Opinion

Jeneil Magloire v. General Services Administration

Court: Merit Systems Protection Board
Filed: Aug 16, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 5.5%

finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

How later courts described this case

finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge
finding that an arbitrator erred by stating that the issue before him was whether the penalty was within the tolerable limits of reasonableness based upon the facts and circumstances known to the deciding official at the time
finding that “[o]nly ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JENEIL H. MAGLOIRE, DOCKET NUMBER

Appellant, AT-0752-19-0778-I-1

GENERAL SERVICES DATE: August 16, 2023

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jennifer Robinson, Denver, Colorado, for the appellant.

Carisa LeClair and Jaron E. Chriss, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained the agency’s charge of absence without leave (AWOL) and mitigated

the appellant’s removal to a 30-day suspension. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 app eal, 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, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 Effective September 30, 2018, the agency removed the appellant from her

position as a GS-14 Realty Officer in the agency’s Real Property Utilization and

Disposal Division on a single charge of AWOL. Initial Appeal File (IAF), Tab 4

at 4, 5-9. The charge was supported by 41 specifications alleging that the

appellant had failed to report to work and did not contact her supervisor to

request approval for her absences between May 14 and July 16, 2018. Id. at 5-9,

39-46. The appellant filed a formal equal employment opportunity (EEO)

complaint in which she claimed that her removal resulted from disability

discrimination based on her medical conditions of cognitive issues, memory loss,

and anxiety disorder. IAF, Tab 8 at 5-7. On August 16, 2019, the agency issued

its Final Agency Decision on the appellant’s EEO complaint, finding that the

agency did not subject the appellant to discrimination on the basis of her

disability. Id. at 8-21. The appellant timely filed this appeal on September 14,

2019. IAF, Tab 1.

¶3 After holding a hearing, the administrative judge determined that, on the

earliest date for which the agency charged the appellant as AWOL, she had

exhausted her sick and annual leave. IAF, Tab 43, Initial Decision (ID) at 12.

However, he determined that, during the time that the agency alleged she was

AWOL, the appellant had 35 hours of leave available to her under the Family and

Medical Leave Act (FMLA). 2 ID at 12-13. Presuming that the appellant had a

FMLA-qualifying reason for her absence for those 35 hours, the administrative

judge found that the agency established that the appellant would not have had

FMLA leave available for her use on at least 36 of the 41 days that the agency

alleged she was AWOL. ID at 13. The administrative judge also determined the

agency established that, despite the medical conditions that the appellant

experienced during the time the agency found that she was AWOL, its denial of

leave without pay (LWOP) was reasonable. ID at 17. Because the agency

established that the appellant was absent from work during each day that the

agency alleged she was AWOL, and that it had properly denied her requests for

LWOP on 36 of those days, the administrative judge sustained the AWOL charge.

ID at 17-18.

¶4 The administrative judge found that the appellant failed to prove that the

agency denied her due process by considering ex parte information. ID at 18-22.

He also found that the appellant failed to establish that the agency discriminated

against her on the basis of her disability. ID at 25-26. The administrative judge

determined that the agency established a nexus between the appellant ’s AWOL

Subject to meeting certain certification requirements, the FMLA entitles an employee

to a total of 12 administrative workweeks of leave during any 12 -month period for one

of the FMLA-qualifying reasons, to include caring for a parent who has a serious health

condition or because of a serious health condition that makes the employee unable to

perform the functions of the employee’s position. 5 U.S.C. § 6382(a)(1). The

administrative judge determined that, as of April 23, 2018, the appellant had used 445

of her 480 hours of FMLA-qualifying leave for the year ending January 4, 2019, leaving

her with 35 hours of remaining entitlement to leave under the FMLA. ID at 12-13 &

n.2; IAF, Tab 21 at 19-20.

and the efficiency of the service. ID at 10-11. Nevertheless, he also determined

that the medical evidence the appellant submitted after her removal established

that she had made significant strides during her treatment and had sufficiently

recovered with essentially a clean bill of health regarding her cognitive functions.

