Opinion

Marlene Abrams v. Marlene R. Abrams

Court: Merit Systems Protection Board
Filed: Nov 17, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding no error in the Board’s removal of the respondent based on a charge of unacceptable performance

How later courts described this case

finding no error in the Board’s removal of the respondent based on a charge of unacceptable performance
noting that the three complaints, involving a 14-day suspension, a 30-day suspension, and a removal, were “combined”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SOCIAL SECURITY DOCKET NUMBERS

ADMINISTRATION, CB-7521-13-0008-T-1

Petitioner, CB-7521-14-0004-T-1

MARLENE R. ABRAMS, DATE: November 17, 2022

Respondent.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michelle M. Murray, Esquire, and Sharese M. Reyes, Esquire, Baltimore,

Maryland, for the petitioner.

Patrick W. Carlson, Chicago, Illinois, for the petitioner.

Julie M. Brady, Esquire, Peter H. Noone, Esquire, Robert Fedder, Esquire,

Sean M. Foley, Esquire, Belmont, Massachusetts, for the respondent.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

¶1 The respondent administrative law judge (respondent) has filed a petition

for review, and the Social Security Administration (SSA or petitioner) has filed a

cross petition for review, of the initial decision, which sustained charges of

unacceptable docket management and medical inability to perform, found that the

respondent did not prove her disability discrimination claims, and determined that

SSA had good cause to remove the respondent. Generally, we grant petitions

such as these 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 administrative law 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

neither party has established any basis under section 1201.115 for granting the

petition or cross petition for review. Therefore, we DENY the petition for review

and the cross petition for review. We MODIFY the initial decision to find that

the respondent has not proven her claim of disability harassment, but a different

outcome is not warranted. Except as expressly MODIFIED by this Final Order,

we AFFIRM the initial decision.

BACKGROUND

¶2 SSA proposed to suspend the respondent for 30 days based on a charge of

failure to follow instructions. Social Security Administration v. Abrams, MSPB

Docket No. CB-7521-13-0008-T-1, Initial Appeal File (0008 IAF), Tab 1. SSA

subsequently proposed to remove the respondent based on charges of medical

inability to perform, unacceptable docket management, neglect of duties, and

failure to follow instructions. Social Security Administration v. Abrams, MSPB

Docket No. CB-7521-14-0004-T-1, Initial Appeal File (0004 IAF), Tab 1. The

administrative law judge (ALJ) who was assigned to adjudicate this matter joined

these appeals. 0008 IAF, Tab 85. A multi-day hearing was held. Hearing

Transcripts (HTs) 1-13. The ALJ granted the respondent’s request to merge the

charges of unacceptable docket management and neglect of duties. 0008 IAF,

Tab 162 at 10-11, Tab 166. The ALJ issued an initial decision in which he made

the following findings: (1) SSA proved the unacceptable docket management and

medical inability to perform charges; (2) SSA did not prove either of the failure

to follow instructions charges; (3) the respondent did not prove her disability

discrimination claims; and (4) SSA demonstrated good cause to remove the

respondent. 0008 IAF, Tab 175, Initial Decision (ID) at 17-55.

¶3 The respondent has filed a petition for review, SSA has filed a response,

and the respondent has filed a reply brief. Social Security Administration v.

Abrams, MSPB Docket No. CB-7521-13-0008-T-1, Petition for Review (PFR)

File, Tabs 3, 8-9. 2 SSA also has filed a cross petition for review, the respondent

has filed a response, and SSA has filed a reply brief. 3 PFR File, Tabs 8, 10, 12.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 In her petition for review, the respondent argues that the ALJ erred in

analyzing the unacceptable docket management charge , and she cites to “new”

For consistency, we will only cite to the parties’ submissions on review in MSPB

Docket No. CB-7521-13-0008-T-1.

The agency filed a motion for additional time to file a reply brief , and it filed a reply

brief. PFR File, Tabs 11-12. Although our regulations do not provide for a reply to a

response to a cross petition for review, we have considered the agency’s reply brief.

evidence in support of this argument. 4 PFR File, Tab 3 at 15-17. She also asserts

that the ALJ improperly analyzed her claims of disability discrimination and

harassment and the relevant factors for determining if SSA had good cause to

remove her. Id. at 8-14, 17-26. She further asserts that the ALJ improperly

joined the appeals and issued a protective order. 5 Id. at 5-8. In its cross petition

for review, SSA asserts that the ALJ improperly analyzed the failure to follow

instructions charges. PFR File, Tab 8 at 23-26. For the following reasons, we

deny the petition for review and cross petition for review, and we affirm the

initial decision as modified herein.

