Filed: Jun. 04, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 40 Docket No. SF-0752-12-0675-I-1 Marilee Brown, Appellant, v. Department of the Interior, Agency. June 4, 2014 Michael T. Pritchard, Esquire, Fairfax, Virginia, for the appellant. Kevin D. Mack, Esquire, Sacramento, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The agency has filed a petition for review, and the appellant has filed a cr
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 40 Docket No. SF-0752-12-0675-I-1 Marilee Brown, Appellant, v. Department of the Interior, Agency. June 4, 2014 Michael T. Pritchard, Esquire, Fairfax, Virginia, for the appellant. Kevin D. Mack, Esquire, Sacramento, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The agency has filed a petition for review, and the appellant has filed a cro..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 40
Docket No. SF-0752-12-0675-I-1
Marilee Brown,
Appellant,
v.
Department of the Interior,
Agency.
June 4, 2014
Michael T. Pritchard, Esquire, Fairfax, Virginia, for the appellant.
Kevin D. Mack, Esquire, Sacramento, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review, and the appellant has filed a
cross-petition for review, of the initial decision, which sustained the agency’s
charge but mitigated the penalty of removal to a demotion. For the foregoing
reasons, we GRANT the agency’s petition for review, DENY the appellant’s
cross-petition for review, and AFFIRM the portion of the initial decision that
(1) sustained the agency’s charge of physical inability to perform the essential
functions of a Criminal Investigator (Special Agent) position, (2) found that the
appellant failed to establish her affirmative defenses of disability discrimination
and retaliation based on her prior equal employment opportunity (EEO) activity,
2
and (3) found no harmful procedural error. We REVERSE the administrative
judge’s decision to mitigate the penalty.
BACKGROUND
¶2 The appellant was a GS-12 Criminal Investigator (Special Agent) with the
U.S. Fish and Wildlife Service (FWS) in Sacramento, California. Initial Appeal
File (IAF), Tab 9, Subtab 4c at 1. As a Special Agent, the appellant occupied a
law enforcement position and was required to meet physical standards set by the
agency for the position. Id., Subtab 4c at 1-2, 7, Subtab 4s at 3. The appellant
was also required to participate in annual medical examinations. Hearing
Transcript (HT), Volume 2 at 93.
¶3 The appellant sustained a back injury in 2005, for which she filed an Office
of Workers’ Compensation Programs (OWCP) claim, and again injured her back
in 2009. 1 IAF, Tab 9, Subtab 4q; HT, Volume 2 at 88-101, 165-66. Although the
appellant was released to full duty by her treating physician, she was placed on
activity restrictions. IAF, Tab 9, Subtab 4q at 1, 5.
¶4 Effective June 27, 2012, the agency removed the appellant for physical
inability to perform the essential functions of her position. Id., Subtabs 4a, 4b.
In support of the charge of physical inability to perform, the agency specified
that, on April 11, 2011, a reviewing physician from the Department of Health and
Human Services’ Federal Occupational Health Services (FOHS) completed a
fitness-for-duty report of the appellant. Id., Subtab 4b at 1-2. The agency stated
that the reviewing physician determined that the appellant was restricted from
performing a number of the physical functions required in her job as a Special
Agent due to her back condition. Id. The agency further specified that, on
November 14, 2011, an agency-convened Medical Review Board determined that
1
It is unclear from the record whether the appellant filed an OWCP claim for her 2009
back injury.
3
the appellant was unable to perform the essential job functions of her position
without endangering the health and safety of others. Id. at 2; see
id., Subtab 4l
(containing the findings of the Medical Review Board).
¶5 The appellant filed an appeal of her removal in which she raised the
affirmative defenses of disability discrimination, reprisal for EEO activity, and
harmful procedural error. IAF, Tab 1 at 4, 7, Tab 12 at 2. Following a hearing,
the administrative judge issued an initial decision sustaining the agency’s charge,
but mitigating the penalty to a demotion to a lower-graded nonlaw enforcement
position. IAF, Tab 15, Initial Decision (ID) at 1, 34. The administrative judge
found that the appellant failed to establish her affirmative defense of disability
discrimination, either on the basis of failure to accommodate or disparate
treatment. Id. at 20-31. The administrative judge also found that the appellant
failed to establish that the agency’s actions were motivated by retaliation based
on her prior EEO activity and failed to establish harmful procedural error. Id.
at 27-32.
