Veterans Affairs, 109 M.S.P.R. 158, ¶ 9 (2008). The National
Institute of Mental Health explains that bipolar disorder is a lifelong illness
characterized by “periods of unusually intense emotion, changes in sleep patterns
and activity levels, and uncharacteristic behaviors,” typically recurring over time.
National Institute of Mental Health, Bipolar Disorder, https://www.nimh.nih.gov/
health/topics/bipolar-disorder/index.shtml (last visited Nov. 7, 2022).
¶18 Although the appellant may not have exhibited symptoms to the IME
psychiatrist or his health care providers, one of his health care providers indicated
that his condition is chronic and that the appellant “is to be monitored for any
acute decompensation.” IAF, Tab 8 at 103. She further stated that it was not
possible to predict the likelihood that an individual with bipolar disorder would
decompensate and that any changes in the appellant’s schedule could cause him to
decompensate in mood. Id. at 99, 103. Further, the IME psychiatrist testified
that individuals suffering from bipolar disorder may not realize in advance that
they have become symptomatic. IAF, Tab 31, Hearing Compact Disc, Day 1
(HCD1) (testimony of the IME psychiatrist).
10
¶19 The appellant also asserts that it was unlikely he would become
symptomatic because he successfully performed in his position for 17 years.
PFR File, Tab 1 at 11-13. He points to his “successful” performance ratings from
October 1, 2012, to November 30, 2016, successful completion of training
throughout his employment with the agency, and receipt of letters of
commendation and awards. Id. at 15-16; IAF, Tab 28 at 13-16, Tab 30 at 49-84.
We are not persuaded that this evidence outweighs contrary evidence showing the
appellant continued to have symptomatic episodes leading up to his April 2017
removal. In particular, the IME psychiatrist described the appellant’s prognosis
as “guarded because of his history of worsening symptoms when under stress.”
IAF, Tab 8 at 28; HCD1 (testimony of the IME psychiatrist). The appellant
represented to the IME psychiatrist that he had a serious single car accident in
2008, after leaving work due to trouble thinking and focusing, as a result of what
was diagnosed at the time as “work shift disorder.” IAF, Tab 8 at 24.
Further, the appellant had what he described as a “relapse” in September 2014.
IAF, Tab 7 at 96, Tab 8 at 101. According to the appellant’s health care provider,
he reported to her in January 2015 that “mood reactivity had occurred at work in
which he cussed a co-worker” and he had asked to start seeing a counselor. IAF,
Tab 8 at 101. On forms the appellant submitted in connection with the
August 2015 IME examination, he indicated that he suffered from episodes of
depression, periods of anxiety, and sleep disorders. Id. at 38. In sum, at the time
of his removal, the appellant had a present medical condition that could manifest
symptoms at any time. Id. at 5.
We affirm the administrative judge’s finding that the agency proved its charge, as
modified to apply the correct standard.
¶20 Although the administrative judge applied what we have now determined to
be the incorrect standard to the agency’s charge, remand is unnecessary because
the record is fully developed on the relevant issues. See, e.g., Forte v.
Department of the Navy, 123 M.S.P.R. 124, ¶ 27 (2016) (deciding an issue on
11
review, rather than remanding, when the administrative judge applied an incorrect
standard but the record was fully developed). As noted above, when as here the
removal is based on a current medical condition, the agency must prove either a
nexus between the employee’s medical condition and observed deficiencies in his
performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others.
Clemens, 120 M.S.P.R. 616, ¶ 5; Fox, 120 M.S.P.R. 529, ¶¶ 24-25. In other
words, the agency must establish that the appellant’s medical condition prevents
him from being able to safely and efficiently perform the core duties of his
position. Clemens, 120 M.S.P.R. 616, ¶ 5; Fox, 120 M.S.P.R. 529, ¶ 24.
¶21 The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the ADA, as amended by the
Americans With Disabilities Act Amendments Act of 2008 ( ADAAA), i.e., the
fundamental job duties of the position, not including marginal functions.
Clemens, 120 M.S.P.R. 616, ¶ 6; 29 C.F.R. § 1630.2(n)(1). One of the bases for
finding that a function is essential is that it is the “reason the position exists.”
Clemens, 120 M.S.P.R. 616, ¶ 6; 29 C.F.R. § 1630.2(n)(2)(i).