SSA proved the unacceptable docket management charge. 6

¶5 In the unacceptable docket management charge, SSA alleged that in fiscal

year (FY) 2012, the respondent only held approximately 160 hearings, only issued

approximately 144 decisions, and failed to move cases timely through

The respondent does not appear to challenge the ALJ’s conclusion that SSA proved

the charge of medical inability to perform. ID at 35-42. We affirm the ALJ’s

conclusion herein. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014)

(explaining that, to establish a charge of physical inability to perform, the agency must

prove a nexus between the employee’s medical condition and observed deficiencies in

her performance or conduct, or a high probability, given the nature of the work

involved, that her condition may result in injury to herself or others).

The respondent raises arguments concerning a third appeal. PFR File, Tab 3 at 14-15;

see Abrams v. Social Security Administration, MSPB Docket No. CB-7521-15-0031-

T-1. The Board denied Ms. Abrams’ petition for review of the initial decision in that

matter. Abrams v. Social Security Administration, MSPB Docket No. CB-7521-15-

0031-T-1, Final Order (Nov. 17, 2022).

The ALJ defined the charge of “unacceptable docket management” as managing a

docket in a way that prevents an ALJ from meeting, or striving for, SSA’s benchmarks

and goals. ID at 21 n.3. The ALJ further found that in order to prove the charge, SSA

must show that the respondent had a duty to acceptably manage her docket, she failed to

acceptably manage her docket, and the criteria relied upon by SSA allows measur ing

her performance in a way that sufficiently establishes she was performing inadequately.

ID at 21-22. The respondent does not challenge the ALJ’s definition of unacceptable

docket management or the elements of the charge.

ALJ-controlled statuses. 0004 IAF, Tab 1 at 16-17. SSA further alleged that in

FY 2013, the respondent held approximately only 66 hearings, issued

approximately only 81 decisions, and failed to move cases timely through

ALJ-controlled statuses. Id. In the initial decision, the ALJ reviewed SSA’s

expectations for production in terms of hearings held, decisions issued, and

number of cases languishing in ALJ-controlled statuses, the respondent’s low

productivity during the relevant time frames, SSA’s “extraordinary” efforts to

assist her with docket management, and the respondent’s explanations for her

poor production. ID at 22-33. The ALJ concluded that the respondent was

unable to effectively manage her docket and that SSA proved this charge. ID

at 33-35.

¶6 We agree with the ALJ that SSA proved this charge. The record reflects

that, during the relevant time frames, SSA maintai ned benchmarks or goals of

500-700 case dispositions per year, an average of 50 scheduled hearings per

month, and 7 days in ALJ post-hearing review (ALPO) status. 0008 IAF, Tab 171

at 63, 66; HT 4 at 1011, 1017-18, 1026. The respondent’s production in terms of

hearings held and decisions issued fell well below these goals. ID at 11-12. In

particular, SSA’s evidence showed that, in FY 2012, the average days that a case

on the respondent’s docket was in ALPO status was 250 days, as compared to an

average of 32 days for all of the ALJs in SSA’s Chicago Hearing Office (except

the respondent), and an average of 15-16 days for ALJs in Region V and

nationally. 0008 IAF, Tab 173 at 284; HT 3 at 932-34. SSA’s evidence further

revealed that, in FY 2013, the average number of days that a case on the

respondent’s docket remained in ALPO status was 323 days, compared to an

average of 35 days for ALJs in the Chicago Hearing Office, an average of 14 days

for ALJs in Region V, and 16 days for ALJs nationally. 0008 IAF, Tab 173

at 284; HT 3 at 934-36.

¶7 The respondent contends on review that the underlying statistical models

were flawed because SSA’s data did not consider certain critical variables, such

as the complexity of each individual case, whether an ALJ had physical or mental

disabilities, whether cases resulted in a favorable or unfavorable decision, and

whether an ALJ received a reasonable accommodation. PFR File, Tab 3 at 15-16.

