U.S. Merit Systems Protection Board 
Case Report for March 14, 2014

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Joseph P. Clemens
Agency:  Department of the Army
Decision Number:  2014 MSPB 14
Docket Number:  CH-0752-12-0237-I-2
Issuance Date:  March 10, 2014
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Removal 
 - Physical Inability to Perform Duties of Position compared to Medical Inability to Perform Duties of Position
 - Proof of Charge
-  Disability Discrimination Claim under Rehabilitation Act
-  Entitlement to Reasonable Accommodation

    The appellant suffered a significant loss of his speech ability following a stroke and the agency thereafter removed him from his Supervisory Public Safety Dispatcher position based on a charge of physical inability to perform the duties of his position.  The administrative judge reversed the action in accordance with an analysis set out in Slater v. Department of Homeland Security, 108 M.S.P.R.419, para. 11 (2008), that in order to remove an employee for physical inability to perform, the agency must show 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.   The administrative judge found that the agency did not prove that the appellant was medically disqualified from performing his duties, or that there was a reasonable probability of substantial harm.  The administrative judge also made a finding of disability discrimination based on findings that the appellant had a disability, a physical condition that limits the major life activity of speaking, and that the agency failed to consider reasonable accommodation such as assigning him to another position.  Finally, the administrative judge found that the appellant did not prove his remaining affirmative defenses of age discrimination, retaliation, and harmful procedural error.  The agency argued in its petition for review that the administrative judge failed to consider medical evidence proving the appellant’s inability to perform key work duties, erred in relying on the appellant’s assertion that the agency could have accommodated him, and failed to consider the appellant’s position description. 

Holdings:  The Board denied the appellant’s petition for review, granted the agency’s petition for review, reversed the initial decision, including its finding of disability discrimination, and sustained the appellant’s removal. 

1.  The administrative judge’s reliance on Slater v. Department of Homeland Security is misplaced because Slater pertains to the analysis of a charge of medical inability to perform and not physical inability to perform.  Because the appellant did not hold a position with medical standards or physical requirements subject to medical evaluation programs, Slater does not apply to the analysis of a charge of physical inability to perform.

2.   In order to establish a charge of physical inability to perform the duties of a position, the agency must prove a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others.  In other words, the agency must establish that the appellant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position.  The agency is not required to show that it was unable to reasonably accommodate the appellant by assigning him to a vacant position for which he was qualified; whether it could do so goes to the affirmative defense of disability discrimination or the reasonableness of the penalty.

3.   Core duties of a position are synonymous with its essential functions; i.e.; the fundamental job duties of the position, not including marginal functions; a job duty may be considered essential for any number of reasons and evidence of whether a particular job duty is essential can include the employer’s judgment as to which functions are essential, the written position description, the amount of time spent performing the function, and the consequences of not requiring the incumbent to perform the function.  Citing to 29 C.F.R. 1630.2(n)(3).

4.   Essential functions of Supervisory Public Safety Dispatcher postion include significant verbal communication requiring incumbent to maintain continuous telephone contact.  Because the appellant here was unable to safely and efficiently perform the core duty of verbal communication as a result of injuries from a stroke, the appellant could not perform essential functions of his position and the agency was not required to modify or eliminate such an essential duty.

5.   AJ erred in concluding that the appellant was an individual with a disability because he was substantially limited in the major life activity of communicating and because he did not find that the appellant was a qualified individual with a disability; that is, whether he could perform the essential functions of his position or a vacant funded position to which he could be assigned, with our without reasonable accommodation.  The appellant did not present sufficient evidence that would establish that he was a qualified individual with a disability and the appellant neither requested accommodation nor adequately provided information concerning his ability to return to his position with an accommodation.

6.  Even if the appellant had requested reasonable accommodation, an agency’s failure to engage in the accommodation interactive process alone does not violate the Rehabilitation Act; rather, the appellant must show that this omission resulted in failure to provide reasonable accommodation.

7.   Given that the appellant’s medical condition required long-term recovery and rehabilitation, without a foreseeable end to his recovery, removal promotes the efficiency of the service.



Appellant:  Cecil Cole
Agency:  Department of the Air Force
Decision Number:  2014 MSPB 16
Docket Number:  DA-0752-13-0134-I-1
Issuance Date:  March 11, 2014
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Removal
 
- Use of An Illegal Drug compared to Charge of Failure to Pass Drug Test
 - Proof of Charge
 - Disability Discrimination Claim under Rehabilitation Act
 - Entitlement to Reasonable Accommodation

The appellant was removed from the position of Aircraft Engine Repairer based on a charge of use of an illegal drug following the results of a urinalysis that his sample tested positive for marijuana metabolites.  The administrative judge reversed the removal based on findings that the appellant’s admission that he used marijuana, standing alone, was insufficient to establish a charge of use of an illegal drug, that the agency failed to establish that the appellant tested positive for marijuana on the drug test, that the record failed to show when the appellant used marijuana, that the appellant never specifically admitted to failing the drug test, and that the test on which the agency relied to remove the appellant was not proven to be valid because a chain of custody had not been established. 

Holdings:   The Board granted the agency’s petition for review, vacated the initial decision, and sustained the removal action.

1.   The essence of the charge is that the appellant used an illegal drug and the agency is only required to prove elements that make up the legal definition of that charge.

2.   The appellant’s numerous unrecanted admissions that he had used marijuana may be relied on by the agency as preponderant proof of the charge that he used an illegal drug.  The agency was not required to show that the appellant tested positive for marijuana based on the drug test administered him.

