Lisa M. Davenport v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA M. DAVENPORT, DOCKET NUMBER

Appellant, PH-0752-14-0104-I-2

v.

DEPARTMENT OF THE NAVY, DATE: February 19, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Ralph B. Pinskey, Esquire, Harrisburg, Pennsylvania, for the appellant.

Barbara M. Dale, Esquire, Newport, Rhode Island, 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 her removal for physical inability to perform and denied her affirmative

defense of failure to accommodate. Generally, we grant petitions such as this one

only when: the initial decision contains erroneous findings of material fact; the

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

initial decision is based on an erroneous interpretation of statute or regulation 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).

DISCUSSION OF ARGUMENTS ON REVIEW

Background

¶2 The appellant served as a supervisory security specialist with the agency’s

Naval Support Activity in Mechanicsburg, Pennsylvania. MSPB Docket No.

PH-0752-14-0104-I-1 (I-1), Initial Appeal File (IAF), Tab 6 at 14. The agency

removed the appellant from her position based on her inability to perform the

duties of her position as a result of a medical condition. Id. at 16-18. The

appellant filed a timely mixed-case appeal challenging her removal and alleging

that the agency failed to accommodate her disability when it denied her request to

telework on an as-needed basis. I-1, IAF, Tab 1. Following a hearing, the

administrative judge sustained the appellant’s removal and denied the appellant’s

affirmative defense on the basis that the appellant was not a qualified individual

with a disability. MSPB Docket No. PH-0752-14-0104-I-2 (I-2), IAF, Tab 17,

Initial Decision (ID).

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¶3 The appellant has filed a petition for review arguing, among other things,

that the administrative judge erred in concluding that she is not a qualified

individual with a disability based on the Special Panel’s decision in Alvara v.

Department of Homeland Security, 121 M.S.P.R. 613 (Spec. Pan. 2014). Petition

for Review (PFR) File, Tab 1. The agency has filed a response in opposition to

the petition for review, and the appellant has filed a reply. PFR File, Tabs 3-4.

For the reasons that follow, the appellant’s petition for review is DENIED and the

initial decision is AFFIRMED.

The administrative judge properly sustained the agency’s charge of inability to

perform.

¶4 Where, as here, the appellant does not occupy a position with medical

standards or physical requirements or that is subject to medical evaluation

programs, 2 in order to establish a charge of physical inability to perform, the

agency must prove a nexus between the employee’s medical condition and

observed deficiencies in her performance or conduct, or a high probability, given

the nature of the work involved, that her condition may result in injury to herself

or others. Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014). In

such cases, the Board has found that the agency must establish that the

appellant’s medical condition prevents her from being able to safely and

efficiently perform the core duties of her position. 3 Id. In determining if the

2

There is no dispute that the appellant’s position is not subject to medical standards.

See PFR File, Tab 1 at 4; I-2, IAF, Tab 12. The administrative judge applied the

correct standard in assessing the agency’s charge of inab ility to perform based on the

nature of the appellant’s position. ID at 3.

3

Applying civil service laws, rules, and regu lations, the U.S. Court of Appeals for the

Federal Circuit and the Board have long-standing precedent governing the adjudication

of an adverse action based on a charge of physical or medical inability to perform.

5 U.S.C. § 7702; 5 C.F.R. § 339.203; see, e.g., Bryant v. National Science Foundation,

105 F.3d 1414, 1417 (Fed. Cir. 1997) (hold ing that nexus to the efficiency of the

service—a required element to be proven in any adverse action appeal—is automatically

established in cases of absence without leave); Davis v. Veterans Administration,

792 F.2d 1111, 1113 (Fed. Cir. 1986) (explain ing that “[a]n essential element of

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agency has met its burden, the Board will consider whether a reasonable

accommodation exists that would enable the appellant to safely and efficiently

perform these core duties. Id. However, for the limited purpose of proving its

charge, the agency is not required to show that it was unable to reasonably

accommodate the appellant by assigning her to a vacant position for which she

was qualified; whether it could do so goes to the affirmative defense of disability

discrimination, if asserted, and/or the reasonableness of the penalty. Id.

¶5 The core duties of a position are synonymous with its essential functions,

i.e., the fundamental job duties of a position, not including marginal functions.

