The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE MCDERMOTT, DOCKET NUMBER
Appellant, SF-0752-13-0633-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: October 13, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Lance McDermott, Seattle, Washington, pro se.
Steven B. Schwartzman, Esquire, Seattle, Washington, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his placement on enforced leave. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant holds the position of Maintenance Mechanic. Initial Appeal
File (IAF), Tab 2 at 1, Tab 21 at 10-13. Among other things, the physical
requirements of the position include the ability to distinguish colors. IAF, Tab 21
at 13. In February 2013, the agency requested that the appellant submit medical
documentation relating to his vision after he claimed he was unable to
differentiate some colors. Id. at 14. Subsequently, the appellant provided
medical documentation from an optometrist, Dr. A.L., indicating that the
appellant “exhibits red green colorblindness.” Id. at 15.
¶3 In March 2013, the agency asked the appellant if he wanted to request
accommodation for his vision, but he informed the agency that he did not want to
participate in the reasonable accommodation process. Id. at 17. The agency
again attempted to engage the appellant in the reasonable accommodation process
in April 2013, expressing concern that his inability to distinguish colors could
pose a safety hazard for himself and others, particularly concerning the wiring of
equipment. Id. at 18. The appellant did not respond. See id. at 18, 20.
¶4 In May 2013, the agency’s Manager, Maintenance Operations, D.M.,
proposed placing the appellant on enforced leave because the agency was “unable
to determine that [he] can work safely due to [his] color blindness and repeated
attempts to engage [him] have been unsuccessful.” Id. at 20-21. The proposal
again informed the appellant that he could request light duty or reasonable
accommodation. Id. at 20. After the appellant failed to respond within the time
provided for doing so, the agency’s Manager, Maintenance Lead, J.N., issued a
decision placing the appellant on enforced leave. Id. at 22-24. The decision
letter noted that the action was a result of the appellant’s refusal to interact with
management concerning his vision and that he still could request light duty or
reasonable accommodation. Id. at 22.
¶5 The appellant filed a Board appeal, challenging his placement on enforced
leave. IAF, Tab 2 at 3, 5. After holding the requested hearing, the administrative
3
judge affirmed the agency’s action, as modified. IAF, Tab 52, Initial Decision
(ID). She found that the agency met its burden concerning proof of the charge,
nexus, and penalty, ID at 9-13, 21-23, and that the appellant failed to prove his
affirmative defenses, ID at 13-21. However, the administrative judge modified
the start of the enforced leave by 8 days to account for the agency improperly
shortening the appellant’s statutory right to advance notice by that amount. ID
at 23-25; see 5 U.S.C. § 7513(b)(1). The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 1. The agency has not filed a response.
The agency met its burden of proving the charge but remand is required for
further adjudication of two of the appellant’s affirmative defenses.
¶6 The appellant presents a number of allegations that implicate the
administrative judge’s fact findings regarding the agency’s charge and his
affirmative defenses. 2 Id. at 7-31. Because the appellant is pro se, we have
construed his petition liberally. See Melnick v. Department of Housing & Urban
Development, 42 M.S.P.R. 93, 97 (1989) (discussing that a pro se appellant’s
pleadings are to be liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990)
(Table). We find that the agency proved its charge. However, we also find that
the administrative judge failed to address the appellant’s affirmative defense of
reprisal for engaging in protected union activity. We further find that the
appellant’s affirmative defense of reprisal for engaging in equal employment
opportunity (EEO) activity should be reconsidered in light of our recent decision,
Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).
2
Because the appellant has presented no substantive arguments concerning nexus or
penalty, we will not revisit the administrative judge’s well-reasoned findings as to the
same. ID at 21-23; see Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (holding that there is no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that she considered
the evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility); cf. Brown v. Department of the Interior, 121 M.S.P.R. 205,
¶ 18 (2014) (finding that the traditional mitigating factors applicable to conduct-based
adverse actions do not apply to those based on a physical inability to perform).
4
The agency proved its charge.
