Opinion

Shawn Robbins v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHAWN ROBBINS, DOCKET NUMBER

Appellant, DE-0752-19-0291-I-1

DEPARTMENT OF THE ARMY, DATE: September 13, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.

Eric L. Carter , Esquire, Fort Riley, Kansas, 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

affirmed the agency’s removal action based on his failure to meet a condition of

employment (i.e., passing an annual physical ability test (PAT)). 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

We affirm the administrative judge’s finding that the agency did not wrongly

deny the appellant the opportunity to take the alternative walk test.

For the reasons set forth in the initial decision, we agree with the

administrative judge’s finding that the agency did not wrongly deny the appellant

the opportunity to take the 2-mile walk test in lieu of the 1.5-mile run test when

he twice underwent, but failed to pass, the PAT in December 2018 and

March 2019. Initial Appeal File (IAF), Tab 33, Initial Decision (ID) at 2, 4-9. In

particular, the administrative judge properly recognized that Appendix (App.) D -4

of Army Regulation (AR) 190-56, The Army Civilian Police and Security Guard

Program, provides that the alternative walk test is permitted for current

employees “with long-term medical restrictions or disabilities who cannot

perform the run . . event[], but can otherwise perform the essentials [sic]

functions of the job.” ID at 5; IAF, Tab 6 at 65, 67. The administrative judge

found that the appellant did not diligently seek an appointment with a physician

from the Department of Veterans Affairs (VA) to obtain the medical information

that was necessary to be afforded the walk test. 2 ID at 8-9.

On petition for review, the appellant challenges the administrative judge’s

finding that the agency did not wrongly deny him the opportunity to take the

alternative walk test. Petition for Review (PFR) File, Tab 1 at 5-8. Specifically,

the appellant argues that the administrative judge failed to recognize that, under

AR 190-56, ¶ 3-10, App. C-5, only a physician with Federal status has the

authority to determine whether it is appropriate for an employee to take the walk

or run test. PFR File, Tab 1 at 5-7. Thus, the appellant claims that the

administrative judge incorrectly shifted the burden from the agency to him to

obtain a certification from a physician with Federal status and incorrectly

required him to do something futile, as only the agency’s physicians within its

Occupational Health Department could have provided the necessary certification.

Id. The appellant further reasserts his argument that he already had provided the

agency with sufficient medical information under 5 C.F.R. part 339 and that the

agency was required under 5 C.F.R. § 339.304(a) to procure or pay for any

additional information it had wanted. PFR File, Tab 1 at 7-8; IAF, Tab 25

at 13-14.

After considering the appellant’s arguments and reviewing the relevant

regulations, we discern no basis to disturb the initial decision. 3

Specifically, AR 190-56, App. C-5(b)(3), provides the following:

The [Provost Marshal], [Director of Emergency Services], or

designated command representative will determine whether an

individual with a disability or long-term medical restrictions can take

the PAT (including through the use of alternate events) and perform

the essential functions of the job. Often, this determination may be

It is apparent based on the appellant’s assertions that he obtained healthcare and

medical services through the VA in his personal capacity. IAF, Tab 25 at 8-10.

Only Appendix D of AR 190-56 was included in the agency file. IAF, Tab 6 at 65-67.

Nevertheless, we have been able to access the complete provisions of AR 190-56

through http://www.westlaw.com. See 5 C.F.R. § 1201.64 (providing that the Board

may take official notice of matters that can be verified).

made based upon written information from an employee’s own health

care provider. It also may be appropriate to consult with Army

medical personnel to obtain any additional documentation necessary

for this determination.

See AR 190-56, Glossary § I (regarding abbreviations replaced in quoted text).

As discussed in the initial decision, the deciding official, who is the Chief of

Physical Security in the Directorate of Emergency Services, determined in

September 2018 that the appellant’s notes from his chiropractor dated July 31,

2017, and August 7, 2018, were not acceptable medical profiles for allowing him

to take the alternative walk test. ID at 6-7. We find that the deciding official was

authorized to make this determination pursuant to AR 190-56, App. C-5(b)(3). 4

We further find that the deciding official did not abuse his discretion under the

circumstances because the appellant’s notes on their face did not suggest that he

had any long-term medical restrictions or disabilities and because the results of

his March 2018 annual physical that was conducted through Occupational Health

indicated he had “no limiting conditions.” 5 ID at 7; IAF, Tab 24 at 78, Tab 25

at 21-22.

Contrary to the appellant’s assertions, we discern no requirement under

AR 190-56, App. C-5 for the deciding official to have referred the appellant’s

notes to Occupational Health. PFR File, Tab 1 at 5. Further, the appellant’s

reliance on AR 190-56, ¶ 3-10 for such a referral requirement is unavailing.

PFR File, Tab 1 at 5. In relevant part, AR 190-56, ¶ 3-10(a) provides that “when

the examining provider is not in federal service, the evaluation must be forwarded

to a physician having federal status for review and approval.” However, when

reading this provision in the context of AR 190-56, ¶ 3-10 as a whole, it is clear

AR 190-56, Glossary § II provides that the Provost Marshal or Director of Emergency

Services can be the Chief of Security.

