The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENA L. TRAVIS, DOCKET NUMBER
Appellant, SF-0752-13-0476-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 8, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dena L. Travis, Barstow, California, pro se.
Dawn Dobbs, Fort Irwin, California, 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
affirmed the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 her position as a Program Analyst,
GS-0343-12, at Fort Irwin, California. Initial Appeal File (IAF), Tab 4 at 26.
She was removed on charges of Excessive Absenteeism and Failure to Maintain a
Full Time Work Schedule, based on her leave usage, which included 2,077 hours
of Leave without Pay (LWOP) and 957 hours of Absence without Leave
(AWOL). Id. at 40. The agency alleged that she took unscheduled leave when
she had no sick leave available and that she failed to provide adequate medical
documentation. Id. at 40-42. The charges also included the allegation that she
failed to report for work even after the agency approved a reasonable
accommodation allowing her to work half-time. Id. at 42. Both charges were
sustained, and the appellant appealed. Id. at 30; IAF, Tab 1.
¶3 The administrative judge decided the appeal based on the written record.
IAF, Tab 19, Initial Decision (ID) at 1. He merged the two charges because they
were based on the same events and were not factually and legally distinct. ID
at 6; IAF, Tab 15 at 3. The administrative judge sustained the charge. He found
that the agency proved by preponderant evidence that the appellant was absent for
compelling medical reasons beyond her control. ID at 9. The administrative
3
judge further found that: (1) the agency warned the appellant that an adverse
action could be taken unless she returned to work on a regular basis; (2) the
agency demonstrated that the appellant’s continuing absence was adversely
affecting operations; and (3) the appellant’s position needed to be filled by an
employee available for duty on at least a part-time basis. ID at 9-10. As to her
affirmative defense of disability discrimination, the administrative judge found
that the appellant failed to show that she was a qualified individual with a
disability under 29 C.F.R. § 1630.2(g). ID at 11. He further found that she failed
to show that the agency removed her based on the disability she claimed. ID at
11. The administrative judge affirmed the agency’s removal action. ID at 14.
¶4 On review, the appellant challenges the administrative judge’s conclusions
concerning both the charge and the affirmative defense. She argues that the
administrative judge improperly failed to consider several issues she raised and
“focused on two points and nothing else: excessive absenteeism and failure to
maintain a full-time schedule.” Petition for Review (PFR) File, Tab 1 at 1, Tab 4
at 2. We find, however, that the administrative judge properly limited his
analysis to whether the agency had proven the charge. The appellant raised
several other issues on review, including allegations that her supervisors
improperly denied her LWOP, miscoded leave on her time sheet, improperly
rejected her medical documentation as insufficient, failed to delay her removal
until the Office of Personnel Management could process her retirement
application, and inappropriately harassed and threatened her. 2 See PFR File, Tab
1 at 6-8, 10-17, Tab 4 at 3. We find, though, that these issues do not bear on
whether the agency proved the charge or the appellant established her affirmative
defense.
2
The appellant also asserted that her removal was improper because she lost her health
insurance. See PFR File, Tab 1 at 4, 20-21, Tab 4 at 4. This argument is neither
relevant to the charge nor to the affirmative defense.
4
¶5 An agency may bring an adverse action against an employee for excessive
absences, such as those accrued because of the continuing effects of an injury or
illness. The following criteria, however, must have been met: (1) the employee
was absent for compelling reasons beyond her control so that the agency’s
approval or disapproval was immaterial because the employee could not be on the
job; (2) the absences continued beyond a reasonable time, and the agency warned
the employee that an adverse action could be taken unless the employee became
available for duty on a regular, full-time or part-time basis; and (3) the position
needed to be filled by an employee available for duty on a regular, full-time or
part-time basis. Gartner v. Department of the Army, 104 M.S.P.R. 463, ¶ 9
(2007) (citing Cook v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984)).
