Gabriel Kotsis v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GABRIEL KOTSIS, DOCKET NUMBER

Appellant, AT-0432-16-0006-I-1

v.

DEPARTMENT OF DATE: August 9, 2022

TRANSPORTATION,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

John Durishan, Esquire, Atlanta, Georgia, for the appellant.

Charles Lohmeyer, 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

affirmed his performance-based removal. For the reasons discussed below, we

GRANT the petition for review, VACATE the initial decision, and REMAND the

case to the Atlanta Regional Office for further adjudication in accordance with

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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this Remand Order and Santos v. National Aeronautics & Space Administration,

990 F.3d 1355 (Fed. Cir. 2021).

BACKGROUND

¶2 After the appellant, a GS-12 General Engineer, received an unsatisfactory

performance appraisal, the agency placed him on a 120-day performance

improvement plan (PIP). Initial Appeal File (IAF), Tab 17 at 16 -21. The PIP

period ended on or about November 25, 2014, and, on December 15, 2014, the

appellant’s supervisor informed him that he did not pass the PIP and that he likely

would be removed. IAF, Tab 20 at 49, 57. On December 18, 2014, the appellant

notified his supervisor that he had been diagnosed with a severe illness and that

he may need some time off due to this medical condition. IAF, Tab 26 at 42. On

March 12, 2015, the agency proposed to remove the appellant for failing to

demonstrate a minimally acceptable level of performance during his PIP and

immediately placed him on administrative leave. IAF, Tab 1 at 19-28. The

appellant requested sick leave from March 23 to April 4, 2015, but his supervisor

denied the request, noting that the appellant was already on administrative leave

for the period requested. IAF, Tab 18 at 4. On April 13, 2015, the agency

removed the appellant for unacceptable performance. IAF, Tab 1 at 29-32.

¶3 The appellant appealed the performance-based removal to the Board, raising

affirmative defenses of disability discrimination based on a failure to

accommodate and retaliation for prior equal employment opportunity (EEO)

activity. IAF, Tab 1, Tab 28 at 5. In an order and summary of the prehearing

conference, the administrative judge set forth the parties’ stipulations and, on the

basis of those stipulations, found that the agency met its burden of showing under

5 U.S.C. § 4303 that the performance-based removal was supported by substantial

evidence and that the only remaining issues to be decided were the appellant’s

affirmative defenses. IAF, Tab 28 at 3-10. The administrative judge notified the

appellant of the law and burden of proof applicable to his EEO reprisal and

disability discrimination affirmative defenses and ordered the parties to submit

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any exception to the order and summary in writing within 7 days. Id. at 1.

Neither party objected to the contents of the order and summary. After holding

the requested hearing, the administrative judge issued an initial decision finding

that the appellant failed to establish his affirmative defenses and affirming the

agency’s removal action. IAF, Tab 36, Initial Decision (ID).

¶4 The appellant has filed a petition for review of the i nitial decision, and the

agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. 2

On review, the appellant challenges only the administrative judge’s finding that

he failed to establish his affirmative defense of disability discrim ination based on

a failure to accommodate his medical condition. PFR File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 As an initial matter, the appellant does not challenge, and we discern no

basis to disturb, the administrative judge’s findings that the agency proved by

substantial evidence all the elements it was required to prove in a chapter 43

performance-based removal under the law as it existed at the time and that the

2

The appellant also submitted an untimely reply to the agency’s response, which the

agency moves to strike. PFR File, Tabs 4-5. A reply to a response to a petition for

review must be filed within 10 days after the date of service of the response to the

petition for review. 5 C.F.R. § 1201.114(e). Here, the appellant electronically filed his

reply to the agency’s response 7 days past the Septembe r 26, 2016 filing deadline. PFR

File, Tab 4. He requests that the Board accept this untimely filing and has submitted an

affidavit attesting that he was out of the country from August 25 to September 24, 2016.

PFR File, Tab 6. We find that the appellant’s contention that he was out of the country

until 2 days before the filing deadline does not establish good cause for his untimely

filing. The record reflects that the appellant is represented by counsel and that his

counsel was served, through the Board’s e-Appeal system, with the agency’s response

to his petition for review and the Clerk of the Board’s acknowledgment letter setting

forth the relevant filing deadlines. PFR File, Tab 2 at 1 -2, 5, Tab 3 at 19. The

appellant has not stated that he is no longer represented or otherwise addressed why his

representative was unable to make a timely filing or request an extension on his behalf.

He also has not explained why he could not submit a timely reply or request a filing

deadline extension through the Board’s e-Appeal system while he was out of the

country, or why he delayed another 9 days upon his return before submitting his reply.

Therefore, we GRANT the agency’s motion to strike the appellant’s reply and have not

considered it in reaching our decision in this matter.

