Opinion

Pamela Longmire v. Nuclear Regulatory Commission

Court: Merit Systems Protection Board
Filed: Aug 25, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 8.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAMELA LONGMIRE, DOCKET NUMBER

Appellant, DC-0752-20-0460-I-2

NUCLEAR REGULATORY DATE: August 25, 2023

COMMISSION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Karen J. Malachi and Peggy Jones Golden, Atlanta, Georgia, for the

appellant.

Cathy Scott, Washington, D.C., for the agency.

Garett Dane Henderson and Vinh Hoang, Rockville, Maryland, 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

reversed the agency’s removal decision and granted the appellant’s affirmative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

defenses of disability discrimination based on a failure to accommodate and

harmful procedural error. Generally, we grant petitions such as this one only in

the following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative 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 to

clarify and supplement the administrative judge’s findings regarding the

appellant’s affirmative defenses, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was employed as a Project Manager with the agency’s Office

of Nuclear Material Safety and Safeguards. See Longmire v. Nuclear Regulatory

Commission, MSPB Docket No. DC-0752-20-0460-I-1, Initial Appeal File (IAF),

Tab 1 at 1, Tab 7 at 24. By a letter dated January 8, 2020, the agency proposed

the appellant’s removal based on a charge of absence without leave (AWOL),

supported by 33 specifications covering the period from November 12, 2019,

through January 2, 2020. IAF, Tab 1 at 6-10. The appellant provided a written

response to the proposal with supporting documentation. IAF, Tab 7 at 45-62.

After considering the appellant’s response, the deciding official issued a decision

that sustained the AWOL charge and all 33 specifications, removing the appellant

from her position, effective February 21, 2020. IAF, Tab 1 at 17 -22.

¶3 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1

at 2. She raised affirmative defenses of discrimination on the bas es of disability,

age, and race, and alleged that the agency committed a prohibited personnel

practice and engaged in harmful procedural error by removing her. Id. at 3.

After holding the first 2 days of the requested hearing, the appeal was dismissed

without prejudice to refiling. IAF, Tab 55; see IAF, Tabs 50, 52. The appeal was

subsequently refiled, see Longmire v. Nuclear Regulatory Commission, MSPB

Docket No. DC-0752-20-0460-I-2, Appeal File (I-2 AF), Tab 1, and after a third

hearing day the administrative judge issued an initial decision reversing the

removal action. I-2 AF, Tab 4, Initial Decision (ID). He concluded that the

agency discriminated against the appellant based on a failure to accommodate her

disability when it removed her, and so the agency action could not be sustained.

ID at 3-19; see I-2 AF, Tab 3. The administrative judge also determined that the

agency committed harmful error in the application of its procedures by failing to

comply with its Management Directive and the collective bargaining agreement

(CBA) when it denied the appellant reasonable accommodation. ID at 21-23.

Finally, the administrative judge determined that the appellant failed to prove her

affirmative defenses of disparate treatment disability discrimination and

discrimination based on sex and race. ID at 19-21. Because the agency

committed harmful procedural error and engaged in disability discrimination

based on its failure to accommodate the appellant when it removed her, the

administrative judge reversed the removal action. ID at 1, 23.

¶4 The agency timely filed a petition for review. Petition for Review (PFR)

File, Tab 1. The appellant has filed a response in opposition to the petition for

review, and the agency has filed a reply. PFR File, Tabs 3, 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge did not err in concluding that the agency discriminated

against the appellant based on its failure to accommodate her disability.

¶5 The administrative judge reversed the removal, finding that it was based on

the agency’s failure to accommodate the appellant’s disability. ID at 3. On

review, the agency argues that the administrative judge incorrectly concluded that

the appellant proved this affirmative defense. PFR File, Tab 1 at 12-18, 23-31.

Specifically, the agency argues that the administrative judge erred by:

(1) neglecting to address how the agency’s failure to accommodate the appellant’s

disability caused the charged misconduct; (2) determining that it failed to engage

in the interactive process; (3) finding that the appellant was a qualified individual

with a disability; and, (4) concluding that the appellant’s request for full-time

telework 2 did not constitute an undue hardship on the agency. Id. at 12-18, 23-31.

