Opinion

Kenneth Holmes v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Jan 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENNETH HOLMES, DOCKET NUMBER

Appellant, SF-0752-22-0425-I-1

DEPARTMENT OF DATE: January 22, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sara L. Bloom , Esquire, Anchorage, Alaska, for the appellant.

Maria Teresa Davenport , Esquire, Anchorage, Alaska, 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

removal action. Generally, we grant petitions such as these only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that neither party has established any basis under

section 1201.115 for granting the petition or cross petition for review. Therefore,

we DENY the petition for review, and cross petition for review and AFFIRM the

initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was employed as an FV-0802-H Engineering Technician (802

ET) for the Federal Aviation Administration’s Engineering Services group at the

Infrastructure Construction and Installation Center in Anchorage, Alaska. Initial

Appeal File (IAF), Tab 1 at 8-9. From 2011 until 2018, the appellant mostly

performed Contracting Officer Representative (COR) duties, which is project

coordinator work that involves monitoring Federal contractors performing

installation and construction at various worksites. IAF, Tab 10 at 75; Hearing

Transcript, Day 2 (HT-2) at 120, 125 (testimony of the appellant). In 2018,

however, the agency was attempting to replace a navigational aid on Adak Island

and the appellant’s second-level supervisor, S.H., wanted to send the appellant

and other members of his small work unit to help with construction work that

would have involved repetitive heavy lifting and hand-mixing concrete. IAF,

Tab 9 at 64-65; HT-2 at 80-81 (testimony of W.G.). The appellant indicated that

he could not do this sort of work due to his age and the fact that the Department

of Veterans Affairs has rated him as 60% disabled, and subsequently submitted a

reasonable accommodation request in October 2018 to his then-supervisor, W.G.,

requesting that the agency accommodate his service-related disabilities by not

assigning him installation, construction, and manual labor tasks involving

prolonged sitting, standing, twisting, bending, lifting above the shoulder line,

lifting greater than 30 pounds, or lifting awkward or bulky items. IAF, Tab 10

at 11, 16, 21-22; HT-2 at 127-28 (testimony of the appellant). As part of his

request, the appellant explained that he believed that all duties outside of COR

work were marginal functions of his position and that he was only limited to not

performing “the more physically demanding, labor-intensive tasks.” IAF, Tab 10

at 22.

W.G. subsequently initiated the interactive process, asked the appellant to

submit medical information, and convened an advisory Reasonable

Accommodation Team (ReAct). Id. at 11-12, 294; Hearing Transcript, Day 1

(HT-1) at 35 (testimony of S.H.). The appellant submitted letters from two

medical providers from November 2018 stating that his medical conditions

include a right knee meniscus tear, bilateral rotator cuff tears, elbow tears, and a

traumatic injury to his neck and upper back, but that he could still perform COR

duties. IAF, Tab 10 at 15, 18-19. In March 2019, W.G. notified the appellant

that he was still evaluating the appellant’s request but was concerned that limiting

the appellant to COR duties would leave essential functions, such as installation

and construction duties, undone. Id. at 24. W.G. temporarily assigned the

appellant to various light duty projects primarily at the “Complex,” a warehouse

facility that Engineering Services uses to store items and build out projects. Id.

In September 2019, the appellant submitted a note from his medical provider, Dr.

B.G., that restricted him from lifting greater than 20 pounds, continued overhead

work with arms and shoulders, and repeated bending and twisting at the waist for

30 days after suffering a back injury. Id. at 27. The appellant’s then first-level

supervisor, F.C., was confused as to whether the appellant was being returned to

full duty and if he needed to continue the interactive process and, in January

2020, the appellant submitted a letter from Dr. B.G. clarifying his various

restrictions and stating that the appellant was able to successfully perform nearly

all tasks assigned to him “precluding installation and construction.” Id. at 28-33,

44.

