Opinion

Rosa Arellano v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSA I. ARELLANO, DOCKET NUMBER

Appellant, DA-0752-17-0230-I-1

DEPARTMENT OF HOMELAND DATE: January 24, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.

Robert H. Moore , Esquire, and David V. Sorola , Esquire, Del Rio, Texas,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed her removal for inability to perform the essential duties of her position.

Generally, we grant petitions such as this one only in the following

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

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

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

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 the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

except as expressly MODIFIED to set forth the proper standard for evaluating an

affirmative defense of discrimination. 5 C.F.R. § 1201.113(b).

BACKGROUND

The agency employed the appellant as a Customs and Border Protection

(CBP) Officer, GS-1895-12. Initial Appeal File (IAF), Tab 5 at 29. Her position

required her to perform duties of a strenuous and hazardous nature, including

using a firearm, wearing a gun belt to carry her firearm and other “personal

protection equipment,” standing and walking for long periods, running or

sprinting for 150 feet, lifting and carrying up to 85 pounds, pushing and pulling,

and climbing using both hands and feet. Id. at 94, 97-109. On December 4,

2015, she submitted medical documentation from her treating physician assistant

indicating that she had back and leg pain due to a herniated disc and that she

could not wear her gun belt until further treatment “in January.” Id. at 137. She

requested temporary light duty, which the agency approved on December 10,

2015. Id. at 135. Following the initial approval of her temporary light duty

request, the appellant submitted monthly requests for light duty accompanied by

authorizations to return to work with restrictions written by her physician

assistant. Id. at 144-50, 159-60.

On July 25, 2016, the Assistant Port Director instructed the appellant to

provide administratively acceptable medical documentation containing the

following information: a diagnosis of her condition and resulting impairments;

an explanation of how her condition affected her ability to perform her duties; a

prognosis; recommendations regarding any specific accommodation she needed;

and a medical opinion regarding whether she was physically capable of using a

firearm and performing “necessary force requirements.” 2 Id. at 130-31. In

response to this request, the appellant provided an August 2016 medical

evaluation from her treating physician assistant stating, among other things, that

her back, neck, and leg conditions limited her ability to sit, stand, and walk, and

precluded her from lifting more than 20 pounds, running, climbing stairs,

performing necessary force requirements, and using a firearm. Id. at 128-29. He

stated that her “current prognosis is not stable, her symptoms are debilitating in

nature and possibly may require surgical intervention for symptomatic relief of

lower back pain and left lower extremity pain since all other conservative

treatments has [sic] failed to alleviate her symptoms.” Id. at 128. He further

opined that the appellant was “not expected to resume full performance of duties

of her current position in the near future.” Id.

By notice dated September 6, 2016, the Port Director instructed the

appellant to report for a fitness-for-duty (FFD) examination to determine her

ability to perform her duties as a CBP Officer. IAF, Tab 5 at 78-80. Following

the FFD examination, another physician reviewed the results of the examination,

the appellant’s medical history, and the description, physical requirements, and

medical standards of her CBP Officer position, and issued an FFD report dated

Necessary force requirements include the use of a firearm and nonlethal, intermediate

techniques to protect and defend the life of oneself and others. IAF, Tab 5 at 95, 99,

131.

October 24, 2016. 3 Id. at 82-84. In the FFD report, the reviewing physician

stated that the appellant was not fit for duty due to her lower back pain, noting

that “[i]t is likely that since [the appellant’s] back pain has not responded to

different modalities of treatment in 3 years, she will not be able to safely perform

the job duties of a CBP Officer for the foreseeable future.” Id. at 82-83.

On November 29, 2016, the agency proposed to remove the appellant on

the basis of her inability to perform the essential duties of her position. Id.

at 59-62. The single specification underlying the charge referenced the

October 24, 2016 FFD report and its conclusion that she was not fit for duty. Id.

at 59-60. The proposal notice stated that the agency conducted a job search for

another position that would meet the appellant’s qualifications and restrictions

but that the search had been unsuccessful. Id. at 60. The appellant provided oral

and written replies to the proposed removal. Id. at 31, 36-48. Effective

February 14, 2017, the agency removed her. Id. at 29, 31-34.

The appellant timely appealed her removal to the Board, arguing that the

agency discriminated against her on the bases of her age, sex, and disability,

committed harmful procedural error, and denied her due process. IAF, Tabs 1,

14-15. After holding the appellant’s requested hearing, the administrative judge

issued an initial decision affirming her removal. IAF, Tab 21, Initial Decision

(ID).

