Opinion

Shannon K Nishimura v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Aug 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

finding that a foot/ankle sprain is not a disability because it did not substantially limit a major life activity

How later courts described this case

finding that a foot/ankle sprain is not a disability because it did not substantially limit a major life activity
finding that a broken arm is not considered a disability under the ADAAA

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHANNON K. NISHIMURA, DOCKET NUMBER

Appellant, SF-0752-20-0282-I-1

DEPARTMENT OF THE NAVY, DATE: August 13, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shannon K. Nishimura , Aiea, Hawaii, pro se.

Sean Wong , Esquire, Joint Base Pearl Harbor-Hickam, Hawaii, 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

dismissed his constructive suspension appeal for lack of jurisdiction. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 clarify the constructive

suspension analysis and find that the appellant was not an individual with a

disability, we AFFIRM the initial decision.

BACKGROUND

The appellant is a Maintenance Worker, WG-08 at the Navy Facility

Engineering Command (Command) in Pearl Harbor, Hawaii. Initial Appeal File

(IAF), Tab 1 at 1, Tab 10 at 4-5. On November 21, 2019, the appellant had

rotator cuff repair surgery on his right shoulder. IAF, Tab 1 at 7; Hearing

Recording (HR) (testimony of appellant). From November 21 through December

16, 2019, the appellant was on leave recovering from the surgery. IAF, Tab 1 at

15, Tab 9 at 9; HR (testimony of appellant). During that time, on December 9,

2019, the appellant’s supervisor was informed that the Command had ceased

offering light duty and that an employee should not report to duty unless they

could perform their full-time duties. IAF, Tab 9 at 9.

On December 16, 2019, the appellant reported to work and was told by his

supervisor that because he was not cleared for full duty, he would have to take

leave without pay (LWOP), sick, or annual leave. Id.; HR (testimony of

appellant). On January 3, 2020, the appellant reported to work with medical

restrictions that prevented him from lifting his right arm above shoulder level or

carrying or lifting more than 25 pounds. IAF, Tab 1 at 7, Tab 9 at 9;

HR (testimony of appellant). Because the appellant was not cleared for full duty,

and the agency had no light duty assignments for the appellant, the agency did not

return him to work and the appellant remained on LWOP. IAF, Tab 9 at 9;

HR (testimony of appellant). On January 14, 2020, the appellant again reported

for duty but was still under medical restrictions, and thus the agency did not

return him to work. IAF, Tab 1 at 10-14, Tab 9 at 9; HR (testimony of appellant).

On February 14, 2020, the appellant was cleared by the Navy clinic to return to

full duty, and he returned to work that day. 2 IAF, Tab 9 at 9; HR (testimony of

appellant).

The appellant filed an appeal with the Board claiming that the agency

failed to provide him with accommodations and improperly failed to return him to

work within his medical restrictions, constituting a suspension. IAF, Tab 1 at 2,

Tab 12 at 3, Tab 14 at 3; HR (testimony of appellant). The appellant requested a

hearing. IAF, Tab 1 at 1. After holding the hearing, the administrative judge

issued an initial decision dismissing the appellant’s appeal for lack of

jurisdiction. IAF, Tab 19, Initial Decision (ID). The administrative judge

analyzed the appellant’s claim as a constructive suspension and explained that in

order to establish Board jurisdiction the appellant must establish that he lacked a

meaningful choice in his absence and that the agency’s wrongful actions deprived

him of that choice. ID at 5. The administrative judge asserted that if the

appellant’s failure to return to duty was caused by the agency’s failure to properly

In one of his filings with the Board, the appellant claimed that he did not return to

work until February 20, 2020. IAF, Tab 12 at 3. The agency has asserted that the

appellant returned to work on February 14, 2020. IAF, Tab 9 at 9. During his

testimony, the appellant was unsure of the exact dates but confirmed that he was absent

from work for a little less than three months. HR (testimony of appellant).