Applicable legal standard

¶6 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, which has incorporated the standards of the

The parties refer to the appellant’s request to work from home as a request for

full-time telework, and Article 7 of the CBA, which governs telework, includes a

provision that explicitly covers “Full-Time Telework.” IAF, Tab 24 at 42-43. We note

that the terms “telework” and “remote work” are distinct work arrangements, and are

often improperly used interchangeably. U.S. Office of Personnel Management, 2021

Guide to Telework and Remote Work in the Federal Government at 11 (hereafter “OPM

Guide to Telework and Remote Work in the Federal Government”), available at

https://www.opm.gov/telework/documents-for-telework/2021-guide-to-telework-and-

remote-work.pdf. In practice, telework “is a work arrangement that allows employees

to have regularly scheduled days on which they telework and regularly scheduled days

when they work in their agency worksite.” Id. By contrast, remote work “is an

alternative work arrangement that involves an employee performing their official duties

at an approved alternative worksite away from an agency worksite, without regularly

returning to the agency worksite during each pay period.” Id. at 53. Here, although the

appellant’s request to work from her home full-time appears to fall within the definition

of remote work in the OPM Guide to Telework and Remote Work in the Federal

Government, because the parties considered the appellant’s request as a request for

“full-time telework” under the CBA we will refer to it as telework in this order.

Americans with Disabilities Act (ADA) as amended. Haas v. Department of

Homeland Security, 2022 MSPB 36, ¶ 28. Under the relevant provisions, it is

illegal for an employer to “discriminate against a qualified individual on the basis

of disability.” Id.; 42 U.S.C. § 12112(a). A qualified individual with a disability

is one who can “perform the essential functions of the . . . position that such

individual holds or desires” with or without accommodation. Haas, 2022 MSPB

36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m). An agency is

required to provide reasonable accommodation to an otherwise qualified

individual with a disability, unless the agency can show that doing so would

cause an undue hardship on its business operations. 42 U.S.C. § 12112(b)(5);

Haas, 2022 MSPB 36, ¶ 28; Clemens v. Department of the Army, 120 M.S.P.R.

616, ¶ 10 (2014). Reasonable accommodation includes modifications to the

manner in which a position is customarily performed in order to enable a

qualified individual with a disability to perform the essential job functions, or

reassigning the employee to a vacant position whose duties the employee can

perform. Clemens, 120 M.S.P.R. 616, ¶ 10.

¶7 In the initial decision, the administrative judge determined the following:

(1) the appellant was an individual with a disability based on her asthma, chronic

rhinosinusitis, and allergy exacerbation conditions, which substantial ly limit her

ability to breathe; (2) she was a qualified individual with a disability because she

could safely and efficiently perform the essential functions of her position; (3) the

decision to remove her was based on her disability insofar as the agency failed to

engage in the reasonable accommodation interactive process or otherwise attempt

to accommodate her before removing her; and (4) accommodating the appellant

by permitting her to telework would not have caused the agency undue hardship.

ID at 4-19. On review, the agency has not disputed the administrative judge’s

finding that the appellant is an individual with a disability, so we need not

address that finding. We turn now to consider each of the remaining findings.

We agree with the administrative judge’s finding that the appellant

was a qualified individual with a disability.

¶8 As previously noted, a qualified individual with a disability is a person who

can perform the essential functions of her position with or without

accommodation. 42 U.S.C. § 12111(8). The Board has indicated that the core

duties of a position are synonymous with the essential functions of a position

under the ADA, as amended, i.e., the fundamental job duties of the position, not

including marginal functions. Haas, 2022 MSPB 36, ¶ 21; Clemens,

120 M.S.P.R. 616, ¶ 6; 29 C.F.R. § 1630.2(n)(1). A job duty may be considered

essential for a number of reasons, including, among other things, because the

reason the position exists is to perform that function, because of the limited

number of employees available among whom the performance of that job function

can be distributed, or because the function is highly specialized so that the

incumbent is hired for his or her expertise or ability to perform the particular

function. Haas, 2022 MSPB 36, ¶ 21; Clemens, 120 M.S.P.R. 616, ¶ 6. In

determining whether a particular function is “essential,” the Board will c onsider a

number of factors, such as the employer’s judgment as to which functions are

essential, written position descriptions, the amount of time spent performing the

function, and the consequences of not requiring the incumbent to perform the

function. Clemens, 120 M.S.P.R. 616, ¶ 6.

¶9 On review, the agency argues that the administrative judge failed to give

adequate deference to agency management’s assessment of the appellant’s

essential job duties, citing precedent from the Equal Employment Opportunity

Commission (EEOC) and Federal appellate courts concerning the substantial

deference given to employers to determine an employee’s essential job duties.