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appellant failed to show that the agency retaliated against him for his EEO

activity. PFR File, Tab 1; 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); Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). Rather, as set

forth above, his arguments on review are limited to his affirmative defense of

disability discrimination based on a failure to accommodate his medical

condition. Accordingly, we address those arguments below but ultimately agree

with the administrative judge’s findings. Nevertheless, as further explained

below, we must remand this appeal in accordance with Santos.

We discern no error in the administrative judge’s finding that the appellant failed

to prove his affirmative defense of failure to accommodate his medical condition.

¶6 An agency is required to make a reasonable accommodation to t he 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. 3 White v. Department of Veterans

Affairs, 120 M.S.P.R. 405, ¶ 9 (2013); 29 C.F.R. § 1630.9(a). Reasonable

accommodation includes modifying the manner in which a position is customarily

performed to enable a qualified individual with a disability to perform the

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As a Federal employee, the appellant’s claim of disability discrimination arises under

the Rehabilitation Act. Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 8 (2010).

However, the standards under the Americans with Disabilities Act of 1990 (ADA) have

been incorporated by reference into the Rehabilitation Act , and we apply them to

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

Further, the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat.

3553 (codified at 42 U.S.C. §§ 12101 et seq.), applies to this appeal because the

incidents in question occurred after the January 1, 2009 effective date of the ADAAA.

See Simpson, 113 M.S.P.R. 346, ¶ 10. Although the ADAAA changed the interpretation

of the law concerning the existence of a disability, it did not affect the requirements of

the law as to reasonable accommodation. See Davis v. U.S. Postal Service,

119 M.S.P.R. 22, ¶ 11 n.4 (2012).

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essential job functions. White, 120 M.S.P.R. 405, ¶ 9. To establish a disability

discrimination claim based on a failure to accommodate, an appellant must prove

that he is a disabled person, that the action appealed was based on his disability ,

and, to the extent possible, articulate a reasonable accommodation under which he

believes he could perform the essential duties of his position or of a vacant

funded position to which he could be reassigned. Sanders v. Social Security

Administration, 114 M.S.P.R. 487, ¶ 16 (2010).

¶7 The appellant argued below that the agency failed to reasonably

accommodate him by denying his request for medical leave, which would have

permitted him to find an effective medication, and by refusing to allow him to

return to work to demonstrate improved performance after rec eiving medication

for his medical condition. IAF, Tab 34, Hearing Compact Disc, Track 2

(the appellant’s closing argument). The administrative judge found, however,

that the appellant did not request an accommodation until after completing the

PIP and that, because a reasonable accommodation is always prospective, the

agency was not obligated to excuse the appellant’s past failure to successfully

complete the PIP on the basis of his subsequent request for an accommodation.

ID at 11-16. The administrative judge also found that the agency’s denying the

appellant’s request for sick leave did not amount to denying a reasonable

accommodation request because the appellant was already on paid administrative

leave for the entire period requested. ID at 15-16.

¶8 On review, the appellant does not dispute the administrative judge’s finding

that he did not request any accommodation prior to completing the PIP period or

that he was already on leave for the period of the disallowed sick leave, but

argues that the agency improperly denied him a reasonable accommodation

because it did not allow him another opportunity to demonstrate effective service.

PFR File, Tab 1 at 14-15. He further argues that the administrative judge erred in

failing to determine whether his request for additional time to find effective

medication and another opportunity to demonstrate improved performance would

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have caused the agency undue hardship. Id. at 9-11. For the reasons discussed

below, we find no merit to these arguments.

¶9 Reasonable accommodation is always prospective; an agency does not have

a duty to retroactively excuse an employee’s poor performance on the basis of a

subsequent request to accommodate a previously unknown disability. See

42 U.S.C. § 12112(b)(5) (defining illegal disability discrimination under the

ADAAA to include failing to reasonably accommodate “known physical or

mental limitations”); 29 C.F.R. § 1630.9(a).

¶10 Here, after the appellant learned that he might be removed for failing the

PIP, he requested time to find an effective medication and a second chance to

demonstrate acceptable performance once he adjusted to his new medication.

However, for the reasons discussed above, a second chance is not a reasonable

accommodation as contemplated by the Rehabilitation Act even when, as here,

the performance deficiency may be related to the disability. See, e.g., Dewitt v.

Southwestern Bell Telephone Company, 845 F.3d 1299, 1316-17 (10th Cir. 2017)

(holding that, “[t]he ADAAA does not require employers to accommodate

disabled employees by overlooking a past violation of a workplace rule,

regardless of whether that violation was caused by the employee’s disability[]”);

Purcell v. Department of Veterans Affairs, EEOC Request No. 05970773,

1999 WL 448126, at *1-*2 (June 24, 1999) (finding that an agency was not

required to accommodate an employee or retroactively excuse her poor

performance on the basis of an after-the-fact request for accommodation).