Furthermore, the last leave request in the record is for the period from February 10

through February 13, 2020. IAF, Tab 1 at 12. Accordingly, we accept that the

appellant returned to duty on February 14, 2020. We further note that the date of the

appellant’s return is not material to the disposition of this case.

accommodate him, then the appellant would have established a constructive

suspension. ID at 6-7. Thus, the administrative judge determined that the

appellant must establish that he was entitled to reasonable accommodation under

the Americans with Disabilities Act Amendments Act (ADAAA) in order to

establish that he was constructively suspended. ID at 7.

Analyzing whether the appellant was entitled to reasonable accommodation

under the ADAAA, the administrative judge first determined the threshold issue

of whether the appellant was a qualified individual with a disability. ID at 7-11.

Finding that the appellant was substantially limited in the use of his right arm

from the date of his surgery to the time he was cleared for full duty, the

administrative judge determined that the appellant met the definition of an

individual with a disability under the ADAAA. ID at 9. However, the

administrative judge concluded that the appellant did not meet the definition of a

qualified individual with a disability because he was unable to perform the

essential functions of his position with or without reasonable accommodation.

ID at 9-11. Furthermore, the administrative judge noted that the agency was

under no obligation to provide the appellant with light duty under the applicable

collective bargaining agreement (CBA), and the appellant failed to show that light

duty assignments were available. ID at 11-12. Accordingly, the administrative

judge determined that the appellant had not established he was constructively

suspended and dismissed the appeal. ID at 12-13.

This petition for review followed. Petition for Review (PFR) File, Tab 1

at 3. On review, the appellant argues that there was work available that he could

have performed within his medical restrictions. Id. Namely, the appellant asserts

that his supervisor should have scheduled “housing area flushing,” which would

have “created work either [as a commercial driver’s license] driver or spotter or

lead,” which the appellant claims he could have performed within his restrictions.

Id.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant does not have to prove that he was entitled to reasonable

accommodation to establish that the agency’s actions were wrongful.

While we agree with the administrative judge’s conclusion that the

appellant failed to establish that he was constructively suspended, we do not

believe she comprehensively analyzed his claim. ID. Specifically, we believe

that the administrative judge improperly limited her review of the agency’s

refusal to return the appellant to work, analyzing only whether the agency

improperly failed to accommodate the appellant under the ADAAA. ID at 7-11.

Therefore, we find it necessary to clarify that the appellant was not required to

establish an entitlement to reasonable accommodation under the ADAAA to

establish that the agency’s actions were improper and constituted a constructive

suspension. The appellant needed only to establish that the agency was wrongful

in failing to bring him back to duty. Romero v. U.S. Postal Service, 121 M.S.P.R.

606, ¶¶ 8-9 (2014).

The Board has determined that certain leaves of absences may be

appealable under chapter 75 as constructive suspensions. Id. at ¶ 5. Although

various fact patterns may give rise to an appealable constructive suspension, all

constructive suspension claims are premised on the proposition that an absence

that appears to be voluntary is not. Rosario-Fabregas v. Department of the Army,

122 M.S.P.R. 468, ¶ 8 (2015). To demonstrate that an absence was, in part, not

voluntary and is an actionable constructive suspension, an appellant must show

that (1) the employee lacked a meaningful choice in the matter; and (2) it was the

agency’s wrongful actions that deprived the employee of that choice. Id.

Assuming the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise

met, proof of these two things is sufficient to establish Board jurisdiction. Id.

This analysis extends to situations in which the agency prevents an appellant’s

return to work after an initial voluntary leave of absence. Id.; Romero,

121 M.S.P.R. 606, ¶ 8-11 (applying a constructive suspension framework when

the appellant took leave due to a medical condition, later reported to duty but was

not allowed to perform work because the agency could not accommodate his

medical restrictions).

When an appellant is released to return to work with medical restrictions,

and the agency does not return him to work, the Board has found that this

deprives an appellant of a meaningful choice. Romero, 121 M.S.P.R. 606, ¶ 9;

Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 13 (finding that the appellant’s

absence was not voluntary when he was presented with the option of working

outside his medical restrictions or taking leave). Here, it is undisputed that the

appellant reported to work several times with medical restrictions, and the agency

did not return him to work until he was cleared for full duty. IAF, Tab 1 at 7,

10-12, Tab 9 at 9, Tab 12 at 3, Tab 14 at 3; HR (testimony of appellant).

