Opinion

Theresa Duran v. Department of Justice

Court: Merit Systems Protection Board
Filed: Mar 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THERESA M. DURAN, DOCKET NUMBER

Appellant, DE-0752-16-0116-I-2

DEPARTMENT OF JUSTICE, DATE: March 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.

Jennifer A. Weger , Esquire, Washington, D.C., 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

sustained her removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

concerning the agency’s proof of its charge and to clarify the analysis of the

appellant’s affirmative defenses, we AFFIRM the initial decision.

BACKGROUND

The appellant was formerly employed as an Industry Operations

Investigator with the agency’s Bureau of Alcohol, Tobacco, Firearms and

Explosives. MSPB Docket No. DE-0752-16-0116-I-1, Initial Appeal File (IAF),

Tab 1 at 1. 2 As described at length in the initial decision, beginning in or around

November 2011, the appellant requested various reasonable accommodations for

her medical conditions, which caused her to experience sensitivity to light, severe

headaches, and neck pain. MSPB Docket No. DE-0752-16-0116-I-2, Appeal File

(I-2 AF), Tab 83 at 6-15, Initial Decision (ID). On February 9, 2015, the

appellant submitted a Certification of Health Care Provider for Employee’s

Serious Health Condition (Family and Medical Leave Act) (FMLA) form, in

which her doctor indicated that, due to her conditions, the appellant was unable to

“work on a computer” or “attend meetings in brightly lighted rooms.” I-2 AF,

Tab 56 at 246, 249. In a separate section on the form, the appellant’s doctor

indicated that the appellant’s conditions caused episodic flare-ups, which

prevented her from performing her job duties approximately 2 times a month for

24-48 hours per episode. Id. at 247.

The appeal was initially dismissed without prejudice to allow the appellant to retain

new counsel. IAF, Tab 31.

After receiving the FMLA form, the agency approved the appellant’s

request for FMLA leave, but later sought further clarification of the appellant’s

medical conditions, including an explanation of how such conditions affected her

ability to work on a computer and any job accommodations that the agency could

provide to allow her to work on a computer. I-2 AF, Tab 46 at 118, Tab 56

at 251-59. The appellant declined to provide any further information or sign a

waiver to allow the agency to communicate directly with her doctor. I-2 AF,

Tab 56 at 261. Consequently, on July 15, 2015, the agency proposed the

appellant’s removal for medical inability to perform the essential functions of her

position, which it contended included working on a computer. IAF, Tab 13

at 97-105. By letter dated November 6, 2015, the agency sustained the proposal,

and removed the appellant. Id. at 26-30. Following her removal, on July 21,

2016, the appellant filed an application for disability retirement, which was

granted on July 13, 2017. I-2 AF, Tab 46 at 120-134, Tab 76 at 9-12.

The appellant filed a Board appeal, disputing the agency’s removal charge

and raising affirmative defenses of disability discrimination (failure to

accommodate), retaliation for prior equal employment opportunity (EEO)

activity, and whistleblower reprisal. IAF, Tab 1 at 7; I-2 AF, Tab 48 at 2. After

holding the appellant’s requested hearing, the administrative judge issued an

initial decision sustaining the removal and finding that the appellant failed to

prove her affirmative defenses. ID at 22-30.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 7. The agency has filed a response in opposition, and the appellant has

filed a reply. PFR File, Tabs 9-10.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency proved its charge of

medical inability to perform.

When, as in this case, the appellant does not occupy a position with

medical standards or physical requirements or subject to medical evaluation

programs, in order to establish a charge of physical inability to perform, the

agency must prove 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. Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518, ¶

10 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005).

Here, the administrative judge credited the appellant’s statements in her

July 2016 application for disability retirement that her medical conditions

rendered her unable to work over the appellant’s testimony to the contrary. ID

at 20-21. In her retirement application, the appellant stated that she was unable to

perform her job duties due to “constant and chronic headaches, photosensitivity

and loss of cognitive capacity.” I-2 AF, Tab 46 at 133-34. She further indicated

that her medical provider had advised her on numerous occasions that she would

not be able to continue working due to “functional limitations, chronic pain, and

overwhelming and debilitating fatigue,” which prevented her from performing her

job duties, including working on a computer. Id. at 133.

The administrative judge found that the application was “extremely

consistent with the totality of the evidence in the record” and explained why the

appellant was unwilling to provide clarifying medical documentation—her doctor

was already advising her that she would be unable to continue working. ID at 21.

