Opinion

Danny Wood v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Dec 7, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANNY WOOD, DOCKET NUMBER

Appellant, CB-7121-18-0001-V-1

DEPARTMENT OF HOMELAND DATE: December 7, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sherry J. Downer , Tucson, Arizona, for the appellant.

Lauren J. Johnson , San Diego, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a request for review of an arbitration decision,

which affirmed his removal for absence without leave and failure to follow a

leave restriction letter. For the reasons that follow, we DENY the appellant’s

request for review and AFFIRM the arbitrator’s decision, except as MODIFIED

by this order to find that the agency proved the charges and the reasonableness of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the penalty and that the appellant failed to prove his affirmative defense of

status-based disability discrimination.

BACKGROUND

¶2 By letter dated March 21, 2016, the agency proposed to remove the

appellant from his GS-9 Mission Support Specialist position for nine

specifications of being absent without leave (AWOL) and six specifications of

failure to follow a leave restriction letter. Request for Review (RFR) File, Tab 1

at 720-24. In a decision letter dated June 1, 2016, the deciding official found that

the appellant’s removal was warranted but offered him a last chance agreement

(LCA), which would have held his removal in abeyance for 3 years and allowed

him to serve a 21-day suspension in lieu of removal. Id. at 725-28, 737-40. A

union attorney sought to negotiate the terms of the LCA on the appellant’s behalf

beginning on June 14, 2016. Id. at 110, 392-93, 741-45, 749-52. The agency

declined to alter the terms of the LCA but extended the deadline for the appellant

to accept the LCA until July 14, 2016. Id. at 729-31, 746-47. The appellant did

not accept the LCA, and the agency effected his removal on or about July 15,

2016. Id. at 367, 369, 598.

¶3 The union grieved the appellant’s removal action and invoked arbitration on

his behalf, arguing as follows: (1) the leave restriction memorandum was

unlawful and resulted in harmful error mandating reversal; and (2) the agency

discriminated against the appellant on the basis of disability by failing to

reasonably accommodate him and by removing him for disability-related

misconduct. Id. at 112-40. After holding a hearing, the arbitrator issued an

arbitration decision denying the appellant’s grievance. Id. at 39-102. The

appellant has requested review of the arbitrator’s decision, and the agency has

responded. RFR File, Tabs 1, 4-5.

ANALYSIS

¶4 The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.

§ 7121(d) when the following criteria are met: (1) the subject matter of the

grievance is one over which the Board has jurisdiction; (2) the appellant either

raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in

connection with the underlying action or raises a claim of discrimination in

connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first

time with the Board if such allegations could not be raised in the negotiated

grievance procedure; and (3) a final decision has been issued. Jones v.

Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972

(Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c). In the instant case, each of the

necessary conditions has been met, and we therefore find that the Board has

jurisdiction to review the arbitration decision.

¶5 The standard of the Board’s review of an arbitrator’s award is limited; such

awards are entitled to a greater degree of deference than initial decisions issued

by the Board’s administrative judges. Sadiq v. Department of Veterans Affairs,

119 M.S.P.R. 450, ¶ 5 (2013). The Board will modify or set aside such an award

only when the arbitrator has erred as a matter of law in interpreting a civil service

law, rule, or regulation. Id. Even if the Board disagrees with an arbitrator’s

decision, absent legal error, the Board cannot substitute its conclusions for those

of the arbitrator. Id. Thus, the arbitrator’s factual determinations are entitled to

deference unless the arbitrator erred in her legal analysis, for example, by

misallocating the burdens of proof or employing the wrong analytical framework.

Id. Nevertheless, the Board can defer to the arbitrator’s findings and conclusions

only if the arbitrator makes specific findings on the issues in question. Id.

Further, the Board may make its own findings when the arbitrator failed to cite

any legal standard or employ any analytical framework for her evaluation of the

evidence. Id.

The arbitrator did not make specific findings regarding whether the agency

proved the charges, and we modify the arbitration award to find that the agency

did so.

