Opinion

Kenton L Adams v. General Services Administration

Court: Merit Systems Protection Board
Filed: Sep 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENTON L. ADAMS, DOCKET NUMBER

Appellant, SF-0752-18-0010-I-1

GENERAL SERVICES DATE: September 16, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John Garvey , San Francisco, California, for the appellant.

Deborah Finch and Keaton Norquist , San Francisco, California, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and 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

sustained his removal for excessive absence. For the reasons discussed below, we

GRANT the appellant’s petition for review, REVERSE the administrative judge’s

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

conclusion sustaining the agency’s charge, VACATE the administrative judge’s

nexus and penalty analyses, and except as expressly MODIFIED to supplement

the discussion of the appellant’s affirmative defenses, AFFIRM the remainder of

the initial decision. The appellant’s removal is NOT SUSTAINED.

BACKGROUND

¶2 The following facts are undisputed. The appellant was a GS-12 Realty

Specialist for the agency. Initial Appeal File (IAF), Tab 8 at 46. On February 16,

2016, the appellant began an extended period of absence for medical reasons;

apart from a brief return to work in early May 2016, he was continually absent

through the rest of the calendar year, and there is no evidence that he ever

returned to duty. IAF, Tab 7 at 8-56, Tab 8 at 59-64. On October 3, 2016, the

appellant exhausted his accrued leave, and the agency began carrying him in

absent without leave (AWOL) status. Tab 7 at 52-56, Tab 8 at 61.

¶3 On December 5, 2016, the agency proposed the appellant’s removal based

on a charge of “excessive absence,” noting that the appellant had “been in a sick

leave, annual leave, or AWOL status for a total of over 1000 hours” during the

previous 10 months. IAF, Tab 8 at 59-64. After the appellant responded, the

deciding official issued a decision sustaining the charge and removing the

appellant effective January 18, 2017. Id. at 46-57.

¶4 The appellant filed a Board appeal contesting the merits of the removal and

raising affirmative defenses of discrimination and retaliation under Title VII, the

Rehabilitation Act, the Age Discrimination in Employment Act (ADEA), and the

Whistleblower Protection Act. IAF, Tab 1, Tab 16 at 3. He waived his right to a

hearing. IAF, Tab 1 at 1.

¶5 After the close of the record, the administrative judge issued an initial

decision sustaining the removal. IAF, Tab 18, Initial Decision (ID). He found

that the agency proved its charge and established that the appellant’s removal

promoted the efficiency of the service, and that the appellant did not prove any of

his affirmative defenses. ID at 3-28.

¶6 The appellant has filed a petition for review challenging the administrative

judge’s thoroughness and partiality. Petition for Review (PFR) File, Tab 1. The

agency has filed a response. PFR File, Tab 3.

ANALYSIS

¶7 Having considered the appellant’s arguments on review, we find that they

provide no basis to disturb the initial decision. The appellant speculates that the

administrative judge did not read every word of every document in the record, but

he has not identified any particular piece of material evidence that the

administrative judge overlooked. PFR File, Tab 1 at 1; see 5 C.F.R.

§ 1201.115(a). Nor is the fact that the administrative judge ruled against the

appellant in this case, or other appellants in other cases, sufficient to establish

that he was biased. PFR File, Tab 1 at 1-2; see Thompson v. Department of the

Army, 122 M.S.P.R. 372, ¶ 29 (2015). Nevertheless, the Board reserves the

authority to consider any issue in an appeal before it, 5 C.F.R. § 1201.115(e), and

in light of developments in the case law after the initial decision was issued, we

find it appropriate to revisit the merits of the case.

