                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HENRY GETER, III,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0667-I-1

                  v.

     GOVERNMENT PRINTING OFFICE,                     DATE: July 15, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Henry Geter, III, Temple Hills, Maryland, pro se.

           Frederick B. Hay, Washington, D.C., 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, which
     sustained his removal. 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 judge’s rulings

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. See 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, and based on the following points and authorities, 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.          Except as
     expressly MODIFIED by this Final Order regarding the disability discrimination
     claim, we AFFIRM the initial decision.

                                         BACKGROUND
¶2           Effective April 10, 2014, the agency removed the appellant from his
     position as a Motor Vehicle Operator for failure to possess a valid commercial
     driver’s license (CDL) and failure to perform the essential functions of his
     position. Initial Appeal File (IAF), Tab 4 at 21-24. The appellant filed an appeal
     challenging his removal and asserted affirmative defenses of disability
     discrimination and reprisal for his prior equal employment opportunity (EEO)
     activity. IAF, Tab 1. Specifically, he contended that the agency removed him in
     reprisal for filing an EEO complaint and a Board appeal challenging his prior
     removal     and   also   asserted   that   the   agency   denied   him    a   reasonable
     accommodation in the form of a reassignment to a light-duty position and
     subjected him to disparate treatment based on his disability.            Id. at 21; IAF,
     Tab 13 at 4-7.
¶3           After holding the appellant’s requested hearing, the administrative judge
     issued a decision affirming the appellant’s removal. IAF, Tab 16, Initial Decision
     (ID).    The administrative judge sustained the agency’s charge and found that
     removal was reasonable and promoted the efficiency of the service because the
                                                                                            3

     appellant’s failure to maintain a CDL directly impacted his ability to perform his
     job duties. ID at 6, 18-22. The administrative judge also found that the appellant
     failed to prove his affirmative defenses that the agency denied him a reasonable
     accommodation, treated him differently based on his disability, and retaliated
     against him for his prior EEO activity.         ID at 7-18.     As to the appellant’s
     disability discrimination claims, the administrative judge found that the appellant
     failed to show that his removal was due to his disability and failed to identify a
     similarly situated comparator who was treated more favorably than him.                ID
     at 13-15.   In rejecting the appellant’s affirmative defense of retaliation for
     protected EEO activity, the administrative judge found that the proposing and
     deciding officials were not aware of the appellant’s prior EEO complaint or Board
     appeal. 2 ID at 17-18.
¶4         On review, the appellant challenges the administrative judge’s finding that
     he failed to prove his disability discrimination claim based on a failure to
     accommodate.      Petition for Review (PFR) File, Tab 3.          He alleges that the
     administrative judge improperly determined that he failed to request a reasonable
     accommodation and that the agency ignored medical documentation he submitted
     from his doctor requesting that he be placed on light duty with a lifting restriction
     of thirty pounds or less and instead, improperly returned him to full duty and
     required him to lift up to fifty pounds. Id. The appellant also argues for the first
     time on review that the removal penalty was too severe because, under its
     directives, the agency was required to consider a lesser penalty such as a




     2
      The appellant does not challenge this finding on review and we discern no error in the
     administrative judge’s finding that the appellant failed to prove his affirmative defense
     of reprisal.
                                                                                             4

     permanent reassignment. 3 Id. at 2. The agency has filed a response in opposition
     to the appellant’s petition. 4 PFR File, Tab 9.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly sustained the charge.
¶5         When taking an adverse action against an employee, an agency must
     establish that: (1) the charged conduct occurred; (2) a nexus exists between the
     conduct and the efficiency of the service; and (3) the particular penalty imposed
     is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.
     389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). To prove a charge
     of failure to fulfill a condition of employment, an agency must establish that:
     (1) the requirement at issue is a condition of employment; and (2) the appellant
     failed to meet that condition. See Thompson v. Department of the Air Force,
     104 M.S.P.R. 529, ¶¶ 9-10 (2007).
¶6         In sustaining the agency’s charge, the administrative judge found that the
     appellant’s position required him to maintain a CDL based on the agency’s
     regulations and the appellant’s own testimony and also that it was undisputed that
     the appellant failed to possess a CDL when he was removed from service. ID
     3
       The Board generally will not consider an argument raised for the first time in a
     petition for review absent a showing that it is based on new and material evidence not
     previously available despite the party’s due diligence. Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not attempted to show that this
     new argument is based on new or material evidence not previously available.
     Accordingly, the appellant’s new argument will not be considered for the first time on
     review. In any event, GPO Directive 670.11B9b(4), which the appellant cites, pertains
     to the loss of an operator’s identification card, not the loss of a CDL, and does not
     require reassignment in lieu of removal. See IAF, Tab 4 at 113.
     4
       The agency’s response to the appellant’s petition was initially due on March 2, 2015.
     See PFR File, Tab 4 at 1. By order dated February 13, 2015, the Board granted the
     appellant until March 6, 2015, to file a supplement in support of his petition and
     provided the agency an opportunity to file a response within 25 days after the date of
     service of the appellant’s supplement. PFR File, Tab 6. Although the appellant did not
     file a supplement to his petition, the agency filed a response to the appellant’s petition
     within 25 days of the appellant’s March 6, 2015 deadline. PFR File, Tab 9.
     Accordingly, we deem the agency’s response to be timely filed.
                                                                                        5