¶6 As noted above, the agency charged the appellant with AWOL and failure to

follow a leave restriction letter. RFR File, Tab 1 at 720-22. The arbitrator found

that these charges must be reviewed together because they arose from the same

misconduct. Id. at 90-91. However, she did not determine how the charges

should be merged, and we therefore make our own findings on this issue. See

Sadiq, 119 M.S.P.R. 450, ¶ 5.

¶7 The Board will “merge” charges if they are based on the same conduct and

proof of one charge automatically constitutes proof of the other charge. Powell v.

U.S. Postal Service, 122 M.S.P.R. 60, ¶ 10 (2014). Here, the agency charged the

appellant with AWOL on December 22, 2015, and January 8, 13-14, 20, and 28,

2016, because he failed to provide medical documentation regarding his absences

on those dates pursuant to the leave restriction letter. RFR File, Tab 1 at 680,

688, 694, 700, 705, 709, Tab 4 at 28, 38-39. The agency also charged him with

failure to follow the leave restriction letter on those same six occasions. RFR

File, Tab 1 at 721-22. Therefore, we find that it is appropriate to merge the six

specifications of failure to follow the leave restriction letter into the AWOL

charge. See McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014)

(finding that the administrative judge properly merged into the AWOL charge

specific instances of failure to follow leave restriction letter procedures that were

also listed under the AWOL charge); Westmoreland v. Department of Veterans

Affairs, 83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow

leave-requesting procedures into the charge of AWOL when the charge of AWOL

was based solely on the appellant’s failure to follow the leave requesting

procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds

as recognized in Pickett v. Department of Agriculture , 116 M.S.P.R. 439, ¶ 11

(2011). Because the failure to follow the leave restriction letter charge merges

into the AWOL charge, proof of the AWOL charge will constitute proof of the

failure to follow the leave restriction letter charge. See Powell, 122 M.S.P.R. 60,

¶ 10.

¶8 To prove a charge of AWOL, an agency must show by preponderant

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

requested leave, that the request was properly denied. 2 Savage v. Department of

the Army, 122 M.S.P.R. 612, ¶ 28 (2015), overruled on other grounds by Pridgen

v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Here, although

the arbitrator found that the agency removed the appellant for “just and sufficient

cause,” she did not cite any legal standard, employ any analytical framework for

her evaluation of the evidence, or consider whether the agency proved either

charge. 3 RFR File, Tab 1 at 90-102. Therefore, the Board herein makes its own

findings as to whether the agency proved the charges. See Sadiq, 119 M.S.P.R.

450, ¶ 5.

¶9 In support of the AWOL charge, the agency alleged the following: on

December 22, 2015, the appellant failed to report for duty and did not contact his

supervisor until 3.5 hours after the beginning of his scheduled shift, resulting in

3.5 hours of AWOL; on January 8, 13-14, 20, 28, and February 1 and 2, 2016, he

failed to report for duty as scheduled without authorization and, as a result, was

charged 8 hours of AWOL for each day; and, on February 18, 2016, he failed to

report for duty at his scheduled time and, after the agency denied his request for

annual leave because he needed more sleep, reported for duty approximately

1 hour after his scheduled start time, resulting in 1 hour of AWOL. RFR File,

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

In the background section of the arbitrator’s decision, the arbitrator set forth the

parties’ arguments, which included citation to legal standards and argument regarding

whether the agency proved the charges. RFR File, Tab 1 at 56-90. However, her own

analysis is devoid of any reference to the applicable legal standards and does not

address whether the agency proved the charges. Id. at 90-98.

Tab 1 at 720-21. The agency conceded, and the record reflects, that the

specification alleging that the appellant was AWOL on February 2, 2016, was in

error. RFR File, Tab 1 at 360-61, 715, Tab 4 at 39. Therefore, we do not sustain

that specification. It is undisputed, however, that the appellant was absent on the

other dates and for the other hours for which he was charged AWOL and that the

agency did not authorize those absences. RFR File, Tab 1 at 686, 692, 698, 703,

708, 715, 719. Thus, we next determine whether the appellant requested leave for

those absences and, if so, whether the agency properly denied his requests. See

Savage, 122 M.S.P.R. 612, ¶ 28.

