Opinion

Michael Favreau v. Department of the Army

Court: Merit Systems Protection Board
Filed: Mar 9, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL LUCON FAVREAU, DOCKET NUMBER

Appellant, SF-0752-12-0547-I-6

DEPARTMENT OF THE ARMY, DATE: March 9, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David P. Clisham, Esquire, San Francisco, California, for the appellant.

David Michael Tucker and Douglas W. Hales, Fort Hunter Liggett,

California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

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

dismissed the appeal as moot. Generally, we grant petitions such as this one only

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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. Except as expressly MODIFIED by

this Final Order, we AFFIRM the initial decision. 3

BACKGROUND

¶2 At the time of the removal action upon which this appeal is based, the

appellant was employed as a Police Officer, GS-0083-06, by the U.S. Army

Installation Management Command, Directorate of Emergency Services,

Police/Provost Marshall Division, Law Enforcement Branch, Camp Parks,

California. Favreau v. Department of the Army, MSPB Docket No. SF-0752-12-

0547-I-1, Initial Appeal File (IAF), Tab 5, Subtab 4a. The appellant entered on

duty on November 11, 2007. Id., Subtab 4n. The vacancy announcement for his

position required the incumbent to “have or be able to complete an approved Law

Enforcement Academy training within 24 months from the date of employment,”

and Army Regulation 190-56 imposed a requirement to attend “accredited”

academy training unless such requirement was waived. Id., Subtabs 4k, 4o.

Local management sought a training waiver for the appellant, but the agency’s

Office of the Provost Marshal General denied the waiver request and also an

We modify the initial decision to address the issue of disability discrimination de

novo.

appeal of the denial because the appellant lacked sufficient recent law

enforcement experience. Id., Subtab 4i. Based on his inability to obtain the

waiver and his failure to attend academy training within 2 years of his original

hire date, the agency removed the appellant effective J anuary 1, 2011. Favreau v.

Department of the Army, MSPB Docket No. SF-0752-11-0273-I-1 (Favreau I),

Initial Decision (ID) at 2-4 (Feb. 3, 2012).

¶3 The appellant appealed the removal, which the administrative judge

reversed on the ground of a due process violation. Favreau I ID at 1, 16.

However, the administrative judge found that the appellant did not prove any of

his affirmative defenses. Favreau I ID at 16. The Board affirmed the

administrative judge’s decision, and the agency restored the appellant effective

January 1, 2011. Favreau I Final Order (Feb. 21, 2014).

¶4 The appellant returned to duty on February 26, 2012. On February 27,

2012, the agency issued a Notice of Proposed Removal, proposing his removal for

failure to maintain a basic condition of employment. IAF, Tab 5, Subtab 4f. The

appellant was removed effective April 30, 2012, and he filed this appeal. Id.,

Subtab 4c; IAF, Tab 1.

¶5 At the parties’ request, the administrative judge dismissed this appeal

without prejudice five times 4 while the parties awaited the Board’s decision in

Favreau I and tried to settle the appeal before resuming adjudication. On the first

day of the hearing, the parties entered into settlement discussions. Favreau v.

Department of the Army, MPSB Docket No. SF-0752-12-0547-I-6, Refiled Appeal

File, (I-6 RAF), Tab 41, Initial Decision (I-6 ID) at 3. The parties did not reach a

settlement, but the agency rescinded the removal and returned the appellant to

duty on May 18, 2015. I-6 RAF, Tab 11 at 16. The agency moved to dismiss the

The administrative judge’s several initial decisions dismissing the appeals without

prejudice are as follows: IAF, Tab 12; Favreau v. Department of the Army, MPSB

Docket Nos. SF-0752-12-0547-I-2, Refiled Appeal File, Tab 4; SF-0752-12-0547-I-3,

Refiled Appeal File, Tab 7; SF-0752-12-0547-I-4, Refiled Appeal File, Tab 41;

SF-0752-12-0547-I-5, Refiled Appeal File, Tab 9.

appeal, arguing that it was moot because the appellant had been returned to his

prior duties and he had been provided all of the relief to which he would have

been entitled had he prevailed. I-6 RAF, Tabs 8, 13-15. The administrative judge

held the second day of the hearing to address issues related to the agency’s

obligation to provide the appellant with full relief and to hear ev idence and

argument regarding the appellant’s affirmative defenses of disability

discrimination and retaliation for engaging in equal employment opportunity

(EEO) activity. I-6 RAF, Tabs 21, 30, 33.

