Opinion

Daniel Smith v. Department of Energy

Court: Merit Systems Protection Board
Filed: Feb 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL P. SMITH, DOCKET NUMBER

Appellant, CB-7121-17-0003-V-1

DEPARTMENT OF ENERGY, DATE: February 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Rushab Sanghvi , Washington, D.C., for the appellant.

Kathryn B. Allen and Jonathan Eugene O'Connell , Washington, D.C., for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a request for review of an arbitration decision that

sustained the agency’s decision to remove the appellant. For the reasons set forth

below, we AFFIRM the arbitrator’s decision AS MODIFIED by this order to find

that the appellant did not prove that the agency violated his due process rights or

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

committed harmful procedural error in effecting his removal and that he did not

show that he was a qualified individual with a disability.

BACKGROUND

The appellant formerly served as a Civil Engineer with the agency’s

Division of Dam Safety, Office of Energy Projects. Request for Review (RFR)

File, Tab 4 at 504. In August 2011, the appellant underwent surgery to address a

medical condition and returned to work shortly thereafter. Id. at 282-83

(testimony of the appellant). In January 2013, the appellant’s first-level

supervisor counseled him on performance issues, and in May 2013, the supervisor

placed the appellant on a performance improvement plan. Id. at 522-29. In June

2013, the appellant requested information about the reasonable accommodation

process from the agency’s disability program manager, who provided him with

the agency’s reasonable accommodation policy and information about equal

employment opportunity counseling. RFR File, Tab 4 at 153-54 (testimony of the

disability program manager), Tab 5 at 45-46. In July 2013, the appellant

provided his first- and second-level supervisors with medical evaluations that

diagnosed him with a condition related to his prior surgery that affected his

cognitive functioning. RFR File, Tab 4 at 133-34 (testimony of the proposing

official), 284-86 (testimony of the appellant), Tab 5 at 20-35. In early August

2013, the appellant requested a reasonable accommodation and assistance with

the reasonable accommodation process from the disability program manager, and

he also requested leave pursuant to the Family and Medical Leave Act (FMLA)

from his first-level supervisor. RFR File, Tab 4 at 516-21, Tab 5 at 47-48.

On August 23, 2013, the appellant’s first-level supervisor issued him a

notice proposing his removal for his “medical inability to perform the duties of

any [agency] position for an indefinite period.” RFR File, Tab 4 at 480-82. The

notice provided the appellant with an opportunity to respond and placed him in an

administrative leave status “until further notice.” Id. at 481. On September 17,

2013, the appellant, through his representative, provided a written response to the

proposed removal in which he contended that the notice of proposed removal did

not accurately describe his performance or ability to perform in his position and

requested reasonable accommodation in the form of leave to engage in cognitive

remediation therapy, reassignment, or other accommodations as recommended in

his medical evaluations that would allow him to continue working. Id. at 483-91.

By email dated November 18, 2013, the agency’s disability program

manager asked the appellant to provide her with additional medical

documentation regarding his request for accommodation. RFR File, Tab 5

at 51-53. By letter dated December 6, 2013, the appellant’s representative

provided the disability program manager with a narrative response and

documentation of the appellant’s treatment. Id. at 54-98. By email dated

January 13, 2014, the agency’s counsel asked that the appellant provide

additional medical documentation. Id. at 99. By letter dated January 27, 2014,

the appellant’s representative provided to the agency’s counsel and disability

program manager medical documentation from the appellant’s cognitive therapist

and stated that she also was awaiting a report from the appellant’s neurologist and

neuropsychologist. Id. at 100-03. Two days later, the agency’s counsel notified

the appellant’s representative that the agency wished to see the additional report.

Id. at 104. By letter dated February 10, 2014, the appellant’s representative

provided the agency’s counsel and program disability manager with medical

documentation from the appellant’s neurologist and an updated request for

accommodation in the form of 6 months of additional leave. Id. at 105-06.

On March 10, 2014, the appellant’s second-level supervisor issued a

decision sustaining the proposed removal. RFR File, Tab 4 at 492-96. In the

decision, the deciding official described the notice of proposed removal and the

appellant’s response, as well as the correspondence between the agency and the

appellant from November 18, 2013, to February 10, 2014. Id. at 492-94. The

deciding official denied the appellant’s request for reasonable accommodation,

concluding that it constituted an undue burden on the agency, and he determined

that the appellant could not perform the duties of his or any other agency

position. Id. at 494-95.

Also in March 2014, the union grieved the appellant’s removal on his

behalf. Id. at 508-14. The union requested a response to the grievance from the

agency on several occasions and, receiving no agency response, invoked

arbitration in December 2015. RFR File, Tab 5 at 14-19. The arbitrator took

testimony and entered exhibits into the record during the hearing and accepted

closing briefs from the union and the agency. RFR File, Tab 4 at 16. On

October 2, 2016, the arbitrator issued a decision finding that the union’s

invocation of arbitration was within the time limits set forth in the collective

bargaining agreement (CBA); the removal action was for just cause and in accord

with all applicable laws, regulations, and the CBA; and the agency did not violate

the Rehabilitation Act or the FMLA. Id. at 16-64.