¶6 The agency filed a timely petition for review, and the appellant filed a
timely cross-petition for review. Petition for Review (PFR) File, Tabs 1-2. The
appellant has also filed a response to the agency’s petition for review. PFR File,
Tab 4.
ANALYSIS
The administrative judge correctly sustained the agency’s charge.
¶7 On review, the appellant challenges the administrative judge’s finding that
the agency proved its charge of physical inability to perform the essential
functions of her position. Among other things, the appellant contends that the
administrative judge failed to adequately consider and weigh evidence indicating
that the appellant could work without restrictions and ignored post-removal
evidence showing the appellant was fit to perform the duties of her Special Agent
position. PFR File, Tab 2 at 6-9, 12-19.
4
¶8 Where, as here, the appellant occupied a position with medical standards or
physical requirements and the finding that she was unable to perform was based
on medical history, the agency was required to show the following in order to
establish a charge of physical inability to perform: that the disabling condition
itself is disqualifying, its recurrence cannot be ruled out, and the duties of the
position are such that a recurrence would pose a reasonable probability of
substantial harm. Slater v. Department of Homeland Security, 108 M.S.P.R. 419 ,
¶¶ 7, 11 (2008); see 5 C.F.R. § 339.206 (noting that a history of a particular
medical problem may result in medical disqualification only when these
requirements are met). The administrative judge properly applied the evidentiary
standard in Slater to the current appeal. ID at 15.
¶9 In sustaining the agency’s charge, the administrative judge noted that the
position of Special Agent required the ability to meet arduous physical demands,
including being capable of engaging in maximum physical exertion without
warning, pursuing perpetrators on foot, responding to life threatening
emergencies, traversing long distances over difficult or hazardous terrain in
extreme weather conditions, and lifting moderate to heavy objects. ID at 16; IAF,
Tab 9, Subtab 4c at 7. The administrative judge considered the opinion of the
FOHS Law Enforcement Medical Program physician, who completed the
appellant’s April 11, 2011 fitness-for-duty report. ID at 16-19; IAF, Tab 9,
Subtab 4q. That physician opined that, based on the documentation submitted for
review by FWS, information supplied by the appellant and her treating physician,
as well as the doctor’s knowledge of the essential functions of the appellant’s
position as a Criminal Investigator (Special Agent), it was her professional
opinion that the appellant was not medically qualified to perform the full
functions of her job safely and effectively. IAF, Tab 9, Subtab 4q at 1. The
doctor further stated that “[p]rognosis for return to full duty is considered to be
poor.” Id.
5
¶10 Contrary to the appellant’s contentions, the record reflects that the
administrative judge also carefully considered medical evidence submitted by the
appellant’s treating physicians. For example, the administrative judge considered
a May 19, 2011 memorandum submitted by the appellant’s treating physician, in
which the physician opined that the appellant’s back problem “has basically
resolved,” and that she was able “to perform the duties of her usual and
customary occupation” without accommodation. ID at 17-18; IAF, Tab 11,
Subtab E at 7-10. In addition, the administrative judge considered an April 13,
2012 medical report by another of the appellant’s treating physicians, which
stated that he agreed with the appellant’s contention that she was doing well and
should be able to return to full capacity in her job. ID at 18; IAF, Tab 11,
Subtab F at 3-5.
¶11 We discern no basis to disturb the administrative judge’s decision to give
more probative weight to the medical opinion of the FOHS physician than those
of the appellant’s treating physicians. As noted by the administrative judge, in
assessing the probative weight of medical opinions, the Board considers whether
the opinion was based on a medical examination and whether the opinion
provided a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert’s familiarity with the treatment of the appellant. ID
at 16; see Slater, 108 M.S.P.R. 419 , ¶ 15. The administrative judge properly
noted the appellant’s physicians’ expertise and qualifications as specialists in
back and spine conditions and their familiarity with the appellant. ID at 17.
However, the administrative judge found that the appellant’s treating physicians
did not base their medical opinions on the appellant’s position description but
rather on the appellant’s own description to them of her functions and duties. ID
at 17-18. Accordingly, the administrative judge found their opinions that the
appellant was able to perform her job duties were not persuasive because they
were conclusory assertions not based on a reasoned explanation. ID at 17-18. By
6
contrast, the administrative judge found that the FOHS physician’s opinion was
supported by a reasoned explanation based on her knowledge of the job functions
of law enforcement officers. ID at 18. The administrative judge’s finding that
the FOHS physician’s opinion was more persuasive than the opinions of the
appellant’s treating physicians is supported by the weight of the record evidence
and the applicable law; accordingly, we discern no basis for disturbing this
finding on review. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 , 106
(1997) (finding no reason to disturb the administrative judge’s findings where the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357 , 359 (1987) (same).
