Opinion

Cynthia Young v. Department of Veterans Affair

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Status: Unpublished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

explaining that the Board generally must defer to an administrative judge’s implicit and explicit demeanor -based credibility findings

How later courts described this case

explaining that the Board generally must defer to an administrative judge’s implicit and explicit demeanor -based credibility findings

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CYNTHIA J. YOUNG, DOCKET NUMBER

Appellant, DA-0752-17-0315-I-3

DEPARTMENT OF VETERANS DATE: June 28, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shawn G. Childs , Esquire, Little Rock, Arkansas, for the appellant.

Sean A. Safdi , Esquire, and Daniel Morvant, Denver, Colorado, 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. Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous 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. Except as expressly MODIFIED to

find that the appellant was not a qualified individual with a disability, and apply

the correct standard of proof to the appellant’s claim of retaliation under the

Rehabilitation Act, we AFFIRM the initial decision.

BACKGROUND

The appellant was employed by the agency in a Medical Support Assistant

(MSA) position, GS-0679-05. Young v. Department of Veterans Affairs,

MSPB Docket No. DA-0752-17-0315-I-1, Initial Appeal File (IAF), Tab 8 at 14.

She last reported for duty on September 19, 2016. Id. at 57. She notified the

agency that she was absent due to her medical conditions. Id. at 58. The

appellant remained absent despite the agency’s November 3, 2016 order to return

to duty. Id. at 27, 57-59. On November 15, 2016, the agency notified the

appellant that “[her] position needed to be filled on a full-time basis, and that

[her] continued absence would be subject to disciplinary action up to and

including removal.” Id. at 27, 78. The appellant made several requests for leave

without pay (LWOP) and Family Medical Leave Act (FMLA)-protected leave

during her absence. Id. at 51-77, 79-95, 121. She also submitted a request from

her treating physician recommending that she be reassigned to another department

and to work a part-time schedule. Id. at 115-23. The agency granted her request

for leave under the FMLA for the period of September 19 to December 11, 2016,

but disapproved her subsequent requests because she had exhausted her FMLA

entitlement. Id. at 96-97. On March 21, 2017, the agency proposed the

appellant’s removal based on one charge of excessive absenteeism based on her

failure to report for duty from December 12, 2016, through March 18, 2017.

Id. at 27-28. After sustaining the charge, the deciding official removed the

appellant from Federal service, effective May 5, 2017. Id. at 36-37.

The appellant filed an appeal, challenging the merits of the charge and

raising affirmative defenses of harmful procedural error, discrimination based on

her race, color, and disability, and reprisal for equal employment opportunity

(EEO) activity. IAF, Tab 1 at 3. After holding a hearing, the administrative

judge issued an initial decision, affirming the appellant’s removal and denying

her affirmative defenses. Young v. Department of Veterans Affairs,

MSPB Docket No. DA-0752-17-0315-I-3, Appeal File (I-3 AF), Tab 41,

Initial Decision (I-3 ID) at 1-2, 5-8, 12, 15. He also found that there was a nexus

between the appellant’s removal and the efficiency of the service and the penalty

of removal was reasonable. I-3 ID at 18-21.

The appellant has filed a petition for review, challenging the administrative

judge’s decision to sustain the charge and his denial of her affirmative defenses.

Petition for Review (PFR) File, Tab 1. The agency has filed a response.

PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved the charge of excessive absenteeism.

The administrative judge applied the correct three-part test for determining

whether the agency proved the charge of excessive absenteeism. I-3 ID at 2-3.

To prove such a charge when, as here, it is based on approved leave, an agency

must establish that: (1) the employee was absent for compelling reasons beyond

her control so that agency approval or disapproval of leave was immaterial

because the employee could not be on the job; (2) the absences continued beyond

a reasonable time, and the agency warned the employee that an adverse action

could be taken unless the employee became available for duty on a regular

full-time or part-time basis; and (3) the position needed to be filled by an

employee available for duty on a regular, full-time or part-time basis. Cook v.

Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). The administrative

judge found that the appellant’s over 3-month absence was beyond her control, as

reflected in her medical documentation and by her own admission, and the period

at issue in her removal was not protected under the FMLA. I-3 ID at 4 & n.3. He

also concluded that the agency warned her about the consequences of her

continued unavailability in its November 3 and 15, 2016 letters. I-3 ID at 4; IAF,

Tab 8 at 27, 57-59, 78. Finally, he concluded that the agency needed the

appellant to perform the duties of her position on a full-time basis. I-3 ID at 4-5.

He therefore sustained the charge. I-3 ID at 5-6.

On review, the appellant has not challenged the administrative judge’s

findings regarding the first two prongs of the Cook analysis, and we discern no

error in those well-reasoned, credibility-based findings. PFR File, Tab 1; I-3

ID at 3-5. Rather, she appears to challenge the administrative judge’s finding

regarding the third prong, reasserting that the agency did not need her to report

for duty on a full-time basis. PFR File, Tab 1 at 2-3. We disagree with the

appellant’s argument.

In finding that the agency met the third prong of the Cook analysis, the

administrative judge relied on the testimony of the proposing and deciding

officials that the agency needed the appellant on a full-time basis, and he credited

their testimony over the contrary testimony of a former MSA. I-3 ID at 5-6. The

administrative judge found that the deciding official testified that the other MSAs

were disadvantaged when an MSA in the call center was consistently absent. I-3

ID at 5. Similarly, according to the administrative judge, the proposing official

explained that excessive absences by MSAs directly affected patient care and the

MSAs would be subject to “burnout” if there were too few MSAs in the call

center. Id. The appellant does not dispute the administrative judge’s

characterization of this testimony. Instead, she argues that the administrative

judge did not consider the testimony of her former coworker, a former MSA in

the call center, which she claims proved that the agency did not need her on a

full-time basis. PFR File, Tab 1 at 2-3.

The Board must give deference to an administrative judge’s

demeanor-based credibility findings. Faucher v. Department of the Air Force,

96 M.S.P.R. 203, ¶ 8 (2004). It may overturn those findings for sufficiently

sound reasons, such as when the findings are incomplete, inconsistent with the

weight of the evidence, or do not reflect the record as a whole. Id. The appellant

has not offered such reasons. The administrative judge considered the former

MSA’s testimony, but nevertheless credited the testimony of the deciding and

proposing officials. I-3 ID at 5. He observed that the former MSA’s testimony

was not necessarily inconsistent with their testimony, as she also admitted that

service would be negatively impacted if the call center were reduced by even one

MSA. Id. Moreover, the appellant’s contentions on review—that the call center

was understaffed and the call center MSAs were overworked, as a result—are

consistent with the management officials’ testimony. PFR File, Tab 1 at 2.

Therefore, we afford the administrative judge’s explicit and implicit demeanor-

based factual findings deference. See Purifoy v. Department of Veterans Affairs ,

838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining that the Board generally must

defer to an administrative judge’s implicit and explicit demeanor -based

credibility findings). Accordingly, the appellant has not provided a basis for

overturning the administrative judge’s decision to sustain the charge.

The appellant did not prove that her removal was based on harmful error.

As the administrative judge correctly explained, harmful error under

5 U.S.C. § 7701(c)(2)(A) cannot be presumed; the appellant must establish that

the agency’s procedural error was likely to have caused it to reach a conclusion

different from the one it would have reached in the absence or cure of the error.

I-3 ID at 6-7; Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 31 (2012); see

5 C.F.R. § 1201.56(b)(2)(i)(C) (explaining that an appellant has the burden of

proof on her affirmative defenses). The administrative judge found that, even if

the agency mishandled the appellant’s FMLA requests or failed to conduct a

proper investigation into her alleged misconduct, as the appellant claimed, she did

not prove that those errors were harmful. I-3 ID at 7. The appellant has not

challenged that finding on review and we find no basis for revisiting it.

The administrative judge further found that the appellant did not request an

oral reply; therefore, the agency did not commit procedural error by not affording

her one. Id. On review, the appellant asserts that the agency notified her that she

could submit a written reply and that the deciding official considered her written

replies in reaching her removal decision. PFR File, Tab 1 at 2. Thus, she does

not appear to contend that the agency erred in considering her written reply. Id.

To the extent that she is attempting to argue that the agency denied her an

opportunity to submit an oral reply, the record does not support such a finding.

