holding that the Board has discretion to make evidentiary rulings in the course of proceedings before it
How later courts described this case
- holding that the Board has discretion to make evidentiary rulings in the course of proceedings before it
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCELLA MANOCK, DOCKET NUMBER
Appellant, PH-0432-13-0293-I-1
v.
DEPARTMENT OF STATE, DATE: July 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joel J. Warne, San Francisco, California, for the appellant.
Haley B. Shellito, and Jessee Alexander-Hoeppner, Washington, D.C., for
the agency.
Svetlana Uimenkova, Esquire, Boston, Massachusetts, for amicus curiae,
The Disability Law Center, Inc.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for unacceptable performance under chapter 43 and denied
her affirmative defenses of age and disability discrimination. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. Except as expressly MODIFIED by this Final
Order to: (1) clarify that the appellant’s performance was unacceptable in at least
one critical element of her position; (2) find that the appellant failed to establish
that the agency committed harmful error; and (3) change the grounds for finding
that the appellant failed to establish her affirmative defense of disability
discrimination, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS-9 Passport Specialist with the agency. Initial
Appeal File (IAF), Tab 1 at 1, Tab 13 at 297. In February 2011, the appellant’s
supervisor issued her a summary rating of “not successful” for the performance
evaluation period ending December 31, 2010. IAF, Tab 12 at 52, 58. In
response, the appellant asserted that she had been unable to perform successfully
due to “medical issues.” Id. at 59.
¶3 Approximately 4 months later, on June 6, 2011, the agency notified the
appellant that it would place her on a 45-day performance improvement plan
(PIP) based upon her unsuccessful performance in two out of three components of
3
one of the critical elements of her position. Id. at 53-55; IAF Tab 15 at 92-93,
134-36. Specifically, the agency notified the appellant that her performance was
unsuccessful in Critical Performance Element 1, Employee Work Commitments
and Standards, Work Commitment 1a, which required her to apply citizenship
law, passport regulations, and procedural guidance, and to evaluate the
sufficiency of evidence submitted in support of passport applications. IAF,
Tab 15 at 92, 134-35. The agency further notified the appellant that her
performance was unsuccessful in Critical Performance Element 1, Employee
Work Commitments and Standards, Work Commitment 1c, which required her to
meet production quotas in adjudicating passport applications and specify
maximum allowable rates for certain types of errors in adjudicating the
applications. Id. at 92, 135-36.
¶4 The agency enclosed a 1-page Reasonable Accommodation Request form
with the PIP letter, and advised that, if the appellant suffered from a medical
condition and wanted to request reasonable accommodation, she should complete
and submit the form “as soon as possible but no later than 15 days from the start
of the PIP.” Id. at 93, 139. On July 6, 2011, 20 days after the PIP began, the
appellant emailed her supervisor, stating that she was awaiting the results of a
sleep study and “may need some accommodations.” IAF, Tab 12 at 244, Tab 15
at 84. The appellant’s supervisor responded that requests for accommodation
should be made through the agency’s Disability Reasonable Accommodation
Division (DRAD). IAF, Tab 12 at 243.
¶5 The next day, the appellant called the agency’s Human Resources Office to
discuss her PIP and her medical issues. IAF, Tab 57 at 19. In response, a
Reasonable Accommodation and Disability Coordinator emailed the appellant
18 days later to offer the appellant “assistance with reasonable accommodations
should [she] wish to pursue.” Id. The Coordinator also sent the appellant another
copy of the Reasonable Accommodation Request form. IAF, Tab 58 at 4. The
appellant responded that she was awaiting additional information from her doctor.
4
Id. The appellant did not submit a Reasonable Accommodation Request form and
has not asserted that she provided the agency with additional information
regarding her medical condition prior to the conclusion of the PIP. See IAF,
Tab 61 at 19, 26, Tab 63; see also Petition for Review (PFR) File, Tab 1.
