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Case Report
for September 2, 2011 |
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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 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 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 Appellant: Fae Driscoll Agency: 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 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. |
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