# Corri Gobin v. Department of the Air Force

> Merit Systems Protection Board · June 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10345454

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 25, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10345454

## How later opinions describe it (automated extraction)

- stating that the Rehabilitation Act is not designed to insulate disabled individuals from disciplinary actions that would be taken against any employee regardless of her status

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

CORRI GOBIN, DOCKET NUMBER
Appellant, SF-0752-18-0567-I-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: June 25, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronica Scales , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.

Andrew Joseph Romey , Joint Base Andrews, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation or 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. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The agency removed the appellant from her position based on a single
charge of falsification of a medical note. Initial Appeal File (IAF), Tab 1 at 33,
Tab 4 at 31, 95-97. The appellant filed an appeal in which she challenged her
removal and contended that it constituted disability discrimination and retaliation.
The administrative judge found that the agency proved its charge, the appellant
failed to prove her affirmative defenses, and the penalty of removal was
reasonable.
To prove a charge of falsification, the agency must show by preponderant
evidence that the appellant supplied wrong information and knowingly did so
with the intention of defrauding, deceiving, or misleading the agency for her own
private material gain. Gardner v. Department of Veterans Affairs, 123 M.S.P.R.
647, ¶ 11 (2016), clarified by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-24. The appellant admitted that she altered the medical
note, but she denied that she had the intent to deceive the agency. Hearing
Recording (HR), Track 4, testimony of the appellant. She alleged that every
statement she inserted into the forged note was something that one of her doctors
had told her except for the statement that she should not take any tests. Id. She
admitted that she fabricated that statement. Id. The appellant altered a medical
3

note, included in the alteration a statement that she should not take tests, a
statement which she invented on her own, and she submitted it the day before the
day she was supposed to take a test she had already failed twice and needed to
pass to stay in her position. 2 We find that the administrative judge correctly
found that the agency proved its falsification charge.
The administrative judge found that the appellant failed to show that her
removal constituted disability discrimination. Initial Appeal File (IAF), Tab 22,
Initial Decision (ID) at 12-16. Although the appellant claims that she was
entitled to reasonable accommodation, we agree with the administrative judge
that the appellant has not shown that she was entitled to reasonable
accommodation. This is a misconduct case. The appellant is not entitled to an
accommodation that would have prevented her from falsifying the medical note.
Cf. Wilber v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992) (stating that the
Rehabilitation Act is not designed to insulate disabled individuals from
disciplinary actions that would be taken against any employee regardless of her
status); Walsh v. U.S. Postal Service, 74 M.S.P.R. 627, 634-35 (1997) (finding
that Congress intended in the Americans with Disabilities Act (ADA) to require
agencies to treat disabled employees the same as non-disabled employees with
respect to discipline). Whether the appellant may have been entitled to a
reasonable accommodation relating to testing conditions is a matter beyond the
Board’s purview because the agency’s testing schedule and conditions are not
adverse actions otherwise appealable to the Board.
We also agree with the administrative judge that the appellant failed to
show, based on evidence that was available to the agency at the time it removed
her, that she was disabled. To prove disability discrimination, the appellant must
2
The record is unclear as to any deadline for the appellant to have passed the test. It is
not clear whether she would have been offered another opportunity to take the test if
she had taken it as scheduled and failed. The appellant’s supervisor testified that, if she
did not eventually get her certification, he did not intend to remove her; he intended to
reassign her to a position that did not require the certification. HR, Track 1, testimony
of V; IAF, Tab 17 at 16.
4

first establish that she is an individual with a disability as that term is defined in
the ADA Amendments Act and the Equal Employment Opportunity Commission’s
(EEOC) regulations. Thome v. Department of Homeland Security, 122 M.S.P.R.
315, ¶ 24 (2015). The appellant may prove that she has a disability by showing
that she has a physical or mental impairment that substantially limits one or more
major life activities, has a record of such an impairment, or is regarded as having
such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An
impairment is considered to be a disability if it substantially limits an individual’s
ability to perform a major life activity as compared to most people in the general
population. 29 C.F.R. § 1630.2(j)(1)(ii). The term “substantially limits” is
construed broadly in favor of expansive coverage, to the maximum extent
permitted under the ADA, and is not meant to be a demanding standard.
29 C.F.R. § 1630.2(j)(1)(i).
At the time of her removal, the appellant was being treated by unnamed
specialists for an unknown condition that manifested in skin lesions, visible on
her arms and legs. HR, Track 1, testimony of V. After her removal, the
appellant, according to her testimony, was diagnosed with a condition we will
refer to as “V” due to disease in a major organ. HR, Track 4, testimony of the
appellant. There is not a single piece of medical documentation in the record.
The appellant has not identified any of the doctors who treated her, nor has she
identified their specializations. She has not claimed that she was limited in any
major life activity. In fact, she appears to have continued with her normal life as
she always had, including maintaining an active practice of scuba diving.
The only limitations the appellant has ever claimed are a sense of mental
fogginess and memory problems (in the form of difficulty in retaining new
information) as a side effect of medication “P” she took off and on to manage
whatever was causing the skin lesions (now known to be V). HR, Track 4,
testimony of the appellant. The appellant did not take P consistently; she testified
that she stopped taking it several days before the scheduled February 28, 2018
5