Such a removal action will promote the efficiency of the service if the employee’s
“absence for which no foreseeable end is in sight constitutes a burden which no
employer can efficiently endure.” Bair v. Department of Defense, 117 M.S.P.R.
374, ¶ 5 (2012) (quoting Ward v. General Services Administration, 28 M.S.P.R.
207, 209 (1985)), overruled on other grounds by Abbott v. U.S. Postal
Service, 121 M.S.P.R. 294 (2014); see also Edwards v. Department of
Transportation, 109 M.S.P.R. 579, ¶ 17 (2008) (when an employee has been
removed for unavailability for duty because of incapacitation, the Board relies on
the absence of a foreseeable end to her unavailability).
¶6 The appellant used LWOP for most of the period between September 11,
2011, and the end of January 2012. IAF, Tab 16 at 34, 36. She did not work the
majority of time from January 2012 to the beginning of May 2012. Id. at 32, 34.
Her absences between May 2012 and July 2012 were covered under the Family
and Medical Leave Act. Id. She then was continuously absent between August
2012 and the end of the year. The appellant continued to be absent during
January 2013, using LWOP on some days and AWOL on others. Id. at 27, 34.
She returned to work intermittently for 25 hours during February 2013, but
worked only 4 hours during March 2013 and was otherwise absent through the
5
date of her removal. Id. at 27-28, 34; see id. at 44-45. She does not dispute the
agency’s record of absences.
¶7 The agency submitted considerable evidence that the appellant was absent
because of an ongoing medical condition. See IAF, Tab 7, Tab 16 at 54-55, 67,
91-92, 106, 108, 116, 129, 131. After considering this evidence and the
appellant’s “abortive attempts to return to work . . . while attempting to overcome
a chronic medical condition,” the administrative judge appropriately concluded
that the agency proved that the appellant was absent for compelling medical
reasons beyond her control. 3 ID at 9. The administrative judge also found that
the agency established that it had warned the appellant that it would take an
adverse action unless she became available for duty on a regular, full-time or
part-time basis. ID at 9; see IAF, Tab 16 at 28, 74-75. The agency likewise
established that the appellant’s position needed to be filled by an employee
available for duty on a regular, full-time or part-time basis. ID at 9-10; see IAF,
Tab 16 at 28-29, 36. The agency thus met its burden of proof for the charge.
¶8 The appellant further argues that she meets the definition of a qualified
individual with a disability because she suffers from a severe medical condition
that affects her ability to work. See PFR File, Tab 1 at 2. She asserts that the
administrative judge failed to consider that she had requested and was denied a
reasonable accommodation. See id. at 8. She also asserts that the agency
retaliated against her for claiming a disability by requiring excessive
documentation of her medical condition and removing her after she announced
her intention to retire. See id. at 16-20.
¶9 The administrative judge addressed at length the appellant’s affirmative
defense of disability discrimination. See ID at 10-11. The administrative judge
3
The appellant argues on review that the agency characterized her absences as
intentional in the notice of proposed removal and decision letter. See PFR File, Tab 1
at 1, 20; see also PFR File, Tab 4 at 1-2. We concur with the administrative judge’s
conclusion that the appellant’s absences were for compelling medical reasons beyond
her control, and not the result of any misconduct on her part.
6
did not find that the appellant failed to meet the definition of an individual with a
disability under the Americans with Disabilities Amendments Act (ADAAA). ID
at 10-11; see 29 C.F.R. § 1630.2(g)-(l). Instead, the administrative judge found
that the appellant was not a qualified individual with a disability under the
ADAAA. ID at 11; see 29 C.F.R. § 1630.2(m)-(n). A qualified individual with a
disability must be able to perform the essential functions of her position with or
without a reasonable accommodation. See 29 C.F.R. § 1630.2(m). The appellant
requested a part-time schedule as a reasonable accommodation. IAF, Tab 16 at
90. The agency approved her request to work 4 hours per day. Id. at 27-29. She
subsequently failed to return to work, asserting that she was medically unable to
do so. Id. at 28-29. After receiving the accommodation she requested, the
appellant was thus unable to maintain a regular part-time work schedule. Because
she was medically unable to report for work, 4 she could not perform the essential
functions of her position.