     at 4-6; see IAF, Tab 4 at 110, 116-18.      The appellant does not dispute these
     findings on review, and we discern no reason to disturb the administrative judge’s
     finding that the agency proved its charge by preponderant evidence.
     The appellant failed to prove his disability discrimination affirmative defense.
¶7        An appellant may establish a disability discrimination claim based on
     disparate treatment by showing that: (1) he is a member of a protected group;
     (2) he was situated similarly to an individual who was not a member of the
     protected group; and (3) he was treated more harshly than the individual who was
     not a member of his protected group. Hardy v. U.S. Postal Service, 104 M.S.P.R.
     387, ¶ 33, aff’d, 250 F. App’x 332 (Fed. Cir. 2007). For other employees to be
     deemed similarly situated, the Board has held that all relevant aspects of the
     appellant’s employment situation must be “nearly identical” to those of the
     comparative employees.     Id.   To state a disability discrimination claim based
     upon a failure to accommodate, the appellant must prove that: (1) he is a disabled
     person; (2) the action appealed was based on his disability; and (3) to the extent
     possible, he must articulate a reasonable accommodation under which he believes
     he could perform the essential duties of his position or of a vacant funded
     position to which he could be reassigned.            Sanders v. Social Security
     Administration, 114 M.S.P.R. 487, ¶ 16 (2010); see Henson v. U.S. Postal
     Service, 110 M.S.P.R. 624, ¶ 6 (2009).
¶8        To maintain either a failure to accommodate claim or a disability-based
     disparate treatment claim, an appellant must show that he was a qualified
     individual with a disability at the time of the alleged unlawful discriminatory
     conduct.   See Wilson v. Department of the Air Force, EEOC Appeal No.
     01A14669, 2003 WL 660615, at *3 (E.E.O.C. Feb. 21, 2003); see also Combs v.
     Social Security Administration, 91 M.S.P.R. 148, ¶ 23 (2002).          A qualified
     individual with a disability is an individual with a disability “who satisfies the
     requisite skill, experience, education and other job-related requirements of the
     employment position such individual holds or desires, and who, with or without
                                                                                        6

      reasonable accommodation, can perform the essential functions of such position.”
      29 C.F.R. § 1630.2(m); see Henson, 110 M.S.P.R. 624, ¶ 7.
¶9          As stated, it is undisputed that a valid CDL was required for the
      performance of the appellant’s job duties as a Motor Vehicle Operator. See ID
      at 6. Thus, by losing his CDL, the appellant failed to maintain a requirement of
      his position that was necessary to perform his essential duties. Because he was
      no longer technically qualified for his position, we find that, at the time of the
      agency’s removal action, the appellant was not a qualified individual with a
      disability.   See, e.g., Malbouf v. Department of the Army, 43 M.S.P.R. 588,
      591-92 (1990) (the agency was not obligated to accommodate the appellant
      because he was not a qualified individual with a disability due to his failure to
      maintain a driver’s license, a condition of employment necessary to perform his
      job duties). Accordingly, we modify the initial decision to find that the appellant
      was not a qualified individual with a disability who could assert either a denial of
      reasonable accommodation claim or a disability-based disparate treatment claim.
¶10         Even assuming arguendo that the appellant was a qualified individual with a
      disability, the record contains no evidence that that the appellant’s removal was
      based on his disability or that the agency treated similarly situated nondisabled
      employees differently. The administrative judge found that the appellant failed to
      identify another Motor Vehicle Operator who was not removed for failure to
      possess a required CDL and that the comparators identified by the appellant were
      not similarly situated because, among other things, they had both maintained a
      valid CDL. ID at 15. The administrative judge further found that there was no
      connection between the appellant’s disability and his removal because his failure
      to maintain a valid CDL was due to unresolved tickets and fines, not his medical
      condition and, in any event, the denial of a CDL was not a decision over which
      the agency had any control. ID at 13-14. The appellant does not dispute these
      findings on review and we discern no reason to disturb the administrative judge’s
      well-reasoned findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
                                                                                            7

