United States Merit Systems Protection Board

Case Report for September 2, 2011

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.



Appellant:  Robert Southerland

Agency:  Department of Defense

Decision Number:  2011 MSPB 78

Docket Numbers:  SF-0752-09-0864-I-2; SF-0752-09-0864-I-2

Issuance Date:  August 25, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Removal/Suspension - More than 14 Days

Adverse Action Charges – Insubordination
Disability Discrimination
 - Qualified Individual with a Disability
 - Proof of Claim – But-For Cause vs. Mixed Motive Analysis

         The agency petitioned for review of an initial decision that reversed the appellant’s suspension and removal.  After partially recovering from a work-related injury, the agency assigned him to administrative work because he was unable to perform all his duties as a Distribution Process Worker.  Several months later, the agency requested additional medical information seeking clinical findings, a diagnosis, and a prognosis.  The appellant met with his physician and showed him the agency’s letter.  The physician told the appellant he could not provide the requested information without further tests and instead provided the appellant with a prescription slip stating that the appellant should continue on light duty.  Two months later, the agency gave the appellant a second letter, again asking for a prognosis and a date for his return to full duty and stating that the appellant had failed to provide requested medical documentation since he returned to duty.  Again, the appellant’s physician provided a prescription slip ordering light duty.  The agency then proposed and effected a 30‑day suspension on a charge that the appellant was insubordinate for failing to provide the requested medical information.  Following that, the appellant provided the agency with some medical documentation, but the agency issued him a third letter, stating that the information supplied was insufficient and again requesting medical documentation.  The agency subsequently proposed and effected the appellant’s removal for insubordination for not providing the requested medical documentation, and for AWOL and failure to request leave in accordance with established procedures. 

         On appeal, the administrative judge reversed the agency’s suspension and removal actions.  The judge found that the appellant’s failure to obey instructions to provide specific medical documentation was not willful, concluding that the appellant had made efforts to comply.  Although the judge found that the agency established the AWOL and failure to follow leave requesting procedures charges, these offenses were de minimis, and that further discipline (counseling memoranda has already been issued regarding these) for these offenses was unreasonable and unwarranted.  The judge further found that the appellant was a qualified individual with a disability, that the deciding official considered the appellant’s disabled status, and that the agency would not have taken the same action in the absence of the impermissible discriminatory motive. 

Holdings:  The Board affirmed the initial decision with respect to the charges of AWOL and failure to request leave in according with established procedures, vacated the initial decision with respect to the charges of insubordination and the finding of disability discrimination, and remanded the appeal to the regional office for further adjudication:

1.  The Board affirmed the judge’s findings regarding the charges of AWOL and failure to request leave in accordance with established procedures.

2.  The Board vacated and remanded the judge’s findings as to the insubordination charges.

a.  Insubordination is the willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed.  If an employee attempted to comply with an order, he was not insubordinate. 

b.  The judge failed to address testimony by the appellant’s physician that contradicted the appellant’s assertion that he tried and failed to obtain medical documentation responsive to the agency’s requests, and failed to make credibility determination to resolve this conflict.  Remand is therefore necessary.

3.  The judge improperly assumed that the appellant is disabled. 

a.  Although the appellant’s claim of discrimination on the basis of disability arises under the Rehabilitation Act of 1973, the regulatory standards (29 C.F.R. part 1630) for the Americans with Disabilities Act (ADA) have been incorporated into the Rehabilitation Act.  Because the adverse actions in this case were taken after the effective date of ADA Amendments Act of 2008 (ADAAA), that Act applies in this case.

b.  The medical documentation in the record does not establish that the appellant is disabled, because there is little to no information in the record as to the severity or duration of the appellant’s lifting impairment, or the expected permanent or long-term impact of or resulting from the impairment. 

4.  The judge improperly applied a mixed-motive analysis in analyzing the disability discrimination claim.  The Board found the decision of the Seventh Circuit in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), persuasive in this regard.  An appellant must prove by preponderant evidence that the agency would not have taken the adverse action “but for” his actual or perceived disability. 

a.  In Serwatka, the court reasoned that the “importance that the [Supreme Court in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009)] attached to the express incorporation of the mixed-motive framework into Title VII suggests that when another anti-discrimination statute lacks comparable language, a mixed-motive claim will not be viable under that statute.”

b.  There is no language in the ADAAA that would make the Title VII mixed-motive analysis applicable to cases under the ADAAA.

c.  Because the phrases “because of” in the ADA and “on the basis of” in the ADAAA appear to modify the same terms and serve the same functions, the Board concluded that they had the same meaning in both statutes.