ID at 29. Given that recovery, which he observed had happened within a month

of her removal, and her long, successful service history, the administrative judge

found that the penalty of removal exceeded the tolerable bounds of

reasonableness, and he mitigated the penalty to what he determined was the

maximum reasonable penalty, a 30-day suspension. Id.

¶5 In its petition for review, the agency argues that , in mitigating the penalty,

the administrative judge improperly substituted his judgment for that of the

agency. Petition for Review (PFR) File, Tab 1 at 4, 9-10. The agency contends

that the deciding official carefully considered each of the Douglas factors and

determined that a lesser penalty was not justified, despite the mitigating factors of

the appellant’s 28 years of Federal service and work performance. Id. at 10-11.

It argues that the administrative judge incorrectly used post -removal evidence to

conclude that the appellant’s medical condition could be remedied or controlled

and contends that the deciding official reasonably concluded otherwise in

determining that the appellant’s potential for rehabilitation was poor. Id.

at 14-15. The agency also argues that the administrative judge gave the

appellant’s post-removal evidence more weight than was warranted under the

circumstances, contending that the post-removal medical evidence had nothing to

do with the events that led to her removal. Id. at 15-16.

¶6 The appellant filed a motion to file an additional pleading, i.e., a motion to

dismiss the agency’s petition for review as moot, in which she argued that,

because the agency had exceeded the interim relief that was ordered by the

administrative judge, it had effectively removed the action from controversy.

PFR File, Tab 7 at 6-7, Tab 8 at 4-5. The appellant also contended that, in the

alternative, the agency’s petition for review should be dismissed because the

agency had failed to comply with the administrative judge’s interim relief order

by transferring her to the position of Supervisory Realty Specialist rather than

appointing her to the position of Realty Officer. PFR File, Tab 7 at 8. 3 The

appellant has also filed a response to the agency’s petition for review. PFR File,

Tab 9. The agency has filed a response to the appellant’s motion to dismiss and a

reply to the appellant’s response to its petition for review. PFR File, Tabs 13-14.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved the AWOL

charge and established the nexus requirement.

¶7 As explained above, the administrative judge found that the agency

established the AWOL charge concerning 36 of the 41 days that it alleged the

appellant was AWOL. ID at 13; Savage v. Department of the Army, 122 M.S.P.R.

As an initial matter, we grant the appellant’s motion to file an additional pleading.

However, we deny her motion to dismiss the appeal as moot, or, alternative ly, to

dismiss the agency’s petition for review for failure to demonstrate compliance with the

interim relief order. Even if the agency exceeded the administrative judge’s interim

relief order, the agency’s petition for review is not moot. See Campbell v. U.S. Postal

Service, 95 M.S.P.R. 185, ¶ 6 (2003) (stating that the Board will not automatically

dismiss an agency’s petition for review as moot when the agency has in good faith and

inadvertently exceeded the requirements of an interim relief order ).

Regarding the appellant’s argument that the agency did not comply with the

administrative judge’s interim relief order, the agency alleged that it reinstated the

appellant to the Realty Officer position, and then reassigned her to the position of

Supervisory Realty Specialist with the same duty and pay grade, which it mistakenly

considered to also be a Realty Officer position. PFR Fi le, Tab 13 at 6-7. It also argued

that the Supervisory Realty Specialist position was within the appellant ’s experience,

and served the agency’s needs. Id. at 8. The agency asserted that the appellant’s

original position had been slated to be abolished, and that, because it had a strong and

overriding interest in the appellant’s reassignment, it had therefore made an implicit

undue disruption determination. Id. at 8-9; see Purzycki v. General Services

Administration, 81 M.S.P.R. 188, ¶ 9 (1999) (finding that an agency should be found in

compliance with an interim relief order if it can show that it had a strong overriding

interest or compelling reason for assigning duties other than those assigned prior to an

appellant’s separation and that, if the agency can make such a showing, the Board will

find that it has made an implicit undue disruption determination ). The agency also

argues that, prior to her removal, the appellant specifically requested to be reassigned to

a different division. Id. Accordingly, we find the appellant’s argument unavailing.

