Opinion

Teresa L. Ruckman v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Nov 18, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 37.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TERESA L. RUCKMAN, DOCKET NUMBER

Appellant, SF-0752-23-0488-I-1

DEPARTMENT OF THE NAVY, DATE: November 18, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chalmers Johnson , Esquire, Port Orchard, Washington, for the appellant.

Michele Forte , Esquire, and Julie Flower , Esquire, Bremerton, Washington,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The agency has filed a petition for review and the appellant has filed a

cross petition for review of the initial decision, which found that the agency

proved the medical inability to perform charge underlying the appellant’s removal

but further found that the removal must be reversed because the appellant proved

disability discrimination. Generally, we grant petitions such as these only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 GRANT the agency’s petition for

review, DENY the appellant’s cross petition for review, and DENY the

appellant’s challenge to the agency’s certification of compliance with its interim

relief obligations. We REVERSE the initial decision’s conclusion that the

appellant proved her disability discrimination claim, and we SUSTAIN the

appellant’s removal.

The appellant’s position of record was that of a Crane Operator. Initial

Appeal File (IAF), Tab 14 at 4. By all indications, this was a physically

demanding position, requiring extensive climbing, reaching, pulling, pushing,

bending, and sitting. E.g., IAF, Tab 4 at 89, Tab 13 at 74-80. Beginning around

March 2020, the appellant struggled with a series of physical impairments. IAF,

Tab 14 at 2. In the months and years that followed, she sought treatment and

engaged with the agency about reasonable accommodations or reassignments to

no avail. Id. at 2-7.

In September 2022, the agency proposed the appellant’s removal for

medical inability to perform. Id. at 7. According to the deciding official, it

allowed the proposed removal to linger for several more months to see if the

appellant’s condition improved. IAF, Tab 18, Initial Decision (ID) at 8; IAF,

Tab 17-1. Concluding that it had not, the deciding official issued a June 29, 2023

decision to remove the appellant, effective July 7, 2023. IAF, Tab 14 at 7. The

agency had considered whether there were any vacant funded positions to which

the appellant could be reassigned, instead, but they found none. IAF, Tab 4

at 26-27, 100-02, 298-99. On July 6, 2023, the day before her removal was

scheduled to be effectuated, the appellant brought the agency medical records

indicating that she had improved to a degree, as she sought reconsideration of her

scheduled removal. IAF, Tab 14 at 8; ID at 7-8, 16-17. Nevertheless, the agency

proceeded with the removal action. Over the next several months, medical

records submitted with this appeal reflect further changes to her condition, but the

appellant stipulated that she was still not cleared for resumption of her regular

duties through at least the start of September 2023 because she was awaiting

surgery. IAF, Tab 14 at 8.

On appeal, the administrative judge found that the agency proved its charge

of medical inability to perform as well as the requisite nexus. ID at 18-20. He

also found no merit to some of the appellant’s affirmative defenses. ID at 20-24,

30. However, the administrative judge concluded that the appellant met her

burden of proving disability discrimination based upon a failure to accommodate.

ID at 28-30. Accordingly, he reversed the removal.

The agency has filed a petition for review in which it argues that the

appellant did not meet her burden of proving disability discrimination because

she did not prove that she meets the definition of a qualified individual with a

disability. Petition for Review (PFR) File, Tab 1. The appellant has filed a

response and cross petition for review. PFR File, Tab 4. Among other things,

she argues that the administrative judge erred in concluding that she was

medically unable to perform her own job as a Crane Operator and in finding that

her removal promoted the efficiency of the service. Id. The appellant separately

filed a petition for enforcement in which she alleged that the agency did not

comply with the administrative judge’s interim relief instructions. PFR File,

Tabs 3, 5.

The appellant’s interim relief arguments do not warrant dismissal of the agency’s

petition for review.

After concluding that the appellant’s removal should be reversed, the

administrative judge ordered the agency to provide interim relief to her, in

accordance with 5 U.S.C. § 7701(b)(2)(A), in the event either party were to file a

petition for review. ID at 32. The appellant brought a petition for enforcement in

which she claimed that the agency did not comply with this instruction when it

filed its petition for review. PFR File, Tab 5 at 4-14.

The Board’s regulations do not provide for petitions for enforcement of

interim relief orders; such petitions only apply to final Board decisions. 5 C.F.R.

