The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK ANDERSON, DOCKET NUMBER
Appellant, SF-0752-16-0451-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: January 31, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brook L. Beesley, Alameda, California, for the appellant.
Dusty Parson, Boise, Idaho, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal on the basis of a medical inability to perform the duties of
his position. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
BACKGROUND
¶2 The appellant was employed as a Hydromechanic. Initial Appeal File
(IAF), Tab 4 at 16. The agency proposed his removal on February 17, 2016, on
the basis of his medical inability to perform due to his medical conditions. Id.
at 51-53. The appellant orally replied and submitted documents in support of his
reply. Id. at 20-37. The agency imposed the appellant’s removal on March 29,
2016. Id. at 17-18. He filed the instant appeal challenging his removal and
requested a hearing. IAF, Tab 1.
¶3 After holding the appellant’s requested hearing, the administrative judge
sustained his removal. IAF, Tab 25, Initial Decision (ID). She found that the
agency proved its charge of medical inability to perform. ID at 7-13. She also
found that the appellant failed to prove the following affirmative defenses:
disability discrimination on the basis of failure to provide a reasonable
accommodation; equal employment opportunity (EEO) retaliation; harmful
procedural error or a due process violation based on his allegation that he was
3
unable to select the representative of his choice; and that the action was not in
accordance with law based on an agency disclosure in 2009 that he asserted
violated the Health Insurance Portability and Accountability Act of 1996. ID at
13-26. She further found that the agency established that the removal promoted
the efficiency of the service and that the penalty of removal was within the
tolerable limits of reasonableness. ID at 26-28.
¶4 The appellant has filed a petition for review in which he primarily
challenges the administrative judge’s finding that he failed to prove his disability
discrimination claim. 2 Petition for Review (PFR) File, Tab 5. The agency has
not responded. 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. See Miller v. Department of the Army,
121 M.S.P.R. 189, ¶ 13 (2014). Reasonable accommodation includes
modifications to the manner in which a position is customa rily performed to
enable a qualified individual with a disability to perform the essential job
2
The appellant has not challenged the administrative judge ’s findings that the agency
proved its charge, the removal action promoted the efficiency of the service, and the
penalty was within the tolerable limits of reasonableness. Petition for Review (PFR)
File, Tab 5. He also did not challenge her findings that he failed to establish that the
agency retaliated against him for his prior EEO activity, that the agency did not commit
harmful procedural error or a due process violation regarding the selection of his
representative, and that he had not proven his claim that the removal was not in
accordance with law. Id. We find no reason to disturb these findings. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility).
3
Although the agency did not file a response to the petition for review, the agency’s
representative at that time entered a notice of appearance regarding the petition for
review. PFR File, Tab 7.
4
functions. Id. To establish disability discrimination, an employee must show
that: (1) he is an individual with a disability, as defined by 29 C.F.R.
§ 1630.2(g); (2) he is a qualified individual with a disability, as defined by
29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Id.
¶6 The administrative judge found that, assuming the appellant meets the
definition of a person with a disability under 29 C.F.R. § 1630.2(g) in that he has
a medical condition that interferes with activities of daily living, he did not
establish his affirmative defense of disability discrimination. ID at 13-18. She
found that he did not establish that he could perform the esse ntial functions of the
Hydromechanic position with or without reasonable accommodation because his
physician stated that he was not able to maintain “the proper alertness” for that
position. ID at 13-14; IAF, Tab 4 at 62. The appellant also did not otherwise
identify a reasonable accommodation that would have allowed him to perform the
essential functions of the position, and the administrative judge found that no
such accommodation was apparent from the record. ID at 14. The administrative
judge further concluded that the appellant did not establish that he could perform
the essential functions of a vacant funded position to which he could have been
reassigned. Id.