¶6 In an initial decision, the administrative judge found that the agency

showed by preponderant evidence that it had completely rescinded the appellant’s

removal and granted him full relief in the matters related to his reinstatement,

back pay, and benefits. I-6 ID at 5-18. The administrative judge found that the

appellant failed to prove his affirmative defenses of discrimination and

retaliation. I-6 ID at 18-28. Because the appellant would not be able to receive

damages based on these defenses, and the agency provided all the other relief to

which he was entitled, the administrative judge declined to rule on the appellant’s

affirmative defenses of retaliation for union activity, harmful procedural error,

and denial of minimum due process. I-6 ID at 28. The administrative judge

likewise declined to consider the appellant’s whistleblower claim. I-6 ID

at 28-29. He found the appellant’s claim for attorney fees to be premature.

I-6 ID at 18. The administrative judge thus dismissed the appeal as moot. I-6 ID

at 29-30. The appellant filed this petition for review. Petition for Review (PFR)

File, Tab 3.

Applicable Law

¶7 An agency’s rescinding a final decision divests the Board of jurisdiction

over an otherwise appealable action if the agency returns the appellant to the

status quo ante. In such cases, the appeal is rendered moot. Ryan v. Department

of the Air Force, 117 M.S.P.R. 362, ¶ 9 (2012) (stating that an appeal is rendered

moot when an appellant receives all of the relief that he could have received if the

matter had been adjudicated and he had prevailed). An appealable adverse action

cannot be rendered moot by an agency’s rescinding the action unless the

employee has received all the back pay to which he is entitled. Sredzinski v. U.S.

Postal Service, 105 M.S.P.R. 571, ¶ 7 (2007). Additionally, an agency must

remove all references to such action from the employee’s personnel records when

it cancels an action. Gonzales v. U.S. Postal Service, 44 M.S.P.R. 517,

519-20 (1990).

Reinstatement

¶8 Here, the administrative judge found in the initial decision that the

appellant, by his own admission, was reinstated to the status quo ante because he

was returned to the same GS-0083-06 position he occupied before his removal,

and after he completed the required police academy training, he was assigned the

full duties of that position. I-6 ID at 6. The appellant argues that he should not

have been required to complete the police academy training before returning to

the position. PFR File, Tab 3 at 5-7, 10. He asserts that, had he prevailed on

appeal, he would have been found to have met the conditions of employment and

would not have been required to attend the academy. Id. at 10. He argues that

the administrative judge’s findings “ratif[y] the [a]gency’s failure to regard [him]

as having prevailed on his appeal.” Id. He additionally points out that local

management testified that he had met the training requirements for his position

when he was hired. Id. at 7-8.

¶9 We find that, whether local managers and the appellant believed his prior

training was sufficient, he nevertheless completed additional police academy

training after his reinstatement and was fully reinstated to the duties of his

position. Hearing Transcript (HT) (April 8, 2016) at 124-26 (testimony of the

appellant). The Board cannot grant him any further relief in this respect.

Special Assignments

¶10 The appellant argued on appeal that he was not reinstated to two special

assignments in which he served before his removal: unit armorer and traffic

accident investigator. Based on undisputed testimony, the administrative judge

found that these were merely collateral duties to which he was assigned, which

were “neither permanent nor intrinsic to [his] position as a police officer.” I -6 ID

at 7-9. The administrative judge further noted that the appellant had not been

certified to serve as a traffic investigator, no permanent position had been funded

for these assignments, and the armorer position was entirely informal in nature.