The respondent references a Work Analysis Study commissioned by the

Association of Administrative Law Judges (AALJ) (hereinafter, AALJ Work

Analysis Study), which was issued after the close of the record below. 7 PFR File,

Tab 3 at 17. In its response to her petition, SSA asserts that the information

contained in the AALJ Work Analysis Study concerning ALJ adjudications in

fiscal years 2012 and 2013 was available and introduced before the close of the

record, and the AALJ Work Analysis Study had not been found to satisfy

reliability standards. PFR File, Tab 8 at 9-10 & n.4.

¶8 We need not resolve this evidentiary issue. Even if we assumed for the

purposes of our analysis that the AALJ Work Analysis Study was reliable, and we

considered its recommendations herein, a different outcome is not warranted.

Notably, the respondent’s production numbers in FY 2012 and 2013 were

significantly less than the AALJ Work Analysis Study’s “challenging goals” of

277 annual case dispositions and 23 hearings on average per month. AALJ Work

Analysis Study, Executive Summary at iii-v. It is true that SSA’s data did not

account for all of the variables identified by the respondent; however, the AALJ

Work Analysis Study did not account for all of the variables, either.

¶9 We also have considered the respondent’s assertion that the cases assigned

to her were not substantially the same or similar to the cases assigned to every

The respondent does not include a copy of the AALJ Work Analysis Study, and she

does not correctly cite to the AALJ website. However, it appears that she is referring to

a November 12, 2015 Work Analysis Study, which we have found on the www.aalj.org

website. See Human Resources Research Organization (HumRRO), Administrative Law

Judge Work Analysis Study (Nov. 12, 2015), https://www.aalj.org/wp-

content/uploads/2017/08/aalj_work_analysis_study_executive_summary.pdf (last

visited Nov. 15, 2022).

other ALJ in the Chicago Hearing Office. PFR File, Tab 3 at 16 (citing Shapiro

v. Social Security Administration, 800 F.3d 1332 (Fed. Cir. 2015), for the

proposition that SSA was required to show the average disposition rate for a

particular region across the same time period). The respondent’s reliance on

Shapiro is not persuasive. Importantly, the court in Shapiro held that, “in

extreme cases . . . where [the respondent’s] production is, at best, roughly a

quarter of that performed by the rest of the ALJs in his region, that [fact] standing

alone is highly relevant and potentially preponderant evidence that he failed to

manage his cases acceptably.” Shapiro, 800 F.3d at 1339. Similarly, we find that

the exponentially higher length of time that many of the respondent’s cases

languished in ALPO status constitutes relevant evidence that she did not

acceptably manage her cases. Accordingly, we affirm the ALJ’s decision in this

regard.

SSA did not prove the failure to follow instructions charges.

¶10 To determine whether SSA proved the failure to follow instructions charges

in the suspension and removal appeals, we must first look at the directives that

were issued to the respondent and her responses thereto. The May 7, 2012

directive that was at issue in the suspension appeal ordered the respondent to

“take action toward issuing a decision on [20 identified cases] by the close of

business on May 18, 2012.” 0008 IAF, Tab 1 at 3, Tab 171 at 261. The directive

further ordered the respondent to provide a written explanation by May 18, 2012,

if she “move[d] a case into any status other than [UNWR status, which means that

the case is ready to be written but has not been assigned]” or if she “fail[ed] to

move one or more of these cases out of ALPO status.” 0008 IAF, Tab 171 at 261.

The respondent submitted several timely responses to this directive. Id.

at 264-68, 270-74, 276-78. Likewise, the January 22, 2013 directive that was at

issue in the removal appeal ordered the respondent to “decide and issue

decision-writing instructions on the 25 cases [identified therein] by the close of

business on February 1, 2013.” 0004 IAF, Tab 1 at 17; 0008 IAF, Tab 171

at 336-38. The directive further advised the respondent that, if she were “unable

to decide and issue instructions for any of these cases during this time period,”

she was to provide the Hearing Office Chief ALJ with “a reason why [she was]

unable to do so no later than February 1, 2013.” Id. at 336-37. The respondent

submitted several timely responses to this directive. Id. at 342-43, 345-52,

354-59.

¶11 The ALJ determined that the respondent’s responses satisfied her obligation

under the directives; the fact that SSA did not find her responses satisfactory was

a different issue than whether or not she followed the instructions contained

therein. ID at 20-21. We agree with the ALJ that neither directive required the

respondent to submit “satisfactory” explanations; rather, she was only required to

provide explanations if she were unable to move the requisite cases as directed.

