Opinion

Joel Erickson v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Jun 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOEL ERICKSON, DOCKET NUMBER

Appellant, DA-0752-19-0271-I-1

DEPARTMENT OF DATE: June 28, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel Erickson , Oklahoma City, Oklahoma, pro se.

Beau S. Bruhwiler , Esquire, Oklahoma City, Oklahoma, 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 the agency’s removal action. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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).

BACKGROUND

The appellant was a Flight Inspection Operations Specialist with the

Federal Aviation Administration (FAA). Initial Appeal File (IAF), Tab 6 at 17.

The agency removed him effective March 15, 2019, for the charge of excessive

absence. IAF, Tab 6 at 19-22, 25-28. The agency cited as the basis of its charge

his use of 776 hours of annual and sick leave between April 1, 2018, and

February 6, 2019. Id. at 26.

Following his removal, the appellant filed the instant appeal, alleging that

he had been disabled since May 2018 and unable to walk “due to severe diabetic

neuropathy.” IAF, Tab 1 at 4. He stated that his condition has not improved

since then. Id. He alleged disability discrimination on the basis of the agency’s

failure to accommodate, but confirmed that he was not alleging disability

discrimination on the basis of disparate treatment or disparate impact. IAF,

Tab 13 at 4-6.

After the appellant withdrew his request for a hearing, the administrative

judge issued an initial decision on the written record, affirming the agency’s

action. IAF, Tab 28, Tab 32, Initial Decision (ID) at 1. He found that the agency

met its burden of proving the charge by preponderant evidence. ID at 4-6. He

also found that the appellant failed to prove his affirmative defense of disability

discrimination based on a failure to accommodate. ID at 6-10. The

administrative judge additionally found a nexus between the charge and the

efficiency of the service and concluded that the penalty of removal was

reasonable. ID at 10-12.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1 at 4. He argues that he can complete his work via teleworking and

that the agency discriminated against him based on his disability. Id. He also

lists his length of service and lack of prior disciplinary or performance problems

as mitigating factors. Id. The agency has responded to his petition for review.

PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The parties do not challenge the administrative judge’s finding that the

agency proved its charge of excessive absence and the nexus of the charge to the

efficiency of the service. Therefore, we decline to disturb these findings on

review. See 5 C.F.R. § 1201.115 (explaining that the Board normally considers

only those issues raised on review). Instead, we will focus on the specific

disability discrimination and penalty issues the appellant has raised. PFR File,

Tab 1 at 4.

The appellant has failed to prove his affirmative defense of disability

discrimination.

The appellant on review repeats his argument that he was discriminated

against because of his disability. PFR File, Tab 1 at 4. The administrative judge

found that the appellant failed to prove his affirmative defense of failure to

accommodate. ID at 6-10. We agree. As the administrative judge observed, the

appellant confirmed he was not asserting a claim of disability discrimination

based on disparate impact or disparate treatment. ID at 6 n.4; IAF, Tab 13 at 6.

To the extent the appellant is raising a disparate treatment or disparate impact

claim on review, we find that he has waived those arguments. PFR File, Tab 1

at 4; see Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding

that the Board generally will not consider an argument raised for the first time on

review absent a showing that it is based on new and material evidence not

previously available despite a party’s due diligence). As such, we only address

his argument regarding a failure to accommodate.

An appellant may establish a disability discrimination claim based on

failure to accommodate by showing the following: (1) he is a qualified individual

with a disability; (2) the action appealed was based on his disability; and, to the

extent possible, (3) there was a reasonable accommodation under which the

appellant believes he could perform the essential duties of his position or of a

vacant position to which he could be reassigned. Brown v. Department of the

Interior, 121 M.S.P.R. 205, ¶ 23 (2014) (setting forth this test but omitting the

requirement that an individual prove she is “otherwise qualified”), overruled on

other grounds by Haas v. Department of Homeland Security, 2022 MSPB 36; see

Haas, 2022 MSPB 36, ¶ 29 (clarifying that only a qualified individual with a

disability is entitled to relief for an alleged denial of reasonable accommodation).

The administrative judge did not make a determination as to whether the

appellant was a “qualified” individual with a disability. An individual is

qualified if he can perform, with or without reasonable accommodation, the

essential functions of the position he holds or desires. 29 C.F.R. § 1630.2(m).

There is a question from the record as to whether the appellant could perform the

essential functions of his position, with or without accommodation. The record

reflects that the appellant’s condition often rendered him unable to walk or even

get around his house. IAF, Tab 7 at 4-31. Conversely, the appellant argued both

below and on review that he can perform the essential duties of his position on a

full-time telework schedule. IAF, Tab 13 at 5; PFR File, Tab 1 at 4. We need not

resolve this question on review, however, as we agree with the administrative

judge that the appellant failed to engage in the interactive process to enable

finding a reasonable accommodation. ID at 9-10.

The appellant here made a reasonable accommodation request when he

disclosed his medical restrictions sufficient to inform the agency that he needed

an adjustment or change at work for a reason related to a medical condition. IAF,

Tab 6 at 39-42, 51-58; see Paris v. Department of the Treasury, 104 M.S.P.R.

331, ¶ 17 (2006) (finding an employee need only let his employer know in

general terms that he needs accommodation for a medical condition). Having

sufficiently informed his employer of this need, the agency was required to

engage in an interactive process to determine an appropriate accommodation.

Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 16 (2010). However, the

appellant was also required to cooperate in the interactive process. Id.

The appellant’s supervisor offered to move the appellant’s workstation and

cubicle to the first floor to eliminate the need to climb stairs. IAF, Tab 6 at 34;

Tab 30 at 16. The appellant rejected this offer. IAF, Tab 7 at 11, Tab 30 at 7-8.

The appellant’s supervisor also advised the appellant that he could sit frequently

as recommended by his medical provider. IAF, Tab 30 at 16-17. In addition, he

invited the appellant to request a reasonable accommodation and advised the

appellant of his obligation to participate in the interactive process. IAF, Tab 6

at 45.

The appellant did not engage in the interactive reasonable accommodation

process. At no time before his removal did he explain how he could perform his

assigned position with additional restrictions or modifications. 2 IAF, Tab 30

at 8-9. Further, there is no evidence he identified an alternative position that he

desired. Rather, according to his supervisor’s unrebutted sworn declaration, the

appellant indicated he planned to report to work the next day on approximately 20

The appellant asserts that a full-time telework schedule is an accommodation that

would allow him to perform the essential functions of his position. IAF, Tab 13 at 5;

PFR File, Tab 1 at 4. However, he admitted below that he did not ask for telework prior

to his removal. IAF, Tab 30 at 14.

different occasions, but he ultimately requested leave rather than reporting. Id.

at 8; Edwards v. Department of Veterans Affairs, 111 M.S.P.R. 297, ¶¶ 4, 6

(2009) (explaining that if unrebutted, an affidavit or a declaration made under

penalty of perjury proves the facts asserted therein). We therefore agree with the

administrative judge that the agency engaged in the required interactive process

to determine an accommodation, but the appellant failed to appropriately engage.

ID at 9-10; see Simpson, 113 M.S.P.R. 346, ¶ 18 (finding that an appellant did not

show a failure to accommodate when he did not provide requested medical

documentation, articulate a reasonable accommodation, or identify an alternative

position); see also Rosario-Fabregas v. Department of the Army, 122 M.S.P.R.

468, ¶¶ 3-4, 18 (2015) (indicating that the appellant failed to engage in the

interactive process when he did respond to the agency’s request to clarify his

doctor’s suggestion that he could work on a part-time schedule and did not

identify any vacant, funded position to which the agency might have reassigned

him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016); Collins v. U.S. Postal Service,

100 M.S.P.R. 332, ¶¶ 11-12 (2005) (finding that the agency was not obligated to

continue the interactive reasonable accommodation process when the appellant

failed to cooperate in the process).

The administrative judge correctly found that the penalty was reasonable.

To the extent the appellant is challenging the reasonableness of the penalty,

we find that the administrative judge correctly found that the penalty of removal

was reasonable. ID at 10-12. The FAA has, as required by statute, developed its

own personnel management system. IAF, Tab 8 at 13; see 49 U.S.C.

§ 40122(g)(1). Under this system, supervisors must consider mitigating factors

that are identical to those applicable to other Federal employees before deciding

if corrective action is warranted. Compare IAF, Tab 8 at 15, with Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). An agency’s

determination of an appropriate penalty is not entitled to deference when the

deciding official does not consider any of the relevant mitigating circumstances.

Brown v. U.S. Postal Service, 64 M.S.P.R. 425, 432-33 (1994). Here, the agency

considered the appellant’s 37 years of service and prior performance record. IAF,

Tab 6 at 27. However, there is no discussion of the remaining factors that might

be relevant to the agency’s penalty determination. The administrative judge

found that, even if the agency failed to consider the appropriate mitigating

factors, removal was an appropriate penalty for the appellant’s excessive absence.

ID at 11-12. We agree.

When the Board finds that an agency has failed to weigh the relevant

factors, it may determine how the agency’s decision should be corrected to bring

the penalty within the parameters of reasonableness. Brown, 64 M.S.P.R.

at 432-33. Following the expiration of his FMLA-protected leave in August

2018, the appellant never returned to work. IAF, Tab 7 at 18-31, 33-48, Tab 30

at 17. The appellant’s absence compromised the efficiency of the agency’s

operations, required coworkers to cover his job duties in addition to their own

assigned job, and created a backlog of work. IAF, Tab 30 at 8. As for mitigating

factors, the appellant has roughly 37 years of Federal service with no

performance or disciplinary problems. 3 PFR File, Tab 1 at 4. An employee

absence, such as this one, for which no foreseeable end is in sight is a burden that

no employer can efficiently endure, and a prolonged absence is just cause for

removal. Conte v. U.S. Treasury Department, 10 M.S.P.R. 346, 348 (1982), aff’d,

707 F2d 517 (9th Cir. 1983) (Table). Accordingly, we agree with the

administrative judge’s conclusion that the agency’s penalty of removal was

reasonable. ID at 12.

The appellant did not assert any other mitigating factors that he believed were

significant, and the Board need not contemplate mitigating factors not identified by the

appellant as significant. Brown, 64 M.S.P.R. at 433 (citing Yeschick v. Department of

Transportation, 801 F.2d 383, 385 (Fed. Cir. 1986)).

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).

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.

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

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

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