The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL E. PHILLIPS, DOCKET NUMBER
Appellant, SF-0752-13-0078-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas Dimitre, Esquire, Ashland, Oregon, for the appellant.
Rayann Lund, Albuquerque, New Mexico, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 Effective October 11, 2012, the agency removed the appellant from his
Forestry Technician–Check Cruiser position with the Klamath National Forest
(Klamath) in Yreka, California, based on a charge of failure to pass the advanced
cruiser examination. Initial Appeal File (IAF), Tab 4 at 11-15. In support of the
charge, the agency asserted that, in order to hold the title of Forest Check Cruiser,
the appellant was required to be a certified advanced cruiser; however, he had
repeatedly failed to pass the advanced cruiser exam. Id. at 17. The appellant
filed a Board appeal of his removal in which he raised the affirmative defenses of
harmful procedural error and disability discrimination on the basis of the
agency’s alleged failure to accommodate his disability of post-traumatic stress
disorder (PTSD). IAF, Tabs 1, 33.
¶3 After a hearing, the administrative judge issued an initial decision affirming
the appellant’s removal. IAF, Tab 38, Initial Decision (ID) at 1, 28. The
administrative judge found that the agency proved the charge by preponderant
evidence, ID at 15-18, that the action promoted the efficiency of the service, ID at
3
25, and that the penalty of removal was reasonable, ID at 25-27. The
administrative judge also found that the appellant failed to prove his affirmative
defenses. ID at 19-25.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
ANALYSIS
The administrative judge correctly found that the agency proved the charge by
preponderant evidence.
¶5 The administrative judge found that the charge of failure to pass the
advanced cruiser exam is similar to a charge of failure to meet the requirements
of a position based on failure to complete the necessary training. 2 ID at 3 (citing
Radcliffe v. Department of Transportation, 57 M.S.P.R. 237, 242 (1993)). The
administrative judge explained that, to sustain the charge, the agency must show
the following: (1) as a condition of his employment, the employee was required to
pass the advanced cruiser exam; (2) the employee failed to pass the exam; and
(3) the agency provided any required training in anticipation of the examination.
ID at 3 (citing LeBlanc v. Department of Transportation, 60 M.S.P.R. 405,
414-17 (1994), aff’d, 53 F.3d 346 (Fed. Cir. 1995) (Table)).
¶6 Applying this standard, the administrative judge found that the agency
required the appellant to become a certified check cruiser as a condition of
employment, that before becoming a certified check cruiser the appellant was
required to meet the standards for a qualified cruiser and then progress to the
advanced cruiser level, and that he never qualified as an advanced cruiser because
he failed to pass the advanced cruiser examination. ID at 16. The administrative
judge also found that the agency provided the appellant the required training in
2
During the prehearing conference, the parties concurred with the administrative
judge’s construction of the charge. See IAF, Tab 34 at 5.
4
anticipation of the advanced cruiser examination. ID at 16. Accordingly, the
administrative judge sustained the charge. ID at 18.
¶7 On review the appellant argues that the administrative judge erred in
finding that passing the advanced cruiser examination was a condition of
employment. 3 PFR File, Tab 1 at 1-5. In particular, he asserts that passing the
advanced cruiser exam was not a condition of employment because he was not
informed until more than 2 months after he began his employment that he would
need to pass an examination to become a certified check cruiser. Id. at 2.
