Opinion

Ernesto Pelayo v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 15, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERNESTO PELAYO, DOCKET NUMBER

Appellant, SF-0752-20-0286-I-1

DEPARTMENT OF HOMELAND DATE: January 15, 2025

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ryan C. Nerney , Esquire, Ladera Ranch, California, for the appellant.

Lauren J. Johnson , Esquire, San Diego, California, 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 his removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

recognize and apply the proper standards for the agency’s charge and the

appellant’s disability discrimination claims and to address the appellant’s

argument that the agency’s requirement that he undergo a fitness for duty

examination constituted disability discrimination, we AFFIRM the initial

decision.

The following facts, as further detailed in the parties’ stipulations and the

initial decision, appear to be undisputed. Initial Appeal File (IAF), Tab 18

at 16-18; Tab 22 at 8-11; Tab 24 at 3-6; Tab 35, Initial Decision (ID) at 2-5. The

appellant began working as a Customs and Boarder Protection Officer (CBPO) in

2005. ID at 2. In November 2016, he had an off-duty accident in which he

suffered multiple fractures in his spine and hip. Id. After 2 months of leave and

extensive medical treatment, the appellant returned to a light duty assignment. ID

at 2-3. A couple of months later, the appellant returned to his assignment with

the agency’s Anti-Terrorism Contraband Enforcement Team, though his physician

indicated that he could work no more than 8 hours per day. ID at 3. That

restriction continued until August 2017, when the appellant’s physician indicated

that he could work no more than 12 hours per day. Id. Subsequent

communications from the appellant’s physician maintained similar restrictions,

citing degenerative joint disease in the hip, as well as pain and stiffness. Id.;

IAF, Tab 5 at 22.

In February 2019, the agency ordered that the appellant undergo a fitness

for duty examination. ID at 4; IAF, Tab 17 at 20. This included an independent

medical exam by a family practitioner in April, IAF, Tab 5 at 7-16, followed by

an independent medical exam by an orthopedist in June, IAF, Tab 4 at 72-78,

Tab 5 at 41-47, then a review of medical information by a third physician in

August, IAF, Tab 4 at 66-68. The latter two provided their opinion about the

appellant’s condition as it related to his position, with each concluding that he

was not medically fit for duty as a CBPO. IAF, Tab 4 at 66-71.

In September 2019, the agency proposed the appellant’s removal for

inability to perform the full range of duties. IAF, Tab 4 at 62-64. The appellant

responded to the proposal and provided a note from the physician who performed

his 2016 surgery indicating that the appellant was fit for duty. ID at 4; IAF,

Tab 5 at 39. At that point, the fitness for duty physicians who had previously

opined that the appellant was not fit issued a supplemental report indicating that

their opinions were unchanged. IAF, Tab 4 at 52-60. Then, in January 2020, the

agency offered to reassign the appellant to a non-law enforcement position, but he

declined the offer. Id. at 33, 61. The next month, February 2020, the deciding

official effectuated the appellant’s removal. ID at 5; IAF, Tab 4 at 47-50.

The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.

After developing the record and holding the requested hearing, the administrative

judge affirmed the action. She first found that the agency proved its charge. ID

at 14-21. Next, the administrative judge found that the appellant failed to prove

his claims of disparate treatment disability discrimination, ID at 21-24, disability

discrimination based on a failure to accommodate, ID at 25-29, harmful

procedural error, ID at 29-32, or a violation of due process rights, ID at 32-33.

Lastly, she found that the agency established the requisite nexus and

reasonableness of its penalty. ID at 33-35.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He challenges the administrative judge’s findings regarding proof of

the charge and credibility, id. at 9-14, 22-26, disability discrimination, id.

at 14-19, harmful procedural error, id. at 19-21, and nexus, id. at 21-22. The

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

The administrative judge applied an inapplicable legal standard to the agency’s

charge.

Once again, the agency proposed and then effectuated the appellant’s

removal based on a single charge of inability to perform the full range of his

CBPO duties. IAF, Tab 4 at 47, 62. The administrative judge analyzed this

charge under 5 C.F.R. § 339.206 and the standard set out in Sanders v.

Department of Homeland Security, 122 M.S.P.R. 144, ¶ 11, aff’d per curiam,

625 F. App’x 549 (Fed. Cir. 2015), finding that the agency proved its charge by

establishing that the appellant had a disqualifying medical condition that poses a

reasonable probability of causing substantial harm. ID at 13-14, 21.