On April 6, 2020, after suggestion by the ReAct team, the appellant’s

then-acting manager, M.R., compiled a list of physical duties that he stated were

essential functions of the 802 ET position and, in order to better evaluate what

duties the appellant could perform, asked the appellant to have his doctor identify

the tasks that he could successfully perform given his current physical

limitations. Id. at 47-54. The list broke the physical duties of the appellant’s

position into 15 categories with almost 80 subtasks. Id. at 48-52. Dr. B.G.

replied to the agency’s request the next day, annotating each task as one that the

appellant could accomplish, could accomplish with accommodations, one that was

not recommended, and one that was prohibited, indicating that the appellant could

perform 17 of the subtasks without accommodation and approximately

32 subtasks with accommodation. Id. Dr. B.G. added that while many of the

tasks would exacerbate the appellant’s underlying conditions, many could have

accommodations including frequent rests, appropriate assisting devices, or other

people on the same jobsites. Id. at 45. On April 17, 2022, M.R. responded,

stating that it was “clear” that the appellant was unable to perform the essential

functions of his position, primarily installation and construction duties, “without

presenting a danger” to himself and asking the appellant whether this was an

accurate conclusion to draw from his medical information. Id. at 60. The

appellant did not directly respond to this question. Id. at 62, 66-68; HT-1 at 214

(testimony of M.R.).

In June 2020, M.R. notified the appellant that he had determined that the

appellant could not be reasonably accommodated in his current position involving

primarily installation and construction duties and that he would next consider job

reassignment. IAF, Tab 10 at 61-65. On August 25, 2020, the agency offered the

appellant an FG-0343-11 Step 10 position as a Management and Program Analyst

in Fort Worth, Texas, which he declined. IAF, Tab 42 at 40-42. On September 2,

2020, M.R. issued the appellant a notice of proposed removal for “inability to

perform the essential functions of your position because of your medical

condition.” IAF, Tab 10 at 5-10. While the appellant’s reply was under

consideration, the agency approached him about a Logistics Management

Specialist position in Anchorage that would have allowed him to continue

working in the capacity he had been working in the Complex, but the appellant

declined to update his resume for the position and human resources did not

qualify him based on his current resume. HT-1 at 41-43 (testimony of S.H.). On

November 18, 2020, the agency issued a decision letter sustaining the charge and

removing the appellant effective December 22, 2020. IAF, Tab 6 at 14-18. The

appellant retired effective December 22, 2020. 2 IAF, Tab 9 at 128-29.

The appellant subsequently filed a complaint of discrimination with the

Equal Employment Opportunity Commission (EEOC) alleging constructive

discharge, and in June 2022, the EEOC directed him to file a complaint with the

Board. IAF, Tab 7 at 8, 12. The appellant thereafter filed the instant Board

appeal. IAF, Tab 1. The administrative judge found that the Board had

jurisdiction over the agency’s removal decision under 5 U.S.C. § 7701(j) and that

the appellant’s appeal was timely. 3 IAF, Tab 11. After holding the requested

hearing, the administrative judge issued an initial decision reversing the agency’s

removal action and ordering the agency to retroactively restore the appellant

effective December 22, 2020. 4 IAF, Tab 60, Initial Decision (ID) at 47. The

The agency purposely set the effective date so that the appellant could retire prior to

the removal, but if he did not retire, the removal would go into effect. HT-1 at 219-21

(testimony of M.R.).

Under 5 U.S.C. § 7701(j), an appellant who retires after receiving the agency’s

decision to remove him, but on or before the scheduled effective date of his removal,

may still appeal his removal to the Board. Mays v. Department of Transportation,

27 F.3d 1577, 1578-81 (Fed. Cir. 1994).

The appellant indicated at the hearing, and on petition for review, that although he

retired, his circumstances changed, and he would like to return to work for the FAA.

HT-2 at 186-87 (testimony of the appellant); Petition for Review (PFR) File, Tab 3

administrative judge first concluded that the agency did not prove its charge. ID

at 15-40. In this regard, the administrative judge found that the agency’s April 6,

2020 list of duties overstated and did not establish the precise essential functions

of the 802 ET position. ID at 16-29. He determined that the essential functions

of the 802 ET position involve being able to perform a “critical mass” of the tasks

identified in the April 6, 2020 list, including enough tasks in the installation and

construction categories, as well as some COR work and some work in the

Complex. ID at 16-29. The administrative judge concluded that the appellant is

medically able to perform COR and Complex work, and that he is also able to

perform some installation and construction work with accommodations, and thus

that the agency did not establish the charge. ID at 29-40. The administrative

judge also found that the appellant proved his affirmative defense of disability

discrimination based on a denial of a reasonable accommodation. ID at 40-41.

However, the administrative judge concluded that the appellant did not establish

his claim of retaliation for making a reasonable accommodation request or his

claim of disparate treatment disability discrimination, as he did not establish that

his disability was a motivating factor in the removal decision. ID at 42-47.