I-6 ID at 8. The appellant argues on review that he should have been reinstated to

these collateral duties. He asserts that the initial decision adopts the agency’s

position on the issue, and its failure to reassign him to these “appointments”

constitutes continuing animus against him. PFR File, Tab 3 at 11-12.

¶11 We find that the administrative judge did not err in determining that these

assignments were collateral duties. In fact, the appellant admitted that the unit

armorer duties were collateral in nature. Id. at 11; see also Favreau v.

Department of the Army, MPSB Docket No. SF-0752-12-0547-I-5, Refiled Appeal

File (I-5 RAF), Tab 34 at 12. Moreover, the appellant’s traffic investigator duties

could have been only collateral because the agency was not authorized to fill a

permanent Traffic Investigator position. HT (April 8, 2016) at 14-18, 25

(testimony of the Emergency Services Director); I -5 RAF, Tab 32 at 47-49.

Further, the appellant lacked the specialized training required to fill a permanent

Traffic Investigator position. HT (April 8, 2016) at 14-20 (testimony of the

Emergency Services Director); I-5 RAF, Tab 32 at 48. The appellant’s arguments

are thus unavailing.

Promotion

¶12 Next, the administrative judge found that the appellant failed to

nonfrivolously allege facts clearly establishing that he would have been promoted

during the period of his absence from May 1, 2012, through May 15, 2015, or that

such a promotion was mandated by law. I-6 ID at 9-10. The administrative judge

particularly noted that the appellant had not completed the required police

academy training at the time during which any promotional opportunity might

have arisen. Id.; see Harris v. Department of Agriculture, 50 M.S.P.R. 686, 697 (1991)

(holding that, in the absence of a law requiring a promotion or facts establishing a

clear entitlement to a retroactive promotion, an employee is not automatically

entitled to a promotion upon reinstatement). The administrative judge found that,

at best, the appellant was simply asserting that he should have been selected o ver

other persons in various competitive promotion opportunities that arose during

the relevant time period. I-6 ID at 10.

¶13 On review, the appellant reiterates the argument he made during the

compliance proceedings related to Favreau I—that lesser-qualified individuals

were hired or promoted to higher-graded positions during his absence. PFR File,

Tab 3 at 12-13; Favreau v. Department of the Army, MSPB Docket No. SF-0752-

11-0273-C-2, Compliance Initial Decision at 11-12 (May 6, 2016); Favreau v.

Department of the Army, MSPB Docket No. SF-0752-11-0273-C-2, Compliance

Petition for Review File, Tab 1 at 10-11. These matters relate to the time period

before the appellant’s April 2012 removal and not to the post-removal period that

would be relevant in the instant appeal. 5 We find, therefore, that the appellant

has not shown that he would have been promoted, or any promotion would have

been mandated by law, during the period following his second removal.

Back Pay

¶14 In addition, the administrative judge found that the appellant had been paid

all of the back pay owed to him for the period between May 1, 2012, and May 16,

2015. I-6 ID at 10-12. On review, the appellant asserts that he cannot be sure he

received all such pay because the agency’s information rega rding back pay was

The administrative judge noted that the appellant raised several issues regarding

agency actions prior to his April 2012 removal. The administrative judge found that

these issues were beyond the scope of this appeal. I-6 ID at 10 n.2.

confusing, incomplete, and inaccurate. PFR File, Tab 3 at 13-15. He further

asserts that the agency did not provide him with timesheets to verify that he was

awarded back pay for the pertinent pay periods. Id. at 14.