ID at 20-21. Her numerous responses indicate that she either moved the cases as

directed or provided an explanation thereto.

¶12 We have considered SSA’s citation to Abrams v. Social Security

Administration, 703 F.3d 538 (Fed. Cir. 2012), to support its contention that it

proved these charges. PFR File, Tab 8 at 23-26. Abrams is distinguishable from

this matter, in pertinent part, because the respondent in Abrams “admitted that he

had not fully complied with the directives,” Abrams, 703 F.3d at 543, whereas the

respondent here testified that her written responses comported with SSA’s

directives, HT 7 at 1944-49, 2011-17 (testimony of the respondent). For these

reasons, we affirm the ALJ’s determination that SSA did not prove either of the

failure to follow instructions charges.

The respondent did not prove her claims of disability discrimination

or harassment.

¶13 To prove disability discrimination based on a failure to accommodate, an

employee must show that (1) she is an individual with a disability, as defined by

29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability as

defined by 29 C.F.R. § 1630.2(m); 8 and (3) the agency failed to provide a

reasonable accommodation. Miller v. Department of the Army, 121 M.S.P.R. 189,

¶ 13 (2014). The ALJ made the following findings of fact concerning the

respondent’s medical conditions: (1) between December 2010 and January 2011,

the respondent suffered a series of falls resulting in two concussions , and she was

subsequently diagnosed with post-concussion syndrome; (2) she had been

previously diagnosed with fibromyalgia 9 and chronic fatigue syndrome; and

(3) the physical trauma resulting from her falls and long commute triggered a

flare-up of her fibromyalgia symptoms. ID at 12-14. The ALJ further found that

the respondent was disabled based on her conditions of post-concussion

syndrome, fibromyalgia, and chronic fatigue syndrome, which substantially

limited her major life activities. 10 ID at 12-14, 36-37.

¶14 The ALJ concluded, however, that the respondent was not a qualified

individual with a disability because she was not able to perform the essential

functions of her position—holding hearings and issuing timely decisions—with or

without a reasonable accommodation. ID at 7, 43-45. In pertinent part, the ALJ

noted that, as far back as 2011, the respondent requested a temporary cessation

and/or reduction in the number of hearings that she had to hold, SSA provided her

with several accommodations, including a reduced workload for an extended

A qualified individual with a disability is an individual who has the requisite skill,

experience, education and other job-related requirements of the employment position

such individual holds or desires and, with or without reasonable accommodation, can

perform the essential functions of such position. 29 C.F.R. § 1630.2(m).

Fibromyalgia is a disorder characterized by widespread musculoskeletal pain

accompanied by fatigue, sleep, memory and mood issues. Mayo Clinic, Fibromyalgia,

http://www.mayoclinic.org/diseases-conditions/fibromyalgia/home/ovc-20317786 (last

visited Nov. 15, 2022).

The parties do not appear to challenge the ALJ’s finding on review, and we affirm

it herein.

period of time, a “very liberal” use of leave, 11 and additional staff for assistance

and support. ID at 45-48. Notwithstanding SSA’s efforts to provide the

respondent with significant adjustments to her work schedule and leave

flexibilities, she continued to issue relatively few dispositions and maintained a

high number of cases kept in ALJ-controlled statuses for extended periods of

time. ID at 47. The ALJ further found that because the respondent’s conditions

were triggered by stress, and being an ALJ was a stressful endeavor, there was no

reasonable accommodation that would allow her to perform the essential

functions of her position. ID at 48.

¶15 On review, the respondent contends that she was a qualified individual with

a disability because she possessed the requisite skill, experience, and education of

an ALJ, and she was able to perform all of an ALJ’s functions, including holding

hearings 12 and writing decisions. PFR File, Tab 1 at 9-10. She further alleges

that SSA’s attack on her production levels did not constitute evidence that she

was unable to perform the essential functions of her position. Id. at 10. She

contends that she did not request permanent relief from holding hearings or

issuing decisions, but rather “sought accommodation from the obligation to hold

hearings[] only during finite and specified time periods.” Id. at 10-12 (emphasis

in original).

