Opinion

Ralph Arellanes v. Department of Defense

Court: Merit Systems Protection Board
Filed: Feb 21, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RALPH D. ARELLANES, SR., DOCKET NUMBER

Appellant, DE-0752-15-0021-C-1

DEPARTMENT OF DEFENSE, DATE: February 21, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

American Federation of Government Employees, Albuquerque, New

Mexico, for the appellant.

Michelle Hernandez, Albuquerque, New Mexico, for the appellant.

J. Michael Sawyers, Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Vice Chairman Harris issues a separate opinion

concurring in part and dissenting in part.

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial

decision, which denied his petition for enforcement and found that the agency

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

complied with the December 7, 2015 initial decision by cancelling the appellant’s

removal and issuing a Standard Form 50 (SF-50) reflecting that he retired on

disability. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the a dministrative

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. Except as e xpressly MODIFIED to

address the appellant’s claim for interim relief, and find that the appellant was not

judicially estopped from arguing that he was ready, willing, and able to work, we

AFFIRM the initial decision.

BACKGROUND

¶2 On September 30, 2014, the agency removed the appellant from his GS-12

Database and Program Integration Specialist position for conduct unbecoming a

Federal employee. Arellanes v. Department of Defense, MSPB Docket

No. DE-0752-15-0021-I-1, Initial Appeal File (IAF), Tab 6 at 13, 15-23. Shortly

thereafter, the appellant applied for disability retirement under the Federal

Employees’ Retirement System (FERS) based on his carpal tunnel, trigger finger

surgeries, a broken back, and “chronic, constant, [and] excruciating pain” in his

back, hands, fingers, wrists, shoulders, back, and legs. Arellanes v. Department

of Defense, MSPB Docket No. DE-0752-15-0021-C-1, Compliance File (CF),

Tab 4 at 22-23; Arellanes v. Department of Defense, MSPB Docket No. DE-0752-

15-0021-C-1, Compliance Petition for Review (CPFR) File, Tab 6 at 23-24. 2 In

January 2015, the Office of Personnel Management (OPM) approved the

appellant’s application for disability retirement benefits with an effective date of

October 1, 2014. CF, Tab 4 at 34-35, 38.

¶3 The appellant filed a timely Board appeal challenging his removal and

raising affirmative defenses of age, race, and ethnicity discrimination , failure to

accommodate his disability, and reprisal for whistleblowing and equal

employment opportunity (EEO) activity. IAF, Tab 1, Tab 21 at 2. After holding

the appellant’s requested hearing, the administrative judge issued an initial

decision denying the appellant’s affirmative defenses and affirming his removal.

IAF, Tab 9, Tab 39, Initial Decision (ID). The appellant filed a petition for

review challenging the initial decision. Arellanes v. Department of Defense,

MSPB Docket No. DE-0752-15-0021-I-1, Petition for Review File, Tab 1. The

Board affirmed the administrative judge’s findings that the agency proved the

charge and that the appellant did not prove his discrimination and EEO reprisal

affirmative defenses, but found that he established a prima facie case of

whistleblower reprisal by showing that he made a protected disclosure that was a

contributing factor in his removal. Arellanes v. Department of Defense, MSPB

Docket No. DE-0752-15-0021-I-1, Remand Order (Remand Order), ¶¶ 5-7, 9-14

(Aug. 10, 2015). Therefore, the Board remanded the appeal to adjudicate whether

the agency met its burden to prove that it would have removed the appellant in

the absence of his whistleblowing. Remand Order, ¶¶ 15-18.

¶4 On remand, the administrative judge found that the agency did not meet its

burden of showing by clear and convincing evidence that it would have removed

Although the appellant’s statement of disability and his supervisor’s statement

accompanying his application are dated July 18, 2014, he did not submit his disability

retirement application to the Office of Personnel Management until after his removal in

October 2014. CF, Tab 4 at 17-18, 22-23; CPFR File, Tab 6 at 23-24.

the appellant absent his protected disclosure. Arellanes v. Department of

Defense, MSPB Docket No. DE-0752-15-0021-B-1, Remand File (RF), Tab 9,

Remand Initial Decision (RID) at 1-2, 11. Accordingly, the administrative judge

reversed the appellant’s removal and ordered the agency to retroactively restore

him to his former position effective September 30, 2014, and to provide him with

appropriate back pay and benefits. RID at 11-12. The administrative judge also

ordered the agency to provide interim relief if either party filed a petition for

review. RID at 12-13. The remand initial decision became final on January 11,

2016, after neither party filed a petition for review. RID at 14.