The appellant has timely filed a request for review with the Board of the

arbitrator’s decision, and the agency has responded in opposition to the request.

RFR File, Tabs 4, 14. On review, the appellant argues that the arbitrator’s

decision should be reversed or, in the alternative, that the case be remanded for

further adjudication on the grounds that: (1) the arbitrator failed to properly

consider the appellant’s affirmative defense of disability discrimination; and

(2) the arbitrator erred in finding that the agency’s removal of the appellant was

for just cause because the agency failed to prove its charge by preponderant

evidence, and the arbitrator failed to consider the appellant’s affirmative defenses

regarding violations of due process, agency policy, and the CBA. RFR File,

Tab 4 at 5-14. As set forth below, we hold that the arbitrator did not err in

finding that the appellant’s removal was for just cause, but he failed to make a

determination regarding the alleged due process violation and harmful procedural

errors; however, we have reviewed these claims, and we find that the agency did

not violate the appellant’s due process rights or commit harmful procedural error.

We also conclude that the arbitrator did not employ the proper analytical

framework for his evaluation of the appellant’s affirmative defenses of disability

discrimination, but the appellant has not met his burden to show disability

discrimination.

DISCUSSION OF ARGUMENTS ON REVIEW

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

§ 7121(d) when the subject matter of the grievance is one over which the Board

has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.

§ 2302(b)(1) in connection with the underlying action, and a final decision has

been issued. 2 Sadiq v. Department of Veterans Affairs , 119 M.S.P.R. 450, ¶ 4

(2013). Each condition is satisfied in this case. The appellant’s removal is

within the Board’s jurisdiction. 5 U.S.C. §§ 7512(1), 7513(d). The appellant

alleged in his grievance and during arbitration that he was subjected to

discrimination on the basis of disability when the agency failed to accommodate

him prior to his removal. RFR File, Tab 4 at 9-11, 328-37, 508-14. The

arbitrator issued an October 2, 2016 final decision regarding the appellant’s

grievance of his removal. Id. at 16-64. Thus, we find that the Board has

jurisdiction over the request for review. See Sadiq, 119 M.S.P.R. 450, ¶ 4.

The Board’s review of an arbitrator’s award is limited; such awards are

entitled to a greater degree of deference than initial decisions issued by the

Board’s administrative judges. Id., ¶ 5. The Board will modify or set aside such

an award only when the arbitrator has erred as a matter of law in interpreting a

civil service law, rule, or regulation. Id. Even if the Board disagrees with an

arbitrator’s decision, absent legal error, the Board cannot substitute its

If the appellant did not raise a discrimination claim in connection with the underlying

action with the arbitrator, he may raise a discrimination claim with the Board for the

first time in a request for review only if such allegations could not have been raised

during the negotiated grievance procedure. Jones v. Department of Energy,

120 M.S.P.R. 480, ¶ 8 (2013), aff’d sub nom. Jones v. Merit Systems Protection Board,

589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(c).

conclusions for those of the arbitrator. Id. Thus, the arbitrator’s factual

determinations are entitled to deference unless the arbitrator erred in his legal

analysis, for example, by misallocating the burdens of proof or employing the

wrong analytical framework. Id. Nevertheless, the Board defers to the

arbitrator’s findings and conclusions only if the arbitrator makes specific findings

on the issues in question. Id. Further, the Board may make its own findings

when the arbitrator failed to cite any legal standard or employ any analytical

framework for his evaluation of the evidence. Id.

The arbitrator did not err in finding that the appellant’s removal was for just

cause.

On review, the appellant argues that the arbitrator erred in finding that his

removal was for just cause because the agency did not prove by preponderant

evidence the charge of medical inability, as the agency failed to show that the

appellant could not meet the essential functions of his position because of his

medical restrictions. RFR File, Tab 4 at 12-14. The appellant further contends

that the arbitrator’s findings are not entitled to deference because the arbitrator

failed to set forth a legal standard or analytical framework in his decision to

sustain the agency’s charge and improperly shifted the burden to the appellant to

prove that he could perform the essential functions of his position . Id. In his

analysis of whether the agency proved its charge, the arbitrator did not set forth

any legal standard on which he based his conclusions, and he did not distinguish

between his analysis of the agency’s charge and the appellant’s affirmative

defense of disability discrimination. Id. at 58-64. However, our examination of

the arbitrator’s analysis does not support the appellant’s assertion that the

arbitrator erroneously shifted the agency’s burden to prove the charge to the

appellant, nor do we find that the arbitrator otherwise applied an incorrect

standard of law in adjudicating the charge. Thus, the arbitrator’s findings are

entitled to deference.

