Julia Jones v. Department of Agriculture

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JULIA HAMILTON JONES, DOCKET NUMBER

Appellant, AT-0752-20-0570-I-2

v.

DEPARTMENT OF AGRICULTURE, DATE: January 25. 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Julia Hamilton Jones, Spartanburg, South Carolina, pro se.

Gretchen M. McMullen, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained her removal for medical inability to perform and excessive absenteeism.

For the reasons discussed below, we GRANT the appellant’s petition for review,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to the Atlanta Regional

Office for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 At all times relevant to this appeal, beginning on October 6, 2016, the

appellant served as a GS-7 Food Inspector - Slaughter. Jones v. Department of

Agriculture, MSPB Docket No. AT-0752-20-0570-I-1, Initial Appeal File (IAF),

Tab 3 at 17-20, 77. Shortly thereafter, the appellant elected to file an Office of

Workers’ Compensation Programs claim pursuant to which she was awarded wage

replacement and health care benefits, and thus she was consistently absent from

work beginning in March 2017. IAF, Tab 7 at 40-44, Tab 17 at 29. On October

24, 2018, the appellant’s doctor submitted a Department of Labor Work Capacity

Evaluation, certifying that she was permanently disabled due to her cervical spine

condition, and stating that she was unable to work any hours at all in her current

job or in any other job. IAF, Tab 24 at 152. Therefore, on October 7, 2019, the

Acting Branch Chief, Labor and Employee Relations Division, issued a letter of

decision removing the appellant based on two charges of medical inability to

perform and excessive absenteeism, effective the date of receipt. IAF, Tab 3 at

17-20.

¶3 The appellant amended an existing equal employment opportunity (EEO)

complaint alleging that her removal was due to disability discrimination (failure

to reasonably accommodate) and in retaliation for prior EEO activity beginning in

2016. IAF, Tab 30 at 85-87. After the agency issued a final agency decision

finding no support for either of her claims, the appellant timely filed her Board

appeal. IAF, Tab 23 at 17-34; IAF, Tab 1. The administrative judge issued an

initial decision affirming the appellant’s removal, sustaining the agency’s charges

and rejecting the appellant’s affirmative defenses, including her defenses of

disability discrimination and retaliation based on prior EEO activ ity and filing a

3

previous Board appeal in 2016. 2 Jones v. Department of Agriculture, MSPB

Docket No. AT-0752-20-0570-I-2, Appeal File, Tab 16, Initial Decision (I-2 ID)

at 7-12.

¶4 The appellant has filed a petition for review, challenging, in part, the

administrative judge’s finding that she was not subject ed to unlawful retaliation. 3

Petition for Review (PFR) File, Tab 1 at 13-14. The agency has responded in

opposition to the appellant’s petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 We agree with the administrative judge’s findings sustaining the agency’s

charges, especially in light of the fact that the appel lant’s medical provider

certified that she was permanently disabled and unable to work any job as of

October 24, 2018, and she had been continuously absent from duty for

2

The administrative judge also rejected the appellant’s claim that the agency retaliated

against her for filing a disability retirement application with the Office of Personnel

Management. Jones v. Department of Agriculture, MSPB Docket No. AT-0752-20-

0570-I-2, Appeal File, Tab 16, Initial Decision at 12. To the extent that the appellant

disputes this finding on review, she has cited to no legal authority that stands for the

proposition that filing a disability retirement application constitutes protected activity

under EEO statutes, and we are unaware of any such authority.

3

With her petition for review, the appellant has submitted a brief statement from a

physician dated August 10, 2021, indicating that she is clear to work but cannot lift

over 10 pounds. Petition for Review File, Tab 1 at 34. To the extent the appellant

suggests that this statement establishes that she is recovered and thus the agency action

must fail, the Board has held that when an appellant recovers from the medical

condition that resulted in her removal before the administrative judge has issued an

initial decision in her removal appeal, the removal action does not promote the

efficiency of the service. See Morgan v U.S. Postal Service, 48 M.S.P.R. 607, 613

(1991) (“Thus, when it is apparent that the appellant’s inability to perform is temporary

in nature and, in fact, that the appellant has recovered even before the Board can render

an initial decision in an appeal, the Board correctly and properly refuses to hold that the

agency’s removal action is for the efficiency of the service.”) . Here, the agency

removed the appellant in 2019 and the administrative judge issued the initial decision in

July 2021. Thus, the appellant’s new medical evidence is from after the initial decision

and is not material. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)

(finding that the Board generally will not grant a petition for review based on new

evidence absent a showing that it is of sufficient weight to warrant an outcome different

from that of the initial decision).

