# Ernesto Pelayo v. Department of Homeland Security

> Merit Systems Protection Board · January 15, 2025

URL: https://www.frixlaw.com/law-library/cases/10781562

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** January 15, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ERNESTO PELAYO, DOCKET NUMBER
Appellant, SF-0752-20-0286-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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,
3

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.
4

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,
5

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
6

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
7

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
8

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

2
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).
9

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.
10

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
11

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
12

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.
13

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
14

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.
15

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
16

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).
17

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,

3
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.
18

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

4
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.
19

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
20

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 .
21

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
22

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 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.

5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10781562. Public record. Not legal advice.