Opinion

Timothy Ten Pas v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 28, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 10.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY TEN PAS, DOCKET NUMBER

Appellant, PH-0752-17-0430-I-1

DEPARTMENT OF VETERANS DATE: August 28, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy Ten Pas, Topsfield, Massachusetts, pro se.

Joshua R. Carver, Esquire, Augusta, Maine, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant and the agency have both filed petitions for review of the

initial decision, which reversed the appellant’s removal. For the reasons

discussed below, we DENY the appellant’s petition, GRANT the agency’s

petition, AFFIRM the initial decision as to the appellant’s claim of disability

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

discrimination, and REVERSE the initial decision as to the removal action. The

appellant’s removal is SUSTAINED.

BACKGROUND

¶2 The appellant served as a GS-13 Support Services Chief before his August

2017 removal for excessive absence. The facts leading up to the removal are

largely undisputed.

¶3 On May 13, 2016, the appellant stopped coming to work based on medical

documentation indicating that he was suffering from severe depression and

anxiety. The appellant’s doctor stated that he was incapacitated and that the

period of his incapacitation was expected to be lengthy, and he recommended that

the appellant remain off work for 2 months and then be reevaluated. Initial

Appeal File (IAF), Tab 10 at 86. The appellant requested and was granted

2 months of sick leave. Id. at 87. Approximately every 2 months thereafter, the

appellant requested an additional 2 months of leave which t he agency granted

(sick leave and annual leave, including Family Medical Leave Act (FMLA) leave)

until all his leave was exhausted, after which he requested and was granted leave

without pay (LWOP). Id. at 88-98 On March 10, 2017, in response to the

appellant’s most recent request for additional LWOP, the agency advised him that

he had not submitted medical documentation sufficient to support his request and

that he should do so. The agency explained that the appellant had the following

options: request advanced sick or annual leave, LWOP, or leave under the

agency’s Voluntary Leave Transfer Program, request a reasonable

accommodation, retire, apply for disability retirement, resign, or seek services

under the Employee Assistance Program. IAF, Tab 9 at 58-60. Based on the

appellant’s requests, with the barest supporting evidence, the agency continued to

grant him LWOP. Id. at 52. On May 31, 2017, again in response to the

appellant’s request for more LWOP, the agency approved his request in part, for

the period from May 3-31, 2017, but advised him that, because he had exhausted

all his leave, and because his absence had existed past a reasonable timeframe, he

was to return to duty on June 12, 2017, and that his failure to do so “may lead to

disciplinary action up to and including removal.” Id. at 41. The agency again

described the appellant’s options as it had in the earlier letter. Id. at 41-42. In

response, the appellant stated that he had not been approved to return to work,

and he again requested additional LWOP. Id. at 31.

¶4 On June 29, 2017, when the appellant had not returned to duty, the agency

proposed his removal for excessive absence. Id. at 19. In the narrative, the

agency stated that from May 3, 2016, to date, he had used 1,927.6 hours of

approved non-FMLA leave, that is, 356.3 hours of annual leave, 819.3 hours of

sick leave, and 752 hours of LWOP. The agency acknowledged that the absences

were for a compelling reason beyond the appellant’s control such that its approval

or disapproval was immaterial, but stated that the absences had continued for an

unreasonable amount of time and that the appellant had been warned that adverse

action might be initiated if he did not return to duty. The agency added that the

appellant’s position needed to be filled by an employee available for duty on a

regular, full-time basis and that his extended absence had created undue hardship

on his team and directly impacted the efficiency with which the team provided

services to veterans. Id. The appellant responded with a brief medical note

stating that he could still not return to duty and requested an additional 2 months

of LWOP. Id. at 18. The agency granted in part the request for LWOP, allowing

the appellant to remain in that status during the 30-day notice period of the

proposed removal. Id. at 16. However, on August 1, 2017, the agency issued a

letter of decision finding the charge sustained and stating that the appellant would

be removed, effective August 9, 2017. Id. at 9.

¶5 The appellant filed an appeal, IAF, Tab 1, and requested a hearing. Id. at 2.

In addition to challenging the agency’s action, he alleged that it was based on

disability discrimination under a failure-to-accommodate theory. Id.; IAF,

Tab 20.