¶6 After the PIP concluded, the appellant’s supervisor notified her that her
performance in components 1a and 1c of the Work Commitment critical element
remained unacceptable. IAF, Tab 15 at 91. Approximately 6 months later, the
agency proposed the appellant’s removal, based on her unacceptable performance
during the PIP. IAF, Tab 14 at 76-85. In response to the notice of proposed
removal, the appellant stated that her performance had been affected by medical
conditions, she was unaware that she could request a reasonable accommodation
during the PIP, and she wanted to request a disability retirement. 2 Id. at 21-25,
75. After considering the appellant’s responses, the agency issued a decision to
remove her, effective June 4, 2012. IAF, Tab 13 at 297, 299-304, Tab 14 at 4-7.
¶7 The appellant filed an equal employment opportunity (EEO) complaint
regarding her removal, which the agency failed to resolve within 120 days. IAF,
Tab 4 at 4, Tab 8 at 13; see 5 C.F.R. § 1201.154(b)(2) (if the agency has not
resolved or issued a final decision on a formal complaint of discrimination within
120 days, the appellant may appeal the matter directly to the Board any time
thereafter). Subsequently, the appellant filed a timely Board appeal challenging
her removal and raising affirmative defenses of discrimination based on age and
disability (“stress issues,” chronic obstructive pulmonary disease, emphysema,
and Bird Fancier’s Lung). 3 IAF, Tab 1 at 1, 3, 5, Tab 57 at 4-7, Tab 63 at 4-12.
2
The appellant applied for disability retirement, and the Office of Personnel
Management approved her disability retirement application. Hearing Transcript (HT)
at 260-61, 275.
3
Bird Fancier’s Lung is an allergic inflammatory lung condition caused by inhaling
particulate substances from birds. Stedman’s Medical Dictionary, 1122 (28th ed. 2006).
5
¶8 Following a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal and denying her affirmative defenses. IAF,
Tab 74, Initial Decision (ID). 4
¶9 The appellant has filed a timely petition for review. PFR File, Tab 1. The
agency has responded to the petition for review. PFR File, Tab 10. In addition,
the Disability Law Center, Inc. (DLC) has filed an amicus curiae brief, and the
5
agency filed a timely response to the amicus curiae brief. PFR File, Tabs 13,
15; see PFR File, Tab 12 at 2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 In a performance-based action taken under chapter 43, such as this one, an
agency must prove by substantial evidence that: (1) the Office of Personnel
Management approved its performance appraisal system; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(b)(1); (4) the agency warned the appellant of the inadequacies of her
performance during the appraisal period and gave her a reasonable opportunity to
improve; and (5) the appellant’s performance remained unacceptable in at least
one critical element. White v. Department of Veterans Affairs, 120 M.S.P.R. 405,
¶ 5 (2013). On review, the appellant does not challenge the administrative
judge’s finding that the agency met its burden of proof in a chapter 43
4
On review, the appellant does not challenge the administrative judge’s findings
regarding her age discrimination claim. PFR File, Tab 1; ID at 18. We see no basis to
disturb these findings.
5
The appellant has submitted two additional pleadings in reply to the agency’s response
to the amicus brief. PFR File, Tab 16 at 4, Tab 17 at 4. We did not authorize the
appellant to reply to the agency’s response to DLC’s amicus brief and, to the extent that
she is also responding to DLC’s brief, her response is untimely filed without good cause
shown. See PFR File, Tabs 12, 14, Tab 16 at 4, Tab 17 at 4. We have reviewed these
submissions, in any event, and find that they either repeat the appellant’s contentions in
her petition for review or reiterate the arguments that DLC presented in its amicus brief.
6
performance action here, and we see no basis to disturb those well-reasoned
findings on review. 6 PFR File, Tabs 1, 8; ID at 4-13.
The agency did not commit harmful error when it failed to bargain over Standard
Operating Procedures (SOP).