¶15 In reaching his decision, the administrative judge relied on an affidavit from

the civilian branch chief at the Defense Finance and Accounting Services (DFAS)

who processed the appellant’s back pay award. I -6 ID at 10-12. The affidavit

describes in detail the processing of the award. Favreau v. Department of the

Army, MPSB Docket No. SF-0752-12-0547-I-5, Refiled Appeal File (I-5 RAF),

Tab 13 at 22-25. The administrative judge additionally relied upon a

DFAS-generated spreadsheet, which shows the number of regular and overtime

hours, special payments, night differentials, holiday pay, and the hourly rate for

each pay category for every pay period for which an award was made. Id.

at 27-33. The record also includes a copy of the appellant’s leave and earnings

statement for November 12, 2015, which shows that he received the back pay

award. Id. at 19-20. The record additionally includes a sworn statement from the

supervisory official responsible for ensuring that the appellant’s back pay was

processed correctly. She explained that she had prepared timesheets for the back

pay period and presented them to the appellant for his consideration. I -5 RAF,

Tab 7 at 8-10. She appended related email messages to her statement. We find

that these messages indicate that the appellant, despite his argument to the

contrary, received and reviewed the applicable timesheets. Id. at 11-18. The

appellant’s argument that he did not receive all of the back pay the agency owed

him is thus unavailing.

Overtime Pay

¶16 The administrative judge found, moreover, that the method the agency used

for computing the appellant’s overtime during the back pay period was reasonable

and workable. I-6 ID at 13-16. The administrative judge was not persuaded by

the appellant’s assertion that the agency should have matched his average

overtime earnings for 2008 and 2009 when calculating his overtime for the period

from May 1, 2012, to May 15, 2015. The administrative judge determined that

the amount of available overtime changed from year to year based on multiple

factors, including the agency’s budget and the willingness of other personnel to

work overtime. Id. He further determined that the policy authorizing overtime

pay for changing into and out of uniform at the beginning and ending of shifts,

i.e., “donning and doffing” pay, was not implemented until May 3, 2015, the last

pay period prior to the appellant’s return to duty, and the appellant had been paid

appropriately for that pay period. I-6 ID at 16. The administrative judge found

that the appellant’s other assertions about the agency’s overtime pay practices

were vague and unsupported. Id.

¶17 On review, the appellant argues that the administrative judge erred in

upholding the agency’s calculation of overtime based on his “wrongful relegation

to the status of ‘security guard’ beginning in March 2010.” PFR File, Tab 3

at 15. The appellant contends that he had completed two police academies prior

to entering on duty, had been “routinely instructed . . . to engage in law

enforcement activities as a police officer despite the erroneous designation of

security guard,” and was still paid as a police officer. Id. He argues that his

overtime should have been calculated based on his service as a police officer

during 2008 and 2009, and not by averaging the overtime that other employees

earned during his absence. Id. at 15-16.

¶18 Agency regulations, however, allow for “[t]he method of computi ng

overtime . . . [to] be based on the average number of overtime hours worked by

fellow employees occupying similar positions during the same period.”

Department of Defense (DOD) Financial Management Regulation

(FMR) 7000.14-R, vol. 8, ch. 6, ¶ 060404D. Noting that overtime can vary

greatly for a variety of reasons, the agency acknowledged that the appellant’s

overtime hours dropped significantly after he was assigned to security guard

duties. I-5 RAF, Tab 13 at 7-8. The agency further acknowledged that the

average number of overtime hours was likely insufficient to compensate the

appellant at the rate of overtime pay he received as a police officer prior to 2010.

Id. at 7. For these reasons, the agency explained, it matched the appellant’s

overtime pay to that of the top earner in each calendar year. Id. at 7-8. The

Board will not nullify the method employed by an agency in calculating a back

pay award absent a showing that the method was unreasonable or unworkable.

Broadnax v. U.S. Postal Service, 35 M.S.P.R. 219, 226 (1987). The appellant has

not made such a showing, and, in any event, we agree with the administrative

judge’s assessment that the agency’s approach was both reasonable and workable.

I-6 ID at 15-16.

