Petition for Writ of Certiorari — Jeffry Thul, Petitioner v. Deb Haaland, Secretary of the Interior, et al.

1

APPENDIX TABLE OF CONTENTS

Page

APPENDIX

Opinions of the United States Court of Appeals,

Pet. App. 1-9

March 01, 2023

Memorandum and Order of the U. S. District

Court for the Eastern District of Tennessee,

Pet. App. 10-19

March 24, 2022

Opinions of the United States Court of Appeals,

Pet. App. 20-21

March 23, 2023

Final Agency Decision, Department of Interior,

Office of Diversity, Inclusion and Civil

Pet. App. 22-83

Rights

Case Management Directive, Case No. 23-5094,

U.S. District Court for the Eastern District of

Pet. App. 84-87

Tennessee, filed May 18, 2022

Petitioner’s Office of Workers’ Compensation

Benefit Statement, Pay Period March 26, 2023

Pet. App. 88-90

thru April 22, 2023

Riverview Psychiatry March 5, 2018 ....Pet. App. 91-93

Riverview Psychiatry April 16, 2018 ....Pet. App. 94-95

Riverview Psychiatry Mar 20, 2023.. ....Pet. App. 96-99

Sept 16 Ltr............................................. Pet. App. 100-103

Sept 16, 2019 Cert, of Service........... Pet. App. 104-105

Sept 17 NPS Response....................... .......Pet. App. 105

B. Sprayberry 6_5_2019..................... Pet. App. 106-111

Excerpt, RM-16E, 2.1, Separation of

Employees......................................... Pet. App. 112-113

11

APPENDIX TABLE OF CONTENTS - Continued

Page

NPS EEO Office Correspondence

Pet. App. 114-117

DOI Waiver...................................

Pet. App. 118-119

B. Sprayberry 9_28_2018............

Pet. App. 120-124

App. 1

NOT RECOMMENDED FOR PUBLICATION

No. 22-5440

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEFFRY THUL,

)

Plaintiff-Appellant,

v.

DEBORAH HAALAND,

in her official capacity, et al.,

Defendants-Appellees.

ON APPEAL FROM

THE UNITED

)

STATES DISTRICT

)

COURT FOR THE

> EASTERN DISTRICT

) OF TENNESSEE

)

)

ORDER

(Filed Mar. 1, 2023)

Before: BOGGS, GRIFFIN, and MATHIS, Circuit

Judges.

Jeffry Thul, a pro se Tennessee plaintiff, appeals

the district court’s judgment dismissing his federal

civil rights complaint without prejudice under Federal

Rule of Civil Procedure 4(m) for failure to effect timely

service of the summons and complaint on the defend­

ants. Thul moves the court to supplement the record

on appeal and for an order reinstating him to his for­

mer position. This case has been referred to a panel of

the court that, upon examination, unanimously agrees

that oral argument is not needed. See Fed. R. App. P.

34(a).

App. 2

Thul was employed by the Department of the In­

terior (DOI) as a supervisory facility operations spe­

cialist at the Chickamauga and Chattanooga National

Military Park until he was terminated in September

2019. On December 23, 2020, Thul paid the districtcourt filing fee and filed a pro se complaint against the

Acting Secretary of the Interior and numerous other

federal officers, employees, and contractors, assert­

ing claims for constitutional violations and viola­

tions of various employment-discrimination statutes.

On March 19, 2021, Thul filed an amended complaint

that added the United States, Equal Employment Op­

portunity Commission (EEOC) Chair Charlotte Bur­

rows, and other individuals as new defendants,

expanded the number of claims, and added his wife as

a plaintiff. Except for the Acting Secretary and Chair

Burrows, Thul sued the individually named defend­

ants in both their official and individual capacities.

On April 19, 2021, the defendants moved to dis­

miss Thul’s amended complaint under Federal Rule of

Civil Procedure 12(b)(5) for insufficient service of pro­

cess.

On June 28, 2021, the district court ordered Thul

to show cause why the amended complaint should not

be dismissed for failure to effect proper service of the

summons and complaint on the defendants within 90

days of filing, as required by Rule 4(m). The court found

that Thul had not complied with all of Rule 4(i)’s re­

quirements for serving process on the United States

and its agencies, officers, and employees and that he

had made no attempt at all to serve process on the

App. 3

individually named defendants in their individual ca­

pacities. The court gave Thul 30 days to show cause for

failing to serve the unserved defendants and to correct

other deficiencies in service, cautioning Thul that fail­

ure to comply with its order would result in dismissal

of the amended complaint without prejudice for failure

to prosecute.

On July 26, 2021, Thul answered the show-cause

order, contending that he had corrected service defi­

ciencies as to the United States, Interior Secretary

Deborah Haaland (who in the interim had been substi­

tuted as a party for the Acting Secretary under Rule

25(d)), and EEOC Chair Burrows and that his email

service of the summons and complaint on the DOI’s Of­

fice of Civil Rights was sufficient service as to all of the

remaining unserved individual defendants. Secretary

Haaland responded that that the DOI and nonparty

employees were not authorized to accept service on be­

half of any of the individual defendants. In reply, Thul

argued that he had exercised diligence in attempting

to effect service, and he reiterated his contention that

his email service of the summons and complaint on the

DOI was sufficient. Thul then filed a supplemental

brief in which he argued that he had meritorious

claims and that he should therefore receive an exten­

sion of time to effect service because a re-filed com­

plaint would be barred by the statute of limitations.

The district court found, however, that Thul had

not cured the original service deficiencies as to the

App. 4

United States and Secretary Haaland1 and that he still

had made no attempt to effect service on the individual

defendants. In reaching the latter conclusion, the court

found that service of the summons and complaint on

the DOI was insufficient as to the individual defend­

ants. Moreover, the court found that Thul had not filed

proof of service on the individual defendants, as re­

quired by Rule 4(1)(1). The district court thus con­

cluded that Thul had not shown good cause under Rule

4(m) for failing to effect timely service on the defend­

ants. The court therefore granted the defendants’

motion to dismiss and dismissed Thul’s amended com­

plaint without prejudice. Even though Thul had not

shown good cause, the court did not consider whether

he was entitled to a discretionary extension of time to

effect proper service on the defendants.

On appeal, Thul argues that he failed to complete

service because he was unable to understand and then

implement the controlling rules due to the emotional

trauma he suffers as a result of the defendants’ al­

legedly discriminatory and retaliatory conduct. Thul

contends that he exercised reasonable diligence in at­

tempting to effect service under the circumstances and

therefore that his failure to strictly comply with Rule

4 should be excused. He also seeks a lenient applica­

tion of Rule 4 because his claims are now time-barred.

1 In the interim, Thul voluntarily dismissed his claims

against Chair Burrows and other individual employees of the

EEOC that he had sued.

App. 5

He otherwise argues the merits of his underlying

claims.

The defendants respond that Thul never accom­

plished proper service on any of the defendants, argu­

ing that (a) Thul did not complete all of the steps for

service on the United States and the government em­

ployees that he had sued in their official capacities, and

(b) he could not simultaneously serve all of the individ­

ual defendants by simply emailing his summons and

complaint to the DOI because there is no evidence that

the DOI was authorized to accept service on behalf of

those defendants. The defendants argue that ThuTs ef­

forts to accomplish service were invalid for another

reason—he attempted to serve the defendants himself,

which is prohibited by Rule 4(c)(2). See Fed. R. Civ. P.

4(c)(2) (“Any person who is at least 18 years old and

not a party may serve a summons and complaint.”).

Further, the defendants argue that Thul’s contention

that his mental disorders prevented him from under­

standing the procedures for proper service is contra­

dicted by the lengthy and citation-filled pleadings that

he filed in the district court.

We review a district court’s judgment dismissing a

complaint for failure to effect timely service of process

for an abuse of discretion. Byrd v. Stone, 94 F.3d 217,

219 (6th Cir. 1996). “An abuse of discretion exists when

the reviewing court is firmly convinced that a mistake

has been made.” Romstadt v. Allstate Ins. Co., 59 F.3d

608, 615 (6th Cir. 1995). Rule 4(c) states:

App. 6

If a defendant is not served within 90 days af­

ter the complaint is filed, the court—on mo­

tion or on its own after notice to the plaintiffmust dismiss the action without prejudice

against that defendant or order that service

be made within a specified time. But if the

plaintiff shows good cause for the failure, the

court must extend the time for service for an

appropriate period . ..

Fed. R. Civ. R 4(m). If the plaintiff shows good cause for

not effecting timely service of process, then extending

the time for service is mandatory. United States v. Oak­

land Physicians Med. Ctr., LLC, 44 F.4th 565, 568 (6th

Cir. 2022).

We have defined “good cause” as “a reasonable, dil­

igent effort to timely effect service of process.” Johnson

v. Smith, 835 F. App’x 114,115 (6th Cir. 2021) (quoting

Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 813 (6th

Cir. 2004)). But “lack of prejudice and actual notice are

insufficient” to establish good cause, as are “mistake of

counsel or ignorance of the rules.” Id. (cleaned up). We

have identified three scenarios constituting good cause

under Rule 4(m): (1) when the defendant has intention­

ally evaded service; (2) when the district court has

committed an error; and (3) when a pro se plaintiff suf­

fers from a serious illness. See Savoie v. City of East

Lansing, No. 21-2684,2022 WL 3643339, at *4 (6th Cir.

Aug. 24, 2022). The common denominator in these sit­

uations “is that something outside the plaintiff’s con­

trol prevents timely service.” Id.

App. 7

Here, Thul concedes that he did not properly serve

any of the defendants with the summons and amended

complaint within 90 days.2 And we find that the dis­

trict court did not abuse its discretion in concluding

that Thul did not establish good cause for his failure to

do so.

Although Thul argues that he made a diligent ef­

fort to serve the defendants, the record does not sup­

port that contention. Most pointedly, Thul made no

effort to serve any of the individual defendants with

the summons and complaint, despite being advised

that the DOI was not authorized to accept service on

behalf of any the defendants. Nor do we find that

Thul’s mental disorders excused his failure to effect

timely service. As the defendants argue, Thul’s mental

disorders did not preclude him from filing voluminous

pleadings in the district court that required extensive

legal research. So we are unpersuaded that these same

mental disorders were an external impediment to

Thul’s ability to effect proper and timely service of

process. Thul’s case is therefore distinguishable from

Habib v. General Motors Corp., 15 F.3d 72 (6th Cir.

1994), where the pro se plaintiff’s “paralysis, severe

muscle spasms, a bladder infection and numerous trips

to the Cleveland Clinic for neurological and physical

2 Even if there were some dispute as to whether any of the

defendants actually had received a copy of the summons and com­

plaint, service was invalid because Thul served or tried to serve

the defendants himself, which is prohibited by Rule 4(c)(2). Cf

Constien v. United States, 628 F.3d 1207, 1215 (10th Cir. 2010)

(“[E]ven when service by mail is proper, it cannot be a party who

mails it.”).

App. 8

therapy kept him from properly serving defendant.” Id.

at 73. Otherwise, Thul’s misunderstanding of the gov­

erning rules did not constitute good cause. See Smith,

835 F. App’x at 115.

Although the district court did not abuse its dis­

cretion in concluding that Thul had not shown good

cause under Rule 4(m), it retains discretion to grant an

extension to effect service even if the plaintiff does not

show good cause. Oakland Physicians, 44 F.4th 568;

see also Savoie, 2022 WL 3643339, at *2. In deciding

whether to grant a discretionary extension of time, the

district court should consider:

(1) whether an extenstion.of time would be

well beyond the timely service of process; (2)

whether an extension of time would prejudice

the defendant other than the inherent preju­

dice in having to defend the suit; (3) whether

the defendant had actual notice of the lawsuit;

(4) whether the court’s refusal to extend time

for service substantially prejudices the plain­

tiff, i.e., would the plaintiff’s lawsuit be timebarred; (5) whether the plaintiff had made

any good faith efforts to effect proper service

of process or was diligent in correcting any

deficiencies; (6) whether the plaintiff is a pro

se litigant deserving of additional latitude

to correct defects in service of process; and

(7) whether any equitable factors exist that

might be relevant to the unique circumstances

of the case.

Oakland Physicians, 44 F.4th at 569.

App. 9

The district court did not have the benefit of our

decision in Oakland Physicians when it ruled and

therefore did not specifically consider by name and

number the seven factors that should be considered in

deciding whether to grant a discretionary extension of

time. But the district court did take due consideration

of those factors when, for example, it made allowance

for the fact that the appellant is pro se (factor 6), that

the extension would be well beyond the time for timely

service of process (factor 1), and that the appellant had

not made good faith efforts to effect proper service and

was not diligent in correcting deficiencies (factor 5).

Although Thul argues that his claims are not timebarred, he had plenty of opportunity to cure the origi­

nal service deficiencies but made no attempt to effect

service on the individual defendants.

For these reasons, remanding for rote considera­

tion of the numbered factors as set forth in Oakland

Physicians would not change the outcome, would be a

waste of resources, and is not required by a fair reading

of Oakland Physicians as binding precedent.

For these reasons, we AFFIRM the district court’s

judgment. We DENY all other pending motions as

moot.

ENTERED BY ORDER

OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

App. 10

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

JEFFRY THUL AND

SUSAN THUL,

Plaintiffs,

v.

)

) Case No. l:20-cv-354

) Judge

) Travis R. McDonough

) Magistrate Judge

DEB HAALAND, Secretary,

Department of Interior, et al., )) Christopher H. Steger

Defendants.

)

MEMORANDUM OPINION

(Filed Mar. 24, 2022)

Before the Court is the United States of America

and Secretary of the Department of the Interior Deb

Haaland’s (“the Secretary”) motion to dismiss. (Doc.

13.) For the following reasons, the motion will be

GRANTED.

I.