The appellant has filed a petition for review of the initial decision, the

agency has responded, and the appellant has submitted a reply. Petition for

Review (PFR) File, Tabs 1, 4-5.

The October 24, 2016 FFD report revised an October 12, 2016 report, which

incorrectly stated that the appellant had been on light duty since September 2013 due to

lower back pain. IAF, Tab 5 at 82, 85-86. The record reflects that the appellant

submitted a September 20, 2013 request for light duty but that the agency denied her

request because there was no light duty position available. Id. at 133-34. The revised

report correctly states that the appellant’s treating clinician placed her on restricted duty

on September 20, 2013, due to lower back pain but does not state that she remained on

restricted duty for the following 3 years. Id. at 82.

ANALYSIS

We discern no error in the administrative judge’s ruling to allow the agency to

submit the reviewing physician’s affidavit in lieu of her live testimony.

Prior to the hearing, the agency informed the administrative judge that the

reviewing physician, one of its approved witnesses, would be unable to testify on

the date of the scheduled hearing because she had accepted a new job with a

different employer and had training on that date. IAF, Tab 17. In lieu of the

reviewing physician’s testimony, the agency moved to submit her notarized

affidavit. 4 IAF, Tab 19. During the hearing, the administrative judge granted the

agency’s motion over the appellant’s objection and accepted the reviewing

physician’s affidavit into the record. IAF, Tab 20, Hearing Compact Disc (HCD).

On review, the appellant argues that the administrative judge erred in permitting

the agency to submit the reviewing physician’s affidavit in lieu of live testimony

because it deprived her of her “constitutional right to confront” the reviewing

physician. PFR File, Tab 1 at 28-31, Tab 5 at 5-7. She argues that due process

requires confrontation and cross-examination in this case because she is

challenging her removal “as resting on incorrect or misleading factual premises or

the misapplication of rules or policies to the facts of her particular case.” PFR

File, Tab 1 at 30.

As an initial matter, the agency, not the appellant, called the reviewing

physician as a witness. 5 IAF, Tab 13 at 9, Tab 15 at 5. An agency proffers

witnesses for its own—not for the appellant’s—benefit. Therefore, neither the

The agency first moved to reschedule the hearing to a date that would allow the

reviewing physician to testify, which the appellant opposed. IAF, Tabs 17-18. The

administrative judge did not grant the agency’s motion to reschedule the hearing.

Although the appellant indicated in her prehearing submission that she “adopt[ed] all

of the Agency’s witnesses as the Appellant’s,” IAF, Tab 14 at 16, the administrative

judge approved the reviewing physician as a witness for the agency only, IAF, Tab 15

at 5. She advised the parties that any objections to her order and summary of the

prehearing conference, which included her rulings on witnesses, must be filed within

7 days. Id. at 6. Neither party filed an objection, and the appellant is therefore

precluded from challenging the order regarding witnesses on review. See Sanders v.

Social Security Administration, 114 M.S.P.R. 487, ¶ 9 (2010).

agency nor the administrative judge was under any obligation to require the

reviewing physician to appear at the hearing. See Lohr v. Department of the Air

Force, 24 M.S.P.R. 383, 386 (1984). If the appellant wished to examine her at

the hearing, it was incumbent upon her to call her as a witness. See Dubiel v.

U.S. Postal Service, 54 M.S.P.R. 428, 432 (1992). Moreover, the appellant could

have requested, but did not, a subpoena to compel the attendance of the reviewing

physician at the hearing. Id.; 5 C.F.R. §§ 1201.41(b)(2), 1201.81. Furthermore,

upon learning that the reviewing physician would be unavailable for the

scheduled hearing, the appellant could have sought, but did not, a continuance to

obtain her appearance at the hearing; rather, she opposed the agency’s attempt to

do just that. See Dubiel, 54 M.S.P.R. at 432; IAF, Tabs 17-18. Therefore, we

find no merit to the appellant’s contention that the administrative judge denied

her due process because, even assuming she had a due process right to confront

the reviewing physician at the hearing, she failed to avail herself of the Board’s

procedures that might have led to the reviewing physician’s appearance at the

hearing. See Dubiel, 54 M.S.P.R. at 432; Lohr, 24 M.S.P.R. at 386.

