Michael Cousin v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL COUSIN, DOCKET NUMBER

Appellant, DC-0752-13-0261-I-2

v.

DEPARTMENT OF HOMELAND DATE: July 24, 2015

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ariel E. Solomon, Esquire, Albany, New York, for the appellant.

Carollyn, D. Jackson, Frislanda S. Goldfeder, and Megan Z. Snyder,

Washington, D.C., for the agency.

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

sustained his removal for inability to perform the duties of his position.

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. However, we MODIFY the

administrative judge’s analysis of the appellant’s disability discrimination claim

and his credibility finding regarding a statement that the appellant made to his

supervisor. Except as expressly modified by this Final Order, we AFFIRM the

initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was a GS-1895-13 Customs and Border Protection Officer

(Program Manager) in Reston, Virginia. Cousin v. Department of Homeland

Security, MSPB Docket No. DC-0752-13-0261-I-1, Initial Appeal File (I-1 IAF),

Tab 6 at 15. In that position, the appellant was required to carry a firearm and

was subject to medical standards, including psychological standards. Id. at 184,

218-19, 233-52; Classification & Qualifications, General Schedule Qualification

Standards, Customs and Border Protection series, 1895,

http://www.opm.gov/policy-data-oversight/classification-qualifications/general-

schedule-qualification-standards/1800/customs-and-border-protection-series-

1895/ (last visited June 18, 2015).

¶3 On February 2, 2012, the agency instructed the appellant to report for a

fitness-for-duty examination on the basis that, on January 18, 2012, he informed

3

his supervisor that he was contemplating suicide, that he was unhappy with his

work, and that he felt he was of no value to the agency. 2 I-1 IAF, Tab 6 at 175,

206-08. The appellant reported to the examination as instructed. When the

examining physician failed to uncover a medical condition to explain the

appellant’s behavior, he recommended a psychiatric evaluation. Id. at 188-90.

The appellant also reported to that examination as instructed and was evaluated

by Dr. Richard Blanks. I-1 IAF, Tab 6 at 188, Tab 9 at 27-36. Dr. Blanks

interviewed the appellant and administered the Minnesota Multiphasic Personality

Inventory-2 (MMPI-2). I-1 IAF, Tab 9 at 28. Based on the interview and a

review of the appellant’s medical history, position description, and a summary of

the case, as well as the results of the MMPI-2 as interpreted by Dr. Richard

Frederick, Dr. Blanks issued a report regarding the appellant’s fitness for duty.

Id. at 27-36. In particular, he found that the appellant met the criteria for major

depressive disorder and presented a danger to himself or others. Id. at 34-35.

The report was reviewed by Dr. Paul Prunier, a consultant psychiatrist for the

agency. Id. at 24-25. Dr. Prunier concurred with Dr. Blanks and opined that the

appellant was psychiatrically not fit for duty. Id. at 8, 16, 23, 25.

¶4 The agency proposed the appellant’s removal based on a charge of inability

to perform the duties of his position. I-1 IAF, Tab 6 at 175-78. The agency also

identified two vacant lower-graded positions for which the appellant was

qualified within the local commuting area. 3 Id. at 28-29, 53. The agency offered

the appellant either position, but he declined the offer. Id. at 22, 28-29. The

agency removed him from service effective December 15, 2012. Id. at 15-20.

¶5 The appellant filed a Board appeal and raised a claim of disability

discrimination. I-1 IAF, Tab 1 at 4-7. After a hearing, the administrative judge

2

The agency also confiscated the appellant’s service weapon and suspended his security

clearance. I-1 IAF, Tab 6 at 206.

3

The appellant indicated that, for financial reasons, he would be unable to accept a

position outside the local commuting area. I-1 IAF, Tab 6 at 49, 53.

4

issued an initial decision affirming the removal. Cousin v. Department of

Homeland Security, MSPB Docket No. DC-0752-13-0261-I-2, Initial Appeal File

(I-2 IAF), Tab 12, Initial Decision (ID).