Deductions for Interim Earnings

¶19 The administrative judge further found that the agency properly deducted

$35,796.83 from the back pay award, representing the appellant’s interim

earnings during 2012 through 2014, because these earnings did not constitute

additional or “moonlight” employment under 5 C.F.R. § 550.805(e)(1). I-6 ID

at 16-18. The agency asserted that the appellant’s ear nings as a security guard

with his interim employer, Strategic Threat Management, did not represent

additional or “moonlight” employment because his superiors specifically directed

him to stop such work in 2008. I-5 RAF, Tab 13 at 9. Agency regulations

provide that the “only earnings from other employment that may not be deducted

from back pay are earnings from outside employment the employee already had

before the period of wrongful suspension or separation.” DOD, FMR 7000.14 -R,

vol. 8, ch. 6, ¶ 060405C.

¶20 On review, the appellant argues that his interim earnings should not have

been deducted as they constituted work as a security guard, and not as a police

officer. PFR File, Tab 3 at 16. The appellant contends that the agency’s

rescinding his removal meant he had prevailed on appeal and that the agency was

required to have allowed him outside or “moonlight” employment before his

removal. Id. The appellant has not shown, however, that he could or would have

worked at his outside employment had he not been removed. See Weber v.

Department of Justice, 88 M.S.P.R. 345, ¶ 11 (2001). Interim employment must

be in the same position as the pre-removal outside employment, and it must have

been approved by the agency. Id. It is undisputed that the agency forbade the

appellant from working as a security guard for Strategic Threat Management.

I-5 RAF, Tab 15, Subtab 6 at 37. The appellant was only able to work at

Strategic Threat Management because he had been removed. Further, rescinding

the appellant’s removal has no bearing on this issue. As the appellant admitted in

his affidavit, the agency ordered him not to work as a security guard in 2008

because it posed a conflict of interest with his agency employment. I -5 RAF,

Tab 15 at 37.

Disability Discrimination

¶21 When the Board reverses a case on due process grounds without reaching

the merits of the underlying action, it must never theless render a decision on the

affirmative defense of disability discrimination. Favreau I ID at 16; see 5 U.S.C.

§ 7702(a)(1); Schibik v. Department of Veterans Affairs, 98 M.S.P.R. 591, ¶ 11

(2005); Marchese v. Department of the Navy, 32 M.S.P.R. 461, 464 (1987),

overruled on other grounds by Abbott v. U.S. Postal Service , 121 M.S.P.R. 294

(2014). The administrative judge made findings on the appellant’s discrimination

claims in Favreau I. Favreau I ID at 26-31. The administrative judge concluded

that the appellant failed to prove that either of his claimed impairments

substantially limited one or more major life activities. Id. at 28-29. The Board

affirmed the initial decision without modifying those findings. Favreau I Final

Order at 2.

¶22 In the instant appeal, the appellant reasserted his affirmative defense of

disability discrimination. Favreau v. Department of the Army, MPSB Docket

No. SF-0752-12-0547-I-3, Refiled Appeal File (I-3 RAF), Tab 28 at 13-20. He

alleged that his removal constituted disability discrimination based on disparate

treatment and the agency’s failure to accommodate his disability. I-3 RAF,

Tab 20 at 14. Relying on the findings in Favreau I, the administrative judge

found the appellant’s discrimination claim to be barred by collateral estoppel. I-6

ID at 21-22. The administrative judge found that the issue of whether the

appellant was a qualified person with a disability was identical to the issue

already litigated in Favreau I, the determination on that issue was necessary to

the resulting judgment, and the appellant was fully represented. 6 I-6 ID at 22.

¶23 The administrative judge also considered the appellant’s claim that the

agency’s action was motivated at least in part by the proposing official’s

perception that he was disabled and thus unable to meet the physical requirements

for attending police academy training after he proffered the results of an

alternative to the physical agility test (PAT) required for admission to the

academy. I-3 RAF, Tab 28 at 17. Without relying on the doctrine of collateral

estoppel, the administrative judge rejected the appellant’s claim that the agency

regarded him as disabled on grounds similar to the Board’s rejecting the same

claim in Favreau I. I-6 ID at 22-23; Favreau I Final Order at 11-12.