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

judge erred in finding that it did not prove the charge and that the appellant

established his affirmative defense of disability discrimination based on a denial

of a reasonable accommodation. Petition for Review (PFR) File, Tab 1. The

appellant filed a response and a cross petition for review in which he largely

disputes the administrative judge’s finding that he did not establish retaliation for

making a reasonable accommodation request. PFR File, Tab 3. The agency filed

a reply and a response to the appellant’s cross petition for review. PFR File,

Tab 5.

at 15-16.

DISCUSSION OF ARGUMENTS ON REVIEW

We agree with the administrative judge that the agency did not prove the charge.

Where, as here, the appellant does not occupy a position with medical

standards or physical requirements or subject to medical evaluation programs, in

order to establish a charge of medical inability to perform, the agency must prove

a nexus between the employee’s medical condition and observed deficiencies in

his performance or conduct, or a high probability, given the nature of the work

involved, that his condition may result in injury to himself or others. Fox v.

Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014); see Haas v. Department

of Homeland Security, 2022 MSPB 36, ¶¶ 10-15 (recognizing this standard and

comparing it with the differing standard that applies in the context of an

employee’s removal from a position with medical standards based solely on their

medical history). The Board has otherwise described this standard as requiring

that the agency establish that the appellant’s medical condition prevents him from

being able to safely and efficiently perform the core duties of his position. Haas,

2022 MSPB 36, ¶¶ 15, 20. In determining whether an agency has met this

burden, the Board will consider whether a reasonable accommodation, short of

reassignment, exists that would enable the appellant to safely and efficiently

perform his core duties. Id., ¶ 25.

The Board has indicated that the core duties of a position are synonymous

with the essential functions of a position under the Americans with Disabilities

Act (ADA), as amended by the Americans With Disabilities Act Amendments Act

of 2008 (ADAAA), i.e., the fundamental job duties of the position, not including

marginal functions. Id., ¶ 21 (citing Clemens v. Department of the Army,

120 M.S.P.R. 616, ¶ 6 (2014); 29 C.F.R. § 1630.2(n)(1)). Evidence of whether a

particular function is essential includes, among other things, the employer’s

judgment as to which functions are essential, written position descriptions, the

amount of time spent performing the function, the consequences of not requiring

the incumbent to perform the function, and the work experience of past and

current incumbents in the job. 29 C.F.R. § 1630.2(n)(3).

Below, the appellant maintained that the essential functions of the 802 ET

position were limited to COR work, while the agency maintained that the

essential functions of the position were the various tasks on its April 6, 2020 list,

including significant installation and construction work. See IAF, Tab 21 at 4;

HT-2 at 208 (agency closing statement). In the initial decision, the administrative

judge found that the position was not limited to COR work. ID at 22. He

discussed several written position descriptions and found that each indicated that,

at the least, the 802 ET position could involve some installation and construction

work. ID at 18-23. He also credited the testimony of multiple past and present

incumbents of the position who explained that while the duties of an 802 ET from

2011 to 2018 mostly involved COR/project manager work, the agency prefers to

have its ETs perform work in-house and that installation and construction work

was a central part of the job before 2011 and after 2018. ID at 21-22.

However, while the administrative judge found that the appellant

understated the essential functions of the 802 ET position, he also found that the

agency’s April 6, 2020 list overstated the essential functions. ID at 25. As noted

above, the agency’s list broke down what it alleged are the essential functions of

the position into 15 general essential functions, including: (1) rack and

equipment installation; (2) cable pulling; (3) conduit installation; (4) electrical

energized work; (5) grounding and bonding; (6) loading and unloading aircraft;

(7) ladders and elevated platforms; (8) general mechanical/carpentry work;

(9) electrical grounding work; (10) general housekeeping and maintenance work;

(11) general physical COR work; (12) ES Complex; (13) overhead heater

installation; (14) site demolition; and (15) install of SWS system. IAF, Tab 10

at 48-52. It further broke down these general functions into approximately

80 subtasks, including, for example, “hammer drilling 15 lbs., bent over less than

5 min at a time, but repetitive throughout the day,” “installing and terminating

wires and or cables,” “lifting 50 lb coolers repetitively,” “standing on ladders to

install electrical components and conduits minutes to hours,” and “rebuilding

walls and stairs.” Id. The agency compiled the list by surveying tasks completed

by ETs across different groups in Alaska over the past 2 years and then labeling

every task an essential function. ID at 27; HT-1 at 210-212, 246 (testimony of

M.R.).