Therefore, as the administrative judge correctly determined, the agency was not

obliged to accommodate the appellant by excusing his prior PIP failure and giving

him a second chance to demonstrate acceptable performance. ID at 15 -16.

Furthermore, the agency need not show that the appellant’s requested

accommodation would impose an undue hardship because his requested

accommodation was not reasonable. See, e.g., McElwee v. County of Orange,

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700 F.3d 635, 641 (2d Cir. 2012) (holding that an “accommodation that simply

excuses past misconduct is unreasonable as a matter of law[]”).

¶11 The appellant also argues on review that the agency must “honor [its]

invitation to provide reasonable assistance to improve [his] performance” because

the EEOC’s regulations require the Federal Government to be a “model

employer” of individuals with disabilities. PFR File, Tab 1 at 12; 29 C.F.R.

§ 1614.203(c). As previously discussed, however, the Rehabilitation Act does not

require the agency to provide the appellant a second chance to demonstrate

improved performance. The fact that the agency invited the appellant to request

any reasonable assistance that might help him to improve his performance

prospectively, while considering how to deal with his prior unacceptable

performance, does not suggest that the agency failed to act as a model employe r.

To the contrary, the appellant’s allegations reflect that the agency complied with

its obligations under the Rehabilitation Act to engage in the interactive process to

determine an appropriate accommodation after the appellant notified his

supervisors of his medical condition and his need for an accommodation. See

Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 17 (2014) (finding that,

even if an appellant had requested a reasonable accommodation, an agency’s

failure to engage in the interactive process, standing alone, does not violate the

Rehabilitation Act); Simpson, 113 M.S.P.R. 346, ¶ 16. Therefore, we find no

merit to the appellant’s argument that the agency failed to act as a model

employer, and his argument on review provides no basis to dis turb the initial

decision.

¶12 The appellant next argues that the administrative judge erred in finding that

his request for a reasonable accommodation was too late because, unlike the cases

cited in the initial decision wherein the employees were aware of the ir disability

at the time of their alleged misconduct, the appellant was not aware that he was

disabled until after the PIP period ended. PFR File, Tab 1 at 13 -14. Thus, he

argues that his “request for additional time to demonstrate effective service aft er

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he was granted time to address his newly diagnosed disability” was made at the

earliest possible time. Id. at 14. We find no merit to this argument. As the

administrative judge correctly found and as discussed above, the agency was

under no legal obligation to ignore or excuse the appellant’s unacceptable

performance occurring prior to his request for an accommodation. ID at 16. The

fact that the appellant lacked a diagnosis until after completing the PIP period

does not change this result.

Remand is necessary to afford the parties an opportunity to submit evidence and

argument regarding whether the appellant’s placement on a PIP was proper.

¶13 Although the appellant has identified no basis for us to disturb the

administrative judge’s findings below, we nonetheless must remand this appeal

for another reason. During the pendency of the petition for review in this case,

the United States Court of Appeals for the Federal Circuit held in Santos,

990 F.3d at 1360-61, that in addition to the five elements of the agency’s case set

forth in the initial decision, the agency must also justify the institution of a PIP

by proving by substantial evidence that the employee’s performance was

unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to

all pending cases, including this one, regardless of when the events took place.

Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. Although the record

in this appeal already contains evidence suggesting that the appellant’s

performance leading up to the PIP was indeed unacceptable, we remand the

appeal to give the parties the opportunity to present argument and additional

evidence on whether the appellant’s performance during the period leading up to

the PIP was unacceptable in one or more critical elements. See Lee, 2022 MSPB

11, ¶¶ 15-17. On remand, the administrative judge shall accept argument and

evidence on this issue, and shall hold a supplemental hearing if appropriate.

Id., ¶ 17.

¶14 The administrative judge shall then issue a new initial decision consistent

with Santos. See id. If the agency makes the additional showing required under

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Santos on remand that the appellant’s performance in at least one critical element

was at an unacceptable level prior to his placement on the PIP, the administrative

judge may incorporate his prior findings on the other elements of the agency’s

case and the appellant’s affirmative defenses in the remand initial decision. See

id. Regardless of whether the agency meets its burden, if the argument or

evidence on remand regarding the appellant’s pre-PIP performance affects the

administrative judge’s analysis of the appellant’s affirmative defense, he should

address such argument or evidence in the remand initial decision. See Spithaler

v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that

an initial decision must identify all material issues of fact and law, summarize the

evidence, resolve issues of credibility, and include the administrative judge’s

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

that reasoning rests).

ORDER

¶15 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.