Filed: Jun. 26, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JESSE WORTHEN, DOCKET NUMBER Appellant, SF-0432-14-0539-I-1 v. DEPARTMENT OF VETERANS DATE: June 26, 2015 AFFAIRS, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Justin Prato, Esquire, San Diego, California, for the appellant. Eric LaZare, Esquire, San Diego, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which su
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JESSE WORTHEN, DOCKET NUMBER Appellant, SF-0432-14-0539-I-1 v. DEPARTMENT OF VETERANS DATE: June 26, 2015 AFFAIRS, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Justin Prato, Esquire, San Diego, California, for the appellant. Eric LaZare, Esquire, San Diego, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sus..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSE WORTHEN, DOCKET NUMBER
Appellant, SF-0432-14-0539-I-1
v.
DEPARTMENT OF VETERANS DATE: June 26, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Justin Prato, Esquire, San Diego, California, for the appellant.
Eric LaZare, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency removed the appellant from the GS-11 position of Program
Analyst based on unacceptable performance. Initial Appeal File (IAF), Tab 5,
Subtabs 4a-4b. Specifically, the agency charged that the appellant’s performance
was unacceptable in the critical elements o f Program Administration Management
and Planning, and Communication. Id., Subtabs 4b, 4m. Regarding the critical
element Program Administration Management and Planning, the agency charged
that the appellant failed to: (1) input Methicillin-resistant Staphylococcus Aureus
(MRSA) and Clostridium Difficile Infection (CDI) data into the Inpatient
Evaluation Center by the submission deadline each month with no more than two
errors per year; (2) analyze MRSA data for swab completion rates, prevalence
rates and transmission rates by unit, and share information with unit leadership;
(3) consistently complete assigned work within identified timeframes; and
(4) assure that monthly Hand Hygiene/Transmission Based Precaution
observations were entered monthly, and prepare graphs and monthly reports for
the Infection and Environmental Control Committee use. Id., Subtab 4m.
Regarding the Communication critical element, the agency charged that the
appellant failed to timely and accurately complete written communication. Id.
3
¶3 The appellant appealed the agency’s action, alleging that he did not “under
perform,” and that any performance issues were caused by the agency’s failure to
accommodate him or to provide assistance. IAF, Tab 1. He also asserted that the
agency discriminated against him on the basis of his disabilities of: (1) back and
neck injuries suffered in a parachuting accident while he was in the Army that
limited his ability to sit for long periods, walk long distances, and lift; and
(2) a work-related repetitive stress injury for which he needed surgery to remove
a nerve, leaving him with pain in his arm and loss of some fine motor skills. Id.;
IAF, Tab 9. Additionally, the appellant alleged that the agency committed
harmful procedural error in considering the Douglas factors. IAF, Tab 12. The
appellant requested a hearing that the administrative judge held on July 30, 2014.
IAF, Tabs 1, 17.
¶4 The administrative judge noted that, when the agency charged the appellant
with unacceptable performance, he was working under approved accommodations
that indicated that the agency would: (1) provide him with an ergonomic chair
and a sit-and-stand desk; (2) restructure his daily activities to require data entry
in no more than 30-minute intervals; (3) recommend a desk audit to determine if
the job duties of the position description were accurate; and (4) provide assistance
on a temporary basis to clean up his backlog of past assignments while he
performed his daily duties. IAF, Tab 19, Initial Decision (ID) at 4-5, Tab 12,
Exhibit A. It was with these accommodations in mind that the administrative
judge determined that the agency proved that the appellant’s performance was
unacceptable as charged.
¶5 The administrative judge found that the agency established that the Office
of Personnel Management (OPM) had approved the agency’s performance
appraisal system, ID at 11, and that the agency communicated to the appellant the
critical elements and performance standards of his position, ID at 11-15, warned
him of the inadequacies of his performance during the appraisal period, and gave
him a reasonable opportunity to improve during a performance improvement plan
4
(PIP) period, ID at 15-22. She found that, during the PIP period, the appellant’s
performance remained unacceptable in the critical elements for which he was
provided an opportunity to demonstrate acceptable performance. ID at 22-25.
