Opinion

Shawn Green v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jan 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHAWN GREEN, DOCKET NUMBER

Appellant, CH-0731-17-0459-I-1

DEPARTMENT OF VETERANS DATE: January 3, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shawn Green , Chicago, Illinois, pro se.

Sheila Fitzpatrick , Hines, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The agency has filed a petition for review and the appellant has filed a

cross petition for review of the initial decision, which reversed the agency’s

suitability action. For the reasons discussed below, we GRANT the petition for

review, REVERSE the initial decision, and DENY the cross petition for review.

The agency’s suitability action is SUSTAINED.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

On April 28, 2017, the appellant filed an application with the agency for

the competitive service position of GS-5 Medical Instrument Technician. Initial

Appeal File (IAF), Tab 8 at 20, 131-49. On his Declaration for Federal

Employment, the appellant indicated a significant arrest history. Id. at 135-38.

On May 1, 2017, the Office of Personnel Management (OPM) conducted a

background investigation on the appellant and transmitted the results of that

investigation to the agency. Id. at 102-30. Based on this information, the agency

conducted a suitability review under its delegated authority. Id. at 100-01, 158.

On May 9, 2017, the agency notified the appellant that the results of the review

revealed 17 incidents of “criminal or dishonest conduct” between January 19,

2003 and June 2, 2016, which raised a serious question concerning his suitability

for Federal employment. Id. at 78, 100-01. The agency afforded the appellant an

opportunity to provide further pertinent information, including explanations of

the 17 arrest incidents at issue. Id. at 79-99. After the appellant responded, id.

at 38-77, on July 14, 2017, the agency issued a final suitability determination

finding the appellant unsuitable for employment as a Medical Instrument

Technician and cancelling any eligibilities he had for covered positions. Id.

at 30-37.

The appellant filed a Board appeal, challenging the merits of the suitability

action and raising an affirmative defense of disability discrimination. IAF,

Tab 1, Tab 26 at 1-3. After a hearing, the administrative judge issued an initial

decision reversing the suitability action. IAF, Tab 32, Initial Decision (ID). She

found that the agency proved only eight of the 17 specifications of criminal

conduct, and that it failed to establish a nexus between the remaining

specifications and the integrity or efficiency of the service. ID at 4-20. The

administrative judge also found that the appellant failed to prove his disability

discrimination claim. ID at 21-25. She ordered the agency to cancel the

appellant’s negative suitability determination, return him to all appropriate

eligibility lists, and provide him with interim relief in the event that either party

petitioned for review. ID at 26-27.

The agency has filed a petition for review, arguing that the administrative

judge misapplied the burden of proof and made several erroneous findings of fact

in concluding that it failed to establish nexus. Petition for Review (PFR) File,

Tab 1. The appellant has filed a response, as well as a cross petition for review,

arguing that the administrative judge erred in finding that he failed to prove

disability discrimination. PFR File, Tab 8. He also challenges the agency’s

compliance with the interim relief order. PFR File, Tab 3. The agency has filed a

reply to the appellant’s response. PFR File, Tab 9.

ANALYSIS

The agency has provided acceptable evidence of its compliance with the interim

relief order.

When, as here, the appellant was the prevailing party in the initial decision

and interim relief was ordered, a petition for review filed by the agency must be

accompanied by a certification that the agency has complied with the interim

relief order, either by providing the interim relief ordered, or by making a

determination that returning the appellant to the place of employment would

cause undue disruption to the work environment. Ayers v. Department of the

Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C.

§ 7701(b)(2)(A)(ii). An agency’s failure to comply with these requirements may,

at the Board’s discretion, result in the dismissal of its petition for review.

Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-33 (Fed. Cir. 2004);

5 C.F.R. § 1201.116(e).

In this case, the agency’s petition for review includes a copy of a letter to

the appellant from the Chief of its Suitability Section indicating that the agency

has reinstated his eligibilities in compliance with the administrative judge’s

interim relief order. PFR File, Tab 1 at 12. The appellant challenges the

agency’s certification of compliance, arguing that the Suitability Chief has not

returned his telephone call to discuss the details of the interim relief, and that,

based on the initial decision and its ordering language, he believes that the

agency is not in compliance with the interim relief order. 1 PFR File, Tab 3 at 4-5.

In reply, the agency asserts that the Suitability Chief’s letter is sufficient to

demonstrate compliance. PFR File, Tab 9 at 4.

When an appellant challenges an agency’s compliance with an interim

relief order, 5 C.F.R. § 1201.116(b) provides a mechanism for the Board to order

the agency to submit evidence of compliance. We find it unnecessary to do so in

this case because we find no reason to doubt that the agency provided interim

relief as stated in the Suitability Chief’s letter. PFR File, Tab 1 at 12. We

disagree with the appellant that the language in the initial decision casts any

doubt on the compliance efforts that the agency undertook after the initial

decision was issued. PFR File, Tab 3 at 5. Nor has the appellant presented any

other evidence or allegation that would provide a concrete basis for us to question

the agency’s certification of compliance. Thus, an order to submit evidence of

compliance under 5 C.F.R. § 1201.116(b) would serve no purpose because the

agency has already submitted sufficient evidence of compliance with its petition

for review.

The agency proved that the appellant committed criminal conduct that may have

an impact on the integrity or efficiency of the service.

In a suitability appeal, the agency must prove by preponderant evidence

that the appellant’s conduct or character may have an impact on the integrity or

efficiency of the service, based on one of the specific factors listed in 5 C.F.R.

The appellant styles his challenge a “Petition for Enforcement of Interim Relief.”

PFR File, Tab 3 at 4. Because the Board’s regulations do not provide for such a

pleading, we have considered it as a challenge to the agency’s certification of

compliance under 5 C.F.R. § 1201.116(b). See Elder v. Department of the Air Force ,

124 M.S.P.R. 12, ¶ 20 (2016).

§ 731.202(b). Hudlin v. Office of Personnel Management, 119 M.S.P.R. 61, ¶ 9

(2012); see 5 C.F.R. §§ 731.101(a), 731.202(a), 731.501(b). “Criminal or

dishonest conduct” may serve as a basis for a negative suitability determination.

5 C.F.R. § 731.202(b)(2). The Board has jurisdiction to review all aspects of a

suitability action, including whether the charged conduct renders an individual

unsuitable for the position in question. Folio v. Department of Homeland

Security, 402 F.3d 1350, 1354-56 (Fed. Cir. 2005).

In this case, the administrative judge found that the agency proved only

8 out of the 17 specifications of criminal conduct, and of those 8, it proved 2 of

them only in part. ID at 4-14. For the specifications that she did not sustain, the

administrative judge found that they were supported only by the fact that the

appellant was arrested or that charges were filed, and that this alone was not

enough to show that the appellant actually engaged in criminal conduct as

alleged. Id.

On petition for review, the agency argues that the administrative judge

erred in requiring it to submit additional evidence of the appellant’s criminal

conduct beyond that contained in the results of OPM’s background report. PFR

File, Tab 1 at 4-6. It argues that the results of the report should be sufficient to

meet its burden of proof that the matters identified therein actually occurred and

that requiring it to produce additional evidence would be burdensome and

necessitate a second round of predecisional procedures. Id. at 5-6.

We have considered the agency’s arguments, but we find that they do not

establish that the administrative judge misapplied the law. Although we agree

that the results of the background report are sufficient to show that the matters

identified therein actually occurred, the only thing that this background report

shows is a series of arrests and criminal charges. IAF, Tab 8 at 111-27. The

agency asserts a practice of making suitability determinations based on such

information, but it has not cited to any case in which the Board ever sustained a

suitability charge of criminal conduct based on an arrest or charge alone. It is,

however, well-established in chapter 75 case law that the mere fact of an arrest or

a criminal charge does not constitute preponderant evidence that the individual

actually committed the crime of which he was accused. 2 Barber v. Department of

the Navy, 8 M.S.P.R. 229, 230 (1981). This same preponderant evidence standard

applies to suitability appeals. Hudlin, 119 M.S.P.R. 61, ¶ 9; 5 C.F.R.