PROCEDURAL BACKGROUND

Plaintiff Jeffrey Thul filed this action pro se on De­

cember 23, 2020. (Doc. 1.) Pursuant to the Court’s or­

der governing motions to dismiss (Doc. 5), the parties

met and conferred about the possibility of Thul filing

an amended complaint. (Doc. 8.) Thul agreed to amend

certain matters in his complaint in lieu of the Secre­

tary filing a motion to dismiss as to certain claims and

App. 11

parties. (Id.) Thul filed an amended complaint prose on

March 19, 2021. (Doc. 11.) However, instead of remov­

ing claims and defendants as discussed between the

parties, the amended complaint added new legal theo­

ries, named twenty-nine different defendants, and

named his wife as an additional plaintiff. (Doc. 11).

These defendants include: (1) the United States of

America; (2) the Secretary;1 (3) Charlotte Burrows,

Chair, Equal Employment Opportunity Commission

(“EEOC”); (4) Paul Daniel Smith; (5) Rose Blanken­

ship; (6) three unknown EEOC employees;2 (7) Amy

Risley, owner of Resolution; (8) four or more unknown

Resolution employees; (9) Nhien Tony Nguyen; (10)

Ken Brodie; (11) Dave Davies; (12) John Esworthy;

(13) Robert Vogel; (14) Sara Craighead; (15) Stan Aus­

tin; (16) Ed Buskirk; (17) Lynda Glover; (18) Sherri

Fields; (19) Lance Hatten; (20) Buffy Bryant; (21) Greg

Robinson; (22) Brad Bennett; (23) Ronald Hayes, and

(24) Reggie Tiller.3 Because the amended complaint did

1 Thul’s amended complaint named Scott de la Vega as the

Acting Secretary of the Department of Interior. Secretary Haaland has been substituted as a party pursuant to Fed. R. Civ. P.

25(d).

2 On September 1, 2021, Thul stipulated to the dismissal of

the EEOC Defendants-Charlotte Burrows and all employees of

the EEOC. (Doc. 26.) Accordingly, they have already been dis­

missed and the claims against them will not be considered on this

motion to dismiss.

3 All defendants except for the United States and the Secre­

tary have been sued in their individual capacities. (Doc. 11, at 1,

8-25; Doc. 11-1, at 1-5.) Defendants Smith, Blankenship, Hayes,

Nguyen, Brodie, Davies, Esworthy, Vogel, Craighead, Austin,

Glover, Buskirk, Hatten, Fields, Bryant, Robinson, Bennett, and

App. 12

not resolve the deficiencies that the parties discussed

when they conferred, the United States ofAmerica and

the Secretary (collectively, “the Appeared Defendants”)

moved to dismiss Thul’s amended complaint for failure

to serve and failure to state a claim. (Doc. 13.) The mo­

tion is now ripe for the Court’s review.

II.

STANDARD OF LAW

Under the Federal Rules of Civil Procedure, the

procedure for service of process is as follows:

(1) In General. A summons must be served

with a copy of the complaint. The plaintiff is

responsible for having the summons and com

plaint served within the time allowed by Rule

4(m) and must furnish the necessary copies to

the person who makes service.

(2) By Whom. Any person who is at least 18

years old and not a party may serve a sum­

mons and complaint.

(3) By a Marshal or Someone Specially Ap­

pointed. At the plaintiff’s request, the court

may order that service be made by a United

States marshal or deputy marshal or by a per­

son specially appointed by the court. The

court must so order if the plaintiff is author­

ized to proceed in forma pauperis under 28

U.S.C. § 1915 or as a seaman under 28 U.S.C.

§ 1916.

Tiller have also been sued in their official capacities. (Doc. 11 at

11-25; Doc. 11-1, at 1-5.)

App. 13

Fed. R. Civ. R 4(c). The following methods may be used

to serve an individual within the United States:

Unless federal law provides otherwise, an in­

dividual - other than a minor, an incompetent

person, or a person whose waiver has been

filed - may be served in a judicial district of

the United States by:

(1) following state law for serving a

summons in an action brought in courts

of general jurisdiction in the state where

the district court is located or where ser­

vice is made; or

(2)

doing any of the following:

(A) delivering a copy of the sum­

mons and of the complaint to the in­

dividual personally;

(B) leaving a copy of each at the in­

dividual’s dwelling or usual place of

abode with someone of suitable age

and discretion who resides there; or

(C) delivering a copy of each to an

agent authorized by appointment or

by law to receive service of process.

Fed. R. Civ. P. 4(e).

Service of the United States or its agencies, corpo­

rations, officers, and employees, is governed by Fed. R.

Civ. P. 4(i). To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of

the complaint to the United States attorney

App. 14

for the district where the action is brought —

or to an assistant United States attorney or

clerical employee whom the United States at­

torney designates in a writing filed with the

court clerk - or

(ii) send a copy of each by registered or

certified mail to the civil-process clerk at

the United States attorney’s office;

(B) send a copy of each by registered or cer­

tified mail to the Attorney General of the

United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States,

send a copy of each by registered or certified

mail to the agency or officer.

Fed. R. Civ. P. 4(i)(l)(A)-(C). To serve an officer or em­

ployee of the United States sued in their official capac­

ity, “a party must serve the United States and also

send a copy of the summons and of the complaint by

registered or certified mail to the ... officer, or em­

ployee.” Fed. R. Civ. P. 4(i)(2). Similarly, “[t]o serve a

United States officer or employee sued in an individual

capacity ... a party must serve the United States and

also serve the officer or employee under Rule 4(e), (f),

or (g).” Fed. R. Civ. P. 4(i)(3).

The plaintiff has the burden of establishing that

proper service of process has occurred. Shires v. Magnavox Co., 74 F.R.D. 373, 377 (E.D. Tenn. 1977). Addi­

tionally, Federal Rule of Civil Procedure 4(1) provides

that, “[unless service is waived, proof of service must

be made to the court,” and “[e]xcept for service by a

App. 15

United States marshal or deputy marshal, proof must

be by the server’s affidavit.” Federal Rule of Civil Pro­

cedure 4(m) provides the timeline for service:

If a defendant is not served within 90 days af­

ter the complaint is filed, the court - on mo­

tion or on its own after notice to the plaintiff

- must dismiss the action without prejudice

against that defendant or order that service

he made within a specified time. But if the

plaintiff shows good cause for the failure, the

court must extend the time for service for an

appropriate period.

The Court notes that Thul is proceeding in this ac­

tion pro se. The Court is mindful that pro se pleadings

are liberally construed and are held to less stringent

standards than those prepared by attorneys. Bridge v.

Oewen Fed. Bank, 681 F.3d 355, 358 (6th Cir. 2012).

However, those who proceed without counsel must still

comply with the procedural rules that govern civil

cases. Lewis v. Hawkins, No. 3:16-CV-315-TAV-HBG,

2017 WL 4322825, at *4 (E.D. Term. Sept. 28,2017); see

also Durante v. Fairlane Town Ctr., 201 F. App’x 338,

344 (6th Cir. 2006); Whitson u. Union Boiler Co., 47 F.

App’x 757, 759 (6th Cir. 2002). The United States Su­

preme Court has “never suggested that procedural

rules in ordinary civil litigation should be interpreted

so as to excuse mistakes by those who proceed without

counsel.” McNeil v. United States, 508 U.S. 106, 113

(1993). Instead, the Supreme Court counsels that “strict

adherence to the procedural requirements specified by

App. 16

the legislature is the best guarantee of evenhanded ad­

ministration of the law.” Id.

III. ANALYSIS

The Appeared Defendants moved to dismiss the

amended complaint, in part, for insufficient service of

process under Federal Rule of Civil Procedure 12(b)(5).

(Doc. 14, at 8-10.) At the time the Appeared Defend­

ants filed their motion, there was no evidence in the

record to suggest that Thul had even attempted to

timely serve Paul Daniel Smith, Rose Blankenship,

Nhien Tony Nguyen, Ken Brodie, Dave Davies, John

Esworthy, Robert Vogel, Sara Craighead, Stan Austin,

Ed Buskirk, Lynda Glover, Sherri Fields, Lance Hatten, Buffy Bryant, Greg Robinson, Brad Bennett,

Ronald Hayes, or Reggie Tiller in either their individ­

ual or official capacities, Amy Risley, or the four or

more unknown Resolution employees in their indi­

vidual capacities. In fact, Thul has not filed sum­

monses for any Unserved Individual Defendants,4 and

a summons must be served with a copy of the com­

plaint under Fed. R. Civ. P. 4(c) to effectuate service. He

filed summonses for the Appeared Defendants but did

not specifically address them to any individual author­

ized to accept service on their behalf. (Doc. 7.) Pursuant

to Federal Rule of Civil Procedure 4(m), the Court

4 «

Unserved Individual Defendants” means all defendants

sued in their individual capacity in this action, regardless of

whether they were also served in their official capacity. The Un­

served Individual Defendants include all defendants except for

the United States and the Secretary.

App. 17

ordered Thul to file a response showing good cause as

to why the action should not have been dismissed with­

out prejudice for his failure to serve Defendants in a

timely manner. (Doc. 18.)

Thul responded to the show-cause order by stating

he believed he effectuated service on all the Unserved

Individual Defendants and the Secretary by emailing

DOICivilRights@ios.doi.gov on July 23, 2021. (Doc. 20,

at 2, 5-7.) As to the United States, Thul represented

that a summons and complaint were sent to the CivilProcess Clerk for the U.S. Attorney for the Eastern Dis­

trict of Tennessee, and an Assistant United States At­

torney acknowledged receipt. {Id. at 2.) The Appeared

Defendants then replied that sending an email to that

address is not a proper means of service and that Thul

would have to deliver a copy of the summons and the

complaint to each of the Unserved Individual Defend­

ants personally or pursue another method in compli­

ance with Federal Rule of Civil Procedure 4(i). (Doc.

21.)

Thul did not thereafter effectuate or attempt to ef­

fectuate service on the Unserved Individual Defend­

ants. {See generally Doc. 23.) Thul also did not submit

proof of service by the server’s affidavit for any defend­

ant, as required by Federal Rule of Civil Procedure

4(1)(1) and as ordered by the Court (Doc. 18, at 5-6).

He appears to fault the Department of the Interior

(“DOF) for this failure, stating, “the Agency will, at

some point, have to notify the Plaintiff who the Agency

has designated ‘as authorized by appointment or by

law to receive service of process’ so he can effectuate

App. 18

service on the Defendants.” (Doc. 23, at 7.) DOI, how­

ever, is not required under Rule 4 to notify Thul of any

authorized agents, and the plaintiff has the burden of

establishing that proper service of process has oc­

curred. Shires u. Magnavox Co., 74 F.R.D. 373, 377

(E.D.Tenn. 1977).

“[W]ithout proper service of process, consent,

waiver, or forfeiture, a court may not exercise personal

jurisdiction over a named defendant.” King v. Taylor,

694 F.3d 650, 655 (6th Cir. 2012). Despite notice that

his service was ineffective and unproven, a Court order

to show cause, further notice that his service was inef­

fective, and months to cure the deficiencies, Thul has

not served or proven service as to any defendant in this

case. Accordingly, the Appeared Defendants’ motion to

dismiss for failure to serve will be GRANTED (Doc.

13). Because Thul’s failure to serve the defendants

disposes of the case, the Court will not consider the re­

maining arguments in the Appeared Defendants’ mo­

tion to dismiss.

IV. CONCLUSION

For the foregoing reasons, the Appeared Defend­

ants’ motion to dismiss (Doc. 13) is GRANTED. Ac­

cordingly, pursuant to Federal Rules of Civil Procedure

4(m), Plaintiffs’ claims against all Defendants are

hereby DISMISSED WITHOUT PREJUDICE.

App. 19

AN APPROPRIATE JUDGMENT SHALL EN­

TER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES

DISTRICT JUDGE

App. 20

No. 22-5440

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEFFRY THUL,

Plaintiff-Appellant,

)

)

)

v.

)

DEBORAH HAALAND,

in her official capacity, et al.,

)

Defendants-Appellees.

)

ORDER

(Filed Mar. 23, 2023)

)

Before: BOGGS, GRIFFIN, and MATHIS, Circuit

Judges.

Jeffry Thul, a pro se Tennessee plaintiff, petitions

the court for a panel rehearing of our order of March 1,

2023, affirming the district court’s judgment dismiss­

ing his federal civil rights complaint without prejudice

under Federal Rule of Civil Procedure 4(m) for failure

to effect timely service of the summons and complaint

on the defendants. Thul moves the court for an expe­

dited decision on his petition and for leave to submit

updated medical evidence.

Upon consideration, we DENY the petition be­

cause Thul has not cited any misapprehension of law

or fact that would alter our prior decision. See Fed. R.

App. 21

App. P. 40(a)(2). We DENY all other pending motions

as moot.

ENTERED BY ORDER

OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

App. 22

[SEAL]

United States Department of the Interior

OFFICE OF THE SECRETARY

OFFICE OF DIVERSITY, INCLUSION

AND CIVIL RIGHTS

Washington, D.C. 20240

TRANSMITTAL VIA ELECTRONIC MAIL

JeffrvThul@gmail. com

Jeffry Thul

9509 Balata Drive

Ooltewah, Tennessee, 37363

Subject: Final Agency Decision

Jeffry Thul v. David Bernhardt, Secretary,

US. Department of the Interior

Agency Case No. DOI-NPS-20-0382

Dear Jeffry Thul:

After careful review and analysis of your Equal Em­

ployment Opportunity (EEO) complaint and the Re­

port of Investigation (ROI), the U.S. Department of the

Interior (DOI or Agency), Office of Diversity, Inclusion

and Civil Rights (ODICR) takes final action on your

complaint by issuing this Final Agency Decision

(FAD).

ODICR finds that you have not been subjected to dis­

parate treatment based on reprisal (Agency Case Nos.

DOI-NPS-18-0033, DOI-NPS-18-057 I) as alleged un­

der Title WI of the Civil Rights Act of 1964.

ODICR finds that you have been subjected to dispar­

ate treatment and denial of reasonable accommodation

App. 23

based only on disability (mental), in violation of the Re­

habilitation Act.

I.