PFR File, Tab 1 at 23-25. The agency also argues that the administrative judge

inappropriately credited the appellant’s testimony concerning her job duties and

failed to acknowledge testimony by comparator employees that the frequency

with which certain job duties are performed varies among the different agency

branches. Id. at 26-27. Finally, the agency argues that because there has not

been an assessment of the appellant’s medical status and limitations since

September 2018, it is impossible to determine whether she can perform the

essential functions of her position. PFR File, Tab 1 at 22 -30.

¶10 To the extent the agency is challenging the administrative judge’s decision

to credit the appellant’s testimony concerning the nature of her job duties over

that of her former first-line supervisor, the Board has regularly held that it will

not disturb an administrative judge’s findings when he considered the evidence as

a whole, drew appropriate inferences, and made reason ed conclusions on issues of

credibility. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997);

Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359

(1987). Here, the administrative judge made credibility determinations based on

his observation of each witness’s demeanor at the hearing, and we decline to

disturb those findings on review. See ID at 16-17, n.1 (citing Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987) (identifying the factors

that an administrative judge must consider in making credibility determinations ));

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

(concluding that the Board generally must give deference to an administrativ e

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing and may

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

doing so).

¶11 Regarding the agency’s specific argument that the administrative judge

failed to consider the testimony of the purported comparators concerning the role

public meetings played in the appellant’s branch, the administrative judge did

identify and discuss testimony from each of the comparators regarding the role

public meetings played in their respective branches. ID at 18-19 (citing Aug. 19,

2020 Hearing Transcript (HT 2) at 190-92, 216, 229-31, (testimony of purported

comparators); I-2 AF, Oct. 23, 2020 Hearing Transcript (HT 3) at 225-26

(testimony of purported comparator)). The administrative judge’s decision not to

specifically discuss the testimony from the comparators—none of whom were

assigned to the appellant’s branch—concerning the frequency of public meetings

in the appellant’s branch, does not mean that he did not consider that testimony

and is not a basis for overturning his well-reasoned findings on review. See

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647,

¶ 25 (2016) (concluding that the administrative judge’s failure to mention all of

the evidence of record does not mean that he did not consider it in reaching his

decision), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB

31, ¶¶ 23-24; Marques v. Department of Health and Human Services, 22 M.S.P.R.

129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

¶12 Regarding the agency’s assertion that, based on existing EEOC and Federal

appellate court precedent, the administrative judge failed to give adequate

deference to its determination about which of the appellant’s duties were

essential, we disagree. Although the decision cited by the agency held that the

inquiry into the essential functions of an employee’s job should not “second guess

the employer or [] require the employer to lower company standards,” the court

also held that the deference granted to agencies is “not absolute,” and that the

agency’s assessment is one of several factors to be considered in determining

which of the employee’s job functions are essential. PFR File, Tab 1 at 24-25;

Vargas v. DeJoy, 980 F.3d 1184, 1188 (7th Cir. 2020); see Elledge v. Lowe’s

Home Centers, LLC, 979 F.3d 1004, 1009 (4th Cir. 2020) (noting that an

employer’s assessment of an employee’s job duties is entitled to “considerable

deference” from the courts, but also acknowledging that the ADA states that other

factors are also relevant to the question, and that the court’s assessment must

“consult the full range of evidence bearing on the employer’s judgement. . .”);

29 C.F.R. § 1630.2(n)(3) (identifying additional factors to be considered in

determining whether a job duty is “essential,” including whether the position

exists to perform the function, whether a limited number of e mployees can

perform the function, and whether the function is highly specialized).

¶13 Based on the appellant’s testimony describing her regular job duties and the

frequency with which she performed them, as well as a review of the appellant’s

position description, the administrative judge determined that the appellant could

perform the essential functions of her position while teleworking. ID at 14-15;

Hearing Compact Disc (HCD) 3 at 138-40 (testimony of appellant); IAF, Tab 26

at 4. He highlighted testimony from the appellant stating that she had not

performed the two contested job functions since 2012 and 2016 respectively, as

well as testimony from the appellant’s former first-line supervisor that did not

indicate that the appellant had any issues completing her job duties while

teleworking. ID at 15-17; see IAF, Aug. 18, 2020 Hearing Transcript (HT 1)