§ 1201.56(b)(1)(ii). The specifications that the administrative judge found

proven were based on the appellant’s admissions of criminal conduct, which

substantiated the allegations underlying the arrests and charges, and we agree

with her that these admissions were sufficient to sustain those specifications. ID

at 4-15; see Pound v. Office of Personnel Management, 25 M.S.P.R. 134, 136

(1984). For the reasons explained in the initial decision, we agree with the

administrative judge that the agency proved 8 of the 17 specifications at issue

either in whole or in part. ID at 4-15.

Once a suitability charge is proven, the agency is required to show that the

conduct at issue bears a nexus to the integrity or the efficiency of the service, i.e.,

whether the conduct renders the appellant unsuitable for the position in question.

Folio, 402 F.3d at 1356; 5 C.F.R. § 731.201. In making this determination, the

Board will consider all relevant factors set forth in 5 C.F.R. § 731.202(c). Doerr

v. Office of Personnel Management, 104 M.S.P.R. 196, ¶¶ 8, 11 (2006). Those

factors are: (1) the nature of the position for which the person is applying or in

which the person is employed; (2) the nature and seriousness of the conduct;

(3) the circumstances surrounding the conduct; (4) the recency of the conduct;

(5) the age of the person involved at the time of the conduct; (6) contributing

societal conditions; and (7) the absence or presence of rehabilitation or efforts

toward rehabilitation. 5 C.F.R. § 731.202(c).

In fact, in the absence of an indictment or some other evidence, an arrest or charge is

insufficient even to give an agency “reasonable cause” to believe that a crime has been

committed. Dunnington v. Department of Justice, 956 F.2d 1151, 1157 (Fed. Cir.

1992).

In this case, the administrative judge considered these factors and found

that the agency failed to show that the proven criminal conduct rendered the

appellant unsuitable for employment as a Medical Instrument Technician. ID

at 15-20. Specifically, she found that the agency failed to show that anything

about the position elevated it to a higher level of sensitivity, trust, or

responsibility than other Executive Branch positions. ID at 16. She further found

that the agency failed to establish that the proven conduct was particularly serious

or that the recency of that conduct was of any consequence. ID at 16-19. The

administrative judge also found that the appellant’s homelessness and mental

health challenges likely contributed to his offenses. ID at 19-20. Finally, she

found that, although the appellant had earlier made some unsuccessful attempts at

rehabilitation, he had recently completed 24 sessions of outpatient treatment and

10 twelve-step meetings with the agency and had become more stable within the

previous year. Id. On petition for review, the agency argues that the

administrative judge misinterpreted some of the evidence on which she based her

conclusion and misapplied its framework for assessing the seriousness of a

criminal offense. PFR File, Tab 1 at 7-11.

Regarding the nature of the Medical Instrument Technician position, the

agency argues that it is “directly related to patient care,” and that the appellant’s

résumé and his response to the affirmative defenses order shows that he was

interacting with patients. PFR File, Tab 1 at 7. This argument provides no basis

to disturb the initial decision. The agency has not identified any evidence in the

record that would show what the duties of a Medical Instrument Technician

actually are, and agency counsel’s unsupported assertion that the position is

“directly related to patient care” does not constitute evidence of the same. A

statement of a party’s representative in a pleading is not evidence. Hendricks v.