¶22 According to the relevant position description and associated medical
standards, CBPOs are “frontline” uniformed, weapon-carrying border security
officers whose “primary function” includes “detect[ing] and prevent[ing]
terrorists and instruments of terror from entering the United States” and ensuring
border security. IAF, Tab 8 at 129, 139, 148-50, 156, 162. A CBPO must be
“prepared mentally and physically to respond to unexpected situations and have
the functional capacity to defend self and others from threatening situations in
which the use of deadly force may be necessary.” Id. at 129. They “must be free
of any organic, structural or functional impairment(s) or existing health
problem(s) that would be aggravated in response to the work environment and/or
would affect safe and efficient job performance.” Id. Additionally, they must
“exercise sound judgment, maintain mental alertness at all times, and function
12
under dynamic and stressful conditions in which there are time constraints,
concerns for national security, and threats of terrorism.” Id.¶23 The agency based its charge on the appellant’s inability to perform these
functions of his position. IAF, Tab 7 at 30, Tab 8 at 6. The administrative judge
found that these duties were essential functions of the appellant’s position.
ID at 9-10, 21. The parties do not dispute this finding. 4 PFR File, Tab 1 at 5, 14,
Tab 3 at 12. Accordingly, we agree with the administrative judge’s conclusion
that the appellant’s duties set forth above are essential, and thus, constitute core
duties of his position. See Clemens, 120 M.S.P.R. 616, ¶ 6.
¶24 The administrative judge also determined that the agency proved that the
appellant was medically unable to perform these core duties, thus proving its
charge. ID at 9-15. She found persuasive the IME psychiatrist’s testimony that
the appellant was unable to use proper judgment, make quick decisions in law
enforcement situations, or carry a weapon when symptomatic, as required for his
position. ID at 9-15, 21. We agree with this conclusion and modify her
reasoning to the extent that she relied on the standard in 5 C.F.R. § 339.206.
ID at 9-15. In particular, we vacate as unnecessary the administrative judge’s
conclusion that recurrence of the appellant’s symptoms could not be ruled out.
ID at 15. Because the appellant’s removal was not based solely on his medical
history, the agency was required to establish only that his medical condition
prevented him from being able to safely and efficiently perform the core duties of
his position. Clemens, 120 M.S.P.R. 616, ¶ 5. The appellant’s arguments as to
4
In support of its charge, the agency also alleged that the appellant was unable to
perform Hard Secondary duties. IAF, Tab 8 at 6. The administrative judge found that
performing Hard Secondary inspections was an essential function of the appellant’s
position. ID at 15 n.4. She also concluded that he was medically unable to perform
these duties. ID at 14-15. In light of our finding, below, that the appellant could not
perform his position’s duties as described herein, we do not address the parties’
arguments related to whether Hard Secondary inspections were also an essential
function of his position. PFR File, Tab 1 at 14-15, Tab 3 at 12.
13
the likelihood of recurrence are, therefore, misplaced, and we decline to ad dress
them further. PFR File, Tab 1 at 10-14.
¶25 Nevertheless, in determining whether the agency has met its burden, the
Board will consider whether a reasonable accommodation, short of reassignment,
exists that would enable the appellant to safely and eff iciently perform his core
duties. Clemens, 120 M.S.P.R. 616, ¶ 5. The appellant relies on the current
version of 5 C.F.R. § 339.206, which requires an agency to consider whether
reasonable accommodation or other efforts may “eliminate[] or reduce[]” the risk
of harm an employee poses to self or others, to argue that the agency could have
reduced or eliminated the risk of recurrence if he were granted certain scheduling
accommodations. 5 PFR File, Tab 1 at 9-10. However, because the agency did not
remove the appellant solely based on his medical history, it was not required to
prove that it could not eliminate or reduce the risk of recurrence via
accommodation. Rather, the agency removed the appellant because he was not
medically able to perform the core duties of his CBPO position. IAF, Tab 7
at 30, Tab 8 at 4-6, 9. We agree with the administrative judge that the agency
proved that it could not provide a reasonable accommodation that would enable
the appellant to perform his position’s core duties. ID at 21-22. In making this
finding, the administrative judge relied on the opinion of the IME psychiatrist
that the appellant had not been symptom free for sufficient time to be fit for a
weapons-carrying position. Id. Specifically, the IME psychiatrist explained that,
in his view, the appellant would need to remain symptom free and stable for
5 years before he might be fit to carry a weapon. IAF, Tab 8 at 28-30; HCD1
(testimony of the IME psychiatrist).