¶7 An agency’s placement of an employee on enforced leave for more than
14 days constitutes an appealable suspension within the Board’s jurisdiction. See
Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014); see also 5 U.S.C.
§ 7512(2). To sustain such a suspension, the agency must prove by preponderant
evidence that the charged conduct occurred, a nexus exists between the conduct
and the service efficiency, and the penalty is reasonable. Abbott, 121 M.S.P.R.
294, ¶ 10.
¶8 The agency did not provide a label for its charge, but described the basis of
its action as its inability to determine whether, in light of the appellant’s medical
condition of colorblindness, he could perform the essential functions of his
position in a safe manner, with or without accommodation. IAF, Tab 21 at 22;
see Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202 (1997) (noting that an
agency is not required to affix a label to a charge, but may simply describe
actions that constitute misbehavior in narrative form in its charge letter). We thus
determine that the agency was required to prove that it was unable to determine
whether there was a high probability, given the nature of the work involved, that
the appellant’s condition might result in injury to himself or others. Cf. Miller v.
Department of the Army, 121 M.S.P.R. 189, ¶ 11 (2014) (providing that if an
appellant does not occupy a position subject to medical standards, physical
requirements, or medical evaluation programs, one way an agency may prove a
charge of physical inability is by proving a high probability, given the nature of
the work involved, that the medical condition may result in injury to the appellant
or others). Although the Board will consider whether a reasonable
accommodation exists that would enable an employee to safely and efficiently
perform the core duties of the position, the employee must cooperate in the
agency’s reasonable accommodation efforts. See id. ¶¶ 11-12, 15, 19.
¶9 The appellant alleges that the administrative judge failed to properly
consider the fact that his colorblindness existed when he was hired in 1996 and
5
never caused an accident. PFR File, Tab 1 at 7-8. However, it is undisputed that
his position description requires the ability to distinguish colors to perform
electrical maintenance work. IAF, Tab 21 at 10-13. It also is undisputed that the
appellant has difficulties distinguishing between some colors. The appellant’s
optometrist diagnosed him with red/green colorblindness, id. at 15, while the
appellant testified that he mixes up greens, browns, blues, and purples, Hearing
Compact Disc (HCD) (testimony of the appellant).
¶10 The agency repeatedly tried to engage the appellant about associated safety
concerns, but he refused to respond. See, e.g., IAF, Tab 21 at 17-21.
Accordingly, we agree with the administrative judge’s conclusion that the agency
proved its charge. ID at 11. Although the appellant may have performed in his
position for many years without any accidents, the agency’s concerns remained
legitimate. See Miller, 121 M.S.P.R. 189, ¶ 11. The deciding official testified
that the appellant’s inability to distinguish colors posed a risk that he might
connect electrical wires incorrectly, which could result in fatal injuries. HCD.
The agency was unable to determine that the appellant could continue performing
his duties safely and he refused to cooperate with the agency’s inquiries as to
the same.
The administrative judge failed to address the appellant’s affirmative
defense of reprisal for engaging in protected union activity.
¶11 When an appellant raises an affirmative defense in an appeal either by
checking the appropriate box in an appeal form, identifying an affirmative
defense by name, such as “race discrimination,” “harmful procedural error,” etc.,
or by alleging facts that reasonably raise such an affirmative defense, the
administrative judge must address the affirmative defense(s) in any close of
record order or prehearing conference summary and order. Gath v. U.S. Postal
Service, 118 M.S.P.R. 124, ¶ 11 (2012). If an appellant expresses the intention to
withdraw such an affirmative defense, the administrative judge must, at a
minimum, in the close of record order or prehearing conference summary and
6
order, identify the affirmative defense, explain that the Board will no longer
consider it when deciding the appeal, and give the appellant an opportunity to
object to the withdrawal of the affirmative defense. Id.
¶12 Here, the appellant presented arguments concerning, inter alia, his acting as
a union steward, representing fellow agency employees. E.g., IAF, Tab 8 at 16
of 103, Tab 23 at 4-5, 18; PFR File, Tab 1 at 16-18. We find that these
submissions, when interpreted liberally, constitute an allegation that the
appellant’s enforced leave was reprisal for his engaging in protected union
activity. See Melnick, 42 M.S.P.R. at 97. Further, we found nothing in the record
indicating that the appellant intended to withdraw that affirmative defense.