¶12 On review, the appellant contends that the administrative judge failed to
consider post-removal medical evidence, including a July 20, 2012 report from
one of the appellant’s treating physicians. PFR File, Tab 2 at 8-9. Even when an
agency proves that an employee was physically unable to perform the duties of
her position at the time she was removed, a removal for physical inability to
perform cannot be sustained where an employee presents medical evidence that
clearly and unambiguously establishes that she has recovered during the
pendency of her Board appeal such that she is able to perform the essential
functions of her position. Wren v. Department of the Army, 121 M.S.P.R. 28 , ¶ 6
(2014); see Edwards v. Department of Transportation, 109 M.S.P.R. 579 ,
¶¶ 19-22 (2008) (holding that the efficiency of the service requirement cannot be
met where an employee diligently obtains and presents new medical evidence
of recovery).
¶13 Here, the record reflects that the administrative judge properly considered
the July 20, 2012 medical report. The appellant’s treating physician evaluated
her on July 20, 2012, following a recent magnetic resonance imaging (MRI).
IAF, Tab 11, Subtab F at 6-9. The administrative judge implicitly referred to the
July 20, 2012 medical report in the initial decision, correctly noting that the
7
appellant’s physician’s diagnosis remained the same after the new MRI and his
examination of the appellant. ID at 19; compare IAF, Tab 11, Subtab F at 8, with
IAF, Tab 11, Subtab F at 3. The administrative judge also properly noted that the
appellant testified that the MRI performed by her treating physician in mid-2012
showed no improvement in her disc herniation condition. ID at 19; HT,
Volume 2 at 158-59.
¶14 Furthermore, the appellant’s contention that the administrative judge erred
in denying her motion to submit a November 10, 2012 medical report from one of
her treating physicians does not provide a basis for review. PFR File, Tab 2
at 25-26. The administrative judge stated in the initial decision that she was
denying the appellant’s motion to submit this additional medical evidence
because the appellant had failed to show that it was not readily available before
the close of the record. ID at 14 n.5.
¶15 We find no error in the administrative judge’s denial of the appellant’s
motion. The administrative judge advised the parties that the record would close
at the end of the hearing, which was October 26, 2012. ID at 1; IAF, Tab 12 at 8.
Once the record closes, additional evidence or argument ordinarily will not be
accepted unless it is new and material. Grassell v. Department of Transportation,
40 M.S.P.R. 554 , 563 (1989). Evidence is material if it is of sufficient weight to
warrant an outcome different from that of the initial decision. See Russo v.
Veterans Administration, 3 M.S.P.R. 345 , 349 (1980). The physician’s diagnosis
in the November 10, 2012 medical report is the same as the physician’s prior
diagnoses of the appellant’s back condition. Compare PFR File, Tab 2 at 29, with
IAF, Tab 11, Subtab F at 3, 8. Further, he notes “no major changes in her
symptomatologies,” and that the appellant “denies any changes to her medical
history since her last visit.” PFR File, Tab 2 at 29. The report is neither new nor
material because it contains the same information that the administrative judge
8
previously found unpersuasive when properly weighing the medical evidence. 2
Grassell, 40 M.S.P.R. at 564 (to constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed).
¶16 Based on the foregoing, we agree with the administrative judge’s finding
that the appellant’s back condition renders her physically unable to perform in
that it is disqualifying, its recurrence cannot be ruled out, and the duties of her
law enforcement Special Agent position were such that a recurrence would pose a
reasonable probability of substantial harm. ID at 15-16, 20. The administrative
judge, therefore, properly sustained the agency’s charge of inability to perform.
The agency-imposed penalty of removal fell within the limits of reasonableness.
¶17 Removal for physical inability to perform the essential functions of a
position promotes the efficiency of the service. Jackson v. U.S. Postal Service,
666 F.2d 258 , 260 (5th Cir. 1982); D’Leo v. Department of the Navy,
53 M.S.P.R. 44 , 51 (1992). This is especially true where, as here, the inability to
perform the essential functions of the position would endanger the health and
safety of others. See Clemens v. Department of the Army, 120 M.S.P.R. 616 ,
¶¶ 9, 18 (2014) (involving a removal for physical inability to perform from a
position not subject to medical evaluation programs).