¶6 The administrative judge also found that the appellant failed to prove his
affirmative defenses. ID at 25-33. She found that, although the factors
enumerated in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981),
are not applicable in a removal for unacceptable performance taken under
chapter 43, the appellant failed to show that he was harmed by the deciding
official’s consideration of the Douglas factors in deciding to remove him. ID
at 27-28. Thus, she found that the appellant failed to prove harmful procedural
error. She also found that the appellant presented no evidence to show that
agency officials were motivated by discriminatory animus in their efforts to
identify hindrances to the appellant’s successful performance, provide
accommodations designed to assist him in improving his performance, and
evaluate his performance during the PIP period. ID at 32-33. Thus, she found
that the appellant failed to prove his disability discrimination claim.
¶7 The appellant has petitioned for review, alleging that the administrative
judge erred in finding that the agency provided him a meaningful improvement
period despite issues with his computer and work programs. He also contends
that the agency did not give him the assistance he was promised. The appellant
further alleges that the administrative judge erred in finding that that the agency
accommodated his disability when it failed to provide him with agreed-upon
accommodations. Petition for Review (PFR) File, Tab 1.
¶8 In a performance-based action under chapter 43, an agency must establish
by substantial evidence that: (1) OPM approved its performance appraisal
system; (2) the agency communicated to the appellant the performance standards
and critical elements of his position; (3) the appellant’s performance standards
are valid under 5 U.S.C. § 4302(b)(1); (4) the agency warned the appellant of the
inadequacies of his performance during the appraisal period and gave him a
5
reasonable opportunity to improve; and (5) the appellant’s performance remained
unacceptable in at least one critical element. Henderson v. National Aeronautics
& Space Administration, 116 M.S.P.R. 96, ¶ 9 (2011); Lee v. Environmental
Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). Substantial evidence is the
“degree of relevant evidence that a reasonable person, considering the record as a
whole, might accept as adequate to support a conclusion, even though other
reasonable persons might disagree.” 5 C.F.R. § 1201.56(c)(1).
¶9 As noted, the administrative judge found, and the appellant does not dispute
on review, that the agency met the first three elements of its burdens of proof.
The appellant’s contention is that, although the agency warned him of the
inadequacies of his performance in the critical elements of Program
Administration Management and Planning, and Communications, he was not
given a meaningful opportunity to improve.
¶10 The appellant’s assertions on review that issues with the MRSA software
prevented him from being able to complete his duties in a timely manner are the
same as those he advanced below. The administrative judge addressed the
appellant’s assertions. She noted that the appellant claimed that the MRSA
software was flawed and required adjustments to enter the data accurately. ID
at 17-19. He claimed that the “work around” that his supervisor told him to use
would not address the programming problem. ID at 18. As a result, he did not
complete the data entry or complete a report concerning MRSA for any month of
the 60-day PIP period. ID at 18. The administrative judge found that the agency
did not dispute that the nationally distributed program that the appellant had to
use during the PIP period did not interface seamlessly with the operations at his
locality. ID at 18. However, she found that the appellant’s supervisor testified
credibly that the “work around” she suggested to the appellant would have met
his needs. ID at 18. The administrative judge also found that, on the other hand,
the appellant’s testimony that the “work around” would not work was
6
unsupported, as he admitted that he refused to try the “work around.” ID
at 18-19.
¶11 In his petition for review, the appellant argues that the Board should credit
his testimony that the “work around” would not be effective over that of his
supervisor in light of his familiarity with computers. PFR File, Tab 1 at 2-3. We
find the appellant’s assertion unavailing. As the administrative judge correctly
noted, the appellant failed to support his assertion that the “work around” would
be ineffective for him to perform his duties and he refused to even try to use it.
Under these circumstances, the appellant’s assertion based on his alleged
expertise with computer programs amounts to mere disagreement with his
supervisor’s credible testimony that the “work around” would have been effective
and provides no basis to overturn the administrative judge’s finding in this
regard. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) (the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so).