¶13 In notifying the appellant of his burden of proof, the administrative judge
included a section titled “Retaliation for Engaging in EEO and other Protected
Activity.” IAF, Tab 38 at 9. However, the corresponding explanation exclusively
referred to EEO activity. Id. at 9-11. The initial decision similarly includes a
section that refers to the appellant’s “prior EEO or other protected activity.” ID
at 13. But again, the corresponding analysis addresses EEO activity, without
mention of union activity. ID at 13-16.
¶14 Because the administrative judge failed to explicitly address the appellant’s
allegation of reprisal for engaging in protected union activity as a distinct
affirmative defense, we must remand for further adjudication. See
Gath, 118 M.S.P.R. 124, ¶ 12 (finding that retaliation for EEO activity and union
activity are separate affirmative defenses, and the failure to address one requires
remand). To prove his affirmative defense of retaliation for engaging in union
activity, on remand, the appellant must show that: (1) he engaged in protected
activity; (2) the accused official knew of the activity; (3) the adverse action under
review could have been retaliation under the circumstances; and (4) there was a
genuine nexus between the alleged retaliation and the adverse action). See
7
Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) 3;
Campo v. U.S. Postal Service, 96 M.S.P.R. 418, ¶ 12 (2004).
The administrative judge should reconsider the appellant’s affirmative
defense of EEO reprisal.
¶15 After the administrative judge issued the initial decision in this appeal, we
issued a decision in Savage, 122 M.S.P.R. 612, clarifying the proper standard for
allegations of retaliation for engaging in protected EEO activity. An appellant
may establish this retaliation claim using direct evidence or any of three types of
circumstantial evidence: a convincing mosaic of evidence from which a
discriminatory intent may be inferred; evidence of disparate treatment of
similarly situated comparators; or evidence that the agency’s stated reason is not
worthy of credence but rather a pretext for discrimination. Id., ¶¶ 42-43. A
convincing mosaic can be inferred from evidence of suspicious timing,
ambiguous statements, behavior towards and comments directed at other
protected employees, and other relevant “bits and pieces” of evidence. Id. ¶ 42
(quoting Troupe v. May Department Stores Company, 20 F.3d 734, 736-37 (7th
Cir. 1994)). If an appellant shows by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action,
violating 42 U.S.C. § 2000e-16, the Board will inquire whether the agency has
3
We recently issued a decision discussing the standards for adjudicating an affirmative
defense of retaliation for engaging in union activity. See Alarid v. Department of the
Army, 122 M.S.P.R. 600 (2015). In doing so, we noted that the statutory changes of the
Whistleblower Protection Enhancement Act of 2012 significantly narrowed the scope of
cases to which the Warren standard applies. Id., ¶ 15 & n.7 (referencing Warren,
804 F.2d at 656-58). Because the appellant’s employer is the U.S. Postal Service, the
Warren standard still applies in this case, for purposes of the appellant’s allegation of
retaliation for engaging in union activity. See Mack v. U.S. Postal Service, 48 M.S.P.R.
617, 621-22 (1991) (finding that U.S. Postal Service employees are subject to the
Warren standard for retaliation affirmative defenses, rather than the contributing factor
standard, because the U.S. Postal Service is not an “agency” as defined under 5 U.S.C.
§ 2302(a)(2)(C) and its employees may not bring an individual right of action under
5 U.S.C. § 1221); Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 49-51 (effectively limiting the
scope of Warren and Mack by establishing a distinct standard for an affirmative defense
of retaliation for engaging in EEO activity).
8
shown by preponderant evidence that it still would have taken the contested
action in the absence of the discriminatory or retaliatory motive. Id., ¶¶ 49-51. If
the agency meets that burden, its violation will not require reversal of the action.
Id., ¶ 51.