Statement of the Claims

Whether Jeffry Thul (Complainant) has been subjected

to disparate treatment on the bases of disability (men­

tal) and reprisal (Agency Case Nos. DOI-NPS-18-0033,

DOI-NPS-18-0571) when on September 17, 2019,1 the

Assistant Regional Director, Administration (RM02)

issued to Complainant a non-disciplinary removal for

inability to perform the duties of his position.

II.

Procedural History

On September 23,2019, Complainant made initial con­

tact with the EEO Counselor. ROI, Ex. B, p. 65. On De­

cember 18, 2019, Complainant participated in an

initial interview with the EEO Counselor. ROI, Ex. B,

p. 65. The EEO Counselor sought to resolve Complain­

ant’s allegations to no avail. ROI, Ex. B, p. 70. On May

13, 2020, the EEO Counselor issued to Complainant a

Notice of Final Interview and a Notice of Right to File

a Formal Complaint of Discrimination (NORTF). ROI,

Ex. B, p. 80. On May 22, 2020, Complainant acknowl­

edged receipt of the NORTF via signature. ROI, Ex. B,

1 The Notice of Acceptance originally misidentifled the date

of Complainant’s removal as September 13, 2019. ROI, Ex. C-l,

p. 107. However, September 13, 2019, is the date that Complain­

ant received the Non-disciplinary Removal Decision for Inability

to Perform Duties of Your Position (“Removal Decision”), which

became effective on September 17, 2019. ROI, Ex. F-9, p. 218.

App. 24

p. 82. On May 22, 2020, Complainant filed this formal

complaint, pursuant to the Rehabilitation Act and

Title VII of the Civil Rights Act of 1964. ROI, Ex. A,

p. 16.

On June 3, 2020, the Agency acknowledged receipt of

Complainant’s formal complaint in a Notice of

Acknowledgement. ROI, Ex. C-l, p. 104. On June 5,

2020, the Agency accepted Complainant’s claims in a

Notice of Acceptance, pursuant to the Equal Employ­

ment Opportunity Commission’s (EEOC’s) Regula­

tions found in Title 29 Code of Federal Regulations

(29 C.F.R.), § 1614. ROI, Ex. C-l, p. 107.

On June 19, 2020, the Agency ordered a formal inves­

tigation, which was conducted through July 28, 2020.

ROI, Ex. G-3, p. 282.

On September 8, 2020, the Agency emailed Complain­

ant the ROI, which included the investigative sum­

mary and a notice of rights. The Agency notified

Complainant that there is no right to request a hearing

before the EEOC, as this case is a “Mixed Case com­

plaint” appealable to the Merit Systems Protection

Board (MSPB). This FAD thus issues in accordance

with 29 C.F.R. § 1614.302(d)(2).

III. Statement of the Facts

Whether Complainant has been subjected to disparate

treatment on the bases of disability (mental) and re­

prisal (Agency Case Nos, DOI-NPS-18-0033, DOINPS-18-0571) when:

App. 25

1. For the five years2 leading up until September

17, 2019, Complainant was a GS-1640-12 Supervisory

Facility Operations Specialist with the Chickamauga

and Chattanooga Military Park (“Park”) in Chatta­

nooga, Tennessee. ROI, Ex. F-l, p. 114.

2. In his role as Supervisory Facility Operations

Specialist, Complainant was responsible for making

and implementing decisions affecting the Park’s man­

agement, policy, and operations; complying with fed­

eral and state regulations, including building codes;

and managing a comprehensive safety and training

program. ROI, Ex. F-l, p. 115. The essential functions

of his position also included monitoring and evaluating

maintenance programs; performing and maintaining

asset inventories and condition assessments; develop­

ing and implementing projects, including facility mod­

ifications; and managing construction processes. ROI,

Ex. F-7, p. 206.

3. Complainant self-identified as being disabled

due to his Chronic Post-Traumatic Stress Disorder

(PTSD) and Unspecified Depressive Disorder (“depres­

sion”). ROI, Ex. F-l, p. 116. Complainant’s psychologi­

cal impairments included: reduced object recall, a

short attention span, limited concentration, decreased

focus on tasks, psychomotor retardation, hyperdistractability and hyperactivity, avoidance, hyperarousal, de­

pressed mood, moderate anxiety, and passive suicidal

ideation, ROI, Ex. F-l, p. 117. Complainant’s physical

2 The ROI does not contain Complainant’s exact start date

for his position of record.

App. 26

impairments included: symptoms of tiredness, de­

creased energy, occasional crying spells, and signifi­

cant weight loss of 30 pounds in four months. HOI, Ex.

F-l, p. 117.

4. Complainant’s prior EEO activity included

Agency Case Nos. DOI-NPS-18-0033 (formal com­

plaint filed December 11,2017), and DOI-NPS-18-0571

(formal complaint filed October 18, 2018), as well as

his reasonable accommodation requests related to his

PTSD and depression. ROI, Ex. F-l, p. 118.

5. At all times relevant to this complaint, Com­

plainant’s first-level supervisor was the GS-14 Super­

intendent (RMOl) at the Park. ROI, Ex. F-l, p. 116.

RMOl learned of Complainant’s medical conditions in

August3 of 2017, when Complainant’ provided Park

management with medical documentation of his diag­

nosis. ROI, Ex. F-3, p. 164. RMOl learned of Complain­

ant’s prior EEO activity when he was interviewed as a

witness and RMO for Complainant’s previous EEO

complaints in October of 2017, February of 2018, and

April of 2019. ROI, Ex. F-3, p. 166.

6. The deciding official on Complainant’s re­

moval was the Associate Regional Director, Admin­

istration (RM02), in Atlanta, Georgia. ROI, Ex. F-2, p.

144. RM02 claimed that he learned of Complainant’s

medical conditions in spring of 2019. ROI, Ex. F-2, pp.

3 There is evidence that Complainant provided the Agency

with medical documentation related to his diagnoses in July of

2017, but it is unclear when RMOl received that documentation.

ROI, Ex. G-4, pp. 305-306; Ex. F-3, p. 167; Ex. F-9, p. 219.

App. 27

145-146. Although RM02 was not in Complainant’s

chain of command, his supervisor was RM03, Com­

plainant’s third-level supervisor. ROI, Ex. F-2, p. 145.

In his prior formal EEO complaints, Complainant had

accused RM02 of committing misconduct, mismanage­

ment, and unethical behavior. ROI, Ex. F-l, p. 123.

RM02 stated that he learned of Complainant’s prior

EEO activity in spring of 2019, when he was inter­

viewed as a witness regarding a separate denial of rea­

sonable accommodation claim. ROI, Ex. F-2, p. 147.

7. On January 26, 2017, Complainant was the

first responder in a January 2017 active shooting

where a visitor committed suicide in the men’s re­

stroom at the Park. ROI, Ex. F-l, p. 116; Ex. G-4, p. 305.

Complainant submitted extensive medical documenta­

tion stating that the January 2017 active shooting in­

cident directly caused his PTSD and depression,

although he did not receive official diagnoses until July

2017. ROI, Ex. F-l, p. 116; Ex, F-10, p, 236.

8. Complainant stated that on July 21, 2017, he

“left the Park in extreme psychological distress” after

experiencing a PTSD-related breakdown. ROI, Ex. G4, p. 305. The next business day, July 24, 2017, was

the last day that Complainant worked in an on-duty

status. ROI, Ex, F-9, p. 219; Ex. G-4, p. 305.

9. On July 25, 2017, Complainant received an of­

ficial diagnosis of PTSD and depression, and provided

the Agency with that documentation. ROI, Ex. G-4, pp.

305-306; Ex. F-3, p. 167. On August 7, 2017, Complain­

ant submitted a Family and Medical Leave Act

App. 28

(FMLA) request to the Agency requesting short-term

disability leave from July 25, 2017 through September

15, 2017. ROI, Ex. G-4, p. 306. On November 16, 2017,

Complainant also provided the Agency with documen­

tation for his Department of Labor Office of Worker

Compensation Programs (OWCP) claim for PTSD.

ROI, Ex. G-4, p. 309.

10. Complainant submitted additional FMLA

documentation requesting extensions to his short-term

disability leave on: September 11, 2017; October 13,

2017; December 8, 2017; January 25, 2018; March 14,

2018; April 4, 2018; and April 13, 2018. ROI, Ex, G-4,

pp. 307-314.

11. During this time, Park management filled

Complainant’s position on a temporary basis. ROI, Ex.

F-3, p. 166.

12. In May of 2018,4 Complainant provided the

Agency with updated medical documentation affirm­

ing his continued medical inability to return to his

position at the Park and requesting reassignment to a

different position as a reasonable accommodation.

4 Although there is evidence that on November 8, 2017, and

April 16, 2018, Complainant received medical evaluations recom­

mending his transfer to work at a different park for four hours a

day, there is no indication that he provided this documentation to

the Agency before May of 2018. ROI, Ex. F-10, p. 235. There is

also evidence of a conflicting January 25, 2018 medical evaluation

advising Complainant not to return to work. ROI, Ex. F-10, p.

235.

App. 29

ROI, Ex. F-10, p. 229; Ex. F-3, p. 167. RMO I recalled

receiving this request. ROI, Ex. F-3, p. 167.

13. The ROI for Complainant’s previous EEO

complaint, Agency Case No. DOI-NPS-18-0571 (PROI)

contained a May II, 2018 Medical Documentation Em­

ployee Questionnaire for Reassignment from Com­

plainant, PROI, Ex. F-10, p. 525-527. According to the

Questionnaire, Complainant sought to be reassigned

into an equivalent position at another park within the

local commuting area of his home in Chattanooga, Ten­

nessee. PROI, Ex. F-10, p. 525-527; ROI, Ex. F-10, p.

229; Ex, F-3, p. 167; Ex. G-4, p, 314.

14. At RMOl’s direction, an Employee Relations

Specialist received Complainant’s Questionnaire and

forwarded it and Complainant’s reassignment request

to NPS’s Human Resources (HR) Staffing Office as­

signed to the Park. PROI, Ex. F-4, pp. 440-441. There

is no information in the ROI regarding how or if NPS’s

HR Staffing Office responded to Complainant’s May

2018 request for reassignment. However, Agency rec­

ords indicate that NPS’s HR Staffing Office may have

been under the impression that in August of 2018,

OWCP had notified Complainant that he needed to

provide additional information to support his reassign­

ment request. PROI, Ex. F-6, p. 450. Complainant

provided additional information in support of his reas­

signment request in September of 2018 and in Decem­

ber of 2018, PROI, Ex. F-6, p. 450.

15. On January 29, 2019, Complainant provided

the Agency with a December 17, 2018 evaluation from

App. 30

an OWCP doctor which confirmed that Complainant

continued to experience symptoms of PTSD and de­

pression. ROI, Ex. F-10, pp. 236-241. The OWCP doctor

noted that Complainant is unable to drive to the park

where the shooting took place,” and that Complainant

“attempted to go to the park, [but] he was unable to

enter the park due to excessive anxiety and thoughts

of past trauma, and had symptoms of increased scary

thoughts.” ROI, Ex. F-10, pp. 237, 240. Based on this,

the OWCP doctor concluded that Complainant “is not

able to perform the date of injury job.” ROI, Ex. F-10,

p. 240.

16. However, the OWCP doctor also observed

that Complainant was ‘Very eager to go back to work

for any National Park Service,” and that Complainant

“may benefit from working in a different park to heal

him from the past trauma.” ROI, Ex. F-10, p. 240. Com­

plainant also informed the Agency that he could work

up to four hours per day, or 20 hours per week, at an­

other location. ROI, Ex. F-3, p. 167; Ex. F-10, p. 229.

17. On February 12, 2019, NPS Human Re­

sources (HR) initiated a reassignment job search as a

reasonable accommodation for Complainant. ROI, Ex.

F-9, pp. 225, 227; Ex. F-10, p. 230. Complainant alleg­

edly informed the Agency that he would not accept a

reassignment position outside of his local commuting

area of Fort Oglethorpe, Georgia. ROI, Ex. F-9, p. 227;

Ex. F-10, p. 230. As there are no NPS sites other than

the Park jvithin the local commuting area, NPS ex­

panded the reassignment job search to other DOI bu­

reaus. ROI, Ex. F-9, p. 227. Based on Complainant’s

App. 31

resume and position description, the Agency deter­

mined that Complainant would be qualified for posi­

tions in the facilities, maintenance, administrative,

and acquisition series. ROI, Ex. F-9, p. 227.

18. On March 18, 2019, an NPS RR Assistant in­

formed the Agency that HR had “received 2 negative

responses from [DOI] bureaus and have not heard back

from any others” regarding Complainant’s reassign­

ment job search. ROI, Ex. F-9, p. 226.

19. There is no information in the ROI regarding

the methodology that NPS HR and the other DOI bu­

reaus used to conduct Complainant’s reassignment job

search, which DOI bureaus provided negative re­

sponses, and whether and how the remaining DOI bu­

reaus responded to NPS HR’s inquiry regarding

Complainant’s reassignment job search.

20. On April 1, 2019, the NPS OWCP Coordina­

tor concluded that NPS’s reassignment job search had

been unsuccessful. ROI, Ex. F-9, p. 225; Ex. F-3, p. 1671.68. The NPS OWCP Coordinator stated that there

were no available positions meeting Complainant’s

work restrictions at other locations within NPS and

other DOI bureaus. ROI, Ex. F-9, p. 225. Additionally,

there were no telework-eligible positions available in

the Park. ROI, Ex. F-9, p. 225. There is no information

in the ROI regarding whether Complainant’s reassign­

ment job search included telework-eligible positions at

other Parks, other NPS locations, or other DOI bu­

reaus.

App. 32

21. RM02 stated that upon receiving the notifi­

cation that the reassignment job search had been un­

successful, Complainant did not vary the criteria for

the reassignment job search. ROI, Ex. F-2, p. 148.