In contrast, she found the appellant’s testimony—that her conditions were only

debilitating during a flare-up, she could have worked with a reasonable

accommodation, and she only signed the disability retirement application based

on advice of counsel—to be “awkward, strained, and wholly unbelievable.” ID

at 19-20. Moreover, she found such testimony was “completely self-serving to

[the appellant’s] legal claims in this appeal” and noted that, despite her

testimony, the appellant had not corrected her retirement application to reflect her

contention that she could work with accommodations, but rather continued to

accept a disability annuity. ID at 20-21.

On review, the appellant argues that the administrative judge erred in not

crediting her testimony that she could have worked with a reasonable

accommodation. PFR File, Tab 7 at 14-17. She also argues that the agency failed

to show that she was incapacitated from her job duties because the deciding

official erroneously interpreted her doctor’s statement on her FMLA form as

indicating that she was unable to work on a computer at all when, in fact, her

inability to work on a computer was limited to when flare-ups occurred

approximately 1 to 2 times a month. Id. at 10-11. Such arguments are

unavailing. The record reflects that, in determining that the appellant was unable

to work, the administrative judge considered the relevant documentary and

testimonial evidence and applied the Board’s decisions in Borninkhof v.

Department of Justice, 5 M.S.P.R. 77, 83-87 (1981) (explaining that the

assessment of the probative value of hearsay evidence necessarily depends on the

circumstances of each case), and Hillen v. Department of the Army, 35 M.S.P.R.

453, 458 (1987) (holding that to resolve credibility issues, an administrative

judge must identify the factual questions in dispute, summarize the evidence on

each disputed question, state which version he believes, and explain in detail why

he found the chosen version more credible). Thus, we discern no reason to

reweigh the evidence or substitute our assessment of the record evidence for that

of the administrative judge. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R.

98, 105-06 (1997) (finding no reason to disturb the administrative judge’s

findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions); Broughton v. Department of Health

and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The appellant also argues that the agency failed to prove its charge because

it failed to engage in the interactive process to ascertain what her physical

limitations were and consider whether there were any reasonable accommodations

it could provide for her. PFR File, Tab 7 at 11-12. We are not persuaded by this

argument. As the administrative judge noted, the appellant refused to cooperate

with the agency’s attempts to determine the extent of her physical limitations

after she submitted the FMLA form and was unwilling to provide clarifying

information in response to the agency’s request. ID at 14-15, 17, 21; see, e.g.,

Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 19 (2014) (stating that

generally when an employee cannot perform the essential functions of her job, the

Board must examine whether this is true with or without a reasonable

accommodation, but noting that an exception to this general rule exists when an

appellant refuses to cooperate with the agency’s efforts to provide an

accommodation), overruled on other grounds by Haas Department of Homeland

Security, 2022 MSPB 36. Further, as the administrative judge noted, on her

disability retirement form, the appellant stated that “[n]o accommodations are

possible because of the nature, extent and severity of the medical conditions of

the Applicant.” ID at 18.

Finally, the appellant argues that the agency failed to prove a nexus

between her medical condition and any observed deficiencies in her performance

or conduct. PFR File, Tab 7 at 12-14. We agree. In finding that the agency

proved a nexus, the administrative judge merely noted that “deficiencies in the

appellant’s performance were increasingly identified in 2015 and remained

unresolved by the time of her removal in November.” ID at 22-23. Such a

conclusory finding, however, lacks any analysis regarding how the appellant’s

performance deficiencies were related to her medical condition. Based on our

review of the record, the agency has not established a connection between the

appellant’s medical conditions and her performance deficiencies. For example,

one of the appellant’s performance deficiencies cited was that she was

excessively using email to communicate when verbal communication would have

been more efficient. ID at 15, 17. Such a deficiency, however, clearly has no

connection to her medical conditions, which prevented her from using a

computer.

Nonetheless, we modify the initial decision to find that the agency proved

its charge by showing there was a high probability that, given the nature of the

appellant’s work, which required computer use, the appellant’s condition may

have resulted in injury to herself. By the appellant’s own admission, working on

a computer exacerbated her medical conditions. On her disability retirement

application she stated, “[m]y job required me to perform extensive computer

work, reading under fluorescent lighting, which [I] was not able to do because of

the constant and chronic headaches, photosensitivity and loss of cognitive

capacity to have the mental acuity in order to conduct my inspections.” I-2 AF,

Tab 46 at 133. She further stated:

I also conducted field inspections at commercial premises, [and]

sporting goods business premises located in personal residences, and

thus would naturally include working indoors under ambient and

natural light, which [I] was also not able to do because of the

headaches, photosensitivity and loss of cognitive capacity to have the

mental acuity in order to conduct such inspections.