Although this list is exhaustive, the administrative judge found that it does

not accurately describe the essential functions of the appellant’s 802 ET position

because it does not focus on the work of the appellant’s specific 802 ET unit, it

does not distinguish between essential and marginal functions, and because the

written position descriptions for the 802 ET position do not support essential

functions as extensive and detailed as these. ID at 26-27. Further, the

administrative judge explained that M.R. testified that he could accommodate an

individual who could only perform part of the list, and the current manager of the

appellant’s old work unit, R.N., testified that an ET must be able to do some of

these tasks, but not all, that projects vary, and he tries to utilize the skills of his

employees accordingly. ID at 27; HT-1 at 244-45 (testimony of M.R.); HT-2

at 31-32 (testimony of R.N.). The administrative judge thus concluded, based on

this testimony and his review of the evidence relating to the other factors set forth

at 29 C.F.R. § 1630.2(n)(3), that the essential functions of the position include

being able to perform a “critical mass” of the tasks identified in the April 6, 2020

list, including some tasks in the installation and construction categories, such that

the 802 ET position is not fundamentally altered by putting the employee on

permanent light duty or by limiting the individual to so few installation and

construction tasks that he is unable to contribute to the core of the work unit. ID

at 25-29. The administrative judge indicated that the essential functions involve

some COR work, some work at the Complex, and some installation and

construction work. See ID at 33-40.

We discern no reason to disturb the administrative judge’s thoroughly

analyzed and reasoned finding. See Crosby v. U.S. Postal Service, 74 M.S.P.R.

98, 106 (1997) (finding no reason to disturb the administrative judge’s findings

when she considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions on issues of credibility). On review, the agency

argues that the administrative judge improperly placed an “inordinate burden” on

it to establish the precise essential functions of the position and that “the only

reasonable conclusion is that the essential functions of the 802 ET position . . .

are installation and construction duties in general.” PFR File, Tab 1 at 20 (citing

Clemens, 120 M.S.P.R. 616, ¶ 8 (defining the essential function of the position as

“significant verbal communication” instead of the underlying tasks identified in

the position description)). However, we do not find the administrative judge’s

conclusion that an 802 ET must be able to perform some installation and

construction tasks identified in the April 6, 2020 list necessarily inconsistent with

the contention that an 802 ET must be able to perform installation and

construction duties in general. The administrative judge correctly recognized that

an employee must be able to perform enough installation and construction tasks

to contribute to the work unit. ID at 29.

The agency also argues throughout its petition that the administrative judge

crafted a “modified” 802 ET position by finding that the essential functions of the

position include some COR work, some work at the Complex, and some

installation and construction work. See PFR File, Tab 1 at 13, 26. The agency

emphasizes that the record shows that the 802 ET position involves mostly

installation and construction duties, and that COR work and work at the Complex

are now performed by employees in a different job series. Id. at 26. Although we

appreciate the agency’s point, the agency also continually maintained throughout

this case that the essential functions of the 802 ET position are the tasks

identified in its April 6, 2020 list, which include “[g]eneral physical COR work”

and work at the “ES Complex.” 5 IAF, Tab 10 at 48, 50-51. The agency based its

charge on the appellant’s inability to perform these functions of his position.

IAF, Tab 6 at 14-16. As previously stated, the administrative judge repeatedly

acknowledged that the 802 ET position primarily involves installation and

construction duties. See ID at 22-23, 28. The administrative judge also found

that incumbents periodically work in the Complex and may do COR work. ID at

28; see also HT-1 at 44 (testimony of S.H.). Thus, the agency’s argument

provides no reason for disturbing the initial decision. Moreover, we agree with

the administrative judge’s conclusion and above characterization that the essential

functions, or core duties, of the 802 ET position on the record before us include

being able to perform a “critical mass” of the tasks identified in the April 6, 2020

list. See Clemens, 120 M.S.P.R. 616, ¶ 6.

The administrative judge also subsequently determined that the appellant

was medically able to perform work in the Complex, COR work, and some

installation and construction work, both with and without accommodations, thus

leading to the conclusion that the agency did not establish that the appellant’s

medical condition prevented him from being able to safely and efficiently

perform the core duties of his position. ID at 29-40. The administrative judge

reviewed the various medical evidence noted above, including a January 2020

On review, the agency states that the April 6, 2020 list was “perhaps inarticulately

worded by referring to the duties as ‘essential functions,’” when the purpose of the list

was to help the appellant “develop an accommodation request that could be found

reasonable and effective.” PFR File, Tab 1 at 19. But the agency’s statement is

inconsistent with its position throughout the entirety of this case and, most importantly,

its removal letter, which specifically referred to the tasks listed in the April 6, 2020

letter as essential functions. See IAF, Tab 6 at 14-16. Further, the agency states that

the list was developed to fully understand how the appellant’s restrictions affected his

ability to perform all of the essential functions of his position and that if he “could

perform enough of the subtasks, for example, he could be deemed able to perform that

job category despite not being able to complete them all, and thus could be deemed

capable of performing installation and construction in general.” PFR File, Tab 1 at 19.