¶16 The term “reasonable accommodation” means, in pertinent part,

“[m]odifications or adjustments to the work environment, or to the mann er or

The ALJ noted that SSA informally allowed the respondent not to hold hearings in

late August and September 2011, provided her with a drastically reduced caseload,

granted her month-long leave requests for November 2012, December 2012 to

January 2013, and May to June 2013, allowed her to work a part-time schedule with

liberal use of leave from mid-March to May 1, 2013, and reduced her hearing schedule

for March and April 2013. ID at 15-16.

The respondent conceded below that holding a hearing was an essential function of

the ALJ position. 0008 IAF, Tab 160 at 18.

circumstances under which the position held or desired is customarily performed,

that enable an individual with a disability who is qualified to perform the

essential functions of that position” or “[m]odifications or adjustments that

enable a covered entity’s employee with a disability to enjoy equal benefits and

privileges of employment as are enjoyed by its other similarly situated employees

without disabilities.” 29 C.F.R. § 1630.2(o). Thus, a reasonable accommodation

may include, but is not limited to, job restructuring and part-time or modified

work schedules. Id. Absent undue hardship, 13 a covered entity is required to

provide a reasonable accommodation to an otherwise qualified individual who

meets the definition of disability. Id.

¶17 The respondent frames her requested accommodations as a “modified work

schedule,” PFR File, Tab 3 at 10, but she was essentially asking to be relieved of

her essential functions for extended periods of time or, in 2013, an unspecified

period of time. See, e.g., 0008 IAF, Tab 171 at 183 (asking, in her June 2011

reasonable accommodation request, to “be excused from any new cases/hearings

from at least August through September, 2011, until [her] pending cases have

been resolved,” and then a 50% reduction in the assignment of any “new

cases/hearings” for the following 3-6 months), 332 (explaining, in her

The ALJ mentioned in the initial decision that a reasonable accommodation does not

include an accommodation that would impose an undue hardship on the operation of the

agency, noted that the respondent’s conditions were triggered by stress, and found that

there was “no reasonable accommodation” that would allow her to perform the essenti al

functions of the ALJ position in line with SSA’s expectations. ID at 48 (emphasis in

original). On review, the respondent contends that SSA’s previous accommodations of

temporary relief from her obligation to hold hearings or to issue decisions shows that

her requested accommodation did not “present an actual, demonstrated undue hardship.”

PFR File, Tab 3 at 13. We need not address this argument because we find that the ALJ

did not make a finding of undue hardship in the initial decision. Notably, there is no

discussion in the initial decision of the relevant factors described in 29 C.F.R.

§ 1630.2(p) to determine whether an accommodation would impose an undue hardship,

such as the nature and net cost of the accommodation, and the overall financial

resources of the facilities involved and the covered entity.

January 2013 reasonable accommodation request, that her “condition does not

allow [her] to be certain that [she] will be physically able t o hear a case on a

precise date”). We agree with the ALJ that, despite SSA’s numerous informal

accommodations, the respondent continued to be unable to perform the esse ntial

functions of her position and, therefore, she was not a qualified individual with

a disability.

¶18 The respondent cites to Holland v. Social Security Administration, EEOC

Appeal No. 01A01372, 2003 WL 22346114 (Oct. 2, 2003), to support her

contention that an appropriate accommodation can be reducing the time that she is

required to dedicate to an essential function. PFR File, Tab 3 at 10 & nn.12-13.

However, the respondent misreads Holland. In that matter, the Equal

Employment Opportunity Commission found that an essential function of the

complainant’s Telephone Service Representative position was “handling

incoming telephone calls,” but he was not required to handle a certain number of

calls within a specified time or have “constant” telephone availability. Holland,

2003 WL 22346114, at *12-13. Here, in contrast, the respondent sought to have a

reprieve from holding hearings, and in January 2013, requested a reprieve for an

undetermined length of time, despite the fact that holding hearings was an

essential function of her ALJ position. The respondent has not cited, and we are

not aware of, any binding precedent that would require SSA to provide such an

accommodation under these circumstances. See, e.g., Byrne v. Department of

Labor, 106 M.S.P.R. 43, ¶ 7 (2007) (finding that an agency is not required to

lower production or performance standards, and, upon determining that the

appellant was incapable of meeting the productivity requirements of his position,

the arbitrator correctly concluded that the appellant was not a qualified individual

with a disability because he could not perform the essential functions of his

position with or without a reasonable accommodation).