612, ¶ 28 n.5 (2015) (explaining that, to prove an AWOL charge, an agency must

demonstrate that the employee was absent without authorization and, if the

employee requested leave, that the request was properly denied) , overruled in

part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25.

The administrative judge declined to sustain 5 days of AWOL due to the

appellant’s remaining entitlement to 35 hours of leave under the FMLA. See

Ellshoff v. Department of the Interior; 76 M.S.P.R. 54, 73 (1997) (finding that,

when the facts related to a leave-related charge implicate the FMLA, the Board

will consider and apply the FMLA without shifting the burden of proof to the

appellant). Because he sustained 36 of the specifications, he sustained the

charge. ID at 13; Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed.

Cir. 1990) (finding that, when more than one event or factual specification

supports a single charge, proof of one or more, but not all, of the supporting

specifications is sufficient to sustain the charge). He also found that the agency

established a nexus between the charged misconduct and the efficiency of the

service. ID at 10-11. The parties do not challenge these findings on review, and

we discern no reason to disturb them.

The agency failed to show that the administrative judge erred in mitigating the

penalty.

¶8 As to the penalty, the administrative judge correctly observed that, when all

of the agency’s charges are sustained, but, like here, some of the underlying

specifications are not sustained, the agency’s penalty determination is entitled to

deference and should be reviewed only to determine whether it is within the

parameters of reasonableness. ID at 26; Payne v. U.S. Postal Service,

72 M.S.P.R. 646, 650 (1996). In reviewing the agency’s choice of penalty to

determine whether it was within the parameters of reasonableness, the

administrative judge recognized the seriousness of the appellant’s misconduct and

the fact that, as a supervisor, the agency was entitled to hold her to a higher

standard of conduct. ID at 27; see Bowman v. Small Business Administration,

122 M.S.P.R. 217, ¶ 12 (2015) (observing that the Board has held that AWOL is a

serious offense that warrants a severe penalty and that agencies may hold

supervisors to a higher standard of conduct). The administrative judge also found

that the penalty was consistent with the agency’s table of penalties, which

authorizes a penalty of removal for a first offense of AWOL involving an absence

that exceeds 10 days without permission and without adequate justification. ID

at 27; IAF, Tab 5 at 22. Nevertheless, he determined that the appellant’s

post-removal medical evidence demonstrated that her medical conditions had

played a role in the absences at issue and that her cognitive functions had

significantly improved; thus, he determined that, under the circumstances, the

penalty of removal exceeded the tolerable limits of reasonableness. ID at 29; see

Bowman, 122 M.S.P.R. 217, ¶¶ 12-15 (finding a 30-day suspension was the

maximum reasonable penalty for a supervisor with over 20 years of service and a

prior leave-related disciplinary action whose medical condition played a role in

the absences that supported the agency’s AWOL charge).

The administrative judge correctly reviewed the reasonableness of

the penalty based on the appellant’s post-removal medical evidence.

¶9 The agency generally argues on review that the administrative judge

erroneously substituted his judgment for that of the agency. PFR File, Tab 1 at 4,

9-10. However, the administrative judge correctly observed that he must analyze

whether the penalty was within the tolerable limits of reasonableness based on the

new evidence the appellant submitted to the Board, and not based on the facts and

circumstances known to the deciding official at the time he made his decision to

remove the appellant. ID at 28; see Norris v. Securities and Exchange

Commission, 675 F.3d 1349, 1357 (Fed. Cir 2012) (finding that an arbitrator erred

by stating that the issue before him was whether the penalty was within the

tolerable limits of reasonableness based upon the facts and circumstances known

to the deciding official at the time).