There is no information in the ROI regarding whether

the Agency had any available positions outside of Com­

plainant’s criteria that would have otherwise been

suitable for reassignment; whether the Agency ever of­

fered Complainant reassignment into such positions;

or whether the Agency ever informed Complainant

that his failure to vary the criteria for the reassign­

ment job search could result in his removal.

22. On June 5, 2019, RMOl issued to Complain­

ant a Proposed Non-disciplinary Removal for Inability

to Perform Duties of Your Position (“Proposed Re­

moval”). ROI, Ex. F-10, p. 229. In the Proposed Re­

moval, RMOl stated his belief that removing

Complainant would “promote the efficiency of the

service.” ROI, Ex. F-10, pp. 229-234. In the Proposed

Removal, RMOl applied the Douglas5 factors to Com­

plainant’s situation, despite repeatedly noting that the

Proposed Removal was non-disciplinary in nature, and

that no offense had been charged. ROI, Ex. F-10, pp.

229-234. In the Proposed Removal, RMOl also stated

that “[Complainant’s] inability to return to the park

due to [his] medical condition has affected my

5 In Douglas v. Veterans Administration, 5 M.S.P.R. 280

(1981), the MSPB established a non-inclusive list of criteria that

supervisors must consider in determining an appropriate penalty

to impose for an act of employee misconduct.

App. 33

confidence in [his] inability to perform any of the es­

sential duties of [his] position.” ROI, Ex. F-10, p. 231.

23. RMOl stated that by the time he proposed

the removal on June 5, 2019, Complainant had been

out of the Park for more than two years due to his med­

ical conditions. ROI, Ex. F-3, p. 166; Ex. F-9, p. 219; Ex.

G-4, pp. 305-314. Park management had been filling

his position on a temporary basis in that time. ROI, Ex.

F-3, p. 166. RMOl stated that the position required

“someone to be physically present in the Park for at

least 40 hours a week, sometimes more to supervise

employees in the Facilities and Maintenance Division,

manage a division budget of over [$1 million], interact

with other Park Division Chiefs, and occasionally [per­

form the duties of] Acting Superintendent.” ROI, Ex.

F-3, pp. 166-167; Ex. F-10, p. 230. RMOl further stated

that the position required varying contact with Park

visitors and partners, the news media, and other mem­

bers of the public. ROI, Ex. F-3, p. 167; Ex. F-10, p. 230.

Based on this, RMOl proposed Complainant’s removal

due to his inability to perform the essential functions

of the position, so that the NPS could fill the role on a

permanent basis. ROI, Ex. F-3, p. 167.

24. The Proposed Removal did not include any

information regarding whether the Agency had consid­

ered alternative reasonable accommodations which

would have allowed Complainant to perform the essen­

tial functions of his position. ROI, Ex. F-10, pp. 229234. Nor did the Proposed Removal contain any analy­

sis regarding whether any of the requested or

App. 34

considered accommodations would have posed an un­

due hardship to the Agency. ROI, Ex. F-10, pp. 229-234.

25. On June 21, 2019, Complainant notified

RM03, who was both his third-line supervisor and

RMOl’s first-line supervisor, that he felt that RMOl

and RM02 were harassing him.6 ROI, Ex. A, p. 54; Ex.

F-1A, p. 123; Ex. F-2, pp. 158-159. The ROI does not

contain a response from RM03.

26. On July 8,2019, Complainant emailed RM02

to ask for an extension on his deadline to respond to

the Proposed Removal. ROI, Ex. F-2, p. 157. On July 8,

2019, RM02 extended Complainant’s response dead­

line to July 23, 2019. ROI, Ex. F-2, p. 157. On July 23,

2019, Complainant emailed RM02 his rebuttal to the

Proposed Removal.7 ROI, Ex. F-l, p. 121.

27. On August 2, 2019, Complainant requested

to return to duty. ROI, Ex. A, p. 58. On August 9, 2019,

the NPS OWCP Coordinator determined that Com­

plainant could not return to duty. ROI, Ex, A, p. 58. The

ROI does not contain either Complainant’s request to

return to duty, or the NPS OWCP Coordinator’s deter­

mination that Complainant could not return to duty.

28. On September 13, 2019, RM02 issued to

Complainant a Non-disciplinary Removal Decision for

6 As this is a mixed case complaint concerning only Com­

plainant’s removal, this FAD will not address any other allega­

tions of disparate treatment and/or harassment raised by

Complainant.

7 The ROI does not include Complainant’s rebuttal to the

Proposed Removal.

App. 35

Inability to Perform Duties of Your Position (“Removal

Decision”). ROI, Ex. F-9, p. 218. The Removal Decision

sustained RMOl’s reasoning in the Proposed Removal.

ROI, Ex. F-9, p. 218. The Removal Decision also noted

that Complainant “did not respond nor reply to the

substance of the proposed removal,” and that Com­

plainant did not “speak directly to the basis for the pro­

posed removal, the factors that were considered,

[Complainant’s] health, or willingness to change [his]

search criteria.” ROI, Ex, F-9, p. 218.

29. When asked if Complainant’s disability lim­

ited his ability to carry out the essential functions of

his position, RM02 responded: “no, it didn’t have a per­

manent impact on his ability to do work,” citing Com­

plainant’s request for NPS to carry out a job search for

a similar position. ROI, Ex. F-2, p. 147.

30. Like the Proposed Removal, the final Re­

moval Decision did not include any information re­

garding whether the Agency had considered

alternative reasonable accommodations which would

have allowed Complainant to perform the essential

functions of his position, or whether any of the re­

quested or considered accommodations would have

posed an undue hardship to the Agency. ROI, Ex, F-9,

pp. 218-224.

31. On September 17, 2019, Complainant’s re­

moval became effective. ROI, Ex. F-8, p. 217; Ex, F-9,

pp. 218-224.

App. 36

IV.

Legal Analysis

LEGAL AUTHORITY

Disparate treatment based on disability (mental) and

reprisal (Agency Case Nos. DOI-NPS-18-0033, DOINPS-18-0571) is prohibited by the Rehabilitation Act

and Title VII of the Civil Rights Act of 1964. Federal

sector EEO regulations are set out in 29 C.F.R. § 1614.

Disparate Treatment

Where, as here, there is no direct evidence of discrimi­

nation, a claim of disparate treatment on the basis of

reprisal is examined under the three-part analysis

originally enunciated in McDonnell Douglas Corp. v.

Green. 411 U.S. 792 (1973). A complainant must first

establish a prima facie case of discrimination by pre­

senting facts that, if unexplained, reasonably give rise

to an inference of discrimination, i.e., that a prohibited

reason was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construc­

tion Corp. v. Waters, 438 U.S. 567 (1978).

The agency must then articulate a legitimate, nondiscriminatory reason for its action(s). Texas Dept of Com­

munity Affairs v. Burdine, 450 U.S. 248 (1981). After

the agency has offered the reason for its action, the

burden of production returns to the complainant to

prove, by a preponderance of the evidence, that the

agency’s reason was pretextual, that is, it was not the

true reason or the action was influenced by legally im­

permissible criteria. Burdine, 450 U.S. at 253; St.

Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

App. 37

“Pretext means more than a mistake on the part of the

employer; [pretext] ‘means a lie, specifically a phony

reason for some action.’ ” Wolf u. Buss (America) Inc.,

77 F. 3d 914, 919 (7th Cir. 1996). At all times, the com­

plainant bears the ultimate responsibility to persuade

the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason.

Id. It is not sufficient “to disbelieve the employer; the

fact finder must believe the plaintiff’s explanation of

intentional discrimination.” St. Mary's Honor Center,

509 U.S. at 519 (emphasis in original).

Qualified Individual with a Disability

The Rehabilitation Act prohibits employment discrim­

ination against otherwise qualified federal employees

on the basis of a disability. 29 U.S.C. § 794(a). The

standards for determining a violation of the Rehabili­

tation Act, as amended, are the same as those for a vi­

olation of the Americans with Disabilities Act (ADA).

29 U.S.C. § 794(d); 29 C.F.R. § 1614.203(b); see also 42

U.S.C. § 12101, et seq8 The Rehabilitation Act “consti­

tutes the exclusive remedy for a federal employee

8 In September 2008, Congress amended the Americans

with Disabilities Act (ADA) by enacting the Americans with Dis­

abilities Act Amendments Act of 2008 (ADAAA), effective as of

January 1, 2009, “to restore the intent and protections of the

Americans with Disabilities Act of 1990.” Pub. L. No. 110-325,122

Stat. 3553 (2008). The ADAAA was the legislative response to a

series of Supreme Court cases that had narrowed the class of in­

dividuals protected by the ADA. Thus, among other things, the

ADAAA expanded the class of individuals to be protected by

providing a more expansive definition of “disability.”

App. 38

alleging disability-based discrimination.” Jones v.

Potter, 488 F.3d 397, 403 (6th Cir. 2007).

As a threshold matter, a complainant must establish

that he is an individual with a disability. An individual

with a disability is one who: (1) has a physical or men­

tal impairment that substantially limits a major life

activity; (2) has a record of such an impairment; or (3)

is regarded as having such an impairment. 29 C.F.R.

§ 1630.2(g)(1).

Next, a complainant must show that he is “qualified”

with regard to the requisite skill, experience, educa­

tion, and other job-related requirements of the position

at issue. 29 C.F.R. § 1630.2(m). In order to be consid­

ered “qualified,” a complainant must also show that he

can perform the essential functions of the position at

issue. “Essential functions” are the fundamental job

duties of a position, which are distinct from the meth­

ods employees may use to perform those functions. 29

C.F.R. § 1630.2(n)(2). For example, time and attend­

ance are considered the methods by which an employee

accomplishes the duties of a position, and thus are

not considered essential functions of a position. See

Gilberto S. v. Dept of Homeland Security, EEOCAppeal No. 03201 10053 (July 10, 2014).

Failure to Accommodate

When an employee demonstrates that he is a qualified

individual with a disability, an agency is required to

provide reasonable accommodations necessary to per­

form the essential functions of that employee’s

App. 39

position. 29 C.F.R. § 1630.2(o)(4). In addressing reason­

able accommodations, the parties should engage in an

informal and flexible interactive process to identify the

precise limitations of the individual and what accom­

modations could overcome those limitations. 29 C.F.R.

§ 1630.2(o)(3). Agencies retain the discretion to provide

any accommodations which would be effective. Good­

man v. U.S. Postal Serv., EEOC Appeal No. 0120044371

(May 2, 2007).

If a disability and/or the need for an accommodation is

not obvious, an employer may ask an individual who

requests an accommodation for reasonable documen­

tation about his disability and functional limitations.

EEOC Enforcement Guidance on Reasonable Accom­

modation and Undue Hardship Under the Americans

with Disabilities Act, EEOC No. 915.002 (“RA Enforce­

ment Guidance”), Question 6 (2002). An agency may

request additional information in order to evaluate a

complainant’s proposed accommodation in comparison

to his or her current medical needs, in order to deter­

mine what accommodation would best serve the needs

of the agency and the complainant. Carlton T. v. Dep’t

of the Navy, EEOC Appeal No. 0120151566 (Feb. 7,

2018).

Agencies are not required to provide reasonable accom­

modations which would create an undue hardship. 29

C.F.R. § 1630.2(o)(4). An undue hardship is a signifi­

cant difficulty or expense incurred by the provision of

an accommodation. 29 C.F.R. § 1630.2(p)(l). Factors to

consider in assessing undue hardship include the over­

all size of the agency’s program with respect to number

App. 40

of employees; the type and number of facilities; size of

the budget; the type of agency operation, composition,

and structure of the agency’s workforce; and the na­

ture and cost of the accommodation. 29 C.F.R.

§ 1630.2(p)(2).

DISCUSSION

The Notice of Acceptance originally identified the ac­

cepted claim regarding Complainant’s removal as a

claim of disparate treatment based on disability and

reprisal. ROI, Ex. C-l, p. 107. Because the Agency’s

stated reasoning for Complainant’s termination relies,

in part, on the undisputed fact that the Complainant’s

medical conditions prevent him from returning to the

Park, this FAD will also analyze whether the Com­

plainant’s removal constituted a denial of a reasonable

accommodation. See e.g. Harvey G. v. Dep’t of the Inte­

rior, EEOC Appeal No. 0120132052 (Feb. 4, 2016) (re­

stating agency’s formulation of claims, in part, as

"whether Complainant established that he was denied

reasonable accommodation for his disability when he

was not allowed to telework, and was subsequently

terminated from employment with the Agency”). This

FAD will then analyze the issue of whether Complain­

ant was subjected to disparate treatment on the basis

of reprisal with regard to his removal.

App. 41

Failure to Accommodate

Factual Deficiencies in Investigative Record

Although the ROI contains sufficient information to

adjudicate the ultimate issue in this case, the ROI also

contains relevant factual deficiencies regarding the

Agency’s response to Complainant’s initial reassign­

ment request, as well as its reassignment job search.

Agencies have a legal obligation under 29 C.F.R.

§ 1614.108(b) to conduct an adequate investigation

into formal EEO complaints. An adequate investiga­

tion is one which is developed impartially, and which

contains an appropriate factual record that would al­

low a reasonable fact finder to draw conclusions as to

whether discrimination occurred. EEO MD-110, 6(1);

29 C.F.R. § 1614.108(b). If the Agency fails to conduct

an adequate investigation, the decisionmaker may

draw an adverse factual inference against the Agency

or consider the pertinent matters to be established in

the Complainant’s favor. See 29 C.F.R. § 1614.108(c)(3).

Factual deficiencies are noted in the Statement of

Facts, supra, as well as in the following analysis. To the

extent that the factual deficiencies arise from inade­

quate documentation by the Agency, all inferences will

be drawn in Complainant’s favor. See Macready v. Dep’t

of Justice, EEOC Appeal No. 01990453 (Apr. 4, 2002)

(“when a party fails to produce relevant evidence

within its control, the failure to produce such evidence

raises an inference that the evidence, if produced,

would prove unfavorable to that party”).