¶7 Although the appellant contended that the agency should have offered him a
position that the agency identified in September 2016, IAF, Tab 20 at 10-11, the
administrative judge found that the existence of this position did not demonstrate
the existence of a vacant funded position to which the appellant could have been
reassigned prior to his removal, ID at 16. She also found that the appellant failed
to engage in the interactive process by failing to provide the agency with an
updated résumé and responses to a brief questionnaire and affirmative statement
that he was willing to accept a nonequivalent position. ID at 17-18. Pursuant to
the requirements of the interactive process and agency policy, his refusal
undermined his argument that the agency should have more thoroughly searched
5
for a vacant funded position for him. ID at 16; IAF, Tab 20 at 26-43. The
administrative judge stated that his refusal to provide the agency the necessary
information or engage in the interactive process supported a finding that the
agency could not have provided him a vacant funded position . ID at 17-18; IAF,
Tab 4 at 81-88, Tab 5 at 4-34. Thus, the administrative judge concluded that the
appellant failed to prove his affirmative defense. ID at 18.
¶8 On review, the appellant argues that the agency improperly failed to assess
his medical condition. PFR File, Tab 5 at 2-5. He previously asserted in his oral
reply to the proposed removal that the agency could have ordered an independent
fitness-for-duty examination and otherwise attempted to obtain medical
information on his behalf. IAF, Tab 20 at 56. However, we find no reason that
the agency would have collected additional medical information because the
appellant submitted an August 2015 letter from his physician stating that it was
unlikely that he would be able to return to the same work environment and that he
could not continue in the same position. IAF, Tab 4 at 74. Thus, the agency
already was able to determine that he could not perform the duties of his position
without additional medical information. Cf. Archerda v. Department of Defense,
121 M.S.P.R. 314, ¶¶ 20-21 (2014) (finding that the agency was entitled to
request medical documentation to determine whether the appellant met his
position’s requirement). As a result, the agency began the process for
reassignment that would have allowed it to identify other positions for which the
appellant was qualified, but he did not participate in this process. 4 IAF, Tab 4
4
To the extent that the appellant is challenging whether the agency reviewed the
medical evidence he submitted prior to his removal, we note that the agency specifically
mentioned the August 2015 letter from his physician in determining that he could not be
accommodated in his Hydromechanic position. IAF, Tab 20 at 48-49. The proposing
official also specifically mentioned the letter. IAF, Tab 4 at 51. The appellant did not
submit any subsequent medical information. IAF, Tab 20 at 5 3-58. We therefore see
no basis for finding that the agency neglected to consider the appellant’s medical
information.
6
at 99-101. Accordingly, the agency would have had no reason to collect
additional medical information.
¶9 The appellant next asserts that the agency failed to follow its procedures in
that he was not required to submit an updated résumé and a questionnaire for the
agency to begin a search for an alternative position and that his failure to do so
would only have limited the agency’s search to equivalent positions within the
employing bureau/office and commuting area and/or limit consideration for
certain categories of positions. PFR File, Tab 5 at 4. The agency notified the
appellant that, pursuant to its policy, prior to initiating a search for any position,
he was required to submit an updated résumé and questionnaire. IAF, Tab 4
at 77-78, Tab 5 at 37. He did not do so. If he had submitted a questionnaire
requesting that the agency expand its search to a nonequivalent, vacant funded
position in his bureau/office, it would have initiated this broader search under the
policy. IAF, Tab 20 at 28. However, the possibility of this broader search does
not affect the requirement that the appellant initially was required to submit a
résumé. 5 On December 21, 2015, the agency issued a letter finding that he could
not be reassigned because he did not provide the proper documentation . IAF,
Tab 4 at 99-100. He was provided the opportunity to respond but did not do so.
Id. Thus, contrary to the appellant’s argument, agency policy required him to
5
The appellant cites the agency’s questionnaire, “Employee Questionnaire for
Reassignment: Preferences on Parameters for Conducting an Expanded Search for a
Vacant Position,” for the proposition that he was not required to submit a résumé or
questionnaire prior to the agency’s initiating its search. PFR File, Tab 5 at 4. He cites
the statement that, “[i]f you fail to respond to the questions above, the search for a
vacant, funded position will be limited to ‘equivalent’ positions within the employing
bureau/office and current commuting area.” Id.; IAF, Tab 4 at 89. He also cites the
statement that, “[i]f you answer ‘no’ to any question, or fail to answer any question, a
search for vacant, funded positions in that category will not be conducted and you will
have waived your right to consideration for such positions as a form of reasonable
accommodation.” PFR File, Tab 4 at 4 (emphasis added); IAF, Tab 4 at 87. By its very
title, this questionnaire relates to the agency’s expanding its job search—and not its
initiation—and the statements above limit that expansion. This document does not
affect the agency’s requirement that the appellant submit a résumé prior to initiating its
job search.