¶5 The agency cancelled the appellant’s removal and issued a new SF-50

reflecting that he retired on disability effective September 30, 2014, but took no

further action to implement the relief ordered by the administrative judge. CF,

Tab 4 at 12-13, 15. The appellant filed a petition for enforcement alleging that

the agency failed to comply with the administrative judge’s order to retroactively

restore him to duty and to provide him back pay and benefits. 3 CF, Tab 1 at 7-10.

The appellant also argued that the agency failed to comply with the administrative

judge’s order of interim relief. Id. at 11-12. In response, the agency asserted

that, by issuing a new separation SF-50, it returned the appellant to the position

he would have been in but for the removal, i.e., retired on disability. CF, Tab 4

The appellant also alleged that the agency was in noncompliance with the

administrative judge’s order because it had “paid zero consequential dam ages, including

medical costs incurred, travel expenses, and any other reasonable and foreseeable

consequential damages[;] zero compensation with respect to the Whistleblower

Protection Enhancement Act of 2012[;] nor the award of compensatory damages

including interest, reasonable expert witness fees, and representative costs.” CF, Tab 1

at 11. The administrative judge construed these allegations as a motion for damages

and docketed a separate damages proceeding. Arellanes v. Department of Defense,

MSPB Docket No. DE-0752-15-0021-P-1, Damages File (DF), Tab 2. After notifying

the appellant of the applicable law and his burden of proof to establish his entitlement

to damages and affording the parties an opportunity to respond, the administrative judge

issued an addendum initial decision denying the appellant’s request for damages. Id.

at 2-3; DF, Tab 3. The appellant did not file a petition for review of the addendum

initial decision.

at 9-10. The agency further claimed that the appellant’s status as a disability

annuitant precluded him from being reinstated or awarded back pay. Id. The

appellant replied he could return to work if the agency provided him reasonable

accommodations and argued for the first time that the ag ency should restore him

to his former position as a reemployed annuitant. CF, Tab 6 at 9-10.

¶6 The administrative judge issued a compliance initial decision denying the

appellant’s petition for enforcement. CF, Tab 8, Compliance Initial Decision

(CID) at 1, 4. He reasoned that the appellant was “judicially estopped from

contending that he should be reinstated with back pay” because OPM “accepted

[his] contention that he was disabled from performing his duties and was

therefore entitled to retire on disability at the time of his separation.” CI D at 2-3.

The administrative judge alternatively found that the appellant’s receipt of a

disability retirement annuity established that he was not ready, willing, and able

to work. CID at 3-4.

¶7 The appellant has filed a petition for review of the compliance initial

decision again arguing that he is entitled to back pay and interim relief and that

he should be returned to work as a reemployed annuitant because he is ready,

willing, and able to return to work with a reasonable accommodation. 4 CPFR

File, Tab 1 at 3. The agency has responded in opposition to the appellant’s

petition for review, and the appellant replied to the agency’s response. CPFR

File, Tabs 3-4. The Board subsequently issued an order seeking additional

information regarding the appellant’s eligibility for back pay, and both parties

have responded. CPFR File, Tabs 5-7, 9-10.

In support of his contention that he is now ready, willing, and able to return to work

with accommodation, the appellant has submitted for the first time on review an

August 23, 2016 medical note from his personal physician. CPFR File, Tab 1 at 11.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted

for the first time with the petition for review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980). Because the August 23, 2016 note postdates the

close of the record below, we will consider it for the first time on review.

ANALYSIS

The appellant is not entitled to interim relief.

¶8 The administrative judge did not address the appellant’s claim for interim

relief, which he reasserts on review. CF, Tab 1 at 11-12; CPFR File, Tab 1 at 3.

We find that the appellant is not entitled to interim relief because nei ther party

filed a petition for review of the remand initial decision. 5 U.S.C.

§ 7701(b)(2)(A); see Laviene v. U.S. Postal Service, 53 M.S.P.R. 238, 242 (1992)

(finding that interim relief is available only if a petition for review is filed).