¶8 The administrative judge rejected this argument, finding that the timing of
when the appellant learned that he would need to pass the advanced cruiser
examination as part of the process of becoming a certified check cruiser does not
affect the fact that passing the exam was a condition of his employment. ID at 16
n.19. In rejecting the appellant’s argument, the administrative judge credited
Klamath’s Natural Resources Officer’s testimony that, when he interviewed the
appellant for the position, he informed the appellant that he would need to
become a certified check cruiser and that the checklist on the application form the
appellant completed in applying for the position indicated he would need to reach
the advanced cruiser level before becoming a certified check cruiser. ID at 16
n.19 (citing Hearing Compact Disc (HCD) (Blessing’s testimony) and IAF, Tab
29 at 19); see Hillen v. Department of the Army, 35 M.S.P.R. 453, 460-61 (1987)
(identifying the consistency of testimony with other evidence as a factor to
consider in determining witness credibility). The appellant’s argument that
passing the advanced cruiser exam was not a condition of employment is thus
essentially mere disagreement with the administrative judge’s explained finding
to the contrary and, as such, provides no basis to disturb the initial decision. See
3
The appellant does not challenge the administrative judge’s findings that the agency
met the other requirements for proving the charge, i.e., that the appellant failed to pass
the advanced cruiser examination and the agency provided him the required training in
anticipation of the exam. See PFR, Tab 1. Based on our review of the record, we
discern no reason to disturb those findings.
5
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987).
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses.
Harmful Procedural Error
¶9 The appellant reiterates his harmful procedural error claim on review. PFR
File, Tab 1 at 5-6. An agency error is harmful only where the record shows that
the procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Bair v. Department of Defense, 117 M.S.P.R. 374, ¶ 8 (2012). It is the
appellant’s burden to prove that a procedural error occurred and that the error
substantially prejudiced his rights such that the outcome was probably affected.
Mercer v. Department of Health & Human Services, 772 F.2d 856, 859 (Fed. Cir.
1985); 5 C.F.R. § 1201.56(c)(3).
¶10 Both before the administrative judge and on review, the appellant argues
that the agency committed harmful procedural error by removing him without
providing annual Individual Development Plans (IDPs) setting forth what training
he should receive and without placing him on a Performance Improvement Plan
(PIP). PFR File, Tab 1 at 5-6; IAF, Tab 33 at 6; see ID at 19 (citing HCD (the
appellant’s closing argument)). Regarding the IDP issue, the appellant argues
that the applicable collective bargaining agreement (CBA) and agency handbooks
require the annual preparation of an IDP by the employee and the employee’s
supervisor setting forth the training needs of the employee; however, he never
received one. PFR File, Tab 1 at 5. Regarding the PIP issue, the appellant
asserts that his failure to achieve certification was a performance issue, and the
agency was therefore required, pursuant to both the CBA and agency handbooks,
to provide him a PIP. Id. The appellant also argues on review that the
administrative judge never made a finding regarding the IDP and PIP issues. Id.
6
¶11 Contrary to the appellant’s assertion, the administrative judge made
findings regarding both of these issues. See ID at 19-21. As to the IDP issue, the
administrative judge found that the appellant did not explain how completing and
finalizing an IDP would have resulted in his receiving more training than was
already provided by the agency. ID at 20. Thus, the administrative judge found,
to the extent that the agency violated a procedural requirement regarding the IDP,
that the appellant failed to show how this violation substantially prejudiced his
rights. ID at 20.
¶12 Regarding the appellant’s argument that the agency committed harmful
procedural error by failing to place him on a PIP when it identified specific
deficiencies in his performance, the administrative judge found that the appellant
failed to prove by preponderant evidence that the agency was bound by a
provision in either the CBA or an agency handbook to place the appellant on a
PIP prior to removing him pursuant to 5 U.S.C. chapter 75. ID at 21. In making
this finding, the administrative judge noted that an employee is entitled to a
reasonable opportunity to improve prior to an agency removing the employee for
performance-based reasons pursuant to 5 U.S.C. chapter 43. However, the
administrative judge determined that the agency’s action here was not taken for
performance reasons but for failure to meet a necessary condition of employment
by not passing a mandatory examination. ID at 20-21; IAF, Tab 4 at 11-12, 17.
Thus, the administrative judge found that the agency did not make a procedural
error in not meeting the requirements of an action brought pursuant to chapter 43.
ID at 21. The administrative judge further found that, even presuming a
procedural error occurred, there was no evidence that the presumed error of not
placing the appellant on a PIP was likely to have caused the agency to reach a
conclusion different from the one it reached in the absence or cure of the error.