(testimony of appellant’s former first-line supervisor); HT 3 at 123-28 (testimony

of appellant). Contrasting that testimony, the administrative judge cited

testimony from the appellant’s first-line supervisor acknowledging that he was

not aware whether the appellant had ever performed either of the challenged job

functions, and testimony from the agency reasonable accommodation coordinator

(RAC) acknowledging that the essential functions analysis considers the actual

duties the employee performs, not just the generic duties described in an

employee’s position description. ID at 17; HT 1 at 116-17, 125-26 (testimony of

appellant’s first-line supervisor; HT 3 at 61-63). In the absence of “sufficiently

sound” reasons for doing so, we discern no basis upon which to disturb the

administrative judge’s credibility determinations in this regard or to reweigh the

evidence or substitute our assessment of the record evidence for his. Haebe,

288 F.3d at 1302.

¶14 Finally, we find no merit in the agency’s argument that because the

assessment of the appellant’s limitations provided by Federal Occupational

Health (FOH) was sparse or outdated, it was not possible to assess whether she

could perform the essential functions of her position. 3 PFR File, Tab 1 at 28-30.

Because we ultimately agree with the administrative judge’s finding that the

agency’s failure to adequately engage in the interactive process is what caused

the failure to accommodate the appellant’s disability, see infra ¶¶ 15-24, to

whatever extent the agency now asserts that it was hindered in its ability to

adequately assess the appellant’s medical limitations, it was the agency’s own

actions that caused the hindrance. Accordingly, we conclude that the

administrative judge properly considered the relevant factors based on the entire

record. We agree that the appellant was a qualified individual with a disability

because she could perform the essential functions of her position with or without

accommodation.

The administrative judge’s finding that the agency failed to

adequately engage in the interactive process is supported by the

record.

¶15 The agency also challenges the administrative judge’s finding that it failed

to engage in the interactive process by failing to properly process the appellant’s

requests for telework. PFR File, Tab 1 at 13-17. Specifically, the agency argues

that it made repeated efforts to engage in the interactive process and ins tead it

was the appellant who failed to engage in the interactive process in good faith.

To the extent the agency suggests, for the first time on review, that the appellant’s

traumatic brain injury (TBI) diagnosis affected her ability to complete her job functions

and that an assessment of her limitations is necessary in light of her TBI condition, the

agency did not raise this argument below and we need not consider it on review. PFR

File, Tab 1 at 28-30. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016)

(noting 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); Banks v. Department of the

Air Force, 4 M.S.P.R. 268, 271 (1980) (same); 5 C.F.R. § 1201.115(d). Additionally,

the record reflects that the agency RAC closed the appellant’s request for reasonable

accommodation in connection with her TBI claim after the appellant failed to provide

supporting medical documentation, and the administrative judge did not rely on the

appellant’s TBI condition as a part of his finding that the agency failed to accommodate

the appellant’s disability. HT 2 at 45-46 (testimony of agency RAC); IAF, Tab 22

at 23-32; see ID at 6, 9-13.

Id. As the administrative judge observed, once an employee informs the agency

that she requires an accommodation, the agency must engage in an interactive

process to determine an appropriate accommodation. Kirkland v. Department of

Homeland Security, 119 M.S.P.R. 74, ¶ 18 (2013); see Paris v. Department of the

Treasury, 104 M.S.P.R. 331, ¶ 17 (2006) (finding an employee need only let her

employer know in general terms that she needs accommodation for a medical

condition). A request for reasonable accommodation is the first step in the

informal, interactive process between the individual and the employer. See EEOC

Enforcement Guidance on Reasonable Accommodation and Undue Hardship

under the Americans with Disabilities Act (EEOC Enforcement Guidance),

Question 5, Notice No. 915.002 (Oct. 17, 2002), available

at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-

accommodation-and-undue-hardship-under-ada. “The appropriate reasonable

accommodation is best determined through a flexible, interactive process that

involves both the employer and the individual with a disability. ” 29 C.F.R. part

1630, appendix, § 1630.9. Additionally, courts have generally required both

parties to engage in this process in good faith. See Rehling v. City of Chicago,

207 F.3d 1009, 1015-16 (7th Cir. 2000); Collins v. U.S. Postal Service,

100 M.S.P.R. 332, ¶ 11 (2005). Nevertheless, the failure to engage in the

interactive process alone does not violate the Rehabilitation Act; rather the

appellant must show that this omission resulted in failure to provide reasonable

accommodation. Clemens, 120 M.S.P.R. 616, ¶ 17.