¶24 On review, the appellant asserts that the administrative judge should not

have relied on the doctrine of collateral estoppel because the second removal

action was separate and distinct from the first removal action; that is, the deciding

official and some of the evidence was different, additional evidence was a vailable

establishing that his prior police academy courses met the training requirements

for his position, and he had passed an alternative PAT, which qualified him to

The elements of collateral estoppel are as follows: (1) the issue must be identical to

that involved in the prior action; (2) the issue was actually litigated in the prior action;

(3) the determination on the issue in the prior action was necessary to the resulting

judgment; and (4) the party against whom issue preclusion is sought had a full and fair

opportunity to litigate the issue in the prior action, either as a party to the earlie r action

or as one whose interests were otherwise fully represented in that action.

Kavaliauskas v. Department of the Treasury, 120 M.S.P.R. 509, ¶ 5 (2014). The

appellant objected to the administrative judge’s citing these cases, asserting that they

are factually inapposite. PFR File, Tab 3 at 19. We cite these cases not for their

factual similarity to the instant appeal, but, instead, because they articulate the standard

for determining whether collateral estoppel may apply.

attend the police academy. PFR File, Tab 3 at 19-20. He also reiterates his

assertion that the agency’s action was motivated in part by the proposing

official’s perception that he was disabled. Id. at 17-18. The appellant

additionally argues that the administrative judge failed to address the issue of

whether he had a record of an impairment that substantially limited one or more

major life activities. Id. at 17; see 42 U.S.C. § 12102(1).

¶25 We agree with the administrative judge’s application of the doctrine of

collateral estoppel. Alternatively, though, assuming arguendo that the appellant

is correct in arguing that the administrative judge erred in not reviewing his

discrimination allegations as to the second removal, as the record is complete on

this issue we may consider this claim now. The appellant’s claim arises under the

Rehabilitation Act of 1973. Simpson v. U.S. Postal Service, 113 M.S.P.R. 346,

¶ 8 (2010). The Board adjudicates claims of disability discrimination raised in

connection with an otherwise appealable action under the substantive standards of

section 501 of the Rehabilitation Act. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with

Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008

(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.

¶26 The ADAAA prohibits discrimination “against a qualified individual on the

basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training,

and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a); Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 18

(2010). The ADAAA defines “qualified individual,” in part, as “an individual

who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires.”

42 U.S.C. § 12111(8). An employer is also required to provide reasonable

accommodations to an otherwise qualified individual with a disability. 42 U.S.C.

§ 12112(b)(5). Thus, both a claim of disability discrimination based on an

individual’s status as disabled and a claim based on an agency’s failure to

reasonably accommodate that disability require that the individual be “qualified.”

Haas v. Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29.

¶27 An individual may prove that he has a disability by showing that he suffers

from a physical or mental impairment that substantially limits one or more major

life activities; has a record of such impairment; or is regarded as having such

impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An impairment is

considered a disability if it substantially limits an individual ’s ability to perform

a major life activity as compared to most people in the general population.

29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include, but are not limited to,

caring for oneself, performing manual tasks, eating, lifting, bending,

concentrating, communicating, and working. 29 C.F.R. § 1630.2(i)(1)(i). Major

life activities also include the operation of major bodily functions . 29 C.F.R.

§ 1630.2(i)(1)(ii).