5
The parties agree that the appellant’s scheduling restrictions did not affect his ability
to perform the essential functions of his position. PFR File, Tab 1 at 9-10; IAF, Tab 8
at 5.
14
¶26 To the extent that the appellant questions the administrative judge’s reliance
on the IME psychiatrist’s opinion, we are not persuaded. PFR File, Tab 1
at 11-14. In reaching her conclusions, the administrative judge properly weighed
the medical evidence. ID at 12-14; see Brown, 121 M.S.P.R. 205, ¶ 11
(recognizing that in assessing the probative weight of medical opinions, the Board
considers whether the opinion was based on a medical examination and provided
a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert’s familiarity with the treatment of the appellant).
For example, she considered that the IME psychiatrist met with the appellant for
more than 4 hours, provided an extensive explanation of his conclusions, had
relevant experience, and was certified in forensic psychiatry. ID at 12-14; IAF,
Tab 8 at 20, 28-30. The appellant’s health care providers expressed the belief
that he was fit for duty. IAF, Tab 7 at 36-38, Tab 8 at 99, 102, Tab 28 at 10-12.
The administrative judge found the opinions of the appellant’s health care
providers lacked reasoned explanations. ID at 14. The appellant provides no
specific argument as to why the administrative judge’s assessment was mistaken,
and we can discern none.
The appellant failed to prove his disability discrimination claims.
¶27 The administrative judge denied all of the appellant’s affirmative defenses.
The appellant’s petition for review focuses on whether the agency could have
provided him with a reasonable accommodation and whether the agency retaliated
against him for engaging in protected EEO activity. PFR File, Tab 1 at 15-19.
Accordingly, we focus on these affirmative defenses. We also examine the
administrative judge’s analysis of the appellant’s affirmative defense of disparate
15
treatment disability discrimination. 6 ID at 18-29. We affirm her findings as to all
three of these affirmative defenses, as modified.
¶28 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. 7 Pridgen v. Office of Management
& Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the ADA, as amended by the ADAAA. Id. Therefore, we apply
those standards here to determine if there has been a Rehabilitation Act violation.
Id. In particular, the ADA provides that it is illegal for an employer to
“discriminate against a qualified individual on the basis of disability.” 42 U.S.C.
§ 12112(a). A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111(8). An employer is
also required to provide reasonable accommodations to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5). Thus, both a claim of
disability discrimination based on an individual’s status as disabled and a claim
based on an agency’s failure to reasonably accommodate that disability require
that the individual be “qualified.” See Flaherty v. Entergy Nuclear Operations,
Inc., 946 F.3d 41, 49, 53-56 (1st Cir. 2019) (explaining that a terminated
employee could not succeed on his status-based and failure to accommodate
disability discrimination claims when he could not prove he was otherwise
6
We decline to disturb the administrative judge’s findings that the appellant failed to
prove his remaining affirmative defenses. ID at 26 -27, 30-34. We also do not disturb
her findings that that the appellant’s removal is reasonable and promotes the efficiency
of the service. ID at 34-35. The parties do not dispute these findings on review.
7
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of
Management & Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
16
qualified for his position); Lewis v. City of Union City, Georgia, 934 F.3d 1169,
1172-73, 1179, 1182-83, 1190-91 (11th Cir. 2019) (remanding a terminated
employee’s disability discrimination claim for the district court to permit a jury to
decide whether the appellant was a qualified individual); Scheidler v. Indiana,
914 F.3d 535, 541 (7th Cir. 2019) (reflecting that disability discrimination claims
under both disparate treatment and failure to accommodate theories require proof
that the plaintiff was qualified); Stevens v. Rite Aid Corporation, 851 F.3d 224,
226-31 (2d Cir. 2017) (affirming a district court’s dismissal of a discharged
employee’s reasonable accommodation claim because he was not a qualified
individual with a disability); McNab v. Department of the Army, 121 M.S.P.R.