¶16 In the initial decision, the administrative judge relied on testimony from the

agency’s RAC, who testified at length concerning the agency’s reasonable

accommodation process. ID at 10-11 (citing HT 2) (testimony of agency RAC)).

The agency RAC testified that, pursuant to the agency’s reasonable

accommodation policy, the agency should begin processing an employee’s request

for accommodation no later than 5 days after the request is initiated, and the

requesting employee’s supervisor must discuss the request with a Human

Resources (HR) representative. The RAC testified that she did not process any

reasonable accommodation requests for the appellant during the period from

September 24, 2019, through January 30, 2020. ID at 10-11. Observing that the

appellant requested full-time telework on several occasions in 2019, including on

September 24, 2019, October 8, 2019, November 6, 2019, and December 30,

2019, the administrative judge concluded that the none of the requests were

forwarded to the RAC as required under the reasonable accommodation policy .

¶17 On review, the agency argues that it engaged in the interactive process in

good faith. It points to the fact that the appellant was provided with an enclosed

office and an air purifier in October 2017, and cites an October 18, 2019 email

from the appellant’s first-line supervisor, asking the appellant whether her current

accommodations were adequate and requesting that she provide approp riate

medical documentation to support her absences. PFR File, Tab 1 at 13-15; see

IAF, Tab 23 at 43-44. The agency notes that the appellant failed to provide the

requested medical documentation when asked and otherwise failed to provide

evidence demonstrating that her prior accommodation of an enclosed office with

an air purifier was not an effective accommodation. PFR File, Tab 1 at 15 -17.

The agency also argues that the administrative judge incorrectly stated that the

appellant’s first-line supervisor proposed her removal 1 week after he received

her accommodation request, noting that the email cited by the administrative

judge had not been addressed to the supervisor. Id. at 16; see ID at 11-12.

¶18 As an initial matter, there is no merit to the agency’s claim that the

administrative judge failed to address that the appellant had been provided an

accommodation for her respiratory condition that was “deemed to be effective by

FOH and the [a]ppellant’s treating physicians,” or alternatively, that there was no

medical evidence demonstrating that the existing accommodation was ineffective .

PFR File, Tab 1 at 14, 16-17. The administrative judge specifically addressed

these claims below, concluding that the identified accommodation, the in-office

air purifier, was “clearly ineffective” based on the “overwhelming evidence” the

appellant provided demonstrating that she was unable to work in her office, even

with the offered accommodation. ID at 17. The administrative judge made this

determination based on his review of the evidence as a whole and his observation

of the demeanor of the witnesses testifying at the hearing, and we decline to

disturb those findings on review. See ID at 16-17, n.1 (citing Hillen, 35 M.S.P.R.

at 458); Haebe, 288 F.3d at 1301.

¶19 Additionally, although the document the agency cites from the FOH

physician noted that the in-office purifier “would be a medically reasonable way”

of accommodating the appellant, he also observed that the appellant needed to be

in an “extremely clean office environment” to work effectively and that telework

as an accommodation “would likely be effective as well.” IAF, Tab 22 at 17. In

a later correspondence to the agency RAC regarding the continuing severity and

pervasiveness of the appellant’s condition, the FOH physician noted that the

appellant’s condition was “quite severe” and that if she continued to comp lain of

symptoms even when working in a private office with an air purifier, “she should

be allowed to continue to telework.” Id. at 65. The appellant also provided

additional medical documentation to agency officials dated August 2018 through

January 2020, clearly indicating that her existing accommodations were not

working and that she should not return to the office. IAF, Tab 7 at 50-56; HCD 3

at 36-38 (testimony of the appellant).

¶20 We also find no reason to disturb the administrative judge’s finding that the

agency failed to properly engage in the interactive process. ID at 9-13. The

administrative judge based his determination on the RAC’s failure to process any

of the appellant’s requests between September 24, 2019, and January 30, 2020, as

requests for reasonable accommodation, as well as the first-line supervisor

proposing the appellant’s removal without giving the agency’s telework

coordinator adequate time to review the telework request denial. 4 ID at 12.