Department of the Navy, 69 M.S.P.R. 163, 168 (1995). Moreover as the

administrative judge correctly noted, performing duties directly related to patient

care is not the same as performing direct patient care. ID at 16. As for the

appellant’s résumé and response to the affirmative defenses order, all these

documents show is that the appellant previously provided direct patient care in

other jobs. IAF, Tab 5 at 1-2, 20-21. This evidence bears no relevancy

whatsoever to the nature of the position at issue. 3 We further note that the

Medical Instrument Technician position requires a Tier 1 background

investigation. IAF, Tab 8 at 36. Tier 1 investigations are for positions

designated by the agency as “Low Risk,” i.e., “involv[ing] duties or

responsibilities with the potential for limited impact on the integrity or efficiency

of the service.” Id. at 155-58, 163. Nor has the agency shown that the proven

criminal conduct bears any special relationship to the duties of the position. Cf.

Leibowitz v. Department of Justice, 88 M.S.P.R. 635, ¶¶ 13-14 (2001) (affirming

a negative suitability determination for an Immigration and Naturalization

Service applicant who admitted that he allowed an illegal alien to reside with

him), aff’d, 41 F. App’x 412 (Fed. Cir. 2002). For these reasons, we agree with

the administrative judge that the agency has not established that the nature of the

Medical Instrument Technician position weighs in favor of a negative suitability

determination. ID at 16.

Regarding the nature, seriousness, and recency of the conduct, both the

agency and the administrative judge relied heavily on the Suitability Adjudication

Guidelines in OPM’s Suitability Processing Handbook. IAF, Tab 8 at 155,

225-36. These guidelines provide a four-tier system for ranking suitability issues

according to their seriousness and potential for a negative suitability

determination, with “A” issues being the least serious and “D” issues being the

most serious. Id. at 225. Under the Handbook, an “A” issue is minor and would

not, standing alone, constitute a basis for a negative suitability determination; a

These documents do seem to show that the appellant once held a similar position at a

non-Veterans’ Administration hospital, but that his duties there were limited to

organizing, sterilizing, and distributing medical equipment to staff. IAF, Tab 5 at 1, 20.

“B” issue is moderate and would probably not, standing alone, constitute a basis

for a negative suitability determination; a “C” issue is substantial and would

probably, standing alone, constitute a basis for a negative suitability

determination; a “D” issue is major and would, standing alone, constitute a basis

for a negative suitability determination. Id. Depending on the recency of an

issue and the number of similar issues within the same timeframe, its level may

be upgraded or downgraded. Id. at 227-28. The relevant timeframes, as

measured backward from the “control date,” are 0-36 months, 37 -72 months, and

73-108 months. 4 Id.

In this case, the agency in its suitability adjudication worksheet found that

the appellant had committed one A-level offense, two B-level offenses, and two

D-level offenses within the previous 36 months. Id. at 100-01. Based on the

pattern and recency of conduct, it upgraded the three lesser offenses to D-level, as

well. IAF, Tab 8 at 101-01, 227; Hearing Recording (HR), Track 1 at 11:20

(testimony of the Suitability Chief). The agency also found that the appellant

committed three B-level, one C-Level, and one D-level offense within the

37-72 month timeframe, but each of these offenses was downgraded one level due

to the passage of time. IAF, Tab 8 at 100, 227-28. The agency also found that

the appellant committed several offenses beyond the 72 -month mark, but due to

the passage of time all of these became non -issues. Id. at 100-01, 227-28.

Excluding the agency’s unproven specifications from consideration, the

administrative judge applied the same formulae and determined that the agency

proved only that the appellant committed two B-level offenses within 36 months

of the control date and that these could not be properly upgraded under the

Handbook. ID at 18-19. She also found that, after downgrading for the passage

of time, the agency proved two A-level and one B-level offenses for the

37-72 month timeframe. ID at 18. There was another offense within this latter

The “control date” varies based on the type of case. IAF, Tab 8 at 227. In this case,

the agency asserts that the control date was May 1, 2017. PFR File, Tab 1 at 8.

time period (resisting a peace officer and aggravated assault of a police officer or

volunteer) that the agency had rated a D, and downgraded to a C. IAF, Tab 8

at 100. However, the administrative judge found that this specification was only

partly proven and that the agency did not show that the proven portion of the

misconduct (resisting a peace officer) warranted such a serious rating. 5 ID

at 11, 18.

