holding that a request for a new supervisor “is per se unreasonable under [EEOC] guidelines”
How later courts described this case
- holding that a request for a new supervisor “is per se unreasonable under [EEOC] guidelines”
- holding that failure to grant the plaintiff’s request for reassignment to a different supervisor did not constitute a failure to grant a reasonable accommodation
- holding that a request to be transferred away from a supervisor who was causing a plaintiff stress was unreasonable as a matter of law
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUC VAN LE, DOCKET NUMBER
Appellant, AT-0752-23-0641-I-1
v.
DEPARTMENT OF VETERANS DATE: May 26, 2026
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Duc Van Le , Dacula, Georgia, pro se.
Gina Ozelie , Esquire, Milwaukee, Wisconsin, 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 the appellant’s removal for medical inability to perform the essential
functions of his position. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 as
to the basis for finding the appellant did not establish his denial of a reasonable
accommodation claim, we AFFIRM the initial decision.
The appellant was a GS-13 Pharmacist at the Tomah Veterans Affairs (VA)
Medical Center. Initial Appeal File (IAF), Tab 4 at 200. Due to various mental
and physical health conditions, the appellant’s had the following medical
restrictions: (1) no interaction with his former supervisor, the Associate Chief of
Pharmacy Ambulatory Care; (2) work “as tolerated;” (3) full -time telework;
(4) unable to sit for long periods of time; (5) no repetitive gripping or right hand
motion twisting; (6) only 8-hour shifts with 10 -minute breaks as needed;
(7) limited ability to use a computer keyboard/mouse daily; (8) unable to lift,
push, carry more than two pounds; (9) need 10-minute breaks every 60 minutes;
and (10) unable to perform Cardiopulmonary Resuscitation or Basic Life Support.
Id. at 50-51. The agency conducted an extensive analysis of the appellant’s
duties and concluded that it could not accommodate the appellant’s request for no
interaction with his former supervisor, explaining that the Pharmacy department
was small, management overlapped in duties, and to route communications
through a third party could cause unnecessary delays and place patients at risk.
Id. at 37-42. The agency also conducted an extensive vacant-funded position
search and was unable to find a position for which the appellant was qualified and
3
that met his medical restrictions. Id. at 62-180. Accordingly, effective
December 2, 2022, the agency removed the appellant for medical inability to
perform the essential functions of his position. Id. at 11-14.
The appellant filed a Board appeal challenging his removal, and the
administrative judge issued an initial decision sustaining his removal and denying
his claims of denial of reasonable accommodation, national origin discrimination,
and equal employment opportunity (EEO) retaliation. IAF, Tab 33, Initial
Decision (ID). The appellant has filed a petition for review arguing, among other
things, that he could have performed his position of record or a position he
desired in another facility without any interaction with his former supervisor and
with the assistance of a personal scribe. 2 Petition for Review (PFR) File, Tab 1
at 5-6, 8. Upon review of the appellant’s arguments and the record below, we
find the initial decision to be well-reasoned and supported by the record.
Nevertheless, we take the opportunity to clarify the basis for finding that the
appellant did not prove his denial of reasonable accommodation claim.
In the initial decision, the administrative judge “assum[ed] without
deciding” that the appellant was a qualified individual with a disability but denied
his reasonable accommodation claim because the appellant did not otherwise
identify a suitable reasonable accommodation or vacant funded position.
ID at 8-11. However, a claim of disability discrimination based on an
2
The appellant also attaches documents to his petition for review and reply to the
agency’s response, some of which are already in the record. Compare Petition for
Review (PFR) File, Tab 1 at 10, 14-16, 21 -22, Tab 4 at 10-11, with Initial Appeal File
(IAF), Tab 4 at 22, 26, 28, 48, 173, Tab 23 at 11, Tab 24 at 6-12. Regarding the
documents not in the record below, the appellant has not explained why he was unable
to provide these documents before the close of record below, or how these documents
impact the outcome of this appeal. As we do not find these documents to be material to
the issues in this appeal, we do not address them. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision).
4
individual’s status as disabled and a claim based on an agency’s failure to
reasonably accommodate that disability require that the individual be “qualified.”
