Filed: Sep. 09, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GWENDOLYN G. THOMPSON, DOCKET NUMBER Appellant, AT-0752-11-0891-I-4 v. UNITED STATES POSTAL SERVICE, DATE: September 9, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Samuel L. Lovett, Sr., Atlanta, Georgia, for the appellant. Christopher Pearson, Atlanta, Georgia, 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 concerning
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GWENDOLYN G. THOMPSON, DOCKET NUMBER Appellant, AT-0752-11-0891-I-4 v. UNITED STATES POSTAL SERVICE, DATE: September 9, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Samuel L. Lovett, Sr., Atlanta, Georgia, for the appellant. Christopher Pearson, Atlanta, Georgia, 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 concerning t..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GWENDOLYN G. THOMPSON, DOCKET NUMBER
Appellant, AT-0752-11-0891-I-4
v.
UNITED STATES POSTAL SERVICE, DATE: September 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Samuel L. Lovett, Sr., Atlanta, Georgia, for the appellant.
Christopher Pearson, Atlanta, Georgia, 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
concerning the alleged improper continuation of an indefinite suspension based
on medical inability to perform the duties of her position. Based on the result of
a prior Board appeal finding that the suspension was not properly imposed at the
outset, the initial decision reversed the suspension for the contested continuation
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
period at issue in this appeal. The initial decision further found that the appellant
had failed to prove her affirmative defenses of retaliation for equal employment
opportunity (EEO) activity and discrimination based on race, sex, and disability.
¶2 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 erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115).
¶3 After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. We AFFIRM
the initial decision’s findings that the appellant failed to prove her affirmative
defenses of retaliation for EEO activity and discrimination based on race and sex.
We VACATE the portion of the initial decision addressing the appellant’s
disability discrimination claim and FIND that the appellant failed to establish this
claim for the reasons set forth in this Order. We further FIND that any relief the
appellant could receive in this matter would be duplicative of the relief previously
ordered by the Board in its final order resolving the prior appeal regarding the
imposition of this indefinite suspension. Because the appellant is not entitled to
any additional relief, we VACATE the initial decision’s duplicative order to
reverse the continuation of this already cancelled suspension, and we DISMISS
this appeal as moot. Except as expressly MODIFIED by this final order, we
AFFIRM the findings in the initial decision.
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The agency suspended the appellant based on her alleged medical inability
to perform the duties of her position as a Supervisor, Maintenance Operations, at
the agency’s Atlanta Bulk Mail Center. She filed an appeal regarding the
imposition of the suspension, Thompson v. U.S. Postal Service, MSPB Docket
No. AT-0752-09-0883-I-1, and, while that appeal was pending, she initiated this
separate matter concerning the allegedly discriminatory and improper
continuation of her suspension. 2 In its final order in the appeal regarding the
imposition of the suspension, the Board ordered the agency to cancel the
appellant’s suspension and pay her the correct amount of back pay, interest on
back pay, and other benefits. Thompson v. U.S. Postal Service, MSPB Docket
No. AT-0752-09-0883-I-1, Final Order (Apr. 30, 2014).
¶5 The administrative judge concluded that, under the doctrine of law of the
case, the Board’s final order required entry of a similar order in this appeal
cancelling the suspension and ordering the agency to pay the appellant the
appropriate amount of back pay, interest on back pay, and other benefits.
Thompson v. U.S. Postal Service, MSPB Docket No. AT-0752-11-0891-I-4,
Appeal File, Tab 18, Initial Decision (ID) at 3, 12. The administrative judge
noted, however, that the appellant already may have received all of the relief to
which she is entitled as a result of the relief afforded in connection with her prior
appeal. 3 ID at 12. The administrative judge further found that the appellant
2
The imposition of an indefinite suspension and the failure to terminate that suspension
after the condition subsequent has occurred are separately reviewable agency actions.
Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1381 (Fed. Cir. 2007);
Arrieta v. Department of Homeland Security, 108 M.S.P.R. 372, ¶ 9 (2008).
3
The appellant also filed a petition for enforcement of the Board’s April 30, 2014 final
order with the regional office. The administrative judge denied the appellant’s petition
and found that the appellant was not entitled to relief after the date of a post-suspension
fitness-for-duty examination showing that she was medically unable to perform the
duties of her position. Thompson v. U.S. Postal Service, MSPB Docket No. AT-0752-
09-0883-C-1, Initial Decision (Sept. 3, 2015).