This reasoning is consistent with the administrative judge’s analysis and conclusion that

the essential functions of the position include being able to perform a “critical mass” of

the tasks identified in the April 6, 2020 list.

letter from Dr. B.G. setting forth the appellant’s most recent particular

restrictions that stated that “[i]n order to maintain his current level of functioning

and health[, the appellant] should not be tasked with prolonged sitting, standing,

twisting, bending, lifting above shoulder line or lifting greater than 30 lbs,

hoisting[,] pulling[,] stooping and squatting.” IAF, Tab 10 at 44. With respect to

the appellant’s ability to perform installation and construction work, the

administrative judge found that the appellant’s restrictions ruled out some work,

but that the agency did not establish that all installation and construction work

has physical requirements that are beyond the appellant’s limitations, because it

did not establish whether any particular subtasks on the April 6, 2020 list are, in

and of themselves, essential. ID at 36-37. Based on Dr. B.G.’s annotations of the

April 6, 2020 list of alleged essential functions, which also constitutes medical

evidence, the administrative judge found that although there were five categories

where the appellant likely could not perform the subtasks in question (conduit

installation, loading and unloading aircraft, overhead heater installation, site

demolition, and installation of SWS system), he could perform each of the

subtasks with accommodations in four categories (cable pulling, electrical

energized work, grounding and bonding, and general housekeeping and

maintenance work) and most of the subtasks in the four remaining

construction-based categories (rack and equipment installation, ladders and

elevated platforms, general mechanical/carpentry work, and electrical grounding

work). ID at 37; see also IAF, Tab 10 at 48-52. The administrative judge found

that the appellant could perform the above tasks with reasonable accommodations

including taking breaks as needed, using assistance devices, and job modification,

since ETs work in crews with varying assignments, which he found consistent

with testimony from M.R. and R.N. about how work is done. ID at 38; see also

IAF, Tab 10 at 45.

On review, the agency argues that the administrative judge improperly

considered the medical evidence in this case. PFR File, Tab 1 at 14-17.

Specifically, the agency claims that the administrative judge wrongly gave “little

weight” to medical opinions that recommended that the appellant “avoid

installation and construction tasks” and relied on medical documentation that the

appellant submitted to support his request to perform solely COR duties when

installation and construction work is far more strenuous. Id. at 14-15. We

disagree. In reaching his conclusion, the administrative judge properly weighed

the medical evidence. ID at 29-38; see Brown v. Department of the Interior,

121 M.S.P.R. 205, ¶ 11 (2014) (recognizing that, in assessing the probative

weight of medical opinions, the Board considers whether the opinion was based

on a medical examination and provided a reasoned explanation for its findings as

distinct from mere conclusory assertions, the qualifications of the expert

rendering the opinion, and the extent and duration of the expert’s familiarity with

the treatment of the appellant), overruled on other grounds by Haas, 2022 MSPB

36.

Although the administrative judge gave little weight to medical opinions

that simply stated that the appellant should avoid installation and construction

work, he properly reasoned that some of these opinions lack appropriate

specificity and, because installation and construction work varies, whether the

appellant can perform it depends on the particular requirements. ID at 31.

Neither of the opinions that the agency points to indicate an understanding of

what installation and construction work actually entails. See PFR File, Tab 1

at 15; IAF, Tab 10 at 37, 44; Brown, 121 M.S.P.R. 205, ¶ 11. Further, although

the administrative judge discussed medical documentation that stated that the

appellant could continue to work as a COR, which we acknowledge is less

physically strenuous than installation and construction duties, the administrative

judge correctly went on to analyze whether the particular restrictions within those

documents prevented the appellant from performing installation and construction

duties. See ID at 31-32, 36-38. We understand the agency’s concern that it

cannot “simply ignore” medical recommendations that put it on notice of the

appellant’s physical limitations; however, the agency’s arguments on the whole

also largely ignore the fact that Dr. B.G.’s response to its April 6, 2020 list

explicitly indicates that the appellant can perform some installation and

construction work. PFR File, Tab 1 at 15.