An agency may remove an employee if he is unable, because of a medical

condition, to perform the duties of his position. Bullock v. Department of the Air

Force, 88 M.S.P.R. 531, ¶ 7 (2001). When, as here, the appellant does not

occupy a position with medical standards or physical requirements or that is

subject to medical evaluation programs, to prove that he is unable to perform the

duties of his position, the agency must establish a nexus between his 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. 3 Fox v. Department of the Army, 120 M.S.P.R. 529,

¶ 25 (2014). In other words, the agency must establish that the appellant’s

medical condition prevents him from being able to safely and efficiently perform

the core duties of his position. Id. In determining whether the agency has met its

burden, the Board will consider whether a reasonable accommodation exists that

would enable the appellant to safely and efficiently perform those core duties. Id.

However, for the limited purposes of proving the charge, the agency is not

required to show that it was unable to reasonably accommodate the appellant by

assigning him to a vacant position for which he was qualified; whether it could do

so goes to the affirmative defense of disability discrimination and/or the

reasonableness of the penalty. Id.

The arbitrator made detailed factual findings regarding the appellant’s

ability to perform the core duties of his position and concluded that the

appellant’s medical condition “adversely impacted his ability to perform the

complex duties [that were] required to perform in his position as a civil engineer

for the Agency.” The arbitrator determined that the agency’s decision to remove

The March 10, 2014 agency decision removing the appellant stated that his position

“requires the ability to meet certain physical standards”; however, there is no evidence

that he occupied a position with medical standards or physical requirements or was

subject to medical evaluation programs of the kind contemplated in Fox. RFR File,

Tab 4 at 495; see Fox, 120 M.S.P.R. 529, ¶¶ 24-25 (articulating a different standard to

remove an employee for physical inability to perform when the employee is disqualified

from a position with medical standards or physical requirements, or that is subject to

medical evaluation programs).

the appellant was supported by documentation from his medical providers that he

“was not able physically to perform the duties of his position and would not be in

a position to do so for at least another four months.” RFR File, Tab 4 at 58-64.

We find no legal error in the arbitrator’s findings. Although the appellant alleged

that the agency did not articulate the essential duties of his position, and his

position description is not a part of the record, he did not dispute the agency’s

description of his primary duties, set forth in the March 2014 decision to remove

him, as completing dam inspections, follow-up reports and letters regarding the

inspections, and follow up to responses from project owners, which required

competent cognitive functioning. Id. at 321-24, 494-95. The appellant argued

before the arbitrator that his performance deficiencies were not solely related to

his medical condition and that he could be accommodated in his position, but the

medical documentation the appellant submitted during the removal proceedings

reflected that his medical condition significantly affected his cognitive

functioning and that his difficulties with timely and accurately completing

inspection reports stemmed from his cognitive condition. RFR File, Tab 5

at 20-35, 106.

Despite the appellant’s contention that he could work with reasonable

accommodation, at the time of his removal, he had been on paid administrative

leave for approximately 6 months while the agency worked with his attorney to

determine whether a reasonable accommodation was possible. RFR File, Tab 4

at 494. Moreover, the appellant’s neurologist opined in his February 19, 2014

letter, which the appellant submitted to the agency, that the appellant could not

work even with accommodation, and he could not ascertain whether the appellant

would ever be able to return to work until the appellant had completed at least

4 additional months of therapy and a follow-up neuropsychological evaluation.

RFR File, Tab 5 at 106. The appellant argued that his neurologist did not review

all of the pertinent information in reaching this conclusion, but he acknowledged

that the conclusion was based on a project position description, job performance

evaluation, and reports he submitted to the neurologist. RFR File, Tab 4

at 292-94 (testimony of the appellant). At no time has the appellant provided any

updated documentation that would call into question the agency’s determination

that he could not return to work, with or without accommodation. 4 Id. at 494-95.

When an appellant is unavailable for duty due to his incapacitation and his

unavailability has no foreseeable end, then removal of the employee is warranted.

Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 17 (2008).

Therefore, we conclude that the arbitrator properly made findings that the agency

proved its charge.

We also find no legal error in the arbitrator’s finding that the appellant’s

absence constituted a burden on his office’s operations. RFR File, Tab 4

at 62-63. Generally, removal for physical inability to perform the essential

functions of a position promotes the efficiency of the service. D’Leo v.

