The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LESLIE A. HARDEN, DOCKET NUMBER
Appellant, DA-0752-15-0597-I-1
v.
DEPARTMENT OF VETERANS DATE: January 6, 2017
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leslie A. Harden, Dallas, Texas, pro se.
Letha Miller, Denver, Colorado, 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 her removal. 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 erroneous interpretation of statute or reg ulation or the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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, 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).
¶2 The agency imposed the appellant’s removal on the basis of one charge of
excessive absence. Initial Appeal File (IAF), Tab 5 at 28 -31. She filed the
instant appeal challenging her removal and requested a hearing. IAF, Tab 1.
After holding the appellant’s requested hearing, the administrative judge
sustained her removal, finding that she had failed to establish her affirmative
defense of disability discrimination based upon the agency’s alleged failure to
accommodate her. IAF, Tab 22, Initial Decision (ID). The appellant has filed a
3
petition for review, 2 and the agency has responded. Petition for Review (PFR)
File, Tabs 1, 5.
¶3 On review, the appellant challenges the agency’s charge by stating that the
agency prevented her from identifying a date when she could have returned to
work and from proving that she had identified such a date. 3 PFR File,
Tab 1 at 11. Despite these assertions, the appellant still has not shown that there
was a date when she could have resumed a regular work schedule .
IAF, Tab 5 at 51-68. Thus, even if the agency interfered with the appellant’s
ability to identify her own anticipated return date at the time, such a date would
not have been supported by the evidence. Accordingly, we agree that the agency
proved its charge of excessive absences because the appellant was absent due to
illness such that the agency’s approval or disapproval of leave was immaterial;
the absences continued beyond a reasonable time; the agency warned her that an
2
Although the appellant’s petition for review presents a timeliness issue, we find that
the appellant has shown good cause for the delay in filing. See 5 C.F.R. §§ 1201.12,
1201.114(f) (the Board will waive its filing deadline only upon a showing of good cause
for the delay in filing); Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201,
¶ 5 (2014) (to establish good cause for an untimely filing, a party must show that he
exercised due diligence or ordinary prudence under the particular circumstances of the
case). Under the circumstances set forth in the appellant’s statement, signed under
penalty of perjury, we find that the appellant, an e-filer, exercised due diligence under
the particular circumstances present in this case. See PFR File, Tab 1 at 3, 6-10, 14-15,
Tab 3 at 4. Therefore, we find that the appellant has shown good cause for the delay in
filing. See Salazar v. Department of Army, 115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing
a filing delay when the appellant alleged that he attempted to electronically file his
petition for review on time and the e-Appeal system showed that the appellant had, in
fact, accessed the system prior to the date that his petition was due and once he became
aware that his petition had not been filed, the appellant contacted the Board and
submitted a petition for review that included an explanation of his untimeliness).
3
The appellant has submitted evidence on review in the form of correspondence with an
attorney. PFR File, Tab 1 at 22-62. We have not considered this evidence because it is
not new in that it was not unavailable when the record was closed below despite the
party’s due diligence and it is not material in that the appellant has not explained why
she believes that it warrants an outcome different from that of the initial decision .
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
§ 1201.115(d).
4
adverse action could be taken unless she could become available for duty on a
regular full-time or part-time basis; and the position needed to be filled on a
regular, full-time or part-time basis. ID at 4-9; IAF, Tab 5 at 51-68, 251;
see Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 31 (2014) (identifying
the elements of proof for a charge of excessive absences).
¶4 The appellant next asserts that the agency treated her unfairly, including by
not allowing her to adjust her schedule or to telework and that the administrative
judge incorrectly found that she failed to participate in the reasonable
accommodation process. PFR File, Tab 1 at 4, 12. The administrative judge
found that the appellant did not submit evidence that she could perform the
essential functions of her position by teleworking full time and that, to the
contrary, agency officials testified that her position required personal interaction
that was not suitable for telework. ID at 12. She also noted that the proposing
official testified that he would have considered a modified schedule for the
appellant. ID at 6; IAF, Tab 21, Hearing Compact Disc. However, she found
that, although the appellant verbally requested an accommodation, she failed to
specify the type of accommodation that she needed and did not submit
documentation in support of her request. ID at 11-12; IAF, Tab 5 at 47-49.
¶5 We agree with the administrative judge that the appellant failed to establish
her affirmative defense of disability discrimination because she did not show that
she is a qualified individual with a disability who could perform the essential
functions of her job, such as the required personal interaction, with or without
accommodation. See Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 11
(2014); ID at 12. Additionally, the appellant has not provided a basis to disturb
the administrative judge’s finding that she failed to participate in the interactive
process, and thus this finding also precludes her from establishing disability
discrimination as an affirmative defense. White v. Department of Veterans
5
Affairs, 120 M.S.P.R. 405, ¶ 12 (2013). Accordingly, we find no basis for
disturbing the initial decision. 4
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. 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.
4
The appellant asserts that she has experienced a history of disparate treatment, hostile
working conditions, and equal employment opportunity violations. PFR File,
Tab 1 at 17. Based upon the administrative judge’s summaries of telephonic status
conferences, we have considered these arguments in the context of the appellant’s
disability discrimination claim and not as separate claims. See Booker v. Department of
Veterans Affairs, 110 M.S.P.R. 72, ¶ 11 n.3 (2008); IAF, Tabs 13, 17.
6
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 U.S. 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 or der. 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 care ful 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.