In addition, we find that the appellant has not shown that the administrative

judge abused her broad discretion to regulate the course of the hearing and to

receive relevant evidence by accepting the affidavit in lieu of hearing testimony.

5 C.F.R. § 1201.41(b)(3); see Thomas v. U.S. Postal Service, 116 M.S.P.R. 453,

¶ 4 (2011). Even if the appellant had made such a showing, she has not shown

that the outcome of this appeal was affected. See Thomas, 116 M.S.P.R. 453, ¶ 4

(providing that, in order to obtain reversal of an initial decision on the ground

that the administrative judge abused her discretion in excluding evidence, the

petitioning party must show on review that relevant evidence, which could have

affected the outcome, was disallowed).

The administrative judge correctly determined that the agency proved the charge.

When, as here, a removal for inability to perform is based on a current

medical condition, the agency must prove either a nexus between the employee’s

medical condition and observed deficiencies in her performance or conduct, or a

high probability, given the nature of the work involved, that her condition may

result in injury to herself or others. Haas v. Department of Homeland Security,

2022 MSPB 36, ¶¶ 15, 20. 6 In other words, the agency must establish that the

appellant’s medical condition prevents her from being able to safely and

efficiently perform the core duties of her position. Id., ¶ 20. 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 ADA Amendments Act, i.e., the fundamental job duties of the

position, not including marginal functions. Id., ¶ 21. One of the bases for

finding that a function is essential is that it is the “reason the positions exists.”

Id.; 29 C.F.R. § 1630.2(n)(2)(i).

In the initial decision, the administrative judge found that wearing a gun

belt and firearm were essential functions of the appellant’s position as a CBP

Officer. ID at 7. She further found that the medical evidence and hearing

testimony established that the appellant’s medical condition precluded her from

performing those essential functions. Id. Thus, she concluded that the agency

proved that there was a nexus between the appellant’s medical condition and her

inability to perform her job duties and sustained the charge. ID at 7-8.

On review, the appellant does not challenge, and we discern no basis to

disturb, the administrative judge’s finding that wearing a gun belt and firearm are

essential functions of the CBP Officer position. PFR File, Tabs 1, 5. She appears

to argue, however, that the administrative judge erred in relying on the FFD

report to find that she could not perform those duties because the agency violated

its procedures in forcing her to undergo the FFD examination. PFR File, Tab 1

at 20, Tab 5 at 5-8. She further appears to argue that the FFD report is not

The Board recently clarified that this standard applies to charges of inability to

perform involving a current medical condition or impairment even when, as in this case,

the appellant occupies a position with medical standards or physical requirements.

Haas, 2022 MSPB 36, ¶ 14.

probative regarding her ability to perform the duties of her position because it is

“unauthenticated, un-notarized, undeclared pursuant to 28 USC [§] 1746, nor [sic]

certified as a business record, statement” and because the reviewing physician did

not personally examine her or ever speak to her. 7 PFR File, Tab 5 at 5, 8.

In support of her contention that the agency improperly ordered her to

submit to an FFD examination, the appellant argues that the proposing and

deciding officials testified that the agency’s policy is to order an FFD

examination only after an employee has been on light duty for 1 year and that the

agency violated this policy when it required her to submit to one, even though she

had been on light duty for less than 1 year. PFR File, Tab 1 at 20; HCD (the

appellant’s closing argument). Contrary to her allegation, however, neither the

proposing nor deciding official testified that the agency had such a policy, and

the appellant has provided no other evidence in support of this argument. HCD

(testimony of the deciding and proposing officials). Pursuant to 5 C.F.R.

§ 339.301(b)(3), an agency may require an individual who occupies a position

with medical standards or physical requirements to report to a medical

examination “[w]henever the agency has a reasonable belief, based on objective

evidence, that there is a question about an employee’s continued capacity to meet

the medical standards or physical requirements of a position.” Here, the

appellant’s position was subject to medical standards and physical requirements,

and the medical notes she submitted to the agency between September 2013 and

June 2016 regarding her physical impairments and need for restricted duty

provided the agency with a reasonable basis to question her ability to safely

perform her duties. IAF, Tab 5 at 94, 97-110, 128-29, 133, 137, 145, 148, 150,

160. Therefore, we find that, contrary to the appellant’s argument on review, the

On review, the appellant also challenges the FFD report because it erroneously states

that she had been medically restricted for 3 years. PFR File, Tab 1 at 20. As noted

above, however, the revised report contains no such error. Supra ¶ 4 n.3; IAF, Tab 5

at 82-83.

agency properly ordered her to submit to a FFD examination. See 5 C.F.R.

