Opinion

Kenasha Symonette v. Department of Justice

Court: Merit Systems Protection Board
Filed: Apr 24, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.3%

explaining that due process of law entails notice and an opportunity to respond prior to deprivation of property interest in employment

How later courts described this case

explaining that due process of law entails notice and an opportunity to respond prior to deprivation of property interest in employment

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENASHA SYMONETTE, DOCKET NUMBER

Appellant, AT-0752-24-0706-I-1

DEPARTMENT OF JUSTICE, DATE: April 24, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mark J. Berkowitz , Esquire, Fort Lauderdale, Florida, for the appellant.

Douglas Seth Goldring , Washington, D.C., for the agency.

Jolene Harcrow and Colleen Berry , Esquire, Stockton, California,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained her removal for failure to meet a condition of employment. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the administrative judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The following facts are undisputed. On May 21, 2021, the agency

appointed the appellant to the position of GL-07 Correctional Officer, subject to

successful completion of its Introduction to Correctional Techniques II training

course. Initial Appeal File (IAF), Tab 5 at 86-94. This 3-week training course

includes three components—firearms proficiency, physical abilities, and job

knowledge. Id. at 92. Successful completion of the course requires that the

trainee demonstrate proficiency in all three areas by achieving certain test scores.

Id. at 74-75, 92. The physical portion of the course is known as the Physical

Ability Test (PAT), and it consists of five events—a dummy drag, a ladder climb,

a quarter mile run and cuff, and a stair climb. Id. at 74-75. Each of these five

events has its own benchmark, and the trainee will either pass or fail the PAT

based on a composite score of the five events. Id. at 74-75, 102. If the trainee

fails to pass the PAT on the first attempt, she will have the opportunity to take

one retest, normally within 24 hours. Id. at 102.

Shortly after her appointment, and before she was scheduled to attend

Introduction to Correctional Techniques II, the appellant was injured in a June 19,

2021 off-duty motor vehicle accident. 2 For several years following the accident,

the agency carried the appellant variously in leave and modified duty status, and

she did not undergo the PAT during that time. IAF, Tab 31-1, Hearing Recording

Track 1 (HR-1) at 50:45 (testimony of the Warden), Tab 31-2, Hearing Recording

Track 2 (HR-2) at 4:55 (testimony of the Warden), 31:50 (testimony of the

appellant). On January 2, 2024, the appellant certified that she was able to fully

participate in the PAT, and she was medically cleared to do so. Id. at 10. On

January 31, 2024, the appellant underwent the PAT at the agency’s Federal Law

Enforcement Training Center in Glynco, Georgia, but she did not pass. The

appellant made a second attempt on February 1, 2024, but again she did not pass.

IAF, Tab 27 at 11; HR-2 at 32:50 (testimony of the appellant).

On March 19, 2024, the agency proposed the appellant’s removal on the

basis that she did not successfully complete the PAT and therefore did not

successfully complete Introduction to Correctional Techniques II. IAF, Tab 5

at 31-34. After the appellant responded orally and in writing, the agency issued a

decision sustaining the charge and removing her effective June 14, 2024. Id.

at 20-29.

The appellant filed a Board appeal, contesting the merits of her removal

and raising affirmative defenses of harmful error, disability discrimination, and

violation of due process. IAF, Tab 1, Tab 28 at 3-4. After a hearing, the

administrative judge issued an initial decision sustaining the removal. IAF,

Tab 34, Initial Decision (ID). He found that the agency proved its charge, that

removal promoted the efficiency of the service, and that the appellant did not

prove any of her affirmative defenses. ID at 5-13.

Eventually, in January 2023, the appellant underwent hip replacement surgery related

to the injuries that she sustained in the accident. IAF, Tab 5 at 29.

The appellant has filed a petition for review, contesting the administrative

judge’s findings and credibility determinations. Petition for Review (PFR) File,

Tab 1. The agency has filed a response. PFR File, Tab 3.

ANALYSIS

As set forth above, the agency charged the appellant with failing to pass the

PAT and thereby failing to pass Introduction to Correctional Techniques II. IAF,

Tab 5 at 30. The administrative judge interpreted this as a failure to meet a

condition of employment charge. IAF, Tab 28 at 1. We agree with that

interpretation, and neither party contests it. To prove a charge of failure to meet

a condition of employment, the agency must prove that 1) the requirement at

issue is a condition of employment, and 2) the appellant failed to meet that

condition. Gallegos v. Department of the Air Force, 121 M.S.P.R. 349, 352, ¶ 6

(2014).