App. 42

Individual with a Disability

It is undisputed that Complainant is an individual

with a disability. Complainant’s diagnoses of PTSD

and depression are among those listed in the EEOC’s

regulations as impairments which “virtually always be

found to impose a substantial limitation on a major life

activity.” 29 C.F.R. § 1630.2(j)(3)(iii).

Qualified for the Position

Despite medical limitations which prevented him from

performing certain essential functions of his original

Supervisory Facility Operations Specialist position,

Complainant was “qualified” within the meaning of the

Rehabilitation Act.

After his PTSD-related breakdown at the Park in July

of 2017, Complainant repeatedly submitted medical

documentation stating that he could no longer perform

the essential functions of his original Supervisory

Facility Operations Specialist position. ROI, Ex. F-10,

p. 229; Ex. F-3, p. 167; Ex. G-4, pp. 305-314. Complain­

ant’s PTSD made him “unable to drive to the park

where the shooting took place.” ROI, Ex. F-10, pp. 237,

240. Although physical presence at a worksite is not

itself an essential function, it can be a necessary con­

dition to perform certain essential functions. Gilberto

S. v. Dep’t of Homeland Security, EEOC Appeal No.

0320110053 (July 10, 2014) (“Performing certain job

functions sometimes requires a person’s presence at

the worksite”). Some essential functions of Complain­

ant’s position required his physical presence at the

App. 43

Park, including: supervising employees in the Facili­

ties and Maintenance Division; performing the duties

of Acting Superintendent; monitoring and evaluating

maintenance programs; performing and maintaining

asset inventories and condition assessments; develop­

ing and implementing projects, including facility mod­

ifications; and managing construction processes. ROI,

Ex. F-3, pp. 166-167; Ex. F-7, p. 206.

However, Complainant was still “qualified” to perform

other positions which he could have been reassigned

into as a reasonable accommodation. The analysis of

whether a complainant was “qualified” also extends to

whether the complainant was qualified for positions

that he could have held as a result of reassignment.

Mirla Z. v. Dep’t of Homeland Sec., EEOC Appeal No.

0120170095 (Apr. 6,2018) (“in determining whether an

employee is “qualified,” an agency must look beyond

the position which the employee presently encum­

bers”). Complainant provided medical documentation

that he could work up to four hours per day, or 20 hours

per week, at another location, and included documen­

tation of an OWCP doctor’s observation that he might

even “benefit from working in a different park to heal

him from the past trauma.” ROI, Ex. F-3, p. 167; Ex. F10, pp. 229, 240. Upon reviewing his resume and posi­

tion description, the Agency determined that Com­

plainant would be qualified for positions in the

facilities, maintenance, administrative, and acquisi­

tion series. ROI, Ex. F-9, p. 227. RM02, the deciding

official on Complainant’s Removal Decision, also

stated his opinion that Complainant’s medical

App. 44

conditions “didn’t have a permanent impact on his

ability to do work.” ROI, Ex. F-2, p. 147.

Therefore, Complainant was a “qualified” individual

with a disability in accordance with the Rehabilitation

Act. Agencies have an affirmative obligation to provide

qualified employees with disabilities, such as Com­

plainant, with reasonable accommodations necessary

to perform the essential functions of their position. 29

C.F.R. § 1630.2(o)(4).

Indefinite Leave Not a Reasonable Accommodation

The Agency was not obligated to indefinitely extend

Complainant’s leave as a reasonable accommodation.

“Although leave is permitted as an accommodation,

[leave without pay] for an indefinite period of time with

no indication that one will or could return is not an

accommodation contemplated under the Rehabilita­

tion Act.” Valente v. US. Postal Seru., EEOC Appeal

No. 01A34243 (Nov. 24, 2004). Here, Complainant sub­

mitted multiple FMLA requests for short-term disabil­

ity leave from July 25, 2017 through his termination

on September 17, 2019. ROI, Ex. G-4, pp. 306-314.

While some of these requests provided theoretical end

dates for Complainant’s leave, the record reveals that

Complainant never returned to work at any point in

the two years prior to his termination. ROI, Ex. G-4,

pp. 306-314; Ex. F-3, p. 166; Ex. F-9, p. 219. Despite

Complainant’s contentions that he only needed leave

temporarily, there was no indication that Complainant

could or would return to his prior position.

App. 45

Complainant’s continued inability to provide and ad­

here to an estimated return date, his repeated requests

for additional leave, and his ultimate request for reas­

signment, when taken as a whole, constituted a re­

quest for indefinite leave. The Agency thus had no

obligation to allow Complainant to retain his position

of record on indefinite leave as a reasonable accommo­

dation.

Reassignment as a Reasonable Accommodation

When no reasonable accommodations could allow an

employee to perform the essential functions of their po­

sition, the agency’s affirmative obligation extends to

reassigning employees to other open positions for

which they are qualified. 29 C.F.R. § 1630.2(o)(2)(ii).

Although reassignment is typically considered to be

the reasonable accommodation of last resort, where, as

here, “both the agency and the employee voluntarily

agree that reassignment is preferable to remaining in

the current position with some form of accommodation

. . . the agency may transfer the employee.” Reina D. v.

Soc. Sec. Admin., EEOC Appeal No. 0120150410 (Nov.

29, 2017). Both the Agency and Complainant agreed

that Complainant’s reassignment would be preferable

to attempting to accommodate Complainant in his

original position. ROI, Ex. F-9, p. 225; Ex. F-10, p. 229;

Ex. F-3, p. 167; Ex. G-4, p. 314.

App. 46

Delay of Reassignment Job Search

However, the Agency unnecessarily delayed its efforts

to reasonably accommodate Complainant via reassign­

ment. When an individual with a disability requests a

reasonable accommodation, the agency should respond

and/or begin the interactive process as quickly as pos­

sible, because unnecessary delays in responding to re­

quests or providing accommodations can result in a

violation of the Rehabilitation Act. See e.g. Ruben T. v.

Dep’t of Justice, EEOC Appeal No. 0120171405 (Mar.

22, 2019). In determining whether there has been an

unnecessary delay in responding to a request for rea­

sonable accommodation, relevant factors would in­

clude: (1) the reason(s) for the delay, (2) the length of

the delay, (3) how much the individual with a disability

and the employer each contributed to the delay, (4)

what the employer was doing during the delay, and (5)

whether the required accommodation was simple or

complex to provide. Id.

Regarding the first factor, the record contains no expla­

nation for why the Agency waited approximately nine

months after Complainant’s May 2018 request for re­

assignment to initiate its job search. ROI, Ex. F-10, p.

229; Ex. F-3, p. 167. Although NPS’s HR Staffing Office

may have been under the impression that in August of

2018, OWCP had notified Complainant that he needed

to provide additional information to support his reas­

signment request, the OWCP process is conducted

through the Department of Labor, and is distinct from

the reassignment job search process. PROI, Ex. F-6,

p. 450. This would not explain the delay.

App. 47

Regarding the second factor, it is undisputed that the

Agency waited approximately nine months after Com­

plainant’s request for reassignment to initiate its job

search, ROI, Ex, F-10, p. 229; Ex. F-3, p. 167. The EEOC

has found even shorter agency delays to have violated

the Rehabilitation Act. See Chara S. v. Dep’t of Veterans

Affairs, EEOC Appeal No. 2019001100 (July 16, 2020)

(finding that the agency violated the Rehabilitation

Act “when it delayed approval of Complainant’s parttime telework request by approximately four months”).

Complainant provided medical documentation in sup­

port of his request for reassignment in May of 2018,

and the Agency did not initiate the reassignment job

search until February 12, 2019. ROI, Ex. F-10, pp. 229,

230; Ex. F-9, pp. 219, 225, 227.

Regarding the third factor, there is no evidence that

the delay occurred on Complainant’s part, Both

RMOl’s Proposed Removal and RM02’s Removal De­

cision noted that in May of 2018, Complainant submit­

ted medical documentation stating that he could no

longer work at the Park and requesting reassignment

to another park. ROI, Ex. F-10, p. 229; Ex. F-9, p. 219.

The timeline of events set forth by both the Proposed

Removal and the Removal Decision does not suggest

that the Agency found this documentation inadequate

to support Complainant’s request, or that the Agency

needed any additional documentation from Complain­

ant in order to begin the interactive process. ROI, Ex.

F-10, p. 229; Ex. F-9, p. 219. Nor is there any such

contention in either RMOl’s or RM02’s affidavits.

ROI, Ex. F-2, pp. 143-152; Ex. F-3, pp. 161-170.

App. 48

Additionally, even assuming that Complainant’s May

2018 reassignment request had not contained suffi­

cient information, Complainant provided the re­

quested information in support of his reassignment

request in September of 2018 and in December of 2018,

well before the Agency finally initiated the reassign­

ment job search on February 12, 2019. PROI, Ex. F-6,

p. 450.

Regarding the fourth factor, there is no evidence that

the Agency took any actions at all on Complainant’s

reassignment request - much less engaged in the in­

teractive process - until February 12, 2019. ROI, Ex,

F-10, p. 229; Ex. F-9, p. 219.

Regarding the fifth factor, there is substantial evidence

that the requested reassignment was complex to pro­

vide. Complainant allegedly informed the Agency that

he would not accept a reassignment position outside of

his local commuting area of Fort Oglethorpe, Georgia.

ROI, Ex. F-9, p. 227; Ex. F-10, p. 230. As there are no

NPS sites other than the Park within the local com­

muting area, NPS had to expand the reassignment job

search to other DOI bureaus, which required each DOI

bureau to conduct a separate search. ROI, Ex. F-9, p.

227. However, the complexity of providing reassign­

ment does not explain the Agency’s delay in starting

the reassignment job search.

Taken as a whole, these five factors establish that the

Agency unduly delayed the reasonable accommodation

process when it waited nine months to even begin the

reassignment job search for Complainant.

App. 49

Delay of Reassignment Job Search Resulted in Fail­

ure to Reasonably Accommodate

Although Complainant has established that the

Agency delayed in providing him with reasonable ac­

commodations, “the allegation that the Agency failed

to properly engage in the interactive process, does not,

by itself, demand a finding that Complainant was de­

nied a reasonable accommodation. Rather, to establish

a denial of a reasonable accommodation, Complainant

must establish that the failure to engage in the inter­

active process resulted in the Agency’s failure to pro­

vide a reasonable accommodation.” Mandy B. v. Dep’t

of Veterans Aff, EEOC Appeal No. 0120170313 (Mar.

26, 2019) (emphasis added).

In reassignment cases, Complainant typically has the

evidentiary burden of establishing by a preponderance

of the evidence that “there were vacancies during the

relevant time period into which [] he could have been

reassigned. Complainant can establish this by produc­

ing evidence of particular vacancies. However, this is

not the only way of meeting Complainant’s eviden­

tiary burden. In the alternative, Complainant could

show that: (1) [] he was qualified to perform a job or

jobs which existed at the agency, and (2) there were

trends or patterns of turnover in the relevant jobs so

as to make a vacancy likely during the time period.”

Mirta Z. v. Dep’t of Homeland Sec., EEOC Appeal No.

0120170095 (Apr. 6, 2018). For reassignment purposes,

‘“vacant’ means that the position is available when the

employee asks for reasonable accommodation, or that

the employer knows that it will become available

App. 50

within a reasonable amount of time,” RA Enforcement

Guidance.

Complainant did not provide any evidence of vacancies

into which he could have been reassigned in between

his May 2018 request for reassignment and the

Agency’s February 13, 2019 reassignment job search.

But “[w]hile the burden of establishing the existence of

such a vacant funded position lies with Complainant,

he must be given the opportunity to present the evi­

dence necessary to establish that a position exists.”

Ruben P. v. Soc. Sec. Admin., EEOC Appeal No.

0720130013 (Aug. 14, 2014). In Ruben P., an agency

argued that it should not have been liable for failing

to reassign a complainant as a reasonable accommoda­

tion because the complainant had not shown that there

was a vacant funded position to which he could have

been reassigned. Id. The EEOC declined to address

this argument on procedural grounds, but also noted

that “the Agency’s failure to engage Complainant in

the interactive process, once he requested reassign­

ment, resulted in his being denied a reasonable accom­

modation. If there was an interactive process,

Complainant would have had the opportunity to pre­

sent evidence regarding vacant, funded positions to

which he could have been reassigned.” Id. Here, as in

Ruben P., the Agency failed to engage in the interactive

process with Complainant. The Agency waited nine

months after Complainant’s May 2018 request for re­

assignment to initiate its job search. ROI, Ex. F-10,

pp. 229, 230; Ex. F-9, pp. 219, 225, 227. There is no

evidence that the Agency ever informed Complainant

App. 51

that he could or should seek vacant, funded positions

for his own reassignment from May 2018 until the

Agency began its job search on February 12,2019. This

resulted in Complainant not being given any oppor­

tunity to present the evidence necessary to establish

that such a position existed.

Additionally, the discovery that there were no vacant

funded positions within Complainant’s requested cri­

teria only arose after the Agency had already delayed

initiating the reassignment job search by nine months.

On April 1, 2019, the Agency concluded that its Febru­

ary 12, 2019 reassignment job search for Complainant

had been unsuccessful, and that there were no vacant,

funded positions within the requested criteria into

which Complainant could be reassigned. ROI, Ex. F-9,

p. 225. Nine months is a significant period of time, dur­

ing which a suitable position could have become vacant

and subsequently been filled. As Complainant was

never afforded the opportunity to establish whether

such a position existed in part because of the Agency’s

failure to conduct an adequate investigation,9 it is ap­

propriate to draw the inference in Complainant’s favor

that such a position likely became vacant at some point

during the Agency’s nine-month delay. See 29 C.F.R.

§ 1614.108(c)(3); Macready v. Dep of’ Justice, EEOC

9 The investigator did not ask Complainant to provide any

evidence of vacant, funded positions which he could have been re­

assigned into. ROI, Ex. F-l,pp. 113-127. The ROI does not contain

any evidence regarding whether the Agency searched for vacant,

funded positions in the period between Complainant’s May 2018

request for reassignment and its February 13, 2018 reassignment

job search.

