Opinion

Steve Golden v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Aug 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STEVE GOLDEN, DOCKET NUMBER

Appellant, DC-0432-23-0167-I-1

DEPARTMENT OF COMMERCE, DATE: August 1, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David A. Branch , Esquire, Washington, District of Columbia, for the

appellant.

Robert Gregory Palmer , Esquire, and William Christopher Horrigan ,

Esquire, Alexandria, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Henry J. Kerner, Member*

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

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his performance-based removal and denied his affirmative defense of

failure to accommodate. On petition for review, the appellant challenges 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

administrative judge’s finding that he failed to prove that he was disabled, and

that the agency failed to accommodate his disability. Petition for Review (PFR)

File, Tab 1 at 7-9. 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 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).

¶2 The administrative judge correctly found that the appellant’s

performance-based removal was supported by substantial evidence. Initial

Appeal File (IAF), Tab 20, Initial Decision (ID) at 8-9. 2 In finding that the

Below, the parties stipulated that all elements of the agency’s burden of proof under

5 U.S.C. § 4303 have been met. IAF, Tab 17 at 1 & n.1. The parties also specifically

stipulated that the appellant’s performance was unacceptable both prior to and during

the performance improvement period (PIP). Id.; see Santos v. National Aeronautics

& Space Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021). The Board’s

regulations provide that the parties may stipulate to any matter of fact and that such

stipulations satisfy a party’s burden of proving the fact alleged. See 5 C.F.R.

§ 1201.63; see also Anderson v. Tennessee Valley Authority, 77 M.S.P.R. 271, 275

(1998). The elements necessary to support a chapter 43 action concerning whether the

Office of Personnel Management approved the appraisal system, whether the

performance standards were communicated to the appellant, whether the appellant was

warned of performance inadequacies, and whether the appellant’s performance was

unacceptable prior to his placement on the PIP and following the completion of the PIP

are pure questions of fact and were, thus, properly stipulated to and relied on by the

administrative judge. However, stipulations concerning matters of mixed fact and law

are not binding on the Board, and the Board must resolve for itself whether the agency

appellant failed to establish his affirmative defense of failure to accommodate,

she concluded that the appellant failed to present sufficient evidence that his

inability to work was caused by a disability, and that, even if he had, the agency

nonetheless engaged in an interactive process with him to find an acceptable

accommodation, did accommodate him to the best of its ability, and that the

appellant failed to identify what, if any, accommodation the agency could have

provided him with but did not. ID at 10-14. We agree that the appellant failed to

establish that the agency failed to accommodate him, and the appellant’s

arguments on review do not provide a basis to disturb that conclusion. See

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason

to disturb the administrative judge’s findings when she considered the evidence as

a whole, drew appropriate inferences, and made reasoned conclusions);

Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359

(1987) (same).

¶3 However, with respect to the administrative judge’s threshold finding that

the appellant failed to prove that his inability to perform satisfactorily was due to

a disability, we acknowledge that the appellant’s testimony that he regularly

heard high-pitched noises and voices that threatened him and that he perceived

that lasers were extracting information from him and his dog, patently suggests a

mental health condition. IAF, Tab 18, Hearing Recording (HR) (testimony of the

appellant). Nonetheless, the administrative judge is correct that the record

contains no medical diagnosis of a physical or mental health condition or

disability, and the appellant himself does not appear to believe that his

experiences were the result of a mental health condition but rather, the work of

his prior employer.

proved such matters. See Anderson, 77 M.S.P.R. at 275. Here, the elements concerning

whether the appellant’s performance standards are valid and whether the agency

provided the appellant with a reasonable opportunity to improve his performance

constitute matters of mixed fact and law. Nonetheless, the appellant has not challenged

that the agency met its burden of proof with respect to these elements, and the record

otherwise supports that conclusion.

¶4 We need not determine whether the administrative judge’s finding with

respect to whether the appellant suffers a disability is correct, however, because

the Americans with Disabilities Act (ADA) 3 requires an employee to show that he

is a qualified individual with a disability to be entitled to a reasonable

accommodation. 42 U.S.C. § 12112(a); see Haas v. Department of Homeland

Security, 2022 MSPB 36, ¶¶ 28-29. To be a qualified individual with a disability,

the appellant must show that he can “perform the essential functions of the . . .

position that [he] holds or desires” with or without reasonable accommodation.

42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28. Here, the appellant has not

argued that he could perform the essential functions of his position had only the

agency granted him a reasonable accommodation. Indeed, the appellant has not

identified any accommodation that would have addressed his mental health

condition in such a way that his performance would improve. Accordingly,

regardless of whether the appellant proved that he was disabled because of a

mental health condition, he has failed to prove that he is a qualified individual

with a disability. Based on the foregoing, we ultimately agree with the

administrative judge’s conclusion that the appellant failed to establish his failure

to accommodate affirmative defense, and we affirm the initial decision.

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

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. Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 28.

The standards under the ADA, as amended by the Americans with Disabilities Act

Amendments Act of 2008, have been incorporated into the Rehabilitation Act, and the

Board applies them to determine whether there has been a Rehabilitation Act violation.

Id.

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.

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).

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

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

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