The agency also disputes the fact that the administrative judge credited the

appellant’s estimation of his physical condition and testimony that he is not as

“limited” as it may appear, instead claiming that the appellant appears to be

downplaying the severity of his condition. PFR File, Tab 1 at 16. However, the

Board has regularly held that it will not disturb an administrative judge’s findings

when he considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions on issues of credibility. See Broughton v. Department

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

administrative judge made credibility determinations based on his observation of

each witness’s demeanor at the hearing, and we decline to disturb those findings

on review. See ID at 14 (citing Hillen v. Department of the Army, 35 M.S.P.R.

453, 458 (1987) (identifying the factors that an administrative judge must

consider in making credibility determinations)); Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002) (concluding that the Board generally must

give deference to an administrative judge’s credibility determinations when they

are based, explicitly or implicitly, on the observation of the demeanor of

witnesses testifying at a hearing and may overturn such determinations only when

it has “sufficiently sound” reasons for doing so).

Throughout its petition for review, the agency also argues that the appellant

did not identify specific reasonable and effective accommodations that would

enable him to perform installation and construction duties. See PFR File, Tab 1

at 22-23. In the initial decision, the administrative judge discussed that Dr. B.G.

suggested in his response to the agency’s April 6, 2020 list that, for those tasks

the appellant needed an accommodation, the appellant could take frequent rests,

use assistive devices, and use the assistance of other people on the jobsite. ID at

37; IAF, Tab 10 at 45. Although the agency claims that “assistive devices” is

vague, the appellant did in fact testify at the hearing that this could include a

dolly, a forklift, or a puller of some sort. HT-2 at 155 (testimony of the

appellant). The administrative judge also found that job modification is a viable

accommodation because ETs work in crews with varying assignments. ID at 38.

We note that the Board has held that an agency is not required to modify or

eliminate duties that are an essential function of the position. Johnson v. U.S.

Postal Service, 120 M.S.P.R. 87, ¶ 10 (2013). Here, however, as the

administrative judge found, R.N. testified that projects vary, that he tries to

utilize the skills of his employees accordingly, and that if an employee cannot do

a particular type of task, the agency can and does assign it to others. ID at 27;

HT-2 at 31-32 (testimony of R.N.). The agency has not persuaded us to disturb

this conclusion. Moreover, the agency has not established that the administrative

judge erred in concluding that it did not meet its burden in proving its charge.

We agree with the administrative judge’s conclusions as to the appellant’s

affirmative defenses.

Below, the appellant presented a disability discrimination claim based on

the theory of a failure to accommodate. IAF, Tab 21 at 6, Tab 43 at 2-3. The

Board adjudicates claims of disability discrimination raised in connection with an

otherwise appealable action under the substantive standards of section 501 of the

Rehabilitation Act, which has incorporated the standards of the ADA as amended

by the ADAAA. Haas, 2022 MSPB 36, ¶ 28. Under the relevant provisions, it is

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

of disability.” Id.; 42 U.S.C. § 12112(a). To prove disability discrimination

based on a failure to accommodate, an employee must show that (1) he is an

individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a

qualified individual with a disability as defined by 29 C.F.R. § 1630.2(m); and

(3) the agency failed to provide a reasonable accommodation. Miller v.

Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). A qualified individual

with a disability is one who can “perform the essential functions of the . . .

position that such individual holds or desires” with or without accommodation.

Haas, 2022 MSPB 36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m).

An agency is required to provide reasonable accommodation to an otherwise

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

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

(5); Haas, 2022 MSPB 36, ¶ 28; Clemens, 120 M.S.P.R. 616, ¶ 10. Once an

employee informs the agency that he requires an accommodation, the agency must

engage in an interactive process to determine an appropriate accommodation.

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

“The appropriate reasonable accommodation is best determined through a

flexible, interactive process that involves both the employer and the individual

with a disability.” 29 C.F.R. part 1630, appendix, § 1630.9.

In the initial decision, the administrative judge concluded that the appellant

proved his claim of disability discrimination based on a denial of a reasonable

accommodation because the administrative judge found that the appellant is able

to perform the essential functions of the 802 ET position as established in this

appeal, and thus that he is a qualified individual with a disability, because the

agency did not provide the appellant with an accommodation as it erroneously

determined he could not perform the essential functions of the position, and

because the agency did not show that the accommodations in question would

create an undue hardship. ID at 41. On review, the agency does not dispute that

the appellant is an individual with a disability but argues that the administrative

judge erred in finding that the appellant is a qualified individual with a disability,

or that he can perform the essential functions of the 802 ET position with or

without accommodations. PFR File, Tab 1 at 17-21. However, as discussed

above, we agree with the administrative judge’s analysis as to the essential

functions of the 802 ET position and that the appellant can perform many of those

functions both with and without accommodations.