Similarly, we are not persuaded by the agency’s argument that the appellant’s

first-line supervisor’s request for medical documentation and the appellant’s

failure to provide the requested information constituted clear examples of the

agency’s good faith effort to engage in the interactive process and appellant’s

failure to engage in the interactive process in good faith. PFR File, Tab 1

at 14-15. As the agency RAC testified, after the interactive process was

triggered, it was the RAC’s responsibility to coordinate with the appellant

regarding the request, including requesting any necessary supporting medical

documentation, so the appellant’s failure to provide medical documentation to her

supervisor does not undermine the administrative judge’s finding that the agency

failed to properly engage in the interactive process. 5 PFR File, Tab 1 at 15-16; ID

at 12; HT 2 at 88-89 (testimony of agency RAC).

¶21 Finally, the agency disputes the administrative judge’s finding that the

appellant’s supervisor issued the removal proposal “one week after he received

the [a]ppellant’s [December 30, 2019] request for accommodation.” We agree

with the agency that there is no evidence in the record indicating that the

appellant’s first-line supervisor ever received the December 30, 2019 email, as

the email was not addressed to the supervisor and there is no testimony in the

As noted supra footnote 2, the CBA includes a provision governing requests for

“full-time telework” that appears to be applicable to the appellant’s requests to work

from home. IAF, Tab 24 at 42-43 (Article 7.10). Under Article 7.3.5 of the CBA, if an

employee requests a telework arrangement in order to enable her to perform the full

range of her official duties, such a request is a request for reasonable accommodation

that must be submitted to the agency RAC. IAF, Tab 24 at 38. Here, management

officials did not follow this provision, and this failure appears to have caused the

RAC’s failure to engage in the interactive process.

Although not addressed in the initial decision, the agency’s reasonable

accommodation procedures specify that the agency must provide an interim

accommodation to allow the employee to perform some or all of the essential fu nctions

of her position while the accommodation request is under consideration, which the

agency also failed to do. IAF, Tab 24 at 145.

record concerning him having received it. PFR File, Tab 1 at 16; HT 1 at 163-64

(testimony of appellant’s first-line supervisor). Nevertheless, there is no dispute

that the supervisor became aware of the appellant’s request approximately

2 weeks later, and that the supervisor still failed to provide the information

necessary for the telework coordinator to act on the appellant’s reconsideration

request prior to the removal decision. ID at 11-12; IAF, Tab 25 at 36-44; HT 1

at 163-65. Further, the agency has not disputed the administrative judge’s finding

that agency officials, including the appellant’s first-line supervisor, failed to

properly act on the appellant’s other requests for accommodation during the

period from September 24, 2019, through January 30, 2020. ID at 10-12.

¶22 Accordingly, we find no error in the administrative judge’s determination

that the agency failed to adequately engage in the interactive process by failing to

process any of the appellant’s repeated requests for telework as requests for

reasonable accommodation, and that this failure resulted in the failure to provide

the appellant with reasonable accommodation. ID at 9-13; see Clemens,

120 M.S.P.R. 616, ¶ 17.

The administrative judge did not err by concluding that

accommodating the appellant would not cause the agency undue

hardship.

¶23 The agency also argues that the administrative judge erred by concluding

that accommodating the appellant would not cause the agency undue hardship.

PFR File, Tab 1 at 30-31; see ID at 17-19. Specifically, the agency argues that,

because the appellant failed to engage in the interactive process, the agency was

unable to complete an individualized assessment of appellant’s needs and

restrictions that would serve as the basis for determining an appropriate

accommodation. PFR File, Tab 1 at 30-31.

¶24 As the administrative judge noted, after the appellant requested and was

denied permanent telework through the agency’s ordinary telework policy, the

appellant requested reconsideration of that decision through the telework

coordinator on December 30, 2019, noting that her disability prevented her from

working in the office and that her pulmonologist recommended that she telework

indefinitely. IAF, Tab 25 at 29; see ID at 10-11. As a part of the reconsideration

process, the telework coordinator sent a set of questions to both the appellant and

her first-line supervisor concerning the nature of the appellant’s job duties. IAF,

Tab 25 at 33-43; HCD 2 at 154-55 (testimony of agency telework coordinator).

After reviewing the first set of responses from each party, the telework

coordinator sent a follow-up set of questions to the appellant’s supervisor. IAF,

Tab 25 at 40; HCD 2 at 156-59 (testimony of agency telework coordinator). The

appellant’s supervisor did not respond to the follow-up set of questions before the

appellant’s removal was effectuated on February 21, 2020, and so the telework

coordinator was unable to act on the appellant’s reconsideration request prior to

her removal. IAF, Tab 25 at 44-45, 55; HT 2 at 157-58, 177-78 (testimony of

agency telework coordinator).