¶8 As a general rule, an agency may not take an adverse action based on an

employee’s use of approved leave. Coombs v. Social Security Administration,

91 M.S.P.R. 148, ¶ 12 (2002). However, an exception exists when the following

criteria are met: (1) the employee was absent for compelling reasons beyond his

control so that agency approval or disapproval of leave was immaterial because he

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 he

became available for duty on a regular, full-time or part-time basis; and (3) the

agency showed that 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). This exception is applicable only under unusual

circumstances, such as when the employee is unable to return to duty because of

the continuing effects of illness or injury. Id.

¶9 In this case, the administrative judge found that the appellant was absent for

compelling reasons beyond his control, the absences continued beyond a

reasonable time, the agency warned him that he could be disciplined if he did not

return to duty, and the Realty Specialist position needed to be filled by an

employee available for duty on a regular full-time basis. ID at 4. These findings

are generally supported by the record, and the appellant does not challenge them

on review. However, there is a facet of the agency’s case that the administrative

judge did not address and that compels a different outcome for the appeal.

Specifically, there are certain categories of absence, namely AWOL, leave

covered under the Family and Medical Leave Act of 1993, and leave taken prior

to being warned about possible discipline, that cannot be used to support a charge

of excessive absence. Williams v. Department of Commerce, 2024 MSPB 8, ¶ 6;

Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 32 (2015), overruled in

part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25.

¶10 In this case, the agency first warned the appellant on October 11, 2016 that

he could face removal unless he became available for duty on a regular, full-time

basis. ID at 4; IAF, Tab 7 at 30-32. Therefore, none of the appellant’s absences

prior to that date can be used to support the charge. See Williams, 2024 MSPB 8,

¶ 6. As for the appellant’s absences after the October 11, 2016 warning, the

record shows that none of them were approved and that the appellant was in

AWOL status the entire time. IAF, Tab 7 at 52-56, Tab 8 at 61. Therefore, none

of the absences that the agency identified in its proposal notice can be used to

support the charge, and the charge cannot be sustained. 2 See Savage,

122 M.S.P.R. 612, ¶¶ 31-32.

¶11 Because the agency’s failure to prove its charge may have implications for

the appellant’s affirmative defenses, we have reviewed the administrative judge’s

rulings on those, as well. In particular, an agency’s failure to prove its charge

may indicate that the charge was pretext for discrimination or retaliation. See,

e.g., Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 43 (2016); Goins

v. U.S. Postal Service, EEOC Appeal No. 01861764, 1987 WL 768555, at *4-*5

(July 21, 1987).

¶12 There are multiple methods of proving an affirmative defense of

discrimination under Title VII or the ADEA, and an appellant may use any

relevant evidence to support his claim, but whatever method of proof the

appellant chooses, he must show that discrimination was at least a motivating

factor in the action under appeal. Pridgen, 2022 MSPB 31, ¶¶ 20-24. In the

absence of direct evidence, the most common way of proving a discrimination

claim is under the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, the appellant

must first establish a prima facie case of discrimination by showing that (1) he is

a member of a protected class, (2) he suffered an adverse employment action, and

(3) the unfavorable action gives rise to an inference of discrimination. Wilson v.

Small Business Administration, 2024 MSPB 3, ¶ 16. Once the appellant has made

out a prima facie case, the burden shifts to the agency to articulate a

nondiscriminatory explanation for the action. Id, ¶ 17. If the agency meets this

burden, the burden shifts back to the appellant to show that the agency’s reason is

The agency could, perhaps, have taken an adverse action against the appellant based

on a charge of AWOL. See generally Wilson v. Small Business Administration,

2024 MSPB 8, ¶¶ 7-8 (setting forth the elements of an AWOL charge). However, the

Board must adjudicate an appeal solely on the grounds invoked by the agency and may

not substitute what it considers to be a more appropriate charge. O’Keefe v. U.S. Postal

Service, 318 F.3d 1310, 1315 (Fed. Cir. 2002).

pretextual or that it was more likely than not that the agency was motivated by

discrimination. Id.