App. 52

Appeal No. 01990453 (Apr. 4,2002) (“when a party fails

to produce relevant evidence within its control, the

failure to produce such evidence raises an inference

that the evidence, if produced, would prove unfavora­

ble to that party”); Mirta Z. v. Dep’t of Homeland Sec.,

EEOC Appeal No. 0120170095 (Apr. 6, 2018) (noting

that complainant can establish denial of reassignment

as a reasonable accommodation without establishing a

specific vacancy, by establishing “there were trends or

patterns of turnover in the relevant jobs so as to make

a vacancy likely during the time period”).

Moreover, any lack of evidence regarding whether

Complainant’s requested criteria prevented a success­

ful job search arises directly from the Agency’s contin­

ued failure to engage in the interactive process. “[T]he

Agency is in the best position to know which jobs are

vacant or will become vacant within a reasonable pe­

riod of time and it is obligated to inform an employee

about vacant positions for which a complainant may be

eligible as a reassignment.” Felton A. v. Dep’t of Home­

land Sec., EEOC Appeal No. 2019005820 (May 14,

2020). Here, the Agency did not provide evidence of any

available positions outside of Complainant’s criteria

that would have otherwise been suitable for reassign­

ment. If such positions existed, the Agency could have

engaged in the interactive process with Complainant

to discuss whether Complainant was willing and med­

ically able to modify his requested criteria. Nor is there

evidence that the Agency ever informed Complainant

that his failure to vary the criteria for the reassign­

ment job search could result in his removal.

App. 53

Therefore, the Agency’s nine-month delay in initiating

the reassignment job search for Complainant likely re­

sulted in its ultimate failure to reasonably accommo­

date Complainant.

Complainant's Requested Criteria for Reassignment

Job Search Not Undue Hardship

Once a Complainant has established a denial of rea­

sonable accommodation, an Agency may raise an af­

firmative defense by providing “case-specific evidence

proving that providing reasonable accommodation

would cause an undue hardship.” See e.g. Julius C. v.

Dep’t of the Air Force, EEOC Appeal No. 0120151295

(June 16, 2017). The Agency has not met that burden

here.

There is no evidence that the Agency’s delay in initiat­

ing Complainant’s reassignment job search was due to

any undue hardship. RMOl and RM02 did not raise

any undue hardship issues in their reasoning for ter­

minating Complainant. ROI, Ex. F-3, pp. 161-178; Ex.

F-2, pp. 143-152. Nor did the Agency assert at any

point in either the Proposed Removal or the Removal

Decision that Complainant’s reassignment would

cause the Agency an undue hardship. ROI, Ex. F-9,

pp. 218-224; Ex. F-10, pp. 229-234. At most, the Agency

explained that its job search did not find any vacant

funded positions within Complainant’s requested cri­

teria. RMOl and RM02 stated that Complainant had

requested reassignment into a similar position at an­

other park within commuting distance of his home in

App. 54

Chattanooga, Tennessee, and cited the lack of positions

within Complainant’s requested criteria as a reason

for his removal.10 ROI, Ex. F-9, pp. 218-224; Ex. F-10,

pp. 230, 232; Ex. F-2, pp. 148-149; Ex. F-3, p. 167.

Since the Agency failed to engage in the interactive

process with Complainant to discuss whether Com­

plainant was willing and medically able to modify his

requested job search criteria, it does not have the nec­

essary information to establish that reassigning Com­

plainant would have caused an undue hardship.

Therefore, the Agency is liable for its failure to reason­

ably accommodate Complainant.

Insufficient Evidence Regarding Whether Agency

Acted in Good Faith

An agency may be found to have violated the Rehabil­

itation Act by failing in its affirmative duty to accom­

modate a disability even if the agency made a good

faith effort to provide an accommodation. See, e.g.,

Schauer v. Soc. Sec. Admin., EEOC Appeal No.

01970854 (July 13, 2001). However, “[a]n agency is

not liable for compensatory damages under the

10 Although the Rehabilitation Act does not mandate the cre­

ation of a new position for qualified individuals with disabilities

in need of reassignment, ODICR notes that Agencies always have

the discretion to go above and beyond the bare requirements of

the law in order to provide a model workplace for individuals with

disabilities. Creating a new position for Complainant here would

thus have been an appropriate solution as a reasonable accommo­

dation, especially as Complainant was only seeking to work parttime for 20 hours a week.

App. 55

Rehabilitation Act where it has consulted with com­

plainant and engaged in good faith efforts to provide a

reasonable accommodation but has fallen short of

what is legally required.” Don F. v. Soc. See. Admin.,

EEOC Appeal No. 2019002029 (Sep. 22, 2020). “A good

faith effort can be demonstrated by proof that the

agency, in consultation with the disabled individual,

attempted to identify and make a reasonable accom­

modation.” Guilbeaux v. US. Postal Serv., EEOC Ap­

peal No. 0720050094 (Aug. 6, 2008).

Here, the Agency failed in its duty to reasonably ac­

commodate Complainant’s disability when it delayed

initiating its job search for nine months, when it failed

to engage in the interactive process with Complainant

after its job search did not yield results within Com­

plainant’s requested criteria, and when it removed

Complainant from his position due to his medical ina­

bility to perform. However, there is insufficient evi­

dence in the ROI to determine if these failures

occurred despite good faith efforts on the Agency’s

part. The record indicates that the Agency did make

some efforts to reasonably accommodate Complainant.

For example, the Agency repeatedly extended the Com­

plainant’s leave as requested for nearly two years. ROI,

Ex. F-3, p. 166; Ex. F-9, p. 219; Ex. G-4, pp. 305-314.

The Agency also granted Complainant extended time

to respond to the Proposed Removal. ROI, Ex. F-2, p.

157. Whether these efforts would be sufficient to rise

to the level of “good faith” needed to avoid liability for

App. 56

compensatory damages is thus a question that must be

answered in a supplemental investigation.11

Denial of Reasonable Accommodation Conclusion

The Agency failed in its duty to reasonably accommo­

date Complainant. Complainant has established that

he is a qualified individual with a disability under the

Rehabilitation Act. As he could no longer perform the

essential functions of his position of record, and indef­

inite FMLA leave was not a reasonable accommoda­

tion, Complainant was entitled to the reasonable

accommodation of reassignment. Although Complain­

ant requested reassignment in May of 2018, the

Agency delayed initiating the reassignment job search

until February 12, 2019, which resulted in a denial of

reasonable accommodations. The Agency’s failure to

continue the interactive process following the unsuc­

cessful job search based on Complainant’s requested

criteria also constituted a denial of reasonable accom­

modations, which ultimately resulted in Complain­

ant’s removal. Additionally, the Agency has not met

its burden of establishing an affirmative defense of un­

due hardship with regard to its delay and denial of rea­

sonable accommodations. Therefore, the Agency failed

in its duty to reasonably accommodate the Complain­

ant.

11 See Statement of Relief, infra.

App. 57

Disparate Treatment on the Basis of Reprisal

Prima Facie Case

Where, as here, there is no direct evidence of discrimi­

nation, a complainant may proceed using circumstan­

tial evidence of discrimination by satisfying the threepart evidentiary scheme articulated by the Supreme

Court in McDonnell Douglas. To establish a prima fa­

cie case of retaliation, a complainant must show that:

(1) he engaged in a protected activity; (2) management

was aware of the protected activity; (3) he suffered a

materially adverse action; and (4) there is a causal con­

nection between his protected activity and the materi­

ally adverse action. Whitmire u. Dep’t of the Air Force,

EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Complainant has established a prima facie case of dis­

crimination on reprisal. Complainant engaged in pro­

tected activity when he filed formal EEO complaints

including Agency Case Nos. DOI-NPS-18-0033 and

DOI-NPS-18-0571, as well as this complaint. ROI, Ex.

F-l, p. 118. Both RMOl and RM02 were aware of Com­

plainant’s protected activity before the adverse action

at issue. ROI, Ex. F-3, p. 166; Ex. F-2, p. 147. Complain­

ant suffered a materially adverse action when RMOl

proposed Complainant’s removal on June 5, 2019,

which RM02 sustained on September 13, 2019, result­

ing in Complainant’s September 17, 2019 removal.

ROI, Ex. F-8, p. 217; Ex. F-9, pp. 218-224.

There is sufficient evidence to establish an inference of

a causal connection between Complainant’s protected

activity and his removal because RMOl and RM02

App. 58

were named as responsible management officials in

Complainant’s previous EEO complaints, and because

of the temporal proximity between RMOl and RM02’s

spring 2019 interviews regarding a different EEO com­

plaint and the June 5, 2019 Proposed Removal. See

Breeden, 532 U.S. at 273-74 (holding that, in retaliation

cases relying solely on temporal proximity to establish

causation, “the temporal proximity must be Very

close’”); Moss v. Dep’t of Def, EEOC Appeal No.

01913531 (Jan. 27,1992) (stating that the complainant

was able to establish a prima facie case of retaliation

despite a two-year gap between the complainant’s

prior EEO activity and her non-selection because the

selecting official was continuously closely involved

with the complainant’s prior protected activity).

Complainant has thus established his prima facie case

of discrimination on reprisal.

Management's Articulation

Because Complainant has established his prima facie

case of discrimination based on reprisal, the Agency

must now articulate legitimate, non-discriminatory,

and non-retaliatory reasoning for its actions in this

case. Burdine, 450 U.S. 248. In order to meet its bur­

den, Management need only show that it based its

decision on a legitimate consideration and not on an

illegitimate one. Furnco, 438 U.S. 567, 577. The defen­

dant need not “prove absence of discriminatory mo­

tive.” Bd. Of Trustees of Keene State College v. Sweeney,

439 U.S. 24, 25 (1978). Rather, the defendant need only

App. 59

“articulate some legitimate, nondiscriminatory reason

for its action.” Id. In Burdine, the Supreme Court held

that the burden on the employer is to “produce admis­

sible evidence which would allow the trier of fact ra­

tionally to conclude that the employment decision had

not been motivated by discriminatory animus.” 450

U.S. at 257. The evidence presented by management

need not establish management’s actual motivation. If

management meets this burden of production, the pre­

sumption of discrimination raised by the prima facie

case is rebutted and drops from the case altogether. 7jc£.

Management’s articulated reason for removing Com­

plainant was due to his medical inability to perfoijm

the duties of his position, and due to the lack of vacant

funded positions within Complainant’s requested cri­

teria for reassignment. ROI, Ex. F-9, pp. 219-224. Tie

foregoing reasons are sufficiently clear and specific to

afford Complainant a full and fair opportunity to

demonstrate pretext. See e.g. Lino L. v. Dep’t of the

Navy, EEOC Appeal No. 0320170013 (Feb. 15, 2017)

(“the Agency provided legitimate, non-discriminatory

reasons for [Complainant’sl removal - namely that he

was medically unable to perform the duties of his posi­

tion”). Management has thus met its burden of produc­

tion.

Pretext

Because the Agency has articulated a legitimate,

nondiscriminatory reason for its conduct, in order to

prevail, Complainant must demonstrate, by a

App. 60

preponderance of the evidence, that the stated reasons

are a pretext for discrimination. See Price Waterhouse

v. Hopkins, 490 U.S. 228 (1989); Burdine, supra;

McDonnell Douglas, supra. A complainant may show

pretext by evidence that a discriminatory reason more

likely than not motivated management; that manage­

ment’s articulated reasons are unworthy of belief; that

management has a policy or practice disfavoring Com­

plainant’s protected class; that management has dis­

criminated against Complainant in the past; or that

management has traditionally reacted improperly to

legitimate civil rights activities. See McDonnell Doug­

las, supra.

Here, Complainant submitted documentation stating

that he was no longer medically able to return to the

Park due to his PTSD and depression from July 24,

2017, through his September 17, 2019 removal. Ex. F3, p. 166; Ex. F-9, p. 219; Ex. G-4, pp. 305-314. It is un­

disputed that the Agency’s job search did not yield any

vacant funded positions within Complainant’s re­

quested criteria. ROI, Ex. F-9, p. 225. Although the

Agency’s deficiencies in its efforts to reassign Com­

plainant may have fallen short of its Rehabilitation Act

obligations, there is no evidence that such deficiencies

resulted from retaliatory intent on the part of any

management officials. In fact, RMOl promptly for­

warded Complainant’s reassignment request to the

appropriate NPS HR personnel in May of 2018. PROI,

Ex, F-2, p. 425; Ex. F-4, pp. 440-441.

RMOl consistently stated his belief that Complain­

ant’s position required “someone to be physically

App. 61

present in the Park,” and that removing Complainant

would “promote the efficiency of the service.” ROI, Ex.

F-3, pp. 166-167; Ex. F-10, pp. 229-234. RM02 agreed

with RMOl’s reasoning, and noted that Complainant

“did not respond nor reply to the substance of the pro­

posed removal,” and that Complainant did not “speak

directly to the basis for the proposed removal, the fac­

tors that were considered, [Complainant’s] health, or

willingness to change [his] search criteria.” ROI, Ex. F9, p. 218.

Complainant’s disagreement with management’s as­

sessment of his medical ability to perform is not

enough to disprove the Agency’s reasoning, or to estab­

lish pretext. Alex L. v. Dep’t of Transp., EEOC Appeal

No. 0120140970 (Jun. 1, 2016) (“Pretext analysis is not

concerned with whether the Agency’s action was unfair

or erroneous but whether it was motivated by discrim­

inatory animus”). And agencies may even make unwise

or mistaken business decisions, so long as those deci­

sions are not a pretext for unlawful discrimination. See

e.g. Robinson v. Dep’t of Veterans Aff., EEOC Appeal

No. 01A22253 (Sep. 22, 2003) (finding no pretext even

where complainants had conclusively shown that man­

agement’s articulated reasoning had relied on incor­

rect cost-benefit analyses).

In s\am, Complainant did not establish that Manage­

ment’s articulated reasons were false or that Manage­

ment’s actions were based on Complainant’s EEO

activity. Complainant retains the burden of proof to es­

tablish discrimination by a preponderance of the evi­

dence. It is not sufficient “to disbelieve the employer;

App. 62

the fact finder must believe the plaintiff’s explanation

of intentional discrimination.” St. Mary's Honor Center,

supra at 519 (emphasis in original). Complainant’s

subjective belief, however genuine, does not constitute

evidence of pretext or provide a basis for remedial re­

lief. See Anonymous v. Office ofPersonnel Management,

EEOC Appeal No. 0120122901 (Jan. 23, 2014) (no pre­

text when “Complainant simply offers a different in­

terpretation of the supervisor’s actions”). ODICR thus

finds that Complainant failed to meet his burden to

demonstrate that management’s articulated reasons

were pretext.

As he has not met his burden of demonstrating that

management’s articulated reasons were pretextual,

Complainant cannot establish that he was subjected to

disparate treatment in reprisal for his prior EEO ac­

tivity with regard to his termination.

V.

Statement of Conclusion

Based on a review of the record and the above analysis,

ODICR finds that the preponderance of the evidence

supports Complainant’s claim of unlawful discrimina­

tion. Accordingly, ODICR finds that Complainant has

proven that he was subjected to disparate treatment

based on disability (mental) as alleged, in violation of

the Rehabilitation Act.

App. 63

VI.

Statement of Relief

Corrective Actions

1.

The Agency shall post copies of the attached

notice at the Chickamauga and Chattanooga

Military Park (“Park”) in Chattanooga, Ten­

nessee. Copies of the notice, after being signed

by the Agency’s duly authorized representa­

tive, shall be posted by the Agency within

thirty (30) calendar days of the date this deci­

sion becomes final, and shall remain posted

for sixty (60) consecutive days, in conspicuous

places, including all places where notices to

employees are customarily posted. The

Agency shall take reasonable steps to ensure

that said notices are not altered, defaced, or

covered by any other material. The original

signed notice is to be submitted to ODICR

within ten (10) calendar days of the expiration

of the posting period.

2.

Within thirty (30) calendar days, the Agency

shall reinstate Complainant to his original po­

sition at a location within his local commuting

area of Chattanooga, Tennessee, other than

the Chickamauga and Chattanooga Military

Park (“Park”).

3.

The Agency shall initiate another reassign­

ment job search for Complainant within

thirty (30) calendar days of receiving this de­

cision, in accordance with the below specifica­

tions.

a.

The Agency must notify Complainant

that:

App. 64

i. The Agency is conducting this

search;

ii. Complainant has the opportunity

to submit updated information re­

garding any relevant medical limi­

tations or needed reasonable

accommodations;

iii. Complainant has the opportunity

to assist the agency’s efforts by

suggesting open positions for

which he believes he is qualified,

including positions posted publicly

on USAJOBS.

b.

The search must include, but is not lim­

ited to:

i. All DOI positions at a GS-12 (or

equivalent) within the following

occupational series:

•

1601: Facility Management

Specialist

•

1640: Facility Operations Spe­

cialist

•

0343: Management Analyst

(administrative,

budget,

and/or procurement)

•

0341: Administrative Officer

(administrative,

budget,

and/or procurement)

•

4749: Maintenance Supervisor

•

1173: Housing Manager

App. 65

•

1176: Building Manager

•

1101: Business Manager/Ac­

quisition Program Manager

(facilities)

ii. All DOI positions outside of the

above-listed occupational series for

which Complainant could be con­

sidered “qualified,” including posi­

tions which Complainant could

perform with reasonable accommo­

dations.

iii. Any DOI positions which are not

officially designated as remote, but

which could be performed remotely

as a reasonable accommodation.

iv.

c.

Any DOT positions which are not

currently vacant, but which will

become vacant within one hundred

and twenty (120) calendar days of

receiving this decision.

The Agency must document:

i. Its methodology of searching for

suitable positions;

ii. The outcomes of its search, includ­

ing null outcomes, for each of its

bureaus;

iii. Each position it offers to Com­

plainant as a result of the search,

and Complainant’s response to

each offered position.

App. 66

d.

If a search based on Complainant’s re­

quested criteria does not yield any re­

sults, the Agency must expand its

search to positions outside of Com­

plainant’s requested criteria.

e.

If the Agency finds vacant funded posi­

tions for which Complainant would be

qualified, with or without reasonable

accommodations, the Agency must offer

any such positions to Complainant in

writing, regardless of whether those po­

sitions fit within Complainant’s re­

quested criteria.

f.

If this search does not yield any DOI

positions for which Complainant would

be qualified within the specified dead­

line, the Agency may conclude this

search, and notify Complainant of its

findings.

4.

The Agency shall provide a minimum of eight

(8) hour(s) of EEO training to RMOl and

RM02 within one hundred and twenty (120)

calendar days of receiving this order. The

training should include detailed information

regarding the Rehabilitation Act, reasonable

accommodations, the interactive process, and

record-keeping obligations and best practices

related to the reasonable accommodation pro­

cess.

5.

The Agency shall provide a minimum of four

(4) hour(s) of EEO training to all NPS Human

Resources personnel involved in reassign­

ment job searches within one hundred and

App. 67

twenty (120) calendar days of receiving this

order. The training should include detailed

information regarding the Rehabilitation Act,

the scope of Agencies’ obligations to provide

reassignment as a reasonable accommoda­

tion, the interactive process, and record-keep­

ing obligations and best practices related to

the reasonable accommodation process.

6.

The Agency shall consider taking disciplinary

action against the individual or individuals,

still working for the Agency, who were respon­

sible for denying complainant a reasonable

accommodation within sixty (60) calendar

days of receiving this decision. I.e., RMOl and

RM02. If the Agency decides to take discipli­

nary action, it shall identify to ODICR the ac­

tion taken. If the Agency decides not to take

disciplinary action, it shall set forth to ODICR

the reason(s) for its decision not to impose dis­

cipline.

7.

The Agency shall conduct a supplemental in­

vestigation into damages within sixty (60) cal­

endar days of receiving this decision. Upon

completion of the supplemental investigation,

the Agency shall issue to Complainant the

Supplemental Report of Investigation (SROI).

8.

The Agency is directed to submit a Compli­

ance Report to ODICR every thirty (30) calen­

dar days of receiving this decision until full

compliance has been attained. The Compli­

ance Report shall include supporting docu­

mentation of the Agency’s implementation of

all above-listed corrective actions.

App. 68

9.

The Complainant may submit a full account­

ing of his claimed compensatory damages to

ODICR. This full accounting should include

documentary evidence supporting his ac­

counting, as well as documentary evidence of

any attempts to mitigate his damages. The

Complainant must submit this accounting to

ODICR by email within sixty (60) calendar

days of receiving this decision. If more time is.

needed, the Complainant may request an ex­

tension from ODICR at doicivilrights@ios.doi.gov.

10. ODICR will issue its decision on damages

within sixty (60) calendar days of receiving

the latest of the above-listed submissions.

Supplemental Investigation into Good Faith and

Compensatory Damages

The Agency’s supplemental investigation into the is­

sue of whether the Agency’s failure to reasonably ac­

commodate Complainant occurred despite its good

faith efforts and whether Complainant is entitled to

compensatory damages must provide sufficient evi­

dence to allow a factfinder to answer the following

questions:

Good Faith (All questions are for the Agency unless

otherwise indicated)

1.

Did the Agency receive Complainant’s May

2018 request for reassignment? If so, when?

The Agency must document the exact date

and method by which it received Complain­

ant’s May 2018 request for reassignment and

App. 69

provide the names of all Agency personnel

who received Complainant’s request.

2.

Ask Complainant AND the Agency: What spe­

cific documentation did Complainant submit

to the Agency in May of 2018 as part of his

request for reassignment? All relevant docu­

mentation submitted by Complainant must

be included in the Supplemental ROI, with

submission dates indicated.

3.

Did Complainant’s May 2018 request for reas­

signment contain sufficient information to

substantiate the medical need for reassign­

ment? If not:

a.

What additional

needed?

information

was

b.

Why was this information needed?

c.

Did the Agency have other medical doc­

umentation from Complainant from

previous reasonable accommodation

requests which would have substanti­

ated the medical need for reassign­

ment? If so, when did it receive this

information? All relevant documenta­

tion submitted by Complainant must

be included in the Supplemental ROI,

with submission dates indicated.

d.

Did the Agency notify Complainant

that it needed more information to

begin the reassignment process? If so,

who notified the Complainant, and

when? All of the Agency’s notifications

to Complainant must be included in the

App. 70

Supplemental ROI, with notification

dates indicated.

e.

Did the Complainant ultimately provide

sufficient information to substantiate

the medical need for reassignment? If

so, when? All relevant documentation

submitted by Complainant must be in­

cluded in the Supplemental ROI, with

submission dates indicated.

4.

Ask Complainant AND the Agency: Did the

Agency ever inform Complainant that he had

the option to suggest existing vacant funded

positions for his own reassignment? If so,

when? Provide documentation. If not, why?

5.

Ask Complainant AND the Agency: Did the

Agency respond to Complainant’s May 2018

request for reassignment as a reasonable ac­

commodation?

a.

If so:

i. When did the Agency respond?

ii. What was the Agency’s response?

iii. Which Agency

sponded?

iv.

b.

personnel

re­

All of the Agency’s responses to

Complainant’s May 2018 request

for reassignment must be included

in the Supplemental ROI, with

dates indicated.

If not:

i. Why not?

App. 71

ii. Which Agency personnel were re­

sponsible for handling Complain­

ant’s May 2018 request for

reassignment as a reasonable ac­

commodation?

6.

Were there other factors contributing to the

Agency’s May 2018 to February 12,2019 delay

in initiating the Complainant’s reassignment

job search? If so, what were these factors? Any

relevant documentation of these factors, in­

cluding contemporaneous emails and notes

regarding these factors, must be included in

the Supplemental ROI, with dates indicated.

7.

Ask Complainant AND the Agency: Did the

Agency consider interim accommodations

other than reassignment for Complainant

from May 2018 to February 12, 2019? If so:

a.

What accommodations were considered

for Complainant? For each considered

accommodation:

b.

When was this accommodation consid­

ered?

c.

Was this accommodation offered to

Complainant? If not, why? If so, provide

documentation.

d.

Did Complainant respond to the offered

accommodation? If so, what was the re­

sponse? Provide documentation.

e.

Was this accommodation implemented?

If not, why? If so, when? Provide docu­

mentation.

App. 72

8.

9.

Ask Complainant AND the Agency: Did the

Complainant request any interim accommo­

dations other than reassignment from May

2018 to February 12, 2019?

a.

What other accommodations did Com­

plainant request? For each requested

accommodation:

b.

When did Complainant request this ac­

commodation? Provide documentation.

c.

How would this accommodation help

the Complainant perform the essential

functions of his position?

d.

What medical documentation, if any,

did Complainant submit in support of

his request for accommodation? Pro­

vide copies, with submission dates indi­

cated.

e.

Did the Agency respond to this request?

If so, what was the Agency’s response?

When did the Agency respond? Provide

documentation, with dates indicated.

f.

Did the Agency grant the requested ac­

commodation? If not, what was the

Agency’s reasoning for the denial? Pro­

vide documentation, with dates indi­

cated.

Did the Agency fill any vacancies for which

Complainant would have been qualified in be­

tween May 1, 2018 and February 12, 2019?

a.

Identify all GS-12 (or equivalent) va­

cancies filled in all DOI bureaus be­

tween May 1, 2018 and February 12,

App. 73

2019 within the following occupational

series:

i. 1601: Facility Management Spe­

cialist

ii. 1640: Facility Operations Special­

ist

iii. 0343: Management Analyst (ad­

ministrative, budget, and/or pro­

curement)

iv. 0341: Administrative Officer (ad­

ministrative, budget, and/or pro­

curement)

v. 4749: Maintenance Supervisor

vi. 1173: Housing Manager

vii. 1176: Building Manager

viii. 1101: Business Manager/Acquisi­

tion Program Manager (facilities)

b.

For each position identified:

i. Ask Complainant:

1.

Could Complainant have

performed this position

within his medical limita­

tions, with or without a rea­

sonable accommodation?

2.

Would Complainant have

accepted this position as a

reassignment?

App. 74

ii. Ask the Agency:

1.

When did this position be­

come vacant?

2.

Was this position offered to

Complainant? If not, why

was this position not offered

to Complainant?

3.

Would the Agency have been

able to reasonably accom­

modate Complainant in this

position?

4.

Would reassigning Com­

plainant into this position

have caused the Agency an

undue hardship?

10. Ask Complainant AND the Agency:

a.

What were the specific restrictions and

criteria that the Complainant identi­

fied for his reassignment job search?

b.

When did Complainant identify these

restrictions and criteria?

c.

All relevant documentation regarding

Complainant’s identified restrictions

and criteria must be included in the

Supplemental ROI, with dates indi­

cated.

11. Did the Complainant’s February 2019 reas­

signment job search include telework-eligible

positions at other NPS or DOI locations? If

not, why not?

App. 75

12. Did the Agency fill any vacancies for which

Complainant would have been qualified in be­

tween February 12, 2019 and September 17,

2019?

a.

Identify all GS-12 (or equivalent) va­

cancies filled in all DOI bureaus beand

tween February 12, 2019

September 17, 2019 within the follow­

ing occupational series:

i. 1601: Facility Management Spe­

cialist

ii. 1640: Facility Operations Special­

ist

iii. 0343: Management Analyst (ad­

ministrative, budget, and/or pro­

curement)

iv.

0341: Administrative Officer (ad­

ministrative, budget, and/or pro­

curement)

v. 4749: Maintenance Supervisor

vi. 1173: Housing Manager

vii. 1176: Building Manager

viii. 1101: Business Manager/Acquisi­

tion Program Manager (facilities)

b.

For each position identified:

i. Ask Complainant:

1.

Was Complainant offered

this position?

2.