Department of the Navy, 53 M.S.P.R. 44, 51 (1992). The medical documentation

the appellant provided reflects that, at the time of his removal, his return to work

was not assured; thus, there was no foreseeable end to his incapacity. RFR File,

Tab 5 at 106. He requested an additional 6 months of leave to undergo the

therapy recommended by his medical providers. Id. at 105. The deciding official

explained in his decision to remove the appellant that it would be an undue

hardship for the agency to grant the appellant 6 more months of leave in addition

At the hearing, the appellant testified that he was employed and performing some of

same duties as that of his former position as a civil engineer. RFR File, Tab 4 at 290-92

(testimony of the appellant). The Board has found that, if during the pendency of the

Board appeal of a removal for medical inability to perform, an appellant presents new

medical evidence showing that he has recovered such that he now can perform the

essential duties of his position, the removal action will be reversed. See, e.g.,

Sanders v. Department of Homeland Security, 122 M.S.P.R. 144, ¶ 9, aff’d,

625 F. App’x 549 (Fed. Cir. 2015), and overruled on other grounds by Haas v.

Department of Homeland Security, 2022 MSPB 36. However, to invoke this principle,

the appellant must present evidence that clearly and unambiguously demonstrates that

he has recovered. Id. To the extent the appellant attempted to show he has recovered,

we find the appellant’s assertions, without supporting medical documentation, do not

meet this standard.

to the 6 months of administrative leave it already had provided to him, as the

agency would be unable to hire an engineer to perform his duties during his

absence, and up to three engineers would be required to take on his workload.

RFR File, Tab 4 at 494. Further, the deciding official observed that insufficient

travel funds and staffing would negatively impact the agency’s ability to ensure

that the dams it regulated operated safely and were in compliance with applicable

regulations. Id. Thus, we find no legal error in the arbitrator’s finding that the

appellant’s absence had an adverse impact on the agency, which supports a

conclusion that the agency’s action was taken for such cause as will promote the

efficiency of the service. See Clemens v. Department of the Army, 120 M.S.P.R.

616, ¶ 18 (2014) (finding that the appellant’s removal was taken for such cause as

will promote the efficiency of the service when the record reflected that there was

no foreseeable end to his incapacity, and his medical documentation did not

support his ability to return to duty).

Finally, we find no legal error in the arbitrator’s conclusion that the

agency’s penalty did not exceed the “tolerable limits of reasonableness.” RFR

File, Tab 4 at 62-63; see Brown v. Department of the Interior, 121 M.S.P.R. 205,

¶ 18 (2014) (holding that the appellant’s removal was within the tolerable limits

of reasonableness when her condition required long-term recovery and

rehabilitation, without a foreseeable end to her incapacity), overruled on other

grounds by Haas v. Department of Homeland Security, 2022 MSPB 36.

Accordingly, we affirm the arbitrator’s decision as to his finding that the

appellant’s removal was appropriate.

The arbitrator failed to make a determination regarding the appellant’s

affirmative defense of a due process violation, but the agency did not violate the

appellant’s due process rights.

On review, the appellant argues that the arbitrator failed to address the

appellant’s arguments that establish that the agency committed due process

violations, warranting reversal. RFR File, Tab 4 at 13 -14. The appellant argues

that the agency’s decision relied on aggravating factors, including medical

documents, such as the February 10, 2014 letter from the appellant’s neurologist,

and conclusions drawn from those documents, that were not included in the notice

of proposed removal and to which the appellant was not afforded an opportunity

to respond. Id. at 13, 324-27. He also argues that an incident during one of his

dam inspections was considered in issuing the proposal to remove him, even

though it was not mentioned in the proposal or the decision to remove him. Id.

The appellant contends that the arbitrator’s findings are not entitled to deference

because he failed entirely to address the alleged violations. Id. at 12-14.

Our review of the arbitrator’s decision reflects that the arbitrator failed to

make determinations regarding the appellant’s claims of due process violations

and harmful procedural error. In finding that the appellant could not perform the

duties of his position, the arbitrator did not set out a legal standard or analytical

framework to address the violations raised below by the union on the appellant’s

behalf and did not make specific findings on the alleged violations, merely stating

in his decision that “[t]he Arbitrator has taken into account all other arguments

raised by the Union.” Id. at 57-64. Absent a legal standard, analytical

framework, or specific findings regarding the due process violation claims raised

by the union, the Board has no basis upon which to defer to the arbitrator on these

issues. See, e.g., Hollingsworth v. Department of Commerce, 115 M.S.P.R. 636,

¶ 8 (2011) (finding that an arbitrator’s decision denying the appellant’s requests

for attorneys’ fees and compensatory damages was not entitled to deference when

the arbitrator did not make specific findings, cite any legal standard, or employ

any analytical framework in denying the requests).

Based on the record before us, however, we find that the agency provided

the appellant with the minimum due process required to effect his removal.

When, as here, a public employee has a property interest in his continued

employment, the Government cannot deprive him of that interest without due

process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985);

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-75 (Fed.

Cir. 1999). The essential requirements of constitutional due process for a tenured

public employee are notice of the charges against him, with an explanation of the

evidence, and an opportunity for the employee to present his account of events

prior to the deprivation of his property right to continued employment.