ID at 21.
¶13 Based on our review of the record, we agree with the administrative judge
that the record does not support the appellant’s claims of harmful procedural
7
error. Even assuming that the agency violated a procedural requirement by
failing to provide the appellant with an IDP, there is no evidence that the result
would have been different absent the error because there is no evidence that the
agency would not have removed him from his position because of his failure to
pass the advanced certified cruiser exam even if it had provided him with an
annual IDP. We also agree with the administrative judge that the agency did not
err by failing to place the appellant on a PIP prior to removing him because he
was not removed for performance-based reasons pursuant to 5 U.S.C. chapter 43.
Therefore, we find that the administrative judge correctly found that the appellant
failed to prove his harmful procedural error claims.
Disability Discrimination
¶14 On review the appellant also reasserts his claim of disability discrimination
based on failure to accommodate. PFR File, Tab 1 at 6-7. The Rehabilitation Act
requires an agency to provide reasonable accommodation to the known physical
or 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. 4 Clemens v. Department of the Army, 120 M.S.P.R. 616,
¶ 10 (2014). The ADAAA defines “qualified individual,” in part, to mean “an
individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” See 42 U.S.C. § 12111(8). The ADAAA defines “disability” to mean:
4
As a federal employee, the appellant’s claim of disability discrimination arises under
the Rehabilitation Act. However, the standards under the Americans with Disabilities
Act have been incorporated by reference into the Rehabilitation Act. 29 U.S.C.
§ 791(g). The Americans with Disabilities Act Amendments Act of 2008 (ADAAA),
which liberalized the definition of disability, became effective on January 1, 2009. See
Pub. L. 110-325, 122 Stat. 3553 (2008), codified at 42 U.S.C. § 12101 et seq. Because
the appellant was removed from his position on October 11, 2012, the ADAAA
definition is applicable. Although the ADAAA changed the interpretation of the law as
to the existence of a disability, it did not affect the requirements of the law as to
reasonable accommodation. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11
n.4 (2012).
8
“a physical or mental impairment that substantially limits 5 one or more major life
activities of such individual; a record of such an impairment; or being regarded as
having such an impairment . . . .” 42 U.S.C. § 12102(1)(A)-(C). “Major Life
Activities” include, but are not limited to, “caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating,
and working.” 42 U.S.C. § 12102(2)(A). Reasonable accommodation includes
modifications to the manner in which a position is customarily performed to
enable a qualified individual with a disability to perform the essential job
functions, or reassignment of the employee to a vacant position whose duties the
employee can perform. Clemens, 120 M.S.P.R. 616, ¶ 10.
¶15 An appellant may establish a disability discrimination claim based on
failure to accommodate by showing that: (1) he is a disabled person; (2) the
action appealed was based on his disability; and (3) to the extent possible, that
there was a reasonable accommodation under which the appellant believes he
could perform the essential duties of his position or of a vacant position to which
he could be reassigned. Bennett v. U.S. Postal Service, 118 M.S.P.R. 271, ¶ 10
n.2 (2012).
¶16 The administrative judge found that the appellant did not provide the
agency or the Board any documentation supporting his claim that he suffers from
PTSD, nor did he submit any credible evidence showing that his inability to pass
5
The Equal Employment Opportunity Commission’s ADAAA regulations provide that
the term “‘substantially limits’ shall be construed broadly in favor of expansive
coverage, to the maximum extent permitted by the terms of the ADAAA. ‘Substantially
limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630(j)(1)(i). “An
impairment is a disability within the meaning of this section if it substantially limits the
ability of an individual to perform a major life activity as compared to most people in
the general population. An impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity in order to be considered
substantially limiting. Nonetheless, not every impairment will constitute a disability
within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ii).
9
the advanced cruiser exam was related to his PTSD. ID at 23. Therefore, the
administrative judge found that the appellant failed to prove either that he was
disabled during the relevant time frame due to PTSD or that he was removed
based upon any disability-related limitations. ID at 23.