Id., ¶ 26. The administrative judge found, and neither party disputes on review,

that the essential functions of the appellant’s supervisory security specialist

position included, inter alia, conducting a comprehensive review and analysis of

physical security, providing policy and written technical guidance, developing

and maintaining current physical security plans, representing the agency at

meetings and collaborating with law enforcement, and conducting staff visits to

ensure security protocol compliance. I-2, IAF, Tab 12 at 2-3; ID at 4-7. In this

role, moreover, the appellant supervised and directed a naval security force of

approximately 40 individuals, including the assignment and evaluation of work,

coordinating disciplinary actions, responding to employee complaints and

grievances, and interviewing candidates for security positions. I-2, IAF, Tab 12

at 4.

¶6 In its letter of decision imposing the appellant’s removal, the agency

explained that the appellant had been out of work for an extended period of time

and had exhausted all of her leave. I-1, IAF, Tab 6 at 16. Additionally, the

employment is to be on the job when one is expected to be there); Slater v. Department

of Homeland Security, 108 M.S.P.R. 419, ¶¶ 3-11 (2008); D’Leo v. Department of the

Navy, 53 M.S.P.R. 44, 51 (1992); Ajanaku v. Department of Defense, 44 M.S.P.R. 350,

355 (1990) (an essential element of employment is to be on the job when one is

expected to be there); Schoening v. Department of Transportation, 34 M.S.P.R. 556,

561 (1987); Owens v. Department of the Air Force, 8 M.S.P.R. 580, 583 (1981).

5

agency explained that the appellant’s absence from employment had a negative

impact on the agency; that, although it considered her request to telework, it was

unable to grant her request because her position required frequent in-person

interaction and meetings both with agency employees and with outside

individuals; and that she was also required to maintain access to the Department

of Defense’s Secret Internet Protocol Router Network, which could not be

accessed remotely from her home. Id. at 17. Lastly, the agency noted that the

appellant had been absent from work for over 6 months and that she was unable to

give any indication when she would be able to return to duty. Id. Citing these

factors, the agency determined that it could not reassign her to another position

and that it had no choice but to remove her from her position for inability to

perform. Id.

¶7 We agree with the administrative judge that the agency clearly had a valid

basis for removing the appellant under these facts. ID at 11-12. We agree that

the appellant was unable to perform the core duties of her position and that her

continued absence from work not only negatively impacted her performance, but

also had an adverse effect on the agency. See Fox, 120 M.S.P.R. 529, ¶¶ 26, 30;

I-1, IAF, Tab 6 at 16-18. We thus concur with the administrative judge that the

agency proved the elements of its charge, and we find it uncontroverted that there

exists a nexus between the appellant’s medical condition and her absence from

employment. See Fox, 120 M.S.P.R. 529, ¶ 30; see also I-1, IAF, Tab 6 at 28-45

(medical documentation finding that the appellant is medically incapacitated and

unable to work). Similarly, based on the nature of the appellant’s medical

conditions and diagnosis, we agree with the administrative judge that

reassignment was neither reasonable nor feasible. See Fox, 120 M.S.P.R. 529,

¶ 40 (the Board will consider whether reassignment to another position is feasible

when assessing the reasonableness of the penalty based on a charge of inability to

perform). The administrative judge’s initial decision sustaining the charge of

inability to perform based on a medical condition is therefore AFFIRMED.

6

The administrative judge properly denied the appellant’s affirmative defense.

¶8 On review, the appellant also challenges the administrative judge’s denial

of her failure to accommodate affirmative defense, arguing that under Alvara, he

should have assessed whether her reasonable accommodation request to telework

on an as-needed basis (situational) imposed an undue hardship on the agency.

PFR File, Tab 1 at 6-8. In making this argument, the appellant assigns error to

the administrative judge’s finding that she was not a qualified individual with a

disability. Id. at 6. For the reasons that follow, we disagree with the appellant’s

arguments on review and find that her reliance on Alvara is unconvincing. 4

¶9 An agency is required to make a reasonable accommodation to the known

physical and mental limitations of an otherwise qualified individual with a

disability unless the agency can show that the accommodation would cause an

undue hardship on its business operations. Miller v. Department of the

Army, 121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). Reasonable

accommodations include 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 functions of the position. Miller, 121 M.S.P.R. 189, ¶ 13.