Because the appellant is not entitled to any interim relief, he was not prejudiced

by the administrative judge’s failure to address this argument below. See Panter

v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

The appellant is not judicially estopped from arguing that he was ready, willing,

and able to work.

¶9 The administrative judge found that the appellant is judicially estopped

from arguing that he was, and is, ready, willing, and able to return to work

because, in granting his application for disability retirement, OPM determined

that he was not able to render useful and efficient service with or without a

reasonable accommodation. CID at 2-3. In finding judicial estoppel appropriate

here, the administrative judge relied on Tompkins v. Department of the Navy,

80 M.S.P.R. 529, ¶ 8 (1999), in which the Board held that an appellant was

judicially estopped from raising an involuntary disability retirement claim

because he had sought and obtained a Board decision that he was entitled to

disability retirement. We find that Tompkins is distinguishable from the instant

case because, unlike in Tompkins, the appellant has not litigated the issue of his

entitlement to disability retirement benefits before the Board. CF, Tab 4

at 17-18, 34.

¶10 Instead, we rely on Lamberson v. Department of Veterans Affairs,

80 M.S.P.R. 648 (1999), which the Board issued after Tompkins, in finding that

the appellant is not judicially estopped from challenging his entitlement to

reinstatement and back pay because of his status as a disability annuitant. In

Lamberson, the Board found that an employee’s application for, or receipt of,

Civil Service Retirement System (CSRS) or FERS disability retirement benefits

did not judicially estop her from claiming that the agency discriminated against

her on the basis of disability in imposing her removal. Id., ¶¶ 15-30. It reasoned

that applying judicial estoppel was inappropriate when there was no litigation

surrounding the employee’s application for disability retirement, as OPM’s

decision in that instance would improperly supplant the Board’s function of

determining in a fully litigated appeal of the agency’ s removal action whether an

employee could have been accommodated. Id., ¶¶ 16-17. Moreover, the Board

noted that OPM’s grant of disability retirement did not necessarily resolve all of

the issues present in a disability discrimination claim. Id., ¶ 22. Finally, the

Board found that applying judicial estoppel to foreclose a disability

discrimination claim that could, if proven, cause the reinstatement of an employee

simply because she applied for or received disability retirement benefits would

thwart Congress’s intent that continuation of work with accommodation is

preferred over disability retirement. Id., ¶ 24. As such, the Board determined

that it was necessary to review the facts of the particular case, including the

employee’s statements made in the retirement proceedings, to evaluate her

disability discrimination claims. Id., ¶¶ 18, 30.

¶11 The same considerations for declining to create an absolute procedural bar

on the basis of the employee’s disability retirement status in Lamberson are

applicable here. We therefore also decline to apply judicial estoppel to preclude

reinstatement and back pay.

The agency has complied with the administrative judge’s order to reinstate the

appellant and pay him appropriate back pay and benefits .

¶12 When the Board finds that an employee has been the victim of an

unjustified or unwarranted personnel action, the goal is to return the employee to

the status quo ante, i.e., to place him, as nearly as possible, in the circumstances

he would have been in had the personnel action never taken place. See Kerr v.

National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984); Paula v.

Social Security Administration, 119 M.S.P.R. 138, ¶ 18 (2013). Thus, upon

finding that the appellant’s removal could not be sustained, the administrative

judge properly ordered the agency to cancel the appellant’s removal, to reinstate

him to his former position effective September 30, 2014, and to provide him the

appropriate amount of back pay and benefits. RID at 11-12; see Paula,

119 M.S.P.R. 138, ¶ 18.

The appellant is not entitled to back pay and benefits.

¶13 Generally, status quo ante relief includes back pay and ben efits that the

appellant would have received but for the unjustified or unwarranted personnel

action. 5 U.S.C. § 5596(b)(1)(A)(i); Bartel v. Federal Aviation Administration,

24 M.S.P.R. 560, 564-65 (1984). Consistent with OPM’s regulations and the

Board’s case law, however, an employee is not entitled to back pay for any peri od

of time during which he was not “ready, willing, and able” to perform his duties

because of an incapacitating illness or injury, or for reasons unrelated to or not

caused by the unjustified or unwarranted personnel action. King v. Department of

the Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191

(Fed. Cir. 2006); 5 C.F.R. § 550.805(c). The agency bears the initial burden of

proving that it has provided an appellant the appropriate amount of back pay.

