                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MONA ELHELBAWY,                                 DOCKET NUMBER
                 Appellant,                          DE-0752-13-0130-I-2

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: June 16, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Mona ElHelbawy, Boulder, Colorado, pro se.

           Christiann M. Colpoys, and John K. Guenther, Esquire, 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 her removal for absence without leave (AWOL) and failure to follow
     leave-requesting procedures. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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
     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 and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).    However, we FORWARD the appellant’s individual right of
     action (IRA) appeal to the field office for adjudication.

                                      BACKGROUND
¶2        The agency removed the appellant from her Electronics Engineer position
     on charges of being AWOL and failing to follow leave-requesting procedures on
     April 11-13, May 3-4, 7; and from May 9, to October 12, 2012. ElHelbawy v.
     Department of Commerce, MSPB Docket No. DE-0752-13-0130-I-1, Initial
     Appeal File (IAF-1), Tabs 21-22. Following a hearing, the administrative judge
     issued an initial decision finding that the agency proved its charges, the appellant
     failed to prove her affirmative defenses, and the chosen penalty was reasonable
     and promoted the efficiency of the service.         ElHelbawy v. Department of
     Commerce, MSPB Docket No. DE-0752-13-0130-I-2, Initial Appeal File (IAF-2),
     Tab 92, Initial Decision (ID).       The appellant filed a petition for review,
     challenging the administrative judge’s findings. See Petition for Review (PFR)
                                                                                             3

     File, Tab 1. 2 The agency has filed responses and many other pleadings thereafter
     to the petition for review, PFR File, Tabs 4-5, 9, 14, 18-19, 22, 24, to which the
     appellant has replied, PFR, Tabs 3, 6-8, 10, 12-13, 15-17, 20, 23, 25.

                        DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge’s findings were correct.
¶3            The appellant argues on review that the administrative judge’s findings
     below were erroneous. PFR File, Tabs 1, 13. We disagree. We find that the
     administrative judge correctly determined that the agency proved its two charges.
     The administrative judge correctly found the agency established that the medical
     documentation produced by the appellant was insufficient to justify her absences
     from the workplace, the agency appropriately denied her full-time telework
     request, and she was AWOL on the dates charged. ID at 3-9. The administrative
     judge also properly determined that the agency demonstrated that the appellant
     failed     to   follow leave procedures by not          producing adequate       medical
     certifications to support her absences. Id.
¶4            Further, we find that the administrative judge correctly determined that the
     appellant failed to prove her affirmative defenses of harmful procedural error and
     reprisal for protected equal employment opportunity and whistleblowing activities
     by the requisite preponderant evidence. ID at 11-15. We also agree with the
     administrative judge that the appellant failed to prove her allegations of race,
     color, sex, religion, and national origin discrimination. ID at 10-11.
¶5            We find, moreover, that the administrative judge properly held that the
     appellant did not prove her disability discrimination claim because, based on the
     medical reports in the record from the appellant’s various medical providers, she

     2
       The appellant’s petition for review was filed 1 day after the dead line set forth in the
     in itial decision, but she asserts that problems with the Board’s e-Appeal Online system
     prevented her from filing in a timely fashion. PFR File, Tab 1 at 3-4. Because
     e-Appeal Online was unavailable, as asserted by the appellant, we find that there was
     good cause for the untimely filing of the petition for review.              See 5 C.F.R.
     § 1201.114(g).
                                                                                      4

     failed to show that she was suffering from a physical impairment and thus she
     did not establish that she was an individual with a disability under 29 C.F.R.
     § 1630.2(g). ID at 9-11.
¶6        In addition to the findings made by the administrative judge on this
     affirmative defense, we also note that the agency acted appropriately in directing
     the appellant to provide medical documentation to substantiate her absences,
     considering that she had been absent for a significant period of time. She told her
     supervisor that she could not inform the agency how long she would remain
     absent, and she said she would be unable to secure an appointment at a particular
     hospital to see a specialist about her medical conditions until 3 months later.
     Based on our review of the record, we also find that: (1) the appellant’s medical
     conditions were primarily subjective in nature; (2)        medical evidence was
     required to establish the existence of a disability because the scope of the
     appellant’s physical limitations was not obvious; (3) none of the appellant’s
     medical providers were able to provide a definitive diagnosis; (4) the agency
     tested the air quality of the building where the appellant worked and determined
     that the air quality was fine; (5) absent a few exceptions, it would be impossible
     for a federal agency to provide the appellant with what she was demanding here—
     a completely dust-free workplace; and (6) the appellant’s doctor’s determination
     that there was an outside chance that the appellant’s medical condition might
     have been caused by occupational asthma or “sick building syndrome” was
     merely a guess, not a medical opinion, and this speculation was contradicted by
     the air quality testing report. We further find that the record reflects that the
     agency engaged in the required interactive process. Thus, we believe that the
     agency should not be forced, under the circumstances presented here, to
     relinquish its policy limiting the number of hours in a pay period for approved
     telework, and, even if we were to find that the appellant was a qualified
     individual with a disability, that would not mean that she would be allowed to
     dictate to the agency what her reasonable accommodation must be. See Clemens
                                                                                      5