¶28 Whether an impairment substantially limits a major life activity requires an

individualized assessment. 29 C.F.R. § 1630.2(j)(1)(iv). Although not every

impairment will be limiting, an impairment need not prevent, or significantly or

severely restrict, the individual from performing a major life activity to be

considered substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ii). An impairment

that substantially limits one major life activity need not limit other major life

activities. 29 C.F.R. § 1630.2(j)(1)(viii). An impairment that is episodic or in

remission is a disability if it would substantially limit a major life activity when

active. 29 C.F.R. § 1630.2(j)(1)(vii). Determining whether an impairment

substantially limits a major life activity shall be made without regard to the

ameliorative effects of mitigating measures other than ordinary eyeglasses or

contact lenses. 29 C.F.R. § 1630.2(j)(1)(vi).

¶29 The appellant has not presented any evidence of disability other than the

evidence he presented in Favreau I. He has alleged two impairing conditions:

hypertension, diagnosed in 2008, which requires him to take daily medication and

prevents him from running for more than a mile, and a 2010 shoulder injury,

which prevents him from being able to perform more than five pushups. I -3 RAF,

Tab 20 at 11-12, Tab 28 at 13-14; HT (April 8, 2016) at 108 (testimony of the

appellant). He cited March 10, 2010 and November 3, 2010 medical clearance

letters as evidence that he suffered from the shoulder condition and that he could

perform the essential functions of the position. I-3 RAF, Tab 28 at 14, 54-55, 60.

The November 2010 clearance letter was addressed in Favreau I. Favreau I ID

at 28. The appellant did not document his hypertension diagnosis at all, and the

November 2010 clearance letter specifies that his condition was temporary and

his prognosis for recovery was good. I-3 RAF, Tab 28 at 54-55. He alleged only

that the shoulder injury affected his ability to do pushups. Id. at 14. The

appellant thus has not shown that either claimed impairment substantially limited

his ability to perform any major life activit y. For the same reason, he has not

shown that he has a record of having an impairment that substantially limited his

ability to perform any major life activity.

¶30 As for the appellant’s assertion that the agency failed to grant reasonable

accommodations for his conditions, PFR File, Tab 3 at 18, an agency is required

to provide such accommodations for the known physical and mental limitations of

an otherwise qualified individual with a disability unless the agency can show

that an accommodation would create an undue hardship for its business

operations. 29 C.F.R. § 1630.9(a). Reasonable accommodations include

modifications to the manner in which the duties of a position are customarily

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

essential job functions. Miller v. Department of the Army, 121 M.S.P.R. 189,

¶ 13 (2014). Even if the appellant had established that he suffered from or had a

record of suffering from a substantially limiting impairment to his shoulder, he

would not have been entitled to an accommodation under the regulat ions in effect

at the time of his removal because his impairment was not a long-term condition.

I-3 RAF, Tab 28 at 54-55. Under the rules then in effect, individuals with

temporary medical restrictions were exempt from the PAT only for the duration

of the restrictions. I-5 RAF, Tab 15 at 44. Furthermore, had the agency regarded

the appellant as disabled, it would not have been obligated to provide a

reasonable accommodation because he did not have a substantially limiting

impairment. Carter v. Department of Justice, 88 M.S.P.R. 641, ¶ 24 (2001);

29 C.F.R. § 1630.2(o)(4) (a covered entity is not required to provide a reasonable

accommodation to an individual who meets the definition of disability solely

under the “regarded as” prong).

¶31 Because the appellant is not a qualified individual with a disability, he also

failed to prove his claim that the agency discriminated agains t him based on his

disability. Moreover, we find that he has not shown that his disability was a

motivating factor in the agency’s removal decision. To analyze a claim of

disability discrimination based on disparate treatment, the Board first determines

whether the appellant has shown by preponderant evidence that the prohibited

consideration was a motivating factor in the contested personnel action, and , if

so, whether the agency has shown by preponderant evidence that it would have

taken the contested action in the absence of the discriminatory motive. Pridgen,

2022 MSPB 31, ¶¶ 35, 37, 40. 7

¶32 The appellant has not put forward any evidence to show that the removal

action was motivated by the impairments he alleges to be disabling or by any

perceived disability. Instead, the agency’s sole stated rationale for the removal

action was his failure to attend police academy training. Neither the proposal

Because we affirm the administrative judge’s finding that the appellant failed to show

that any prohibited consideration was a motivating factor in the agency’s actions, we

need not resolve the issue of whether the appellant proved that discrimination or

retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB

31, ¶¶ 20-22, 29-33.