Though not raised by either party on review, we find section 339.206 and

the Sanders standard inapplicable. See 5 C.F.R. § 1201.115(e) (providing that,

although the Board normally will consider only issues raised by the parties on

review, it reserves the authority to consider any issue in an appeal before it). As

explained below, section 339.206 and Sanders do not apply to this appeal because

the agency did not remove the appellant based solely on his medical history;

rather, it removed the appellant based on a current medical condition and inability

to perform.

In Haas v. Department of Homeland Security, 2022 MSPB 36, we revisited

the Board’s precedent concerning a medical inability to perform charge when the

employee occupied a position that was subject to medical standards, e.g., the

position of CBPO. We overruled a number of cases on this point, including

Sanders, and found that 5 C.F.R. § 339.206 should not be universally applied in

removals based on medical inability to perform. Id., ¶¶ 11-16. Rather,

section 339.206 only applies to removals that are “solely on the basis of medical

history.” Id., ¶¶ 11-12.

Regardless of whether a position is subject to medical standards, if an

agency removes an employee for inability to perform because of a current

medical condition or impairment, the agency must prove either a nexus between

the employee’s medical condition and observed deficiencies in his performance or

conduct, or a high probability, given the nature of the work involved, that his

condition may result in injury to himself or others. Id., ¶¶ 15, 20 & n.3. The

Board has otherwise described the standard as requiring that the agency establish

that the appellant’s medical condition prevents him from being able to safely and

efficiently perform the core duties of his position. Id., ¶¶ 15, 20.

In the instant appeal, the agency did not remove the appellant based solely

on his medical history. The agency instead removed him because of his current

medical condition. The proposal to remove the appellant cited his degenerative

joint disease, pain, stiffness, and the appellant’s own medical submissions, which

indicated that he was still limited in terms of the number of hours he could work

in a day. IAF, Tab 4 at 62. The proposal also cited additional ongoing

limitations described in the fitness for duty examinations, such as ones

concerning his lifting capacity, climbing, bending, and stooping. Id.

Accordingly, section 339.206 does not apply.

As modified to apply the correct legal standard, we affirm the administrative

judge’s conclusion that the agency proved its charge.

Although the administrative judge rendered the initial decision in this

appeal before we issued Haas and, consequently, misapplied 5 C.F.R. § 339.206,

remand is unnecessary because the record is fully developed on the relevant

issues. See Haas, 2022 MSPB 36, ¶ 20. Because the agency removed the

appellant based on a current medical condition, its burden was to prove either a

nexus between the employee’s medical condition and observed deficiencies in his

performance or conduct, or a high probability, given the nature of the work

involved, that his condition may result in injury to himself or others . Id. In other

words, the agency must establish that the appellant’s medical condition prevents

him from being able to safely and efficiently perform the core duties of his

position. Id. While determining whether the agency has met this burden, the

Board will consider whether a reasonable accommodation, short of reassignment,

exists that would enable the appellant to safely and efficiently perform those core

duties. Id., ¶ 25.

The core duties of a position are synonymous with the essential functions

of a position under the Americans with Disabilities Act (ADA), as amended by

the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), i.e., the

fundamental job duties of the position, not including marginal functions. Id.,

¶ 21. One of the bases for finding that a function is essential is that it is the

“reason the position exists.” Id.; 29 C.F.R. § 1630.2(n)(2)(i).

According to the relevant position description and associated medical

standards, CBPOs are weapon-carrying border security officers whose “primary

function” includes “detect[ing] and prevent[ing] terrorists and instruments of

terror from entering the United States” and ensuring border security. IAF, Tab 5

at 27-30, 74-82. A CBPO must be “prepared mentally and physically to respond

to unexpected situations and have the functional capacity to defend self and

others from threatening situations in which the use of deadly force may be

necessary.” Id. at 27. Among other things, the physical demands of the position

“range from sedentary to arduous” and include “sustained heavy manual labor,”

as well as “extended or unscheduled hours.” Id. at 28. In addition, the CBPO

must be able to “escalate quickly . . . to pursue then physically control a suspect

and sprint or run at full speed for 150 feet to respond to an emergency.” Id. at 29.