§ 1201.182(a). Board regulations do, however, allow an appellant to challenge an

agency’s certification that it has provided interim relief. 5 C.F.R. § 1201.116(b).

We therefore consider the appellant’s pleading as a challenge to the agency’s

certification of compliance. See Ayers v. Department of the Army, 123 M.S.P.R.

11, ¶ 8 (2015).

If an agency fails to provide evidence of compliance with an interim relief

order, the Board may, at its discretion, dismiss the agency’s petition for review.

Id.; 5 C.F.R. § 1201.116(e). However, we find no basis for doing so in this case.

According to the appellant, the agency did not comply with the administrative

judge’s interim relief order because it did not reinstate her with an effective date

of July 7, 2023, which was the date of her removal. PFR File, Tab 5 at 7. But

her request for interim relief for the period predating the issuance of the initial

decision is misplaced. There are two parts to interim relief. The first is returning

the appellant to the workplace while the petition for review is pending unless the

agency determines that the return or presence of the appellant would be unduly

disruptive. 5 U.S.C. § 7701(b)(2)(A). The second part is providing the appellant

with pay and benefits while the petition for review is pending; the agency must

provide pay and benefits even if it does not return the appellant to the workplace.

5 U.S.C. § 7701(b)(2)(B). Back pay is not part of the agency’s interim relief

obligation because interim relief is effective upon the issuance of the initial

decision. Johnson v. Department of Veterans Affairs, 2023 MSPB 9, ¶ 8 n.4;

5 U.S.C. § 7701(b)(2)(A), (C).

The appellant also alleges that the agency had not taken action to reinstate

her because she had not received a paycheck as of the date of her challenge to the

agency’s certification. PFR File, Tab 5 at 8. Although she may not have received

any of her interim relief pay by the petition for review filing deadline, actual

payment by this deadline is not necessarily required. Moore v. U.S. Postal

Service, 78 M.S.P.R. 80, 83 (1998). Rather, the agency satisfies its obligation by

taking appropriate administrative action by the deadline that will result in the

issuance of a paycheck for the interim relief period. Id. In this case, the agency

explained that it had executed an Standard Form 50 appointing the appellant to

her Crane Operator position, effective April 11, 2024, the date of the initial

decision, it provided her with payroll forms for direct deposit, and it was in the

process of getting the appellant the security clearance necessary for her to return

to the worksite. PFR File, Tab 8 at 7. Under these circumstances, we find the

agency’s actions sufficient. We find no basis for dismissing the agency’s petition

on interim relief grounds.

The appellant did not meet her burden of proving disability discrimination.

As previously stated, the administrative judge found that the agency met its

burden of proving its charge and the requisite nexus. E.g., ID at 18-20. We agree

with the administrative judge about these matters. To the extent that the

appellant has presented arguments to the contrary on review, we are not

persuaded.

The administrative judge also found, however, that the appellant was a

qualified individual with a disability and prevailed on her affirmative defense of

disability discrimination. ID at 28-31. For the reasons that follow, we disagree

and find otherwise.

To prevail on a disability discrimination claim under either a status-based

or reasonable accommodation theory, an appellant must show not only that she is

disabled but also that she is a “qualified” individual with a disability. Haas v.

Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29; see 42 U.S.C.

§ 12112(a). To be a qualified individual with a disability, an employee must

show that she can perform the essential functions of her position with or without

accommodation. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 28. An

employee who cannot perform the essential functions of her position of record

can also show that she is a qualified individual with a disability by showing that

there were vacant, funded positions to which she could have been reassigned. Id.

at ¶ 29.

Although the administrative judge concluded that the appellant was a

qualified individual with a disability, he did not explain whether she gained that

status because of her position of record or due to another vacant, funded position.

ID at 28-31. Rather, the administrative judge determined that the appellant’s

increased ability and reduced limitations “may very well have meant there was

work available to [her] either in her position of record or other positions to which

she could be reassigned.” ID at 29.

The record does not show that the appellant could perform the essential

functions of her position of record as a Crane Operator with or without

accommodation at the time of her termination. As further detailed in the initial

decision, the appellant experienced years of physical impairments and limitations.

Among other things, January 2021 reports indicated that she could not climb

ladders over 3 feet. ID at 10; IAF, Tab 4 at 208-11, 216. Subsequent reports

throughout the year required further restrictions, such as her never climbing

vertical ladders or engaging in repetitive wrist and elbow motions. ID at 11; e.g.,

IAF, Tab 4 at 91, 229, 232-33, 249-51, 255, Tab 9 at 225. Most of the medical

reports in 2022 and 2023 vary slightly but generally reflect similar limitations

through the date of the appellant’s removal. ID at 14-16; e.g., IAF, Tab 4

at 34-35, 37, 40, 92, 272.