test date. Id. There is, again, no medical documentation to substantiate the
nature and severity of the side effects she may have been experiencing but,
whatever they may have been, she felt alert enough to continue scuba diving even
while she was taking her medication. Id.
We find that the appellant’s condition, as it was known at the time of her
removal, i.e., skin lesions, was not a “disability” as defined in the EEOC’s
regulations at 29 C.F.R. § 1630.2(g)(1)(a) because the appellant did not proffer
any medical or anecdotal evidence showing that the lesions substantially limited
one or more major life activity. Indeed, she never made such a claim. The
appellant’s post-removal diagnosis, for which there is no medical documentation,
does not establish that the appellant was disabled at the time of her removal. Cf.
Brown v. Department of Health and Human Services, EEOC Request No.
05921024, 1992 WL 1370708, *8 (1993) (“[T]he agency’s accommodation
obligation arises only when the disability is known. . . . [T]he Commission must
focus on the information available to the decision-maker at the time of her
decision, as opposed to any information submitted into the record during the
processing of this complaint.”). Thus, the appellant’s evidence of disability as of
the date of the hearing is insufficient to show that she was disabled and that her
disability was known to the agency as of the date of her removal.
The appellant’s condition, limited solely to the mental fogginess and
memory issues she suffered as a side effect of the P as opposed to the condition
the P was designed to treat, could arguably constitute a “disability” for
purposes of the ADA, even if the underlying condition is not a “disability.”
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 186-87 (3rd Cir. 2010);
Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051, 1052 (7th Cir.
1997). We agree with the administrative judge that the appellant failed to show
that the side effects of her medication were disabling because there was no
medical evidence to substantiate her claims that the medication caused
impairments that made it difficult for her to focus, learn, and maintain alertness.
6

In addition, the weight of the evidence shows that these alleged impairments did
not manifest in other areas of her job performance, and she did not limit any of
her other activities, even those requiring a high degree of alertness and
concentration, in particular, scuba diving. HR, Track 1, testimony of V, Track 4,
testimony of the appellant. The appellant’s supervisor was also a scuba diver and
had personal knowledge of the risks and dangers involved in scuba diving and the
mental requirements for safe diving, and he personally witnessed the appellant
diving. HR, Track 1, testimony of V. In other words, the appellant’s claim that
she was impaired was uncorroborated by medical evidence or by any other
observable indicia.
Regarding the appellant’s allegation of retaliation for having engaged in
protected activity, a request of reasonable accommodation is protected activity
under 42 U.S.C. § 12203(a). See Southerland v. Department of Defense,
119 M.S.P.R. 566, ¶ 21 (2013), overruled on other grounds by Pridgen,
2022 MSPB 31. In Pridgen, 2022 MSPB 31, ¶¶ 46-47, the Board found that the
“but-for” standard is applicable to retaliation claims under the Rehabilitation Act,
overruling the Board’s finding in Southerland.
Here, the appellant never used the term “reasonable accommodation” or
invoked the agency’s reasonable accommodation process, and the agency did not
deem her to have requested reasonable accommodation. However, the appellant’s
supervisor prepared a memorandum for the record in which he stated, “[The
appellant] was asked multiple times about how her studies were going and she
mentioned that she needed more time due to some new meds that she was taking,
which, according to her, did not allow her to concentrate very well.” IAF, Tab 13
at 19. This general request for assistance for alleged medical reasons is sufficient
to at least trigger the agency’s obligation to engage in the interactive process, and
as such, it constitutes activity protected under the Rehabilitation Act. The
administrative judge correctly found that both the deciding and proposing
officials denied that they were aware of any such protected activity. ID at 20.
7