Although the administrative judge applied the legal framework for a

removal based on a medical history, she made well-reasoned findings regarding

conflicting arguments and evidence about the appellant’s condition. ID at 14-21.

Most notably, she recognized differences in the treatment notes and hearing

testimony of the various physicians who examined the appellant or reviewed his

fitness for duty. ID at 14-20. The administrative judge also considered the

appellant’s performance during the period leading up to his removal, finding that

it did not outweigh medical evidence about his limitations. ID at 20-21.

Ultimately, she was most persuaded by the fitness for duty orthopedic examiner

and the fitness for duty consultant, who both indicated that the appellant was not

fit. ID at 19-20; see, e.g., IAF, Tab 4 at 52-60, 67-78, Tab 30, Hearing Compact

Disc, Day 1 (testimony of fitness for duty consultant and fitness for duty

orthopedic examiner).

Broadly speaking, the fitness for duty orthopedic examiner relied on the

appellant’s subjective reports, diagnostic imaging, and a physical exam to

determine that the appellant was limited in terms of lifting, pushing, pulling,

climbing, bending, stooping, crouching, crawling, working on uneven surfaces,

and working more than 12 hours. IAF, Tab 4 at 72-78. The fitness for duty

orthopedic examiner concluded that the appellant was “not fit to safely and

efficiently perform all the essential duties of [the CBPO position], without

restrictions.” Id. at 77. In a supplemental report, he elaborated. Id. at 69-71.

Among other things, the fitness for duty orthopedic examiner explained how some

of the physical requirements of the CBPO position would put the appellant at risk

of injury and increase his pain. Id. at 69. Specific to a question about responding

to a sudden physical attack, he surmised that the appellant may have difficulty

protecting himself or others. Id. at 70. The fitness for duty orthopedic examiner

also described the appellant as having “no endurance” and unable to maintain a

high standard of physical conditioning. Id. The fitness for duty consultant

agreed with the fitness for duty orthopedic examiner. Id. at 66-68.

On review, the appellant challenges the administrative judge’s findings

about his alleged inability to perform. He first reasserts that successful

performance during the period leading up to his removal demonstrates that he was

not medically unable to perform. PFR File, Tab 1 at 9-11. We disagree. It is

apparent that the CBPO position is unique in that an incumbent may not often

encounter a life-or-death physical altercation, but they must be prepared for such

an encounter to occur in an instant. Supra p. 6. Although the appellant’s

successful performance in the period leading up to his removal may be indicative

of his medical ability to perform at least some functions of the CBPO position,

we are aware of no persuasive argument or evidence that he successfully engaged

in the type of physical altercations a CBPO must be prepared for during the same

period. The appellant argues that he had the highest arrest rate among his peers,

but his petition contains nothing to suggest that any of those arrests were

particularly combative. He has not pointed us to evidence of him successfully

pursuing and apprehending uncooperative individuals, protecting himself or

others, or engaging in any of the additional tasks identified by clinicians as

limited by his medical condition, such as those concerning heavy lifting. IAF,

Tab 4 at 62, 67-70. More importantly, the appellant’s recent performance does

not negate the prevailing medical opinion regarding his underlying condition and

the risk it posed in terms of further injury or handicap to the appellant if he were

to continue performing the CBPO position. E.g., id. at 69; see Haas, 2022 MSPB

36, ¶ 19 (rejecting arguments that past successful performance outweighed

current medical impressions).

The appellant’s next set of arguments concern the administrative judge’s

weighing of medical opinions. 2 PFR File, Tab 1 at 11-14. In short, he argues that

the administrative judge afforded too much weight to the clinicians who indicated

the appellant was not fit for duty and not enough to those who indicated

otherwise. Id. While we have considered these arguments, we find no basis for

disturbing the administrative judge’s well-reasoned conclusions. See Haas,

2022 MSPB 36, ¶¶ 24, 26 (agreeing with an administrative judge’s weighing of

To the extent it may have caused any confusion, we recognize that the administrative

judge seems to have inadvertently referred to one of the clinicians by her first name, at

times. Compare IAF, Tab 4 at 68 (identifying the clinician’s full name), with ID at 4

(referring to her by last name), and ID at 19 (referring to her by first name).

medical evidence to find an independent medical examiner more persuasive than

the appellant’s treating clinician).