¶6 The appellant has filed a petition for review, disputing the administrative

judge’s finding that he was unfit for duty, Petition for Review (PFR) File, Tab 3

at 14-25, arguing that he recovered from any disqualifying condition during the

pendency of his Board appeal, id. at 26-31, asserting that the agency committed

disability discrimination, id. at 31-32, and claiming that the agency denied him

due process, id. at 10-14. The agency has filed a response. PFR File, Tab 5.

The agency proved its charge of inability to perform.

¶7 Where an employee occupies a position with medical standards or physical

requirements and the finding that he was unable to perform was based on medical

history, the agency is required to show the following to establish a charge of

inability to perform: (1) the disabling condition itself is disqualifying; (2) its

recurrence cannot be ruled out; and (3) the duties of the position are such that a

recurrence would pose a reasonable probability of substantial harm. Sanders v.

Department of Homeland Security, 122 M.S.P.R. 144, ¶ 11 (2015); see 5 C.F.R.

§ 339.206. The appellant argues on review that the agency failed to prove its

charge because he does not suffer from a disabling condition. PFR File, Tab 3 at

14-25.

¶8 As set forth above, three different doctors collaborated in the psychiatric

portion of the appellant’s fitness-for-duty examination: Dr. Blanks, a

psychiatrist, conducted a clinical interview, administered the MMPI-2, and issued

a report on the appellant’s fitness for duty; Dr. Frederick, a psychologist,

reviewed and interpreted the appellant’s answers to the MMPI-2; Dr. Prunier, a

psychiatrist, evaluated the records and issued a separate report concurring with

Dr. Blanks that the appellant was unfit for duty. Supra ¶ 3; I-1 IAF, Tab 9 at

22-36.

5

¶9 The appellant presented independent evaluations by four other doctors, all

of whom disagreed with the results of the fitness-for-duty examination. Dr. Tina

Roemersma, a psychologist, conducted a suicide assessment that included a

diagnostic interview, interviews of the appellant’s former colleagues, a battery of

tests, including the MMPI-2, and reviews of Drs. Blanks’s and Prunier’s reports.

I-1 IAF, Tab 18 at 28. Dr. Roemersma issued a report finding that the appellant

was not clinically depressed and that he did not present a danger to himself or

others. Id. at 28-32. The appellant also was evaluated by Dr. Malika Seth, a

psychiatrist. Id. at 33-37. After interviewing the appellant and reviewing his

medical and psychiatric history, including Drs. Blanks’s and Prunier’s

evaluations, Dr. Seth issued a report finding that the appellant did not meet the

criteria for major depressive disorder, was not a danger to himself or others, and

was fit for duty. Id. Dr. Fred Kerman, another psychologist, also evaluated the

appellant. I-1 IAF, Tab 25. He based his evaluation on clinical interviews with

the appellant, a battery of tests, including the MMPI-2, interviews with some of

the appellant’s coworkers, and a review of the appellant’s medical and mental

health records, including the reports by Drs. Blanks, Prunier, Roemersma, and

Seth, as well as various background documents. Id. at 5. Dr. Kerman issued a

report finding that the appellant did not suffer from any clinical psychological

disorder, he was not a danger to himself or others, and he was fit for duty. Id. at

1-13. Finally, Dr. David Fischer, a psychiatrist, conducted an evaluation based

on the appellant’s position description, an interview with the appellant, an

MMPI-2, and a review of all of the other doctors’ reports. I-1 IAF, Tab 26 at 7-9,

23. Dr. Fischer issued a report finding that the appellant did not suffer from

clinical depression, was not a danger to himself or others, and was fit for duty.

Id. at 1-31.

¶10 After weighing all this evidence, the administrative judge credited the

findings of Drs. Blanks and Prunier over the findings of Drs. Roemersma, Seth,

Kerman, and Fischer largely because Drs. Blanks and Prunier based their

6

assessments on more accurate information. ID at 12-23. On review, the appellant

argues extensively that the reports issued by Drs. Roemersma, Seth, Kerman, and

Fischer are more reliable than the reports issued by Drs. Blanks and Prunier. 4

PFR File, Tab 3 at 14-25.

