Opinion

Joyce Bullock v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Mar 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOYCE L. BULLOCK, DOCKET NUMBER

Appellant, AT-0752-21-0230-I-1

DEPARTMENT OF THE AIR FORCE, DATE: March 7, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joyce L. Bullock , Biloxi, Mississippi, pro se.

Benjamin Signer , Joint Base Andrews, Maryland, 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 the appellant’s removal. On petition for review, the appellant does not

challenge the administrative judge’s findings and instead restates her previous

assertions that someone has stolen her identity and that she is in jeopardy of

having her life stolen, states her concern that someone has been reinstated into

her position using her social security number, and expresses her belief that

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

people’s identities are being changed. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation 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. Except as expressly

MODIFIED to clarify the proper legal standard for analyzing the appellant’s

affirmative defense of disparate treatment disability discrimination, we AFFIRM

the initial decision.

On review, the appellant does not appear to challenge the substance of the

administrative judge’s findings that the agency met its burden of proving the

medical inability charge and that she failed to prove her affirmative defenses.

With the exception of the clarification of the legal standard used to analyze the

disparate treatment disability discrimination defense, discussed below, we see no

reason to disturb those findings. 2 Petition for Review (PFR) File, Tab 1 at 1-6;

With her petition for review, the appellant includes copies of a June 18, 2018 EEO

Counselor’s report and a June 14, 2018 notice of right to file a discrimination

complaint. PFR File, Tab 1 at 7-20. Both of these documents were already included in

the record below, so they are not new. Compare PFR File, Tab 1 at 7-9, 13-20, with

IAF, Tab 12 at 23-33 and compare PFR File, Tab 1 at 11-12, with IAF, Tab 13

at 110-11; see Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10

(2009) (noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence

submitted for the first time with a petition for review absent a showing that it is both

new and material); Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)

(explaining that evidence that is already a part of the record is not new). The appellant

also has not explained how these documents are relevant or how they would warrant a

Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason

to disturb the administrative judge’s findings when she considered the evidence

as a whole, drew appropriate inferences, and made reasoned conclusions);

Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359

(1987) (same).

We modify the initial decision to clarify the proper legal standard for analyzing

the appellant’s disparate treatment disability discrimination affirmative defense.

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

failed to prove her affirmative defenses of disability discrimination based on a

failure to accommodate and disparate treatment. Initial Appeal File (IAF),

Tab 23, Initial Decision (ID) at 7-11. He determined that she failed to prove the

failure to accommodate claim because she failed to demonstrate that she could

perform the essential function of her position, with or without accommodation,

and failed to prove the disparate treatment claim because she did not identify any

similarly situated comparators who were treated less harshly, and further, because

the medical evidence formed the basis for the agency’s determination that the

appellant could not perform the essential functions of her position. ID at 9-11.

The Board adjudicates claims of disability discrimination raised in

connection with an otherwise appealable action under the substantive standards of

section 501 of the Rehabilitation Act. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the

standards of the Americans with Disabilities Act (ADA), as amended. Id.

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

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

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

disability.” 42 U.S.C. § 12112(a); Haas v. Department of Homeland Security,

2022 MSPB 36, ¶ 28. An employer is also required to provide reasonable

different outcome in her appeal, so they are not material and we have not considered

them.

accommodations to an otherwise qualified individual with a disability. 42 U.S.C.

§ 12112(b)(5); Haas, 2022 MSPB 36, ¶ 28. Both claims require that the

individual be “qualified.” Haas, 2022 MSPB 36, ¶ 28. A qualified individual

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

the . . . position that such individual holds or desires” with or without reasonable

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

Although the administrative judge did not make a specific finding that the

appellant was not a “qualified” individual with a disability, he concluded that she

could not perform the essential functions of her position with or without

accommodation, based on the fact that her position required regular interaction

with the public and coworkers, which both of the appellant’s psychiatrists

concluded was incompatible with her Delusional Disorder condition, absent

medication or psychotherapy—both of which the appellant declined. ID at 9-10;

see 29 C.F.R. §§ 1630.2(m), 1630.3; ID at 6-7. In addition, the agency provided

evidence that it searched for but was unable to find a reassignment position for

the appellant, despite the appellant’s rejection of the agency’s offer to search for

such positions, and the appellant failed to present any argument or evidence to the

contrary. IAF, Tab 12 at 51-55; see Rosario-Fabregas v. Department of the

Army, 122 M.S.P.R. 468, ¶ 18 (2015) (indicating that an appellant failed to

engage in the interactive process when he did not identify any vacant, funded

position to which the agency might have reassigned him), aff’d, 833 F.3d 1342

(Fed. Cir. 2016); IAF, Tab 22 at 37; ID at 14. Accordingly, we agree with the

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

could perform the essential functions of her position, with or without reasonable

accommodation. ID at 8-10. Thus we agree that the appellant failed to prove her

disability discrimination claim based on a failure to accommodate.

Additionally, despite finding that the appellant was unable to perform the

essential functions of her position (and was thus not a qualified individual with a

disability), the administrative judge mistakenly further analyzed the appellant’s

disparate treatment disability discrimination claim under the standard identified

in Smith v. Department of the Interior, 112 M.S.P.R. 173, ¶ 18 (2009), which

considers the following: (1) was the appellant a member of protected group;

(2) was he similarly situated to an individual who was not a member of a

protected group; and (3) was he treated more harshly than the individual who was

not a member of his protected group. ID at 10-11 (citing Smith, 112 M.S.P.R.

173, ¶ 18). In Pridgen, 2022 MSPB 31, ¶ 42, the Board clarified that disparate

treatment disability discrimination claims should be analyzed under the same

analytical framework as disparate treatment discrimination claims under

Title VII. Nevertheless, because the appellant failed to meet the threshold

requirement of showing that she is a qualified individual with a disability—a

finding the appellant does not challenge on review—the administrative judge’s

application of the incorrect standard does not warrant a different outcome. See

Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining

that an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision).

Accordingly, the initial decision is affirmed as modified by this Final

Order.

NOTICE OF APPEAL RIGHTS 3

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

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.

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. 4 The court of appeals must receive your

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.

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

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

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