¶11 On review, the appellant argues that a new decision by the Federal Labor
Relations Authority (FLRA) demonstrates that her performance standards were
implemented “in violation of law” because the agency refused to negotiate with
her union regarding a proposal that would have “given all passport specialists,
including [the appellant], additional time to adjudicate applications.” 7 PFR File,
6
However, we modify the administrative judge’s erroneous referral to the appellant’s
performance as unacceptable in two critical elements. ID at 13. The record reflects
that Work Commitments 1a and 1c were components of critical element 1, Employee
Work Commitments and Standards. IAF, Tab 12 at 53-54, 58. Therefore, the
appellant’s performance was unacceptable in one critical element only. Nonetheless,
this error was not prejudicial to the appellant’s substantive rights. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision). Failure to demonstrate acceptable performance under a single critical
element will support a removal under chapter 43. Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶ 29 n.12 (2013); see Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 36 (2010) (holding that an agency must prove by
substantial evidence that failure on some, but not all, of the components of a critical
element is failure on the entire element by presenting evidence that the appellant knew
or should have known of the significance of the components and evidence of the
importance of the components to the critical element as a whole); IAF, Tab 15 at 92-93,
134-36; HT at 66, 135, 147-48.
7
The appellant has moved for leave to submit this FLRA decision on review. See PFR
File, Tab 8. We GRANT her motion. See Curtin v. Office of Personnel Management,
846 F.2d 1373, 1378-79 (Fed. Cir. 1988) (holding that the Board has discretion to make
evidentiary rulings in the course of proceedings before it); 5 C.F.R. § 1201.115(e)
(providing that the Board has authority to consider any issue in an appeal before it).
Because the decision is publicly available on the FLRA website, we have taken official
notice of it, and it is unnecessary for the appellant to submit a physical copy. See
5 C.F.R. § 1201.64 (allowing the Board to take official notice of matters that can be
verified); see also United States Department of State Passport Services & National
Association of Government Employees, Local R4-78, AFL-CIO, Case No. WA-CA-11-
0109, 2014 WL 2917661 (F.L.R.A. June 13, 2014).
7
Tab 8 at 4. Because the FLRA decision was issued after the initial decision, it
appears that the appellant is arguing that her petition for review should be granted
because of new and material evidence. See 5 C.F.R. § 1201.115(d).
¶12 The Board generally will not consider evidence submitted for the first time
on review absent a showing that: (1) the documents and the information
contained in the documents were unavailable before the record closed despite due
diligence; and (2) the evidence is of sufficient weight to warrant an outcome
different from that of the initial decision. See Carson v. Department of
Energy, 109 M.S.P.R. 213, ¶ 21 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009);
see also 5 C.F.R. § 1201.115(d). Here, the parties presented evidence and
argument regarding the FLRA complaint at issue during the Board hearing. See
HT at 11-12, 89-91, 96-97. However, the FLRA decision itself post-dates the
initial decision, and the information that the FLRA found to determine that the
agency failed to bargain over the SOP is new. We find, though, that the appellant
has failed to demonstrate that the FLRA decision is of sufficient weight to
warrant an outcome different from that of the initial decision. 8 See Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision).
In her motion for leave, the appellant also presents an argument that she did not raise in
her petition for review. See PFR File, Tab 1, Tab 8 at 4-5 & n.1. She contends that the
administrative judge erred in finding that a different 2013 arbitration decision regarding
2012 performance standards for Passport Specialists was not relevant because the
appellant was evaluated during the PIP under the 2011 standards. Id.; see ID at 6; see
also IAF, Tab 18 at 4-16; HT at 100-01. Because the appellant presented a similar
argument below, we GRANT her leave to present the argument regarding the
2013 arbitration decision on review. See IAF, Tab 18 at 3, Tab 63 at 15. However,
having considered the appellant’s argument, we discern no basis to disturb the
administrative judge’s conclusion that the 2013 arbitration decision is not relevant to
the instant appeal. See ID at 6.