Loudermill, 470 U.S. at 546-48. An employee’s constitutional due process

guarantee of notice (both of the charges and of the employer’s evidence) and the

opportunity to respond are undermined when a deciding official obtains new and

material information through ex parte communications. Stone, 179 F.3d at 1376.

When an employee has notice only of certain charges or portions of the evidence

and the deciding official considers new and material information as a basis for his

decisions on the merits of a proposed charge or the penalty to be imposed,

procedural due process guarantees are not met because the employee is “no longer

on notice of the reasons for dismissal and/or the evidence relied upon by the

agency.” Id.

“[N]ot every ex parte communication is a procedural defect so substantial

and so likely to cause prejudice that it undermines the due process guarantee and

entitles the claimant to an entirely new administrative proceeding”; rather,

“[o]nly ex parte communications that introduce new and material information to

the deciding official will violate the due process guarantee of notice.” Id.

at 1376-77. The Board will consider the following factors, among others, to

determine whether an ex parte contact is constitutionally impermissible:

(1) “whether the ex parte communication merely introduces ‘cumulative’

information or new information”; (2) “whether the employee knew of the error

and had a chance to respond to it”; and (3) “whether the ex parte communications

were of the type likely to result in undue pressure upon the deciding official to

rule in a particular manner.” Id. at 1377. The ultimate inquiry is whether “the ex

parte communication is so substantial and so likely to cause prejudice that no

employee can fairly be required to be subjected to a deprivation of property under

such circumstances.” Id. If such a due process violation has occurred, it is not

subject to the harmful error test; rather, the former employee is entitled to a new

constitutionally correct removal procedure. Id.

Here, the deciding official relied in his decision to remove the appellant

upon correspondence between the agency’s counsel, the disability program

manager, and the appellant’s representative that occurred after the notice of

proposed removal was issued and the appellant submitted his reply. RFR File,

Tab 4 at 480-96. In his decision, the deciding official described: (1) the

November 18, 2013 email correspondence from the agency’s disability program

manager to the appellant; (2) the December 6, 2013 letter from the appellant’s

representative to the disability program manager that enclosed documentation of

the appellant’s treatment; (3) the January 13, 2014 email from the agency’s

counsel to the appellant’s representative; (4) the January 27, 2014 letter from the

appellant’s representative to the agency’s counsel and the disability program

manager that enclosed medical documentation; (5) the January 29, 2014 email

from the agency’s counsel to the appellant’s representative; and (6) the

February 10, 2014 letter from the appellant’s representative to the agency’s

counsel and the disability program manager that enclosed medical documentation.

Id. at 492-94. None of the correspondence between the agency and the appellant

from November 18, 2013, to February 10, 2014, included the deciding official;

accordingly, we conclude that the content of the correspondence was

communicated ex parte to the deciding official. RFR File, Tab 5 at 51-106; see

Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 12 (2015) (finding that the

deciding official initiated ex parte communications with a human resources

representative to determine whether the appellant’s alleged mitigating factors

were supported by the facts). 5

The record is not clear as to whether the agency’s counsel was acting as an agent of

the deciding official during her correspondence with the appellant’s representative, in

which case the communication of the content of the correspondence to the deciding

official may not have been ex parte.

However, the appellant’s argument fails because he cannot show that,

regarding the second Stone factor, he was unaware of the likelihood of such a

communication when he submitted the substance of the ex parte communication

to the agency in furtherance of his assertion that he was eligible for a reasonable

accommodation. In the appellant’s reply to the agency’s notice of proposed

removal, he asserted that removal was not appropriate and that he was eligible for

reasonable accommodation that would enable him to perform the duties of his

position. RFR File, Tab 4 at 484-91. Although the appellant asserts on review

that the agency did not notify him that it intended to consider the post-reply

information he submitted to it in support of his request for reasonable

accommodation in the removal action, the appellant’s extensive discussion of his

request for reasonable accommodation in his reply reflected that he was aware

that such a request could be considered by the deciding official. See Mathis,

122 M.S.P.R. 507, ¶ 9 (finding that a deciding official does not violate an

employee’s due process rights by considering issues raised by the employee in

response to a proposed adverse action and then rejecting those arguments in

reaching his decision); Wilson v. Department of Homeland Security , 120 M.S.P.R.