In sum, we find that the administrative judge properly considered factors

such as the length of any treating relationship with the appellant, any

specialization of the clinicians, the extent of any physical exam, and witness

demeanor to weigh the conflicting medical records and opinions. ID at 14-20; see

Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 11 (2014) (recognizing

these as some of the factors to consider while assessing the probative weight of

medical opinions). The appellant’s arguments on review do not persuade us to

disturb the administrative judge’s conclusions about which medical reports and

opinions were most persuasive, or the relevance of the appellant’s past

performance. We further find that, under the proper legal framework, i.e., the

one for a current medical condition rather than a history of medical condition, the

agency met its burden. The record establishes that the appellant’s current

medical condition prevents him from being able to safely and efficiently perform

the core duties of his CBPO position, thereby proving the agency’s medical

inability to perform charge.

The appellant failed to establish that the agency engaged in disability

discrimination because he did not meet his burden of proving that he is a

qualified individual with a disability, as that term is defined under the relevant

statutes.

The administrative judge considered but rejected the appellant’s claims that

the agency engaged in disability discrimination. ID at 21-29. First, she found

that the appellant’s disparate treatment claim failed because there was no

evidence that the removal was improperly motivated by the appellant’s disability.

ID at 24. Second, she found that the appellant’s failure to accommodate claim

failed because the appellant was not a qualified individual with a disability. ID

at 28-29. We modify the administrative judge’s analysis but agree that these

claims fail.

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. Haas, 2022 MSPB 36, ¶ 28. The

Rehabilitation Act has incorporated the standards of the ADA, as amended by the

ADAAA. Id. Therefore, we apply those standards here to determine if there has

been a Rehabilitation Act violation. Id. 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 also required to provide reasonable

accommodations to an otherwise qualified individual with a disability. 42 U.S.C.

§ 12112(b)(5).

A claim of disability discrimination based on an individual’s status as

disabled and a claim based on an agency’s failure to reasonably accommodate

that disability both require that the individual be “qualified.” Haas, 2022 MSPB

36, ¶¶ 28-30. Accordingly, if the administrative judge properly determined that

the appellant’s failure to accommodate claim failed because he was not

“qualified,” that conclusion also would be dispositive for his disparate treatment

claim and any discussion of the agency’s motive would be unnecessary. Id., ¶ 30.

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); Haas, 2022 MSPB

36, ¶ 28. The appellant argues that he meets this standard because he could

perform the essential functions of his CBPO position and had been doing so

during the period leading up to his removal. PFR File, Tab 1 at 16-19. He

suggests that the only accommodation he needed was a limitation of working no

more than 12 hours per day. Id. The administrative judge disagreed. She found

that the appellant was not “qualified” because the essential functions of the CBPO

position were physically rigorous duties, which the appellant could not perform

without risking his own safety or the safety of others. ID at 28-29.

We agree with the administrative judge. The appellant’s arguments on this

point essentially mirror those regarding the agency’s charge. He disputes the

medical evidence and opinions that the administrative judge found most

persuasive and argues that his performance during the period leading up to his

removal demonstrates that he can perform as a CBPO. But we are unmoved. See

Haas, 2022 MSPB 36, ¶ 30 (discounting an appellant’s argument that his

performance history supported a finding that he was qualified).

Based on the prevailing medical evidence and opinions, the appellant was

unable to perform the essential functions of his CBPO position without risking

his own safety or the safety of others, regardless of the number of hours worked.

In addition, the appellant rejected an offer of reassignment prior to his removal,

and we found no indication that the appellant has ever identified any other

alternative position or other accommodation that he desired beyond the

already-provided limitation in his hours. IAF, Tab 4 at 33, 61; see Haas,

2022 MSPB 36, ¶ 30 (finding that an appellant did not establish his failure to

accommodate claim when he was unable to perform the essential functions of his

CBPO position and he did not identify any alternative position desired as an

accommodation). Accordingly, the administrative judge correctly determined that

the appellant’s claim of disability discrimination based on an alleged failure to

accommodate fails because the appellant did not prove that he is a qualified

individual with a disability. For the same reason, his disparate treatment claim

fails as well.

