# Shawn Green v. Department of Veterans Affairs

> Merit Systems Protection Board · January 3, 2024

URL: https://www.frixlaw.com/law-library/cases/9915118

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** January 3, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SHAWN GREEN, DOCKET NUMBER
Appellant, CH-0731-17-0459-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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
3

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
4

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.

1
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).
5

§ 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
6

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).
2
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).
7

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
8

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

3
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.
9

“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
4
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.
10

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

5
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.
11

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

6
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.
12

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
7
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).
13

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
14

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
15

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),
8
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
16

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).
9
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.
17

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,
18

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:
19

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

10
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.
20

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9915118. Public record. Not legal advice.