¶10 The appellant argues on review that she should have been allowed to
telecommute. See PFR File, Tab 1 at 8. The record, however, includes evidence
of her general level of discomfort, as well as the strong medications she was
taking. See, e.g., IAF, Tab 16 at 46, 48, 50, 52, 56-58, 63, 68, 77, 81, 84, 94-96,
104-05, 111-13. She might not have been able to work at home, even if the
agency had approved such an accommodation. Moreover, to the extent that she
formally requested telecommuting as a reasonable accommodation, the agency
was not obligated to grant her request. See Ryan v. Department of the Air
Force, 107 M.S.P.R. 71, ¶ 9 (2007) (an agency is not obligated to provide a
4
The appellant’s immediate supervisor stated that the appellant “consistently call[ed] in
to inform [her] that she had a really hard time getting out of bed and she [would] be in
around 12:00 p.m. but [she] did not make a concerted effort to report at the time
indicated. Instead [she] sent e-mails between 1:00 p.m. and 2:00 p.m. stating that she
[would] not make it to work.” IAF, Tab 16 at 29. Other record evidence substantiates
this claim. See, e.g., id. at 46, 48, 50, 52, 56-58, 63, 68, 77, 81, 84, 94-96, 104-05,
111-13.
7
disabled individual with every accommodation he may request), overruled on
other grounds by McCauley v. Department of the Interior, 116 M.S.P.R. 484
(2011).
¶11 The appellant’s claim that the agency retaliated against her is newly
asserted on review. Although she argued that the agency found her medical
documentation to be insufficient, she did not do so in the context of a retaliation
claim. See IAF, Tab 1 at 6. The summary of the close of record conference call
shows that she stated that she was raising only the single affirmative defense of
disability discrimination. 5 IAF, Tab 15 at 6. The Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not offered such evidence
and is simply reframing prior allegations as retaliation. She cannot raise this issue
on review.
¶12 Finally, the appellant argues that she would have submitted more medical
documentation for the record, including materials she had given the agency
during discovery, but the agency representative told her she could not do so. See
PFR File, Tab 4 at 2. She asserts that she misunderstood what she was told
during teleconferences and that she was at a disadvantage while the appeal was
pending because she was taking strong medication. Id. She submitted materials
to be added to the record with her petition for review. Id. at 3; see PFR File,
Tab 1, Subtabs 1-9.
5
In her petition for review, the appellant cites language in the agency’s Closing
Submissions that suggests that the issues of retaliation for equal employment
opportunity activity and whistleblowing may have been discussed below. PFR File,
Tab 1 at 2; see IAF, Tab 16 at 7-8. The Order and Summary of the Close of Record
Conference Call, however, memorializes the administrative judge’s ruling that the
appellant’s sole affirmative defense was disability discrimination. IAF, Tab 15 at 6.
The appellant lodged no objection to the summary, although she was informed of the
opportunity to do so. See id. at 6, 13.
8
¶13 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). For the Board to
grant a petition for review based on new evidence, the petitioning party also must
show that the evidence is of sufficient weight to warrant an outcome different
from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980). To the extent that the appellant’s submissions are already in the
record, see PFR File, Tab 1, Subtabs 3-6, 8-9, they cannot be considered to be
new evidence, see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980) (evidence that is already a part of the record is not new). The appellant
also has not shown that her submissions would change the outcome of the initial
decision. The sustained charge is based on her absence from work for compelling
reasons beyond her control and she has not argued that she was not absent for
these reasons. Accordingly, the Board will not incorporate the newly submitted
items into the record.
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
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
9
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.