Although not addressed by the administrative judge, the appellant appears

to be arguing that the fitness for duty exam he was ordered to undergo was

inappropriate and is evidence of disability discrimination. E.g., IAF, Tab 18 at 7,

10; PFR File, Tab 1 at 16. While we have found that the appellant is not a

qualified individual with a disability, the statute and implementing regulations

limit examinations or inquiries of “an employee,” not just qualified individuals

with a disability. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); see

Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 31 (2014) (citing

Watkins v. Potter, EEOC Appeal No. 01981800, 2001 WL 1097442, at *2

(Aug. 29, 2001) (indicating that “[t]he ADA’s restrictions on inquiries and

examinations apply to all employees”)). For the reasons that follow, we modify

the initial decision to consider this allegation and find that the agency did not err.

The ADAAA significantly restricts the medical inquiries that an agency

may make of an employee. Martin v. U.S. Postal Service, 2022 M.S.P.R. 22 ¶ 11;

Archerda, 121 M.S.P.R. 314, ¶ 29 & n.6. Under the ADAAA, an agency may

require a medical examination or make a medical inquiry regarding whether an

employee “is an individual with a disability or as to the nature or severity of the

disability” only when such inquiry or examination “is shown to be job-related and

consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). It is the

employer’s burden to show that its disability-related inquiries and requests for

examination are job related and consistent with business necessity. Martin,

2022 M.S.P.R. 22, ¶ 12; Archerda, 121 M.S.P.R. 314, ¶ 31.

Ordinarily, a disability-related inquiry or medical examination may be “job

related and consistent with business necessity” if an employer “has a reasonable

belief, based on objective evidence, that: (1) an employee’s ability to perform

essential job functions will be impaired by a medical condition; or (2) an

employee will pose a direct threat due to a medical condition.” Martin,

2022 M.S.P.R. 22, ¶ 12 (citations omitted); Archerda, 121 M.S.P.R. 314, ¶ 30.

However, when an employee occupies a position that is subject to medical

standards or physical requirements, as here, 5 C.F.R. § 339.301(b)(3) authorizes

an agency to order a medical examination whenever there is a reasonable belief,

based on objective evidence, that there is a question about the employee’s

continued capacity to meet the physical requirements or medical standards of the

position. See IAF, Tab 5 at 27-30, 74-82.

Here, the letter ordering the appellant to undergo the fitness for duty exam

explicitly cited section 339.301 and indicated that the agency had a direct

question about the appellant’s continued capacity to meet the physical or medical

requirements of his CBPO position. IAF, Tab 17 at 20. Therefore, that is the

standard under which we consider the propriety of his fitness for duty exam.

As previously discussed, the appellant occupies a CBPO position that is

physically demanding. E.g., IAF, Tab 5 at 27-30, 74-82. He had an off-duty

accident in November 2016 that resulted in multiple fractures to his spine and

hip, requiring 2 months of leave before he could return to any work. E.g., IAF,

Tab 18 at 16. The appellant would eventually return to the assignment he had

prior to his accident in March 2017, with the only remaining limitation described

by his physician being a requirement that he work no more than 8 hours per day.

Id. However, by May 2017, his physician was still describing the appellant’s

fractures as in the process of healing. Id. A few months later, the appellant

submitted documentation from a new physician indicating that he could work as

many as 12 hours at a time. Id. at 17. Through subsequent communications, he

extended this limitation through at least November 2019. Id.

The agency’s February 2019 order that the appellant undergo its fitness for

duty exam cited the latest note it had from the appellant’s treating physician.

IAF, Tab 17 at 20 (referencing IAF, Tab 5 at 22). That November 2018 doctor’s

note described the appellant injuries in 2016 and indicated that current imaging

showed that he had degenerative joint disease in the hip. IAF, Tab 5 at 22. It

also described the appellant as developing pain and stiffness in that hip after

standing for more than 12 hours. Id. According to the agency’s instruction that

he undergo a fitness for duty exam, this “rais[ed] questions . . . regarding [the

appellant’s] continued capacity to perform the full range of duties of [his]

position in a safe and effective manner.” IAF, Tab 17 at 20.