¶12 Next, we find the appellant’s assertion on review, that the agency did not
give him the assistance he was promised to clear up the backlog, is not
persuasive. As the administrative judge noted, during the PIP period and
consistent with the accommodation request, the agency did provide the appellant
temporary assistants to help him clear up his backlog. ID at 20-21 n.8. Further,
the administrative judge found that, although the appellant claimed during the
litigation of his appeal that the assistants were incompetent, he made no
complaints about these employees during the PIP period. ID at 20. Under these
circumstances, we agree with the administrative judge that any alleged
deficiencies in the assistance that the agency provided the appellant did not leave
him without a meaningful opportunity to improve his performance. ID at 22.
7
¶13 The appellant also contends that he was not provided the desk audit that was
identified in his reasonable accommodation memorandum. PFR File, Tab 1. The
memorandum approving the appellant’s accommodation request included a
notation that he and his supervisor had described additional duties that had been
given to the appellant over time. IAF, Tab 12, Exhibit A. The accommodation
agreement provided that a request would be made for a desk audit to determine if
the job duties of the appellant’s position description were accurate and current.
Id. As the administrative judge noted, the appellant’s supervisor testified that she
inquired about providing a desk audit to the appellant as was mentioned in the
Approval of Accommodation Request, but she was advised that a desk audit was
unnecessary and that instead it was appropriate to update the appellant’s position
description to include that he was to prepare reports of CDI data each month. ID
at 7. However, during the PIP period, the appellant’s supervisor temporarily
removed the appellant’s CDI reporting responsibilities, and, therefore, those
responsibilities were not considered in the assessment of his performance during
the PIP period. ID at 9. Under these circumstances, the appellant’s assertion that
he was harmed in his ability to perform successfully during the PIP period
because the agency did not provide a recommended desk audit is unavailing.
¶14 The appellant further contends that he proved his affirmative defense of
disability discrimination because the agency failed to provide him the assistance
to clear up the backlog and failed to provide him a desk audit. An agency is
required to make a reasonable accommodation to the known physical and mental
limitations of an otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship on its business
operations. 29 C.F.R. § 1630.9(a). Reasonable accommodation includes
modifications to the manner in which a position is customarily performed to
enable a qualified individual with a disability to perform the essential job
functions. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). To
8
establish disability discrimination, 2 an employee must show that: (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a
qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. Id.
¶15 We agree with the administrative judge’s determination that the appellant is
an individual with a disability as defined by 29 C.F.R. § 1630.2(g), i.e., an
individual with a physical or mental impairment that substantially limits one or
more of his major life activities. Assuming without deciding that the appellant
also established that he is a qualified individual with a disability under 29 C.F.R.
§ 1630.2(m), i.e., that he can perform the essential functions of his position with
or without reasonable accommodation, we conclude, for the reasons discussed
above, that the appellant failed to establish that the agency violated its duty of
reasonable accommodation when it allegedly failed to provide him assistance
with the backlog and failed to provide the desk audit. As noted, the agency did
provide the appellant with assistance in clearing up his work backlog pursuant to
the reasonable accommodation memorandum. Additionally, as noted, the agency
did not require that, during the PIP period, the appellant perform the additional
duty of CDI reporting that a desk audit might have shown required further
accommodation. Under the circumstances here, we find that the agency provided
the accommodation of assistance with the backlog, and did not require that the
appellant perform the duties during the PIP period that appear to have
precipitated the requested accommodation of the desk audit. Accordingly, we
2
As a federal employee, the appellant’s claim of disability d iscrimination arises under
the Rehabilitation Act. However, the standards under the Americans with Disabilities
Act (ADA) have been incorporated by reference into the Rehabilitation Act. 29 U.S.C.
§ 791(g). Further, the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325,
122 Stat. 3553 (2008) (codified at 42 U.S.C. §§ 12101 et seq.), applies to this appeal
because the incidents in question occurred after the January 1, 2009 effective date of
the ADAAA. Although the ADAAA changed the interpretation of the law concerning
the existence of a disability, it did not affect the legal requirements as to reasonable
accommodation. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11 n. 4 (2012).
9
find that the administrative judge properly found that the appellant failed to prove
his affirmative defense of disability discrimination based on a failure to
accommodate. 3
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:
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.
3
The appellant has not challenged, and we discern no basis to disturb, the
administrative judge’s finding that the appellant failed to prove his disability
discrimination claim based on disparate treatment.
10
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
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.