notice nor the decision notice mention his medical conditions. IAF, Tab 5,

Subtabs 4c, 4f; cf. Southerland, 119 M.S.P.R. 566, ¶¶ 16, 22 (finding that the

deciding official’s statements in the decision letter regarding the appellant’s

inability to fulfill the full range of his duties owing to his medical condition

constituted direct evidence of a discriminatory motive), overruled on other

grounds by Pridgen , 2022 MSPB 31, ¶¶ 44-47. In his deposition, the deciding

official stated that he based his decision to remove solely on the appel lant’s

failure to attend or waive the police academy attendance requirement. I -5 RAF,

Tab 37 at 11-12. He explained that he knew of the appellant’s shoulder injury,

but the injury did not factor into his removal decision. Id. at 12. Additionally,

the proposing official and agency chain of command supported the appellant’s

request for a waiver of the academy training requirement, as the Board also

observed in Favreau I. Favreau I Final Order at 12.

¶33 Accordingly, we find that the administrative judge correctly applied the

doctrine of collateral estoppel to the appellant’s disability discrimination claim.

Alternatively, we find that the appellant failed to establish his affirmative defense

of disability discrimination.

Retaliation

¶34 The administrative judge also found the appellant’s claim that the agency

had retaliated against him for prior EEO activity to be moot because he had not

claimed any compensatory damages arising from the alleged retaliation. I -6 ID

at 24. In the alternative, the administrative judge found that the appellant failed

to meet his burden of proving that the agency removed him in retaliation for his

prior EEO activity. I-6 ID at 24-28.

¶35 On review, the appellant objects to the latter finding. PFR File, Tab 3

at 16-20. He has, however, offered no direct evidence and only scant

circumstantial evidence of retaliation. Certainly, suspicious timing is not evident

here. 8 As the administrative judge noted, the activities that the appellant alleges

underlay the retaliation predate the January 2011 removal action, and some date

from 2007 and 2008. I-3 RAF, Tab 20 at 83-87. The appellant also offered no

evidence that the deciding official knew about his EEO activity. The deciding

official stated under oath that, in his limited interactions with the proposing

official, he did not recall talking about the appellant. I-5 RAF, Tab 37 at 10. We

thus find the appellant’s claim of retaliation to be unavailing. In any event,

because he has not requested damages, the issue is moot as the administrative

judge correctly explained in the initial decision. I-6 ID at 24.

Attorney fees

¶36 Finally, the appellant argues that he has not received the attorney fees to

which he is entitled as a prevailing party. He argues that he ha s not had an

opportunity to request fees in the first instance, and dismissal on grounds of

mootness appears to be intended to deprive the Board of jurisdiction to consider

his request for fees. Potential recovery of attorney fees, however, does not

prevent the dismissal of an appeal as moot. Murphy v. Department of Justice,

107 M.S.P.R. 154, ¶ 6 (2007). The Board considers attorney fees in an addendum

proceeding after an appellant files a separate petition on that issue. See 5 C.F.R.

§§ 1201.201-.205.

¶37 Accordingly, we affirm the initial decision, except as modified by this Final

Order.

Circumstantial evidence includes evidence of suspicious timing, ambiguous statements

oral or written, behavior toward or comments directed at other employees in the

protected group, and other bits and pieces from which an inference of discriminatory

intent might be drawn. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42

(2015), overruled in part by Pridgen, 2022 MSPB 31, ¶¶23-25. It also includes

comparator evidence and evidence that the agency’s stated reason for its action is

pretextual. Id.

NOTICE OF APPEAL RIGHTS 9

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 situ ation 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).

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.

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 at torney 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. 10 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).

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