On petition for review, the agency argues that the administrative judge

erred in her analysis, but this argument is largely premised on the administrative

judge’s alleged error in not sustaining many of the specifications. PFR File,

Tab 1 at 7-10. As explained above, the agency failed to show any error in this

regard. Supra ¶ 11. The agency also argues that it is the appellant’s

responsibility to provide the details of the circumstances surrounding his arrests.

PFR File, Tab 1 at 7-9. It faults him for failing to present any evidence at the

predecisional stage “to possibly mitigate his arrest record.” Id. at 8-9. However,

OPM’s regulations do not identify an arrest record as a potential basis for a

suitability action. They do identify criminal conduct as a potential basis, 5 C.F.R.

§ 731.202(b)(2), but, as explained above, an arrest record alone is not enough to

substantiate criminal conduct, supra ¶ 11. Furthermore, it is the agency’s burden

to establish an evidentiary record in support of its action and to make the ultimate

showing that the nature of the appellant’s misconduct warrants a negative

suitability determination. 5 C.F.R. §§ 731.501(b), 1201.56(b)(1)(ii). It is not the

appellant’s burden to prove the opposite. For the reasons explained in the initial

According to the excerpt of the Suitability Processing Handbook that the agency

submitted for the record, there is an appendix of information for agencies to use in

rating various offenses from A to D. IAF, Tab 8 at 225. The agency did not provide

this appendix for the record, and it does not otherwise appear that the agency offered

any information that might justify a C rating for the sustained portion of this

specification. This is particularly so considering that the agency assigned an A rating to

a 2003 offense of “resisting or obstructing an officer.” Id. at 101. We find that the

agency has not proven that the sustained portion of the specification at issue should be

rated anything more than a B-level offense.

decision, we agree with the administrative judge’s analysis of the ratings under

the Suitability Processing Handbook, and we find that the agency proved the

existence of two A-level and four B-level offenses within the time period for

consideration. ID at 17-19. Nevertheless, we do find that, in the aggregate, this

record of offenses gives cause for concern. The agency has established that the

appellant engaged in criminal destruction of property, driving under the influence

on a suspended license, disorderly conduct, public intoxication, assaulting a

paramedic, and resisting arrest, all within the previous 6 years. ID at 4-5, 8-11.

Based on this evidence, we find that, at least at the time the agency took its

suitability action, there was a serious question about the appellant’s overall

stability and his ability to follow rules and interact with others, including

authority figures, in a calm and reasonable manner. 6 Id.

Regarding societal conditions that may have contributed to the appellant’s

criminal conduct, the administrative judge found that the appellant’s

homelessness appears to have played a role in some of the sustained

specifications. ID at 19-20. She reasoned that the appellant’s misconduct

frequently arose from his refusal to leave the place where he was and that he

would not likely have been charged with the sustained offenses if he could drink

at home. Id. On review, the agency argues that this was a “biased” and

unjustifiable assumption by the administrative judge, particularly when not all of

the appellant’s arrests included alcohol consumption. PFR File, Tab 1 at 8. The

administrative judge also found that the appellant’s mental health challenges

A significant amount of time has elapsed between the July 14, 2017 suitability

determination and the issuance of this Final Order, and there is nothing in the record

concerning the appellant’s conduct during the intervening period. However, we find

that evidence of the appellant’s conduct after the agency made its suitability

determination would be immaterial to the outcome of the appeal.

constituted a substantial mitigating circumstance. 7 ID at 20. The agency does not

appear to contest this finding.

As an initial matter, we disagree with the agency that the administrative

judge’s case-related ruling was in any way indicative of bias. See Martinez v.