The agency also argues that the administrative judge disregarded the fact

that the appellant did not properly engage in the interactive process in this case.

PFR File, Tab 1 at 21-24. Courts have generally required both parties to engage

in the interactive process in good faith. See Rehling v. City of Chicago, 207 F.3d

1009, 1015-16 (7th Cir. 2000); Collins v. U.S. Postal Service, 100 M.S.P.R. 332,

¶ 11 (2005). Here, we do not agree that the appellant failed to engage in the

interactive process in good faith. The appellant promptly provided the agency

with additional medical information on the nature of his disability on multiple

occasions and he indicated his belief as to the essential functions of his position,

although maybe misguided, and his interest in finding a reasonable

accommodation. To this end, he told W.G. that he could do installation and

construction work with an accommodation. IAF, Tab 10 at 21-22. Further, the

appellant’s physician, Dr. B.G., immediately responded to the agency’s April 6,

2020 request to better understand the appellant’s physical limitations, reviewing

more than 80 alleged essential functions to determine whether each individual

task was something that the appellant could perform. Id. at 45-52.

Although the agency contends that the appellant did not offer any

indication as to what accommodations he might need to perform the specific

duties in the April 6, 2020 list, including installation and construction duties, Dr.

B.G. specifically stated that the accommodations could include frequent rests,

appropriate assisting devices, and other people on the same jobsite. Id. at 45.

While, as discussed above, the agency insists “appropriate assisting devices” is

vague, the appellant testified that this could include a dolly, a forklift, or a puller

of some sort, but that it would be project and task specific. HT-2 at 155

(testimony of the appellant). We do not find these suggested accommodations

unreasonable. We do agree with the agency that the appellant made matters more

difficult in this case by not directly responding to M.R.’s conclusion that, based

on Dr. B.G.’s annotations, it was “clear” that the appellant was unable to perform

the essential functions as detailed in the April 6, 2020 list and thus that M.R.

would start the reassignment process. See PFR File, Tab 1 at 21-22; IAF, Tab 10

at 60. However, M.R.’s response ignored the fact that Dr. B.G. indicated that the

appellant could perform many of the alleged essential functions and that he

provided proposed reasonable accommodations. Continuing the interactive

process would have been the opportunity to explore the proposed reasonable

accommodations further. The agency claims on review that the purpose of the

April 6, 2020 list was to identify the types of things the appellant could do and to

find an accommodation, and that is exactly what the appellant’s response from

Dr. B.G. does. See PFR File, Tab 1 at 19. Consequently, the agency’s arguments

have not persuaded us that the administrative judge erred in finding that the

appellant proved his claim of disability discrimination based on failure to provide

a reasonable accommodation.

Below, the appellant also alleged that the agency retaliated against him for

requesting a reasonable accommodation and that it engaged in disparate treatment

disability discrimination. IAF, Tab 43 at 2-3; ID at 40. With regard to the first

claim, the appellant argued that his second-level supervisor, S.H., and his

first-level supervisors, F.C. and then M.R., made his job difficult and wanted to

get rid of him after he refused to go to Adak Island and after he asked for

accommodation. ID at 42-45. The administrative judge found that the appellant

failed to prove this claim because all three witnesses testified that neither S.H.

nor F.C. were involved in the decision making regarding the appellant’s removal,

the appellant did not establish that S.H. influenced M.R. at all in issuing the

decision, and there was no direct evidence, comparator evidence, or any other

indications in the record that M.R. expressed hostility towards the appellant’s

reasonable accommodation request. ID at 43-45. The administrative judge

explained that although M.R.’s April 6, 2020 list was “over-inclusive” and “made

it almost certain that the appellant could not perform what the agency deemed the

essential functions,” he found M.R.’s approach genuinely erroneous and not an

effort to retaliate against the appellant for requesting a reasonable

accommodation. ID at 45. In his cross petition for review, the appellant largely

reargues his version of the facts leading to the removal decision, disputes the

testimony of several witnesses and the administrative judge’s credibility

determinations, and reargues that S.H. was involved in his removal. PFR File,

Tab 3 at 19-27. However, merely rearguing factual issues raised and properly

resolved by the administrative judge below does not establish a basis for review.

Broughton, 33 M.S.P.R. at 359 (1987); see also Haebe, 288 F.3d at 1301.