¶6 Thereafter, the administrative judge issued an initial decision in which he

first found that most of the elements of the charge were largely undisputed, that

is, that the appellant was absent for compelling reasons beyond his control so that

agency approval or disapproval was immaterial because he could not be on the

job and that his absences had continued beyond a reasonable time. IAF Tab 31,

Initial Decision (ID) at 6. Nevertheless, the administrative judge reversed the

agency’s action on the basis that it did not provide the appellant with “adequate

notice that a disciplinary action was potentially forthcoming.” ID at 1, 6-10, 12.

The administrative judge further found that the appellant failed to establish his

claim of disability discrimination. ID at 10-11.

¶7 The agency has filed a petition for review, Petition for Review (PFR) File,

Tab 3, and the appellant has filed petition for review, PFR File, Tab 1, to which

the agency has responded, PFR File, Tab 5.

ANALYSIS

The agency proved the charge.

¶8 To prove a charge of excessive absences, an agency must establish that:

(1) the employee was absent for compelling reasons beyond his control so that

agency approval or disapproval was immaterial because the employee could not

be on the job; (2) the absence continued beyond a reasonable time, and the agency

warned the employee that an adverse action could be taken unless the employee

became available for duty on a regular full-time or part-time basis; and (3) the

position needed to be filled by an employee available for duty on a regular

full-time or part-time basis. Gartner v. Department of the Army, 104 M.S.P.R.

463, ¶ 9 (2007); Cook v. Department of the Army, 18 M.S.P.R. 610, 611-12

(1984).

¶9 The parties do not dispute on review the administrative judge’s findings that

the appellant was absent for compelling reasons beyond his control as a

consequence of his depression and anxiety 2 and that he was absent for longer than

a reasonable time, specifically, for more than 1900 non-FMLA hours. 3 PFR File,

Tabs 1, 3; ID at 7. We discern no reason to disturb these findings which show

that the administrative judge considered the evidence as a whole , drew

appropriate inferences, and made reasoned conclusions. See Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of

Health and Human Services, 33 M.S.P.R. 357, 359 (1987).

The agency provided sufficient warning that an adverse action could be

taken unless the appellant became available for duty.

¶10 In finding that the agency’s notice to the appellant was not adequate, the

administrative judge relied on its May 31, 2017 letter. He acknowledged that it

directed the appellant to return to duty on June 12, 2017, and cautioned him that

failure to do so may lead to discipline, up to removal, but the administrative

judge found that the agency’s offering the appellant “other options” immediately

after the order to return to work fatally undermined “any hope” that the letter

served notice that he must return to work. ID at 8. The administrative judge

further found that the agency’s prior letter to the appellant, the letter of March 10,

2017, diluted the impact of the May 31, 2017 letter. ID at 9.

¶11 On review, the agency argues that it did, in the May 31, 2017 letter, in fact,

adequately notify the appellant that he could be disciplined for using approved

leave. PFR File, Tab 3 at 6-12. We agree. The letter specifically warned the

appellant that “[f]ailure to report to duty as directed may lead to disciplinary

action up to and including removal.” IAF, Tab 9 at 41. The Board’s case law

The administrative judge found that the appellant testified, and that his physicians

certified, that he could not have returned to work at any time from his initial absence on

May 3, 2016, until the close of the record below. ID at 12; Hearing Compact Disc

(testimony of the appellant); IAF, Tab 10 at 8, 17, 85, Tab 25 at 4. Although the

appellant speculates on review that he might have been able to return to work, PFR File,

Tab 1 at 7, he has provided no evidence in support of his assertion.

An employee may not be disciplined for use of leave covered by the FMLA.

McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 11 (2011).

does not require that, to be adequate, the notice must warn the employee that an

adverse action will be taken unless the employee becomes available for duty but

only that such action could be taken under those circumstances. Gartner,

104 M.S.P.R. 463, ¶ 9; Cook, 18 M.S.P.R. at 611-12. The agency’s May 31, 2017

return-to-duty letter clearly did so, and the fact that it provided the appellant with

other options neither detracts from nor fatally undermines the adequacy of the

notice. ID at 8. In finding that the May 31, 2017 letter did not provide the

appellant adequate notice that he could be disciplined for continued use of

approved leave, the administrative judge relied upon the fact that the agency

actually approved a portion of his request for additional LWOP and that the

appellant responded by requesting even more LWOP. Id. However, the May 31,

2017 letter specifically advised the appellant that the granting of LWOP is at the

discretion of management, IAF, Tab 9 at 41-42, and it is well established that the

authorization of LWOP is a matter within the agency’s discretion , Oates v.