Thus, the appellant has established the first prong of the constructive suspension

framework, i.e., that he lacked a meaningful choice in his absence.

Romero, 121 M.S.P.R. 606, ¶ 9.

Therefore, the issue in dispute is the second prong of the analysis, whether

the agency’s actions were wrongful when it refused to allow the appellant to

return to work. Id.,¶¶ 8-9. As explained by our reviewing court “[w]hen an

employee voluntarily takes leave, an agency may properly refuse to allow the

employee to resume working if the employee does not satisfy the agency’s

conditions for returning to work.” Rosario-Fabregas v. Merit Systems Protection

Board, 833 F.3d 1342, 1347 (Fed. Cir. 2016). This does not constitute a

constructive suspension. Id. If, however, the agency’s conditions for returning to

work are wrongful, then the employee’s absence may be deemed a constructive

suspension. See id.; see also Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 8.

We find that our reasoning in Romero v. U.S. Postal Service is particularly

applicable to this matter. In Romero, the appellant voluntarily took a leave of

absence from work due to his medical condition. Romero, 121 M.S.P.R. 606, ¶ 2.

Subsequently, the appellant was released by his doctors to return to work;

however, the appellant’s physicians recommended accommodations, including a

more stable schedule, less stress, and less noise to prevent exacerbating the

appellant’s condition. Id.,¶¶ 10-11. The Board, on review, found that there was

no evidence that the appellant could perform his supervisory position, or another

supervisory role, within his medical restrictions. 3 See id.,¶¶ 11-12. Because the

Board determined that the appellant could not perform his position within his

medical restrictions, the Board found that there was nothing wrongful or improper

about the agency’s failure to return the appellant to work. Id.

Applying the same reasoning as in Romero here, we find that the appellant

did not establish that the agency improperly failed to return him to duty. As a

Maintenance Worker, the appellant was responsible for operational and

preventative maintenance, inspecting, repairing, and replacing machinery and

equipment, housekeeping such as sweeping, brushing, mopping, and operating a

motor vehicle. IAF, Tab 10 at 5-6; HR (testimony of appellant’s supervisor).

The position also required that the appellant be able to carry up to 50 pounds,

including such heavy objects as pipes, bags of concrete, and manhole covers.

IAF, Tab 10 at 7; HR (testimony of appellant’s supervisor). We find no evidence

that any accommodation would have allowed the appellant to perform these duties

within his medical restrictions. IAF, Tab 1 at 7-11, Tab 9 at 9, Tab 10 at 5-7;

HR (testimony of appellant’s supervisor). Therefore, we do not find anything

improper or wrongful in the agency’s requirement that the appellant be medically

cleared without restrictions to return to duty, as he was unable to

comprehensively or safely perform his essential duties within his medical

restrictions. IAF, Tab 1 at 7-11, Tab 9 at 9, Tab 10 at 5-7; HR (testimony of

appellant’s supervisor).

The agency had offered Mr. Romero three nonsupervisory positions within his medical

restrictions, which he declined. Romero, 121 M.S.P.R. 606, ¶¶ 3, 11.

There is no evidence that there was available light duty assignment within the

appellant’s medical restrictions.

We agree with the administrative judge that, while the appellant asserts that

the agency should have assigned him to light duty, the agency was under no

obligation to do so. ID at 11-12. An agency is required to offer available light

duty when required to do so by policy, regulation, or contract. See Clavin v. U.S.