661, ¶¶ 6, 8 n.5, 9 (2014) (recognizing that only a qualified individual with a
disability is entitled to relief for his claims of status -based disability
discrimination and denial of reasonable accommodation, but denying his claim on
other grounds); Clemens, 120 M.S.P.R. 616, ¶¶ 2, 10-11, 17 (reversing an
administrative judge’s finding that an agency denied reasonable accommodation ,
concluding, as relevant here, that the appellant was not a qualified individual);
Fox, 120 M.S.P.R. 529, ¶ 34 (concluding that an appellant was not a qualified
individual with a disability and therefore did not prove her claim that the agency
wrongfully denied her reasonable accommodation); Smith v. Department of
Veterans Affairs, 101 M.S.P.R. 366, ¶¶ 2-3, 9-11 (2006) (finding that an
administrative judge properly rejected an appellant’s status-based disability
discrimination claim because he was not qualified); Pickens v. Social Security
Administration, 88 M.S.P.R. 525, ¶ 7 (2001) (stating that an appellant alleging
status-based disability discrimination must establish that she is a qualified
individual with a disability); Verla G. v. U.S. Postal Service, EEOC Appeal
No. 0120160990, 2018 WL 1061888, at *1-2 (Feb. 8, 2018) (providing that an
employee alleging disparate treatment disability discrimination must prove, in
pertinent part, that she is a qualified individual with a disability); 29 C.F.R.
§§ 1630.4(a)(1), 1630.9(a)-(b) (reflecting, with exceptions not applicable here,
17
that “[i]t is unlawful” to discriminate against, or deny reasonable accommodation
to, a “qualified” individual with a disability). 8
¶29 In the past, the Board has, on occasion, omitted from its discussion of an
appellant’s burden to prove disability discrimination the requirement that he
prove he is a qualified individual. E.g., Thome v. Department of Homeland
Security, 122 M.S.P.R. 315, ¶¶ 24-25 (2015) (omitting the qualified individual
requirement from the discussion of disability discrimination) ; Burton v. U.S.
Postal Service, 112 M.S.P.R. 115, ¶¶ 14-16 (2009) (omitting the qualified
individual requirement from the analysis of a status-based disability
discrimination claim); Doe v. U.S. Postal Service, 95 M.S.P.R. 493, ¶¶ 8-10
(2004) (omitting the qualified individual requirement from the discussion of a
status-based disability discrimination claim), overruled on other grounds by
Marcell v. Department of Veterans Affairs, 2022 MSPB 33, ¶ 7. To the extent
this has caused confusion, we take this opportunity to clarify that only an
otherwise qualified individual with a disability is entitled to relief under the ADA
for a claim of status-based discrimination or denial of reasonable
accommodation. 9
8
The Board generally defers to the Equal Employment Opportunity Commission
(EEOC) on issues of substantive discrimination law unless the EEOC’s decision rests
on civil service law for its support or is so unreasonable that it amounts to a violation of
civil service law. Pridgen, 2022 MSPB 31, ¶ 40.
9
Some disability discrimination claims can be resolved without reaching the issue of
whether an appellant is otherwise qualified. For example, in Thome, 122 M.S.P.R. 315,
¶ 25, the Board determined that the appellant did not prove her disability discrimination
claim because she did not prove she was disabled. The Board did not address whether
the appellant was qualified. Id. Because an appellant must prove both that she is
disabled and qualified, the fact she did not prove she was disabled was determinative,
and a finding on whether she was qualified was not necessary. Similarly, the issue of
whether an individual is qualified may not be in dispute in every case. See Pridgen,
2022 MSPB 31, ¶ 38 n.11 (declining to address whether an appellant was a qualified
individual with a disability because the parties did not dispute that she was).
18
¶30 The administrative judge determined that the appellant was not a qualified
individual with a disability. ID at 19-24. Regarding reasonable accommodation,
we agree with the administrative judge that the appellant could not perform his
position’s core duties. We also agree that performing these duties was an
essential function of his position. While the appellant suggests that his
performance history supports a finding that he is qualified, we disagree. Our
conclusion is based on the nature of bipolar disorder, his work-related incidents
between 2008 and 2015, the appellant’s own representations of his condition, and
medical opinions offered by both the agency and the appellant. Supra ¶¶ 17-19.
Finally, the appellant has not identified an alternative position that he desires.
See Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 18 (2015)
(indicating that an appellant failed to engage in the interactive process when, as
relevant here, he did not identify any vacant, funded position to which the agency
might have reassigned him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Instead, the
appellant rejected the agency’s offers of reassignment. IAF, Tab 7 at 34-35,
42-43, 58-59, Tab 8 at 10. For the foregoing reasons, he cannot prevail on his
claim of disability discrimination based on either a reasonable accommodation or
disparate treatment theory.
The appellant failed to prove his EEO reprisal claim.
¶31 The administrative judge found that the appellant failed to prove that his
protected EEO activity was a motivating factor in his removal. ID at 27-29.