¶19 We have considered the respondent’s challenge to the ALJ’s finding that

her condition will never go into remission, PFR File, Tab 3 at 8; ID at 42, but this

argument is unavailing. The ALJ stated in the initial decision that it was

“reasonable” to conclude that the respondent’s fibromyalgia will never go into

remission because the only way for that to happen is to eliminate stress, and the

very nature of the respondent’s job as an ALJ, coupled with her inability to

manage her docket, “creates the impossibility of eliminating [her] stress.” ID

at 42. Indeed, the respondent’s treating physician, who was admitted as an expert

in the field of fibromyalgia, testified that patients who suffer from fibromyalgia

“get better when their stress is lowered.” HT 12 at 3358, 3412 (testimony of the

treating physician). However, the physician acknowledged that the respondent’s

work was a stressor. Id. at 3348, 3403 (testimony of the treating physician).

Given the physician’s testimony, we discern no error with the ALJ’s statement in

the initial decision.

¶20 In sum, the respondent has not proven that she was a qualified individual

with a disability. The record reflects that in 2010, prior to her falls (which

resulted in the diagnosis of post-concussion syndrome and a flare-up of her

fibromyalgia), the respondent was issued a Letter of Coun seling concerning her

failure to manage her docket in a timely and efficient manner. 0008 IAF, Tab 171

at 125-26, 138-41. However, after her falls, the record demonstrates fairly

conclusively that the respondent was unable to perform the essential functi ons of

her position with or without an accommodation. Accordingly, we agree with the

ALJ that the respondent did not prove her claim of disability discrimination based

on a failure to accommodate.

¶21 We also have considered the respondent’s contention that SSA treated ALJ

H.C. and other ALJs differently than her. In pertinent part, she asserts on review

that, in fiscal year 2012, she issued more decisions and held more hearings than

ALJ H.C., but ALJ H.C. was never reprimanded, disciplined, charged with

unacceptable docket management, or had her removal proposed. PFR File, Tab 3

at 15. We interpret this argument as a challenge to the ALJ’s conclusion that she

did not prove her disparate treatment disability discrimination claim. ID at 49.

¶22 As with a claim of disability discrimination based on an agency’s failure to

reasonably accommodate that disability, a claim based on an individual’s status as

disabled requires that the individual be a qualified individual with a disability.

Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 28. Further, to

establish a claim of disparate treatment disability discrimination, the respondent

has the burden of proving that her disability was a motivating factor in the

agency’s proposed suspension and removal actions. See Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 35, 37, 40, 42. If the respondent

meets her burden, the Board will then inquire whether the agency has shown by

preponderant evidence that the action was not based on the prohibited personnel

practice, i.e., that it still would have taken the contested action in the absence of

the discriminatory motive. Id., ¶¶ 33-34. If the Board finds that the agency has

made that showing, its prohibited personnel practice will not require reversal of

the action. 14 Id.

¶23 As we found above, we agree with the ALJ that the respondent was not a

qualified individual with a disability. Furthermore, we agree with the ALJ that

the respondent has not identified any comparators that had such deficiencies in

docket management, low production, a backlog of cases, or inability to perform

the essential functions of her position. ID at 49; see Brown v. Department of the

Interior, 121 M.S.P.R. 205, ¶ 27 (2014) (explaining that for employees to be

similarly situated for purposes of a disparate treatment discrimination claim, all

relevant aspects of the employee’s employment situation must be “nearly

identical” to those of the comparator employees). For instance, the record

reflects that ALJ H.C., a nearly 20-year employee who was diagnosed with

Because we affirm the ALJ’s finding that the respondent failed to show that any

prohibited consideration was a motivating factor in the petitioner’s actions, we need not

resolve the issue of whether the respondent proved that discrimination was a but-for

cause of the petitioner’s actions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.

Stage 4 metastatic breast cancer, had her request to hold fewer hearings as an

accommodation denied starting in 2012, she was issued a written directive to

schedule more hearings in May 2013, but, in the following fiscal year, she issued

more decisions and held more hearings than she had in previous years. 0008 IAF,

Tab 174 at 666-68; HT 11 at 3160-61, 3189-91, 3195-96, 3199-3201. Therefore,

we agree with the ALJ that the respondent has not proven her disparate treatment

disability discrimination claim. 15

SSA proved that it had good cause to remove the respondent.