Department of the Interior, 88 M.S.P.R. 169, ¶ 14 (2001). Furthermore, we find

it rather obvious that homelessness is a difficult life circumstance that can lead to

run-ins with law enforcement. We therefore agree with the administrative judge

that this situation may, at least in part, account for the extent of the appellant’s

criminal history. As for the appellant’s alcohol consumption, the agency’s

argument once again proceeds from the premise that it proved all of its

specifications, which it did not. It appears to us that all or nearly all of the

sustained specifications were alcohol-related. ID at 4, 8-11, 14. Nevertheless,

alcohol abuse may itself provide a basis for a negative suitability determination,

5 C.F.R. § 731.202(b)(5), so we do not consider the appellant’s ability to abuse

alcohol at home rather than in public to be a substantial mitigating factor. As for

the appellant’s mental health condition, we also agree with the administrative

judge that this appears to have played a role in much of his criminal conduct and

that it is appropriate to consider it as part of the nexus analysis to the extent that

he has experienced rehabilitation. Cf. Mingledough v. Department of Veterans

Affairs, 88 M.S.P.R. 452, 458, ¶ 12 (2001) (“[T]he Board has not considered a

medical or mental impairment to be a significant mitigating factor in the absence

of evidence that the impairment can be remedied or controlled, i.e., when the

potential for rehabilitation is poor.”).

Regarding the appellant’s rehabilitative efforts, the administrative judge

acknowledged that he had undergone previous unsuccessful attempts at

rehabilitation, including dozens of sessions with the agency’s Outpatient

Addiction Treatment Program (ATP) Trauma Track on and off since 2008. ID

The appellant has been diagnosed with posttraumatic stress disorder, depression, and

alcohol dependency. HR, Track 3 at 30:20 (testimony of the appellant’s psychiatrist).

at 19. She nevertheless found that the appellant had recently completed

significant rehabilitation efforts in the form of 36 additional ATP sessions, and

noted that the appellant’s treating psychiatrist testified that the appellant has been

doing much better since then. ID at 19. On petition for review, the agency

argues that the appellant’s history of unsuccessful attempts at rehabilitation casts

serious doubt on the efficacy of his most recent attempts. PFR File, Tab 1 at 11.

It further argues that the appellant’s psychiatrist did not know about the extent of

the appellant’s criminal history, had only met with him sporadically during the

past 2 years, and formed his opinion of the appellant’s stability based on the

appellant’s self-reports rather than on a full examination. Id. at 10.

As an initial matter, we do not think that the testimony of the appellant’s

treating psychiatrist can be entirely discounted. He testified candidly concerning

his history with the appellant, including that he had met with the appellant

approximately eight times from 2015 through 2017, and that he was aware of at

least some of the appellant’s criminal history through the appellant’s self-reports.

HR, Track 3 at 52:30, 58:05 (testimony of the appellant’s psychiatrist). Even in

the absence of a comprehensive mental health evaluation, we have little reason to

doubt his opinion, formed by observing the appellant in a clinical setting, that the

appellant had, in fact, become more mentally stable over the past year. HR,

Track 3 at 35:00, 49:45 (testimony of the appellant’s psychiatrist). Nevertheless,

we agree with the agency that, in light of the appellant’s extensive and

unsuccessful prior attempts at rehabilitation through the ATP, there remained a

serious question as to the permanency of any gains that he may have made more

recently. PFR File, Tab 1 at 11; IAF, Tab 8 at 64. OPM’s suitability regulations

are grounded in the principle that there is always hope for rehabilitation. See

5 C.F.R. §§ 731.204-.205 (prohibiting debarments for more than 3 years before an

applicant’s suitability must be reassessed). The record shows that the appellant is

working earnestly toward rehabilitation and that he has made some recent gains

that appear to be promising. However, based on the duration and extent of the

appellant’s criminal history and his inability to overcome his difficulties in the

past, the record does not support a finding that the appellant’s criminal history

was behind him at the time the agency took its suitability action. Therefore, we

cannot agree that the agency has failed to establish a nexus between this conduct

and the integrity or the efficiency of the service.