      (1997) (finding no reason to disturb the administrative judge’s findings where she
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions); see also Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶11         On review, the appellant asserts that the administrative judge erred in
      finding that he did not request a reasonable accommodation and asserts that,
      despite his requests, the agency failed to accommodate him by reassigning him to
      a light-duty position upon his return to work in November 2013, based on an
      independent medical evaluation, which indicated that he had a 30-pound lifting
      restriction as of September 2012.        PFR File, Tab 3.      The record, however,
      supports the administrative judge’s finding that the appellant did not prove that
      he was denied a reasonable accommodation because he failed to respond to the
      agency’s request that he specify any accommodation he was seeking and provide
      supporting medical documentation. ID at 14; See Simpson v. U.S. Postal Service,
      113 M.S.P.R. 346, ¶¶ 17-18 (2010) (finding that the appellant did not prove that
      he was denied a reasonable accommodation in part because he was not responsive
      to the agency’s requests for medical information). Via letter dated December 16,
      2013, the agency acknowledged that the appellant may have been requesting a
      reasonable accommodation when he verbally requested a transfer during a return
      to work meeting on November 25, 2013. IAF, Tab 4 at 65. In its letter, the
      agency outlined the procedures for requesting a reasonable accommodation and
      asked that the appellant identify any specific accommodation he was requesting
      as well as submit medical documentation in support of his request by
      December 27, 2013. 5 IAF, Tab 4 at 65-75. The appellant did not respond to the
      letter or submit any medical documentation. ID at 14.


      5
        Although the appellant testified that he had not seen a copy of the letter, the record
      contains a United Parcel Service computerized tracking report showing that the letter
      was delivered to his address on December 17, 2013. IAF, Tab 12 at 114-15; Hearing
      Compact Diskette (testimony of the appellant).
                                                                                      8

¶12         Moreover, even if the appellant established that he requested an
      accommodation under which he could successfully perform the essential duties of
      his position, it would not change the outcome of this appeal because he has not
      shown that his removal for failure to maintain a CDL was based upon his
      disability. See Sublette v. Department of the Army, 68 M.S.P.R. 82, 88-89 (1995)
      (the appellant did not establish that the misconduct for which he was removed
      was due to his purported disability and thus he was not entitled to a reasonable
      accommodation). Accordingly, we agree with the administrative judge that the
      appellant failed to meet his burden of establishing his affirmative defense of
      disability discrimination.
      The administrative judge properly found that the penalty of removal is
      reasonable.
¶13         Where, as here, all of the agency’s charges have been sustained, the Board
      will review an agency-imposed penalty only to determine if the agency
      considered all of the relevant factors and exercised management discretion within
      the tolerable limits of reasonableness.       See Davis v. U.S. Postal Service,
      120 M.S.P.R. 457, ¶ 6 (2013). In determining whether the selected penalty is
      reasonable, the Board gives due deference to the agency’s discretion in exercising
      its managerial function of maintaining employee discipline and efficiency. Id.
      The Board recognizes that its function is not to displace management’s
      responsibility or to decide what penalty it would impose but to assure that
      management judgment has been properly exercised and that the penalty selected
      by the agency does not exceed the maximum limits of reasonableness. Id. Thus,
      the Board will modify a penalty only when it finds that the agency failed to weigh
      the relevant factors or that the penalty the agency imposed clearly exceeded the
      bounds of reasonableness.     Id.     However, if the deciding official failed to
      appropriately consider the relevant factors, the Board need not defer to the
      agency’s penalty determination. Id.
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¶14         The record reflects that the deciding official considered the appellant’s past
      work record and over 11 years of federal service as mitigating factors but found
      that they were outweighed by the seriousness of the offense because the appellant
      could not perform his job duties without a CDL. ID at 20; IAF, Tab 4 at 22-25,
      27-31.     The administrative judge found that the penalty of removal was
      reasonable and promoted the efficiency of the service because the appellant’s
      failure to possess a CDL, a requirement of his position, had a direct impact upon
      his ability to perform his job duties. ID at 21. The Board has found removal to
      be an appropriate remedy for an appellant’s failure to meet the requirements of
      his position. See Benally v. Department of the Interior, 71 M.S.P.R. 537, 539-40,
      542 (1996). Accordingly, we agree with the administrative judge that removal
      was within the tolerable limits of reasonableness and promotes the efficiency of
      the service.

                       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 C. F. R. § 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). See 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:
                                                                                   10

                           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
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 United States
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
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prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