§ 339.301(b)(3).

We also find no merit in the appellant’s contention that the FFD report is

not probative regarding her ability to perform the essential functions of her

position. In assessing the probative weight of medical opinions, the Board

considers whether the opinion was based on a medical examination, whether the

opinion 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 appellant’s medical

treatment. Adams v. U.S. Postal Service, 108 M.S.P.R. 250, ¶ 13 (2008), aff’d,

309 F. App’x 413 (Fed. Cir. 2009). In addition, because neither the reviewing

physician nor the physician assistant testified at the hearing, we must assess the

probative value of their medical reports as hearsay evidence. See Borninkhof v.

Department of Justice, 5 M.S.P.R. 77, 83-87 (1981). The Board generally

evaluates the probative value of hearsay evidence by considering various factors

that include the availability of persons with firsthand knowledge to testify at the

hearing, whether the out-of-court statements were signed or in affidavit form,

whether the declarants were disinterested witnesses to the events and whether

their statements were routinely made, the consistency of the out -of-court

statements with other statements and evidence, whether there is corroboration or

contradiction in the record, and the credibility of the out-of-court declarant. Id.

Here, the agency represented that the reviewing physician was unavailable

to testify at the hearing due to a conflict. IAF, Tabs 17-18. Her FFD report is

signed, and she also submitted a notarized affidavit signed under oath discussing

and affirming her findings in the FFD report. IAF, Tab 19. While she did not

personally examine the appellant, her affidavit and the FFD report reflect that she

conducted a comprehensive review of the relevant evidence, including the

appellant’s position description, the medical standards and physical requirements

of her position, the FFD examination and bloodwork, the physician assistant’s

report, and the appellant’s 2013 and 2015 -2016 requests for light duty and related

correspondence. IAF, Tab 5 at 82-83, Tab 19 at 7 (citing IAF, Tab 5 at 82-84,

87-110, 112-24, 128-35, 138-40, 144-50, 153-55, 153-56, 159 -60, 163). Her

affidavit further reflects that she is a medical doctor and that she has been

licensed to practice medicine in Virginia since 2014. IAF, Tab 19 at 6.

The availability of the physician assistant to testify at the hearing is

unknown as neither party called him to testify. IAF, Tab 15 at 5. His medical

report was signed, though not sworn. IAF, Tab 5 at 128-29. The record reflects

that he had been treating the appellant for several months and was thus familiar

with her treatment. Id. at 128-29, 137, 145, 148, 150, 160. His letterhead reflects

that he is a Board Certified Physician Assistant at an office specializing in

treatment of the spine. Id.

Both the reviewing physician’s FFD report and the physician assistant’s

report contain reasoned explanations in support of their conclusions, are routinely

made medical reports by disinterested medical providers, and are consistent with

each other, the FFD medical examination, and other evidence of record. See

Adams, 108 M.S.P.R. 250, ¶ 13; IAF, Tab 5 at 82-84, 111-29. Moreover, these

reports are consistent with the appellant’s own hearing testimony that she could

not carry her gun belt in 2016. HCD (testimony of the appellant). The record is

devoid of any evidence contradicting the conclusions of the reviewing physician

and the physician assistant that the appellant was not fit for duty in 2016 and that

she was not expected to be able to perform the full range of her duties in the near

or foreseeable future.

In light of the foregoing, we find that both the FFD report and the

physician assistant’s reports are highly probative regarding the appellant’s ability

to perform the duties of her position and her prognosis. We further find that the

administrative judge and the agency properly relied on this documentary evidence

and agree that preponderant evidence demonstrates that the appellant’s medical

condition precluded her from performing the essential duties of her position. ID

at 7-8; Haas, 2022 MSPB 36, ¶¶ 15, 20. Thus, we discern no basis to disturb the

administrative judge’s determination that the agency proved the charge.

The appellant failed to establish discrimination based on disparate treatment.

The appellant argued below that the agency discriminated against her on

the bases of age and sex by ordering her to furnish medical evidence regarding

her ability to perform her duties and to submit to an FFD examination before she

was on light duty for a full year. IAF, Tab 14 at 6; HCD (testimony and closing

argument of the appellant). She alleged that certain male employees and

employees under 40 years of age who had injuries or disabilities or who were on

light duty were not sent for FFD examinations. IAF, Tab 14 at 6; HCD

(testimony and closing argument of the appellant).