7
submit proper documentation, and, despite being provided ample opportunity to
do so, he excluded himself from consideration for reassignment.
¶10 The appellant also challenges the administrative judge’s finding that he
failed to cooperate with the agency and failed to engage in the interactive process.
PFR File, Tab 5 at 3. To determine the appropriate reasonable accommodation,
the agency may engage in an informal, “interactive process” with the employee .
See Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 21 (2014),
overruled on other grounds by Haas v. Department of Homel and Security, 2022
MSPB 36; 29 C.F.R. § 1630.2(o)(3). However, when the existence or nature of a
reasonable accommodation is not obvious, and the employee fails to respond to
reasonable requests for medical information and documentation, the agency will
not be found to have violated its duty to provide a reasonable accommodation
because the appellant failed to fulfill his obligations in the interactive process .
White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 12 (2013). The
appellant requested a reasonable accommodation on November 14, 2015. IAF,
Tab 20 at 46. The agency found that he was not qualified for his position and
thus explained to him how to initiate the reassignment process. IAF, Tab 4
at 77-78. He did not do so. Id. at 99-100. Further, the accommodation was not
obvious, as the appellant did not identify what positions he would have accepted.
Given these facts, we agree with the administrative judge that the appellant failed
to engage in the interactive process. ID at 16-18.
¶11 The appellant next argues that the agency should have appointed him to the
Security Guard position prior to his removal. PFR File, Tab 5 at 3, 5. However,
as previously discussed, the appellant did not provide the necessary information
for the agency to appoint him to the position. IAF, Tab 4 at 99-100. Further, as
the administrative judge stated, there was no evidence that this position was
8
vacant and funded at the time of the appellant’s removal. 6 ID at 15-16.
Accordingly, we sustain the appellant’s removal. 7 See Brown, 121 M.S.P.R. 205,
¶¶ 23-25 (finding that the appellant failed to prove that the agency discriminated
against her by failing to reasonably accommodate her when the agency had
previously offered to convert her to two positions and the agency was not
required to assign her to another position because it was not vacant).
NOTICE OF APPEAL RIGHTS 8
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 following summary of available appeal rights, the Merit
6
To the extent that the appellant asserts that the agency committed harmful procedural
error in applying its procedures for providing reasonable accommodation, we find no
such error in that, regardless of the application of procedures, the appellant did no t
demonstrate his entitlement to a reasonable accommodation in the form of reassignment
because he failed to engage in the interactive process.
7
The appellant challenges the administrative judge’s denial of his motion to compel,
which dismissed his discovery requests on timeliness grounds. PFR File, Tab 5 at 5;
IAF, Tab 18, Tab 21. He also asserts that the administrative judge improperly denied
his motion for his physician to testify by telephone at a later date after the hearing and
his reconsideration motion. PFR File, Tab 5 at 5; Hearing Compact Disc (HCD). At
the hearing, the administrative judge denied the appellant’s motion regarding the
additional testimony, stating that the appellant could have requested a subpoena for the
physician and the hearing date had been set for a long time. HCD. An administrative
judge has broad discretion in ruling on discovery matters, and , absent an abuse of
discretion, the Board will not find reversible error in such rulings. Kingsley v. U.S.
Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016); see generally O’Connor v. Department
of the Interior, 21 M.S.P.R. 687, 690 (1984) (holding that the denial of the appellant’s
request of a subpoena duces tecum filed after the hearing closed w as not improper when
the appellant could not show that the evidence sought was not discoverable through use
of due diligence). Although the appellant disagrees with the administrative judge’s
rulings, he has not identified how she abused her discretion regarding such matters, and
thus this disagreement does not provide a reason for disturbing the initial decision.
8
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.
9
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 case, 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 partic ular
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
10
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 security. 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 t heir 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,
11
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 delivery 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 Protection
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 described in section
2302(b) other than practices described in section 2 302(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. 9 The court of appeals must receive your petition for
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction exp ired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of A ppeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
12
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
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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.