                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GWENDOLYN G. THOMPSON,                          DOCKET NUMBER
                  Appellant,                         AT-0752-11-0891-I-4

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 9, 2016
                   Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Samuel L. Lovett, Sr., Atlanta, Georgia, for the appellant.

           Christopher Pearson, Atlanta, Georgia, 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
     concerning the alleged improper continuation of an indefinite suspension based
     on medical inability to perform the duties of her position. Based on the result of
     a prior Board appeal finding that the suspension was not properly imposed at the
     outset, the initial decision reversed the suspension for the contested continuation

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     period at issue in this appeal. The initial decision further found that the appellant
     had failed to prove her affirmative defenses of retaliation for equal employment
     opportunity (EEO) activity and discrimination based on race, sex, and disability.
¶2         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 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).
¶3         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. We AFFIRM
     the initial decision’s findings that the appellant failed to prove her affirmative
     defenses of retaliation for EEO activity and discrimination based on race and sex.
     We VACATE the portion of the initial decision addressing the appellant’s
     disability discrimination claim and FIND that the appellant failed to establish this
     claim for the reasons set forth in this Order. We further FIND that any relief the
     appellant could receive in this matter would be duplicative of the relief previously
     ordered by the Board in its final order resolving the prior appeal regarding the
     imposition of this indefinite suspension. Because the appellant is not entitled to
     any additional relief, we VACATE the initial decision’s duplicative order to
     reverse the continuation of this already cancelled suspension, and we DISMISS
     this appeal as moot.    Except as expressly MODIFIED by this final order, we
     AFFIRM the findings in the initial decision.
                                                                                              3

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶4         The agency suspended the appellant based on her alleged medical inability
     to perform the duties of her position as a Supervisor, Maintenance Operations, at
     the agency’s Atlanta Bulk Mail Center.            She filed an appeal regarding the
     imposition of the suspension, Thompson v. U.S. Postal Service, MSPB Docket
     No. AT-0752-09-0883-I-1, and, while that appeal was pending, she initiated this
     separate    matter   concerning     the   allegedly    discriminatory     and   improper
     continuation of her suspension. 2 In its final order in the appeal regarding the
     imposition of the suspension, the Board ordered the agency to cancel the
     appellant’s suspension and pay her the correct amount of back pay, interest on
     back pay, and other benefits. Thompson v. U.S. Postal Service, MSPB Docket
     No. AT-0752-09-0883-I-1, Final Order (Apr. 30, 2014).
¶5         The administrative judge concluded that, under the doctrine of law of the
     case, the Board’s final order required entry of a similar order in this appeal
     cancelling the suspension and ordering the agency to pay the appellant the
     appropriate amount of back pay, interest on back pay, and other benefits.
     Thompson v. U.S. Postal Service, MSPB Docket No. AT-0752-11-0891-I-4,
     Appeal File, Tab 18, Initial Decision (ID) at 3, 12.          The administrative judge
     noted, however, that the appellant already may have received all of the relief to
     which she is entitled as a result of the relief afforded in connection with her prior
     appeal. 3   ID at 12.   The administrative judge further found that the appellant


     2
       The imposition of an indefinite suspension and the failure to terminate that suspension
     after the condition subsequent has occurred are separately reviewable agency actions.
     Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1381 (Fed. Cir. 2007);
     Arrieta v. Department of Homeland Security, 108 M.S.P.R. 372, ¶ 9 (2008).
     3
       The appellant also filed a petition for enforcement of the Board’s April 30, 2014 final
     order with the regional office. The administrative judge denied the appellant’s petition
     and found that the appellant was not entitled to relief after the date of a post-suspension
     fitness-for-duty examination showing that she was medically unable to perform the
     duties of her position. Thompson v. U.S. Postal Service, MSPB Docket No. AT-0752-
     09-0883-C-1, Initial Decision (Sept. 3, 2015).
                                                                                           4