As the administrative judge explained, the proposal notice notified the appellant

of her right to request an oral reply. I-3 ID at 7; IAF, Tab 8 at 27-28. The

appellant does not assert that she made or was prevented from making that

request. PFR File, Tab 1 at 2-3. Accordingly, she has not provided a basis for

disturbing the administrative judge’s finding that she did not prove her harmful

error defense.

We modify the initial decision as to the appellant’s disability discrimination

claims to find that the appellant did not prove that she was a qualified individual

with a disability.

Because she was not a qualified individual with a disability, the

appellant did not prove her claim that the agency denied her

reasonable accommodation.

The administrative judge found that the appellant failed to prove her denial

of reasonable accommodation and status-based disability discrimination

affirmative defenses. I-3 ID at 8-15. In reaching those findings, the

administrative judge did not expressly determine whether the appellant could

perform the essential duties of her position with or without a reasonable

accommodation. I-3 ID at 11-12, 14-15. However, for the reasons explained

below, we find that remand is unnecessary because the record on this issue is

fully developed. See, e.g., Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶

27 (2016) (deciding an appellant’s claim of status-based disability discrimination

on review, rather than remanding, when the administrative judge applied an

incorrect standard but the record was fully developed). We therefore modify the

initial decision to address whether the appellant was a qualified individual with a

disability.

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.” Haas v. Department of

Homeland Security, 2022 MSPB 36, ¶ 28. 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).

Based on the appellant’s own statements, the medical evidence in the

record, 2 and other record evidence relating to the appellant’s leave and reasonable

The record includes the appellant’s medical documentation that she submitted to the

agency; however, she did not call her treating physician as a witness. I-3 AF, Tab 33

at 4.

accommodation requests, we conclude that the appellant was not a qualified

individual with a disability. 3 IAF, Tab 40, Hearing Compact Disc (HCD), Day 2

(testimony of the appellant); IAF, Tab 8 at 51-77, 79-100, 107, 115-23, 185-96,

281-88. The essential job functions of the appellant’s MSA position were to

answer phone calls; make appointments; order x-rays, labs, and

electrocardiographs; and “[t]alk to patients all day on the phone.” IAF, Tab 8

at 117. The appellant admitted that she was absent from work due to medical

conditions that her treating physician believed would last for the duration of her

life. HCD, Day 2 at 1:16:00-1:19:00, 1:26:00-1:30:30 (testimony of the

appellant). This testimony was consistent with the medical documentation from

the appellant’s treating physician. IAF, Tab 8 at 115-20, 188-91.

Upon her request, the agency granted the appellant FMLA -protected LWOP

from September 19 to December 11, 2016. Id. at 57, 96. However, the agency

declined to approve her requests for LWOP to cover the period beginning

December 12, 2016, due to the impact of her absence on patients’ access to care.

Id. at 96-97. The administrative judge found that the appellant was not entitled to

additional FMLA-protected leave beginning December 12, 2016. I-3 ID at 4 n.3.

The appellant does not challenge this finding on review, and we discern no basis

After the record closed on review, the appellant filed a motion for leave to submit

documentation, which she claims shows that she became disabled on September 19,

2016. PFR File, Tab 2 at 1-2, Tab 4 at 1; see 5 C.F.R. § 1201.114(k) (explaining that

the record on review closes on expiration of the period for filing the reply to the

response to the petition for review or for filing a response to the cross petition for

review, whichever is later). Once the record closes, no additional evidence or argument

will be accepted unless it is new and material, as defined in 5 C.F.R. § 1201.115(d), and

the moving party shows that the evidence or argument was not readily available before

the record closed. 5 C.F.R. § 1201.114(k). The appellant has not made this necessary

showing. The documentation appears to be dated before the initial decision’s issuance

and the appellant has not explained why she did not submit it below. PFR File, Tab 4 at

1; I-3 ID at 1. Further, given our decision to deny the appellant’s petition for review,

despite finding that she was disabled, she has not shown that this evidence is material.