Id. at 133-34. Similarly, the appellant’s FMLA form indicated that she was

unable to work on a computer and she has not offered any evidence, beyond her

testimony, which the administrative judge found was not credible, establishing

that she was able to work on a computer. Therefore, the agency has shown that

the appellant’s medical condition rendered her unable to safely and efficiently

perform all the core duties of her position, and we sustain the charge. 3

Although the appellant’s disability retirement application was not before the agency at

the time it removed the appellant, the Board reviews de novo the merits of an agency’s

decision to take an adverse action against an employee and will consider all relevant

evidence presented by the parties, whether offered at the hearing or transmitted as part

of the agency’s record. See, e.g., Sanders v. Department of Homeland Security ,

122 M.S.P.R. 144, ¶¶ 9-10 (considering the appellant’s post-removal evidence of his

psychiatric condition in an appeal of his removal for inability to perform the essential

duties of his position, 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.

The administrative judge properly found that the appellant failed to prove her

affirmative defenses.

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

framework for EEO retaliation claims and we apply that framework here. To

prevail in a claim of retaliation for engaging in activity protected by the

Rehabilitation Act, including filing EEO complaints based on disability

discrimination and requests for reasonable accommodation, the appellant must

show that retaliation was a “but-for” cause of the agency’s action. Desjardin v.

U.S. Postal Service, 2023 MSPB 6, ¶ 32; Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶ 44-47. “But-for” causation is a higher burden than

“motivating factor” causation. Desjardin, 2023 MSPB 6, ¶ 31.

The administrative judge, applying a now-obsolete burden-shifting legal

standard, found that the appellant failed to show that retaliation was a motivating

factor in the agency’s decision to remove her. ID at 27. On review, the appellant

contends that the administrative judge erred in finding that she failed to prove her

affirmative defense of retaliation for prior EEO activity because the

administrative judge only referenced four of the appellant’s eight EEO complaints

and four of her eight requests for reasonable accommodation, and did not

consider her claim of reprisal for requesting FMLA leave. PFR File, Tab 7 at 18,

20-21, 23-24. She further argues that the administrative judge failed to consider

that the deciding official was influenced by the proposing official’s retaliatory

motive under a cat’s paw theory of liability. Id. at 19-20. We discern no error in

the administrative judge’s analysis. Moreover, the appellant’s failure to meet the

lesser motivating factor standard necessarily means the she failed to meet the

more stringent but-for standard applicable to claims of retaliation based on

protected activity under the Rehabilitation Act. 4

To the extent that the appellant claims she engaged in EEO activity based on Title VII

or the Age Discrimination in Employment Act, such claims are subject to the motivating

factor standard, Desjardin, 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31, ¶ 30, which

the administrative judge correctly found she failed to meet, ID at 27.

Regarding her affirmative defense of failure to accommodate, the

administrative judge found that, on her application for disability retirement, the

appellant admitted that there was no reasonable accommodation that would allow

her to perform her job duties. ID at 29. The Board has also clarified its

precedent on reasonable accommodation, reaffirming that a threshold question in

a reasonable accommodation claim is whether the individual making the claim is

a qualified disabled individual. Haas v. Department of Homeland Security,

2022 MSPB 36, ¶ 28. A qualified disabled individual is one who can perform the

essential functions of her position with or without reasonable accommodation.

Id.

On review, the appellant argues that the agency rescinded a valid

accommodation and forced her to provide additional documentation under the

threat of removal. PFR File, Tab 7 at 22. However, we discern no error in the

agency’s request for additional information in light of the limitations identified

on her FMLA form. The administrative judge properly found that the appellant’s

medical condition is such that she cannot perform the essential functions of her

position and that no accommodation is possible. ID at 29. As such, the appellant

is not a qualified individual with a disability and she is not entitled to relief on

her reasonable accommodation claim.

Finally, regarding the appellant’s claim of whistleblower reprisal, the

administrative judge found that the appellant’s vague claims failed to amount to

nonfrivolous allegations that she made a protected disclosure. ID at 23-25. On

review, the appellant does not challenge the administrative judge’s specific

findings but rather appears to set forth new alleged disclosures. PFR File, Tab 7

at 26. For example, the appellant summarily contends that she made protected

disclosures to the Equal Employment Opportunity Commission regarding

violations of law, rules, and regulations, including the agency’s failure to follow

the FMLA. Id. She also cites to various reports, which she contends establish

that her coworkers were not following policies. Id. Such bare allegations,

however, fail to amount to nonfrivolous allegations or establish any error in the

administrative judge’s analysis.

NOTICE OF APPEAL RIGHTS 5

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.

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).

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.

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. 6 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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

following address: