Filed: Aug. 10, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD OLAF OMARSON, DOCKET NUMBER Appellant, DC-0752-15-0675-I-1 v. DEPARTMENT OF HOMELAND DATE: August 10, 2016 SECURITY, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Olaf Omarson, Gaithersburg, Maryland, pro se. Laura L. Forest, Washington, D.C., 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 affirmed his removal. Generall
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD OLAF OMARSON, DOCKET NUMBER Appellant, DC-0752-15-0675-I-1 v. DEPARTMENT OF HOMELAND DATE: August 10, 2016 SECURITY, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Olaf Omarson, Gaithersburg, Maryland, pro se. Laura L. Forest, Washington, D.C., 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 affirmed his removal. Generally..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OLAF OMARSON, DOCKET NUMBER
Appellant, DC-0752-15-0675-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 10, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Olaf Omarson, Gaithersburg, Maryland, pro se.
Laura L. Forest, Washington, D.C., 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
affirmed 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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
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. 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, 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).
BACKGROUND
¶2 The agency removed the appellant, a GS-14 Immigration Officer in the
Fraud Detection and National Security unit of the agency’s Bureau of Citizenship
and Immigration Services on a charge of unauthorized use of the Treasury
Enforcement Communications System (TECS), which was supported by
45 specifications. 2 Initial Appeal File (IAF), Tab 1; IAF, Tab 5 at 8-9, 24-29,
38-45. He subsequently filed this appeal and did not request a hearing. IAF,
Tab 1. He stipulated to the agency’s charges but argued that the agency
discriminated against him on the basis of his disability when it failed to
accommodate his Obsessive Compulsive Disorder (OCD), Major Depressive
Disorder, and Attention Deficit Hyperactivity Disorder (ADHD) medical
conditions, which he conceded that neither he nor the agency were aware of prior
to the agency proposing his removal. IAF, Tab 17 at 2-3; IAF, Tab 18. 3
2
TECS is a sensitive database through which certified agency personnel access several
law enforcement information systems, for official use only and on a strict need-to-know
basis. Initial Appeal File, Tab 5 at 8-9.
3
In response to the administrative judge’s prehearing conference summary, the
appellant clarified that both he and the agency learned of his medical conditions
3
¶3 Citing the appellant’s stipulations to all of the specifications comprising the
agency’s charge, as well as to a nexus with the efficiency of the service should
misconduct be established, IAF, Tab 17 at 4, the administrative judge affirmed
the appellant’s removal, finding that the deciding official considered the relevant
Douglas factors and concluding that the penalty of removal did not exceed the
bounds of reasonableness, IAF, Tab 25, Initial Decision (ID) at 8-11. The
administrative judge also rejected the appellant’s affirmative defense of disability
discrimination, finding that, because the agency issued the notice of proposed
removal before either party knew of the appellant’s medical conditions, it
could not have taken the action because of any actual or perceived impairment,
and the record did not reflect that the appellant had informed the agency of a
reasonable accommodation that would allow him to perform the duties of his
position. ID at 14.
¶4 In his timely filed petition for review, the appellant argues that he does not
need his Top Secret security clearance, which the agency suspended in light of its
investigation into the misconduct at issue, IAF, Tab 8 at 47-48, 4 in order for him
to access TECS because that system does not contain classified information,
Petition for Review (PFR) File, Tab 1 at 5. He contrasts his unblemished use of
other, Top Secret databases with his “impulsive use of TECS” which he maintains
was the result of his then-unknown and undiagnosed OCD, ADHD, and major
depression. Id. He contends that the agency learned of his medical conditions
before making its final decision to remove him and that it therefore should have
considered his mental conditions a mitigating circumstance in making that
determination. Id. The appellant also reiterates his claim that the agency could
following the issuance of the notice of proposed removal. IAF, Tabs 17-18. The
administrative judge accurately described the appellant’s stipulation in his analysis.
IAF, Tab 24 at 14.
4
The agency’s report of investigation into the appellant’s misconduct is spread across
two tabs: IAF, Tab 7 at 30-118 and IAF, Tab 8 at 4-47.
4
have accommodated him without undue hardship by assigning him to a position
that did not require the use of TECS. Id. at 5-7. The agency responds in
opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 As noted above, the appellant stipulated to all of the agency’s specifications
and to the element of nexus should the administrative judge find misconduct.
IAF, Tab 17 at 4; ID at 8-9. The appellant’s stipulation that he accessed
information in TECS without authorization is sufficient to prove the charge of
misusing TECS. E.g., Anderson v. Tennessee Valley Authority, 77 M.S.P.R. 271,
275 (1998) (explaining that parties may stipulate to any matter of fact and the
stipulation will satisfy a party’s burden of proving the fact alleged); 5 C.F.R.
§ 1201.63. Accordingly, we agree with the administrative judge and find no
reason to disturb his finding that the agency proved its charge and that a nexus
exists between the appellant’s misconduct and the efficiency of the service.
¶6 We also agree with the administrative judge that the appellant failed to
establish his affirmative defense of disability discrimination. ID at 11-15.
Assuming the appellant’s misconduct was, as he contends, a manifestation of his
alleged disabling conditions of OCD, ADHD, and major depression, neither the
Rehabilitation Act of 1973 nor the Americans with Disabilities Act of 1990
(ADA) immunize disabled employees from being disciplined for misconduct in
the workplace, provided the agency would impose the same discipline on an
employee without a disability. E.g., Laniewicz v. Department of Veterans Affairs,
83 M.S.P.R. 477, ¶ 5 (1999). Although we concur with the administrative judge’s
determination that the agency did not take the action at issue because of an actual
or perceived impairment, ID at 14, even if it had done so, a disabled employee
is not “immunize[d]” from discipline for misconduct, provided that “the agency
would impose the same discipline on an employee without a disability.”
Fitzgerald v. Department of Defense, 85 M.S.P.R. 463, ¶ 12 (2000) (observing
5
that an agency is never required to excuse a disabled employee’s violation of a
uniformly applied, job-related rule of conduct, even if the employee’s disability
caused the misconduct). Further, because agencies have a duty to provide
accommodation only to “otherwise qualified” employees, agencies have no
obligation to accommodate employees who have committed misconduct because,
as a result of their misconduct, they are not “otherwise qualified” employees. 5 Id.
Moreover, the appellant failed to show that the agency would not have imposed
the same discipline on an employee without a disability who committed the
same misconduct.
¶7 Finally, we agree with the administrative judge that the penalty of removal
is well within the bounds of reasonableness. ID at 11. As noted above, the
appellant’s stipulation to the specified misconduct is sufficient to sustain the
charge, and under such circumstances the Board will review the agency’s choice
of penalty only to determine if it considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The administrative judge
found that the deciding official considered all the relevant factors, concluding
that, in light of the direct relationship between the appellant’s admitted
misconduct and his duties and the clear notice he had that such behavior was
prohibited, the aggravating factors far outweighed any mitigating factors present.
ID at 9-10; IAF, Tab 5 at 26-27. In his petition for review, the appellant argues
that the agency should have considered his previously undiagnosed mental
conditions a mitigating circumstance in making its decision. PFR File, Tab 1
at 5.
5
Although 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.), changed the
interpretation of the law concerning the definition of a disability, the ADAAA did not
affect the requirements of the law as to reasonable accommodation. See Davis v. U.S.
Postal Service, 119 M.S.P.R. 22, ¶ 11 n. 4 (2012).
6
¶8 Evidence that an employee’s medical condition “played a part in the
charged conduct is ordinarily entitled to considerable weight as a significant
mitigating factor.” Roseman v. Department of the Treasury, 76 M.S.P.R. 334,
345 (1997); see, e.g., Robb v. Department of Defense, 77 M.S.P.R. 130, 137
(1998). In circumstances where the medical conditions are reasonably
substantiated, and shown to be related to the grounds for removal, they must be
considered in the penalty analysis. E.g., Norris v. Securities & Exchange
Commission, 675 F.3d 1349, 1356-57 (Fed. Cir. 2012). Nevertheless, contrary to
the appellant’s contentions on review, the deciding official explicitly considered
the appellant’s arguments in this regard and found them insufficient to mitigate
the penalty. IAF, Tab 5 at 27. The administrative judge acknowledged this, ID
at 8, and we agree with him that the seriousness of the proven misconduct,
especially considering the length of time over which it repeatedly occurred and
the appellant’s disregard for the clear notice which the agency provided that such
behavior was prohibited, demonstrated poor rehabilitative potential and
significantly outweighed the mitigating factors of his long record of satisfactory
service and his medical impairment, ID at 9-11.
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 U.S. 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
7
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 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
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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.