After the initial decision was issued, the Board clarified its analytical

framework for sex and age status-based discrimination claims in Pridgen v. Office

of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, and we apply that

framework here. To establish a claim of discrimination based on age or sex, an

appellant must prove by preponderant evidence that her membership in a

protected class was a motivating factor in the contested personnel action, even if

it was not the only reason. Pridgen, 2022 MSPB 31, ¶¶ 23-25. In determining

whether the appellant has met his initial burden to show a motivating factor, the

Board must consider all of the evidence together as a whole, without sorting

evidence into different piles, labeled “direct” or “indirect,” that are evaluated

differently. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 36

(2017).

As noted above, the appellant relied on comparator evidence in support of

her claim that the agency discriminated against her on the bases of age and sex.

For another employee to be deemed similarly situated for purposes of an

affirmative defense of discrimination based on disparate treatment, a comparator

must have reported to the same supervisor, been subjected to the same standards

governing discipline, and engaged in conduct similar to the appellant’s without

differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27.

The administrative judge considered the appellant’s claim that the agency

treated male and younger employees more favorably by not requiring them to

submit to an FFD examination but found that the appellant failed to identify any

similarly situated comparator without differentiating circumstances, i.e., one who,

like the appellant, provided medical documentation indicating that she would not

be able to return to duty in the “near future.” ID at 9-12. She further found that

the appellant failed to provide anything more than unsupported allegations to

show that the agency removed her based on her age or sex. ID at 8-13. She

considered the hearing testimony of the deciding and proposing officials and

found that they credibly testified that the appellant’s age and sex were not factors

in their actions. ID at 10-12. She also found that the agency’s proffered reason

was the real reason for the action. ID at 13.

On review, the appellant argues that the agency failed to provide any

evidence to controvert her allegation that it treated certain other employees more

favorably and that the proposing and deciding officials failed to articulate a

legitimate reason for their discriminatory treatment of the appellant. PFR File,

Tab 1 at 21-22, Tab 5 at 14-15. Contrary to the appellant’s argument that the

agency must controvert her allegations of discrimination, it is her burden to show

in the first instance that the agency’s action was motivated by discriminatory

animus. See Pridgen, 2022 MSPB 31, ¶¶ 23-23. The administrative judge

thoroughly considered the appellant’s arguments and the evidence as a whole and

concluded that she failed to meet her burden. ID at 8-13. The appellant’s

allegation that the proposing and deciding officials failed to articulate a

legitimate reason for their actions is likewise unavailing. As discussed above, the

appellant could not perform the duties of her position, and the agency properly

referred her for an FFD examination. Therefore, we find no basis to disturb the

administrative judge’s well-reasoned determination that the appellant failed to

show motivating factor by preponderant evidence.

The appellant failed to prove her affirmative defense of disability discrimination

based on a failure to accommodate.

On review, the appellant argues that the agency discriminated against her

by failing to provide her a reasonable accommodation to a position that did not

require her to carry her firearm. PFR File, Tab 1 at 23 -25. The Rehabilitation

Act requires an agency to provide reasonable accommodation to the known

physical or mental limitations of an otherwise qualified individual with a

disability unless the agency can show that accommodation would cause an undue

hardship on its business operations. Clemens v. Department of the Army,

120 M.S.P.R. 616, ¶ 10 (2014). Once such an employee requests a reasonable

accommodation, the employer must engage in the interactive process to determine

an appropriate accommodation. Id., ¶ 12. An agency’s failure to engage in the

interactive process alone, however, does not violate the Rehabilitation Act;

rather, the appellant must show that this omission resulted in failure to provide

reasonable accommodation. Id., ¶ 17. The appellant bears the burden of proving

that an accommodation she seeks is reasonable and, when she seeks a

reassignment, that there was a position that the agency would have found and to

which it could have assigned her if it had looked. Id.

Here, the administrative judge found that, although the appellant identified

several positions to which she believed she could have been reassigned, she

provided no evidence showing that there was a vacant funded position available

at the time of her removal. ID at 14. Therefore, the administrative judge

concluded that the appellant failed to prove her affirmative defense of disability

discrimination based on a failure to accommodate. Id.