¶11 For the following reasons, we agree with the administrative judge. All of

the appellant’s medical experts begin their assessments by relying on the

appellant’s version of events regarding his comments about suicide, i.e., he told

his supervisor that it would have been better for him to contemplate suicide than

to be transferred to his current duty station. I-1 IAF, Tab 18 at 28, 33, Tab 25 at

1, 11, Tab 26 at 9-10, 29-30. However, the administrative judge found the

agency’s version of events to be more credible, i.e., the appellant told his

supervisor that he was actually contemplating suicide. ID at 12-13. The

appellant has not challenged this finding on review, and we therefore find that he

stated to his supervisor that he was actually contemplating suicide. 5

¶12 Furthermore, there is a marked difference between the information that the

appellant provided Dr. Blanks and the information that he provided the other four

doctors. The appellant painted a bleak picture before Dr. Blanks regarding his

mood and situation in life. The appellant related that he was anxious, sad most of

the time, unable to concentrate, constantly worried about failure, sleeping poorly,

4

Among other things, the appellant argues that Dr. Blanks improperly administered the

MMPI-2 and that this affected the results of the examination. PFR File, Tab 3 at 14-15.

We need not reach the issue of whether Dr. Blanks improperly administered the

MMPI-2. Even assuming that he did, for the reasons explained below, the additional

unrebutted evidence from Dr. Blanks’s fitness-for-duty examination is sufficient to

show that the appellant is unable to perform the duties of his position.

5

We modify the administrative judge’s credibility analysis to the extent that he

improperly relied on the appellant’s self-interest as a factor in deciding credibility. ID

at 12; see Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 23 (2009).

Nevertheless, we find the remaining credibility factors cited by the administrative judge

sufficient to support his finding. ID at 12-13; see generally Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987) (listing the factors generally probative in making

credibility findings).

7

and having feelings of worthlessness, decreased energy, and an increased

appetite, with 30 pounds of weight gain in the previous 6 months. I-1 IAF, Tab 9

at 29, 33, 35. He further reported an unsatisfactory personal life in that he had no

friends and lived alone, away from his wife and children in Columbia with no

prospect of reuniting with them. Id. at 30, 33. He reported distress at his family

situation. Id. He also stated that he had lost interest in activities that he used to

find pleasurable and that, when he was not at work, he sat around his house. Id.

The appellant further told Dr. Blanks that he was angry at the people in his

workplace, hated his “mindless and mind-numbing job,” and has fleeting thoughts

that life would be better without him and that he was “not afraid to die” because

“life is not that big a deal.” Id. at 29, 31-33.

¶13 The above account is in marked contrast to the account that the appellant

gave to Drs. Roemersma, Seth, Kerman, and Fischer. I-1 IAF, Tab 26 at 29

(noting the inconsistency between the statements that Dr. Blanks attributed to the

appellant and the statements that the appellant made to Dr. Fischer). He told

them, in varying degrees, that he was not sad but was instead fully functional and

sleeping well, with no apathy, no feelings of guilt, no depression, good

concentration, good self-esteem, and only occasional anxiety. I-1 IAF, Tab 25 at

9, Tab 26 at 10-11, 14, 19-20. He also reported that his appetite was normal, his

energy was good, and his weight was stable. I-1 IAF, Tab 25 at 9, Tab 26 at 11,

20. The appellant further reported that he enjoyed participating in daily

activities, including walking, riding his motorcycle, and doing volunteer work.

I-1 IAF, Tab 25 at 9, 11, 13, 20, 35, Tab 26 at 11. He represented that he had a

satisfactory social life that included spending time with friends, from whom he

obtained strong emotional support. I-1 IAF, Tab 26 at 11, 24, 21, 36. He

reported that his home life was pleasant and problem free, he was content with his

family situation, and his family had plans to reunite in the United States. I-1 IAF,

Tab 18 at 29, 34, Tab 26 at 12.

8

¶14 For the reasons explained in the initial decision, we agree with the

administrative judge that these four doctors did not convincingly explain the

discrepancies between the information that the appellant relayed to them and the

information that he relayed to Dr. Blanks. ID at 10-15. Further, Dr. Fischer

questioned the validity of the MMPI-2 that he administered because the appellant

was unwilling or unable to disclose personal information, which could be

explained as a conscious distortion to present himself in a favorable light. I-1

IAF, Tab 26 at 23. Whatever the reason for the discrepancy between the

appellant’s first clinical interview and his subsequent ones, the fact of the

discrepancy leaves us doubting the validity of any of these assessments. We find

that the appellant’s self-report to Dr. Blanks that he had eight of the nine

symptoms of major depressive disorder is sufficient to support a finding that he

did, in fact, suffer from major depressive disorder. 6 I-1 IAF, Tab 9 at 34-35.

