Michelle P Joachin v. Department of the Army

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

MICHELLE P. JOACHIN, DOCKET NUMBER Appellant, DA-0752-19-0528-I-1 v. DEPARTMENT OF THE ARMY, DATE: January 10, 2025 Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 R. Chris Pittard , Esquire, San Antonio, Texas, for the appellant.

Olga Sinquefield , Esquire, Fort Bliss, Texas, for the agency.

Matthew Watson , El Paso, Texas, for the agency.

BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member

FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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). 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).

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).

On review, the appellant argues that, contrary to the administrative judge’s findings, she proved that the agency discriminated against her based on her disability and failed to reasonably accommodate her. Petition for Review (PFR) File, Tab 1 at 9-12; Initial Appeal File (IAF), Tab 34, Initial Decision (ID) at 21-22, 25-26.

First, we are unpersuaded by the appellant’s argument that, in order for a reassignment to constitute a reasonable accommodation, it must be agreed to by both parties. PFR File, Tab 1 at 9. An appellant is not entitled to a specific accommodation or the one that she desires. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 15 (2014) (stating an employer does not have to provide the requested accommodation or adjustment). Thus, the appellant’s refusal to accept the agency’s offered reassignments, on its own, does not support a finding that the agency failed to provide her with a reasonable accommodation. Similarly, we are unconvinced by the appellant’s argument that the reassignment to the Medical Support Assistant (MSA) position offered by the agency posed a “direct threat” to her health. PFR File, Tab 1 at 11. The medical provider’s letter, cited by the appellant, only states that the MSA position “could” exacerbate her condition.

IAF, Tab 15 at 81. Such a conditional statement is insufficient to establish that the position was a “direct threat” to the appellant, nor does it justify the appellant’s refusal to report to duty, which led to her removal. See Cano v. U.S. Postal Service, 107 M.S.P.R. 284, ¶ 14 (2007) (in determining whether an individual would pose a direct threat to the health or safety of herself or others, factors to be considered include, among other things, the likelihood that potential harm will occur and the imminence of the potential harm). Ultimately, we agree with the administrative judge’s finding that the appellant did not prove that the agency failed to reasonably accommodate her. ID at 21.

Furthermore, contrary to the appellant’s assertions on review, we agree with the administrative judge that she did not otherwise prove that her removal was based on her disability. ID at 23-26; PFR File, Tab 1 at 9-12. Nonetheless, in analyzing the appellant’s disability discrimination claim, the administrative judge identified the legal standard set forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), discussed the various methods of direct and circumstantial evidence, and concluded that the appellant did not prove that her disability was a motivating factor in her removal. ID at 23-26. The Board has since overruled Savage to the extent that it held that the McDonnell Douglas framework is not applicable to Board proceedings. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 25 (citing McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973)). Regardless, the outcome of this appeal under Pridgen would be the same as that arrived at by the administrative judge. Notably, under Pridgen, to obtain any relief, the appellant must still show, at a minimum, that her disability was a motivating factor in the agency’s decision to remove her, Pridgen, 2022 MSPB 31, ¶¶ 20-22, 40, and we agree with the administrative judge that the appellant did not make this showing, ID at 23-26. Therefore, because she did not prove that her disability was a motivating factor in her removal, the appellant necessarily cannot prove that it was a “but-for” cause of her removal. Pridgen, 2022 MSPB 31, ¶¶ 22, 40.

NOTICE OF APPEAL RIGHTS 2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.

Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.