¶18 The traditional analysis for mitigating the penalty under Douglas v.
Veterans Administration, 5 M.S.P.R. 280 (1981), does not apply in this instance
because of the nondisciplinary nature of the agency’s action. See Chandler v.
Department of the Treasury, 120 M.S.P.R. 163 , ¶ 31 (2013) (noting that the
2
We further note that the report does not outweigh the previous medical evidence
indicating that the appellant was medically unable to perform the essential duties of her
position. See Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 7 (2013) (finding that
a new medical report did not outweigh the weight of reports over a 2-year period that
the appellant was medically unable to perform the duties of her position).
9
Douglas factors do not apply to a furlough, consistent with the Board’s practice
of not applying them to nondisciplinary matters). In Douglas, the Board listed
twelve nonexhaustive factors that are relevant in assessing the penalty to be
imposed for an act of misconduct, including the nature and seriousness of the
offense, the appellant’s past disciplinary record, the appellant’s past work record,
the appellant’s potential for rehabilitation, and mitigating circumstances
surrounding the offense. 5 M.S.P.R. at 305-06. None of these factors are
relevant in a case where the agency’s action is based on physical inability to
perform because such a case does not involve any alleged misconduct on the part
of the appellant. Rather, the correct standard to be applied in determining the
penalty for a removal based on physical inability to perform is whether the
penalty of removal exceeded “the tolerable limits of reasonableness.”
Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518 , ¶ 14
(2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005). The record reflects that the
appellant’s medical condition required long-term recovery and rehabilitation,
without a foreseeable end to her incapacity. As discussed above, the appellant’s
medical documentation does not persuade us that she is able to return to duty in
her position of record. The reasonableness of the appellant’s removal should be
based solely on the medical evidence which, in this case, clearly established her
physical inability to perform.
¶19 Generally, in instances where an employee cannot perform the essential
functions of her position, the Board must examine whether this is true with or
without reasonable accommodation and whether the agency has any vacant
positions to which it can assign the appellant within her restrictions. Id.; D’Leo,
53 M.S.P.R. at 51; see Jackson v. U.S. Postal Service, 79 M.S.P.R. 46 , 54 (1998)
(the Board sustained a removal for physical inability to perform where the
appellant failed to identify any vacant funded positions at or below her grade
level, the duties of which she could perform). Nonetheless, the Board has
recognized an exception to this general rule. In particular, the Board held in
10
Marshall-Carter that an agency did not abuse it discretion when assessing the
reasonableness of the penalty by failing to consider reassignment as an alternative
to removal where the appellant refused to cooperate with the agency’s attempts to
determine the extent of her physical limitations. 94 M.S.P.R. 518 , ¶ 14. In
addition, the appellant is obligated to interact with the agency during the
reasonable accommodation process, and the penalty of removal may be justified
where an appellant fails to do so. See id.
¶20 Here, the appellant repeatedly thwarted the agency’s numerous attempts to
reasonably accommodate her medical restrictions. As noted by the administrative
judge, the agency offered to reassign the appellant to one of two lower-graded
positions. The appellant, however, rejected the agency’s offers of the two
lower-graded positions. In fact, she adamantly emphasized that she would only
agree to be reassigned to jobs where she would retain her law enforcement status
at an equivalent grade and pay level, which the medical evidence clearly showed
were jobs for which she could not qualify in light of her medical restrictions.
HT, Volume 2 at 33-35, 38. Yet, the administrative judge determined that
demotion to one of these lower-graded positions was an appropriate penalty
because the agency previously decided the appellant qualified for them and
offered them to her, notwithstanding the fact that she categorically rejected these
offers. Id. at 34.
¶21 The record shows that the appellant’s continual rejection of the agency’s
offers to provide her with lower-graded positions was obstructive, not interactive.
See 29 C.F.R. § 1630.2 (o)(3) (to determine the appropriate reasonable
accommodation, an agency may need to “initiate an informal, interactive process
with the individual with a disability in need of the accommodation”) (emphasis
added); Appendix to 29 C.F.R. Part 1630, § 1630.9 (“The appropriate reasonable
accommodation is best determined through a flexible, interactive process that
involves both the employer and the individual with a disability.”) Courts have
generally required the parties to engage in this process in good faith. See, e.g.,
11
Rehling v. City of Chicago, 207 F.3d 1009 , 1015-16 (7th Cir 2000); see also
Simpson v. U.S. Postal Service, 113 M.S.P.R. 346 , ¶ 18(2010) (finding that the
appellant did not prove the denial of reasonable accommodation where he was
unresponsive to the agency’s good faith attempts to engage in the
interactive process).