Department of Labor, 105 M.S.P.R. 10, ¶ 11 (2007). While the agency had

indeed been generous in its granting of LWOP to the appellant, it was not thereb y

required to continue to grant his requests without end. Additionally, the agency’s

May 31, 2017 letter did not warn the appellant that his continued absences could

result in his being placed on absence without leave (AWOL), and he never was

placed on AWOL. In fact, as noted, the agency continued to grant the appellant’s

LWOP request through the notice period of his removal. Therefore, he could not

have been misled by the language of the May 31, 2017 letter into thinking that the

possibility of disciplinary action applied to any other status besides LWOP.

¶12 The agency challenges on review the administrative judge’s statement,

referencing the agency’s earlier letter to the appellant, that “this history of form

correspondence further diluted the impact of the May 31, 2017 letter.” PFR File,

Tab 3 at 9-10; ID at 9. Contrary to the administrative judge’s claim, the two

letters are not “almost identical.” ID at 8. The March 10, 2017 letter informed

the appellant that he had failed to provide supporting medical documentation that

would allow the agency to grant his most recent LWOP request and direct ed him

to submit such documentation, and it also addressed his current leave status, that

is, that he had exhausted all of his leave, including his annual allotment of time

under FMLA, and explained his options. IAF, Tab 9 at 58-59. The letter further

reminded the appellant that he must request leave appropriately, that failing to do

so could result in his being charged AWOL, and that disciplinary action up to and

including removal could be taken on that basis. Id. at 59. Although the May 31,

2017 letter similarly addressed the appellant’s current leave status and explained

his options, id. at 41-42, it also informed him that his absence from work had

existed past a reasonable timeframe and ordered him to return to duty, reminding

him that his failure to do so could lead to disciplinary action up to and including

removal. Id. at 41. An examination of the two letters demonstrates that they

served different purposes and that the March 10, 2017 letter, which urged the

appellant to properly request leave, in no way diluted the impact of the May 31,

2017 letter, which for the first time warned him that failing to return to duty

could result in his removal.

¶13 We find, therefore, that the agency proved that it adequately warned the

appellant that an adverse action could be taken unless he became available for

duty.

The position needed to be filled by an employee available for duty on a

regular full-time or part-time basis.

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

the agency proved that his position needed to be filled by an employee available

for duty, claiming that the agency had not filled his position by the time of his

Board hearing. PFR File, Tab 1 at 7. The administrative judge found that the

agency presented ample evidence that, as head of a division and its only

supervisor, the appellant’s absence caused a significant hardship for the agency.

ID at 7. Specifically, the administrative judge relied on testimony of the

proposing official, who was appellant’s supervisor and the Assistant Director of

the Boston Regional Office, to the effect that she spent several hours each day

performing the appellant’s duties and that a division chief from another regional

office had to be detailed to cover for the appellant. Id.; Hearing Compact Disc

(HCD) (testimony of the proposing official); IAF, Tab 10 at 44. The

administrative judge also relied on testimony of the deciding official, Director of

the Boston Regional Office, that the situation created by the appellant’s extended

absence had become untenable. ID at 7; HCD (testimony of the deciding

official). Beyond his unsupported claim, the appellant has not shown error in the

administrative judge’s findings on this issue, and we discern no basis upon which

to disturb them. Crosby, 74 M.S.P.R. at 105-06.

Conclusion

¶15 We conclude, therefore, that the agency proved all the elements of the

charge of excessive absences. Gartner, 104 M.S.P.R. 463, ¶ 9; Cook,

18 M.S.P.R. at 611-12. We further find that the agency established that its action

promotes the efficiency of the service and that, given that the appellant’s absence

has no foreseeable end, removal is a reasonable penalty. Bair v. Department of

Defense, 117 M.S.P.R. 374, ¶ 5 (2012).

The appellant failed to establish that the administrative judge was biased.

¶16 On review, the appellant also argues that, while the administrative judge

ruled in his favor, he nonetheless exhibited bias towards him. PFR File, Tab 1

at 4-8. Specifically, the appellant refers to an employee, formerly under his

supervision, whose removal he proposed. During the proceedings before the

agency in that matter, the appellant claims that the employee “besmirched” the

appellant’s character and that, when the employee appealed his removal to the

Board, he continued to attack the appellant’s character. Id. at 5. The appellant

explains that he learned at his own hearing that the administrative judge in his

case was also the administrative judge in his subordinate’s case and suggests that,

because of the attack on the appellant’s character in that other proceeding, the

administrative judge in this case, rather than rule against the appellant, limited his

prehearing narrative and did not address significant failures of the agency, denied

his request for additional witnesses, and ordered only minimal relief. Id. at 6.

¶17 A claim of bias must be raised as soon as practicable after a party has

reasonable cause to believe that grounds exist for an administrative judge’s

disqualification on such basis, and a party cannot wait until after the adjudication

is complete to object for the first time. Gensburg v. Department of Veterans

Affairs, 85 M.S.P.R. 198, ¶ 7 (2000); 5 C.F.R. § 1201.42(b). By not raising the

claim below, the appellant failed to follow the regulatory procedures for seeking

disqualification of an administrative judge based on bias due to his alleged

involvement in the appeal of the appellant’s subordinate. 5 C.F.R.

§ 1201.42(b)-(c). Therefore, we need not address this claim on review.

¶18 In any event, bearing in mind that the administrative judge ruled in the

appellant’s favor, the administrative judge’s actions do not establish bias. For

example, the appellant argues that the administrative judge limited his prehearing

narrative. PFR File, Tab 1 at 6. In his first Order and Summary of Telephonic

Prehearing Conference, the administrative judge emphasized that the only matters

before him were the appellant’s removal for excessive absences and his

affirmative defense of disability discrimination and that a proposed performance

improvement plan in 2016, agency understaffing, and a particularly difficult

employee were not relevant to the removal action. IAF, Tab 21. In the

administrative judge’s second Order and Summary of Telephonic Prehearing

Conference, he set forth, inter alia, the same two issues and stated that any

objections to the summary must be received b y a date certain. IAF, Tab 28. The

appellant did file a timely response, but it did not address the issues. IAF,

Tab 29. Therefore, as to the matters at issue in this appeal, the administrative

judge’s summary is deemed final, IAF, Tab 28, and not subject to challenge on

review. Crowe v. Small Business Administration, 53 M.S.P.R. 631, 635 (1992).

¶19 The appellant also argues that the administrative judge denied him

“additional witnesses.” PFR File, Tab 1 at 6. The appellant originally requested

six witnesses, IAF, Tab 18, two of whom also were requested by the agency, IAF,

Tab 19. The administrative judge provisionally excluded one of the appellant’s

requested witnesses on the agency’s objection as irrelevant. IAF, Tab 28. The

appellant did challenge the exclusion, IAF, Tab 29, but was unsuccessful. He has

not on review further explained his challenge to the administrative judge’s

disallowance of the witness, and we therefore need not address this claim further.

¶20 In making a claim of prejudice against an administrative judge, a party must

overcome the presumption of honesty and integrity that accompanies

administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.

382, 386 (1980). An administrative judge’s conduct during the course of a Board

proceeding warrants a new adjudication only if the administrative judge’s

comments or actions evidence “a deep-seated favoritism or antagonism that would

make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)). There is nothing in the record to support a finding of bias by the

administrative judge. 4

The appellant has not established the agency failed to provide him a reasonable

accommodation.

¶21 Finally, the appellant argues that his removal was improper because the

agency did not first “see if an accommodation could be made.” PFR File, Tab 1

at 7. We construe this claim as challenging the administrative judge’s finding

that he did not establish his defense of disability discrimination based on a theory

of failure to accommodate. After he presumed that the appellant is a qualified

We note the appellant’s claim that the administrative judge’s bias is shown by his

order of only minimal relief. PFR File, Tab 1 at 4, 7-8. The appellant’s claim is

rendered moot by this final decision.

individual with a disability, 5 the administrative judge thoroughly considered the

failure to accommodate issue, finding that the appellant’s various claims were

“implausible, incredible, or inconsistent.” ID at 10. Regarding the appellant’s

assertion that the agency denied him reasonable accommodation, the

administrative judge found no evidence that the appellant ever started the

interactive process, Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 15

(2014), and that his own testimony on this point was inconsistent and otherwise

incredible, ID at 11. 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 v. Department of Justice,

288 F.3d 1288, 1302 (Fed. Cir. 2002). As such, the administrative judge did not

err in finding that, other than indefinite LWOP which the agency was not required

to provide, the appellant did not request reasonable accommodation and therefore

did not establish his claim of disability discrimination.

NOTICE OF APPEAL RIGHTS 6

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 a ppropriate

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

The record does not appear to support such a presumption.

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.

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).

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. 7 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

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