4
failed to prove, and thus was not entitled to further relief regarding, her claims in
this appeal of discrimination (disability, race, and sex) and retaliation for prior
EEO activity. ID at 4-11.
¶6 The appellant has filed a petition for review on the grounds that the
administrative judge was biased and erroneously concluded that she failed to
prove her disability discrimination claim. 4 Petition for Review (PFR) File, Tab 1.
She requests that the Board rule that the initial decision in this matter is a “moot
issue” or modify the initial decision to clarify that she is entitled to relief for the
entire period of her suspension. Id. at 1. The agency has filed an opposition to
the petition for review, PFR File, Tab 3, and the appellant has filed a reply in
which, among other things, she refers to evidence already in the record from her
treating physician addressing her ability to work in her position, PFR File, Tab 4.
¶7 We have considered the appellant’s claim that the administrative judge was
biased but find no basis for disturbing the initial decision. As a preliminary
matter, a party should not wait until after adjudication is complete to attempt to
disqualify an administrative judge. E.g., Gensburg v. Department of Veterans
Affairs, 85 M.S.P.R. 198, ¶ 7 (2000); 5 C.F.R. § 1201.42(b). The appellant
did not follow the regulatory procedures for disqualifying the administrative
judge based on alleged bias in his predecisional handling of the case.
See 5 C.F.R. § 1201.42(b)-(c). Further, the administrative judge’s findings
do not establish any bias. See Gensburg, 85 M.S.P.R. 198, ¶ 6; see also Bieber v.
Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (stating that an
administrative judge’s conduct during the course of a Board proceeding warrants
a new adjudication only if the administrative judge’s comments or actions
evidence “a deep-seated favoritism or antagonism that would make fair judgment
impossible”) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The
4
The appellant has not alleged any error in the administrative judge’s findings
regarding her claims of race discrimination, sex discrimination, and retaliation for EEO
activity, and we find no reason to disturb those findings. ID at 10-11.
5
appellant argues that the administrative judge is “attempting to take away back
pay from [her],” and we note that the administrative judge issued a separate
decision denying her petition for enforcement of the Board’s final order.
PFR File, Tab 1 at 2-3. As explained in our separate decision upholding the
administrative judge’s decision in the compliance proceeding, Thompson v. U.S.
Postal Service, AT-0752-09-0883-C-1, Final Order (Sept. 9, 2016), we find that
the appellant has failed to establish bias in the administrative judge’s handling of
that proceeding. 5 Having reviewed the record in this matter, we find the
appellant’s assertions of bias insufficient to overcome the presumption of honesty
and integrity that is properly afforded the Board’s administrative judges. See
Gensburg, 85 M.S.P.R. 198, ¶ 7.
¶8 We further find that the appellant has failed to prove her disability
discrimination claim in connection with the contested continuation of her
suspension. 6 The appellant asserts that, at all relevant times, she was able to
perform the duties of her position but that the agency unlawfully suspended her
based on its incorrect perception that she could not perform the duties of her
position based on her medical diagnosis. 7 E.g., PFR File, Tab 1 at 9-10. The
Americans with Disabilities Act Amendments Act of 2008 (ADAAA) defines a
5
To the extent that the appellant is otherwise alleging error in the administrative
judge’s compliance initial decision, her arguments show no reversible error in the initial
decision in this case, and we have addressed her arguments regarding the scope of relief
in our separate decision denying the appellant’s petition for review in the
compliance matter.
6
The appellant did not raise any discrimination claims in her prior appeal regarding the
imposition of the indefinite suspension, and we find that her arguments on review
regarding the allegedly discriminatory decision to initiate her suspension are beyond the
scope of this appeal. E.g., PFR File, Tab 1 at 6.
7
The appellant has argued both failure to accommodate and disparate treatment theories
of disability discrimination. E.g., PFR File, Tab 1 at 7-10. An employee who is found
to be “disabled” solely under the “regarded as” theory is not entitled to reasonable
accommodation. Alford v. Department of Defense, 118 M.S.P.R. 556, ¶ 10 n.6 (2012);
29 C.F.R. § 1630.2(o)(4).
6
“disability,” in relevant part, as “a physical or mental impairment that
substantially limits one or more major life activities” or “[b]eing regarded as
having such an impairment.” 42 U.S.C. § 12102(A), (C); see 29 C.F.R.