¶10 The appellant requested sick leave or “emergency annual leave” due to a

“flare up (disability related)” or illness after his December 22, 2015, January 8,

13-14, 20, 28, and February 1, 2016 absences and requested 1 hour of annual

leave on February 18, 2016. RFR File, Tab 1 at 681, 685, 688, 690, 694 -95, 701,

705-06, 710, 717, Tab 4 at 158. According to the agency, it properly denied the

appellant’s requests for leave on these dates because he failed to comply with an

August 6, 2015 leave restriction letter, which required him to request

nonemergency leave 3 workdays in advance and to provide, within 3 days of

returning from a medical-related absence, a medical certification containing the

date he was seen by a healthcare provider, the dates and the reason he was

incapacitated for work, and the provider’s name, telephone number, signature,

and date. RFR File, Tab 1 at 678-79, Tab 4 at 28, 38 -39. The agency argued that

the appellant did not submit any medical documentation regarding his absences on

January 8, 14, 20, 28, or February 1, 2016, and that, although he submitted notes

regarding his December 22, 2015 and January 13, 2016 absences, they were

insufficient because they did not give any reason for excusal or state that he was

incapacitated for work. 4 RFR File, Tab 4 at 38-39. The agency further argued

Regarding his December 22, 2015 absence, the appellant submitted a note from the

Yuma Vet Center stating that he “was present at the Yuma Vet Center on Tuesday,

December 22, 2015, to initiate services with this agency.” RFR File, Tab 1 at 683.

Regarding his January 13, 2016 absence, he submitted a note stating that he checked in

that it properly denied the appellant’s request for 1 hour of annual leave on

February 18, 2016, which he made 5 minutes before the start of his shift, because

he did not make the request 3 days in advance, as required by the leave restriction

letter, or submit medical documentation of incapacitation. Id. at 40.

¶11 The appellant did not dispute the agency’s contention that he failed to

timely request leave or submit medical documentation in accordance with the

leave restriction letter but argued that the charges could not be sustained because

the leave restriction letter was unlawful. Id. at 112-19. Specifically, he alleged

that the requirement in the leave restriction letter that he submit an application for

leave accompanied by an acceptable medical certification within 3 days following

his return to work from an absence for medical reasons violated an Office of

Personnel Management (OPM) regulation, 5 C.F.R. § 630.405(b), which allows an

employee between 15 and 30 days to provide medical documentation regarding an

absence. RFR File, Tab 1 at 112-14. He argued that the agency’s failure to

comply with the time provisions of section 630.405(b) constituted harmful error

under 5 U.S.C. § 7701(c)(2)(A) and warranted reversal of his removal. Id.

at 115-19.

¶12 The arbitrator found that, although the appellant was on notice of the

requirements of the leave restriction letter, he failed to submit adequate medical

documentation in connection with any of his absences at any time within 30 days

from the date of his absence. Id. at 94-98. She considered the appellant’s

contention that the leave restriction letter violated OPM’s regulation and found

that, although the 3-day requirement in the leave restriction letter was

inconsistent with the regulation, the inconsistency was not harmful error or

prejudicial to the appellant because the record did not show that he would have

provided sufficient medical documentation, even if he had been given 30 days to

for a 10 a.m. appointment using the automated check-in system at the Yuma Community

Based Outpatient Clinic. Id. at 697.

do so. 5 Id. Although the appellant disagrees with these findings on review, id.

at 11-20, he has not shown that the arbitrator erred as a matter of law in

interpreting civil service law, rule, or regulation. Therefore, we defer to her

conclusions. Sadiq, 119 M.S.P.R. 450, ¶ 5.

¶13 It is unclear from the record whether the appellant had accrued sick or

annual leave balances at the time of the AWOL charges at issue in this appeal

between December 2015 and February 2016. RFR File, Tab 1 at 678 (reflecting

that, as of August 6, 2015, the appellant had a balance of 12.2 hours of annual

leave and 13.3 hours of sick leave). The Board has found, however, that whether

an employee has an accrued annual leave balance is irrelevant to the question of

whether the agency abused its discretion in denying his request for leave. Roby v.