King, 100 M.S.P.R. 116, ¶ 13. When the agency produces “concrete and positive

evidence, as opposed to a mere theoretical argument,” that the appellant was not

ready, willing, and able to work during all or part of the period during which back

pay is claimed, the burden of proof shifts to the appellant to show his entitlement

to back pay. Id. (quoting Piccone v. United States, 407 F.2d 866, 876 (Cl. Ct.

1969)); see Davis v. Department of the Navy, 50 M.S.P.R. 592, 598 (1991)

(finding that, when an agency presents a “substantial basis” for questioning the

appellant’s ability to work, it is incumbent upon the appellant to show that he was

ready, willing, and able to work during the relevant period).

¶14 Here, the agency argues that the appellant was not ready, willing, and able

to perform his duties as of September 30, 2014, because he began the process of

applying for a disability retirement annuity prior to his removal and ultimately

received it effective October 1, 2014. 5 CF, Tab 4 at 4, 9-10; CPFR File, Tab 3

at 10-13. Because entitlement to a disability retirement under FERS requires a

finding by OPM that the employee is “unable, because of disease or injury, to

render useful and efficient service” in his position, 5 U.S.C. § 8451(a)(1)(B), we

find that the agency has put forth a substantial basis for questioning the

appellant’s ability to work. Therefore, the appellant has the burden of proof to

show that he was ready, willing, and able to work during the period for which he

requests back pay. See King, 100 M.S.P.R. 116, ¶ 13.

¶15 The Board advised the appellant of his burden in its June 23, 2017 Order on

eligibility for back pay. CPFR File, Tab 5 at 2. In the order, the Board observed

that, although the appellant submitted an August 23, 2016 note from his personal

physician, stating that he is “now ready, willing and able to return to work with

reasonable accommodations,” the note did not explain exactly what the

appellant’s current or continuing medical conditions were or his prognosis. Id.

at 1; CPFR File, Tab 1 at 11. The Board further noted that some record evidence

suggests that the appellant was unable to perform the core functions of his job.

CPFR File, Tab 5 at 3. Specifically, the Board identified a note written by the

same physician on August 6, 2014—less than 2 months before the appellant’s

The appellant has repeatedly stated that he “officially” retired effective April 28 or 30,

2015, and that he received disability retirement annuity payments beginning that date.

CF File, Tab 6 at 5; CPFR File, Tab 1 at 3, 5, 9, Tab 4 at 9. The record does not

support this claim. Rather, the record reflects, and the appellant appears to concede in

his July 11, 2017 declaration, that OPM approved his disability retirement application

in January 2015 with an effective date of October 1, 2014, and that he has received

monthly disability annuity payments since that date. CPFR File, Tab 6 at 18, Tab 9

at 30; CF, Tab 4 at 34-35, 38.

removal—stating that he “continues to have significant pain to the hands and back

that do not allow him to perform his job,” opining that “[f]urther treatment is

unlikely to provide any significant benefit,” and recommending that the appellant

be “considered for medical disability.” Id. at 4; IAF, Tab 19 at 90. Further, in

the appellant’s prehearing submissions, he claimed that he suffered a “serious

work-related accident” and that, at the time of his removal, he was “suffering

from serious disability in the form of a fractured back (compression f ractures to

the spine at L-2 and L-4 and carpal tunnel syndrome in both hands with multiple

surgeries), as well as Trigger Finger problems.” IAF, Tab 19 at 4. Accordingly,

the Board ordered the parties to submit evidence detailing the appellant’s medical

conditions as they pertain to whether or not he was ready, willing, and able to

work during the period for which he is requesting back pay; clarify the period

after his separation for which he was or was not entitled to receive back pay; and

provide supporting documentation. 6 Id. at 5.

¶16 In response, the appellant provided a sworn declaration and argument that

he is entitled to back pay from September 30, 2014, to present because he “was

always ready, willing, and able to continue working as long as the agency

provided reasonable accommodations.” CPFR File, Tab 6 at 9, 15. In addition,

he submitted a June 27, 2017 note from the same physician who wrote the

August 6, 2014 and August 23, 2016 notes stating that, despite his earlier

recommendation that the appellant be considered for disability retirement, the

appellant “continued physical therapy and continued to improve” and “essentially

was ready to return to work with accommodations to his workstation without

endangering the safety or health of himself or others on September 30, 2014[.]”