¶24 Under 5 U.S.C. § 7521(a), “[a]n action may be taken against an [ALJ] . . .

only for good cause established and determined by the Merit Systems Protection

Board on the record after an opportunity for a hearing.” Abrams, 703 F.3d at 543;

Jennings v. Social Security Administration, 123 M.S.P.R. 577, ¶ 27 (2016). There

is no statutory definition of good cause; thus, the interpretation of the term is left

to the adjudicatory process and the facts of each case. Social Security

Administration v. Long, 113 M.S.P.R. 190, ¶ 13 (2010), aff’d, 635 F.3d 526 (Fed.

Cir. 2011). SSA must prove good cause by preponderant evidence. Id., ¶ 12.

The Board has made clear that the term “good cause” is not the equivalent of the

efficiency of the service standard in cases arising in adverse action appeals

pursuant to 5 U.S.C. § 7513, but chapter 75 appeals can provide some guidance

The respondent reiterates her claim, made below, that SSA harassed her based on her

disability and reasonable accommodation requests by, among other things, issuing many

directives to her. PFR File, Tab 3 at 17-25; 0008 IAF, Tab 160 at 5-15. The ALJ

did not explicitly address this claim in the initial decision, and we modify the initial

decision herein to do so. The respondent identifies on review the following legal

standard for such a claim: (1) a qualified individual with a disability; (2) subject to

unwelcome conduct or harassment; (3) based on the individual’s disability; (4) that

unreasonably interfered with work performance or created a hostile work environment;

and (5) there is a basis for imputing liability on the employer. PFR File, Tab 3 at 17-18

(citing Wagner v. Department of Transportation, EEOC Appeal No. 0120103125, 2010

WL 4972778 (Dec. 1, 2010)). Because we have found that the respondent is not a

qualified individual with a disability, she also could not prevail on this claim.

for determining what is good cause for an action against an ALJ. Id., ¶ 13.

Because we have affirmed the ALJ’s finding that SSA proved the charges of

unacceptable docket management and medical inability to perform, we find that

there is good cause to discipline the respondent. ID at 21-42.

¶25 In original jurisdiction cases such as this under 5 U.S.C. § 7521, it is the

Board, rather than the employing agency, which selects the penalty. Long,

113 M.S.P.R. 190, ¶ 47. The Board does not defer to SSA’s penalty selection, but

it uses the factors articulated in Douglas v. Veterans Administration, 5 M.S.P.R.

280, 305-06 (1981), to guide its penalty determination. Long, 113 M.S.P.R. 190,

¶ 47. In the initial decision, the ALJ discussed several of the relevant Douglas

factors, and he ultimately concluded that SSA demonstrated good cause to remove

the respondent. ID at 49-55. On review, the respondent contends that her

medical conditions warrant mitigation. PFR File, Tab 3 at 15, 25-26. We have

considered this argument, but a different outcome is not warranted.

¶26 The respondent correctly notes that evidence that an employee’s medical

condition played a part in the charged conduct is ordinarily entitled to

considerable weight as a mitigating factor. PFR File, Tab 3 at 25; see Malloy v.

U.S. Postal Service, 578 F.3d 1351, 1357 (Fed. Cir. 2009); Bowman v. Small

Business Administration, 122 M.S.P.R. 217, ¶ 13 (2015); Roseman v. Department

of the Treasury, 76 M.S.P.R. 334, 345 (1997). In the initial decision, the ALJ

noted the respondent’s “several serious medical conditions” were mitigating

factors. ID at 54-55. The ALJ found, however, that the mitigating circumstances

were “lessened” because the respondent was unable to manage her case docket

prior to any flare-up of her chronic conditions. Id.

¶27 We agree with the ALJ regarding the weight to be attributed to the

respondent’s medical conditions. In Mingledough v. Department of Veterans

Affairs, 88 M.S.P.R. 452, ¶ 12 (2001), the Board noted that a medical condition

was not a significant mitigating factor absent evidence that the impairment can be

remedied or controlled, i.e., when the potential for rehabilitation was poor. We

agree with the ALJ that there is not a good potential for rehabilitation because the

respondent has been unable to manage her docket since she began her tenure as an

SSA ALJ, which is before she had her two falls, was diagnosed with

post-concussion syndrome, or experienced any flare-up of her fibromyalgia

symptoms, and her work as an ALJ was inherently stressful and would likely

result in additional flare-ups. ID at 53-54. Accordingly, we have considered

evidence surrounding her conditions, but we find that they do not outweigh other

relevant factors, such as the nature and seriousness of the offenses. See, e.g.,

Long, 113 M.S.P.R. 190, ¶ 48 (explaining that the Board considers first and

foremost the seriousness of the charged conduct and its relationship to the

employee’s position and duties).