686, ¶¶ 10-11 (2014) (holding that when the appellant raised and addressed

uncharged misconduct in her written and oral replies, the deciding official’s

consideration of that information did not violate her right to due process), aff’d,

595 F. App’x 995 (Fed. Cir. 2015). Moreover, each time the agency requested

post-reply medical information from the appellant, he had the opportunity to

submit information in furtherance of his assertion that he was eligible for a

reasonable accommodation instead of removal for medical inability to perform his

duties. An appellant is not entitled to know the particular weight that the

deciding official will attach to his arguments raised in response to a proposed

adverse action in advance of the final decision. Id., ¶ 12; see Mathis,

122 M.S.P.R. 507, ¶ 9. By submitting documentation that indicated he was

unable to perform the core duties of his position with or without accommodation,

the appellant assumed the risk that the deciding official would reach conclusions

contrary to the appellant’s interests as to whether the charge of medical inability

could be sustained. For these reasons, we find that the appellant received a full

opportunity to respond to the charges against him and was not deprived of due

process.

The appellant also argued that the proposing official considered

information regarding an incident during one of the appellant’s dam inspections,

but this information was not included in the notice of proposed removal or

subsequent decision. RFR File, Tab 4 at 13, 324-27. At the hearing, the

proposing official testified that he received feedback from a facility the appellant

had inspected that expressed concern that the appellant did not seem well during a

past inspection. Id. at 148-49 (testimony of the proposing official). This

information did not constitute an ex parte communication because there is no

evidence that this information was communicated to the deciding official or that

the deciding official considered the information in his decision. See Stone,

179 F.3d at 1376.

The arbitrator did not make a determination regarding the appellant’s affirmative

defense of harmful procedural error, but the agency did not commit harmful

procedural error in effecting the appellant’s removal.

On review, the appellant argues that the agency’s failure to provide him

with an opportunity to respond to the denial of his accommodation request

violated agency policy and the CBA. RFR File, Tab 4 at 13-14. Additionally,

despite finding that the post-reply ex parte communications did not constitute a

due process violation, we must determine whether the communications

constituted harmful error. Ward v. U.S. Postal Service, 634 F.3d 1274, 1281-82

(Fed. Cir. 2011). Because the arbitrator did not address the appellant’s

affirmative defense of harmful procedural error, nor whether the post -reply ex

parte communication constituted harmful error, the Board cannot defer to the

arbitrator on this issue. See Hollingsworth, 115 M.S.P.R. 636, ¶ 8. As set forth

below, we find that neither the agency’s failure to provide the appellant with an

opportunity to respond to the denial of his accommodation, nor the ex parte

communication, constituted harmful procedural error.

To prove harmful procedural error, the appellant must show both that the

agency committed procedural error and that the error was harmful. Rogers v.

Department of Defense, 122 M.S.P.R. 671, ¶ 7 (2015). Harmful error cannot be

presumed; an agency error is harmful only where the record shows that the error

was likely to have caused the agency to reach a conclusion different from the one

it would have reached in the absence or cure of the error. Id. The appellant bears

the burden of proving by preponderant evidence that the agency committed

harmful error in reaching its decision. 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(1).

The appellant alleged that agency policy and the CBA required an

employee denied an accommodation to be provided a reason for the denial and the

ability to appeal it. RFR File, Tab 4 at 13-14, 327, 338-39. The appellant does

not cite to the CBA in support of this proposition, nor do we find that the CBA

contains such a policy. Id. at 370-477. The agency’s reasonable accommodation

policy provides that, “If the request is denied, the written decision will explain

the basis for the denial and notify the requester of his/her right to appeal.” Id.

at 539. The agency’s disability program manager testified, and the record

reflects, that the agency effectively informed the appellant that his request for

reasonable accommodation was denied in the decision effecting his removal but

that he was not notified of his right to appeal the reasonable accommodation

decision. Id. at 189-90 (testimony of the disability program manager), 494.

Thus, the agency erred in failing to notify the appellant of his right to appeal the

decision denying his request for reasonable accommodation. However, the

appellant has not shown that this error was one that would have caused the

agency to reach a different conclusion regarding his removal in the absence or

cure of the error. See Rogers, 122 M.S.P.R. 671, ¶ 7. The appellant contends that

the February 10, 2014 letter from his neurologist was intended to advocate for a

reasonable accommodation, and had he known that the agency would rely upon it

to conclude that he was medically unable to perform, he “may have been able to

discuss” why the information his neurologist considered was not relevant to the

deciding official’s decision and “work with the Agency to find a workable

accommodation.” RFR File, Tab 4 at 326-27, 339. The appellant does not show

how this discussion would have resulted in the deciding official reaching a

different conclusion regarding the appellant’s inability to perform the duties of

his position. In particular, the February 10, 2014 letter was unequivocal in its

assessment that the appellant could not return to work for at least another

4 months, if ever; thus, the appellant has not demonstrated that his explanation of

the letter would have led the agency to conclude that he could be accommodated

or that he could perform the core duties of his position. RFR File, Tab 5 at 106.

Accordingly, we find that the agency’s error was not harmful.