3.   Reliance on Boykin v. U.S. Postal Service, 51 M.S.P.R. 56 (1991) is misplaced because the charge at issue in Boykin was testing positive for cocaine use and not use of an illegal drug.  

4.   Removal penalty is appropriate because the nature of the appellant’s work renders the sustained misconduct serious, as work performed on an aircraft engine while under the influence of drugs could result in an accident with potential loss of life and property; the serious risk to the safety of those dependent upon the proper maintenance of an aircraft obviates any mitigating factors.   



Appellant:  Carlton E. Hooker, Jr.
Agency:  Department of Veterans Affairs
Decision Number:  2014 MSPB 15
Docket Number:  AT-1221-11-0246-B-1
Issuance Date:  March 11, 2014
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Whistleblower Protection Enhancement Act of 2012

 - Retroactivity of Proposed Personnel Action- Proposed Action, Testifying or Otherwise Lawfully Assisting, Board Authority to Order Corrective Action

  The Board remanded this individual right of action (IRA) appeal for a determination of whether the appellant sought to appeal his proposed removal or his effected removal.  The administrative judge found that the appellant was pursuing an appeal of the agency’s action proposing his November 16, 2009 removal and that his alleged protected disclosure was his November 18, 2009 complaint to the Office of Special Counsel (OSC).  The administrative judge held that although disclosures to OSC may be covered by the Whistleblower Protection Act, the appellant’s disclosure to OSC could not have been a contributing factor in the proposed removal because the proposed removal occurred before the alleged disclosure.  The administrative judge further found that, although the appellant asserted that the agency proposed his removal in reprisal for his participation in a whistleblower case initiated by another employee in 2008, and although such an assertion might constitute a prohibited personnel practice under 5 U.S.C. 2302(b)(9), such an allegation was not considered reprisal for whistleblowing under 5 U.S.C. 2302(b)(8).

Holdings:  The Board denied the petition for review and affirmed the initial decision as Modified.

1. Although the appellant contends that the administrative judge did not specifically address the issue of whether the proposed removal was a personnel action, such finding was unnecessary because the Board already made that finding in its remand order and, in any case, this issue need not be addressed because the appellant did now show that his disclosure to OSC was a contributing factor in his proposed removal.

2. The provisions of the Whistleblower Protection Enhancement Act (WPEA) of 2012 permitting the filing of an IRA appeal based on an allegation that a personnel action was taken or proposed as a result of a prohibited personnel practice described at 5 U.S.C. 2302(b)(9)(B) is inapplicable in the present case because the WPEA amendments were signed into law, and did not become effective, until after issuance of the February 2, 2012 initial decision.

3. Under the broadened scope of 5 U.S.C. 1221(a), as amended, an employee, former employee, or applicant for employment may now, with respect to any personnel action taken, or proposed to be taken against such employee, former employee, or applicant for employment as a result of a prohibited personnel practice under 5 USC USC 2302(b)(9)(A)(ii), (B), (C), or (D), seek corrective action from the Board.

4. Under the broadened scope of the amended section 2302(b)(9)(B) a personnel action is not permitted because of an employee's testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in this section, and grants the Board authority to order corrective action.

5. In cases pending before the Board when the WPEA was enacted, the Board adopted, in its recent ruling in Day v. Department of Homeland Security, 119 M.S.P.R. 589, 594, the analytical approach set for the in Landgraf v. USI Film Products, 511 U.S. 244 (1994), to determine whether provisions of the WPEA should be given retroactive effect.  The Board first noted that there is tension between two established canons of statutory interpretation, i.e., the presumption against statutory retroactivity and the principle that courts should apply the law in effect at the time it renders its decision.  To determine retroactivity, the Board referred to Day in citing the Landraf retroactivity doctrine:
     
When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i. e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

Day at 594, citing to Landgraf at 247.

6. Because the WPEA provides that the Act would become effective 30 days after its enactment and Congress did not establish the “temporal reach” of the WPEA, the Board concluded that retroactivity was not intended.  The Board reasoned further, in accordance with the Landgraf analysis that because retroactivity of the WPEA would increase an agency’s liability for past conduct as compared to pre-WPA liability, retroactivity cannot be applied.  Here, the WPEA creates a new Board appeal right in IRA appeals for employees who allege that a personnel action has been proposed to be taken as a result of a prohibited personnel practice, and includes a new provision directing the Board to order corrective action when such protected activity is a contributing factor in a personnel action.  


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Burroughs v. Department of the Army, No. 2014-3008, (Mar. 10, 2014) (MSPB Docket No. DA-4324-13-0149-I-1 (affirming Board decision dismissing claims under USERRA, VEOA and WPA because USERRA claim barred by doctrine of issue preclusion; current appeal involves same set of transactional facts as prior 2006 Board appeal; and VEOA and WPA claims barred because the appellant did not exhaust administrative remedies before the Department of Labor and the Office of Special Counsel)

Sczygelski v. Merit Systems Protection Board, No. 2014-3007 (Mar. 10, 2014) (DE-3443-08-0306-I-1) (affirming the Board dismissal finding that PFR untimely by four years; appellant did not exercise either the due diligence or ordinary prudence necessary to justify waiver; appellant did not establish entitlement to reopening because appellant did not demonstrate good cause for filing delay and agency is not required to establish that it would be prejudiced by reopening)


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