Although the August 7, 2018 note referenced light duty, the appellant continued to

perform his normal duties as a Supervisory Security Guard and he testified that he had

no problems performing his normal job duties. ID at 6; IAF, Tab 25 at 22, Tab 32,

Hearing Recording (testimony of the appellant).

that the referral requirement only applies to the results of the initial and periodic

medical evaluations that are conducted pursuant to the agency’s Individual

Reliability Program. The procedures for conducting those medical evaluations

are set forth in AR 190-56, App. C, and App. C-1(h) clarifies that such medical

evaluations are conducted through Occupational Health. Thus, we find that the

appellant’s own VA-contracted chiropractor did not conduct an “evaluation”

within the meaning of AR 190-56, ¶ 3-10(a). ID at 6 n.2. Based on the

foregoing, we do not agree with the appellant’s argument that the agency was

required under AR 190-56, ¶ 3-10, App. C-5 to refer his notes from his

chiropractor to the agency’s physicians within Occupational Health. PFR File,

Tab 1 at 5.

Moreover, we find that the deciding official was authorized to request

additional medical information from the appellant under AR 190-56, App. C-5(b)

(4), which, when read with App. C-5(b)(3), contemplates that the agency can

request additional medical information from individuals concerning their ability

to take the PAT. Even if the appellant did not know that Occupational Health

ultimately was responsible for approving his medical profile that was necessary

for the alternative walk test, ID at 8, we do not agree with his argument that it

was futile to obtain additional medical information, PFR File, Tab 1 at 5-6. In

particular, the deciding official admitted in his hearing testimony that if, prior to

failing the March 2019 run test, the appellant had provided the agency with the

more-detailed note from his chiropractor that he submitted in response to his

proposed removal, it may have led (after referral to Occupational Health) to him

being granted the walk test. ID at 11-12; IAF, Tab 25 at 23, Tab 32, Hearing

Recording (testimony of the deciding official).

In addition, we do not agree with the appellant’s argument that the agency

was required under 5 C.F.R. § 339.304(a) to obtain or pay for the additional

medical information it had requested. PFR File, Tab 1 at 7. Specifically,

5 C.F.R. § 339.304(a) provides, “An agency must pay for all medical and/or

psychological and/or psychiatric examinations required or offered by the agency

under this subpart, . . . .” We find that this provision does not apply to this case

because the record reflects that the agency simply requested additional medical

information from the appellant and did not require or offer a medical

examination. ID at 7-8. Instead, 5 C.F.R. § 339.304(c) provides that, under such

circumstances when no medical examination is required or offered by the agency

but the agency requests an employee to provide medical documentation to render

an informed management decision, the employee must pay to obtain all relevant

medical documentation from his physician or practitioner. We further disagree

with the appellant’s argument that he already had provided the agency with

sufficient medical information for purposes of 5 C.F.R. part 339. PFR File, Tab 1

at 7. As discussed in the initial decision, the deciding official determined that the

appellant’s notes from his chiropractor were not acceptable to allow him to take

the walk test because they lacked a diagnosis, prognosis, and a statement as to the

duration of any restrictions. ID at 6-7. We find that this determination is

consistent with the definition of “medical documentation” under 5 C.F.R.

§ 339.104, which specifies that “[a]n acceptable diagnosis must include the

information identified by the agency as necessary and relevant to its employment

decision.”

We affirm the administrative judge’s finding that the appellant did not prove his

claim of disability discrimination.

The appellant further challenges on review the administrative judge’s

finding that he did not prove his claim that the agency committed disability

discrimination by failing to accommodate his alleged back condition through the

alternative walk test. PFR File, Tab 1 at 8-10; ID at 9-10. Even assuming, as the

appellant argues, that he is a qualified individual with a disability because of his

back condition and that the agency knew he was requesting to take the alternative

walk test as a reasonable accommodation, we still agree with the administrative

judge’s finding that he has not proven his disability discrimination claim.

PFR File, Tab 1 at 8-9; ID at 9-10; see White v. Department of Veterans Affairs,

120 M.S.P.R. 405, ¶9 (2013) (observing that, to establish disability

discrimination based on a failure to accommodate, an employee must show that

(1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g),

(2) he is a qualified individual with a disability pursuant to 29 C.F.R.

§ 1630.2(m), and (3) the agency failed to provide a reasonable accommodation). 6

Specifically, we find that the appellant has not established that the agency

violated its duty of reasonable accommodation because the record reflects that he

failed to fulfill his obligations in the interactive accommodation process.

See, e.g., White, 120 M.S.P.R. 405, ¶¶ 11-12 (explaining that, when the existence

or nature of a reasonable accommodation is not obvious and the employee fails to

respond to the employer’s reasonable request for medical information or

documentation, an agency will not be found to have violated its duty to provide a

reasonable accommodation). Importantly, despite being told why his notes from

his chiropractor were not acceptable to allow him to take the walk test, the

appellant did not provide the agency with more-detailed information regarding his

back condition until after his proposed removal. ID at 7-9, 11-12;

see, e.g., White, 120 M.S.P.R. 405, ¶¶ 13-14 (declining to find that the agency

failed to satisfy an obligation to provide a reasonable accommodation when the

appellant did not reply to the agency’s response stating that it needed additional

information before it could act on his request for accommodation).

Accordingly, we affirm the initial decision.

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

Rehabilitation Act. White, 120 M.S.P.R. 405, ¶ 9 n.4. The standards under the

Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of

2008, have been incorporated by reference into the Rehabilitation Act. 29 U.S.C.

§ 791(f); White, 120 M.S.P.R. 405, ¶ 9 n.4. Therefore, we apply those standards here to

determine if there has been a Rehabilitation Act violation.

NOTICE OF APPEAL RIGHTS 7

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).

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:

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.

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. 8 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