8
Because we find that the FLRA decision is not material to the outcome of her appeal,
we do not address the agency’s argument that the appellant did not act with due
diligence to discover its existence. See PFR File, Tab 11 at 4-5.
8
¶13 The FLRA decision did not make any findings regarding the validity of the
performance standards for Passport Specialists. See United States Department of
State Passport Services & National Association of Government Employees, Local
R4-78, AFL-CIO, Case No. WA-CA-11-0109, 2014 WL 2917661. Instead, an
FLRA administrative law judge found that the agency committed an unfair labor
practice when, in July 2010, it implemented certain changes to an SOP that
Passport Specialists use in adjudicating passport applications without engaging in
union negotiations. Id. at 1-4, 6-10. The administrative law judge ordered the
agency to bargain with the union upon request regarding the impact and
implementation of the July 2010 changes to the SOP. Id. at 10-11.
¶14 We interpret the appellant’s argument that the performance standards were
in violation of law as an allegation of harmful procedural error. 9 See Slavich v.
Social Security Administration, 102 M.S.P.R. 171, ¶ 8 (2006) (applying a harmful
error standard to an appellant’s claim that her performance standards were invalid
because the agency did not comply with the terms of a collective bargaining
agreement in creating the standards); see also DeSousa v. Agency for
International Development, 38 M.S.P.R. 522, 526 (1988) (applying a harmful
error standard to an appellant’s claim that an agency violated a collective
bargaining agreement in establishing his performance standards). To establish
harmful error, the appellant must demonstrate that it is likely that the error
affected the outcome of the action before the agency. See Jimenez-Howe v.
Department of Labor, 35 M.S.P.R. 202, 205-06 (1987); see also 5 C.F.R.
§ 1201.56(c)(1) (an appellant bears the burden of proving harmful error).
¶15 Here, the appellant has not asserted that she was unaware that she was
expected to apply the SOP, as modified in July 2010, in adjudicating passport
9
PFR File, Tab 8 at 1; 5 U.S.C. § 7701(c)(2)(A)-(C); see Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 683-84 (1991) (an appealable action should be reversed as
being “not in accordance with law” if the agency’s action is unlawful in its entirety,
i.e., if there is no legal authority for the action).
9
applications when her performance was evaluated under the PIP. See PFR File,
Tabs 1, 8. Furthermore, she has not presented any evidence that her performance
would have been acceptable if she had adjudicated passport applications under the
former version of the SOP. Id. Accordingly, we find that the appellant has failed
to establish harmful error regarding the failure to bargain at issue in the new
FLRA decision.
The appellant did not establish that the agency discriminated against her by
failing to accommodate her disability.
¶16 On review, the appellant and DLC argue that the administrative judge erred
in finding that the appellant failed to request a reasonable accommodation. PFR
File, Tab 1 at 4-8, Tab 13 at 3-15. Both DLC and the appellant contend that the
appellant’s July 2011 emails to her supervisor and the agency’s Reasonable
Accommodation and Disability Coordinator constituted a request for reasonable
accommodation. 10 PFR File, Tab 1 at 7-8, Tab 13 at 12-13. DLC also argues that
the agency knew that the appellant suffered from a disability prior to placing her
on the PIP and should have engaged in an interactive process to determine an
appropriate accommodation. PFR File, Tab 13 at 6-7, 9-10, 13-14. In addition,
the appellant contends that her response to the notice of proposed removal
10
Alternatively, the appellant and DLC argue that the statement in the PIP letter that
the appellant could request a reasonable accommodation “no later than 15 days from the
start of the PIP” caused her to believe that she could not request an accommodation
later in the PIP process. PFR File, Tab 1 at 5, 8, Tab 13 at 10-11. During her hearing
and deposition testimony, the appellant testified that she did not recall reading the
information regarding reasonable accommodation in the PIP letter. See HT at 269-70;
see also IAF, Tab 61 at 18-19. Moreover, the appellant’s July 2011 correspondence
with her supervisor and the Reasonable Accommodation and Disability Coordinator
appear to indicate that the agency would have considered a request for reasonable
accommodation that was submitted later than 15 days after the start of the PIP. See
IAF, Tab 12 at 243, Tab 57 at 19, Tab 58 at 4. However, the appellant’s response
implied that she was waiting for more medical information. IAF, Tab 58 at 4 (“I see my
lung doctor tomorrow, so I will know a little more then. I am really not sure . . . if
there is something I need to ask for. . . . I should find out what is going on with my
breathing issues now at this appointment.”). Accordingly, we find that the appellant
failed to establish that she was confused or misled regarding her ability to request a
reasonable accommodation during the PIP.