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. 42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28;
29 C.F.R. § 1630.2(m). Only an otherwise qualified individual with a disability
is entitled to relief for a claim of status-based disability discrimination or denial
of reasonable accommodation. Haas, 2022 MSPB 36, ¶ 29. For the following
reasons, we find that the appellant did not prove his denial of reasonable
accommodation claim because he did not prove that he is a qualified individual
with a disability.
Regarding whether the appellant could perform the essential functions of
his position with or without reasonable accommodation, we agree with the
administrative judge’s finding that, to perform the essential functions of his
position, the appellant was required to interact, in some manner, with his former
supervisor. 3 ID at 6-7. We also agree with the administrative judge that the
appellant did not prove that his inability to interact with his former supervisor
could be accommodated because, according to the appellant, he could not even
3
We also agree with the administrative judge that, even if the appellant could perform
the essential functions of his position without interacting with his supervisor, an agency
is not required to alter supervisory methods to accommodate an employee. ID at 9;
Equal Employment Opportunity Commission (EEOC), Notice No. 915.002 Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the American with
Disabilities Act, Question 33 (Oct. 17, 2002) (stating that “[a]n employer does not have
to provide an employee with a new supervisor as a reasonable accommodation”); see
also, e.g., Roberts v. Permanente Medical Group, Inc., 690 F. App’x 535, 536 (9th Cir.
2017) (holding that a request for a new supervisor “is per se unreasonable under
[EEOC] guidelines”); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 581 (3rd Cir.
1998) (holding that a request to be transferred away from a supervisor who was causing
a plaintiff stress was unreasonable as a matter of law); Weiler v. Household Finance
Corporation, 101 F.3d 519, 525-27 (7th Cir. 1996) (holding that failure to grant the
plaintiff’s request for reassignment to a different supervisor did not constitute a failure
to grant a reasonable accommodation).
5
hear or read his former supervisor’s name without exacerbating his medical
conditions. ID at 9-10; IAF, Tab 4 at 31. Therefore, as found by the
administrative judge, even if the agency had granted the appellant’s requested
accommodations, including his request for a personal scribe, such
accommodations would not have been effective because it would not be possible
for a third party to avoid referencing his former supervisor entirely. ID at 9-10.
Accordingly, the appellant did not prove that he could perform the essential
functions of his position with or without reasonable accommodation.
Regarding whether the appellant could perform a position he desired with
or without reasonable accommodation, the appellant does not cite to a specific
position he desired on review but requests a position in an anticoagulation clinic
in another facility with the assistance of a personal scribe. PFR File, Tab 1 at 8.
In the initial decision, the administrative judge analyzed a position in an
anticoagulation clinic in a different facility and determined that the appellant
could not have performed the duties, noting that the position was characterized as
“high stress/burn out,” with little control over workload, and required extensive
typing and computer usage. ID at 10-11. Assuming that positions in
anticoagulation clinics have similar characteristics, the appellant has not
explained how he could perform in such a position with medical restrictions
including work “as tolerated,” 10-minute breaks every hour, only 8-hour shifts,
and limited ability to sit for long periods of time or use a computer keyboard or
mouse. 4 IAF, Tab 4 at 50-51, 173. In fact, even the appellant was unsure that he
could perform in this position, stating that “all [he could] do is try.” Id. at 174.
Accordingly, we find that the appellant did not prove that he could perform
in a position he held or desired with or without reasonable accommodation.
Therefore, we modify the initial decision to find that the appellant has not proven
4
The agency provided the appellant with voice recognition software and an ergonomic
mouse, but the appellant asserted that these accommodations were ineffective. IAF,
Tab 23 at 12.
6
that he is a qualified individual with a disability and he is not entitled to relief for
his denial of reasonable accommodation claim. See Haas, 2022 MSPB 36, ¶ 29
(stating that only an otherwise qualified individual with a disability is entitled to
relief for a claim of status-based disability discrimination or denial of reasonable
accommodation).
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Boards 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.
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.
5
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.
7
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,
8
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
9
(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
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.
6
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.
10
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.
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.