§ 1630.2(g)(1)(i), (iii). The ADAAA and regulations issued by the Equal
Employment Opportunity Commission explain that “regarded as having such an
impairment” means that “the individual has been subjected to an action prohibited
by the [Americans with Disabilities Act (ADA)] as amended because of an actual
or perceived impairment that is not both ‘transitory and minor.’” 42 U.S.C.
§ 12102(3); 29 C.F.R. § 1630.2(g)(1)(iii); see 29 C.F.R. § 1630.2(l)(2).
¶9 “Establishing that an individual is ‘regarded as having such an impairment’
does not, by itself, establish liability.” 29 C.F.R. § 1630.2(l)(3). Rather, liability
under title 1 of the ADA is established “only when an individual proves that a
covered entity discriminated on the basis of disability within the meaning of
section 102 of the ADA, 42 U.S.C. 12112.” 29 C.F.R. § 1630.2(l)(3). That
provision of the ADA provides that “[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a) (emphasis added). Subject to certain
exceptions not relevant here, “[t]he term ‘qualified,’ with respect to an individual
with a disability, means that the individual satisfies the requisite skill,
experience, education and other job-related requirements of the employment
position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R.
§ 1630.2(m) (emphasis added).
¶10 The administrative judge concluded that the appellant failed to show that
she was a “‘qualified’ disabled person who, with or without reasonable
accommodation, could perform the essential duties of her position.” ID at 7. In
doing so, he considered the record evidence, including conflicting medical
7
opinions offered based on the results of her post-suspension fitness-for-duty
examination and subsequent medical certificates from the appellant’s neurologist.
ID at 7-8. He found that the certificates upon which the appellant relied were
“entirely conclusory” and “devoid of any medical documentation or explanation.”
ID at 8. In contrast, the administrative judge found that the testimony and
medical opinions relied upon by the agency explained how her medical condition
rendered her unable to safely perform the specific work requirements of her
position, with or without accommodation. Id.; Thompson, MSPB Docket
No. AT-0752-09-0883-I-1, Initial Appeal File, Tab 10, Exhibits M-N. Although
the appellant has disputed this evidence, we agree with the administrative judge’s
findings that it was more detailed and reliable than the other conclusory opinions
cited by the appellant to demonstrate that she was fit for duty in this position.
ID at 7-8. Thus, we find that the record does not support the appellant’s claim
that the agency was continuing her suspension based on a diagnosis alone without
due consideration of whether she could safely perform the duties of her particular
position. PFR File, Tab 1 at 9-10. We further find that the agency properly
refused to return the appellant to work absent further information from the
appellant establishing that she was fit for duty with or without reasonable
accommodation. Cf. Rosario-Fabregas v. Department of the Army, 122 M.S.P.R.
468, ¶¶ 14, 19 (2015) (finding that the agency had the right to prevent the
appellant from returning to work in the absence of proper medical documentation
under its regulations), aff’d, No. 2015-3102, 2016 WL 4363176 (Fed. Cir. Aug.
16, 2016); Norrington v. Department of the Air Force, 83 M.S.P.R. 23, ¶¶ 10-13
(1999) (finding that the appellant’s work releases were not sufficient to show that
he was fit to return to duty). Thus, we find that the appellant has failed to prove
her claim of disability discrimination.
¶11 The Board previously ordered the agency to cancel the indefinite suspension
at issue here, pay the appellant appropriate back pay and interest, and provide
other appropriate benefits. Thompson, MSPB Docket No. AT-0752-09-0883-I-1,
8
Final Order at 8. We conclude, in light of our findings denying the appellant’s
claims of discrimination, that she is not entitled to any further relief as a result of
this appeal. The appellant’s arguments regarding the appropriate scope of her
available relief have been fully adjudicated in her petition for enforcement of the
Board’s April 30, 2014 final order. Accordingly, because there is no further
relief that could be provided, this appeal is dismissed as moot. See Harris v.
Department of the Air Force, 100 M.S.P.R. 452, ¶ 11 (2005).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 U.S.C. § 1201.113. 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). 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
9
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 U.S. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