Appellant:  Fae Driscoll

Agency:  United States Postal Service

Decision Number:  2011 MSPB 80

Docket Number:  SF-0752-07-0409-A-1

Issuance Date:  August 31, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Attorney Fee Request

Attorney Fees
 - Prevailing Party
 - Reasonableness of Fees

         The appellant petitioned for review of an addendum initial decision that awarded her $48,091.55 in attorney fees and expenses.  In the underlying appeal, the agency had removed the appellant from her position as an EAS-17 Supervisor based on two charges of misconduct, and the appellant raised the affirmative defenses of discrimination based on sex, age, race, and national origin, and reprisal for EEO activity.  The administrative judge sustained one charge, but not the other, found that the appellant failed to prove her affirmative defenses, and mitigated the removal to a demotion to a vacant non-supervisory position with the least reduction in grade and pay.  In granting in part the appellant’s subsequent motion for attorney fees and expenses, the administrative judge disallowed certain hours and reduced the remaining hours by 25% to account for the appellant’s limited success.

Holdings:  The Board granted the appellant’s petition for review in part, and awarded $58,779.68 in attorney fees and expenses:

1.  The appellant was a prevailing party in the appeal as a whole.

a.  Relying on Board precedent, the administrative judge found that the appellant was a prevailing party with respect to the initial decision, but not with respect to her unsuccessful petition for review, and therefore did not award attorney fees for the time spent on the unsuccessful petition.

b.  Contrary to the cited precedent, the Board does not determine prevailing party status on a line-item basis.  An appellant is, or is not, a prevailing party in the case as a whole, and whether she may be deemed a prevailing party depends on the relief ordered in the Board’s final decision.  Here, the appellant was a prevailing party with respect to the underlying appeal as a whole.

2.  The administrative judge erred in disallowing some hours before calculating the lodestar amount based on the limited nature of the appellant’s success. 

a.  Under Hensley v. Eckerhart, 461 U.S. 424 (1983), the analysis of a reasonable award of attorney fees proceeds in two phases.  The first task is to take the hours reasonably spent on the litigation multiplied by a reasonable hourly rate, which results in a “lodestar” amount.  Excluded in this phase are hours for which the prevailing party failed to provide adequate documentation, and hours that were not reasonably expended. 

b.  In the second phase, the lodestar may adjusted upward or downward based on other considerations, including the crucial factor of the “results obtained.” 

c.  Applying these principles, the Board restored a number of disallowed hours to the lodestar calculation, finding a lodestar figure of $73,187.50. 

3.  Under the circumstances of this case, the Board reduced the lodestar figure by 25% because of the limited nature of the appellant’s success.

a.  Where an appellant is entitled to an award of attorney fees but does not succeed on every claim or issue, the case will fall into one of three distinct categories:  (1) Where the appellant has failed to prevail on a claim that is distinct in all respects from her successful claims, the hours spent on the unsuccessful claim should be excluded; (2) Where the action consists of related claims, an appellant who has won substantial relief should not have her attorney fee reduced simply because the Board did not adopt each contention raised; (3) But where the appellant achieved only limited success, the Board should award only that amount of fees that is reasonable in relation to the results obtained.

b.  In a previous decision, the Board held that the first approach should be followed where an appellant prevails only on the issue of penalty.  The Board found that holding incorrect, and overruled it.  In a typical removal appeal, such as this one, the appellant asserts a single claim for relief—that the Board set aside the removal action.  The appellant raises alternative arguments in support of that effort—by challenging the charges, the reasonableness of the penalty, and raising affirmative defenses—but these are not distinct claims for relief.

c.  Here, the appropriate action is to consider whether the degree of success warrants an award based on all hours reasonably spent on the litigation and, if not, what adjustment is appropriate.  In doing, so, the Board will weigh the significance of the relief obtained against the relief sought; there is no precise rule or formula for making such a determination.

d.  Under the circumstances of this case, the appellant obtained only “partial or limited” relief, and a downward adjustment to the lodestar is warranted.  Considering the significance of both the relief awarded and the relief sought and not obtained, the Board found no basis to disturb the judge’s finding that a 25% reduction of the lodestar would fairly reflect the appellant’s limited success. 

Appellant:  Michael L. Brunner

Agency:  Department of Homeland Security

Decision Number:  2011 MSPB 79

Docket Number:  SF-0752-10-0274-I-1

Issuance Date:  August 31, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

         In a nonprecedential decision, a majority of the Board denied the agency’s petition for review, affirming an initial decision that ordered the agency to cancel the appellant’s removal and restore him to employment.  In so ruling, the majority ruled that the administrative judge did not abuse his discretion in denying the agency’s request for a particular witness because that witness had not been identified in its response to the judge’s acknowledgment order.  In a dissenting opinion, Member Rose agreed that the agency’s failure to disclose the witness was negligent, but found no evidence of bad faith or any prejudice to the appellant.  Under these circumstances, she concluded that the imposition of this sanction was not “necessary to serve the ends of justice,” and stated that she would have remanded the appeal to reopen the record and allow the witness’s testimony.