¶16 The administrative judge found that management was aware of the
appellant’s protected activity, which took place in 2012 and 2013. ID at 15; see,
e.g., IAF, Tab 26 at 40. However, he failed to consider whether this timing was
part of a convincing mosaic of discriminatory intent. See ID at 15. Further,
because Savage was issued after the initial decision in this case, the
administrative judge’s instructions to the appellant regarding proof of his
affirmative defense of EEO reprisal did not provide the appellant with notice of
the correct standards. IAF, Tab 38 at 9-11; see Milner v. Department of
Justice, 77 M.S.P.R. 37, 46 (1997) (finding that an appellant did not receive a fair
and just adjudication of an affirmative defense where there was no indication the
administrative judge apprised him of the applicable burdens of proof or of the
types of evidence required to meet his burden). For example, the administrative
judge advised the appellant that his proof could consist of elements of his prima
facie case of reprisal under the burden-shifting framework applicable to motions
for summary judgment; however, the prima facie case has no application to the
Board’s adjudication of EEO reprisal claims. See IAF, Tab 38 at 10; see
Savage, 122 M.S.P.R. 612, ¶ 46 (reflecting that the summary judgment standards
for Title VII cases do not apply to Board appeals).
¶17 On remand, the administrative judge should instruct the parties of the
standards of proof applicable to a claim of EEO reprisal pursuant to Savage, and
provide them with an opportunity to further develop the evidence. The
administrative judge’s new decision should incorporate the Savage standard for
analyzing the appellant’s allegation of reprisal for EEO activity.
9
The appellant failed to prove any other affirmative defense.
¶18 Concerning his other affirmative defenses, the appellant’s petition presents
varying allegations of agency impropriety, PFR File, Tab 1 at 8-22, 27-29, but
none provide a basis for reversing his enforced leave. For example, the appellant
alleges that the agency violated the Family and Medical Leave Act of 1993
(FMLA), Americans with Disabilities Act (ADA), and Privacy Act by requesting
and discussing documentation concerning his medical condition. Id. at 12-14. In
addition, he argues that he was not responsible for responding to the agency’s
offers regarding reasonable accommodation. Id. at 15-16. According to the
appellant, he had a constitutional right to remain silent regarding his vision issues
and the proposed enforced leave, and the agency’s concerns about his condition
amounted to harassment. Id. at 19-21.
¶19 We agree with the administrative judge’s finding that the agency requested
medical documentation only after the appellant reported difficulties
distinguishing colors, which raised safety concerns and questions about his ability
to perform job duties. ID at 16-18; see, e.g., IAF, Tab 21 at 14. The appellant
has failed to show how those inquiries and discussions exceeded that which is
permissible. See 5 U.S.C. § 552a(b)(1) (containing an exception to the general
prohibition on disclosure under the Privacy Act for disclosures to agency
employees who require the records at issue to perform their duties); see
also 42 U.S.C. § 12112(d)(4)(A) (a disability-related inquiry is permissible under
the ADA if “job-related and consistent with business necessity”); Archerda v.
Department of Defense, 121 M.S.P.R. 314, ¶¶ 29-30 (2014) (holding that
generally, a disability-related inquiry or medical examination may be job-related
and consistent with business necessity if an employer has a reasonable belief,
based on objective evidence, that: (1) an employee’s ability to perform essential
job functions will be impaired by a medical condition; or (2) an employee will
pose a significant risk of substantial harm to self or others that cannot be
10
eliminated by reasonable accommodation); 29 C.F.R. §§ 825.500(g)(1) 4
(permitting an agency to provide medical restrictions to supervisors and managers
without violating the FMLA), 1630.14(c)(1)(i) (permitting an employer to provide
medical restriction to supervisors and managers without violating the ADA).
¶20 We also agree with the administrative judge’s finding that the appellant’s
request that the agency cease its use of a newly implemented color coding system
due to his colorblindness was a request for accommodation, despite the
appellant’s assertion on review that he did not request or want accommodation.
ID at 17; HCD (testimony of the deciding official); see Paris v. Department of the
Treasury, 104 M.S.P.R. 331, ¶ 17 (2006) (finding that an employee need only let
his employer know in general terms that he needs accommodation for a medical
condition). Accordingly, while the appellant generally contends that he had a
right to be left alone, he actually was obligated to cooperate in the interactive
process for reasonable accommodation. See Rosario-Fabregas v. Department of
the Army, 122 M.S.P.R. 468, ¶¶ 18-19 (2015); Brown, 121 M.S.P.R. 205, ¶ 22;
Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 16 (2010). Finally, we agree
with the administrative judge’s finding that the appellant failed to prove
retaliation for whistleblowing activity. ID at 19-21. The administrative judge
found that, even if his disclosures were protected and management knew of them,
the appellant failed to present any connection between his protected activity and
his placement on enforced leave. ID at 20-21; see Mack, 48 M.S.P.R. at 621-22
(holding that U.S. Postal Service employees are subject to a higher standard of
proof for whistleblower reprisal affirmative defenses, requiring that they show,
inter alia, that there was a genuine nexus between the alleged retaliation and the
adverse action). The appellant has presented nothing on review warranting a
contrary conclusion.
4
As a U.S. Postal Service employee, the appellant is entitled to FMLA leave under the
provisions of 29 U.S.C. § 2601 and 29 C.F.R. part 825. Young v. U.S. Postal Service,
79 M.S.P.R. 25, 35 n.4 (1998).
11
The administrative judge exercised proper discretion in excluding evidence
and witnesses.
¶21 The appellant asserts that the administrative judge affected his fundamental
rights and curtailed his ability to present his case by excluding some of his
evidence and witnesses. PFR File, Tab 1 at 4. He also asserts that the
administrative judge erred by allowing the agency to submit some of the same
evidence that he submitted. Id. at 4-5; compare, e.g., IAF, Tab 21 at 10-14, with
IAF, Tab 2 at 14 of 253, Tab 31 at 14-15. We find no merit in either assertion.
¶22 An administrative judge has broad discretion to regulate the course of the
hearing and to exclude evidence and witnesses that have not been shown to be
relevant, material, and nonrepetitious. Thomas v. U.S. Postal
Service, 116 M.S.P.R. 453, ¶4 (2011); Franco v. U.S. Postal
Service, 27 M.S.P.R. 322, 325 (1985); 5 C.F.R. § 1201.41(b)(8), (10). To obtain
reversal of an initial decision on these grounds, the petitioning party must show
that a relevant witness or evidence, which could have affected the outcome, was
disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4; Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981) (stating that an administrative judge’s
procedural error is of no legal consequence unless it is shown to have adversely
affected a party’s substantive rights).
¶23 The administrative judge did exclude a number of documents the appellant
filed below as evidence, concluding that they were irrelevant to his appeal. IAF,
Tab 38 at 11-12 (referencing the appellant’s exhibits 15, 39-49, 56, 61, 66-70,
72-76, 78, 90); see IAF, Tab 2 at 90-91, 202-53 of 253, Tab 8 at 64-71, 87-88,
119-70, 172-89, 193-203, Tab 13 at 27-28. She also excluded transcripts from
conversations the appellant recorded because he admitted lacking permission to
record the conversations in potential violation of state law, and because she
deemed the transcripts untrustworthy since they were created by the appellant
rather than a third party. IAF, Tab 38 at 12 (referencing the appellant’s exhibits
101-02); see IAF, Tab 26 at 100-14; Wash. Rev. Code § 9.73.030(1)(b). Finally,
12
the administrative judge denied the appellant’s request to call two of his proposed
witnesses because she found no relevance to their proffered testimony. IAF,
Tab 38 at 11; see IAF, Tab 23 at 4.
¶24 Although the appellant summarily claims that the aforementioned evidence
and witnesses were excluded improperly and that they “would have changed the
results of the hearing,” he failed to present any substantive argument in support
of that assertion. PFR File, Tab 1 at 4; Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that
is not prejudicial to a party’s substantive rights provides no basis for reversal of
an initial decision). Without any explanation to the contrary, much of the
excluded evidence appears unrelated to the appellant. See, e.g., IAF, Tab 2
at 90-91, 210-13 of 253, Tab 8 at 64-71. Other evidence is more clearly related to
the appellant, but nevertheless appears unrelated to the instant appeal. See, e.g.,
IAF, Tab 2 at 202-09, Tab 8 at 119-30. Similarly, the relevance of the two
excluded witnesses to the appellant’s appeal is not apparent. IAF, Tab 23 at 4.
¶25 In the absence of any explanation why the excluded evidence and witnesses
are relevant and how their exclusion affected the outcome of his appeal, we are
unable to find any merit to the appellant’s claim. We also find unpersuasive his
assertion that the administrative judge erred by allowing the agency to submit
evidence that was similar or duplicative of his own. The appellant has not shown
any resulting harm.
The administrative judge properly denied the appellant’s request to consolidate
his Board appeal with his EEO complaints.
¶26 In his petition, the appellant seems to argue that the administrative judge
erred by not consolidating his Board appeal with his EEO complaints. PFR File,
Tab 1 at 5-6; see IAF, Tab 12 at 4-5. We disagree.
¶27 Under 5 U.S.C. § 7702(a)(1), in the case of any employee who has been
affected by an action that he may appeal to the Board, and who alleges that “a
basis for the [appealable] action” was prohibited discrimination, the Board shall
13
decide “both the issue of discrimination and the appealable action.”
Under 5 C.F.R. § 1201.36, an administrative judge may consolidate or join two or
more appeals under certain circumstances.
¶28 The appellant appears to confuse the aforementioned legal concepts, which
are distinct and unrelated. The administrative judge acknowledged the Board’s
responsibilities under 5 U.S.C. § 7702(a)(1) and adjudicated the appellant’s
allegations accordingly, ID at 13-21, but the appellant argues that the
administrative judge should have adjudicated his pending EEO complaints at the
same time. Citing the Board’s regulation for consolidation and joinder, 5 C.F.R.
§ 1201.36, the appellant requested that the administrative judge consolidate his
Board appeal and EEO complaints. IAF, Tab 20; see IAF, Tab 12 at 4-5.
According to the appellant, the claims were “inextricably intertwined.” PFR File,
Tab 1 at 5. However, nothing in 5 C.F.R. § 1201.36 provides for the
consolidation or joinder of a Board appeal with an appeal from another tribunal.
See generally Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 9 (2005)
(finding that nothing in the plain language of sections 7512, 7513(d), and
7702(a)(1) of title 5 suggests that the Board has jurisdiction over otherwise
nonappealable actions when those actions are allegedly “inextricably intertwined”
with otherwise appealable actions). Therefore, we discern no error in the
administrative judge’s conclusion that she could not consolidate the appellant’s
EEO complaints with his Board appeal.
The administrative judge properly denied the appellant’s request to disqualify the
agency’s representative.
¶29 The appellant argues that the administrative judge erred in failing to grant
his request to disqualify the agency’s attorney. PFR File, Tab 1 at 6-7; see IAF,
Tab 12 at 3-4, Tab 38 at 14. We disagree.
¶30 The Board’s regulations allow parties wide discretion in choosing their
representatives, subject only to disqualification for conflict of interest or position.
Walton v. Tennessee Valley Authority, 48 M.S.P.R. 462, 469 (1991); 5 C.F.R.
14
§ 1201.31(a)-(c). Apart from these bases for disqualification, a party’s choice of
representative is personal to him and, similarly, an agency may choose to be
represented by an attorney or a nonattorney, at its discretion. Walton,
48 M.S.P.R. at 469.
¶31 The appellant seems to suggest that disqualification was required because
the agency’s attorney filed evidence relating to the appellant’s military record and
Board jurisdiction that the appellant was able to rebut with evidence of his own.
PFR File, Tab 1 at 6-7. He also seems to suggest that disqualification was
required because the agency was obligated to use a nonattorney representative for
his Board appeal. Id. at 6-7. However, the appellant has not shown or even
alleged that the agency’s representative had a conflict of interest or position. Nor
has he shown that the agency’s representative engaged in contumacious conduct
warranting his exclusion from the proceedings. See 5 C.F.R. §§ 1201.31(d),
.43(d) (permitting the exclusion of a party’s representative for contumacious
conduct or conduct prejudicial to the administration of justice); Black’s Law
Dictionary 337 (9th ed. 2009) (defining “contumacious conduct” as “willful
disobedience of a court order”). Therefore, his arguments that the agency’s
representative should have been disqualified fail.
The appellant’s remaining arguments on review also fail.
¶32 The appellant seems to allege that the agency acted improperly when he
requested a return to work following a medical certification that he was fit for
duty. PFR File, Tab 1 at 22-26. However, the propriety of placement on
enforced leave and the continuation of enforced leave are distinct matters. See
Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1380 (Fed. Cir. 2007).
For instance, if an employee on enforced leave comes forward with evidence that
he has become fit for duty, that employee should be immediately returned to duty;
but such evidence does not require reversal of the enforced leave in its entirety
when it was initiated properly based on the information available to the agency at
the time it made that decision. See Norrington v. Department of the
15
Air Force, 83 M.S.P.R. 23, ¶¶ 8-9 (1999). In addition, the certification at issue is
signed by a physician’s assistant at a family medical practice. IAF, Tab 10 at 38-
41, Tab 51 at 2-3. It provides that the appellant has medical conditions, including
colorblindness, but he has no medical restrictions. IAF, Tab 10 at 39. However,
that same certification alludes to an inability to work on colored wiring. Id.
Therefore, as the administrative judge properly found, the appellant has identified
no basis by which this certification could be used to compel the agency to return
him to duty without addressing the underlying concern that remains, the impact of
his colorblindness on his ability to perform the essential functions of his position
in a safe and compliant manner. ID at 12-13.
¶33 Although we have considered the appellant’s remaining arguments, such as
his allegation that the agency has no official policy concerning enforced leave
and his request for nominal, compensatory, and punitive damages, e.g., PFR File,
Tab 1 at 26-27, we are not persuaded.
ORDER
¶34 For the reasons discussed above, we vacate the initial decision and remand
this case to the regional office for further adjudication in accordance with this
Remand Order. On remand, the administrative judge should apprise the appellant
of the different burdens of proof he must meet to prove his affirmative defenses
of retaliation for protected union activity and retaliation for protected EEO
activity; afford the appellant an opportunity for discovery on these issues; and
hold a supplemental hearing to address these two affirmative defenses, if
requested. See Savage, 122 M.S.P.R. 612, ¶ 46 (observing that the Board has no
authority to grant summary judgment in light of an appellant’s right to a hearing);
Alarid, 122 M.S.P.R. 600, ¶ 18 (2015) (advising an administrative judge to hold a
supplemental hearing on union reprisal and other affirmative defenses if
requested); Gath, 118 M.S.P.R. 124, ¶ 13 (holding the same with regard to a
union reprisal affirmative defense). The administrative judge must issue a new
16
initial decision that addresses those two affirmative defenses and their effect on
the outcome of the appeal, if any, giving appropriate consideration to any
additional relevant evidence developed on remand. 5 See Alarid, 122 M.S.P.R.
600, ¶ 18; Gath, 118 M.S.P.R. 124, ¶ 13. If the appellant does not prevail on
either of those two affirmative defenses on remand, the administrative judge may
adopt her prior findings concerning the agency’s charge, nexus, and the
reasonableness of the penalty, and the appellant’s remaining affirmative defenses,
in her remand initial decision. See Alarid, 122 M.S.P.R. 600, ¶ 18;
Gath, 118 M.S.P.R. 124, ¶ 13.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
5
The administrative judge should reconsider the previously excluded evidence, to the
extent that it may pertain to the affirmative defenses requiring further adjudication.
IAF, Tab 2 at 214-52 of 253, Tab 38 at 11-12.