Postal Service, 99 M.S.P.R. 619, ¶ 8 (2005) (finding that if an agency has denied

a request for light duty, and is obligated by policy, regulation, or contract to offer

available light-duty work, then the agency’s refusal to offer the employee light

duty may constitute a suspension). The agency, at the time the appellant returned

to work, did not have a policy requiring it to offer available light duty

assignments to employees who were unable to perform their full duties. IAF, Tab

9 at 9; HR (testimony of appellant’s supervisor). Additionally, the applicable

CBA only requires that the agency give “equitable consideration, on a case-by-

case basis” to temporarily assigning an employee to a position for which he has

the physical capacity to perform. IAF, Tab 9 at 10. The appellant only identified

discrete individual tasks he could perform, such as driving or performing

inspections, but did not identify any position that would have accommodated his

physical capabilities, nor is there any evidence that such a position existed. IAF,

Tab 12 at 3, Tab 14 at 3; HR (testimony of appellant); PFR File, Tab 1 at 3.

Accordingly, we agree with the administrative judge that the agency was under no

obligation under agency policy or the CBA to assign the appellant to light duty

assignment. ID at 11-12.

We further agree with the administrative judge that the agency was under

no obligation to create light duty assignments for the appellant to perform.

Agencies are required only to assign available light duty assignments if obligated

by policy, regulation, or contract; there is no obligation to create light duty

assignments for employees. See Clavin, 99 M.S.P.R. 619, ¶ 8 (limiting the

agency’s requirement to offer light duty assignment when obligated by policy,

regulation, or contract to light duty assignments that are available). Here, there is

no evidence that the agency had any light duty assignments to offer the appellant.

The appellant has only pointed to discrete tasks he could perform in his current

position, not a light duty assignment that was available at the time. IAF, Tab 12

at 3, Tab 14 at 3; HR (testimony of appellant); PFR File, Tab 1 at 3. Indeed, on

review, the appellant effectively concedes that his supervisor would have had to

create work for him by scheduling “housing area flushing,” which would have

created work as a driver, spotter, or lead that the appellant could have performed.

PFR File, Tab 1 at 3. Given the above, we agree with the administrative judge

that there was no evidence that available light duty assignments existed for the

agency to give to the appellant. ID at 11-12.

Finally, while the appellant asserted below that co-workers were provided

light duty, we find nothing in the record that supports the assertion that any

employee was provided light duty after the agency ceased offering light duty

assignments. IAF, Tab 9 at 9, Tab 12 at 3, Tab 14 at 3. Although the appellant

identified one employee who was allegedly given light duty, the record

establishes that this employee was removed from his light duty assignment on

December 9, 2019, upon notification that the Command had ceased providing

light duty. 4 HR (testimony of appellant’s supervisor). Therefore, we see no

evidence that any employee within the appellant’s unit, under his supervisor’s

command, was assigned to light duty at the time the appellant first reported to

work on December 16, 2019. IAF, Tab 1 at 2, Tab 12 at 3; HR, (testimony of

appellant’s supervisor). Therefore, we find nothing wrong or improper in the

agency’s denial of light duty assignment.

The employee was cleared for full duty and returned to work on December 16, 2019.

HR (testimony of appellant’s supervisor).

The appellant did not establish that he was a qualified individual with a disability,

and thus did not establish that the agency improperly failed to reasonably

accommodate him.

Because the appellant claimed below that the agency’s actions were

improper when it failed to reasonably accommodate his medical restriction, an

analysis of the claim under the ADAAA is appropriate. IAF, Tab 4 at 1, 3-4,

Tab 14 at 3; HR (testimony of appellant). We agree with the administrative judge

that the appellant did not establish that he met the definition of a qualified

individual under the ADAAA and thus had no entitlement to reasonable

accommodation. 5 ID at 7-11. However, we find that the administrative judge

erred in determining that the appellant was an individual with a disability, and

modify the initial decision accordingly.

As a Federal employee, the appellant’s claim of disability discrimination

arises under the Rehabilitation Act. Miller v. Department of the Army,

121 M.S.P.R. 189, ¶ 13, n.3 (2014). The standards under the Americans with

Disabilities Act, as amended by the ADAAA, have been incorporated by

reference into the Rehabilitation Act and the Board applies them to determine

whether there has been a Rehabilitation Act violation. Id.; 29 U.S.C. § 791(f).