¶25 In those follow-up questions, the telework coordinator sought clarification

about factors that would have aided the agency in determining whether the

appellant’s requested accommodation would cause the agency an undue hardship,

including the frequency with which the appellant completed the job duties her

supervisor determined were not portable, and potential alternative

accommodations. IAF, Tab 25 at 40; HT 2 at 168-75, 177-79 (testimony of

agency telework coordinator) (noting that questions sent to the appellant’s

supervisor were intended to assist the agency in determining whether and to what

extent the appellant’s full-time telework request would cause an undue burden on

the agency, and to what extent the appellant’s non -portable duties could be

redistributed within the branch without causing disruption to the agency’s

operations).

¶26 The agency bears the burden of production to show that a reasonable

accommodation would impose an undue hardship on the agency. Henry v.

Department of Veterans Affairs, 100 M.S.P.R. 124, ¶ 15 (2005). Because the

appellant’s supervisor never provided responses to these follow -up questions and

failed to properly process the appellant’s other requests for reasonable

accommodation, to whatever extent the agency was hindered in its ability to

assess the potential hardship that accommodating the appellant would have had on

the agency’s operations, it was a problem of the agency’s own creation.

Accordingly, we agree with the administrative judge’s finding that the ag ency

failed to show that accommodating the appellant’s disability would impose an

undue hardship on the agency’s operations. Smith v. U.S. Postal Service,

113 M.S.P.R. 1, ¶ 8 (2009) (concluding that the agency failed to meet its burden

of proving that accommodating the appellant would impose an undue hardship) ;

29 C.F.R. § 1630.9(a); see ID at 13, 17-19.

The appellant established that the agency’s action was based on the agency’s

failure to accommodate her disability.

¶27 The agency asserts that the administrative judge treated the appellant’s

disability discrimination claim as the central question in the case, rather than as

an affirmative defense, and “unless the agency’s actions regarding her

accommodation were the cause of her misconduct ,” the agency’s actions should

not excuse it. PFR File, Tab 1 at 12. The agency posits that the appellant was

absent from duty on the days at issue in the AWOL charge, she ignored inquiries

to request leave or otherwise communicate with management, and t he initial

decision failed to address how the agency’s purported failure to provide the

appellant telework as an accommodation excuses her misconduct. Id. at 13.

¶28 An appellant alleging disability discrimination based on a failure to

accommodate must show that the action appealed was “based on” her disability.

Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶ 18 (2013). As

noted above, the AWOL charge upon which the agency based its removal action

was supported by 33 specifications covering the period from November 12, 2019,

through January 2, 2020, and the appellant has submitted evidence showing that

existing accommodations had been ineffective and she was unable to physically

work in the office during that period due to her disability. Further, the appellant

requested full-time telework on several occasions in 2019, including on

September 24, 2019, October 8, 2019, November 6, 2019, and December 30,

2019, and we have found that the agency failed to respond to these requests as

required by the interactive process. Considering these findings, as well as the

determination that the appellant was able to perform the essential functions of her

position with the accommodation of telework, we find no merit in the agency’s

argument that its failure to accommodate the appellant did not cause the charged

misconduct. To the contrary, we find that the agency’s failure to provide the

appellant with a reasonable accommodation did cause her absences during the

period at issue, and we therefore conclude that the appellant has met her burden

to show that the removal action was based on her disability.

Conclusion

¶29 For the foregoing reasons, we agree with the administrative judge’s

conclusion that the agency discriminated against the appellant based on its failure

to accommodate her disability, and thus the removal decision cannot be sustained.

We affirm the administrative judge’s findings regarding the appellant’s disparate

treatment disability discrimination, race discrimination, and sex discrimination

claims.

¶30 After the initial decision was issued, the Board issued an Opinion and Order

clarifying the standard and methods of proof for disparate treatment

discrimination claims arising under both Title VII and the Rehabilitation Act.

Pridgen, 2022 MSPB 31, ¶¶ 19-25, 35, 40. Having reviewed the relevant portions

of the initial decision, we find that the administrative judge’s analysis was

consistent with Pridgen. ID at 19-21. Because the appellant does not contest the

administrative judge’s findings on her disparate treatment claims, we affirm these

findings on review.

To the extent that the appellant previously raised affirmative defenses of reprisal

for requesting reasonable accommodation and discrimination based on age, she

effectively abandoned those claims.