     failed to prove, and thus was not entitled to further relief regarding, her claims in
     this appeal of discrimination (disability, race, and sex) and retaliation for prior
     EEO activity. ID at 4-11.
¶6         The appellant has filed a petition for review on the grounds that the
     administrative judge was biased and erroneously concluded that she failed to
     prove her disability discrimination claim. 4 Petition for Review (PFR) File, Tab 1.
     She requests that the Board rule that the initial decision in this matter is a “moot
     issue” or modify the initial decision to clarify that she is entitled to relief for the
     entire period of her suspension. Id. at 1. The agency has filed an opposition to
     the petition for review, PFR File, Tab 3, and the appellant has filed a reply in
     which, among other things, she refers to evidence already in the record from her
     treating physician addressing her ability to work in her position, PFR File, Tab 4.
¶7         We have considered the appellant’s claim that the administrative judge was
     biased but find no basis for disturbing the initial decision.        As a preliminary
     matter, a party should not wait until after adjudication is complete to attempt to
     disqualify an administrative judge. E.g., Gensburg v. Department of Veterans
     Affairs, 85 M.S.P.R. 198, ¶ 7 (2000); 5 C.F.R. § 1201.42(b).            The appellant
     did not follow the regulatory procedures for disqualifying the administrative
     judge based on alleged bias in his predecisional handling of the case.
     See 5 C.F.R. § 1201.42(b)-(c).       Further, the administrative judge’s findings
     do not establish any bias. See Gensburg, 85 M.S.P.R. 198, ¶ 6; see also Bieber v.
     Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (stating that an
     administrative judge’s conduct during the course of a Board proceeding warrants
     a new adjudication only if the administrative judge’s comments or actions
     evidence “a deep-seated favoritism or antagonism that would make fair judgment
     impossible”) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The

     4
       The appellant has not alleged any error in the administrative judge’s findings
     regarding her claims of race discrimination, sex discrimination, and retaliation for EEO
     activity, and we find no reason to disturb those findings. ID at 10-11.
                                                                                             5

     appellant argues that the administrative judge is “attempting to take away back
     pay from [her],” and we note that the administrative judge issued a separate
     decision denying her petition for enforcement of the Board’s final order.
     PFR File, Tab 1 at 2-3.     As explained in our separate decision upholding the
     administrative judge’s decision in the compliance proceeding, Thompson v. U.S.
     Postal Service, AT-0752-09-0883-C-1, Final Order (Sept. 9, 2016), we find that
     the appellant has failed to establish bias in the administrative judge’s handling of
     that proceeding. 5    Having reviewed the record in this matter, we find the
     appellant’s assertions of bias insufficient to overcome the presumption of honesty
     and integrity that is properly afforded the Board’s administrative judges.            See
     Gensburg, 85 M.S.P.R. 198, ¶ 7.
¶8         We further find that the appellant has failed to prove her disability
     discrimination claim in connection with the contested continuation of her
     suspension. 6 The appellant asserts that, at all relevant times, she was able to
     perform the duties of her position but that the agency unlawfully suspended her
     based on its incorrect perception that she could not perform the duties of her
     position based on her medical diagnosis. 7 E.g., PFR File, Tab 1 at 9-10. The
     Americans with Disabilities Act Amendments Act of 2008 (ADAAA) defines a


     5
       To the extent that the appellant is otherwise alleging error in the administrative
     judge’s compliance initial decision, her arguments show no reversible error in the initial
     decision in this case, and we have addressed her arguments regarding the scope of relief
     in our separate decision denying the appellant’s petition for review in the
     compliance matter.
     6
       The appellant did not raise any discrimination claims in her prior appeal regarding the
     imposition of the indefinite suspension, and we find that her arguments on review
     regarding the allegedly discriminatory decision to initiate her suspension are beyond the
     scope of this appeal. E.g., PFR File, Tab 1 at 6.
     7
       The appellant has argued both failure to accommodate and disparate treatment theories
     of disability discrimination. E.g., PFR File, Tab 1 at 7-10. An employee who is found
     to be “disabled” solely under the “regarded as” theory is not entitled to reasonable
     accommodation. Alford v. Department of Defense, 118 M.S.P.R. 556, ¶ 10 n.6 (2012);
     29 C.F.R. § 1630.2(o)(4).
                                                                                          6

