The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLINE PESKAR, DOCKET NUMBER
Appellant, AT-0752-22-0618-I-1
v.
DEPARTMENT OF LABOR, DATE: May 15, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Caroline Rose Peskar , Pensacola, Florida, pro se.
Monica Moukalif and Daniel P. Miller , Esquire, Atlanta, Georgia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s chapter 75 removal action. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, except as expressly MODIFIED to clarify the legal standard applicable
to the appellant’s claim of disability discrimination. 5 C.F.R. § 1201.113(b).
The appellant does not provide a basis to disturb the initial decision.
¶2 The appellant challenges the administrative judge’s conclusion that the
agency proved its charge of absence without leave. Petition for Review (PFR)
File, Tab 1 at 4-5. We have considered all of the appellant’s assertions in this
regard; however, we find that they do not provide a basis to disturb the initial
decision. Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 4-6; see
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 & Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
¶3 The appellant asserts that the administrative judge “heavily favored” the
agency and that the administrative judge should have sanctioned the agency. PFR
File, Tab 1 at 5. To the extent the appellant challenges any of the administrative
judge’s rulings, we find her challenge unavailing. See Tines v. Department of the
Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must
contain sufficient specificity to enable the Board to ascertain whether there is a
serious evidentiary challenge). In any event, we find that the record is devoid of
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a showing of bias. See Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12
(2000) (explaining that there is a presumption of honesty and integrity on the part
of administrative judges that can only be overcome by a substantial showing of
personal bias, and the Board will not infer bias based on an administrative judge’s
rulings on issues). Thus, a different outcome is not warranted.
¶4 The appellant provides additional documents with her petition for review, to
include discovery responses and various email correspondence. PFR File, Tab 1
at 9-23. The Board generally will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record closed despite the party’s due diligence. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). In any event, these
documents are not material to the outcome of the appeal. S ee Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision).
We modify the administrative judge’s analysis of the appellant’s disability
discrimination claim.
¶5 The appellant does not discernably challenge the administrative judge’s
conclusion that she failed to prove her claim of disability discrimination; 2
however, we take this opportunity to clarify the applicable legal standard
therefor.
¶6 To prove disability discrimination under the Rehabilitation Act, the
appellant must establish, among other things, that she is an individual with a
disability as that term is defined in the Americans with Disabilities Act and Equal
Employment Opportunity Commission regulations. Pridgen v. Office of
2
The appellant did not identify which theory of disability discrimination she was
raising; however, we surmise that she was alleging disparate treatment disability
discrimination. IAF, Tab 12 at 1-8, Tab 17 at 5. We find, however, that she failed to
prove disability discrimination under any theory.
4
Management and Budget, 2022 MSPB 31, ¶ 37. She may prove that she has a
disability by showing that she: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such
impairment; or (3) is regarded as having such an impairment. 42 U.S.C.
§ 12102(1); Pridgen, 2022 MSPB 31, ¶ 37; 29 C.F.R. § 1630.2(g)(1).
¶7 In the initial decision, the administrative judge found that the appellant
failed to prove her claim of disability discrimination because she failed to show
that she is disabled, reasoning that “short-term impairments as existed in this case
do not constitute disabling conditions.” ID at 7. However, under the Americans
with Disabilities Act Amendments Act of 2008, a condition of short duration may
be considered a disability. See 42 U.S.C. § 12102(3)(B); see also 29 C.F.R.
§ 1630.2(j)(1)(ix). However, we find that a different outcome is not warranted
here. Even assuming that the appellant is disabled, she failed to show that
discrimination was at least a motivating factor in the agency’s removal action. 3
See Pridgen, 2022 MSPB 31, ¶¶ 22, 42. Thus, although we agree that the
appellant failed to prove her affirmative defense of disability discrimination, we
modify the basis for this conclusion.
¶8 Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS 4
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
3
Because we so find, we need not decide whether discrimination was a “but-for” cause
of the agency’s action. See Pridgen, 2022 MSPB 31, ¶ 40.
4
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.
5
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).
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
6
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,
7
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. 5 The court of appeals must receive your petition for
5
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,
8
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:
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.
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.