The Board also ordered the parties to submit any evidence regarding the appellant’s

receipt of Office of Workers’ Compensation Program (OWCP) benefits, which would

affect the amount of back pay to which he may be entitled. CPFR File, Tab 5 at 4-5.

Both parties responded with evidence showing that the appellant has not received any

OWCP benefits for the period for which he is now requesting back pay. CPFR File,

Tab 6 at 18, Tab 7 at 5-6.

Id. at 21. The physician further states that the appellant “has been and is ready

and able to perform all aspects of his job with reasonable accommodations to his

workstation which would include a full ergonomic evaluation[], [speech

recognition] software, an ergonomic chair and a desk that has adjustable height to

allow him to sit or stand.” Id.

¶17 In assessing the probative weight of medical opinion, the Board considers

whether the opinion was based on a medical examination, whether the opinion

provided a reasoned explanation for its findings as distinct from mere conclusory

assertions, the qualifications of the expert rendering the opin ion, and the extent

and duration of the expert’s familiarity with the appellant’s treatment. Wren v.

Department of the Army, 121 M.S.P.R. 28, ¶ 9 (2014). We find the June 27, 2017

opinion by the appellant’s physician that he could have performed his duties as of

September 30, 2014, is entitled to little weight because it does not reflect that the

physician has examined the appellant since August 2014, states no clinical

findings, and provides little in the way of a reasoned explanation for the

appellant’s improvement other than his “continued physical therapy.” CPFR File,

Tab 6 at 21. Further, it conflicts with the same physician’s August 6, 2014 note

stating that the appellant’s conditions “do not allow him to perform his job” and

his August 23, 2016 note stating that the appellant “was disabled” but is “ now

ready, willing and able to return to work with reasonable accommodations.” IAF,

Tab 19 at 90; CPFR File, Tab 1 at 11 (emphasis added), Tab 6 at 21; Wren,

121 M.S.P.R. 28, ¶¶ 9-11 (finding that a bare medical opinion without a

discussion of its basis did not outweigh the great weight of other, consistent

reports completed over a 2 year period). In addition, we find that the June 27,

2017 note is entitled to little weight because it is retrospective and opine s on the

appellant’s ability to work more than 2 years earlier, whereas the other notes

pertain to the appellant’s contemporaneous ability to work. See Elder v.

Department of the Air Force, 124 M.S.P.R. 12, ¶ 24 (2016) (finding that an

administrative judge appropriately assigned greater weight to statements

completed closer in time to the events in question ). We find the physician’s

August 6, 2014 note—based on his contemporaneous observation and treatment of

the appellant—to be the most probative of the appellant’s ability to work as of

September 30, 2014. IAF, Tab 19 at 90. In addition to specifically stating that

the appellant’s medical conditions precluded him from performing his job, th e

August 6, 2014 note enumerates the conditions for which the appellant was being

treated, including bilateral hand pain, carpal tunnel, lumbar radiculopathy, and

lumbar disc disease, and explained that the appellant continued to have

“significant pain to the hands and back” and that further treatment was unlikely to

provide any significant benefit. Id.

¶18 We also find unpersuasive the appellant’s sworn declaration stating that he

was ready, willing, and able to return to work as of September 30, 2014, so long

as the agency provided him certain accommodations because it is inconsistent

with his prior statements. See Elder, 124 M.S.P.R. 12, ¶ 24; Hillen v. Department

of the Army, 35 M.S.P.R. 453, 459 (1987) (discussing factors relevant to

determining credibility, including whether a witness has made prior inconsistent

statements). In particular, the appellant stated in a July 2014 email that his

“hands and back have gotten much worse,” his “back pain has elevated to an

excruciating level where [he] can hardly concentrate,” and that he had “a broken

back in two places, which is causing headaches, numbness to [his] legs and lower

back, lack of proper sleep and rest, and any kind of movement is painful.” IAF,

Tab 17 at 79-80. In his July 18, 2014 statement of disability, he asserted that his

“chronic, constant, [and] excruciating pain from [his] broken back, hands, fingers,

wrists, and shoulders” interfered with performance of his duties, attendance, or

conduct; that he could not type due to “severe carpal tunnel [and] trigger finger

surgeries”; and that he had a “broken back in two places and suffer[ed] from

chronic pain to [his] back and legs.” CPFR File, Tab 6 at 23. The appellant’s

sworn statement is also inconsistent with the August 6, 2014 statement by his

physician and is further discredited by the fact that he began his application for

disability retirement in July 2014, submitted it in October 2014, and has been

receiving a disability retirement annuity through, at least, the date of his July 11,

2017 response to the Board’s order on his eligibility for back pay. Id. 18, 23-24;

CF, Tab 4 at 17-18, 22-23, 34-35, 38.

¶19 We further find no merit to the appellant’s contention that speech

recognition software and an ergonomic workstation would have rendered him

ready, willing, and able to perform his duties as of September 30, 2014. The

record reflects that the appellant requested these reasonable accommodations in

June and July 2014; that in July 2014, the agency provided him with speech

recognition software and asked for additional paperwork to facilitate the

ergonomic assessment; and that, although his requested reasonable

accommodations were apparently provided or in process, he nonetheless began

his application for disability retirement in July 2014, indica ting that the agency

had been unable to grant his requested reasonable accommodations but were

“working on the ergonomic assessment.” 7 CPFR File, Tab 6 at 23; CF, Tab 4

at 17-18, 22-23; IAF, Tab 17 at 74, 76, 78-79, 82-85, Tab 18 at 26, 35-36. In

addition, the appellant has not explained, and we fail to see, how speech

recognition software and an ergonomic workstation would have allowed him to

perform his duties in light of his self-described “chronic, constant, [and]

excruciating pain from [his] broken back, hands, fingers, wrists, and shoulders.” 8

CPFR File, Tab 6 at 23; cf. Clemens v. Department of the Army, 120 M.S.P.R.

According to the appellant, the agency failed to provide him a microphone for the

speech recognition software “for several weeks” and provided him “no training” on how

to use it. CPFR File, Tab 6 at 16-17. A memorandum contained in the record reflects,

however, that the appellant was provided a tutorial for the software but that, as of

July 24, 2014, he had not reviewed it. IAF, Tab 17 at 84.

In the merits proceeding, the administrative judge found that the appellant failed to

establish that there existed any particular reasonable accommodation that the agency

denied or negligently failed to give him at any particular time that led to his removal

for conduct unbecoming a Federal employee. ID at 28-29. The Board affirmed this

finding, Remand Order, ¶ 9, and neither party challenged it.

616, ¶ 17 (2014) (explaining that an appellant alleging a denial of reasonable

accommodation has a burden of proving the existence of such an

accommodation). Therefore, we find that the appellant has not met his burden to

show that he was ready, willing, and able to perform his duties as of

September 30, 2014, even with his requested accommodations.

¶20 In the alternative, the appellant’s physician appeared to state that he was

ready, willing, and able to return to work as of August 23, 2016. CPFR File,

Tab 1 at 11. Specifically, the August 23, 2016 note provides, in its entirety, as

follows:

[The appellant] was disabled and medically retired due to carpal

tunnel syndrome, degenerative disc disease of the lumbar spine, and

lumbar radiculopathy.

He has since undergone intense physical therapy, massage therapy

and proper medical treatment for his injuries. Given his current

medical condition, he is now ready, willing and able to return to

work with reasonable accommodations which include: [speech

recognition software], ergonomic chair and adjustable work station

that allow him to sit and stand.

Id. Although this note opines on the appellant’s contemporaneous ability to work

and does not necessarily conflict with the physician’s earlier note or other recor d

evidence from 2014, we find that it is insufficient on its own to establish the

appellant’s entitlement to back pay as of August 23, 2016. The appellant has not

submitted any documentation of the “proper medical treatment” and “physical

therapy” referenced by his physician or any other evidence substantiating the

claim that he had improved as of August 23, 2016. Further, as discussed above,

the appellant’s physician has not stated that he personally examined the appellant

or provided any clinical findings or contemporaneous treatment notes. See Wren,

121 M.S.P.R. 28, ¶ 9. Moreover, in light of the appellant’s physician’s

inconsistent statements regarding the appellant’s ability to perform his duties, we

find that there is reason to doubt the truthfulness of his statements. See Hillen,

35 M.S.P.R. at 459; IAF, Tab 19 at 90; CPFR File, Tab 1 at 11, Tab 6 at 21.

Therefore, absent any supporting evidence, we decline to credit the appellant’s

physician’s opinion that the appellant was ready, willing, and able to perform his

duties as of August 23, 2016, with or without a reasonable accommodation .