The motivating factor standard applies to claims of reprisal for engaging in
activity protected under Title VII. See Pridgen, 2022 MSPB 31, ¶¶ 21-22, 30.
Specifically, under Title VII, an appellant must show that the prohibited
consideration was a motivating factor in the personnel action. Id. However, the
Board recently recognized that a more stringent standard applies in the context of
retaliation claims arising under the ADA, such that the appellant must prove that
his prior EEO activity was a “but-for” cause of the retaliation. Id., ¶¶ 43-47. As
discussed below, we affirm the administrative judge’s factual findings and reach
19
the same conclusion, while modifying the initial decision to apply the correct
standard.
¶32 The administrative judge recognized that the appellant engaged in several
protected activities on various dates between at least August 2014 and
August 2015. ID at 27-28. Those protected activities included an EEO complaint
alleging harassment and discrimination involving his disability, IAF, Tab 7 at 96,
requests for reasonable accommodation, IAF, Tab 8 at 85-86, 99, Tab 28
at 28, 31, and requests for EEO counseling concerning allegations of disability
discrimination and retaliation for requesting reasonable accommodation,
IAF, Tab 8 at 115-16. These activities are protected under the ADA, not
Title VII. See Pridgen, 2022 MSPB 31, ¶ 44 (recognizing that requesting a
reasonable accommodation and challenging disability discrimination are activities
protected by the ADA). Because we agree with the administrative judge that the
appellant failed to meet the lesser burden of proving his protected activity was a
motivating factor in his removal, he necessarily failed to meet the more stringent
“but-for” standard that applies to the appellant’s retaliation claim.
¶33 The administrative judge acknowledged that the officials who proposed and
decided the appellant’s removal had prior knowledge of at least some of his
protected activities. ID at 28-29; see, e.g., IAF, Tab 7 at 27-33, Tab 8 at 4-8,
48-49, 67-69, 108-10, 114-16. But she ultimately credited their testimony
denying that the appellant’s protected activity had any effect on their actions.
ID at 29. On review, the appellant argues that the administrative judge failed to
discuss several matters that weigh against the Port Director’s credibility. 10
PFR File, Tab 1 at 16-19. As we understand his arguments, the appellant is
10
Although the appellant generally asserted that the administrative judge erred in
finding the proposing and deciding officials credible when they denied any improper
motivation, PFR File, Tab 1 at 16, each accompanying argument pertains only to the
proposing official, who was the Port Director, id. at 17-19.
20
implicating two credibility factors: the contradiction or consistency of this
witness’s testimony with other evidence and the inherent improbability of his
version of events. See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987) (recognizing these and other factors that must be considered in analyzing
the credibility of witness testimony). The appellant asserts that there is no
evidence corroborating the Port Director’s testimony that he granted the
appellant’s request for accommodation; he never adequately explained why he
initiated the fitness-for-duty examination but not the reasonable accommodation
process in May 2015; his testimony about who decided to revoke the appellant’s
authority to carry a weapon was inconsistent with another witness’s testimony;
and the Port Director could not articulate who informed him that the appellant
was unable to work in Hard Secondary. PFR File, Tab 1 at 17-18. He also argues
that the administrative judge did not give sufficient weight to evidence that the
Port Director’s May 2015 letter requiring him to provide medical documentation
was prompted by protected activity. Id. at 18. We are not persuaded.
¶34 An administrative judge’s failure to mention all of the evidence of record
does not mean that she did not consider it in reaching her decision. Mithen v.
Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015), aff’d, 652 F.
App’x 971 (Fed. Cir. 2016). Not specifically discussing every evidentiary matt er
or credibility factor does not mean that an administrative judge failed to consider
them. Id. Further, the Board must give deference to an administrative judge’s
credibility determinations when they are based explicitly or implicitly on the
observation of the demeanor of witnesses testifying at a hearing. Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016);
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the
administrative judge implicitly relied on demeanor in finding that the Port
Director credibly denied that the appellant’s protected activity had any effect on
his actions. ID at 29. The appellant’s arguments do not provide sufficiently
sound reasons for us to overturn the administrative judge’s credibility findings.
21
Accordingly, the appellant has failed to prove that his protected activities were a
motivating factor in his removal, much less a “but-for” cause of his removal. We
affirm the initial decision, as modified by this Opinion and Order.
ORDER
¶35 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 11
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).
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 possibl e 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.
11
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.
22
(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.
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
23
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (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 foun d at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
24
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. 12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
12
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wit h 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.
25
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.