¶17 The administrative judge further found that, even if the appellant could
show that his removal was based on disability-related impairments, he failed to
show that there was a reasonable accommodation that the agency could have
provided that would allow him to continue working. ID at 23-25. In that regard,
the administrative judge rejected the appellant’s argument that the agency should
have accommodated him by providing more one-on-one assistance in teaching
him how to develop cruise designs. ID at 23. The administrative judge noted that
the agency had provided the appellant extensive assistance from multiple sources
and only removed him after years of such assistance had proved unsuccessful. ID
at 23-24. In addition, the administrative judge noted that “it is unrebutted that the
agency needed a certified check cruiser in the appellant’s position.” ID at 23-24.
The administrative judge therefore found that “it would be unreasonable to
require the agency to keep the appellant in a position where he is not performing
its essential functions while providing still more training similar to that which
had already proven ineffective.” ID at 24.
¶18 The administrative judge also rejected the appellant’s argument that the
agency should have reassigned him to another position. ID at 24-25. In
particular, the administrative judge credited the deciding official’s testimony that
she looked into reassigning the appellant but was unable to find any vacant
positions for which he was qualified. ID at 24. By contrast, the administrative
judge did not find credible the appellant’s claim that he was aware of vacant
positions for which he was qualified. ID at 24 Therefore, the administrative
judge found that the appellant failed to prove by preponderant evidence his
affirmative defense of disability discrimination. ID at 25.
10
¶19 The appellant reasserts his disability discrimination claim on review
arguing that the administrative judge erred in finding that the agency had not
discriminated against him “because ‘the appellant never requested reassignment’
and because the [a]ppellant ‘believed that the agency should have accommodated
him’.” PFR File, Tab 1 at 7. The appellant has apparently misread the initial
decision. Although the administrative judge noted that the appellant never
requested a reassignment or, for that matter, any accommodation, he did not find
that the appellant failed to prove his disability discrimination claim on that basis.
Rather, as noted above, the administrative judge found that the appellant failed to
prove his claim because, even if the appellant could show that his removal was
based on disability-related impairments, he did not meet his burden of showing
that there was a reasonable accommodation that the agency could have provided
that would have allowed him to continuing working. ID at 23-25.
¶20 We also find unavailing the appellant’s argument on review that he proved
his disability discrimination claim by showing that he notified his supervisor of
his disability in 2011 and 2012, and that the agency failed to engage in the
interactive process required by the Rehabilitation Act. PFR File, Tab 1 at 6-7.
Even assuming that the appellant informed his supervisor that he had a disability,
thereby triggering the agency’s obligation to engage in the interactive process, the
agency’s failure to engage in the interactive process alone does not violate the
Rehabilitation Act; rather, the appellant must show that this omission resulted in
a failure to provide reasonable accommodation. Gonzalez-Acosta v. Department
of Veterans Affairs, 113 M.S.P.R. 277, ¶ 16 (2010).
¶21 As discussed above, the agency established at the hearing that there was no
appropriate vacancy to which the appellant could be reassigned. ID at 24-25.
Further, we discern no reason to disturb the administrative judge’s finding that
the agency did not deny the appellant a reasonable accommodation by failing to
provide him with additional one-on-one training, given the appellant’s failure to
pass the advanced cruiser exam despite having received “extensive assistance
11
from multiple resources.” ID at 23-24. Thus, even if the agency failed to engage
in the interactive process, the appellant has not shown that this omission resulted
in failure to provide reasonable accommodation.
The administrative judge correctly found that the agency proved that removal is a
reasonable penalty and promotes the efficiency of the service.
¶22 The appellant does not offer any specific argument on review challenging
the administrative judge’s findings that there is a nexus between the charge and
the efficiency of the service and that removal is a reasonable penalty for the
sustained charge. ID at 25-27. Based on our review of the record, we discern no
reason to disturb these findings.
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
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
12
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
ofprepayment 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.