¶13 In this case, the administrative judge detailed the evidence and allegations

that the appellant submitted in support of his ADEA and Title VII discrimination

claims, but he found that none of this evidence tended to show that the appellant’s

removal was motivated by discrimination based on age, race, sex, color, religion,

or national origin. ID at 8-12. We agree with these findings, and we further find

that the agency’s failure to prove its charge does not warrant an inference that the

officials who removed the appellant were motivated by any type of prohibited

discrimination. An agency’s failure to prove its charge does not necessarily mean

that it lacked a legitimate, nondiscriminatory reason for taking action against an

employee. See Carter v. Small Business Administration, 61 M.S.P.R. 656, 666

(1994). The appellant’s lengthy absence from duty with no foreseeable end

clearly provided such a reason. See Bentley v. U.S. Postal Service, 20 M.S.P.R.

208, 210 (1984) (“There is no question but that an employee’s absence for which

no foreseeable end is in sight is a burden which no employer can efficiently

endure.”). Considering the undisputed facts of this case and the context of the

removal action, we think that the agency’s failure to prove its charge is better

attributed to a misunderstanding of civil service law than it is to pretext.

¶14 To prove an affirmative defense of disability discrimination under either a

disparate treatment or reasonable accommodation theory, the appellant must

show, among other things, that he is a qualified individual with a disability. Haas

v. Department of Homeland Security, 2022 MSPB 36, ¶ 28; see 42 U.S.C.

§ 12112(a), (b)(5). 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);

29 C.F.R. § 1630.2(m).

¶15 In this case, the administrative judge found that the appellant was not a

qualified individual with a disability because he could not perform the essential

functions of his position with or without reasonable accommodation. ID at 17.

Specifically, the appellant did not show that, if granted more leave, he could

resume working in his position in the foreseeable future, and the appellant did not

otherwise articulate an accommodation that would allow him to return to duty and

perform the essential functions of his position. ID at 18. We also observe,

although not specifically addressed by the administrative judge, that the appellant

did not express that he desired to work in a different position. IAF, Tab 7

at 30-32, Tab 8 at 53-57. Thus, we agree with the administrative judge that the

appellant failed to demonstrate that he was a qualified individual with a

disability. ID at 17-18. Because the appellant has not shown that he is a

qualified individual with a disability, he cannot prevail on his disability

discrimination claims under either a reasonable accommodation theory or a

disparate treatment theory. See Haas, 2022 MSPB 36, ¶ 30.

¶16 The same evidentiary frameworks for claims of disparate treatment

discrimination apply to affirmative defenses of retaliation for protected EEO

activity. Pridgen, 2022 MSPB 31, ¶ 30. However, the standard of causation may

differ depending on the specific type of EEO activity at issue. To prove an

affirmative defense of retaliation for activity protected under Title VII or the

ADEA, an appellant must show that retaliation was at least a motivating factor in

the agency’s action. Id., ¶¶ 30-31; Nita H. v. Department of the Interior, EEOC

Petition No. 0320110050, 2014 WL 3788011, at *10 n.6 (July 16, 2014). To

prove an affirmative defense of retaliation for activity protected by the

Rehabilitation Act, the appellant must show that retaliation was a but-for cause of

the action. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 32; Pridgen,

2022 MSPB 31, ¶¶ 44-47.

¶17 It is not clear from the record whether the appellant’s prior EEO activity

was based on Title VII, the ADEA, or on the Rehabilitation Act. However, the

issue is ultimately immaterial because we agree with the administrative judge that

the appellant did not prove that his EEO activity was a motivating factor in his

removal. ID at 8-12; see Williams, 2024 MSPB 8, ¶ 17 n.7 (“The administrative

judge’s finding that the appellant failed to prove motivating factor causation

necessarily means that he failed to prove but-for causation.”). Apart from

showing that the proposing and deciding officials were aware of his prior EEO

activity, the appellant proffered no evidence that would support his claim of

retaliation. Under the circumstances of this case, the mere fact that the appellant

engaged in EEO activity of which the responsible management officials were

aware is insufficient to establish that retaliation was a motivating factor in the

removal. See Carter v. Department of the Army, EEOC Appeal No. 0120061789,

2007 WL 1320653, at *3 (Apr. 27, 2007).

¶18 To prove an affirmative defense of retaliation for protected whistleblowing,

the appellant must show that he made a protected disclosure under 5 U.S.C.