The official who ordered the appellant to undergo the fitness for duty exam

was the Assistant Port Director. IAF, Tab 17 at 20-21. The appellant called him

as a witness at the hearing below. IAF, Tab 24 at 6, Tab 33 at 2. While

testifying, he indicated that he did not know the appellant personally, and he only

learned of the appellant’s 2016 injury when the November 2018 medical note was

passed along the chain of command to him. IAF, Tab 32, Hearing Compact Disc,

Day 2 (testimony of Assistant Port Director). The Assistant Port Director

explained that he had only recently joined that office a few months earlier, so he

had not previously been involved in the situation and that he was not aware of the

details concerning how the situation had been handled before. Id. But he would

later provide additional context, testifying that he did not have a predecessor, and

the appellant’s division had been lacking in terms of managerial oversight and

administrative functioning, which led to the creation of his position. Id. The

Assistant Port Director suggested that this lack of oversight may have been the

reason why the appellant had not been ordered to undergo a fitness for duty exam

earlier. Id. According to the Assistant Port Director, the appellant was one of

several employees he ordered to undergo fitness for duty exams as he familiarized

himself with the division, its employees, and their situations. Id.

Upon questioning about the rationale for ordering the appellant’s fitness for

duty exam, the Assistant Port Director testified that he was concerned about the

medical report indicating that the appellant had degenerative joint disease, which

was a recent diagnosis and one he knew little about. Id. He further provided that

although the appellant’s doctor only described a limitation on him standing or

working more than 12 hours, that called into question whether the appellant could

perform other CBPO functions that were even more physically demanding. Id.

The Assistant Port Director gave examples, such as confrontations with

noncompliant travelers or detainees and jumping on trucks or trains. Id. He

summarized by stating that the medical information the appellant submitted gave

him cause for concern about whether the appellant met the medical requirements

of the position—a position he was very familiar with from his years with the

agency. Id.

As the appellant’s counsel confronted the Assistant Port Director about the

delay between his receipt of the November 2018 medical note and his February

2019 order for a fitness for duty exam, the Assistant Port Director attributed the

delay to a government shutdown and the agency’s administrative process, which

involved him making the ultimate decision, but only after consulting with others,

including an agency nurse. Id. He also explained that he felt he had no choice

from an administrative standpoint but to allow the appellant to continue working

while waiting for the fitness for duty exam and follow-ups, despite his concerns

about the appellant’s ability to perform. Id.

Under these circumstances, we find that the agency had ample reason to

question whether the appellant met the medical requirements of his position in the

immediate aftermath of his November 2016 accident. Although the appellant

recovered to a significant degree over the ensuing years, he continued to submit

medical documentation indicating that he had at least some persisting limitations

and abnormalities, particularly ones involving his hip. E.g., IAF, Tab 5 at 22.

Meanwhile, his CBPO position had medical standards indicating that the demands

of the position were arduous and included, inter alia, “sustained heavy manual

labor,” the ability to “pursue then physically control a suspect,” as well as the

ability to crawl and jump from heights of 4-5 feet. Id. at 28-29.

In the absence of any persuasive evidence to the contrary, we find that the

Assistant Port Director’s testimony provided a reasoned explanation for his

decision to order the fitness for duty exam that comports with 5 C.F.R.

§ 339.301(b)(3). Throughout this appeal, the appellant has continually pointed to

his successful performance during the period leading up to his fitness for duty

exam and removal to argue that neither was warranted. E.g., PFR File, Tab 1

at 16. While we have considered the same, for the reasons explained above we

find that the agency had a legitimate question about his ability to meet the

medical requirements of the CBPO position; thus, he has not shown that the

agency violated statutes or regulations prohibiting disability discrimination when

it sent him for the fitness for duty examination. See 42 U.S.C. § 12112(d) and

29 C.F.R. §§ 1630.13(b), 1630.14(c).

The administrative judge correctly found that the appellant failed to prove any

harmful procedural error.

The administrative judge considered but rejected the appellant’s various

arguments concerning harmful procedural error. ID at 29-32. In his petition for

review, the appellant reasserts some of his harmful procedural error claims,

arguing that the agency erred by failing to follow the procedures required by both

5 C.F.R. § 339.303(b) and a provision within the applicable collective bargaining

agreement. PFR File, Tab 1 at 19-21.