¶31 In her response to the administrative judge’s affirmative defense order, the

appellant identified her affirmative defenses as including, among other things, an

allegation that she was “retaliated against as a result of her disability and request

for accommodation.” IAF, Tab 17 at 8 (emphasis added). This could reasonably

be interpreted as a claim of reprisal for requesting reasonable accommodation.

Nevertheless, the administrative judge did not include this as an issue for

adjudication in the prehearing conference summary nor did he render findings on

this claim in the initial decision. IAF, Tab 31 at 2-3; ID at 3-23.

¶32 Aside from this single apparent reference to reprisal for requesting

reasonable accommodation in her affirmative defense order response, the

appellant, who was represented by an attorney, did not raise this claim in any of

the other pleadings in the record below and did not object to the administrative

judge’s failure to include this as an issue to be determined at hearing, nor does

she identify it on review. PFR File, Tab 3. Applying the relevant factors, we

find that to the extent the appellant previously attempted to raise this affirmative

defense, she effectively abandoned it. See Thurman v. U.S. Postal Service,

2022 MSPB 21, ¶¶ 17-18 (identifying a nonexhaustive list of factors the Board

should consider in assessing whether a previously-raised affirmative defense

claim was abandoned or waived, including the following, among others: (1) the

degree to which the appellant continued to pursue her affirmative defense in the

proceedings below after initially raising it; (2) whether the appellant objected to a

summary of the issues to be decided that failed to include the potential

affirmative defense when she was specifically afforded an opportunity to object

and the consequences of her failure were made clear; (3) whether the appellant

raised her affirmative defense or the administrative judge ’s processing of the

affirmative defense claim in her petition for review; and (4) whether the appellant

was represented during the course of her appeal).

¶33 Finally, as previously noted, the appellant also identified discrimination

based on age as one of her affirmative defenses in her initial appeal. IAF, Tab 1

at 3. Although the administrative judge acknowledged that the appellant raised

this claim in her initial appeal, he did not address it in the initial decision. See ID

at 2. After identifying this claim on her initial appeal form, the appellant, who

obtained legal representation soon after filing her appeal, see IAF, Tab 14 at 4,

failed to identify the age discrimination claim in her response to the

administrative judge’s affirmative defense order, see IAF, Tab 17. She also did

not file an objection to the administrative judge’s order summarizing the issues to

be decided in the appeal, to the exclusion of all others, which did not include this

claim. See IAF, Tab 31. Nor did she identify it in any of her prehearing

submissions, see IAF, Tabs 29, 33-38, or address it during the hearing, 6 see IAF,

Tabs 50, 52; I-2 AF, Tab 3. Additionally, she did not raise the administrative

judge’s failure to adjudicate this affirmative defense claim in her response to the

agency’s petition for review. See PFR File, Tab 3. Accordingly, we conclude

that to the extent the appellant attempted to raise an affirmative defense of

discrimination based on age, she effectively abandoned that claim. See Thurman,

2022 MSPB 21, ¶¶ 17-18. 7

During testimony from one of the appellant’s purported comparators, the agency

objected to a question concerning the comparator employee’s date of birth and the

administrative judge questioned the relevance of the testimony, asking “[t]his is not an

age discrimination case, is it?”, in response to which the appellant’s attorney agreed to

withdraw the question, supporting our conclusion that this claim was abandoned. See

HT 2 at 182-83 (testimony of appellant’s comparator).

An appellant’s harmful procedural error claim is moot when, as here, she is already

entitled to all of the relief she would obtain if she were to prevail on that claim.

Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 34. Accordingly, we need not

address the agency’s assertions in its petition for review that the administrative judge

erred in finding that the agency committed harmful procedural errors.

ORDER

¶34 We ORDER the agency to CANCEL the removal and to retroactively

restore the appellant and to restore the appellant effective February 21, 2020. 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.

¶35 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.

¶36 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).

¶37 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).

¶38 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 documentation

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 reasonable 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 TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your compensatory

damages, including pecuniary losses, future pecuniary losses, and nonpecuniary

losses, such as emotional pain, suffering, inconvenience, mental ang uish, and loss

of enjoyment of life. To be paid, you must meet the requirements set out at

42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,

1201.202, and 1201.204. If you believe you meet these requirements, you must

file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF

THE DATE OF THIS DECISION. You must file your motion with the office t hat

issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 8

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

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 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 secur ity. 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 deliver y 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. 9 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