The post-reply ex parte communication similarly contained information

that led to the deciding official’s conclusion that the appellant could not be

accommodated and was unable to perform the core duties of his position. RFR

File, Tab 4 at 492-96. As set forth above, the appellant has not shown that his

explanation of the ex parte information would have led the agency to conclude

that he could be accommodated and thus retain his position; accordingly, we find

that the ex parte communication did not constitute harmful error.

The arbitrator failed to determine whether the appellant was a qualified individual

with a disability, but the appellant did not prove his claim of disability

discrimination.

We affirm, as modified below, the arbitrator’s finding that the appellant did

not prove that the agency discriminated against him on the basis of his disability.

On review, the appellant argues that the arbitrator erred in concluding that the

appellant’s requested reasonable accommodation placed an undue hardship on the

agency and that the appellant was accommodated when the agency placed him on

administrative leave. RFR File, Tab 4 at 9-11. In his analysis of the appellant’s

affirmative defense of disability discrimination, the arbitrator did not set forth

any legal standard on which he based his conclusions, nor did he follow any

cognizable analytical framework. Id. at 58-64. In particular, he failed to address

whether the appellant was a qualified individual with a disability, a disputed fact,

before proceeding to find that the requested accommodation would have placed

an undue hardship on the agency. Id. Thus, the Board has no basis on which to

defer to the arbitrator’s findings. See FitzGerald v. Department of Homeland

Security, 107 M.S.P.R. 666, ¶ 18 (2008) (holding that the Board may make its

own findings regarding the appellant’s claim of discrimination because the

arbitrator did not cite a legal standard and his analysis did not follow the proper

legal framework), overruled on other grounds by Savage v. Department of the

Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 23-25. We have examined the

record and find that the appellant nevertheless failed to establish his affirmative

defense of discrimination.

The Rehabilitation Act requires an agency to provide a reasonable

accommodation to the known physical or mental limitations of an otherwise

qualified individual with a disability unless the agency can show that the

accommodation would cause an undue hardship on its business operations.

Clemens, 120 M.S.P.R. 616, ¶ 10; 29 C.F.R. § 1630.9(a). 6 With exceptions not

applicable here, the term “qualified” means that the individual satisfies the

requisite skill, experience, education, and other job-related requirements of the

employment position the individual holds or desires and, with or without a

reasonable accommodation, can perform the essential functions of the position.

As a Federal employee, the appellant’s claim of discrimination on the basis of

disability arises under the Rehabilitation Act of 1973. White v. Department of Veterans

Affairs, 120 M.S.P.R. 405, ¶ 9 n.4 (2013). The Rehabilitation Act incorporates the

regulatory standards for the Americans with Disabilities Act (ADA). White,

120 M.S.P.R. 405, ¶ 9 n.4. Further, the ADA Amendments Act of 2008 (ADAAA), Pub.

L. No. 110-325, 122 Stat. 3553 (codified at 42 U.S.C. § 12101), applies to this appeal

because the incidents in question occurred after the January 1, 2009 effective date of the

ADAAA. White, 120 M.S.P.R. 405, ¶ 9 n.4.

Clemens, 120 M.S.P.R. 616, ¶ 10; 29 C.F.R. § 1630.2(m). Reasonable

accommodation includes modifications to the manner in which a position is

customarily performed in order to enable a qualified individual with a disability

to perform the essential job functions, or reassigning the employee to a vacant

position whose duties the employee can perform. Clemens, 120 M.S.P.R. 616,

¶ 10. To establish disability discrimination on the basis of 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).

The record below establishes that although the appellant demonstrated that

he is an individual with a disability, he did not establish that he is a qualified

individual with a disability. At the time of the appellant’s removal, the most

recent medical documentation that he submitted from his neurologist to the

agency opined that his memory loss and attention difficulty had “severely

impacted his ability to work,” that “[i]t is too soon for [the appellant] to be

cleared to return to his usual work, even with reasonable accommodations,” and

that 4 more months of therapy were required before the appellant’s neurologist

could determine whether the appellant could return to work at all. RFR File,

Tab 5 at 106. Although the appellant contended that he could return to work with

accommodation, this documentation concluded that he was not able to return to

work, with or without accommodation, for at least 4 months, if at all. Id. Thus,

at the time of his removal, the appellant was medically incapacitated, could not

perform the essential functions of his position, and was not a qualified individual

with a disability. See, e.g., Petitioner v. Department of the Army, EEOC Appeal

No. 0320150001, 2015 WL 5318989 (Sept. 4, 2015) (concurring with the Board’s

final order in finding that the petitioner was not a qualified individual with a

disability when “the most reliable medical documentation indicated that she was

unable to return to work in any capacity because of her disability”). Moreover,

on review, the appellant has not disputed the agency’s claim that it could not

accommodate him by reassigning him to a vacant position for which he was

qualified. RFR File, Tab 4 at 9-11, 495. Because the appellant is not a qualified

individual with a disability, his claim of disability discrimination based on failure

to accommodate fails. See Fox, 120 M.S.P.R. 529, ¶ 34 (holding that the

appellant failed to prove her claim of disability discrimination because she could

not perform the essential functions of her position even with reasonable

accommodation and was not a qualified individual with a disability).