See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the

Board will not grant a petition for review based on new evidence absent a showing that

it is of sufficient weight to warrant an outcome different from that of the initial

decision). Therefore, we deny the appellant’s motion.

for disturbing it. See 5 U.S.C. § 6382(a)(1)(D) (providing that an employee may

take up to 12 weeks of FMLA-protected leave per year, paid or unpaid, for

various purposes, including her own serious health condition that renders her

unable to perform the duties of her position); Dias v. Department of Veterans

Affairs, 102 M.S.P.R. 53, ¶ 5 (2006) (same), aff’d per curiam, 223 F. App’x 986

(Fed. Cir. 2007); 5 C.F.R. § 630.1203(c) (providing that “[t]he 12-month [FMLA

period] . . . begins on the date an employee first takes leave for a family or

medical need . . . and continues for 12 months”). The administrative judge

concluded that, because the appellant’s medical providers stated that her

condition was “ongoing” and would persist for “life,” she was essentially

requesting that the agency grant her unlimited LWOP. I-3 ID at 11; IAF, Tab 8 at

117-18, 188-90. Leave may be a form of reasonable accommodation in

appropriate circumstances. Equal Employment Opportunity Commission,

Enforcement Guidance on Reasonable Accommodation and Undue Hardship

under the Americans with Disabilities Act, Types of Reasonable Accommodations

Related to Job Performance, Leave, Notice 915.002 (Oct. 17, 2002). However,

the appellant has not alleged that, with or without leave, she would be able to

return to work. See Bologna v. Department of Defense, 73 M.S.P.R. 110,114

(explaining that, in the context of a leave-related charge, an agency may properly

deny an employee’s LWOP request when there is no foreseeable end in sight to

her absences and those absences are a burden on the agency), aff’d, 135 F.3d 774

(Fed. Cir. 1997). Rather, she seeks indefinite leave, and thus has not shown that

she is a qualified individual with a disability.

The appellant also asserts that the agency improperly denied her request for

a part-time schedule, which would have allowed her to continue working in the

call center. PFR File, Tab 1 at 2-3. A modified or part-time schedule can be a

type of reasonable accommodation. See 42 U.S.C. § 12111(9)(B); 29 C.F.R.

§ 1630.2(o)(2)(ii). As the appellant argues, her treating physician concluded that

she could perform 6 hours of work a day and recommended such a schedule as a

reasonable accommodation. PFR File, Tab 1 at 3; IAF, Tab 8 at 119.

However, he also opined that the appellant was “unable to perform any of her job

duties” due to her serious and ongoing medical conditions. IAF, Tab 8 at 118,

189. He identified the source of the appellant’s psychiatric condition as

job-related stress created by her supervisor and the patients with whom she spoke

on the phone. Id. at 115-16, 118. The appellant’s medical documentation fails to

explain how working 2 fewer hours per day would enable her to perform the

essential duties of her position. Given her treating physician’s opinion that the

appellant was unable to perform the duties of her position and his failure to

explain his reason for recommending a modified schedule, we find that the

appellant has not shown that a part-time or reduced schedule would have enabled

her to perform the essential duties of her position. See Slater v. Department of

Homeland Security, 108 M.S.P.R. 419, ¶ 15 (2008) (explaining that whether a

medical opinion provided a reasoned explanation for its findings as distinct from

mere conclusory assertions is a factor for determining the probative weight of

medical opinion), overruled on other grounds by Haas, 2022 MSPB 36.

Moreover, although the agency apparently had not made a determination whether

to permanently grant her requested accommodation, it offered the appellant her

requested modified schedule as an interim reasonable accommodation. I-3 AF,

Tab 29 at 19, Tab 30 at 154, 168, 191. The appellant rejected the agency’s offer.

IAF, Tab 30 at 168. She has not challenged the administrative judge’s finding

that she did not identify a vacant funded position to which the agency could have

reassigned her. I-3 ID at 12; see Clemens v. Department of the Army,

120 M.S.P.R. 616, ¶ 17 (2014) (finding that the appellant did not meet his burden

to prove the agency denied him a reasonable accommodation, in part, because he

did not show that there was a position to which he could have been reassigned).

For the foregoing reasons, the appellant cannot prevail on her claim of

disability discrimination based on the agency’s alleged failure to reasonably

accommodate her. We therefore decline to consider the appellant’s remaining

challenges to the administrative judge’s findings regarding her denial of

reasonable accommodation claim, and we vacate the administrative judge’s undue

burden analysis and findings.

We modify the initial decision to find that the appellant did not prove

her claim of status-based disability discrimination because she did

not show that she was a qualified individual with a disability.

In denying the appellant’s status-based disability discrimination claim, the

administrative judge applied the standard set forth in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802 (1973), to find that the appellant did not

present argument and evidence giving rise to an inference that the agency

removed her based on her disability. I-3 ID at 12-15. However, because the

appellant failed to prove that she was a qualified individual with a disability, we

find it unnecessary to address whether her disability was a motivating factor in

the agency’s decision to remove her. See Haas, 2022 MSPB 36, ¶ 28. We

modify the initial decision accordingly.

The appellant did not prove that the agency removed her in retaliation for her

protected equal employment opportunity activity.

The administrative judge also found that the appellant failed to prove that

her protected EEO activity was a motivating factor in her removal.

I-3 ID at 15-18. To prove an affirmative defense of retaliation for EEO activity

protected under Title VII, an appellant must show that the prohibited

consideration was at least a motivating factor in the agency’s decision. Pridgen

v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 21-22, 30. However, to

prove an affirmative defense of retaliation for EEO activity protected under the

Rehabilitation Act, an appellant must prove that the prohibited consideration was

a but-for cause of the agency’s action. Id., ¶¶ 45-47. As discussed below, we

affirm the administrative judge’s factual findings and reach the same conclusion,

while modifying the initial decision to apply the correct standard.

The appellant filed EEO complaints on August 24, 2015, and June 15,

2016; she amended those complaints several times. IAF, Tab 8 at 38-50.

She contended that the agency removed her in reprisal for filing those complaints.

IAF, Tab 1 at 3. In her complaints, the appellant alleged that the agency

discriminated against her and harassed her based on her race and color; therefore,

the appellant engaged in activity protected by Title VII. IAF, Tab 8 at 38, 43;

see 42 U.S.C. 2000e-16(a). However, she also alleged that the agency

constructively denied her requests for reasonable accommodation. IAF, Tab 8

at 39. That activity was protected under the Rehabilitation Act.

See Pridgen, 2022 MSPB 31, ¶ 44 (recognizing that requesting a reasonable

accommodation and complaining of disability discrimination are activities

protected by the Rehabilitation Act). Because we agree with the administrative

judge that the appellant failed to meet the lesser burden of proving that her

protected activity was a motivating factor in her removal, she necessarily failed to

meet the more stringent but-for standard that applies to her retaliation claim.

Johnson v. Department of Veterans Affairs, 2023 MSPB 9, ¶ 5 n.2.

The administrative judge properly considered all of the evidence as a whole

in determining whether the appellant proved that her removal was motivated by

retaliatory animus. I-3 ID at 16; see Gardner v. Department of Veterans Affairs,

123 M.S.P.R. 647, ¶¶ 30-31 (2016) (finding that an administrative judge properly

considered the evidence as a whole in concluding that an appellant failed to prove

her Title VII affirmative defenses), clarified by Pridgen, 2022 MSPB 31,

¶¶ 23-24. He found that the appellant identified no employees who did not have

prior EEO complaints and were treated more favorably. I-3 ID at 17 n.16. He

further found that, even if the deciding and proposing officials had knowledge of

the appellant’s EEO complaints, the appellant did not show that the alleged

actions taken by management officials leading up to her removal, such as

contacting her regarding her leave balances and subjecting her to general

workplace stress, were motivated by her protected EEO activities. I-3 ID

at 17-18. He also relied on the demeanor of the deciding official in crediting her

testimony that she did not consider the appellant’s protected statuses in removing

her. I-3 ID at 18. Finally, he concluded that the agency offered “a sound basis”

for removing the appellant. Id.

On review, the appellant contends that the administrative judge failed to

find that the deciding official had knowledge of her EEO activity. PFR File,

Tab 1 at 2. However, the appellant has not shown how that purported failure

affected the outcome of the appeal. The administrative judge correctly concluded

that, even if the deciding official knew of the appellant’s EEO activity, the

appellant did not meet her burden of proving that the deciding official was

motivated by discriminatory animus in removing her . I-3 ID at 17-18;

see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). The

appellant also notes that the deciding official rescinded a December 2016 notice

of proposed removal for absence without leave and failure to follow instructions.