In his cross petition, the appellant also briefly discusses his claim of

disparate treatment disability discrimination. PFR File, Tab 3 at 27. He asserts

that “[o]thers not in his protected class” were assigned duties that did not involve

intensive labor; specifically, J.W. and M.L. Id. However, the administrative

judge discussed J.W. and found that although J.W. spent some time developing

software for the agency, he is now doing installation and construction work and is

thus not a good comparator and does not support the appellant’s claim. ID at 46.

With regard to the appellant’s claim as to M.L., we decline to consider this

argument that the appellant submits for the first time on review because he has

not shown that it is based on new and material evidence not previously available

despite his due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R.

268, 271 (1980).

The agency’s remaining arguments provide no basis for disturbing the initial

decision.

On review, the agency also contends that even if the Board disagrees with

its above arguments, the Board should reverse the initial decision and reopen the

proceedings. PFR File, Tab 1 at 24-27. In this regard, the agency first argues

that the administrative judge erred in finding that the appellant is medically

capable of performing the essential functions of the 802 ET position without

allowing testimony from its Regional Flight Surgeon, Dr. M.D. Id. at 25. The

agency explains that it did not call Dr. M.D. as an expert witness as to its

determination that the appellant was medically unable to perform the essential

functions of his position because the appellant stated throughout this case that he

was only challenging the agency’s determination that the essential functions of

the 802 ET position include more than COR duties and not its determination that

he was medically unable to perform the tasks it identified as essential functions,

including installation and construction duties. Id. at 11, 13, 24-25; see also IAF,

Tabs 19, 20. The agency alleges that the only discussion of accommodations that

would allow the appellant to perform installation and construction duties resulted

from the administrative judge’s own questioning. Id. at 13, 25. We find the

agency’s assertions unavailing. Although the appellant apparently indicated that

he did not plan to challenge the agency’s determination that he was medically

unable to perform the functions it identified in its April 6, 2020 list, it was the

agency’s burden to prove its charge and whether the appellant’s medical

condition prevents him from being able to safely and efficiently perform the core

duties of his position. See Haas, 2022 MSPB 36, ¶¶ 15, 20. Additionally, while

the agency seems to take issue with the administrative judge’s questioning of the

witnesses, the Board’s regulations provide an administrative judge with wide

discretion to regulate the course of a hearing. 5 C.F.R. § 1201.41(b)(6).

Furthermore, as discussed above, the appellant addressed the issue of what

accommodations would allow him to perform installation and construction work

during the interactive process.

Similarly, the agency also contends that the administrative judge erred in

finding that the “modified” installation and construction position constitutes a

full-time position and effective accommodation without the testimony of the 802

ET manager, R.N. PFR File, Tab 1 at 26. The agency asserts that because the

appellant “did not raise as a potential accommodation the modified position the

AJ ultimately crafted,” it did not elicit testimony from R.N. as to whether a

position that consisted of COR work, Complex work, and some installation and

construction tasks could “even constitute a full-time position” or whether this

would warrant sending the appellant to construction projects. Id. However, as

explained above, we disagree with the agency’s characterization of the initial

decision as creating a “modified” position. The agency’s April 6, 2020 list,

which it argued constitutes the essential functions of the 802 ET position and on

which it based its charge, includes installation and construction work, COR work,

and work at the Complex. Despite this, the administrative judge properly

recognized that the position involves mostly installation and construction work.

Whether an individual can perform COR and Complex work is part of the

analysis as to whether they can perform the essential functions of the 802 ET

position. The agency also claims that the initial decision “effectively requires” it

to reinstate the appellant to a “newly-crafted position not currently performed by

any other 802 ET” and, as a practical matter, means that the agency would likely

have to reinstate him to a permanent position at the Complex, which he

previously rejected. PFR File, Tab 1 at 26. But again, the agency’s argument

ignores the fact that the administrative judge recognized that 802 ETs mostly

perform installation and construction work and that the administrative judge

found that the appellant can perform some of this work with accommodations.

The initial decision does not require the agency to effectively reinstate the

appellant to the Complex. Therefore, the agency’s assertions are unpersuasive.

Accordingly, we affirm the initial decision.

ORDER

We ORDER the agency to CANCEL the removal and to retroactively

restore the appellant effective December 22, 2020. See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must

complete this action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

COMPENSATORY DAMAGES

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

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

losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss

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

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

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

file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF

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

issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 6

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

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.

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

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

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

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

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

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

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

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the