4

approximately 2½ years. I-2 ID at 7-9. Nevertheless, we must remand this matter

to the regional office for further adjudication because the appellant was not

provided with proper notice regarding her claim of whistleblower reprisal.

¶6 The appellant asserted that the agency removed her in retaliation for filing a

Board appeal in 2016 challenging her probationary termination. 4 PFR File, Tab 1

at 13-14; IAF, Tab 1 at 6; I-2 ID at 12. In the initial decision, the administrative

judge rejected the appellant’s retaliation claims because she failed to present

evidence that any agency official acted with actual animus or that any other

employee with similar medical absences, but with no prior complaints, was

treated differently or more favorably, and the agency’s evidence powerfully

rebutted her argument that her removal was illegitimate and retaliatory. I-2 ID

at 12. However, in her prior Board appeal, Jones v. Department of Agriculture,

MSPB Docket No. DE-0752-16-0475-I-1, IAF, Tab 12 at 54, the appellant alleged

whistleblower reprisal. Accordingly, a basis of the appellant’s retaliation claim

here, i.e., the 2016 Board appeal, is ostensibly covered by 5 U.S.C.

§ 2302(b)(9)(A)(i), which refers to retaliation for the exercise of any appeal,

complaint, or grievance right with regard to remedying a claim of whi stleblower

reprisal. Thus, this affirmative defense should have been analyzed under the

whistleblower protection framework set forth in 5 U.S.C. § 1221(e). Alarid v.

Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015).

¶7 Under some circumstances, the Board might be able to adjudicate a

whistleblower claim such as this without remand. Here, however, because the

administrative judge never informed the appellant of her burden and elements of

4

The appellant previously worked as GS-5 Food Inspector in a different plant. She was

terminated from that position for misconduct, ostensibly during probation, effective

September 15, 2016. It was determined during adjudication of the appellant’s appeal

that she had, in fact, completed her probationary period, prompting the parties to settle

the appeal which was dismissed on that basis. Jones v. Department of Agriculture,

MSPB Docket No. DE-0752-16-0475-I-1 (Initial Decision, Dec. 9, 2016). As a result,

the appellant was reassigned to the position in which she served at the time of the

action under review.

5

proof for establishing a claim of whistleblower reprisal, we must remand the

appeal so that the appellant might receive such notice. Guzman v. Department of

Veterans Affairs, 114 M.S.P.R. 566, ¶ 18 (2010); see Burgess v. Merit Systems

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (explaining that the

appellant must receive explicit information on what is required to establish an

appealable jurisdictional issue).

¶8 Additionally, at the time the initial decision was issued, the administrative

judge did not have the benefit of the Board’s decision in Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 44-46, which holds that requesting a

reasonable accommodation and complaining of disability discrimination are

activities protected by the American with Disabilities Act Amendment Act

(ADAAA), 5 not Title VII, and thus, the more stringent “but-for” standard applies.

Accordingly, on remand the administrative judge should apply Pridgen and

determine whether the appellant established that her prior EEO activity, i.e., her

complaints of disability discrimination and requests for reasonable

accommodation, was the “but-for” cause of her removal. 6 The administrative

judge should then issue a new initial decision that identifies all material issues of

fact and law, summarizes the evidence, resolves issues of credibility, and includes

his conclusions of law and his legal reasoning, as well as the authorities on which

that reasoning rests. Spithaler v. Office of Personnel Management, 1 M.S.P.R.

587, 589 (1980).

5

The Board adjudicates claims of disability discrimination raised in connection w ith an

otherwise appealable action under the substantive standards of section 501 of the

Rehabilitation Act. Pridgen, 2022 MSPB 31, ¶ 35. The standards under the Americans

with Disabilities Act, as amended by the ADAAA, have been incorporated by reference

into the Rehabilitation Act and the Board applies them to determine whether there has

been a Rehabilitation Act violation. Id.; see 29 U.S.C. § 791(f).

6

Regarding the appellant’s failure to reasonably accommodate claim, the administrative

judge should also consider whether the appellant is a qualified individual with a

disability under the ADAAA, and whether the agency was obligated to reasonably

accommodate her. 42 U.S.C. § 12111(8); 42 U.S.C. § 12112(b)(5); Haas v. Department

of Homeland Security, 2022 MSPB 36, ¶ 29.

6

ORDER

¶9 For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.