PFR File, Tab 1 at 2; IAF, Tab 8 at 167-77. She contends that the deciding

official was unaware of her prior EEO activity when the deciding official

rescinded the first notice of proposed removal, but learned of it before removing

her in April 2017, for excessive absenteeism. PFR File, Tab 1 at 2. The

appellant therefore surmises that her removal was based on discriminatory animus

for her EEO activity. PFR File, Tab 1 at 2. Her unsupported assertion is

insufficient to prove discriminatory animus, especially considering that the

conduct for which the appellant was removed was different than the conduct that

formed the basis of the rescinded notice of proposed removal. See Gardner, 123

M.S.P.R. 647, ¶ 32 (finding unpersuasive an appellant’s conclusory arguments on

review, in which she sought to reweigh evidence properly considered by the

administrative judge).

Moreover, an administrative judge’s failure to mention all of the evidence

of record does not mean that he did not consider it in reaching his decision.

Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015),

aff’d per curiam, 652 F. App’x 971 (Fed. Cir. 2016). Not specifically discussing

every evidentiary matter or credibility factor does not mean that an administrative

judge failed to consider them. Id. Further, the appellant’s arguments do not

provide sufficiently sound reasons for overturning the administrative judge’s

credibility findings. Faucher, 96 M.S.P.R. 203, ¶ 8. Therefore, the Board must

give deference to those findings. Purifoy, 838 F.3d at 1372-73.

Accordingly, the appellant did not prove that her Title VII-protected

activities were a motivating factor in the agency’s removal decision. Similarly,

she did prove that her Rehabilitation Act-protected activities were a but-for cause

of her removal.

The appellant did not prove that the agency discriminated against her based on

race or color.

After reviewing the evidence as a whole, the administrative judge

concluded that the appellant did not prove her affirmative defenses of

discrimination based on race and color. I-3 ID at 16, 18. He reasoned that, even

if the four white employees the appellant identified were comparators, the agency

removed them for excessive absenteeism, as it had the appellant. I-3 ID at 16-17.

He observed that the alleged comparator employees’ absentee periods may have

been longer; however, he concluded that was of no consequence because it was

apparent to the agency that, after 3 months, the appellant was medically unable to

perform her job functions and it did not need any additional time before

determining that the appellant could not return to duty. I-3 ID at 17. The

administrative judge also credited the testimony of the deciding official denying

discriminatory animus and concluded that the other evidence the appellant

offered, such as “requiring her to copy supervisors on emails, sending emails to

her regarding her leave balance, and other incidents regarding leave and general

workplace stress,” did not show that the involved management officials removed

her based on a discriminatory motive. I-3 ID at 17-18.

On review, the appellant reasserts that she proved the agency discriminated

against her based on her race and color because it treated the white comparator

employees more favorably by allowing them to accrue more absences before

removing them. PFR File, Tab 1 at 3. As explained above, the administrative

judge considered that potential difference, but found that it did not constitute

evidence of discriminatory motive, given the agency’s reason for declining to

allow the appellant to accrue additional absences. I-3 ID at 17. In sum, the

administrative judge addressed the appellant’s arguments, considered the

evidence overall, and reached well-reasoned credibility-based findings. The

appellant’s conclusory assertion that the management officials “repeatedly

harassed [her], treated [her] disparately [sic], and treated Caucasian employees

more favorabl[y],” PFR File, Tab 1 at 3, does not provide a basis for disturbing

the administrative judge’s well-supported findings. See Gardner, 123 M.S.P.R.

647, ¶ 32. Accordingly, we affirm the administrative judge’s finding that the

appellant did not prove that the agency discriminated against her based on her

race or color. 4

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

The administrative judge found that the agency proved the nexus of the charged

misconduct to the efficiency of the service, and that the penalty of removal was within

the tolerable limits of reasonableness. I-3 ID at 19-20. The appellant has not

challenged these findings on review, and we discern no basis to disturb them.

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.

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).

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. 6 The court of appeals must receive your petition for

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,

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