In this case, it is undisputed that passing Introduction to Correctional

Techniques II, including the PAT portion, is a condition of the appellant’s

continued employment as a Correctional Officer, and that the appellant did not

pass the PAT. IAF, Tab 28 at 10; see Swift v. Office of Personnel Management,

48 M.S.P.R. 441, 445 (1991) (“[A] stipulation is sufficient to prove the fact

alleged.”). Nevertheless, the appellant alleged that she sustained an injury during

her second attempt at the PAT, which prevented her from completing it

successfully. She argued that the agency should therefore have allowed her to

attempt it again after recovering from her injury. IAF, Tab 16 at 4-5. Indeed, the

agency’s Employee Development Manual provides that, if an employee has a

temporary medical condition, such as an injury, that prevents her from completing

the PAT, a Human Resources Manager will request a waiver until such time as

the employee has recovered. IAF, Tab 5 at 75. The administrative judge,

however, did not credit the appellant’s testimony that she failed to pass the

second PAT attempt because of an injury that she suffered during the test. ID

at 6. Specifically, he found that the appellant did not notify the agency of her

alleged injury immediately after learning that she had failed the PAT even though

she had the opportunity to do so, and he found that the appellant’s explanation for

not informing the agency shifted between direct examination and

cross-examination. Id.

On petition for review, the appellant disputes this finding. Later in the day

after her PAT retest, the appellant received an exit interview form notifying her

that she had not passed. IAF, Tab 27 at 11. She signed and returned the form,

noting that she had given her “blood, sweat, and tears.” Id. The appellant argues

that, in the context of her known hip condition, this notation indicates physical

distress consistent with the exacerbation of that injury during the PAT. PFR File,

Tab 1 at 3. We disagree. The Board takes notice that “blood, sweat, and tears” is

a common idiom that indicates great effort and sacrifice. We do not think that it

would be reasonable to interpret the appellant’s notation as a covert disclosure of

injury.

The appellant further argues that the administrative judge failed to account

for her testimony that the agency rushed her home on a flight early in the morning

of February 2, 2024, thereby limiting her ability to report her injury or seek

medical attention. PFR File, Tab 1 at 4. However, the administrative judge did

address this testimony and found that it did not account for the appellant’s failure

to report her injury when it happened. ID at 5-6. We agree. It would have taken

only a moment for the appellant to report her injury, and if she wished, request

medical attention. At a minimum, the appellant had several hours to do so

between the time of her alleged injury and the time of her flight, and her failure

to do so strongly suggests that she did not actually incur an injury.

The appellant also disputes the administrative judge’s determination that

her testimony was not credible in this regard. She states that the administrative

judge’s “vague assertion of a ‘material shift’ lacks specificity and does not justify

overriding [the a]ppellant’s consistent injury narrative across her [workers’

compensation] claim, written reply, and testimony.” PFR File, Tab 1 at 4. We

disagree. On direct examination, the appellant testified that she did not have a

sufficient opportunity to report her injury while she was still at the Training

Center, HR-2 at 43:20 (testimony of the appellant), but after agency counsel

pointed out that the appellant had an opportunity to do so on her exit interview

form, the appellant stated that she did not know she had to report the injury

before she left, id. at 48:15 (testimony of the appellant). We agree with the

administrative judge that this shift in explanations detracts from the appellant’s

credibility. See Furlough v. Department of the Army, 39 M.S.P.R. 122, 125 & n.3

(1988) (finding that internal inconsistencies in witness testimony were relevant to

the issue of credibility).

Moreover, we do not agree with the appellant that, even after returning

from the Training Center, she was entirely consistent about the nature of her

injury. On her workers’ compensation forms, the appellant indicated that she had

injured her hip and her knee during the PAT, IAF, Tab 27 at 6, 8, but in her first

written response to the notice of proposed removal, the appellant did not claim an

injury; she merely stated that her “body wasn’t just yet ready for the course,”

IAF, Tab 5 at 29. In her second written response to the proposal, the appellant

indicated that she suffered a knee injury during the PAT, but she did not state that

she had also injured her hip. IAF, Tab 24 at 9. Finally, at the hearing, the

appellant testified that she broke a fall on her knee so that she would not reinjure

her hip. HR-2 at 33:30 (testimony of the appellant). We do not find that these

various accounts are clear and consistent, and they certainly do not provide a

sufficiently sound reason to disturb the administrative judge’s demeanor-based

credibility determination. See Haebe v. Department of Justice, 288 F.3d 1288,

1301 (Fed. Cir. 2002) (stating that the Board must defer to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on observing the demeanor of witnesses testifying at a hearing, and that the Board

may overturn such determinations only when it has “sufficiently sound” reasons

for doing so).

The appellant further argues that the agency should not have cleared her to

participate in the PAT without reevaluating her physical capacity after her hip

surgery. PFR File, Tab 1 at 4. This argument, however, presupposes that the

appellant failed the PAT because of an acute injury during the PAT. For the

reasons explained above and in the initial decision, the record does not support

such a conclusion. For these reasons, we agree with the administrative judge that

the agency proved its charge.