¶10 The administrative judge determined that the deciding official ’s penalty

analysis may have been appropriate in finding that the appellant’s medical

condition, and the extent that she would recover and return to full function , was

not a substantial mitigating factor at the time of his decision. ID at 29;

Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, ¶ 12 (2001)

(finding that a medical condition was not a significant mitigating factor absent

evidence that the impairment can be remedied or controlled). He noted that, at

the time the agency charged the appellant with AWOL, she had exhausted all of

her leave, and it appeared to the agency that she may have been abusing leave

because, even though she insisted that she could not return to work, i.e., that her

absence was open-ended, there was no clear medical evidence suggesting she was

incapacitated to the point that she could not return to work. ID at 12 n.2, 16-17;

see Patterson v. Department of the Air Force, 74 M.S.P.R. 648, 652 (1997)

(finding that, when an employee has exhausted all available leave, an agency may

deny LWOP and place the employee on AWOL when there is no foreseeable end

to the employee’s absence and the absence is a burden to the agency).

¶11 Thus, the administrative judge did not mitigate the penalty based on any

alleged inadequacies in the deciding official’s penalty analysis. As discussed

below, the administrative judge instead found that the appellant’s post-removal

medical documentation and her testimony before him indicated that her absences

were related to her underlying mental conditions, and that she had sufficiently

recovered within a month of her removal to return to work. ID at 27, 29.

The administrative judge correctly found that the appellant’s

post-removal medical evidence provides the requisite link to

her absences.

¶12 Mitigation of the penalty is warranted when, as the administrative judge

found here, the medical evidence corroborates the appellant’s testimony that her

mental illness, in this case, cognitive issues caused by depression, anxiety, and

amnesia, played a role in her absence. ID at 27-28; Bowman, 122 M.S.P.R. 217,

¶ 14; see Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 136 (1997)

(finding that alleged stressful events did not constitute a mitigating factor when

the appellant failed to show how his misconduct was directly related to these

events).

¶13 The agency contends that the appellant’s post-removal medical evidence

failed to provide a link to the relevant period, i.e, the period that led to the

adverse action being taken, and instead shows that she improved after she was

removed. PFR File, Tab 1 at 15-16; see Bowman, 122 M.S.P.R. 217, ¶ 14 (where

proximity in time, testimony, or other evidence provides the requisite link to the

relevant period, the subsequent medical evidence can be very probative of a prior

medical condition). We disagree. The appellant’s post-removal medical evidence

consists of progress notes from her Speech Pathologist’s treatment of the

appellant over six appointments between September 27 and October 30, 2018.

IAF, Tab 27 at 4-8, Tab 28 at 4-11. Those dates include one appointment while

she was still employed by the agency, as the agency effected the appellant’s

removal on September 30, 2018. IAF, Tab 4 at 8, Tab 27 at 4-5. The remainder

of those appointments took place within the month immediately following the

appellant’s removal. IAF, Tab 27 at 6-8, Tab 28 at 4-11. The provider’s

September 27, 2018 progress note describes the chronology of the appellant’s

difficulties, which the appellant reportedly first noticed while she was still at

work, and specifically states that the appellant had been out since May 2018, “due

to her changes in cognition,” and that she continued to have memory and

problem-solving issues. IAF, Tab 27 at 4. The September 27, 2018 note also

states that the appellant’s “cognitive linguistic skills [were] making steady

gains,” and that the appellant was “showing readiness for vocational activities,”

which the provider found was “a marked improvement since her initial exam,” on

August 9, 2018. Id. at 4-5. Thus, the evidence overlaps with the appellant’s

removal, and it addresses the appellant’s mental condition in the period covered

by the AWOL charge. Id.; IAF, Tab 4 at 39-43.