In particular, the ADAAA provides that it is illegal for an employer to

“discriminate against a qualified individual on the basis of disability.” 42 U.S.C.

§ 12112(a). Therefore, to establish that the agency was wrongful in failing to

provide him with a reasonable accommodation, the appellant must establish that

he was entitled to that reasonable accommodation as a qualified individual with a

disability.

First, to be an individual with a disability, the appellant must establish that

he: (1) has a physical or mental impairment that substantially limits one or more

major life activities; (2) has a record of such impairment; or (3) is regarded as

having such an impairment. 42 U.S.C. § 12102(1); Thome v. Department of

Because the appellant failed to meet the threshold issue in a disability discrimination

claim, we do not address any further steps in the disability discrimination framework.

Homeland Security, 122 M.S.P.R. 315, ¶ 24 (2015); 29 C.F.R. § 1630.2(g)(1).

An impairment qualifies as a disability if it substantially limits the ability of an

individual to perform a major life activity as compared to most people in the

general population. 29 C.F.R. § 1630.2(j)(1)(ii). Factors to consider in

determining whether a condition substantially limits a major life activity include

the difficulty, effort, or time required to perform the activity; the pain

experienced performing the activity; the length of time the activity can be

performed; and/or the way an impairment affects the operation of a major bodily

function. 29 C.F.R. § 1630.2(j)(4). The Equal Employment Opportunity

Commission (EEOC) has explained in its regulations that while Congress

intended for the term “substantially limits” to be construed broadly, not every

impairment will constitute a disability under the ADAAA. 29 C.F.R. § 1630.2(j)

(1)(i)-(ii). For instance, impairments that only last a short period of time are

typically not covered under the ADAAA unless they are sufficiently severe.

29 C.F.R. Appendix at § 1630.2(j)(1)(ix).

Here, the appellant had limited use of his right arm for approximately

10 weeks while he recovered from right shoulder surgery. IAF, Tab 1 at 7-11,

Tab 9 at 9; HR (testimony of appellant). The appellant was restricted only in the

use of his right arm, insomuch that he was prohibited from lifting or carrying

items over 25 pounds, or lifting his right arm above his head. IAD, Tab 1 at 7,

9-10. As of February 14, 2020, the appellant returned to full duty with no

medical restrictions, and there is no evidence of any long-term or permanent

impact from the surgery. IAF, Tab 9 at 9, Tab 12 at 3; HR (testimony of

appellant). Therefore, looking at the length and duration of the impairment, as

well as the nature of the medical restrictions, we do not believe the appellant’s

impairment was sufficiently severe as to constitute a substantial limitation on a

major life activity in comparison with the general population. On review of the

record, we believe there is simply a lack of evidence that the appellant’s injury

was sufficiently severe that this short-term impairment would constitute disability

under the ADAAA.

The decisions from several tribunals, including the Equal Employment

Opportunity Commission (EEOC), support our finding that the appellant’s injury

is not considered a disability under the ADAAA. 6 See Clark v. Boyd Tunica,

Inc., No. 3:14-cv-00204-MPM-JMV, 2016 WL 853529 at *5 (N.D. Miss. Mar. 1,

2016) (finding that a broken foot did not substantially limit major life activities

and thus did not meet the definition of a disability under ADAAA); Martinez v.

New York State Division of Human Rights, No. 1:13-vc-1252-GHW,

2015 WL 437399 at *8 (S.D.N.Y. Feb. 2, 2015) (finding temporary injuries from

slip-and-fall accident did not constitute a disability); Kruger v. Hamilton Manor

Nursing Home, 10 F. Supp. 3d 385, 389 (W.D.N.Y. 2014) (finding that a broken

arm is not considered a disability under the ADAAA); Bush v. United States

Postal Service, 964 F. Supp. 2d 401, 421 (W.D. Pa. 2013) (finding that a

foot/ankle sprain is not a disability because it did not substantially limit a major

life activity); see also Idell v. Department of Agriculture, EEOC Appeal

No. 0120140792, 2017 WL 491366 at *1-2 (Jan. 26, 2017) (finding complainant

was not entitled to reasonable accommodation when recovering from surgery

on her left foot when the medical documentation indicated the condition was

short-term); Complainant v. Department of Homeland Security , EEOC Appeal

No. 0120122572, 2014 WL 7005948 at *5 (Dec. 4, 2014) (finding no evidence of

qualifying disability within the meaning of the ADAAA when complainant

We acknowledge that U.S. District Court decisions are not binding on the Board, but

the Board may follow such decisions to the extent, as here, it finds the reasoning

persuasive. Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 11 n.2 (2006).