On review, the appellant argues that the agency failed to conduct an

adequate search for a reassignment and that the deciding official’s hearing

testimony regarding the agency’s search was not credible. PFR File, Tab 1

at 24-25. As noted above, however, regardless of whether the agency conducted

an adequate search for a reassignment, the appellant still bears the ultimate

burden of proving that there was a position that the agency would have found and

to which it could have assigned her if it had looked. Clemens, 120 M.S.P.R. 616,

¶ 17. The appellant did not identify any available position, and her assertion that

she believes the agency failed to search outside of a 50-mile radius is insufficient

to meet her burden of proof. Id. Thus, we find no basis to disturb the

administrative judge’s determination that the appellant failed to prove her

disability discrimination affirmative defense based on a failure to accommodate.

The agency did not deny the appellant due process or commit harmful error.

The appellant argues on review, as she did below, that the agency violated

her right to due process and committed harmful error by allegedly changing the

deciding official identified in the proposal notice and by requiring her to provide

her oral response to a hearing official, who did not make a final decision on the

proposed removal or make a recommendation to the deciding official. PFR File,

Tab 1 at 25-28, Tab 5 at 8-10. We find no merit to these arguments.

As the administrative judge correctly found, the agency identified who the

deciding official would be in the proposal notice and did not subsequently change

the deciding official. ID at 16; IAF, Tab 5 at 31-34, 61. The administrative

judge further found, and we agree, that the agency did not violate the appellant’s

due process rights because it afforded her notice and an opportunity to respond to

the proposed action, and the deciding official considered the recording of her oral

response and her written response in arriving at his decision to impose the

proposed removal. ID at 14-16; IAF, Tab 5 at 31, 36-48, 61, HCD (testimony of

the deciding official); see Cleveland Board of Education v. Loudermill , 470 U.S.

532, 546 (1985). Lastly, the administrative judge correctly found that the agency

did not commit harmful procedural error by designating a hearing official to hear

the appellant’s oral response because, even if this were error, the appellant failed

to show that she was prejudiced by giving her oral response to the hearing

official, rather than the deciding official. See Salter v. Department of the

Treasury, 92 M.S.P.R. 355, ¶ 7 (2002) (stating that harmful error cannot be

presumed and that, to show harmful error, an appellant must prove that any

procedural error substantially prejudiced her rights by possibly affecting the

agency’s decision).

The penalty of removal is reasonable.

Generally, removal for physical inability to perform the essential functions

of a position promotes the efficiency of the service. Brown v. Department of the

Interior, 121 M.S.P.R. 205, ¶ 17 (2014), overruled on other grounds by Haas,

2022 MSPB 36, ¶ 14. An action taken for physical inability to perform is

considered a nondisciplinary removal, and the appropriate standard in assessing

the chosen penalty is whether it exceeded the tolerable limits of reasonableness.

Id., ¶ 18. Generally, when an employee cannot perform the essential functions of

her position, the Board must examine whether this is true with or without

reasonable accommodation and whether the agency has any vacant positions to

which it can assign the appellant within her restrictions. Id., ¶ 19.

In the initial decision, the administrative judge found that the appellant’s

removal was reasonable and promoted the efficiency of the service. ID at 17.

She explained that the hearing testimonies of the deciding and proposing

officials, as well as the appellant, established that the appellant could not perform

the essential duties of her position because of her medical condition and that there

were no other vacant positions at the same grade or pay level or below that met

her restrictions. Id. On review, the appellant argues that her removal was not

reasonable because the agency could have accommodated her by moving her to a

Mission Support position and could have provided her additional time to recover. 8

PFR File, Tab 1 at 28.

Although the appellant disagrees with administrative judge’s finding that

the penalty was reasonable, she has not alleged that she could perform the

essential duties of her position. Moreover, she has not cited any evidence in the

record to establish that there was a vacant funded position to which she could

have been reassigned. Therefore, we find no basis to disturb the administrative

judge’s well-reasoned determination that removal did not exceed the tolerable

limits of reasonableness. Brown, 121 M.S.P.R. 205, ¶¶ 17, 22.

NOTICE OF APPEAL RIGHTS 9

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the 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.

The appellant also argues on review that the penalty was not reasonable because the

agency substituted the deciding official with another agency official and because the

hearing official did not provide a summary and recommendation to the deciding official.

PFR File, Tab 1 at 28. These arguments, which we addressed above and found to be

without merit, do not pertain to the reasonableness of the penalty. See supra ¶¶ 28-29.

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.

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. 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).

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.

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: