The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THADDEUS A. KNIGHT, DOCKET NUMBERS
Appellant, AT-0353-14-0002-B-1
AT-0353-14-0897-I-1
v.
DEPARTMENT OF JUSTICE,
Agency. DATE: February 16, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leslie Deak, Esquire, Washington, D.C., for the appellant.
Jeannette Wise, Esquire, and Marisa C. Ridi, Esquire, 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
dismissed both of his restoration appeals that are now before the Board for lack of
jurisdiction. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Both of these appeals pertain to the agency’s alleged denial of the
appellant’s restoration to duty following his partial recovery from a compensable
injury. 2 In a June 2, 2014 appeal, the appellant alleged that the agency arbitrarily
and capriciously denied him restoration following his partial recovery from the
injury. Knight v. Department of Justice, MSPB Docket No. AT-0353-14-0897-I-
1, Initial Appeal File (IAF), Tab 1. Concurrently, the appellant had before the
Board another restoration appeal, which the Board remanded to the Atlanta
Regional Office for a jurisdictional hearing. Knight v. Department of Justice,
MSPB Docket No. AT-0353-14-0002-B-1, Remand File (RF), Tab 1 at 6. The
appeals were joined for the purpose of adjudication. IAF, Tab 7 at 1-2.
2
The Board has recently considered another appeal from this appellant in which he
alleged that the agency failed to restore him after recovery from a compensable injury.
Knight v. Department of Justice, MSPB Docket No. AT-0353-15-0107-I-1, Final Order
(Sept. 21, 2015). The Office of Workers’ Compensation Programs vacated its decision
finding that the appellant was fully recovered on December 17, 2014. Id. at 2.
3
¶3 The appellant was a Special Agent with the Federal Bureau of Investigation
(FBI). He was injured while on duty on April 27, 2001. He was later removed
effective May 21, 2004, for having been in a continuous nonwork status since
November 12, 2002. Petition for Review (PFR) File, Tab 8 at 6 n.2. After he
requested restoration as a partially recovered employee, he was eventually offered
the position of Operational Management Specialist, GS-0301-13, in the agency’s
Miami Division. RF, Tab 11 at 30-31, 96.
¶4 Prior to the agency’s restoration offer, the appellant underwent two separate
medical evaluations. Id. at 77-88. The second of these evaluations, the results of
which the agency received on August 26, 2013, showed his medical condition had
improved and that he was partially recovered. Id. at 78. By September 6, 2013,
the agency had identified several available positions in the Miami Division. Id. at
69. Based on the appellant’s qualifications, the agency determined that he might
be considered for two of those positions: Operational Support Technician, GS-8,
and Intelligence Analyst, GS-14. Id. at 66-67.
¶5 Although the Intelligence Analyst position appeared to be the best
placement opportunity, the selection process for that position included
testing. Id. at 63-64, 67. No testing was being offered at that time due to
budgetary constraints. Id.; RF, Tab 28 at 5-6. The agency thus considered
creating an Assistant Chief Security Officer position at the GS-13, step 10, level.
RF, Tab 11 at 60. The agency proposed a modified position description that
would meet the appellant’s medical restrictions and then sought approval for the
position from FBI Headquarters. Id. at 57, 60. The October 2013 government
shutdown delayed that process. RF, Tab 38, Hearing Compact Disc (HCD)
(testimony of M.H.). Ultimately, the Security Division at Headquarters declined
the request to create a modified position. Id. The agency’s Human Resource
Division, however, recommended that the appellant be offered a position as an
Operational Management Specialist, GS-13, step 10. RF, Tab 11 at 48-51, 53-55.
The agency offered the appellant this position on December 5, 2013. Id. at 45-47.
4
In response, he asked the Office of Workers’ Compensation Programs (OWCP) to
determine whether the position was suitable in light of his restrictions. Id. at
38-39. The position was modified to meet his medical restrictions and re-offered
to him on January 28, 2014. Id. at 30-36. Rather than accept the position, the
appellant asked to be considered for a position as an Equal Employment
Opportunity (EEO) Investigator, which was currently open in the Miami Division,
as a reasonable accommodation under the Rehabilitation Act. Id. at 28. Because
that position is normally a detail assignment given to a Special Agent, and the
appellant’s medical restrictions meant that he did not meet the physical
requirements for the Special Agent position, the agency declined to place him as
an EEO Investigator and again offered him the Operational Management
Specialist position. Id. at 27-28.
¶6 The appellant advanced a different theory of his restoration claim in each of
the two appeals. In Docket No. AT-0353-14-0002-B-1, he argued that the
agency’s denial of restoration was arbitrary and capricious based upon the delay
between OWCP’s finding that he was partially recovered and the agency’s
limited-duty job offer. RF, Tab 1 at 5-6. In Docket No. AT-0353-14-0897-I-1,
he contended that the agency’s offer of the modified Operational Management
Specialist position was an arbitrary and capricious denial of restoration and that
the agency instead should have offered him the EEO Investigator position. IAF,
Tab 1 at 15-17. After a hearing, the administrative judge dismissed the appeals
for lack of jurisdiction. RF, Tab 36, Initial Decision (ID) at 2, 10.
ANALYSIS
¶7 On review, the appellant advances two main arguments. First, he asserts
that the agency acted arbitrarily and capriciously when it offered him the
Operational Management Specialist position. PFR File, Tab 5 at 10-16. He
argues that the administrative judge ignored the undisputed evidence that he was
unqualified for the position, which he maintains “require[s] specialized
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knowledge and skills related to . . . management and organizational theory and
practice.” Id. at 11. He argues that he lacks the necessary skills in human
resources, budgeting, and financial management for the position, and instead, he
offers only law enforcement experience and a law degree. Id. at 12-13. He
argues that the agency created the position to set him up for failure and intended
to remove him from service shortly after his restoration. Id. at 12. He also
asserts that the agency would have discovered that he was unqualified for the
position had it engaged in the interactive process for reasonable accommodation
under the Rehabilitation Act. Id. at 14-15.
¶8 In his second argument, the appellant asserts that the administrative judge
erred when he found that the agency did not breach its obligation to restore him
when it declined to offer him the Assistant Chief Security Officer
position. Id. at 16-24. He argues that the administrative judge erred in finding
that the agency lacked any obligation to create a modified position over the
Security Division’s objections when the Operational Management Specialist
position also was available. Id. at 16 (citing ID at 6-7 n.3). Because the
Operational Management Specialist position is not an appropriate reasonable
accommodation under the Rehabilitation Act, he argues, the agency was required
to offer him the Assistant Chief Security Officer position unless it could
demonstrate that doing so would impose an undue hardship. Id. at 17. He argues
that the administrative judge improperly shifted to him the agency’s burden to
prove that it would have imposed an undue hardship to offer him that
position. Id. at 18-19. Further, the appellant argues that neither the OWCP nor
the Office of Personnel Management requires an agency to modify a position
description before a partially recovered employee is restored to duty. Id. at 20-
21. He asserts that the Assistant Chief Security Officer position could have been
modified, and based on their testimony, the management of the Miami Division
wanted to offer him the position. Id. at 21-22. That the agency denied him the
position, he asserts, was “the essence of capriciousness.” Id. at 22. He further
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asserts that the delay between the Miami Division’s approval of the modified
Assistant Chief Security Officer position and its offer of the modified Operational
Management Specialist position was so lengthy as to be arbitrary and
capricious. Id. at 23-24.
¶9 The appellant is seeking to reframe the issue in Docket No. AT-0353-14-
0897-I-1 by arguing that the agency should have offered him the Assistant Chief
Security Officer position rather than the Operational Management Specialist
position. Docket No. AT-0353-14-0897-I-1 pertains to the agency’s alleged
failure to place him in an EEO Investigator position that was open while he was
seeking restoration. IAF, Tab 1 at 15-17; ID at 3. The administrative judge
eliminated the other issues in the appeal as a sanction after the appellant failed to
comply with an order “to make [his] appeal more definite and certain,” that is, to
clarify the issues. IAF, Tab 4 at 2-5, Tab 7 at 2, Tab 8 at 2. The appellant has
raised a new issue on review by attempting to shift focus from the agency’s
alleged failure to offer him the EEO Investigator position to the alleged failure to
offer him the Assistant Chief Security Officer position. The Board will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). Such an argument also would fail for the
same reason the administrative judge cited below; namely, a partially recovered
employee may appeal only from an agency’s denial of restoration and only on
grounds that such a denial was arbitrary and capricious. Latham v. U.S. Postal
Service, 117 M.S.P.R. 400, ¶ 10 (2012); ID at 9.
¶10 As for the appellant’s allegation that the agency’s delay in placing him was
arbitrary and capricious, which the administrative judge addressed in Docket No.
AT-0353-14-0002-B-1, we find it reasonable that the agency sought a second
medical determination. RF, Tab 12 at 77-88; HCD (testimony of M.H.); Hardy v.
U.S. Postal Service, 104 M.S.P.R. 387, ¶¶ 20-21 (finding that the agency’s
7
decision to await a final determination from OWCP was not arbitrary and
capricious where the agency was faced with conflicting assessments of the
appellant’s abilities, and there was no indication that OWCP had made a final
determination regarding his restrictions), aff’d, 250 F. App’x 332 (Fed. Cir.
2007). The agency received the second determination, wherein the appellant was
found to be partially recovered, on August 26, 2013. RF, Tab 11 at 76, 88. That
date is the proper starting point from which to consider whether the agency’s
search for a restoration position took a reasonable amount of time. The record
shows that the agency continuously sought to find positions within the appellant’s
medical restrictions between August 26, 2013, and December 5, 2013, the date
upon which the agency first offered him the Operational Management Specialist
position. Id. at 45-47, 53-55, 57-58, 60, 62-64, 66-72, 74.
¶11 The appellant’s assertion that he is unqualified for the Operational
Management Specialist position is a post hoc rationalization for not accepting the
restoration position that he was offered. The record does not show that he ever
raised these concerns with the agency or even developed this argument before the
administrative judge. Conversely, he did raise concerns with the OWCP
regarding the proffered position’s suitability in light of his medical restrictions.
RF, Tab 11 at 38-39. The agency addressed these concerns by modifying the
position description. Id. at 30-36. Rather than accept the modified position, the
appellant instead sought to be placed as an EEO Investigator, a position for which
he was not physically qualified. Id. at 25-28. Although he now argues that the
Operational Management Specialist position requires specialized knowledge and
experience that he lacks, PFR File, Tab 5 at 10-14, the agency reasonably
believed that he could be assigned duties for which he was well qualified. The
appellant is a former New York City police officer and FBI Special Agent, and he
graduated from law school. HCD (testimony of M.H.). As the agency’s
Classification Specialist explained, the position description includes “a range of
complex functions related to the administrative, investigative, and security
8
responsibilities of the office” and “describes a wide range of duties and will allow
management a great deal of flexibility when making work assignments.” RF, Tab
11 at 55; see id. at 33-36.
¶12 Finally, the appellant argues that the agency failed to treat him substantially
the same as it would have treated a disabled employee under the Rehabilitation
Act. See 5 C.F.R. § 353.301(d). He argues that the agency failed to engage in the
interactive process required by the Rehabilitation Act when offering the
Operational Management Specialist position. PFR File, Tab 5 at 10-12;
see 29 C.F.R. § 1630.2(o)(3). We find that the agency’s efforts to assist the
appellant to find a job within his medical limitations was neither arbitrary nor
capricious. Instead, the evidence shows that the agency acted in good faith
during the interactive reasonable accommodation process. See generally Brown
v. Department of the Interior, 121 M.S.P.R. 205, ¶¶ 19-23 (2014) (finding that an
employee failed to establish that the agency did not reasonably accommodate her
disability where the agency offered her two suitable positions); Okleson v. U.S.
Postal Service, 90 M.S.P.R. 415, ¶ 13 (2001) (finding that a detail did not
constitute a funded vacant position within the meaning of Equal Employment
Opportunity Commission regulations).
¶13 He likewise asserts that the administrative judge failed to require the
agency to show that placing him in the Assistant Chief Security Officer position,
with or without modifications, would impose an undue hardship. PFR File, Tab
5 at 17-21; see 29 C.F.R. § 1630.9(a). The appellant filed a discrimination
complaint on August 26, 2013, which appears to be ongoing, and some of the
issues in that complaint overlap with the matters addressed in these appeals. RF,
Tab 11 at 14, 16-17, 19-20. However, this is not a mixed-case appeal, and as
such, the Board lacks jurisdiction over any claim of disability discrimination in
the absence of an otherwise appealable action. Latham, 117 M.S.P.R. 400, ¶ 58.
Although an appellant’s disability discrimination claim may bear on the issue of
arbitrariness and capriciousness, Latham, 117 M.S.P.R. 400, ¶ 58 & n.27, the
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administrative judge did not need to reach that issue, ID at 6-7 n.3. Agencies
may accommodate an employee’s disability through means such as modifying or
adjusting the duties of the position at issue, or by reassigning the employee to a
vacant position whose duties the employee can perform. Smith v. U.S. Postal
Service, 113 M.S.P.R. 1, ¶ 6 (2009). Here, the agency offered the appellant a
modified Operational Management Specialist position, which satisfied its
obligations under 5 C.F.R. § 353.301(d). Indeed, after the appellant voiced his
concerns as to whether the position was suitable in light of his medical
restrictions, RF, Tab 11 at 38-39, the agency further modified the position, id. at
30-36. The agency had no obligation to modify the Assistant Chief Security
Officer position that the appellant wanted over its Security Division’s objections
when another viable option was available. Accordingly, the appellant’s
arguments are unavailing, and we affirm the initial decision that dismissed his
appeals for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the Federal Circuit. The Merit
Systems Protection Board neither endorses the services provided by any attorney
nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.