In order to establish a disability-based failure to accommodate, an employee must

show that: (1) she is an individual with a disability; (2) she 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 Although the administrative judge found it undisputed that the appellant is

disabled, he concluded that the appellant failed to establish that she is a qualified

individual with a disability because she is unable to perform the essential

functions of her position either with or without a reasonable accommodation. ID

4

Previous Special Panel decisions are not controlling in our present deliberations. See

Boots v. U.S. Postal Service, 100 M.S.P.R. 513, 518 (Spec. Pan. 2005) (viewing I gnacio

v. U.S. Postal Service, 30 M.S.P.R. 471 (Spec. Pan. 1986) only as “guid ing precedent”).

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at 10-11. On review, relying on Alvara, 5 the appellant alleges that she is a

qualified individual with a disability because she “was capable of performing the

essential functions of her position when she was medically able to work at her

usual worksite.” PFR File, Tab 1 at 7. We agree with the administrative judge

that the record does not support the appellant’s assertion about the extent of her

capabilities. See ID at 11.

¶11 Implicit in a claim of denial of reasonable accommodation is that the denied

accommodation would have been effective and would have allowed the appellant

to perform the essential functions of her position. See Miller, 121 M.S.P.R. 189,

¶ 21; see also White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 12

(2013) (citing EEOC caselaw for the proposition that an employee cannot

establish a denial of reasonable accommodation when the denied accommodation

would not have been effective). The appellant’s medical documentation

submitted below, however, unequivocally demonstrates that the appellant was

deemed completely medically incapacitated and unable “to perform work of any

kind” as of February 2013, and that her treating physician reaffirmed this

diagnosis on multiple occasions leading up to the appellant’s removal from

federal service. I-1, IAF, Tab 6 at 33 (treating physician’s medical certification

finding the appellant incapacitated effective February 2013); see id. at 29-43

(medical certifications finding the appellant unable to report to work between

January and July 2013 due to medical incapacitation). Based on her treating

physician’s conclusion that she was completely incapacitated, the appellant’s

request to telework on an as-needed basis could not have been an effective

accommodation which would have allowed her to perform the essential functions

5

In Alvara, the Special Panel affirmed the Equal Employment Opportunity

Commission’s (EEOC) conclusion that attendance and timing are methods by which an

employee performs the essential functions of her position, and are not themselves

essential functions. See Alvara, 121 M.S.P.R. 613, ¶ 37; see also Petitioner v.

Department of Homeland Security, EEOC Petition No. 0320110053, 2014 WL 3571431

at *4 (E.E.O.C. July 10, 2014).

8

of her position. 6 We accordingly find no reason to differ with the administrative

judge’s conclusion that the appellant is not a qualified individual with a

disability, and we AFFIRM his denial of the appellant’s failure-to-accommodate

affirmative defense. 7

¶12

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:

6

Although the appellant argues on petition for review that she could have performed

many of her job functions while teleworking, and that she could have arranged to

perform certain functions when she was in the office, there is no evidence in the record

that she was ever cleared to return to work on an intermittent basis. See PFR File, Tab

1 at 12; I-1, IAF, Tab 6 at 29 (medical certification finding the appellant incapacitated

as of July 2013). The Board has found that, if during the pendency of the Board appeal,

an appellant presents new medical evidence showing that she recovered such that she

can perform the essential duties of her position, the removal action will be reversed.

See Sanders v. Department of Homeland Security, 122 M.S.P.R. 144, ¶ 9 (2015). The

Board has held, however, that in order to invoke this princip le, the appellant must

present evidence which clearly and unambiguously demonstrates that she has recovered

during the pendency of a Board appeal. I d. The appellant’s assertions on review,

without any supporting medical evidence, do not meet this standard, and we have found

no evidence in the record that could support such a finding of recovery.

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We further agree with the administrative judge that the appellant’s request for

situational telework would have been incompatible with her need to access a secured

network, which could only be accessed at her worksite. See ID at 9; accord Fox,

120 M.S.P.R. 529, ¶ 29 (finding the appellant’s request to telework incompatible with

the essential functions of her position requiring travel and face-to-face interaction);

Complainant v. Department of Transportation, EEOC Appeal No. 0120123366,

2014 WL 1654086 at *4 (E.E.O.C. April 18, 2014) (find ing telework would not have

allowed the employee to perform the essential functions of her position).

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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.