The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELIA PRIM, DOCKET NUMBER
Appellant, AT-0752-14-0025-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: November 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Angelia Prim, Loxley, Alabama, pro se.
Barry D. Thorpe, Miami, Florida, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
¶2 The agency removed the appellant for failure to maintain a regular work
schedule. Initial Appeal File (IAF), Tab 5 at 23, 26. The agency’s charge
specified six instances when the appellant was late without authorization. Id. at
26. In deciding to remove the appellant, the agency also considered her prior
discipline for attendance problems, which resulted in two 14-day suspensions on
February 19, 2013, and June 25, 2013, a letter of warning on February 16, 2012,
and a 7-day suspension on December 12, 2012. Id. at 24, 26.
¶3 The appellant filed an appeal of her removal and raised affirmative defenses
alleging gender discrimination, disability discrimination (failure to
accommodate), and harmful procedural error. IAF, Tab 1 at 4, Tab 6 at 2. The
administrative judge issued an order informing the appellant of her burden of
proof on her affirmative defenses, and she responded. IAF, Tabs 6, 19. After
holding the requested hearing, the administrative judge found that the agency
proved its charge of failure to maintain a regular work schedule and affirmed the
agency’s removal decision. IAF, Tab 51, Initial Decision (ID). The
administrative judge also found that the appellant failed to prove her affirmative
3
defenses, the agency proved nexus, and the removal penalty was reasonable. ID
at 5, 7-15.
¶4 The appellant filed a petition for review, consisting of one paragraph in
which she expresses her general disagreement with the administrative judge’s
decision and findings of fact. Petition for Review (PFR) File, Tab 1 at 3. The
appellant does not specifically dispute any of the charged misconduct. We have
considered the appellant’s nonspecific arguments challenging the administrative
judge’s findings of fact, and we discern no reason to reweigh the evidence or
substitute our assessment of the record evidence for that of the administrative
judge in this appeal. See PFR File, Tab 4 at 6-15; see also Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same).
¶5 On review, the appellant also challenges the administrative judge’s finding
that she failed to prove her affirmative defense of disability discrimination based
on the agency’s alleged failure to provide reasonable accommodation for her
medical condition of narcolepsy. PFR File, Tab 1 at 3; IAF, Tab 19. In support
of her petition for review, the appellant argues that everyone in the agency knew
about her disability. PFR File, Tab 1 at 3. It is undisputed that, when the agency
hired the appellant in 2007, a physician certified that she did not require
accommodation because her narcolepsy was controlled. ID at 8; IAF, Tab 5 at 77.
The appellant has not submitted any new evidence or argument showing that:
(1) her condition of narcolepsy was no longer controlled, (2) her condition caused
her unscheduled absences on the relevant dates, or (3) the administrative judge
erred in finding that the appellant failed to establish that she was disabled
4
pursuant to 29 C.F.R. § 1630.2(g)(1)(i) or (ii). 2 ID at 9. We therefore find that
the appellant has not shown that the administrative judge erred in finding that she
failed to prove her affirmative defense of disability discrimination. Based on the
foregoing, we deny the appellant’s petition for review. 3 ID at 1, 7-15.
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
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
2
In pertinent part, 29 C.F.R. § 1630.2(g)(1) generally defines a person with a disability
as an individual with: (i) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual; or (ii) a record of such an
impairment.
3
Although the appellant attempted to raise additional arguments on review, they are
unintelligible and, as such, present no basis for disturbing the initial decision affirming
her removal.
5
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
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.