Opinion

Barbara Lettsome v. Department of Defense

Court: Merit Systems Protection Board
Filed: Oct 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 31.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BARBARA K. LETTSOME, DOCKET NUMBER

Appellant, AT-0752-18-0509-I-3

DEPARTMENT OF DEFENSE, DATE: October 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.

Cleora S. Anderson , Smyrna, Georgia, 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 for medical inability to perform essential functions of her

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

find that the appellant did not establish her claim of disability discrimination

because she is not a qualified individual with a disability, and that she failed to

establish that her protected activity under the Americans with Disabilities Act

Amendments Act of 2008 (ADAAA) was the “but for” cause of her removal, we

AFFIRM the initial decision.

BACKGROUND

The appellant was employed as a Management Analyst, GS-09, in the

Mission Support Office of the Defense Contract Management Agency. Lettsome

v. Department of Defense, MSPB Docket No. AT-0752-18-0509-I-3, Appeal File

(I-3 AF), Tab 23 at 8. As a Management Analyst, the appellant was responsible

for various administrative functions, such as the Government Operated Vehicle

(GOV) program, supplies, laptops, mail, and visitor management. Hearing

Recording (HR) (testimony of the appellant’s first -line supervisor). Three of the

position’s critical elements included Laptop Management, Management of the

GOV Program, and Management of Office Supplies, which included physical

aspects such as bending, reaching, lifting, and standing for long periods of time.

I-3 AF, Tab 24 at 15-17.

The appellant suffered from several medical conditions, to include bilateral

carpal tunnel syndrome, right elbow tendonitis, and cervical neck and lower

lumbar back pain, which significantly limited her ability to bend, reach, lift, stand

or sit for long periods, push, or pull. I-3 AF, Tab 23 at 69, Tab 24 at 9, 25. As a

result of her medical condition, the appellant requested and received several

modifications to her duties, which included removing the physical aspects of the

supply duties, such as inventory, unpacking and matching the items purchased

with the order receipts, stocking the orders, and maintaining the supply room; not

driving the GOVs; and being excused from laptop management duties because she

was unable to lift the laptops. 2 I-3 AF, Tab 23 at 26, 29, 51, Tab 24 at 23; HR

(testimony of the appellant, testimony of the first-line supervisor). With these

modifications, the appellant was only ordering supplies, scheduling the GOVs and

entering mileage, and scheduling laptops, which represented only a small portion

of her position’s responsibilities. HR (testimony of the appellant’s first -line

supervisor).

On June 30, 2017, the agency removed the appellant from her position for

medical inability to perform essential duties of the job. I-3 AF, Tab 23 at 8;

Lettsome v. Department of Defense, MSPB Docket No. AT-0752-18-0509-I-1,

Initial Appeal File (IAF), Tab 1 at 94-99. After filing an equal employment

opportunity (EEO) complaint alleging disability discrimination, and waiting for

over 120 days, she appealed her removal to the Board, asserting, in part, that the

removal was due to disability discrimination and in retaliation for her EEO

complaint and requests for reasonable accommodation. 3 IAF, Tab 5 at 4-8;

I-3 AF, Tab 23 at 6-7, Tab 24 at 26-27.

The appellant also received a pullout keyboard holder, an ergonomic chair, a sit-stand

desk, and speech recognition software as a reasonable accommodation request. I-3 AF,

Tab 23 at 33, 69; HR (testimony of the appellant).

We conducted a search to see if a decision had been issued in the appellant’s EEO

case, but we were unable to find any case that resembled the appellant’s claims.

After holding a hearing, the administrative judge issued a decision

affirming the agency’s removal action and finding that the appellant failed to

establish that her removal was the result of retaliation for protected activity or the

result of disability discrimination. I-3 AF, Tab 29, Initial Decision (ID). The

appellant has filed a petition for review, arguing that the agency failed to

accommodate her and/or delayed her accommodations, that she could perform the

essential functions of her job, and that any functions she could not perform were

marginal and not essential. Petition for Review (PFR) File, Tab 1 at 5-11. The

agency has responded in opposition to the appellant’s petition for review. PFR

File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant cannot establish her disability discrimination claim because she is

not a qualified individual with a disability.

The appellant’s disability discrimination claim was made on the basis of

her disabled status and on the basis of the agency’s failure to reasonably

accommodate that disability. I-3 AF, Tab 19 at 5-6. On review, she has

reiterated her claim that the agency failed to reasonably accommodate her

disability and/or delayed her accommodations. PFR File, Tab 1 at 7-8. First, the

administrative judge determined that the appellant could not establish a failure to

accommodate claim because there was no reasonable accommodation that would

have allowed her to perform the essential functions of her position, and there was

no vacant position available within her medical restrictions. ID at 17. Then, the

administrative judge determined that the appellant failed to present preponderant

evidence showing that she was treated differently due to her disability. ID at 19.

Although we agree with the administrative judge’s conclusion that the appellant

failed to establish her claim of disability discrimination on either basis, we

deviate from her analysis to find that the appellant cannot establish her disability

discrimination claim because she is not a qualified individual with a disability

under the ADAAA. Id.

The Board adjudicates claims of disability discrimination raised in

connection with an otherwise appealable action under the substantive standards of

section 501 of the Rehabilitation Act. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with

Disabilities Act (ADA), 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.; see 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). 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). An employer is

required to provide reasonable accommodations to an otherwise qualified

individual with a disability. 42 U.S.C. § 12112(b)(5). Thus, both a claim of

disability discrimination on the basis of the individual’s status as disabled and a

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

require that the individual be “qualified.” Haas v. Department of Homeland

Security, 2022 MSPB 36, ¶ 28.

The appellant is not a qualified individual because she cannot perform the

essential functions of her job with or without reasonable accommodation. The

record establishes that she is medically unable to perform essential functions of

her position, such as laptop duties and supply duties. HR (testimony of the

appellant). Furthermore, there is no evidence that a reasonable accommodation

exists that would allow the appellant to perform these duties, as she is medically

restricted from lifting, bending, reaching, or long periods of walking or standing,

which are necessary for her job. I-3 AF, Tab 24 at 24-25, 64; HR (testimony of

the appellant). Additionally, the agency has demonstrated that there was no

vacant funded position available for which the appellant was medically qualified,

and she has presented no evidence to contradict this finding. I-3 AF, Tab 23

at 83-106; HR (testimony of the appellant’s first-line supervisor).

On review the appellant claims that the agency should have granted her

request for a 4-month waiting period recommended by her doctor in a letter

drafted after the proposed removal notice. PFR File, Tab 1 at 6-7; I-3 AF, Tab 24

at 4-7, 63-64. We disagree because this request would not have allowed the

appellant to perform her essential job functions. Indeed, in that same letter, her

doctor stated that the accommodations may assist her in performing duties “not

related to heavy lifting, extensive bending, and reaching.” I-3 AF, Tab 24 at 64.

Thus, even if the 4 months had been granted, the appellant still would have been

unable to perform the physical aspects of her job, including supply duties and

laptop duties. In fact, the appellant remains restricted in her physical activities

and would be unable to perform these duties. HR (testimony of the appellant).

Because the appellant is not a qualified individual under the ADAAA, she cannot

establish her disability discrimination claims of failure to accommodate or

disparate treatment. 4

The appellant failed to establish that her removal was in retaliation for EEO

activity.

The appellant has claimed that her removal was retaliation for filing an

EEO complaint that alleged discrimination and harassment involving her

disability and for engaging in the reasonable accommodation process. I-3 AF,

Tab 19 at 6, Tab 24 at 126-27. These activities are protected under the ADAAA,

In support of her disability discrimination claim, the appellant claimed that the

deciding official told her that she was faking her disability; however, the administrative

judge credited the testimony of the deciding official denying that she made such a

statement based upon her character and demeanor at the hearing. ID at 19. On review,

the appellant references witness testimony that allegedly supports her claim that the

deciding official thought she was faking her disability. PFR File, Tab 1 at 7. First, the

Board will defer to the credibility findings of the administrative judge and will not

grant a petition for review based on a mere disagreement with those findings. Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997). Nevertheless, we agree with

administrative judge’s note that this fact alone would be insufficient to establish that

the appellant’s removal was motivated by her disability. ID at 19 n.20.

not Title VII. Haas, 2022 MSPB 36, ¶ 32; Pridgen, 2022 MSPB 31, ¶ 44. The

Board has recognized that a more stringent standard applies in the context of

retaliation claims arising under the ADAAA, such that the appellant must prove

that her prior EEO activity was the “but for” cause of the retaliation. Haas,

2022 MSPB 36, ¶ 31, Pridgen, 2022 MSPB 31, ¶¶ 43-47. Furthermore, the

appellant has the burden of proving “but for” causation in the first instance; in

other words, in an ADAAA retaliation claim, the burden does not shift to the

agency. Pridgen, 2022 MSPB 31, ¶ 47.

The administrative judge found that the appellant failed to establish her

claim of retaliation because the evidence failed to establish that the agency

officials had any motive to retaliate against her. ID at 20. While we agree with

her conclusion, we clarify that the proper standard to apply in claims involving

protected activity under the ADAAA is a “but for” causation standard. However,

for the following reasons, the appellant cannot meet even the lesser motivating

factor standard, and thus, she does not meet the “but for” standard. The outcome

therefore remains the same.

It is undisputed that the appellant filed an EEO complaint in December

2016 on the basis of disability and named the deciding official and the proposing

official as responsible management officials. I-3 AF, Tab 24 at 126-27. It is also

undisputed that the appellant engaged in the reasonable accommodation process

beginning in or around June 2016. Id. at 24-25. Additionally, the proposing and

deciding official were aware of the appellant’s reasonable accommodation

requests and her EEO complaint. HR (testimony of the deciding official,

testimony of the appellant’s first-line supervisor). Thus, within 1 year of

engaging in the reasonable accommodation process, and 6 months of filing an

EEO complaint naming the proposing and deciding official, the appellant was

removed from her position. I-3 AF, Tab 23 at 8. However, absent the timing,

there are no other facts in the record that would support a finding of retaliation.

Each of the appellant’s reasonable accommodation requests were granted, albeit

some items were delayed due to funding issues within the Federal Occupational

Health (FOH), a subagency of the Department of Health and Human Services.

HR (testimony of the first-line supervisor, testimony of the appellant). There is

no evidence in the record of any ambiguous statements or comments that would

suggest a retaliatory intent. The appellant presented no comparator evidence, nor

is there any in the record. As for the agency’s stated reason for the removal, it is

worthy of credence, as the record supports the finding that the appellant was

medically unable to perform essential job functions.

Therefore, the only indication that the appellant’s protected activity was

even a factor in the removal is the temporal proximity between the EEO

complaint and her removal. However, temporal proximity alone does not

establish that the protected activity was a motivating factor, let alone establish

that it was the “but for” cause of her removal. Accordingly, the appellant has not

established her affirmative defense of retaliation for protected activity. 5

The appellant has presented no claims on review that would serve as a basis for

reversal.

On review, the appellant also claims that the duties that she is admittedly

unable to perform are not essential duties, but marginal duties. PFR File, Tab 1

at 8-11. We find that the administrative judge thoroughly analyzed the evidence

regarding the essential functions of the appellant’s position and came to reasoned,

logical conclusions. ID at 9-14. Accordingly, we discern no reason to challenge

the administrative judge’s findings regarding the agency’s charge. Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 106 (1997) (declining to disturb the

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The timing also may have been influenced by FOH’s reports, which confirmed that the

appellant was unable to perform essential job duties and suggested removal for medical

inability. I-3 AF, Tab 24 at 13-14.

NOTICE OF APPEAL RIGHTS 6

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. 7 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