10
constituted a request for reasonable accommodation, which the agency was
obligated to consider, because she was still an employee when she responded.
PFR File, Tab 1 at 7-8.
¶17 We find that we need not resolve the issue of whether the appellant
requested a reasonable accommodation because we disagree with the
administrative judge’s conclusion that the appellant established that she was a
qualified individual with a disability. 11 See ID at 21. An agency is required 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.
Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). With
exceptions not applicable here, the term “qualified” means that the individual
satisfies the requisite skill, experience, education and other job-related
requirements of the employment position the individual holds or desires and, with
or without reasonable accommodation, can perform the essential functions of such
position. 29 C.F.R. § 1630.2(m). 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, or reassignment to a vacant position whose duties the employee can
perform. Clemens, 120 M.S.P.R. 616, ¶ 10.
¶18 The appellant bears the burden of proving that she is a qualified individual
with a disability i.e., a disabled individual who can perform the essential
functions of her position, with or without reasonable accommodation. See Paris
v. Department of the Treasury, 104 M.S.P.R. 331, ¶ 24 (2006); see also 29 C.F.R.
§ 1630.2(m). We agree with the administrative judge’s finding, for the reasons
set forth in the initial decision, that the appellant established that she is an
individual with a disability because her medical conditions substantially limit her
11
In the initial decision, the administrative judge did not explain the basis for this
finding. See ID at 21.
11
major life activities. See ID at 21; see also IAF Tab 12 at 132, 134,
141; 29 C.F.R. § 1630.2(g)(1) (defining “disability”). However, we disagree with
the administrative judge’s finding that the appellant established that she could
perform the essential functions of her position, either with or without
accommodation.
¶19 We find that Critical Element 1, Employee Work Commitments and
Standards, was an essential function of the appellant’s position. See IAF, Tab 12
at 53-54 (setting forth Critical Element 1). The term “essential function” means
the fundamental job duties of the position the individual with a disability holds,
not including marginal functions. 29 C.F.R. § 1630.2(n)(1). It includes those
duties that are the reasons for which a position exists. See 29 C.F.R.
§ 1630.2(n)(2)(i); see also Clemens, 120 M.S.P.R. 616, ¶ 6. Here, the agency
presented evidence that the purpose of the Passport Specialist position is to
determine the entitlement of applicants for U.S. passports and to facilitate
legitimate travel to and from the United States. See IAF, Tab 12 at 52; HT at 66.
Thus, the purpose of the position is to perform the function of Critical Element 1,
which required the appellant to apply law, regulations, and guidance to determine
if applicants were entitled to passports, and efficiently and accurately adjudicate
passport applications. 12 See IAF, Tab 12 at 53-54, Tab 15 at 134-35.
¶20 It is undisputed that the appellant was unable to demonstrate successful
performance in both qualitative and quantitative performance standards of Work
Commitments 1a and 1c of Critical Element 1 during the PIP. To demonstrate
successful performance in Work Commitment 1a, the appellant could make no
12
In addition, an employer’s judgment is relevant evidence to be considered in
determining whether a function is essential. 29 C.F.R. § 1630.2(n)(3)(i). Here, the fact
that the agency designated Critical Element 1 as a critical element demonstrates that the
agency considered it to be an essential function. See 5 C.F.R. § 430.203 (defining a
critical element as a work assignment or responsibility of such importance that
unacceptable performance on the element would result in a determination that an
employee’s overall performance is unacceptable).