The proposing official’s testimony on this point is incorrect in light of the email
message quoted above. He knew about the appellant’s protected activity,
although he may not have recognized it as such. There is no evidence, however,
that the deciding official had any knowledge of any protected activity and, thus,
no evidence that his decision was motivated even in part by retaliatory animus.
The appellant contends that the agency’s action constitutes reprisal because
she refused to comply with her supervisor’s instructions to sign a letter. Under
5 U.S.C. § 2302(b)(9)(D), it is a violation of the Whistleblower Protection Act, as
amended, to retaliate against an employee for refusing to obey an order that
would require the individual to violate a law, rule, or regulation. There is one
email on this issue, from the supervisor to the appellant asking her to “please sign
the attachment so we can get pass [sic] this.” IAF Tab 15 at 58. The name of the
attachment, according to the email, is “ITAM Appt Letter 074”; the attachment
itself is not in the record. Id. The appellant’s position, according to her
testimony, was that her supervisor was ordering her to sign off on an inventory of
computer equipment that had not yet been performed and in the process
bestowing on her legal responsibility for any missing equipment as a fiduciary.
HR, Track 4, testimony of the appellant. She further testified that doing this
would violate an “Air Force Instruction,” although she did not know which one,
and there is neither any reference to one nor a copy of one in the record. 3 Id. The
appellant’s supervisor testified that the document was merely a letter of
appointment which authorized her to conduct an inventory in the first place—as
an alternate—and which was required before the inventory could begin. HR,

3
The appellant contends for the first time on review that the pertinent rule is Air Force
Instruction 33-112, but she does not provide a copy and she does not explain why she
could not have identified this rule before the record closed below. PFR File, Tab 1
at 15. She further contends that the Inspector General (IG) told her not to sign the
letter, but her documentation for this statement is her own reply to the notice of
proposed removal, not any independent corroboration. Id. She has not claimed reprisal
for disclosing information to or cooperating with the IG under 5 U.S.C. § 2302(b)(9)
(C).
8

Track 1, testimony of V. The supervisor’s testimony on this detail is
corroborated by the name of the attachment on the email, as noted above.
The administrative judge found, in any event, that that appellant failed to
show that complying with the instruction to sign the letter would have violated a
law, rule, or regulation. ID at 23. We agree. The appellant has not provided a
copy of the document she was required to sign, she does not provide a citation or
copy of the rule she was asked to violate, and she cannot tell the Board what the
rule says. The administrative judge correctly found that the appellant did not
prove that the agency reprised against her for activity protected under 5 U.S.C.
§ 2302(b)(9)(D).
Finally, the appellant contends that the penalty of removal was excessive.
When all of the agency’s charges are sustained, the Board will review the
agency-imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Adam v. U.S. Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004). In
doing so, the Board must give due weight to the agency’s primary discretion in
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Id. The Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that it clearly exceeded the bounds of reasonableness in determining the penalty.
Id.
The deciding official testified that he considered the appellant’s 6 years of
satisfactory service with no prior disciplinary record and the fact that she was
going through a period of personal stress at the time she committed her
misconduct. HR, Track 3, testimony of S. He testified that these mitigating
factors were outweighed by the seriousness of the offense, which was dishonest
and deliberate. Id. He testified that the appellant had access to sensitive
information in her position and that the loss of trust in her integrity was
9

particularly important. Id. He also testified that the appellant had limited
potential for rehabilitation and, while she expressed remorse for her misconduct,
she did not really accept responsibility for what she did but instead offered
excuses. Id.
On review, the appellant argues that the penalty of removal is excessive
because the deciding official applied a zero-tolerance policy. Petition for Review
(PFR) File, Tab 1 at 16-17. This is simply not true. The deciding official
testified that he found the appellant’s misconduct to be extremely serious and that
he would likely be inclined to remove anyone who committed similar misconduct,
but that it would depend on the circumstances of the case. HR, Track 3,
testimony of S.
The appellant asserts that the deciding official failed to adequately consider
her medical condition as a mitigating circumstance. PFR File, Tab 1 at 17. The
deciding official considered the appellant’s medical condition and found it to be a
neutral factor because the appellant provided very little information about it.
IAF, Tab 4 at 36.
The appellant avers that the deciding official improperly considered the
fact that she failed to complete a form relating to off-duty employment. PFR
File, Tab 1 at 17. The record shows that the deciding official found this to be a
neutral factor, which means it was not material to his deliberations. IAF, Tab 4
at 36.
Finally, the appellant claims that her misconduct was not intentional. PFR
File, Tab 1 at 18. We fail to see any scenario in which the appellant’s misconduct
could be characterized as accidental or even inadvertent. The appellant’s
misconduct was clearly deliberate and was committed for the purpose of delaying
the test date, likely because she did not expect to pass if she took the test as
scheduled.
The foregoing demonstrates that the deciding official considered the factors
most relevant to this case enumerated in Douglas v. Veterans Administration,
10

5 M.S.P.R. 280, 305-06 (1981), and reasonably exercised his management
discretion. That the appellant wishes that the agency had weighed the Douglas
factors differently provides no basis for mitigating the penalty.

NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).

4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11

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
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
12

race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
13

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The

5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14

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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10345454. Public record. Not legal advice.