¶14 In this regard, the administrative judge found that the appellant’s testimony

and the medical documentation in the record both supported the conclusion that

her absences were related to certain underlying medical conditions, including

depression, anxiety, and amnesia—conditions that were exacerbated by grief over

the death of her mother in November 2017 and the stress caused by having to

move and care for her elderly father. ID at 27; IAF, Tab 27 at 4-8, Tab 28

at 4-10. The agency has not provided a basis for disturbing the administrative

judge’s decision to credit the appellant’s testimony. T he administrative judge

held a hearing, and the Board must give deference to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on the

observation of the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

¶15 The agency also argues on review that the administrative judge gave the

appellant’s post-removal evidence too much weight. PFR File, Tab 1 at 15. The

agency rightly observes that Norris, 675 F.3d 1349, does not specify the weight to

be given to post-removal mitigating evidence. However, the agency has failed to

show that the administrative judge improperly weighed the relevant post -removal

medical evidence. In assessing the probative value of medical evidence, one must

consider the qualifications of the health care providers, their familiarity with the

appellant’s condition, and whether their opinions provide a reasoned explanation

for their findings as opposed to mere conclusory assertions. See Stevens v.

Department of the Army, 73 M.S.P.R. 619, 627 (1997).

¶16 Here, the medical provider’s opinions set forth reasoned a nd specific

explanations of the appellant’s medical conditions. IAF, Tab 27 at 4-8, Tab 28

at 4-11. Although the agency argues that the evidence in this case is effectively

meaningless because the medical provider told the agency that the appellant was

able to return to work prior to her being removed, PFR File, Tab 1 at 15, we do

not discern any inconsistencies in the medical provider’s opinions . Specifically,

the provider’s prognosis that the appellant could attempt a soft transition to work

earlier does not mean that she was incorrect that the appellant had progressed to

the point that she was ready to return to work when the medical provider

discharged the appellant on October 30, 2018. IAF, Tab 4 at 12-14, Tab 27

at 4-8, Tab 28 at 4-11.

¶17 The agency also questions the qualifications of the medical provider, a

Speech Pathologist, to give advice on the appellant’s “generalized anxiety

disorder” and “other amnesia.” PFR File, Tab 1 at 15. However, the record does

not reflect that the agency challenged or objected to the provider’s qualifications

below, and its unsupported challenge on review provides no substantive reason to

discount the Speech Pathologist’s assessment and diagnosis of the appellant. See

Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the

Board generally will not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence). Moreover, the record

reflects that the appellant’s neurologist, who had diagnosed the appellant with

amnesia and was, with the assistance of a nurse practitioner, treating her for the

condition, had referred her to the Speech Pathologist for treatment. IAF, Tab 4

at 12-14, Tab 21 at 121, Tab 30 at 17. The record reflects that the Speech

Pathologist was treating the appellant for, among other things, memory loss,

which the administrative judge found was related to her absences. ID at 5, 9, 27;

IAF, Tab 4 at 12-14, Tab 27 at 4-8, Tab 28 at 4-11.

¶18 Based on the foregoing, we discern no basis for disturbing the

administrative judge’s finding that the provider’s findings, as set forth in the

appellant’s post-removal medical documentation and the appellant’s testimony

before him, both supported the conclusion that her absences were related to her

underlying medical conditions and that her impairment could be remedied or

controlled. ID at 27-28; IAF, Tab 27 at 4-12.

The administrative judge correctly considered the appellant’s

potential for rehabilitation based on her post-removal

medical evidence.

¶19 We similarly find unpersuasive the agency’s argument on review that the

deciding official correctly determined that the appellant’s potential for

rehabilitation was poor because she was likely to continue being AWOL. PFR

File, Tab 1 at 13-15. The agency contends in its petition for review that the

deciding official’s testimony that the appellant failed to submit justification to

excuse her absences did not indicate that he was unaware of her condition, and

that he carefully considered it in considering the reasonableness of the penalt y

and her potential for rehabilitation. Id. at 12-13; see Mingledough, 88 M.S.P.R.

452, ¶ 12 (finding that a medical condition was not a significant mitigating factor

when the potential for rehabilitation was poor).