Could Complainant have

performed this position

App. 76

within his medical limita­

tions, with or without a rea­

sonable accommodation?

3.

Would Complainant have

accepted this position as a

reassignment?

ii. Ask the Agency:

1.

When did this position be­

come vacant?

2.

Was this position offered to

Complainant? If not, why

was this position not offered

to Complainant?

3.

Would the Agency have been

able to reasonably accom­

modate Complainant in this

position?

4.

Would reassigning Com­

plainant into this position

have caused the Agency an

undue hardship?

13. Ask the Agency’s Human Resources (HR) per­

sonnel involved with Complainant’s original

reassignment job search:

a.

What is the typical process for a reas­

signment job search? All relevant docu­

mentation regarding the Agency’s

reassignment job search practices and

procedures must be included in the

Supplemental ROI.

App. 77

b.

What methodology did the Agency use

to conduct Complainant’s reassign­

ment job search in February of 2019?

All relevant documentation regarding

Complainant’s reassignment job search

must be included in the Supplemental

ROI, with dates indicated. This in­

cludes informal documentation, such as

emails and instant messages.

c.

Which bureaus did the Agency reach

out to for Complainant’s reassignment

job search? All relevant communica­

tions between HR and the bureaus re­

garding Complainant’s reassignment

job search must be included in the Sup­

plemental ROI, with dates indicated.

This includes informal communica­

tions, such as emails and instant mes­

sages. For each bureau:

i. What method did this bureau use

to conduct Complainant’s job

search?

ii. Who was the point of contact at

this bureau responsible for con­

ducting Complainant’s job search?

iii. When did this bureau respond?

Provide documentation.

iv.

d.

What was this bureau’s response?

Provide documentation.

Which two bureaus identified in ROI,

Ex. F-9, p. 226 returned negative re­

sponses regarding Complainant’s reas­

signment job search?

App. 78

14. Ask Complainant AND the Agency: Did the

Agency ever inform Complainant that he had

the option of modifying his requested criteria

if the reassignment job search was unsuccess­

ful? If so:

a.

When did the Agency inform Complain­

ant about this option? Provide docu­

mentation.

b.

Who informed Complainant about this

option?

c.

What exactly did this individual tell

Complainant? Provide documentation.

d.

Did Complainant respond? If so, when?

What was Complainant’s response?

Provide documentation.

15. Ask Complainant AND the Agency: Did the

Agency ever inform Complainant that his fail­

ure to modify the criteria for the reassign­

ment job search could result in his removal for

a medical inability to perform the essential

functions of his position? If so:

a.

When did the Agency inform Complain­

ant about this possibility? Provide doc­

umentation.

b.

Who informed Complainant about this

possibility?

c.

What exactly did this individual tell

Complainant? Provide documentation.

d.

Did Complainant respond? If so, when?

What was Complainant’s response?

Provide documentation.

App. 79

16. Ask Complainant AND the Agency: Did Com­

plainant request to return to duty after re­

ceiving the Proposed Removal? If so:

a.

What was the exact substance of Com­

plainant’s request? Provide documen­

tation.

b.

When did Complainant make this re­

quest? Provide documentation.

c.

To whom did Complainant make this

request?

d.

Did Complainant receive a response to

his request? If so, when? What was the

response? Provide documentation.

e.

Was Complainant’s request to return to

duty denied? If so, when? Why was

Complainant’s request to return to

duty denied? Provide documentation.

VII. Statement of Notice and Rights

APPEAL RIGHTS TO THE MERIT

SYSTEMS PROTECTION BOARD

29 C.F.R. § 1614.302(d)(3) states that an appeal of the

Agency’s final decision on a mixed case complaint to

the Merit Systems Protection Board (MSPB) must be

filed by an Appellant within thirty (30) calendar days

after receiving this decision and, in connection with

that Appeal, a hearing may be requested. Alterna­

tively, in light of the fact that more than 120 days have

elapsed since the filing of this complaint, Appellant

App. 80

may, pursuant to 29 C.F.R. § 1614.302(d)(l)(i), file an

MSPB appeal prior to the issuance of this letter.

A Petition for Appeal shall be deemed filed on the date

it is postmarked or, in the absence of a postmark, five

days prior to receipt by the MSPB. If a Petition for Ap­

peal is filed outside of the time limits provided, the

Petition should include a Motion for Waiver of the Time

Limit. This motion must contain evidence and argu­

ment showing good cause for the untimely filing.

If a hearing is desired, a request for a hearing must be

filed with the Petition for Appeal. Failure to make a

timely request for a hearing will result in a waiver of

the right to a hearing. Failure to appear for a scheduled

hearing without good cause will result in adjudication

on the record.

An appeal should be addressed to the appropriate

MSPB Regional or Field Office:

Regional Director and Chief Administrative Judge

Atlanta Regional Office

401 West Peachtree Street, NW., 10th Floor

Atlanta, GA 30308-3519

(AL, FL, GA, MS, SC, TN)

Regional Director and Chief Administrative Judge

Central Regional Office

230 South Dearborn Street, 31st Floor

Chicago, IL 60604-1669

(IL, IN, IA, KS [Kansas City], KY, MI, MO, OH, WI)

App. 81

Regional Director and Chief Administrative Judge

Northeastern Regional Office

1601 Market Street, Suite 1700

Philadelphia, PA 19103

(CT, DE, ME, MD [except the counties of

Montgomery and Prince George’s], MA, NH, NJ

[except counties of Bergen, Essex, Hudson, and

Union], PA, RI,VT,WV)

Regional Director and Chief Administrative Judge

New York Field Office

26 Federal Plaza, Room 3137-A

New York, NY 10278-0022

(NJ [counties of Bergen, Essex, Hudson, and

Union], NY, PR, and Virgin Islands)

Regional Director and Chief Administrative Judge

Washington, DC Regional Office

1901 S. Bell Street

Suite 950

Arlington, VA 22202

(MD [counties of Montgomery and Prince

George’s], NC, VA, DC, and all overseas areas not

otherwise covered)

Regional Director and Chief Administrative Judge

Western Regional Office

1301 Clay Street, Suite 1380N

Oakland, CA 94612-5217 (AK, CA, HI, ID, NV, OR,

WA, and Pacific overseas areas)

Regional Director and Chief Administrative Judge

Denver Field Office

165 South Union Blvd., Suite 318

Lakewood, CO 80228-2211

(AZ, CO, KS [except Kansas City], MT, NE, NM,

ND, SD, UT, WY)

App. 82

Regional Director and Chief Administrative

Judge Dallas Regional Office

1100 Commerce Street, Suite 620

Dallas, TX 75242-9979

(AR, LA, OK, TX)

A copy of the MSPB appeal form is attached.

At the same time the Appellant files an appeal with the

MSPB, he must also furnish a copy of the appeal to

Erica White-Dunston, Director

U.S. Department of the Interior

Office of Diversity, Inclusion and Civil Rights

1849 C Street, N.W., Suite 4353

Washington, DC 20240

In or attached to the appeal to the MSPB, Appellant

must certify the date and method by which service was

made on the Agency.

CIVIL ACTIONS

Instead of an Appeal to the MSPB, Appellant may file

a civil action in an appropriate U.S. District Court

within thirty (30) calendar days of receipt of this deci­

sion. IfAppellant elects to file a civil action under Title

VII of the Civil Rights Act of 1964, as amended, he

must file with the appropriate United States District

Court. If a civil action is filed, Appellant must name

as the defendant. Scott A. de la Vela. Assistant

Secretary of the U.S. Department of the Interior.

as the Defendant. Failure to do so may result in the

loss of any judicial redress to which the Appellant may

be entitled.

App. 83

If the Appellant decides to file a civil action and is un­

able to afford counsel, the Civil Rights Act gives the

Court discretionary authority to appoint counsel with­

out payment of fees or costs by the Appellant. The

granting or the denial of the request is within the sole

discretion of the Court. The request and the civil action

must be filed within ninety (90) days of the date the

final decision is received.

Please note that, “filing a civil action under 29 C.F.R.

§1614.408 or 29 C.F.R. §1614.409 shall terminate the

Administrative processing of your complaint. If private

suit is filed subsequent to the filing of an appeal, the

parties are requested to notify the MSPR and/or EEOC

in writing.”

Sincerely,

03/11/2021

Is/ Erica D. White-Dunston______

Erica D. White-Dunston, Esq.

Date

Director and Chief Diversity Officer

Office of Diversity, Inclusion and

Civil Rights

End.: 2020 COVID-19 Processing Information for

EEO Directors, dated April 6, 2020.

2020 COVID-19 Processing information for

EEO Directors, dated July 26, 2020.

Posting Order

CC:

Rose Blankenship, EEO Director, NPS

App. 84

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

JEFFREY THUL,

"

Plaintiff“

v.

UNITED STATES

OF AMERICA,

Defendant.

)

)

Case No. l:22-cv-96

) Judge Travis R. McDonough

) Magistrate Judge

)

Christopher H. Steger

)

)

)

ORDER

This matter is before the Court for case-management

purposes. In March 2022, this Court dismissed a case

brought by Jeffrey Thul, proceeding pro se, against var­

ious defendants, including the United States. (See Doc.

27 in Case No. l:20-cv-354.) The Court dismissed that

case without prejudice for failure to serve. (Id.) The

Court had ordered Thul to show cause for his failure to

serve, and, while he responded to the show-cause order,

he did not show that he had effectuated service on

any defendant. (Docs. 20-24 in Case No. l:20-cv-354.)

Therefore, the Court dismissed the action. (See Doc. 27

in Case No. l:20-cv-354.) Plaintiff Jeffrey Thul now

brings the instant action against the United States,

based on the same events as his previous action. (See

Doc. 1; Doc. 11 in Case No. l:20-cv-354.) On May 16,

2022, Plaintiff filed various “proof of service docu­

ments.” (Doc. 8.) These documents include certified mail

return receipts and servers’ affidavits. (Id.) Service of

App. 85

the United States or its agencies, corporations, officers,

and employees, is governed by Federal Rule of Civil

Procedure 4(i). To serve the United States, a party

must:

(A) (i) deliver a copy of the summons and of the

complaint to the United States attorney for

the district where the action is brought—or to

an assistant United States attorney or clerical

employee whom the United States attorney

designates in a writing filed with the court

clerk—or

(ii) send a copy of each by registered or

certified mail to the civil-process clerk at

the United States attorney’s office;

(B) send a copy of each by registered or cer­

tified mail to the Attorney General of the

United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States,

send a copy of each by registered or certified

mail to the agency or officer,

Fed. R. Civ. P. 4(i).

The return receipts reflect that Thul did, in fact,

send a copy of the summons and the complaint to the

civil-process clerk at the United States attorney’s of­

fice, the Attorney General of the United States at

Washington, D.C., and the Department of the Interior,

as prescribed by Rule 4(i). (See Doc. 8.) However, Thul

himself signed each of the affidavits of service as the

server. (Id. at 3, 8, 14.) Rule 4(c) provides that service,

App. 86

in any form, may be effected by “[a]ny person who is at

least 18 years old and not a party” Fed. R. Civ. P. 4(c)(2)

(emphasis added). Thul, as a party to this action, can­

not act as the process server, even where service is ef­

fectuated by certified mail. See e.g., Reading v. United

States, 506 F. Supp. 2d 13,19 (D.D.C. 2007) (“Rule 4 is

not so wide in scope as to [allow] a plaintiff (even one

proceeding pro se) [to effectuate *] service by Certified

Mail via the Post Master General,’ as the plaintiffs

here argue,” (cleaned up)); Wilson v. Suntrust Bank,

Ina, No. 3:10-CV-573-FDW-DCK, 2011WL 1706763, at

*1 (W.D.N.C. May 4, 2011) (“It is well-established that

this rule prohibits service of process by a party in all

forms. Thus a plaintiff herself may not effectuate ser­

vice by sending a copy of the summons and complaint

through certified mail.”) (citations omitted); Davis v.

Cnty. of Dallas, No. 3:19-CV-1494-B-BK, 2020 WL

1259143, at *1 (N.D. Tex. Feb. 18, 2020), report and rec­

ommendation adopted, No. 3:19-CV-1494-B, 2020 WL

1249636 (N.D. Tex. Mar. 13, 2020) (finding the plain­

tiff’s attempt to serve the defendants by sending the

summons and complaint himself via certified mail to

be invalid).

“The plaintiff generally bears responsibility for

appointing an appropriate person to serve a copy of his

complaint and the summons upon a defendant,” who

“is usually a commercial process server plaintiff has

contracted with to effectuate service for a fee.” Byrd v.

Stone, 94 F.3d 217, 219 (6th Cir. 1996). When a plaintiff

proceeds in forma pauperis, 28 U.S.C. § 1915(c) pro­

vides that the court must appoint a U.S. Marshal to

App. 87

serve plaintiff’s process. Id. In any event, a party to the

action, even one proceeding pro se, may not effectuate

service himself. See Fed. R. Civ. P. 4(c)(2). Accordingly,

Thul has not properly effectuated service in this mat­

ter. (See Doc. 8.) To do so, he must either hire a process

server to effectuate service on the United States, who

must be the one to fill and sign the server’s affidavit to

prove service or apply to proceed in forma pauperis to

have the court appoint a process server. Additionally,

the Court notes that it appears none of the servers’ af­

fidavits that Thul submitted were notarized.

For these reasons, the Court hereby puts Thul

ON NOTICE that if he does not properly effectuate

service in accordance with these rules by the service

deadline, July 18, 2022, the Court will order him to

show cause for why his complaint should not be dis­

missed for failure to serve. Thul can comply with Rule

4(c)(2) by appointing an appropriate nonparty to serve

his complaint and summons on the United States

and thereafter having such a server sign a notarized

server’s affidavit. Alternatively, he may apply to pro­

ceed in forma pauperis, and if his application is ac­

cepted, the Court will appoint a U.S. Marshal to serve

his process on the United States.

SO ORDERED.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE

Additional material

from this filing is

available in the

Clerk's Office.