Opinion

Michelle P Joachin v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jan 10, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHELLE P. JOACHIN, DOCKET NUMBER

Appellant, DA-0752-19-0528-I-1

DEPARTMENT OF THE ARMY, DATE: January 10, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

R. Chris Pittard , Esquire, San Antonio, Texas, for the appellant.

Olga Sinquefield , Esquire, Fort Bliss, Texas, for the agency.

Matthew Watson , El Paso, Texas, 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 the appellant’s removal. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

findings of material fact; the initial decision is 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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

On review, the appellant argues that, contrary to the administrative judge’s

findings, she proved that the agency discriminated against her based on her

disability and failed to reasonably accommodate her. Petition for Review (PFR)

File, Tab 1 at 9-12; Initial Appeal File (IAF), Tab 34, Initial Decision (ID)

at 21-22, 25-26.

First, we are unpersuaded by the appellant’s argument that, in order for a

reassignment to constitute a reasonable accommodation, it must be agreed to by

both parties. PFR File, Tab 1 at 9. An appellant is not entitled to a specific

accommodation or the one that she desires. Miller v. Department of the Army,

121 M.S.P.R. 189, ¶ 15 (2014) (stating an employer does not have to provide the

requested accommodation or adjustment). Thus, the appellant’s refusal to accept

the agency’s offered reassignments, on its own, does not support a finding that

the agency failed to provide her with a reasonable accommodation. Similarly, we

are unconvinced by the appellant’s argument that the reassignment to the Medical

Support Assistant (MSA) position offered by the agency posed a “direct threat” to

her health. PFR File, Tab 1 at 11. The medical provider’s letter, cited by the

appellant, only states that the MSA position “could” exacerbate her condition.

IAF, Tab 15 at 81. Such a conditional statement is insufficient to establish that

the position was a “direct threat” to the appellant, nor does it justify the

appellant’s refusal to report to duty, which led to her removal. See Cano v. U.S.

Postal Service, 107 M.S.P.R. 284, ¶ 14 (2007) (in determining whether an

individual would pose a direct threat to the health or safety of herself or others,

factors to be considered include, among other things, the likelihood that potential

harm will occur and the imminence of the potential harm). Ultimately, we agree

with the administrative judge’s finding that the appellant did not prove that the

agency failed to reasonably accommodate her. ID at 21.

Furthermore, contrary to the appellant’s assertions on review, we agree

with the administrative judge that she did not otherwise prove that her removal

was based on her disability. ID at 23-26; PFR File, Tab 1 at 9-12. Nonetheless,

in analyzing the appellant’s disability discrimination claim, the administrative

judge identified the legal standard set forth in Savage v. Department of the Army,

122 M.S.P.R. 612 (2015), discussed the various methods of direct and

circumstantial evidence, and concluded that the appellant did not prove that her

disability was a motivating factor in her removal. ID at 23-26. The Board has

since overruled Savage to the extent that it held that the McDonnell Douglas

framework is not applicable to Board proceedings. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 25 (citing McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802-04 (1973)). Regardless, the outcome of

this appeal under Pridgen would be the same as that arrived at by the

administrative judge. Notably, under Pridgen, to obtain any relief, the appellant

must still show, at a minimum, that her disability was a motivating factor in the

agency’s decision to remove her, Pridgen, 2022 MSPB 31, ¶¶ 20-22, 40, and we

agree with the administrative judge that the appellant did not make this showing,

ID at 23-26. Therefore, because she did not prove that her disability was a

motivating factor in her removal, the appellant necessarily cannot prove that it

was a “but-for” cause of her removal. Pridgen, 2022 MSPB 31, ¶¶ 22, 40.

NOTICE OF APPEAL RIGHTS 2

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. 3 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