      “disability,” in relevant part, as “a physical or mental impairment that
      substantially limits one or more major life activities” or “[b]eing regarded as
      having such an impairment.”          42 U.S.C. § 12102(A), (C); see 29 C.F.R.
      § 1630.2(g)(1)(i), (iii).   The ADAAA and regulations issued by the Equal
      Employment Opportunity Commission explain that “regarded as having such an
      impairment” means that “the individual has been subjected to an action prohibited
      by the [Americans with Disabilities Act (ADA)] as amended because of an actual
      or perceived impairment that is not both ‘transitory and minor.’”          42 U.S.C.
      § 12102(3); 29 C.F.R. § 1630.2(g)(1)(iii); see 29 C.F.R. § 1630.2(l)(2).
¶9          “Establishing that an individual is ‘regarded as having such an impairment’
      does not, by itself, establish liability.” 29 C.F.R. § 1630.2(l)(3). Rather, liability
      under title 1 of the ADA is established “only when an individual proves that a
      covered entity discriminated on the basis of disability within the meaning of
      section 102 of the ADA, 42 U.S.C. 12112.”          29 C.F.R. § 1630.2(l)(3).     That
      provision of the ADA provides that “[n]o covered entity shall discriminate
      against a qualified individual on the basis of disability in regard to job application
      procedures, the hiring, advancement, or discharge of employees, employee
      compensation, job training, and other terms, conditions, and privileges of
      employment.”      42 U.S.C. § 12112(a) (emphasis added).         Subject to certain
      exceptions not relevant here, “[t]he term ‘qualified,’ with respect to an individual
      with a disability, means that the individual satisfies the requisite skill,
      experience, education and other job-related requirements of the employment
      position such individual holds or desires and, with or without reasonable
      accommodation, can perform the essential functions of such position.” 29 C.F.R.
      § 1630.2(m) (emphasis added).
¶10         The administrative judge concluded that the appellant failed to show that
      she was a “‘qualified’ disabled person who, with or without reasonable
      accommodation, could perform the essential duties of her position.” ID at 7. In
      doing so, he considered the record evidence, including conflicting medical
                                                                                       7

      opinions offered based on the results of her post-suspension fitness-for-duty
      examination and subsequent medical certificates from the appellant’s neurologist.
      ID at 7-8. He found that the certificates upon which the appellant relied were
      “entirely conclusory” and “devoid of any medical documentation or explanation.”
      ID at 8.    In contrast, the administrative judge found that the testimony and
      medical opinions relied upon by the agency explained how her medical condition
      rendered her unable to safely perform the specific work requirements of her
      position, with or without accommodation.           Id.; Thompson, MSPB Docket
      No. AT-0752-09-0883-I-1, Initial Appeal File, Tab 10, Exhibits M-N. Although
      the appellant has disputed this evidence, we agree with the administrative judge’s
      findings that it was more detailed and reliable than the other conclusory opinions
      cited by the appellant to demonstrate that she was fit for duty in this position.
      ID at 7-8. Thus, we find that the record does not support the appellant’s claim
      that the agency was continuing her suspension based on a diagnosis alone without
      due consideration of whether she could safely perform the duties of her particular
      position.   PFR File, Tab 1 at 9-10.      We further find that the agency properly
      refused to return the appellant to work absent further information from the
      appellant establishing that she was fit for duty with or without reasonable
      accommodation. Cf. Rosario-Fabregas v. Department of the Army, 122 M.S.P.R.
      468, ¶¶ 14, 19 (2015) (finding that the agency had the right to prevent the
      appellant from returning to work in the absence of proper medical documentation
      under its regulations), aff’d, No. 2015-3102, 2016 WL 4363176 (Fed. Cir. Aug.
      16, 2016); Norrington v. Department of the Air Force, 83 M.S.P.R. 23, ¶¶ 10-13
      (1999) (finding that the appellant’s work releases were not sufficient to show that
      he was fit to return to duty). Thus, we find that the appellant has failed to prove
      her claim of disability discrimination.
¶11         The Board previously ordered the agency to cancel the indefinite suspension
      at issue here, pay the appellant appropriate back pay and interest, and provide
      other appropriate benefits. Thompson, MSPB Docket No. AT-0752-09-0883-I-1,
                                                                                     8

Final Order at 8. We conclude, in light of our findings denying the appellant’s
claims of discrimination, that she is not entitled to any further relief as a result of
this appeal. The appellant’s arguments regarding the appropriate scope of her
available relief have been fully adjudicated in her petition for enforcement of the
Board’s April 30, 2014 final order.      Accordingly, because there is no further
relief that could be provided, this appeal is dismissed as moot. See Harris v.
Department of the Air Force, 100 M.S.P.R. 452, ¶ 11 (2005).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 U.S.C. § 1201.113. 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). Title 5 of
the United States 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

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
                                                                                 9

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
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.