¶28 For the reasons discussed herein and in the initial decision, we concur with

the ALJ that SSA has shown good cause to remove the respondent under 5 U.S.C.

§ 7521. See, e.g., Shapiro, 800 F.3d at 1340 (finding no error in the Board’s

removal of the respondent based on a charge of unacceptable performance);

Social Security Administration v. Mills, 73 M.S.P.R. 463, 467-75 (1996) (finding

that an ALJ’s long-term absence from duty as a result of a disability with no

realistic chance of return, coupled with the agency’s demonstrated need t o fill the

position, constituted good cause for removal under 5 U.S.C. § 7521), aff’d,

124 F.3d 228 (Fed. Cir. 1997) (Table).

We discern no error with the ALJ’s decision to join the appeals or to issue the

protective order.

¶29 We have considered the respondent’s argument that, in joining the

suspension and removal appeals, the ALJ denied her the opportunity to “learn

from her mistakes” and was counter to the principle of progressive discipline.

PFR File, Tab 3 at 5-6. SSA, in its response, asserts that joinder is appropriate in

cases involving successive disciplinary petitions, cites to 5 C.F.R. § 1201.36, and

states that the respondent does not challenge that there are common witnesses,

evidence, and affirmative defenses between the two matters. PFR File, Tab 8

at 20.

¶30 We agree with SSA and the ALJ that joinder was appropriate. The

regulation at 5 C.F.R. § 1201.36(b) states that an ALJ may join cases if doing so

would expedite processing of the cases and not adversely affect the interests of

the parties. The respondent has not identified how her interests were adversely

affected when, as here, she was on notice of her performance deficiencies as early

as December 2010. Moreover, when there is voluminous evidence and witnesses

in common, we see no basis to preclude joinder in the absence of such an adverse

effect. See, e.g., Abrams, 703 F.3d at 540-42 (noting that the three complaints,

involving a 14-day suspension, a 30-day suspension, and a removal, were

“combined”).

¶31 Finally, the record reflects that SSA filed a motion for a protective order to

protect personal medical records of claimants, personnel information about other

employees, and its internal deliberations that would be provided to the respondent

during discovery, and the ALJ granted this request over the respondent’s

objection. 0008 IAF, Tabs 16, 20. The respondent asserts on review that the

protective order denied her rights as set forth in 5 C.F.R. § 1201.139(b)(2), which

states in pertinent part that, when an agency files a complaint proposing an action

against an ALJ, the ALJ has a right to be represented. PFR File, Tab 3 at 6-8. In

particular, the respondent asserts that her right to representation was limited

because the protective order “imposed broad restrictions upon [her] ability to

provide her counsel with materials and information.” Id. at 7. She appears to

contend that she was unable to share any document that she authored or received

in the course of her work as an ALJ, including to supervisors or doctors, nor

could she share with her attorney any emails that she may have sent to her

supervisor that contained protected whistleblowing or other disclosures. Id.

¶32 The Board will not reverse an administrative judge’s rulings on discovery

matters absent an abuse of discretion. Wagner v. Environmental Protection

Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)

(Table). The abuse-of-discretion standard is a very high standard and allows for

great deference. Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15

(2010). We have reviewed the protective order. However, we are not persuaded

that the ALJ’s decision to grant SSA’s request for a protective order constituted

an abuse of discretion because it does not appear to prohibit the respondent from

sharing with her attorney any documentation that she deemed essential to her

defense in these matters.

¶33 Accordingly, the initial decision is affirmed, except as modified herein.

ORDER

¶34 The Board authorizes SSA to remove the respondent from her ALJ position

for good cause shown, pursuant to 5 U.S.C. § 7521.

NOTICE OF APPEAL RIGHTS 16

The 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 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

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.

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 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 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 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 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 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. 17 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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 Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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