Moreover, we find the appellant’s requested accommodation would not

have been effective and would have caused an undue burden on the agency’s

operations. A determination of undue hardship should be based on several

factors, including, inter alia, the nature and cost of the accommodation needed,

the overall financial resources of the facility, the type of operation, and the

impact of the accommodation on the operation of the facility. Clemens,

104 M.S.P.R. 362, ¶ 25. Following about 6 months of administrative leave, the

agency denied the appellant’s request for an accommodation of 6 additional

months of leave to receive treatment and evaluation for his medical condition.

RFR File, Tab 4 at 494-95. A request for an indefinite period of leave, such that

the employee cannot say whether or when he will be able to return to work at all,

constitutes an undue hardship. See Stevens v. Department of the Army,

73 M.S.P.R. 619, 628-29 (1997) (finding that open-ended “latitude” granted to an

employee in leave and attendance matters was an unduly burdensome

accommodation); see also Jones v. Department of Transportation, 295 F.3d 1298,

1310 (Fed. Cir. 2002) (quoting Schultz v. United States Navy, 810 F.2d 1133,

1137 n.* (Fed. Cir. 1987), for the proposition that “[a]n agency is not

required . . . to indefinitely retain an employee on its rolls who cannot work due

to poor health”).

The appellant’s medical documentation demonstrates that he could not

work at least as of February 2014, and could not provide a date on which he

would return to work. RFR File, Tab 5 at 106. Based on the appellant’s

neurologist’s conclusion that he could not return to work in the foreseeable

future, the appellant’s requests for accommodation would not have been effective

accommodations that would have allowed him to perform the essential functions

of his position. The appellant, who already had been in an administrative leave

status for 6 months and had undergone 2 months of treatment for his medical

condition when he requested 6 additional months of leave, was unable to show

that 6 more months of leave would enable him to return to work. RFR File, Tab 5

at 103, 106. Additionally, the agency articulated that his absence, which already

had continued for 6 months, would have had a negative financial impact on the

agency due to limited travel funds, and would have caused strain on the

remaining engineers to cover the appellant’s inspections and the office as a whole

in meeting its mission to ensure that dams within its purview operated safely.

RFR File, Tab 4 at 494-95. Accordingly, we find that the requested

accommodation of leave would have constituted an undue burden on the agency.

The arbitrator did not err in finding that the agency did not violate the appellant’s

rights under the FMLA.

Intertwined in the appellant’s arguments asserting disability discrimination

is his argument the agency violated his right to 12 weeks of leave under the

FMLA when it did not approve his August 2013 application for leave under the

FMLA and instead initiated the instant removal action, which deprived him of the

opportunity to obtain treatment. RFR File, Tab 4 at 24, 339-40. If an agency

bases an adverse action on its interference with an employee’s rights under the

FMLA, the adverse action is a violation of law and cannot be sustained. Gross v.

Department of Justice, 77 M.S.P.R. 83, 90 (1997). Under the FMLA, an

“eligible” employee of a covered employer is entitled to unpaid leave, or paid

leave, if earned for a period of 12 weeks in any 12-month period because of, inter

alia, a serious health condition that renders the employee unable to perform his

job. 5 U.S.C. § 6382(a)(1); Gross, 77 M.S.P.R. at 86. In taking a leave-related

disciplinary action, an agency bears the burden of proving that it properly denied

an “eligible” employee leave under the FMLA. Jefferies v. Department of the

Navy, 78 M.S.P.R. 255, 259 (1998).

However, the charge in this matter was nondisciplinary in nature, medical

inability to perform. RFR File, Tab 4 at 492-96. In any event, shortly after the

appellant requested leave under the FMLA, the agency issued the notice of

proposed removal, which provided that he immediately would be placed in an

administrative leave status and remain in this status until further notice; it is

undisputed that the appellant remained on paid administrative leave until the

issuance of the decision sustaining his removal, or for just over 6 months. Id.

at 480-82. Therefore, the agency effectively provided the appellant with all of

the leave to which he was entitled under the FMLA and much more. See Young v.

Department of Veterans Affairs, 83 M.S.P.R. 187, ¶ 11 (1999) (finding that the

FMLA allows a maximum of 12 workweeks of leave, and so it did not preclude

sustaining a charge of excessive use of unpaid leave that lasted more than

12 weeks). We thus find that the agency did not violate the appellant’s rights

under the FMLA. Accordingly, the arbitrator’s decision is affirmed as modified

by this Final Order.

NOTICE OF APPEAL RIGHTS 7

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

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.

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

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

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

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

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

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

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

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

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

competent jurisdiction. 8 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