Because the agency has proven its charge of criminal conduct and

established nexus, we affirm the suitability action. See Campbell v. Office of

Personnel Management, 24 M.S.P.R. 520, 523 (1984). We note, however, that

the agency’s decision letter indicates that the only suitability action it took was to

cancel the appellant’s pending eligibilities. IAF, Tab 8 at 28. There is no

mention of any period of debarment. Our decision in this appeal does not

preclude the appellant from reapplying for Federal employment and having a new

suitability determination made based on his current rehabilitation status. Stewart

v. Office of Personnel Management, 8 M.S.P.R. 289, 298 (1981).

The appellant did not prove his affirmative defense of disability discrimination.

The administrative judge analyzed the appellant’s disability discrimination

defense under both disparate treatment and reasonable accommodation theories.

ID at 21-25. She found that the appellant failed to prove his claim under a

reasonable accommodation theory because he did not request a reasonable

accommodation in the suitability process and he did not identify an

accommodation that could accommodate his disabling conditions. ID at 22. She

also found that the appellant failed to prove his claim under a disparate treatment

theory because the agency provided a legitimate, nondiscriminatory reason for its

suitability action, and the appellant failed to provide evidence of discriminatory

animus sufficient to rebut the agency’s explanation for the action. ID at 24-25.

On cross petition for review, the appellant disputes these findings. PFR File,

Tab 8 at 6-14. After the administrative judge issued the initial decision, the

Board clarified the legal standard for proving disability discrimination. We apply

that standard now.

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. Haas v. Department of Homeland Security,

2022 MSPB 36, ¶ 28; Pridgen v. Office of Management and Budget , 2022 MSPB

31, ¶ 35. The Rehabilitation Act has incorporated the standards of the Americans

with Disabilities Act (ADA), as amended by the Americans with Disabilities Act

Amendments Act of 2008. Haas, 2022 MSPB 36, ¶ 28; Pridgen, 2022 MSPB 31,

¶ 35. Therefore, we apply those standards here to determine if there has been a

Rehabilitation Act violation. In particular, the ADA provides that it is illegal for

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

disability.” 42 U.S.C. § 12112(a); Haas, 2022 MSPB 36, ¶ 28. 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 reasonable

accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28. An

employer is also required to provide reasonable accommodations to an otherwise

qualified individual with a disability. 42 U.S.C. § 12112(b)(5); Haas, 2022 MSPB

36, ¶ 28. Thus, both a claim of disability discrimination based on an individual’s

status as disabled and a claim based on an agency’s failure to reasonably

accommodate that disability require that the individual be “qualified.” Haas,

2022 MSPB 36, ¶ 28.

We find that the appellant in this case is not a qualified disabled individual

because, during the relevant time period, he could not satisfy the requisite skill,

experience, education, and other job-related requirements of the Medical

Instrument Technician position and because he does not satisfy the job-related

requirement of a favorable suitability determination. 8 See 5 C.F.R. § 731.104(a),

Even assuming that the appellant’s criminal conduct was a direct manifestation of his

disability, nothing in the Rehabilitation Act requires the agency to exempt him from

29 C.F.R. § 1630.2(m). Nor has the appellant identified a reasonable

accommodation that would enable him to satisfy this job -related requirement.

Because he is not a “qualified disabled individual,” he cannot prevail on his

disability discrimination claim under either a disparate treatment theory or a

reasonable accommodation theory. Haas, 2022 MSPB 36, ¶ 28.

NOTICE OF APPEAL RIGHTS 9

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.

standard suitability requirements or to excuse misconduct that it would not excuse from

non-disabled applicants. See Fitzgerald v. Department of Defense, 85 M.S.P.R. 463, ¶ 4

(2000); Laniewicz v. Department of Veterans Affairs, 83 M.S.P.R. 477, ¶ 5 (1999).

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.

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. 10 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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.