12
more than six significant knowledge errors when adjudicating passport
applications during the PIP. 13 IAF, Tab 15 at 134-35. The agency demonstrated
that the appellant made forty-seven significant knowledge errors. IAF, Tab 14
at 78-82, 99-111, Tab 15 at 4-13. Work Commitment 1c specified that, among
other things, the appellant was required to adjudicate an average of sixteen to
eighteen new passport applications 14 per hour, and an average of thirty-four to
thirty-eight renewal passport applications 15 per hour, and set forth maximum rates
of certain other types of errors that she could not exceed. IAF, Tab 15 at 135-36.
The agency established that the appellant adjudicated only an average of 8.78 new
passport applications, and 18.41 renewal passport applications, per hour during
the PIP, and exceeded the maximum rate of each of the error types addressed
under Work Commitment 1c. IAF, Tab 14 at 83, Tab 15 at 33-34, 37-60.
¶21 As a result, we find that the appellant failed to establish that a reasonable
accommodation would have enabled her to satisfy the performance standards in
Work Commitments 1a and 1c. The appellant asserts that the agency could have
accommodated her by moving batches of passport applications that she was
required to adjudicate closer to her desk. See PFR File, Tab 1 at 8; see also HT
at 242. However, as discussed above, the appellant’s performance was
significantly deficient in qualitative, as well as quantitative, aspects of a critical
element of her position, and she has not adequately explained how an
accommodation would have resolved these deficiencies. To prevail on a claim of
disability discrimination, the appellant cannot merely articulate an
13
A significant knowledge error is an error that violates one of the components of Work
Commitment 1a, and is equivalent to issuing a passport where one should not be issued,
or in the absence of sufficient information to determine whether it should have been
issued. HT at 72-73.
14
The performance standard referenced “DS-11 passport applications,” which are
submitted by first-time applicants or applicants who have not held a passport in
15 years. IAF, Tab 14 at 135 of 157; HT at 87.
15
The performance standard referenced “DS-82 passport applications,” which are
passport renewal applications. IAF, Tab 14 at 135 of 157; HT at 87.
13
accommodation, but instead, must prove that the accommodation would enable
her to perform the essential duties of her position. See Paris, 104 M.S.P.R. 331
at ¶ 24. Based upon the evidence that the appellant elected to present on this
issue below, we find that she failed to prove that her articulated accommodation
would enable her to meet her performance standards.
¶22 However, this does not end the inquiry of whether the appellant is entitled
to an accommodation. She also would be entitled to be considered for
reassignment to a vacant funded position for which she was otherwise qualified as
a form of reasonable accommodation. See Gonzalez-Acosta v. Department of
Veterans Affairs, 113 M.S.P.R. 277, ¶ 14 (2010); see also 29 C.F.R.
§ 1630.2(o)(2)(ii), (q). At hearing, the appellant testified that after her
unsuccessful performance appraisal in 2010, she asked her supervisor if she could
reduce her pay grade to assist her in meeting her production quotas. HT at 256.
Yet, the appellant has not established that any vacant, funded positions at a lower
pay grade were available. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 46,
53-54 (1998) (in a disability discrimination claim, the appellant bears the ultimate
burden of proving that vacant, funded positions for which she was otherwise
qualified were available). Furthermore, she has not presented any evidence
regarding the essential duties of a Passport Specialist at a lower pay grade, or that
she would have been able to perform those duties, either with or without
accommodation. Accordingly, we find that the administrative judge correctly
determined that the appellant failed to meet her burden of proof on her
affirmative defense of disability discrimination.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.
14
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
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,
15
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.