     v. Department of the Army, 120 M.S.P.R. 616, ¶¶ 12-17 (2014) (the appellant
     failed to show that the accommodation he allegedly sought was reasonable); see
     also Massey v. Department of the Army, 120 M.S.P.R. 226, ¶ 12 (2013) (the
     agency’s failure to fulfill its obligation to search for a position as a reasonable
     accommodation does not relieve the appellant of her burden of ultimately
     showing that such positions existed and were available).
¶7        Lastly, we find that the administrative judge correctly determined that the
     agency proved that the penalty of removal was reasonable and promoted the
     efficiency of the service.     ID at 15-17.        In sum, despite the appellant’s
     disagreement with the initial decision, we discern no basis for disturbing the
     administrative judge’s well-reasoned findings on review.           See Weaver v.
     Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980) (mere disagreement with
     the administrative judge’s findings and credibility determinations does not
     warrant full review of the record by the Board).
     We have reviewed the appellant’s numerous pleadings filed on petition for
     review, but find that they do not change our determination.
¶8        The appellant filed numerous pleadings after the agency filed its response to
     the petition for review regarding her submission of a reply to the agency’s
     response to her petition for review.       PFR File, Tabs 6-8, 10, 12.        In a
     September 10, 2014 order, the Clerk of the Board denied the appellant’s request
     to file a reply to the agency’s response exceeding the Board’s page limit but ruled
     that she could file a 15-page pleading, exclusive of attachments, no later than
     September 17, 2014.    Id., Tab 11.   The appellant’s reply was filed using the
     Board’s e-Appeal system and bears a filing time and date of 1:31 a.m. on
     September 18, 2014. PFR File, Tab 13. Because the appellant filed from the
     Mountain Time Zone, and the Board’s e-Appeal system establishes the filing time
     based on Eastern Time, her reply to the agency’s response to the petition for
     review was timely filed on September 17. See 5 C.F.R. § 1201.14(m). However,
     the pleading, together with substantive attachments setting forth the facts and
                                                                                            6

     asserting errors in the administrative judge’s factual findings and rulings during
     the course of the appeal, exceeded 15 pages.         PFR File, Tab 13. The agency
     objected to the appellant’s reply and she has responded to the objection. Id.,
     Tabs 14-15. We agree with the agency that the appellant’s pleadings, with their
     many substantive attachments, far exceed the 15-page limit. In the September 10
     order, the Clerk of the Board noted that the Board would consider at a later date
     the appellant’s September 5 and 7 motions to waive the time limit for filing a
     reply. Id., Tab 11 at 2; see id., Tabs 6-7. However, because the appellant was
     afforded an opportunity to reply to the agency’s response, we find her motions are
     moot. 3
¶9         Regarding the documentary evidence the appellant submitted with her reply,
     to the extent that the evidence is not already part of the record, the Board
     generally will not consider evidence submitted for the first time on petition for
     review absent a showing that it was unavailable before the record was closed
     despite    the   party’s    due    diligence.        Grassell    v.    Department     of
     Transportation, 40 M.S.P.R. 554, 564 (1989) (to constitute new and material
     evidence, the information contained in the documents, not just the documents
     themselves, must have been unavailable despite due diligence when the record
     closed).   The appellant has made no such showing here.               In any event, we
     reviewed the appellant’s substantive submissions on review and determined that
     the documentation and arguments contained therein would not change the
     outcome of our decision that the administrative judge’s findings were correct,

     3
       To the extent that the appellant is asking that we overturn the administrative judge’s
     ruling below on her request for interlocutory appeal, that request is DENIED. Also, on
     April 27 and 29, 2015, the appellant filed motions for leave to submit additional
     pleadings, alleging in her second motion for leave that “over the course of litigation of
     Petitioner’s civil action before the Un ited States District Court for the District of
     Colorado, new and material evidence and legal argument have become available . . . .”
     PFR File, Tabs 20, 23. Because the appellant has not shown how any evidence and
     argument contained in a pending civil action before the United States District Court for
     the District of Colorado relates to th is appeal, the Board denies her April 27 and 29,
     2015 motions for leave to submit additional plead ings.
                                                                                       7

