The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIRK P. PONDER, DOCKET NUMBER
Appellant, DA-0752-13-0201-I-2
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 28, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Kirk P. Ponder, Universal City, Texas, pro se.
Charles R. Vaith, Esquire, JBSA-Randolph, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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).
¶2 The agency removed the appellant from the position of Aircraft Worker
based on the charge of medical inability to perform the essential functions of his
position. MSPB Docket No. DA-0752-13-0201-I-1 (I-1), Initial Appeal File
(IAF), Tab 5, Subtabs 4a, 4e. The appellant appealed the agency’s action, and
initially, the administrative judge dismissed the appeal without prejudice to
refiling pending a decision on the appellant’s application for disability retirement.
I-1, IAF, Tab 18. The appellant refiled his appeal, indicating that he did not meet
the criteria for disability retirement. MSPB Docket No. DA-0752-13-0201-I-2
(I-2), IAF, Tab 1.
¶3 The administrative judge adjudicated the removal action. I-2, IAF, Tab 12,
Initial Decision (ID). He found that the agency proved its charge. ID at 2-8. He
found that the agency established that the appellant’s job was to maintain aircraft,
and, in 2009, he suffered a seizure and was found disoriented while on the flight
line. ID at 2. He found that the appellant acknowledged that, after the seizure, he
could not perform aircraft maintenance work and was not safe on the flight line.
ID at 7. He found that the appellant’s mental deficiencies as observed by his
supervisor and coworkers are undisputed and there is no foreseeable end to the
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effects of the appellant’s illness on his ability to perform the duties of his
position. ID at 7-8.
¶4 The administrative judge also found that the appellant failed to show that
the agency’s action was the result of disability discrimination. ID at 8-11. He
found that the appellant established that he had a disability. ID at 10. However,
he found that there was no evidence that a vacant position to which the appellant
could be reassigned was available at the time the personnel office conducted a
search for one. ID at 10. Further, the administrative judge found that the
appellant’s condition made it unlikely that he could have performed the essential
functions of any position for which he qualified. ID at 11. He found that there
was no evidence that the appellant’s mental condition would allow him to
consistently perform any tasks, no matter how menial, with any degree of
reliability. ID at 11. Thus, the administrative judge found that the appellant
failed to show that he was a qualified individual with a disability and failed to
meet his burden to prove discrimination on the basis of disability. ID at 11.
¶5 Finally, the administrative judge found that the agency established that the
appellant’s removal promotes the efficiency of the service and is reasonable in
this case. ID at 12-14. He found that the agency established a nexus between the
appellant’s medical condition and the observed deficiencies in his performance.
ID at 12. He found that the agency showed that the appellant presented a danger
to himself and others by his mere presence on the flight line. ID at 12. He also
found that the deciding official considered the relevant factors and properly
concluded that the appellant could not be returned to flight-line duties. ID at 14.
¶6 In his petition for review, the appellant does not disagree with the
administrative judge’s findings that the agency proved its charge and that the
appellant failed to prove disability discrimination. Rather, he indicates that he is
now in receipt of disability retirement and that he wants to point out a few errors
in the initial decision. Petition for Review File, Tab 1. For instance, he states
that the administrative judge misstated his grade, did not state the name of his
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therapist, and once misstated the date that the appellant suffered his seizure. An
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision. Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984). Even if the appellant has identified some
factual misstatements in the initial decision, these adjudicatory errors were
harmless because they do not involve material facts in dispute. See Jordan v.
U.S. Postal Service, 90 M.S.P.R. 525, ¶ 9 (2002), aff’d, 82 F. App’x 42 (Fed. Cir.
2003). In any event, as explained below, we find that the administrative judge
properly found that the agency proved its charge, the appellant failed to prove
disability discrimination, and the penalty was reasonable.
¶7 When, as here, the appellant does not occupy a position with medical
standards or physical requirements or subject to medical evaluation programs, to
establish a charge of physical inability to perform, an agency must prove 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. Fox v.
Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014). In determining whether
the agency has met its burden, the Board will consider whether a reasonable
accommodation exists that would enable the employee to safely and efficiently
perform the core duties of the position. Id.
¶8 In this case, the administrative judge correctly applied this standard. In
finding the charge sustained, the administrative judge properly found that the
agency proved a nexus between the appellant’s mental disability and observed
deficiencies through its evidence that he was found disoriented on the flight line
after his seizure, was subsequently so unsure of his work on aircraft that he
refused to certify that it was done properly, and was even unable to properly
perform the light duty to which he was assigned of recording flight information
from pilots after their flights. The administrative judge properly found that the
agency’s evidence established a high probability, given the nature of the work
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involved in aircraft maintenance, that his condition might result in injury to the
appellant or others. He also properly found that this evidence established that the
appellant could not perform his aircraft maintenance duties with or without
accommodation.
¶9 Notwithstanding that the agency has proved its charge of inability to
perform the duties of a position, the agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship on its business operations.
29 C.F.R. § 1630.9(a). Reasonable accommodation includes modifications to the
manner in which a position is customarily performed in order to enable a
qualified individual with a disability to perform the essential job functions. See
Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). Reasonable
accommodation may also include reassignment. See White v. Department of
Veterans Affairs, 120 M.S.P.R. 405, ¶ 14 (2013). Reassignment is the reasonable
accommodation of last resort, which is only required after it has been determined
that there are no effective accommodations that will enable the employee to
perform the essential functions of his current position, or that all other reasonable
accommodations would impose an undue hardship. Id., ¶ 14 n.5. In order to
establish disability discrimination, an employee must show that: (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a
qualified individual with a disability, as defined by 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. Miller,
121 M.S.P.R. 189, ¶ 13.
¶10 The administrative judge found that the appellant is an individual with a
disability based on his testimony that he suffered a stroke in 2009 and evidence of
its effect on his ability to function. For instance, the appellant testified that he
did not keep an appointment for a neurological evaluation that had been
scheduled by the agency because he got turned around in the neurologist’s
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building and did not remember where he was going. ID at 7. The appellant also
failed to establish that he is a qualified individual with a disability, i.e., that he
could perform the essential functions of his aircraft maintenance position with or
without accommodation. See 29 C.F.R. § 1630.2(m). The appellant additionally
failed to show that a vacancy existed in the reassignment position that he sought,
distributing tools. Thus, the administrative judge properly found that the
appellant did not establish that the agency violated its duty of reasonable
accommodation.
¶11 When, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Woebcke v. Department of Homeland Security,
114 M.S.P.R. 100, ¶ 7 (2010); Douglas v. Veterans Administration, 5 M.S.P.R.
280, 306 (1981). In determining whether the selected penalty is reasonable, the
Board gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. Woebcke,
114 M.S.P.R. 100, ¶ 7. We agree with the administrative judge that the deciding
official considered the Douglas factors and, considering the appellant’s duties
around aircraft and his inability to stay focused enough to stay out of the danger
area, the deciding official properly concluded that he could not retain the
appellant in his position.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
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of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.