Moreover, the appellant showed poor judgment with his comments about suicide

and his attempts to resolve his predicament by giving wildly varying accounts of

his mental health and personal situation during the various psychological

evaluations. We agree with Drs. Blanks and Prunier that the appellant has

demonstrated inability to use proper judgment and make quick decisions in law

enforcement situations. Id. at 25, 35. The appellant’s major depressive disorder

and impairment in judgment are disqualifying conditions. I-1 IAF, Tab 6 at

248-29. Thus, the agency has proven the first element of its charge, i.e., the

appellant suffers from a disqualifying condition. See Sanders, 122 M.S.P.R. 144,

¶ 11; 5 C.F.R. § 339.206.

¶15 Regarding the second element of the charge, i.e., the recurrence of the

disqualifying condition cannot be ruled out, Dr. Blanks testified that he could not

rule out the possibility that the appellant’s depression would return in the future

6

For a diagnosis of major depressive disorder, among other things, five of the nine

symptoms must be present. Diagnostic and Statistical Manual of Mental Disorders,

356, 375 (4th ed. 2000).

9

and that the condition must be managed by the appellant. 7 Hearing Transcript

(HT), Day 1 at 114; see Sanders, 122 M.S.P.R. 144, ¶ 11; 5 C.F.R. § 339.206.

Dr. Prunier testified that an individual who has previously had two episodes of

major depressive disorder has an 80 percent likelihood of another recurrence.

HT, Day 1 at 515. He also stated that an individual who has had a single episode

of depression has a 50 percent likelihood of another occurrence. Id. Dr. Prunier

testified that the recurrence rate increases with each episode until it approaches a

nearly 100 percent likelihood. Id. Therefore, based on this testimony, we find

the agency proved the second element of the charge.

¶16 The third element of the charge is that the duties of the position were such

that a recurrence of the disqualifying condition would pose a reasonable

probability of substantial harm. Sanders, 122 M.S.P.R. 144, ¶ 11; 5 C.F.R.

§ 339.206. The medical requirements for the Customs and Border Protection

Officer position require that the incumbent “must exercise sound judgment,

maintain mental alertness at all times, and function under dynamic and stressful

conditions in which there are time constraints, concerns for national security, and

threats of terrorism.” I-1 IAF, Tab 6 at 218. The position further requires an

ability to make rapid decisions and be prepared to respond to unexpected and

potentially threatening situations. Id. The position also requires working on a

shift or rotational basis with substantial amounts of overtime. Id. at 184. The

Board has previously found an employee unfit for a position based on testimony

that it is “very demanding and stressful” and requires someone “to be on task and

on target at all times, to be under good emotional control and to be stable”

because the incumbent must carry a weapon. Sanders, 122 M.S.P.R. 144,

¶¶ 16-17, 19.

¶17 Dr. Prunier found that the appellant’s psychological condition led him to

exhibit poor judgment and insight and that he was not able to safely, effectively,

7

Although the appellant sought reassessment by four mental health professionals, there

is no indication that he sought treatment for his conditions.

10

and efficiently perform independent decision making functions or assess national

security implications. I-1 IAF, Tab 9 at 8. Given that the appellant’s job requires

him to always exercise sound judgment and maintain mental alertness and to be

on task and on target at all times because of the weapons-carrying requirement,

we find that the recurrence of the disqualifying condition would pose a reasonable

probability of substantial harm. For these reasons, we agree with the

administrative judge that the agency proved its charge: the appellant’s condition

is disqualifying, its recurrence cannot be ruled out, and the duties of his position

were such that a recurrence would pose a reasonable probability of substantial

harm. See Sanders, 122 M.S.P.R. 144, ¶ 11.

The appellant has not demonstrated that he recovered and should be reinstated to

his position.