Moving on to the appellant’s affirmative defenses, she argues that the

agency committed harmful error by failing to investigate her injury or offer her a

retest after her injury. PFR File, Tab 1 at 5-6. Again, this argument is based on

the premise that the appellant actually suffered an injury during the PAT, which

as explained above, we find insufficient evidence to support. Furthermore, the

record shows that the agency’s policy on retesting due to injury requires that the

employee notify training staff of the injury when it happens and not wait until

several months have gone by to claim an injury for the first time. HR-1 at 37:00,

40:10 (testimony of the Director of the Staff Training Academy). We therefore

find that the agency did not commit procedural error in not offering the appellant

a retest. 3

The appellant also argues that the agency committed harmful error by

failing to engage in the interactive process. She states that the administrative

judge erred as a matter of law by reframing this claim as a Rehabilitation Act

issue. PFR File, Tab 1 at 5. We, however, agree with the administrative judge

that this is essentially a failure to accommodate claim, which has its own

The appellant also argues that the agency violated her due process rights by not

investigating her injury claim or offering her a retest. This argument does not implicate

due process concerns. See Cleveland Board of Education v. Loudermill , 470 U.S. 532,

546 (1985) (explaining that due process of law entails notice and an opportunity to

respond prior to deprivation of property interest in employment).

analytical framework established by law. ID at 7. We therefore address the

appellant’s argument in the context of her disability discrimination claim below.

The appellant has raised a disability discrimination claim under a failure to

accommodate theory, and possibly also under a status-based theory. IAF, Tab 28

at 3-4. However, to prevail on a disability discrimination claim under either

theory, an appellant must prove that she is a “qualified” individual with a

disability. Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 28. “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.” Id. (quoting 42 U.S.C. § 12111(8)). In this case,

the administrative judge found that, even if the appellant fit the definition of

“disabled,” she did not fit the definition of “qualified.” 4 ID at 11-12.

Specifically, he found that, because the appellant did not pass the PAT, which

was a condition of her employment, and because the appellant never actually

performed the essential functions of a Correctional Officer, she cannot show that

she was qualified for the position. Id.

On petition for review, the appellant argues that she was qualified because

she could have passed the PAT with a reasonable accommodation, such as a retest

after an opportunity for rest and rehabilitation. PFR File, Tab 1 at 5. However,

reasonable accommodation is prospective in nature, and the appellant may not

wait to request testing accommodations until after she has already failed the PAT.

See Purcell v. Department of Veterans Affairs , EEOC Request No. 05970773,

1999 WL 448126, at *2 (June 24, 1999). Furthermore, indefinite modified duty is

not a reasonable accommodation because it would not allow the appellant to

On review, the appellant argues that she meets the definition of “disabled” under the

“actual disability,” “record of,” and “regarded as” prongs of 29 C.F.R. § 1630.2(g)(1).

PFR File, Tab 1 at 4-5. However, because the appellant was not qualified, these

arguments are immaterial to the outcome of the appeal. See Haas, 2022 MSPB 36,

¶¶ 28, 30.

perform the essential functions of a position. Marino v. Office of Personnel

Management, 243 F.3d 1375, 1377 (Fed. Cir. 2001).

In any event, the administrative judge’s analysis is supported by the law.

The appellant does not suggest, and we see no reason to conclude, that the

requirements of Introduction to Correctional Techniques II, including the PAT,

are not job-related or consistent with business necessity. That being the case, the

appellant “failed to show that she was qualified in that she failed to meet the

agency’s qualification standard in the form of the PAT.” Honer v. Department of

Justice, EEOC Appeal No. 0120093043, 2010 WL 332071, at *4 (Jan. 14, 2010).

Nor does the record show that the appellant ever, at any point, performed the

essential functions of the Correctional Office position. Cf. Shon T. v. Department

of Commerce, EEOC Appeal No. 2020000125, 2020 WL 7014960, at *6 (Nov. 18,

2020) (explaining that an employer may not deny reasonable accommodation

solely on the basis of an individual’s probationary status, and that a probationer

may prove that she is “qualified” for the position by performing its essential

functions for a significant amount of time). Because the appellant was never

qualified for the Correctional Officer position, the agency had no duty under the

Rehabilitation Act to accommodate her by reassignment. See id.

Although the appellant was not a qualified individual with a disability, we

agree with her that the agency still had an obligation to consider reassignment as

part of its penalty analysis. PFR File, Tab 1 at 5; see Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305 (1981). However, the record shows that

every individual working inside a prison facility, including physicians and

chaplains, is required to pass a PAT, and an employee who cannot pass a PAT is

not eligible for such reassignment. HR-1 at 46:20, 52:30 (testimony of the

Warden). We see no basis to disturb the agency’s penalty determination.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 6 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