      with the exception of one issue, discussed immediately below.         See ID; see
      also 5 C.F.R. § 1201.114(h).
      The appellant attempted to file an individual right of action appeal below, which
      was not addressed by the administrative judge.
¶10        The appellant argues on review that she attempted to file an IRA appeal
      below. See PFR File, Tab 13, Exhibit 10. She states that, with her January 8,
      2014 prehearing submission, she furnished a copy of a close out letter she
      received from the Office of Special Counsel (OSC), which notified her that OSC
      was closing its investigation into her November 14, 2012 complaint and that she
      had a right to file an IRA appeal with the Board. She asserts that during the
      January 10, 2014 prehearing conference in this case, she asked the administrative
      judge about the OSC close out letter. She also states that she explained to the
      administrative judge that she “had filed her November 12, 2012 complaint as part
      of her initial appeal to the Board.” Id. She contends that the administrative judge
      then reviewed the initial appeal and confirmed that she “filed her OSC complaint
      as part of her appeal.” Id. According to the appellant, the administrative judge
      advised the parties that she would need some time to consider how to proceed
      with this whistleblower claim, including the possibility that she might “break [the
      appellant’s] appeal into two separate appeals,” or that she might “combine or split
      the issues” in the appeals.      Id.   The appellant argues that, although the
      administrative judge promised to advise the parties what she would do with the
      IRA appeal, she did not address the matter in her January 15, 2014 order and
      summary of prehearing conference or in the initial decision. The appellant argues
      that she “remains clueless until this day” regarding what the administrative judge
      decided to do about the whistleblower claims she raised in her IRA appeal. Id.
¶11        Based on our review of the record, we agree with the appellant that she
      previously attempted to file an IRA appeal with the Board and that her claim was
      never adjudicated. In her initial appeal, the appellant indicated that on June 25,
      2012, she disclosed to the agency’s Office of Inspector General and “to several
                                                                                             8

      individuals and agencies” that the agency committed safety violations in
      contravention of Occupational Safety and Health Administration laws.             IAF-1,
      Tab 2 (MSPB Form 185-5 at 1-2) (“Whistleblower Claims or Individual Right of
      Action (IRA) Appeal”). She alleged that, as a result of her disclosure, the agency
      “prosecuted and harassed” her.       Id.   In addition, she reported that she filed a
      complaint with the OSC on August 8, 2012, concerning these allegations but that,
      at that juncture, she had not yet received written notice from OSC regarding her
      right to file an IRA appeal with the Board. See id. at 3.
¶12         With her appeal, the appellant attached copies of two complaints she filed
      with OSC, one of which is dated August 6, 2012, and the other of which is dated
      November 14, 2012.       See IAF-1, Tab 2 (Attachments).          In the August 2012
      complaint, the appellant raised a number of potential protected disclosures,
      including her description of safety hazards that she believed existed at the agency
      and the agency’s failure to correct these reported health issues. In addition, she
      alleged that the agency falsified her time and attendance records when it charged
      her as AWOL, unlocked and searched her office without her permission “and for
      no proper justification,” and then left her office unlocked, thereby compromising
      the confidentiality of certain records. 4 She asserted that, as a result of these
      disclosures, the agency took various personnel actions against her, such as
      reporting her as AWOL, denying her requests for telework and reasonable
      accommodation, prohibiting her from filing Office of Workers’ Compensation
      Programs (OWCP) claims, and providing her with an “[u]nfair performance
      review evaluation” in November 2011. Id. (Attachments).
¶13         In the November 2012 OSC complaint, the appellant reiterated many of the
      same alleged disclosures and personnel actions that she raised in her earlier
      complaint. Additionally, as to other possible disclosures, she indicated that the
      agency engaged in acts that were “criminal in nature under many statues [sic] and
      4
       Admittedly, it is not always clear from these documents the distinction the appellant is
      making between some of her alleged protected disclosures and personnel actions.
                                                                                      9

      laws,” made false statements about the medical documentation she furnished to
      the agency, and provided the Department of Labor with false time and attendance
      records to thwart her efforts at obtaining OWCP benefits. She stated that because
      of these alleged disclosures, the agency engaged in a series of “harsh and cruel
      reprisal actions,” such as giving her “unjustified performance reviews and
      ratings,” changing her position description while she was out on leave under the
      Family and Medical Leave Act of 1993, and eventually removing her.
      Id. (Attachments).
¶14        Moreover, as the appellant asserted, she produced a copy of OSC’s May 29,
      2013 close out letter, which she filed as an exhibit with her prehearin g
      submissions. See IAF-2, Tab 27, Exhibit L.
¶15        Given the above, we find that the appellant has established that she
      attempted to raise her whistleblower claims as a separate IRA appeal, which
      was not adjudicated. We therefore are forwarding this IRA appeal to the field
      office for adjudication. The administrative judge is to provide the appellant with
      proper notice of any jurisdictional and timeliness issues related to this IRA
      appeal. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44
      (Fed. Cir. 1985) (an appellant must receive explicit information on what is
      required to establish an appealable jurisdictional issue).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           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:
                                                                                   10

                           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
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
                                                                      11

repayment 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.