¶21 In sum, although the appellant was given an opportunity to show that he

was ready, willing, and able to perform the duties of his prior position for the

period for which he requests back pay, his submissions fail to resolve the

conflicts between his prior statements and other record evidence showing that he

was not ready, willing, and able to perform the duties of his prior position at the

time of his removal or since. Therefore, we find that he has not established his

entitlement to back pay for this period and conclude that the agency is i n

compliance with the administrative judge’s order to provide the appellant with

appropriate back pay and benefits.

The agency has complied with the administrative judge’s order to

reinstate the appellant to his former position.

¶22 Generally, to be in compliance with a Board order to reinstate an employee,

an agency must return the employee to his former position. Miller v. Department

of the Army, 109 M.S.P.R. 41, ¶ 11 (2008). If the agency does not return the

employee to his former position, it must show that (1) it has a strong overriding

interest or compelling reason requiring reassignment to a different position, and

(2) it has reassigned the employee to a position that is substantially similar in

scope and status to his former position. Id.; Taylor v. Department of the

Treasury, 43 M.S.P.R. 221, 224-25 (1990).

¶23 Here, the agency did not reinstate the appellant to his position following the

Board’s final decision reversing the removal. The agency did cancel the removal

effective September 30, 2014, CF, Tab 4 at 12, thereby retroactively reinstating

the appellant to his position. However, because the appellant began receiving

disability retirement benefits effective October 1, 2014, based on OPM’s

determination that he was unable to render useful and efficient service in his

position with or without accommodation, the agency retroactively separated the

appellant by disability retirement effective September 30, 2014. Id. at 13. In

light of OPM’s grant of disability retirement benefits effective October 1, 2014,

and our finding that the appellant failed to establish he was ready, willing, and

able to work at any point following his removal, we find that there is no further

relief the agency can provide under the unique circumstances of this case. The

cancellation of the appellant’s removal does not require the agency to also reverse

an intervening separation. See Washington v. Tennessee Valley Authority,

22 M.S.P.R. 377, 379-80 (where an employee would have been properly subject

to separation by reduction in force (RIF) if he had not been previously removed

for cause, the agency had authority to retroactively separate the employee by RIF

after the Board ordered it to rescind the removal action), aff’d, 770 F.2d 180

(Fed.Cir.1985) (Table). Accordingly, we affirm the compliance initial decision as

modified by this Final Order. 9

NOTICE OF APPEAL RIGHTS 10

The compliance initial decision, as supplemented by this Final Order,

constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You

may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the

nature of your claims determines the time limit for seeking such review and the

appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the

The Board’s decision in Paula, 119 M.S.P.R. 138, is distinguishable from this case.

Paula involved an immediate retirement under 5 U.S.C. § 8336(c). 119 M.S.P.R. 138,

¶ 3. Thus, the Board was not faced with the question presented here, which is the

nature of the relief available when an appellant has retired on disability. In addi tion,

the appellant in Paula retired on the same date his removal would have taken effect

“solely due to the agency’s final decision to remove him.” 119 M.S.P.R. 138, ¶¶ 3, 17.

Here, there is no comparable finding that this appellant retired on disability shortly

after his removal solely due to the agency’s final decision to remove him. Rather, as

set forth above, he was unable, because of disease or injury, to render useful and

efficient service in his position, and otherwise not ready, willing, and able to work.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

following summary of available appeal rights, the Merit Systems Protection

Board does not provide legal advice on which option is most appropriate for your

situation and the rights described below do not represent a statement of how

courts will rule regarding which cases fall within their jurisdiction. If you wish

to seek review of this final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your cas e, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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 secur ity. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial deliver y or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protectio n

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice descri bed in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 11 The court of appeals must receive your

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the