Opinion

Carol L Ide v. Department of Defense

Court: Merit Systems Protection Board
Filed: Aug 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CAROL LYNN IDE, DOCKET NUMBER

Appellant, CH-0752-19-0362-I-1

DEPARTMENT OF DEFENSE, DATE: August 5, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael W. DeWitt , Esquire, Columbus, Ohio, for the appellant.

Eric Y. Hart , Esquire, Indianapolis, Indiana, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

sustained her removal and found that she failed to establish her affirmative

defenses. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

clarify the administrative judge’s analysis of the appellant’s disability

discrimination claim and her claim of retaliation for requesting reasonable

accommodation, we AFFIRM the initial decision.

The appellant was employed as Executive Assistant to the Deputy Director

and Director of Civilian Pay at the agency’s Civilian Pay Operations office. The

agency removed her based on a charge of absence without leave (AWOL)

consisting of 14 specifications covering 528 hours over a 3-month period. Initial

Appeal File (IAF), Tab 6 at 17. On appeal, she alleged, among other things, that,

in effecting her removal, the agency discriminated against her based on her

disability under the theory of denial of reasonable accommodation. IAF, Tab 12.

She also claimed that the agency retaliated against her for her protected activity,

including requesting reasonable accommodation. IAF, Tab 1.

In a decision based on the written record, the administrative judge found

that the agency had proven its charge. IAF, Tab 38, Initial Decision (ID)

at 23-28. In assessing the appellant’s disability discrimination claim, the

administrative judge found that the appellant met the definition of an individual

with a disability, but that ultimately she did not establish her claim. ID at 30-37.

The administrative judge further found that the appellant did not establish her

claim of retaliation for requesting reasonable accommodation. ID at 41-43. After

finding that the agency established that there was a nexus between the sustained

charge and the efficiency of the service, ID at 45-46, and that removal was a

reasonable penalty, ID at 46-49, the AJ sustained the agency’s action, ID at 2, 49.

In Haas v. Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29,

the Board clarified that only an otherwise qualified individual with a disability is

entitled to relief under the Rehabilitation Act for a claim of status-based

discrimination or denial of reasonable accommodation. 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). Because the administrative judge in the

instant case did not have the benefit of the Board’s decision in Haas, we have

addressed that issue here. As set forth below, we find that, although the

administrative judge did not make a specific finding regarding whether the

appellant is a qualified individual with a disability, the administrative judge made

sufficient factual findings to lead to the conclusion that the appellant is, in fact,

not a qualified individual with a disability.

The administrative judge considered the types of accommodation the

appellant requested: transfer, telework, advanced sick leave, additional leave

without pay (LWOP), and donated leave. As to the three types of leave, the

administrative judge found that the approval or denial of requests for leave all

were within the agency’s discretion and that the agency had shown that its denials

were reasonable under the circumstances. ID at 25-28. Specifically, the

administrative judge found that the appellant never submitted a formal request for

advanced sick leave, or the information required to support such a request, ID

at 25; that, when she requested additional LWOP after the agency had already

granted her a significant amount, there was no foreseeable end in sight to her

absences, which had become a burden to the agency justifying the denial,

Bologna v. Department of Defense, 73 M.S.P.R. 110, 114, aff’d, 135 F.3d 774

(Fed. Cir. 1997) (Table), ID at 25-26; and that, as to donated leave, the

appellant’s condition appeared to be chronic rather than an emergency situation, 2

and that she failed to show how her participation in the agency program in 2017

would have alleviated her removal a year later, ID at 26-28. Regarding telework,

the administrative judge found that the appellant requested full-time telework, not

less than full-time, as she alleged, and that, in any event, the agency provided

credible reasons for its decision to deny her more than 1 day of telework per

week. ID at 31-35. And as for transfer, the administrative judge found that the

appellant failed, during her last 18 months of employment, to identify any vacant

funded position for which she was qualified and to which she could be

transferred. Jackson v. U.S. Postal Service, 79 M.S.P.R. 46, 54 (1998) (finding

that an appellant has the burden of proving that a position for which she is

qualified exists and was available); ID at 35-37. The administrative judge found

therefore that the appellant also failed to prove that the agency did not

accommodate her disability through the denial of telework and transfer. ID at 35,

37. Although the administrative judge did not explicitly find that the appellant is

not a qualified individual with a disability, the administrative judge’s findings are

sufficient to establish that the appellant is not a qualified individual with a

disability because she did not show that she can perform the duties of her position

with or without accommodation.

After the initial decision was issued, the Board addressed another issue

which bears on this case. In Pridgen v. Office of Management and Budget ,

2022 MSPB 31, ¶¶ 44, 46, the Board clarified that both requesting a reasonable

accommodation and complaining of disability discrimination are activities

protected by the Rehabilitation Act, and that such claims are therefore properly

analyzed under 42 U.S.C. § 12203(a). Specifically, in such claims, the appellant

In fact, 5 C.F.R. § 630.902 makes no distinction between chronic and urgent

conditions, stating only that a medical emergency is a medical condition that is likely to

require an employee’s absence from duty. In any event, however, the administrative

judge properly found that the allowance of donated leave under an agency program is,

as with LWOP, at the agency’s discretion. Joyner v. Department of the Navy,

57 M.S.P.R. 154, 160 (1993).

must prove that retaliation was a but-for cause of the agency’s action. Pridgen,

2022 MSPB 31, ¶¶ 46-47. Again, because the administrative judge in this case

did not have the benefit of the Board’s decision in Pridgen, we have addressed

that decision here. As set forth below, we find that the administrative judge

applied a less stringent test to the appellant’s claim of retaliation for requesting

reasonable accommodation.

In addressing this allegation, the administrative judge found that, while the

agency did not grant the appellant’s request for more than 1 day per week of

telework, it did allow her that schedule, as it did other new employees, even

though it did not consider her position suitable for telework and had concerns

with her ability to learn the position and effectively perform its duties, and that it

thereby showed flexibility rather than retaliation for her protected activity. ID

at 41. The administrative judge further found that, to the extent the agency was

frustrated with the appellant’s decision to live approximately 120 miles from her

duty station, which caused her to request reassignment almost immediately after

beginning her employment, such frustration was reasonable and did not

demonstrate a retaliatory animus based on her protected activity. In addition, the

administrative judge found that, other than management officials’ knowledge of

the appellant’s protected activity, there was scant evidence that such activity was

a consideration in the agency’s decision to remove her. ID at 42. Concluding

that the agency had a sound basis for the AWOL charge, the administrative judge

found that the appellant did not prove that her request for reasonable

accommodation was a motivating factor in the agency’s decision to remove her.

ID at 42-43.

The administrative judge analyzed the appellant’s claim of retaliation for

requesting reasonable accommodation in accordance with, and based on, the Title

VII “motivating factor” standard. However, that standard is a lower standard than

the Rehabilitation Act’s but-for causation standard for retaliation claims.

Because we otherwise discern no error in the administrative judge’s reasoning,

we affirm her finding, as modified, to find that the appellant did not prove that

her request for reasonable accommodation was a but-for cause of her removal.

NOTICE OF APPEAL RIGHTS 3

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

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. 4 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