¶20 However, the agency’s finding that the appellant’s potential for

rehabilitation was poor was based on the evidence, including the medical

documentation, that it had at the time of the appellant’s removal. We have

already determined that the administrative judge correctly reviewed the penalty

based on the appellant’s post-removal medical evidence—evidence the deciding

official could not have had when he made his decision to remove the appellant.

Norris, 675 F.3d at 1357 (finding that an arbitrator erred by stating that the issue

before him was whether the penalty was within the tolerable limits of

reasonableness based upon the facts and circumstances known to the d eciding

official at the time). Thus, by necessity, the appellant’s recovery from mental

conditions that were implicated in her AWOL similarly justifies the reassessment

of a determination that the appellant’s potential for rehabilitation was poor

because her absence appeared open-ended. Id.

¶21 Concerning other penalty factors, the agency argues that, by raising the

appellant’s 28 years of discipline-free Federal service, the administrative judge

appeared to “give the factor more weight than it was given by the deciding

official.” PFR File, Tab 1 at 13. We are not persuaded. In conducting his

penalty analysis, the administrative judge was required to determine whether the

penalty was within the parameters of reasonableness. Payne, 72 M.S.P.R. at 650

(finding that when all of the agency’s charges are sustained, but some of the

underlying specifications are not sustained, the agency’s penalty determination is

entitled to deference, and should be reviewed only to determine whether it is

within the parameters of reasonableness). The appellant’s length of service is a

pertinent part of that analysis, as is the fact that her service was discipline-free.

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981).

The appellant does not challenge the administrative judge’s findings that she

failed to establish that the agency denied her due process or discriminated against

her on the basis of her disability.

¶22 As noted above, the administrative judge found that the appellant failed to

prove that the agency denied her due process by considering ex parte information.

ID at 18-22. He found that the appellant established that the proposing official

and the deciding official engaged in ex parte communications after the appellant

responded to the notice of proposed removal. ID at 20. Nevertheless, he found

that the appellant failed to establish that the ex parte information involved, which

included correspondence between the proposing official and the appellant, and a

conversation between the proposing official and the deciding official to go

through all the documents relevant to the case, was so substantial and so likely to

cause prejudice as to rise to the level of a due process violation. ID at 21 ; see

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir.

1999) (finding that “[o]nly ex parte communications that introduce new and

material information to the deciding official will violate the due process

guarantee of notice”). The appellant does not challenge this finding on review

and we discern no reason to disturb it.

¶23 The administrative judge also found that the appellant failed to show that

the agency discriminated against her on the basis of her disab ility. ID at 25-26.

He found that she established that she suffered from a disability, as the medical

documentation she submitted indicated that she suffered from depression, anxiety,

and amnesia, and that those conditions affected her attention, memory, and ability

to concentrate. ID at 25. Nevertheless, because the appellant’s medical

documentation at that time did not suggest that she needed an extended leave of

absence, and instead suggested that she should return to work, he determined that,

even if the appellant’s request for time off constituted a request for a reasonable

accommodation, her medical documentation did not support her request. ID

at 25-26. Thus, he found that the appellant failed to show that the agency denied

her a reasonable accommodation. ID at 26; see Bond v. Department of Energy,

82 M.S.P.R. 534, ¶ 23 (1999) (observing that the Board has found open-ended

latitude in leave and attendance matters constitutes an unduly burdensome

accommodation); Stevens, 73 M.S.P.R. at 628-29 (same). The appellant does not

challenge this finding on review and we discern no reason to disturb it.

¶24 Accordingly, we affirm the initial decision.

ORDER

¶25 We ORDER the agency to cancel the removal and substitute in its place a

30-day suspension without pay. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

¶26 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency ’s

efforts to calculate the amount of back pay, interest , and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶27 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶28 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶29 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and do cumentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonab le attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

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 withi n 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 f or 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 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. 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 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. 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).

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 a t the