§ 2302(b)(8) or participated in protected activity under 5 U.S.C. § 2302(b)(9)(A)

(i), (B), (C), or (D) and that the disclosure or activity was a contributing factor in

the action under appeal. Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 12

(2015). If the appellant establishes a prima facie case of whistleblowing reprisal,

then the burden of persuasion shifts to the agency to show by clear and

convincing evidence that it would have taken the same personnel action absent

any protected activity. Id.

¶19 The administrative judge found that the appellant proved his case in chief

by showing that he made two protected disclosures that, under the

knowledge/timing test of 5 U.S.C. § 1221(e), were contributing factors in his

removal. ID at 20-23. The appellant’s first disclosure concerned a breach of

computer security protocol; the appellant disclosed that his supervisor provided

him and a coworker the supervisor’s own username and password to use in

accessing Government databases. IAF, Tab 1 at 21, Tab 8 at 54-55. The

appellant’s second disclosure was to his congressional representative and

concerned the agency’s failure to provide him a reasonable accommodation. IAF,

Tab 7 at 4-6, Tab 8 at 55. We agree with the administrative judge that this first

disclosure was protected under 5 U.S.C. § 2302(b)(8) and that the appellant

therefore met his initial burden of proving his whistleblower reprisal defense.

However, the appellant’s disclosure concerning the agency’s failure to provide

him a reasonable accommodation is protected under the Rehabilitation Act, so it

is not also protected under 5 U.S.C. § 2302(b)(8). 3 See McCray v. Department of

the Army, 2023 MSPB 10, ¶¶ 19-22. Nor do we find that this disclosure falls

within any of the categories of activity protected under 5 U.S.C. § 2302(b)(9).

¶20 Although the appellant showed that he made a protected disclosure that was

a contributing factor in his removal, considering the factors set forth in Carr v.

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the

administrative judge found that the agency proved by clear and convincing

evidence that it would have removed him regardless. ID at 23-25. We agree with

the administrative judge’s analysis for the most part. As for the strength of the

agency’s evidence in support of its action, we find that it is somewhat undercut

by its failure to prove the charge. However, as explained above, the agency’s

failure to prove its charge has more to do with it selecting the wrong charge than

it does with the lack of a legitimate nonretaliatory reason for pursuing an adverse

action. Supra ¶¶ 9 n.2, 12. We also agree with the administrative judge that the

officials who influenced the removal action had, at most, a slight institutional

motive to retaliate. ID at 24-25; see Whitmore v. Department of Labor, 680 F.3d

1353, 1370-71 (Fed. Cir. 2012). However, we think that the most significant

factor in this case is the agency’s treatment of similarly situated individuals,

whom the agency consistently separates from service when long-term illness or

injury prevents them from returning to work. IAF, Tab 7 at 75, Tab 8 at 58.

Even if these employees normally separate by retirement, they separate

nonetheless, and we agree with the administrative judge that there is no evidence

We have considered this second disclosure in the context of the appellant’s affirmative

defense of EEO reprisal. For the reasons explained above, we find that he has not

shown that this disclosure was a but-for cause of his removal. Supra ¶¶ 15-16.

that the agency hindered the appellant from retiring in lieu of removal. ID at 25;

IAF, Tab 1 at 40-52.

ORDER

¶21 We ORDER the agency to cancel the appellant’s removal and restore him to

duty, retroactive to January 18, 2017. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶22 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶23 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶24 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶25 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

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

Boards 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).

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. 5 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 following