¶22 In light of the appellant’s repeated refusals to accept any of the agency’s
numerous offers to accommodate her, we find that this case falls squarely within
the exception set forth in Marshall-Carter. As we have pointed out, the appellant
has certain obligations during the interactive reasonable accommodation process,
and the penalty of removal may be justified where the appellant falls short of
those obligations. Jackson, 79 M.S.P.R. at 54 (citing Gonzagowski v. Widnall,
115 F.3d 744 , 748-49 (10th Cir. 1997)); Shiring v. Runyon,
90 F.3d 827 , 832 (3d
Cir. 1996); Robinson v. Runyon, 987 F. Supp. 620, 622 (N.D. Ohio 1997).
Consequently, we find that, under the circumstances in this case, the
agency-imposed penalty of removal fell within the tolerable limits of
reasonableness. See Beard v. General Services Administration, 801 F.2d 1318 ,
1322 (1986) (the Board will give deference to an agency’s decision regarding a
penalty); McPherson v. U.S. Postal Service, 48 M.S.P.R. 624 , 632-34 (1991)
(removal of an employee whose physical condition rendered him incapable of
performing the duties of his position promoted the efficiency of the service);
Coley v. Department of the Army, 29 M.S.P.R. 101 , 106 (1985) (same).
The administrative judge properly found that the appellant failed to establish her
affirmative defenses.
Failure to Accommodate
¶23 On review, the appellant asserts that the administrative judge erred in
adjudicating her reasonable accommodation claim. PFR File, Tab 2 at 6, 10-12,
20-21. An appellant may establish a disability discrimination claim based on
failure to accommodate by showing that: (1) she is a disabled person; (2) the
action appealed was based on her disability; and, to the extent possible, (3) there
12
was a reasonable accommodation under which the appellant believes she could
perform the essential duties of her position or of a vacant position to which she
could be reassigned. Sanders v. Social Security Administration, 114 M.S.P.R.
487 , ¶ 16 (2010). The administrative judge found that the appellant was a person
with a disability under the Americans with Disabilities Act Amendments Act of
2008, and the parties do not dispute this finding on review. 3 ID at 21. After
finding that the appellant could not be accommodated in her current position, ID
at 22-23, the administrative judge considered whether there was a vacant position
to which the appellant could have been reassigned. The administrative judge
found that there were two vacant Law Enforcement Support Assistant positions
that were suitable for the appellant, and that the agency did not fail to reasonably
accommodate the appellant concerning these positions because it offered to
noncompetitively convert her to either of them. ID at 24.
¶24 The administrative judge also considered whether the agency was required
to reasonably accommodate the appellant in a position at the Federal Law
Enforcement Training Center (FLETC) in Glynco, Georgia, as a GS-12 Instructor.
ID at 25-26. Upon careful consideration, the administrative found the FLETC
Instructor job was not a vacant position which the agency was required to fill as a
reasonable accommodation for the appellant. ID at 25. Specifically, the
administrative judge found that the position was not a permanent one but rather
one that the agency could fill on a short-term basis at its discretion. ID at 26.
¶25 The appellant contends on review that the administrative judge erred in
finding that the GS-12 FLETC Instructor position was not vacant. PFR File,
3
As a federal employee, the appellant’s claim of discrimination on the basis of
disability arises under the Rehabilitation Act of 1973. However, the regulatory
standards for the Americans with Disabilities Act have been incorporated by reference
into the Rehabilitation Act, and the Board applies them to determine whether there has
been a Rehabilitation Act violation. 29 U.S.C. § 791(g); Sanders, 114 M.S.P.R. 487,
¶ 16; 29 C.F.R. § 1614.203(b).
13
Tab 2 at 10-12. We discern no basis for disturbing the administrative judge’s
finding that the GS-12 FLETC Instructor position was a short-term,
nonpermanent position. As such, it did not constitute a funded vacant position.
See Okleson v. U.S. Postal Service, 90 M.S.P.R. 415 , ¶ 13 (2001) (finding that a
detail did not constitute a funded vacant position within the meaning of Equal
Employment Opportunity Commission regulations). Thus, the appellant has
failed to establish that the agency discriminated against her by failing to
reasonably accommodate her disability.