According to the appellant, section 339.303(b) required that the agency

send the records from the fitness for duty clinicians and the records from his own

surgeon to another specialist to resolve their conflicting conclusions about the

appellant’s ability to perform the CBPO position. Id. at 19-21. We, however,

agree with the administrative judge’s determination that the appellant failed to

establish any error regarding this regulation, much less a harmful one. ID

at 29-31. Generally speaking, the relevant language from section 339.303(b)

provides that if an agency’s medical exam conflicts with the medical records of

an employee’s own providers, and the agency’s medical examiner cannot resolve

the conflict, the agency “may” seek another opinion from an appropriate

specialist. The provision does not require that the agency seek that additional

opinion from another specialist, nor does it preclude the agency from obtaining a

supplemental report from its fitness for duty examiners, as it did in this case.

Compare IAF, Tab 4 at 66-72 (August 2019 reports from the agency’s fitness for

duty clinicians, indicating that the appellant was unable to perform), with IAF,

Tab 5 at 39 (September 2019 report from appellant’s physician, indicating that he

was able to perform), and IAF, Tab 4 at 52-60 (December 2019 and January 2020

reports from agency’s fitness for duty clinicians, considering but discounting the

opinion of the appellant’s physician).

Turning to the appellant’s collective bargaining agreement, he argues that a

particular provision requires that the agency observe applicable rules and

regulations about fitness for duty exams, which would encompass 5 C.F.R.

§ 339.303(b). PFR File, Tab 1 at 21. But again, we are not persuaded by his

arguments pertaining to that regulation. He has not established a harmful error

concerning section 339.303(b) or any collective bargaining agreement requiring

compliance with the same.

The administrative judge correctly found that the agency established the requisite

nexus between the appellant’s removal and the efficiency of the service. 3

The administrative judge lastly found that the agency met its burden

regarding nexus and the reasonableness of its penalty. ID at 33-35. Among other

things, she considered the appellant’s post-removal treatment records but found

that it did not establish that the appellant was recovered. Id. (discussing IAF,

Tab 18 at 250-52). On review, the appellant challenges the administrative judge’s

findings on that point. He argues that post-removal medical evidence

unambiguously shows that he has recovered, so his removal does not promote the

efficiency of the service. PFR File, Tab 1 at 21-22 (citing IAF, Tab 18 at 252).

The Board has recognized that even when an agency proves by

preponderant evidence that the appellant was unable for medical reasons to

perform the duties of his position when he was removed, the removal action will

be reversed on the basis that such action does not promote the efficiency of the

service if, during the pendency of the Board appeal, the appellant presents new

medical evidence showing that he has recovered such that he is able to perform

the essential duties of his position. See, e.g., Johnson v. U.S. Postal Service,

The Board does not typically undertake a full penalty analysis in nondisciplinary

removals, and we decline to do so here. See Brown v. Department of the Interior,

121 M.S.P.R. 205, ¶¶ 4, 18 (2014) (finding that the analysis of the penalty under

Douglas does not apply when the agency’s action is based on physical inability to

perform, consistent with the Board’s practice of not applying them to nondisciplinary

matters), overruled on other grounds by Haas, 2022 MSPB 36, ¶ 14.

120 M.S.P.R. 87, ¶ 8 (2013); Street v. Department of the Army, 23 M.S.P.R. 335,

340-43 (1984). Here, the post-removal evidence the appellant presented was

documentation of a single visit with an orthopedic surgeon in April 2020. IAF,

Tab 18 at 250-52. The appellant describes the associated exam as more thorough

than that of the fitness for duty exams. PFR File, Tab 1 at 21-22. However, the

corresponding record to which he has referred is quite limited. Based on a

current exam and X-ray, the physician indicated that the appellant “has no

restrictions in the open labor market and may participate in his job without any

restrictions.” IAF, Tab 18 at 252. However, the physician reached that

conclusion without any mention of the appellant’s prior limitations or his job

duties, and without even acknowledging that the appellant had occupied a CPBO

position. Id. In addition, it appears that the physician was relying on the

appellant’s own subjective reporting, which was less than forthcoming.

According to this physician’s recounting of why the appellant was seeking his

opinion, the individuals responsible for the agency’s fitness for duty exams

“never even performed a physical examination,” id., which is untrue.

Additionally, unlike the fitness for duty physicians who did testify, this physician

did not, so we have nothing more than his brief examination note. Therefore, we

agree with the administrative judge. The appellant’s limited post-removal

medical evidence does not unambiguously show that he recovered while this

appeal was pending, so his removal for medical inability to perform does promote

the efficiency of the service.

NOTICE OF APPEAL RIGHTS 4

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

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.

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:

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