¶18 The administrative judge found that the appellant’s post-removal medical

evidence was not sufficient to prove that he had recovered from his psychological

condition. ID at 15. If an appellant who was removed for inability to perform

recovers during the pendency of his Board appeal, the removal no longer

promotes the efficiency of the service and will not be sustained. Morgan v. U.S.

Postal Service, 48 M.S.P.R. 607, 611-12 (1991); Street v. Department of the

Army, 23 M.S.P.R. 335, 342-43 (1984). Such evidence of recovery must be clear

and unambiguous. Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 8 (2013).

¶19 On review, the appellant renews his argument that, even if he did have a

disabling condition, he subsequently recovered from the condition and is entitled

to reinstatement. PFR File, Tab 3 at 30-31. In making this argument, the

appellant appears to be relying on the medical evidence discussed above. Id.

However, this evidence does no more to show that the appellant recovered from

his disqualifying condition than it does to show that he did not suffer from such a

11

condition in the first place. We thus find that it does not constitute clear and

unambiguous evidence of recovery. 8

The appellant failed to prove his affirmative defense of disability discrimination.

¶20 The appellant argued below that the agency regarded him as disabled and

committed disability discrimination by removing him based on his perceived

disability. I-2 IAF, Tab 18 at 8-11, Tab 19 at 7-10. The administrative judge

found that the appellant failed to prove his claim because he did not identify any

comparator employees. ID at 18.

¶21 On review, the appellant argues that he was not required to identify any

comparator employees because the agency’s action was explicitly based on his

perceived disability. PFR File, Tab 1 at 31-32. We agree. I-2 IAF, Tab 18 at

8-11; see generally Schwarz v. City of Treasure Island, 544 F.3d 1201, 1209

(11th Cir. 2008) (noting three distinct theories of disability discrimination:

disparate treatment, disparate impact, and failure to reasonably accommodate). A

disparate treatment claim may be supported not only by evidence of comparator

employees but by other evidence as well, including discriminatory statements by

the employer. Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 26

(2014). In this case, it is undisputed that the appellant’s disability, real or

perceived, was the underlying reason for his removal. I-1 IAF, Tab 6 at 17-18;

see Ellshoff v. Department of the Interior, 76 M.S.P.R. 54, 79 (1997) (the

agency’s charge of inability to work due to depression constituted direct evidence

of disability discrimination). Having been presented with this evidence, the

administrative judge should not have denied the appellant’s disability

discrimination claim solely for lack of comparator evidence. ID at 18.

¶22 Because the agency in this case did not advance an independent,

nondiscriminatory reason for the removal, the only remaining question is whether

8

The appellant does not challenge the penalty determination on review, and, for the

reasons explained in the initial decision, we agree with the administrative judge’s

decision to uphold the penalty. ID at 23-24.

12

the agency’s admittedly discriminatory act was prohibited or permissible, i.e.,

whether the appellant was a “qualified” individual with a disability under

29 C.F.R. § 1630.2(m). 9 See Ellshoff, 76 M.S.P.R. at 79. The appellant is

qualified if he can perform the essential functions of the Customs and Border

Protection Officer position, or a position to which he might be reassigned, with or

without reasonable accommodation. See Coates v. Department of the Navy,

74 M.S.P.R. 362, 368 (1997); 29 C.F.R. § 1630.2(m). For the reasons set forth

above, we find that the appellant’s psychological condition rendered him unable

to perform the essential functions of the Customs and Boarder Protection Officer

position without accommodation. Supra ¶¶ 7-16. Nor has the appellant

articulated any accommodation that would allow him to perform in that position,

given our finding that he does, in fact, suffer from a disqualifying condition. As

explained above, the parties engaged in the interactive process, and the agency

located two positions to which it could have reassigned the appellant, but he

declined the offer of reassignment. Supra ¶ 4 & n.3; I-1 IAF, Tab 6 at 22, 28-29.

Because the appellant has not shown that he was a qualified individual with a

disability, he has not proven his disability discrimination claim. See Henson v.

U.S. Postal Service, 110 M.S.P.R. 624, ¶ 7 (2009).

The agency did not violate the appellant’s due process rights.