Disparate Treatment and Retaliation
¶26 The appellant contends on review that the administrative judge erred in
denying her disparate treatment and retaliation claims. PFR File, Tab 2 at 22-25.
Where an agency has already articulated a nondiscriminatory reason for its
action, such as in this case, the inquiry is whether, upon weighing all the
evidence, the appellant has met her burden of proving that the agency
intentionally discriminated against her based on her disability or retaliated
against her based on EEO activity. Fox v. Department of the Army, 120 M.S.P.R.
529 , ¶ 36 (2014). The evidence to be considered at this stage may include:
(1) the elements of the prima facie case; (2) any evidence the employee presents
to attack the employer’s proffered explanations for its actions; and (3) any further
evidence of discrimination or retaliation that may be available to the employee,
such as independent evidence of discriminatory statements or attitudes on the part
of the employer, or any contrary evidence that may be available to the employer,
such as a strong track record in equal opportunity employment. Id. While such
evidence may include proof that the employer treated similarly-situated
employees differently, an employee may also prevail by introducing evidence:
(1) that the employer lied about its reason for taking the action; (2) of
inconsistency in the employer’s explanation; (3) of failure to follow established
procedures; (4) of general treatment of disabled employees or those who engage
in protected activities; or (5) of incriminating statements by the employer. Id.
14
¶27 Regarding the claim of disparate treatment based on disability, the
appellant contends that the agency treated her less favorably than another
employee who was provided with an accommodation to allow him to continue
working. PFR File, Tab 2 at 22-24. For employees to be deemed similarly
situated for purposes of a disparate treatment discrimination claim, all relevant
aspects of the appellant’s employment situation must be “nearly identical” to
those of the comparator employees. Fox, 120 M.S.P.R. 529 , ¶ 37. The appellant
contends on review that the administrative judge erred in finding that the
appellant was not similarly situated to the other employee who was provided an
accommodation. PFR File, Tab 2 at 23; ID at 29. The appellant, however,
does not dispute the administrative judge’s findings that the other employee had
unique expertise in a subject area involving extensive activity on the internet and
that the appellant’s supervisors were not involved in the modification of that
employee’s work duties. ID at 29. Accordingly, we discern no basis for
disturbing the administrative judge’s finding that the appellant and the other
employee were not similarly situated. See Ly v. Department of the Treasury,
118 M.S.P.R. 481 , ¶ 10 (2012) (denying the appellant’s discrimination claim
based on disparate treatment where not all aspects of the appellant’s employment
situation were nearly identical to those of the comparator employee).
¶28 As to the appellant’s retaliation claim, the appellant contends that the
deciding official was aware of the appellant’s EEO complaint prior to the
appellant’s removal. PFR File, Tab 2 at 24. However, the appellant fails to
establish that the deciding official had a motive to retaliate against the appellant
based on her EEO complaint. In the initial decision, the administrative judge
found the appellant’s EEO complaint was not directed at the deciding official and
did not implicate the deciding official’s conduct. ID at 31. The appellant
does not dispute this finding on review or offer any evidence or argument
suggesting the deciding official had a retaliatory motive. Based on the evidence
of record, we agree with the administrative judge that the appellant has failed to
15
meet her ultimate burden of establishing that the agency intentionally retaliated
against her based on her protected EEO activity. See Mahaffey v. Department of
Agriculture, 105 M.S.P.R. 347 , ¶ 22 (2007) (denying the appellant’s retaliation
claim where the appellant failed to establish a retaliatory animus).
Harmful Procedural Error
¶29 The appellant reiterates her harmful procedural error claim on review. PFR
File, Tab 2 at 21-22. The appellant’s assertions constitute mere disagreement
with the administrative judge’s well-reasoned finding that the appellant failed to
establish that the agency committed a harmful procedural error. ID at 31-32.
Therefore, they fail to provide a basis for disturbing the initial decision. See
Crosby, 74 M.S.P.R. at 106 (finding no reason to disturb the administrative
judge’s findings where the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton,
33 M.S.P.R. at 359 (same).
¶30 For the foregoing reasons, we SUSTAIN the agency’s removal action.
ORDER
¶31 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113 (c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) ( 5 U.S.C. § 7702 (b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703 (b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
17
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5 (f) and
29 U.S.C. § 794a .
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