We further acknowledge that while decisions from the EEOC are similarly not binding,

the Board generally defers to the EEOC on issues of substantive discrimination law

unless the EEOC’s decision rests on civil service law for its support or is so

unreasonable that it amounts to a violation of civil service law. Southerland v.

Department of Defense, 119 M.S.P.R. 566, ¶ 20 (2013), overruled on other grounds by

Pridgen v. Office of Management and Budget , 2022 MSPB 31. We find that in this

matter, the EEOC’s decisions neither rest on nor violate civil service law, and thus

believe it appropriate to defer to the EEOC on this matter.

recovered from her leg injury within four weeks). Based upon the reasoning in

these cases, which we find persuasive, we find that the appellant’s short-term

impairment does not meet the definition of disability under the ADAAA, and thus

the appellant was not an individual with a disability.

Second, even assuming arguendo that the appellant is an individual with a

disability under the ADAAA, we agree with the administrative judge that the

appellant was not a “qualified individual” under the ADAAA. ID at 9-11.

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). Both a claim of

disability discrimination based on an individual status as disabled and a claim

based on an agency’s failure to reasonably accommodate that disability require

that the individual be “qualified.” See McNab v. Department of the Army,

121 M.S.P.R. 661, ¶¶ 6, 8 n.5, 9 (2014)(recognizing that only a qualified

individual with a disability is entitled to relief for his disability discrimination

claim); Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶¶ 10-11, 17

(reversing an administrative judge’s finding that an agency denied reasonable

accommodation, concluding that the appellant was not a qualified individual with

a disability and thus was not entitled to reasonable accommodation).

The appellant is a Maintenance Worker, and performs operational and

preventative maintenance, which includes lifting heavy objects weighing up to

50 pounds such as pipes, manhole covers, and bags of concrete. IAF, Tab 10

at 5-9; HR (testimony of appellant’s supervisor). The appellant could not have

performed these tasks within his medical restrictions, which proscribed light duty

that included carrying or lifting no more than 25 pounds. IAF, Tab 1 at 7, 9-10;

HR (testimony of the appellant). The agency is not obligated to remove or assign

the essential duties of the appellant’s position to other employees to

accommodate the appellant’s restrictions. See Henry v. Department of Veterans

Affairs, 100 M.S.P.R. 124, ¶ 13 (2005) (stating that excusing an individual from

performing an essential function of his position is not an accommodation).

Therefore, we see no reasonable accommodation that would allow the appellant to

perform the essential duties of his position within his medical restrictions.

Because the appellant could not perform the essential duties of his position with

or without reasonable accommodation, we agree with the administrative judge

that he was not a qualified individual with a disability. ID at 9-11.

Because the appellant is not a qualified individual with a disability under

the ADAAA, he is not entitled to reasonable accommodation. Accordingly, the

appellant has failed to establish that the agency’s actions were wrongful under a

theory that it was unlawful under the ADAAA. Thus, because the appellant has

failed to establish that the agency’s actions were wrongful, we agree that the

Board lacks jurisdiction, and his appeal was properly dismissed. 7

NOTICE OF APPEAL RIGHTS 8

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

Because the appellant raised a claim of discrimination in this constructive adverse

action appeal, and the Board has now issued a Final Order dismissing the appeal for

lack of jurisdiction, the agency is now required, under Equal Employment Opportunity

Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)

giving the appellant the right to elect between a hearing before an EEOC administrative

judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).

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.

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. 9 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,

132 Stat. 1510.

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