Department of Justice, 59 M.S.P.R. 426, 429 (1993). An employee must request

approval to take annual leave in accordance with agency policies; he cannot

simply demand it. Id. Because we defer to the arbitrator’s finding that the

appellant did not comply with the leave restriction letter in connection with his

absences on December 22, 2015, January 8, 13-14, 20, 28, and February 1 and 18,

2016, we find that the agency properly denied his requests for annual leave and

“emergency annual leave” on those dates.

¶14 As noted above, in addition to requesting “emergency annual leave” for his

absences on December 22, 2015, January 8, 13 -14, 20, 28, and February 1, 2016,

As the agency points out on review, the alleged impropriety of the leave restriction

letter does not come within the harmful error rule because it does not concern the

procedures that the agency applied in arriving at its decision to remove him. RFR File,

Tab 4 at 10-11; see 5 U.S.C. § 7701(c)(2)(A) (providing that an agency action may not

be sustained if an appellant “shows harmful error in the application of the agency’s

procedures in arriving at such decision”); Boatman v. Department of Justice,

66 M.S.P.R. 58, 63 (1994). Rather, the alleged impropriety of the leave restriction

letter, which concerns the circumstances under which the charged misconduct occurred,

is relevant to the merits of the action or to the reasonableness of the penalty imposed.

See Boatman, 66 M.S.P.R. at 63. It appears that the arbitrator properly considered the

appellant’s challenge to the propriety of the leave restriction letter as it related to the

charges and not whether it constituted harmful error under 5 U.S.C. § 7701(c)(2)(A).

RFR File, Tab 1 at 93-99.

the appellant also requested sick leave or informed the agency that his absence

was due to illness or a disability-related “flare up.” RFR File, Tab 1 at 681, 688,

690, 694-95, 701, 705-06, 710, Tab 4 at 158. Pursuant to OPM’s regulations,

“[a]n agency may grant sick leave only when the need for sick leave is supported

by administratively acceptable evidence.” 5 C.F.R. § 630.405(a). While an

employee’s self-certification of the reasons for his absence may be

administratively acceptable in some circumstances, “[a]n agency may also require

a medical certificate or other administratively acceptable evidence as to the

reason for an absence for any of the purposes described in § 630.401(a) for an

absence in excess of 3 workdays, or for a lesser period where the agency

determines that it is necessary.” Id. Section 631.401(a) provides, among other

things, that an agency must grant sick leave to an employee when he receives

medical treatment or is incapacitated for the performance of his duties by physical

or mental illness. Generally, an employee must “provide administratively

acceptable evidence or medical certification for a request for sick leave no later

than 15 calendar days after the date the agency requests such medical

certification” but may have up to 30 days if 15 days is not “practicable under the

particular circumstances.” 5 C.F.R. § 630.405(b). The regulations further

provide that an employee who fails to submit the “required evidence or medical

certification within the specified time period is not entitled to sick leave.” Id.

¶15 Here, the agency was well within its right to require medical documentation

from the appellant and, with the exception of the 3-day requirement discussed

above, the requirements set forth in the leave restriction letter were reasonable

and consistent with the regulations. RFR File, Tab 1 at 678-79; see 5 C.F.R.

§§ 630.401, 630.405(a). Although the 3-day requirement was inconsistent with

the regulations, the agency did not deny any request for leave because of the

appellant’s failure to submit medical documentation within that timeframe.

Rather, the agency memoranda documenting these absences each state that,

pursuant to the leave restriction letter, the appellant would be charged AWOL

“until such time that he provides medical documentation of his illness,” or words

to that effect. RFR File, Tab 1 at 680, 688, 694, 700, 705, 709. As the arbitrator

found, the appellant did not submit adequate medical documentation within

30 days of any absence, id. at 98, and the March 21, 2016 proposed removal

indicates that “to date” the appellant still had not submitted adequate medical

documentation of his absences, id. at 722-23. Because the appellant failed to

comply with the valid provisions of the leave restriction letter by submitting

acceptable medical documentation within 30 days of his absence or at any time

prior to his proposed removal, we find that the agency properly denied his

requests for sick leave on December 22, 2015, January 8, 13-14, 20, 28, and

February 1, 2016.

¶16 In light of the foregoing, we find that the agency proved that the appellant

was AWOL on December 22, 2015, and on January 8, 13 -14, 20, 28, February 1

and 18, 2016, and we therefore sustain the charge of AWOL. The failure to

follow the leave restriction letter charge is likewise proven and sustained by

virtue of its merger into the AWOL charge. See Powell, 122 M.S.P.R. 60, ¶ 10.

The arbitrator correctly found that the agency established nexus between the

charges and the efficiency of the service.

¶17 In addition to the requirement that the agency prove its charge against the

appellant, the agency also must prove that there is a nexus, i.e., a clear and direct

relationship between the articulated grounds for the adverse action and either the

appellant’s ability to accomplish his duties satisfactorily or some other legitimate

Government interest. Powell, 122 M.S.P.R. 60, ¶ 11. The arbitrator appeared to

find that the agency established nexus, stating that the agency removed the

appellant for reasons that promoted the efficiency of the service and explaining

that the appellant’s AWOL required the agency to use staff for “welfare checks”

on him and to cover his important work. RFR File, Tab 1 at 98-99. Id. We

discern no legal error in the arbitrator’s finding, which the appellant has not

challenged on review, and we therefore defer to it. See Adams v. Department of

Labor, 112 M.S.P.R. 288, ¶ 8 (2009) (holding that any sustained charge of AWOL

is inherently connected to the efficiency of the service as an essential element of

employment is to be on the job when one is expected to be there).

The arbitrator correctly found that the appellant did not prove his affirmative

defense of disability discrimination based on failure to accommodate.

¶18 The Rehabilitation Act requires an agency to make a reasonable

accommodation to the known physical and mental limitations of an otherwise

qualified individual with a disability unless the agency can show that

accommodation would cause an undue hardship on its business operations.

Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 17 (2014). While an

individual with a disability may request a modification to the work environment

or adjustments in how and when a job is performed due to a medical condition,

this request does not necessarily mean that the employer is required to provide the

requested modification or adjustment. White v. Department of Veterans Affairs,

120 M.S.P.R. 405, ¶ 12 (2013). A request for reasonable accommodation is the

first step in an informal, interactive process between the individual and the

employer. Id. The employer may ask the individual relevant questions that will

enable it to make an informed decision about the request. Id. When the existence

or nature of a reasonable accommodation is not obvious, and the employee fails to

respond to the employer’s reasonable request for medical information or

documentation, an agency will not be found to have violated its duty to provide a

reasonable accommodation. Id.

¶19 Here, the arbitrator found that, by virtue of his diagnosis of post-traumatic

stress disorder (PTSD), the appellant was an individual with a disability. RFR

File, Tab 1 at 99-100. She did not address whether the appellant was a qualified

individual, but concluded that the agency did not fail to reasonably accommodate

him because he did not fulfill his obligation to engage in the interactive process.

Id. at 100-02. In so finding, she determined that the agency’s requests for

information regarding the appellant’s disability and the accommodation he

required were reasonable and lawful and that the appellant failed to sufficiently

participate in the interactive process prior to his removal. Id. at 101-02.

¶20 The appellant challenges this finding on review, arguing that the agency

was aware that his absences were related to his disability and had medical

documentation regarding his disability as of November 16, 2015. Id. at 26-27.

He argues that his need for an accommodation—such as a liberal leave policy,

telework or reassignment—was obvious and medical documentation was therefore

not necessary. Id. at 31-36. He further argues that the arbitrator ignored the

agency’s failure to engage in the interactive process after he requested an

accommodation in September 2015 and failed to address the agency’s obligation

to provide temporary accommodations and prospective accommodations. 6 Id.

at 29-32.

¶21 Although the appellant disagrees with the arbitrator’s factual findings and

takes issue with her failure to expressly consider his right to temporary and

prospective accommodations, he has not shown any legal error in her analysis.

Therefore, we defer to her conclusion that the appellant failed to prove that the

agency violated the Rehabilitation Act by failing to reasonably accommodate him.

See Sadiq, 119 M.S.P.R. 450, ¶ 5; Young v. Department of Justice, 93 M.S.P.R.

326, ¶ 7 (2003) (holding that an arbitrator’s finding that an appellant did not

prove her discrimination claims is a factual determination entitled to deference,

unless the arbitrator erred in his legal analysis).

The arbitrator did not address the appellant’s affirmative defense of status - based

disability discrimination, and we modify the arbitration award to find that the

appellant failed to prove this claim.

¶22 The appellant argued before the arbitrator that his removal was

“unquestionably based on his disability-related absences” and that, because his

The appellant also appears to argue that the agency discriminated against him when it

offered him an LCA in which he had to “forfeit his right to seek future accommodations

in order to keep his job.” RFR File, Tab 1 at 36-38. However, the LCA in the record

contains no such provision. Id. at 737-40.

removal was premised on disability-related conduct, it constituted a per se

violation of the Rehabilitation Act. RFR File, Tab 1 at 137-40. In his request for

review, he argues that the arbitrator failed to consider this affirmative defense and

reiterates his contention that the agency discriminated against him on the basis of

his disability by removing him for his disability-related absences. 7 Id. at 21-24.

Although the arbitrator observed that the appellant raised this claim, she did not

address it in her analysis. Id. at 86-89, 90-102. Therefore, we have no basis upon

which to defer to the arbitrator on this affirmative defense and make our own

findings. See Sadiq, 119 M.S.P.R. 450, ¶ 5.

¶23 To establish an affirmative defense of status-based disability discrimination,

an appellant must show by preponderant evidence that his disability was a

motivating factor in the contested personnel action, even if it was not the only

reason. Pridgen, 2022 MSPB 31, ¶¶ 37, 40; 5 C.F.R. § 1201.56(b)(2)(i)(C).

Here, the only argument in support of this affirmative defense advanced by the

appellant is that his removal was based on his disability-related absences. RFR

File, Tab 1 at 21-24. Contrary to his characterization of the reasons for his

removal, however, the agency did not remove him for excessive absences; rather,

it removed him for eight instances of AWOL within 2 months and failure to

follow the leave restriction letter. Id. at 21-24, 137-40, 720-22. The appellant

has not alleged that his disability prevented him from complying with the leave

restriction letter, which resulted in his absences being designated as AWOL, and

therefore has not shown that his removal was based on his disability rather than

on the charged misconduct. See Adams, 112 M.S.P.R. 288, ¶ 18 (finding that the

In support of his contention that his removal based on disability-related absences

constitutes a per se violation of the Rehabilitation Act, the appellant cites cases from

the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). RFR File, Tab 1

at 22-24. While decisions of the U.S. Court of Appeals for the Federal Circuit are

controlling authority for the Board, other circuit courts’ decisions are considered

persuasive, but not controlling, authority. See Morris v. Department of the Navy,

123 M.S.P.R. 662, ¶ 15 n.12 (2016). The appellant has not explained why the Board

should follow Ninth Circuit precedent here, rather than the Board’s case law, and we

find no basis to do so.

appellant failed to show that he was removed on the basis of his drug addiction

rather than the charged misconduct because, among other things, he did not show

that his drug addiction precluded him from complying with his leave restriction).

¶24 We acknowledge that many of the appellant’s unscheduled absences were

likely occasioned by his PTSD and that his removal was therefore at least

indirectly related to his disability. Nonetheless, the Rehabilitation Act does not

immunize an employee with a disability from being disciplined for misconduct in

the workplace, provided that the agency would impose the same discipline on an

employee without a disability. Laniewicz v. Department of Veterans Affairs ,

83 M.S.P.R. 477, ¶ 5 (1999). Here, the appellant has not alleged, or presented

any evidence to suggest, that the agency tolerated the sort of misconduct that he

committed from employees who did not have a disability. Therefore, even if his

misconduct was related to his disability, he has not shown that it was a motivating

factor in the agency’s decision to remove him. 8

¶25 In light of the foregoing, we find that the appellant failed to prove his

status-based disability discrimination affirmative defense.

The arbitrator failed to make specific findings regarding the reasonableness of the

penalty, and we modify the arbitration decision to find that the penalty of removal

is within the tolerable limits of reasonableness for the sustained charges.

¶26 The deference that is due to an arbitrator’s findings extends to findings

related to penalty determinations. Pinegar v. Federal Election Commission,

105 M.S.P.R. 677, ¶ 50 (2007). In making these findings, arbitrators are required

to apply the same rules that the Board applies. Id. When the arbitrator does not

apply those rules, her penalty determination is not entitled to deference, and the

Board will conduct its own analysis. Id.

Because the appellant failed to show that his disability was a motivating factor in the

agency’s decision to remove him, we do not reach the question of whether

discrimination was a “but-for” cause of the removal action. See Pridgen, 2022 MSPB

31, ¶¶ 20-24.

¶27 When, as here, all of the agency’s charges are sustained, the Board will

review the agency-imposed penalty only to determine if the agency considered all

of the relevant factors and exercised management discretion within the tolerable

limits of reasonableness. Id., ¶ 53; see Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 factors that

are relevant in assessing the appropriate penalty for an act of misconduct). In

making this determination, the Board must give due deference to the agency’s

primary discretion in maintaining employee discipline and efficiency, recognizing

that the Board’s function is not to displace management’s responsibility, but to

ensure that managerial judgment has been properly exercised. Pinegar,

105 M.S.P.R. 677, ¶ 53. The Board will modify or mitigate an agency-imposed

penalty only when it finds that the agency failed to weigh the relevant factors or

that the penalty clearly exceeds the bounds of reasonableness. Id.

¶28 The arbitrator found that the agency removed the appellant for just and

sufficient cause and for reasons that promoted the efficiency of the service. RFR

File, Tab 1 at 98-99. However, she did not address whether the deciding official

considered the relevant Douglas factors or exercised management discretion

within the tolerable limits. 9 RFR File, Tab 1 at 58, 91-93. Because the arbitrator

failed to apply the same rules that the Board applies in reviewing an

agency-imposed penalty, we conduct our own analysis. See Pinegar,

105 M.S.P.R. 677, ¶ 50.

¶29 The record reflects that the deciding official considered as aggravating

factors the nature and seriousness of the charge as related to the appellant’s

duties, his prior discipline for AWOL and reporting to work under the influence

of alcohol, his past work record, the fact that he was clearly on notice of the

In the arbitration decision, the arbitrator set forth the agency’s argument regarding

penalty and quoted the decision letter, which both included a discussion of the Douglas

factors. RFR File, Tab 1 at 58-60, 91-93. However, her own analysis is devoid of any

reference to the applicable law or consideration of whether the deciding official

considered the relevant factors. Id. at 90-102.

agency’s expectations, and the effect of the appellant’s continued disregard of

agency policies and procedures on management’s confidence in his ability to

perform his duties and responsibilities. RFR File, Tab 1 at 362-66, 725-26. As

mitigating factors, the deciding official considered the appellant’s medical issues,

his difficulty obtaining treatment from the Department of Veterans Affairs, and

his potential for rehabilitation. Id. at 366-67, 726. The deciding official testified

that he considered the availability of alternative sanctions and decided to offer the

appellant the LCA, which he ultimately did not accept. Id. at 367-68. Based on

his consideration of these factors, the deciding official concluded that removal

was an appropriate penalty. Id. at 726.

¶30 In light of the foregoing, we find that the deciding official considered the

relevant Douglas factors and that management exercised its discretion within the

tolerable limits of reasonableness in imposing the appellant’s removal. See

McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 14 (2011) (finding

that the penalty of removal for AWOL does not exceed the tolerable limits of

reasonableness, particularly when the employee has prior discipline for the same

offense); Johnson v. General Services Administration, 46 M.S.P.R. 630, 635

(finding removal for the charges of failure to follow proper leave procedures and

AWOL to be within the bounds of reasonableness), aff’d, 944 F.2d 913 (Fed. Cir.

1991) (Table).

¶31 This is the Board’s final decision regarding the request for review of the

arbitration decision.

NOTICE OF APPEAL RIGHTS 10

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).

Since the issuance of the arbitration 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.

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).

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. 11 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

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