The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL POWELL, DOCKET NUMBER
Appellant, DE-0752-17-0327-I-1
v.
DEPARTMENT OF DATE: June 7, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel Powell, Roswell, New Mexico, pro se.
Armando Armendariz, Esquire, and Parisa Naraghi-Arani, Esquire, Fort
Worth, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal as an Air Traffic Control Specialist (ATCS) for medical
inability to perform his duties after the agency revoked his medical certification .
Generally, we grant petitions such as this one only in the fol lowing
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administra tive
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
except as expressly MODIFIED to apply the appropriate, heightened standard to
the agency’s charge and to set forth the proper standard for evaluating an
affirmative defense of disparate treatment disability discrimination . 2
¶2 Although not raised by either party on review, we address one aspect of the
administrative judge’s analysis of the agency’s charge. The administrative judge
cited Sanders v. Department of Homeland Security, 122 M.S.P.R. 144, ¶ 11, aff’d,
625 F. App’x 549 (Fed. Cir. 2015), and 5 C.F.R. § 339.206 3 for the proposition
that a disabling condition whose recurrence cannot be ruled out must pose “a
2
The issue of sealing the appellant’s medical records remained outstanding at the
conclusion of the October 27, 2017 hearing and was not addressed in the initial
decision. Initial Appeal File, Tab 40 at 5, Tab 42 at 4, Tab 50, Initial Decision.
However, in light of the protections afforded by the Freedom of Information Act and
the Privacy Act, the records have not been sealed. See Doe v. Pension Benefit Guaranty
Corporation, 117 M.S.P.R. 579, ¶ 23 n.5 (2012); Nefcy v. Environmental Protection
Agency, 94 M.S.P.R. 435, ¶¶ 5, 7 (2003).
3
As an initial matter, we note that the administrative judge properly applied the
standard in 5 C.F.R. § 339.206 to the charge of medical inability to perform. See
Haas v. Department of Homeland Security, 2022 MSPB 36, ¶¶ 11-14 (finding that
5 C.F.R. § 339.206 applies when an appellant is subject to medical standards and his
removal is solely on the basis of medical history).
3
reasonable probability of substantial harm.” Initial Appeal File (IAF), Tab 50,
Initial Decision (ID) at 5. However, the Office of Personnel Management
amended section 339.206 prior to the appellant’s May 27, 2017 removal to
require that the disabling condition’s recurrence pose “a significant risk of
substantial harm to the health and safety of the . . . employee or others that cannot
be eliminated or reduced by reasonable accommodation or any othe r agency
efforts to mitigate risk.” Medical Disqualification Determinations, 82 Fed. Reg.
5340, 5346, 5352 (Jan. 18, 2017) (codified at 5 C.F.R. subpart 339). The
administrative judge did not apply this heightened standard, but we find that,
even under that standard, the appellant’s disabling condition would pose a
significant risk of substantial harm to the health and safety of others, especially in
the high-risk ATCS position that he encumbered. ID at 5-6.
¶3 On petition for review, the appellant contends that (1) the administrative
judge erred by finding that the second career program described in 5 U.S.C.
§ 3381(a) was not a reasonable accommodation when Congress d id not
appropriate funds for it and by relying on a Lead Human Resources Specialist’s
declaration to that effect, (2) the agency unreasonably delayed the reasonable
accommodation job search and failed to find two vacant positions to which he
could have been reassigned, and (3) the agenc y failed to follow its own
reasonable accommodation policies, which evidenced discriminatory intent.
Petition for Review (PFR) File, Tab 1 at 4-5. For the reasons set forth below, we
find no basis to disturb the initial decision.
¶4 Although the appellant argues that 26 U.S.C. § 9502, which established the
Airport and Airway Trust Fund, indefinitely appropriates money for the second
career program, the appropriations statutes in effect at the time of the appellant’s
removal specifically prohibited the agency from using such appropriations on new
second career program applicants. PFR File, Tab 1 at 4-5; IAF, Tab 38 at 6,
Tab 39 at 4-5, 582-83. We also find no basis to disturb the administrative judge’s
evaluation of the Lead Human Resource Specialist’s declaration about the second
4
career program. ID at 13 & n.11; see Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 87 (1981).
¶5 We further find that the agency did not unreasonably delay the reasonable
accommodation job search or fail to find two vacant positions to which the
appellant could have been reassigned. PFR File, Tab 1 at 4. The appellant
requested reassignment as a reasonable accommodation on November 28, 2016,
the agency initiated the reassignment search on December 21, 2016, and the
agency conducted the agency-wide search through February 27, 2017, without
success. IAF, Tab 13 at 62-65, Tab 38 at 4-5. The appellant has not described
how the agency’s minimal delay in initiating the reassignment search, or the
overall 3-month reasonable accommodation process, prejudiced him, nor has he
identified any vacant, funded position to which he could have been reassigned
prior to his removal. See Massey v. Department of the Army, 120 M.S.P.R. 226,
¶ 12 (2013) (noting that, as part of a failure to accommodate affirmative defense,
the appellant has the burden to establish the existence of a position to which he
could have been reassigned); McConnell v. Department of the Army, 61 M.S.P.R.
163, 169 (1994) (noting that an agency is allowed a reasonable time to conduct its
assessment of an accommodation request and arrive at its conclusions) . The
appellant identified two vacant positions at higher pay bands for reassignment,
IAF, Tab 37 at 17-20, 23-26, 65, but we agree with the administrative judge that
an agency is not required to promote an individual as part of a reasonable
accommodation, ID at 13 (citing Gonzalez-Acosta v. Department of Veterans
Affairs, 113 M.S.P.R. 277, ¶ 14 (2010)). We further find that the appellant, aside
from his general assertion to the contrary, failed to show that the agency did not
comply with its reasonable accommodation policy. PFR File, Tab 1 at 4; ID
at 13; IAF, Tab 36 at 19. As such, we agree with the administrative judge that the
appellant failed to prove his failure to accommodate affirmative defense. ID
at 10-14.
5
¶6 Finally, the appellant claimed below that his removal constituted disparate
treatment disability discrimination. Since the initial decision was issued, the
Board has clarified the legal standard for proving disparate treatment disability
discrimination. Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 22, 40, 42. The administrative judge found that the appellant failed to show
that his disability was a motivating factor in the agency’s decision to remove him ,
and the appellant does not challenge that finding on review. ID at 9. We
therefore find that we need not reach the question as to whether the appellant
proved that discrimination was a but-for cause of the agency’s decision to remove
him.
¶7 Therefore, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS 4
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 an d
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.
4
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.
6
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 fo llowing
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
7
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. 420 (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 disabli ng 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:
8
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. 5 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).
5
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 petit ions 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 Novembe r 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.