¶23 For a tenured public employee facing removal from his position, minimum

due process requires prior notice and an opportunity to respond. Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 546 (1985). Procedural due process

guarantees are not met if the employee has notice of only certain charges or

portions of the evidence and the deciding official considers new and material

information. McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 18 (2014).

Furthermore, to the extent there are viable alternatives to a proposed adverse

9

Regardless of whether the appellant is actually disabled (as claimed by the agency) or

merely perceived as such (as claimed by the appellant), he meets the definition of an

individual with a disability. See 29 C.F.R. § 1630.2(g)(1)(i), (iii).

13

action, due process requires that the employee be afforded an opportunity to

invoke the discretion of a deciding official with the authority to select such

alternatives. Buelna v. Department of Homeland Security, 121 M.S.P.R. 262,

¶ 28 (2014). In this case, the administrative judge found no due process violation

because the agency provided the appellant with all of documentation that the

deciding official relied upon in making his decision, and the deciding official had

the authority to determine whether to sustain the removal or to take alternative

measures. ID at 22-23.

¶24 The appellant disagrees. On review, he argues that he was denied due

process because the agency failed to provide him with all of the medical reports

that the deciding official considered. PFR File, Tab 3 at 10; ID at 21-22

(addressing this argument below). Specifically, he alleges that neither he nor Dr.

Roemersma received Dr. Frederick’s report, the raw MMPI-2 data underlying Dr.

Frederick’s report, or a September 7, 2012 letter from Dr. Prunier clarifying his

earlier letters. PFR File, Tab 3 at 10-11. Regarding Dr. Prunier’s September 7,

2012 letter, the record contains a facsimile confirmation page reflecting

successful transmission of this document to Dr. Roemersma on September 19,

2012. 10 I-1 IAF, Tab 9 at 2. We therefore find that the agency provided Dr.

Roemersma with this document. Regarding the raw MMPI-2 data and Dr.

Frederick’s interpretation of that data, there is no evidence that the deciding

official himself ever received these documents or considered them as part of his

decision. Rather, it appears that the MMPI-2 data and Dr. Frederick’s

interpretation of that data never left the possession of Dr. Blanks, who used this

information to write his report. I-1 IAF, Tab 9 at 4, 28. The appellant has not

demonstrated that due process requires him to be privy not only to the

10

A comparison of that confirmation page with another confirmation page reflecting a

successful facsimile transmission on August 10, 2012, to the same number reassures us

that Dr. Roemersma did, in fact, receive Dr. Prunier’s September 7, 2012 letter. I-1

IAF, Tab 9 at 9. The appellant does not allege that Dr. Roemersma failed to receive the

August 10, 2012 facsimile.

14

information that the deciding official relied upon in making his decision, but also

to the data that went into formulating that information. In any event, the record

contains no evidence that the appellant ever requested these documents either

before or after his removal. Therefore, we find that the agency did not violate the

appellant’s due process rights. See McNab, 121 M.S.P.R. 661, ¶¶ 16-18 (finding

no due process violation or harmful error because the appellant did not request

the materials underlying his removal).

¶25 The appellant also argues that the deciding official had no meaningful

authority to affect the outcome of the removal proceedings. PFR File, Tab 3 at

12-14. He argues that the deciding official felt compelled to defer to Dr.

Prunier’s findings and that his role was essentially reduced to implementing Dr.

Prunier’s recommendation notwithstanding the contrary medical evidence that the

appellant presented to him. Id.

¶26 However, we agree with the administrative judge that the deciding official’s

authority was not limited to rubberstamping the proposal notice and that the

deciding official recognized his role. ID at 20. There is no evidence that the

deciding official lacked authority, or believed that he lacked authority, to

implement a lesser sanction or even not to sustain the charge, if he deemed it

appropriate. In fact, the deciding official actually offered the appellant a transfer

to another position in lieu of removal. I-1 IAF, Tab 6 at 28-29. The deciding

official also testified that, although he gave Dr. Prunier’s evaluation greater

weight, he personally reviewed and considered the subsequent evaluations

provided by the appellant. HT, Day 2 at 83-84. In short, the evidence in this case

does not support a finding that removal in accordance with the proposal notice

was a foregone conclusion.

15

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.

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

16

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.