The appellant points us to an October 2023 medical report and the deciding

official’s testimony about the same, where he indicated that this appeared to be a

“clean bill of health.” She argues that this suggests that she made a complete

recovery and could have performed her Crane Operator position. PFR File, Tab 4

at 17 (citing IAF, Tab 17-1 at 56:30-56:44); IAF, Tab 13 at 97. However,

October 2023 was 3 months after the appellant’s removal. The October 2023

reports do not prove that any physical improvement described within occurred by

the time of her removal. For these reasons, the appellant has not established that

she was a qualified individual with a disability as to her position of record.

We next analyze whether the appellant could have been a qualified

individual with a disability by being assigned to the agency’s Limited Duty

Program (LDP), which the agency did utilize during parts of the years leading up

to the appellant’s removal. E.g., IAF, Tab 4 at 298, Tab 14 at 7. The

administrative judge made no finding as to whether LDP assignments qualified as

vacant, funded positions. However, the Board has interpreted a vacant, funded

position to be one to which an appellant could have been reassigned on a

permanent basis. See Desjardin, 2023 MSPB 6, ¶ 7; Taber v. Department of the

Air Force, 112 M.S.P.R. 124, ¶ 14 (2009). We conclude that the LDP

assignments do not meet this standard. As explained in detail within the agency

policy, LDP assignments are “intended to provide temporary light-duty work

assignments, when available” and are not designed to indefinitely accommodate

employees. IAF, Tab 4 at 106-14. Nothing in the LDP policy suggests that these

assignments amount to vacant funded positions. Therefore, the appellant could

not have been a qualified individual with a disability as to one of these LDP

assignments.

As to the question of whether the appellant was a qualified individual with

a disability, we lastly recognize that the administrative judge suggested that the

appellant could have met this standard with respect to some other unidentified

position to which she could have been reassigned. ID at 29. He came to this

conclusion because he determined that the agency did not engage in a further

interactive process based on the medical information the appellant submitted after

her removal was decided but before it was effectuated, in July 2023. Id.

However, even if we were to agree that the agency erred in this regard, an

agency’s failure to conduct a proper search for available positions does not

relieve the appellant of her burden to establish the existence of a position to

which she could have been reassigned to establish that she is a qualified

individual with a disability. Desjardin, 2023 MSPB 6, ¶ 29 n.13. The appellant

has not met this burden because she has not identified the existence of such a

position. See Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 17 (2014)

(noting that the appellant bears the ultimate burden of proving that there was a

position the agency would have found and could have assigned to him had it

looked). For all these reasons, we find that the appellant has not proven that she

is a qualified individual with a disability and has, therefore, not proven her

disability discrimination affirmative defense.

The agency’s choice of penalty is reasonable.

Although the administrative judge found that the agency proved its charge

and the requisite nexus, he did not reach the question of penalty due to his finding

of disability discrimination. Since we disagree with that finding of disability

discrimination, we must address the penalty in the first instance.

The Douglas factors normally used to mitigate the penalty are not relevant

in the case of a removal for medical inability to perform due to the

nondisciplinary nature of the action. Brown v. Department of the Interior,

121 M.S.P.R. 205, ¶ 18 (2014), overruled on other grounds by Haas, 2022 MSPB

36; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (providing a

nonexhaustive list of factors relevant to penalty determinations). Rather, the

correct standard to be applied in determining the penalty for a removal based on

physical inability to perform is whether the penalty of removal exceeded the

tolerable limits of reasonableness. Brown, 121 M.S.P.R. 205, ¶ 18.

Under the circumstances at hand, we find that the appellant’s removal did

not exceed the tolerable limits of reasonableness. The evidence before us shows,

by preponderant evidence, that the appellant was medically unable to perform in

her own position or any other vacant funded position at the time of her removal.

The removal was, therefore, reasonable.

To summarize, the agency proved its charge, as well as the requisite nexus

and reasonableness of its penalty. The appellant has not met her burden to prove

disability discrimination or any other affirmative defense. Accordingly, we must

sustain her removal.

NOTICE OF APPEAL RIGHTS 2

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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.

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. 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).

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.

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