                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENA L. TRAVIS,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-13-0476-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 8, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dena L. Travis, Barstow, California, pro se.

           Dawn Dobbs, Fort Irwin, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s removal action. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The agency removed the appellant from her position as a Program Analyst,
     GS-0343-12, at Fort Irwin, California. Initial Appeal File (IAF), Tab 4 at 26.
     She was removed on charges of Excessive Absenteeism and Failure to Maintain a
     Full Time Work Schedule, based on her leave usage, which included 2,077 hours
     of Leave without Pay (LWOP) and 957 hours of Absence without Leave
     (AWOL). Id. at 40. The agency alleged that she took unscheduled leave when
     she had no sick leave available and that she failed to provide adequate medical
     documentation. Id. at 40-42. The charges also included the allegation that she
     failed to report for work even after the agency approved a reasonable
     accommodation allowing her to work half-time. Id. at 42. Both charges were
     sustained, and the appellant appealed. Id. at 30; IAF, Tab 1.
¶3         The administrative judge decided the appeal based on the written record.
     IAF, Tab 19, Initial Decision (ID) at 1. He merged the two charges because they
     were based on the same events and were not factually and legally distinct. ID
     at 6; IAF, Tab 15 at 3. The administrative judge sustained the charge. He found
     that the agency proved by preponderant evidence that the appellant was absent for
     compelling medical reasons beyond her control.        ID at 9. The administrative
                                                                                          3

     judge further found that: (1) the agency warned the appellant that an adverse
     action could be taken unless she returned to work on a regular basis; (2) the
     agency demonstrated that the appellant’s continuing absence was adversely
     affecting operations; and (3) the appellant’s position needed to be filled by an
     employee available for duty on at least a part-time basis. ID at 9-10. As to her
     affirmative defense of disability discrimination, the administrative judge found
     that the appellant failed to show that she was a qualified individual with a
     disability under 29 C.F.R. § 1630.2(g). ID at 11. He further found that she failed
     to show that the agency removed her based on the disability she claimed. ID at
     11. The administrative judge affirmed the agency’s removal action. ID at 14.
¶4           On review, the appellant challenges the administrative judge’s conclusions
     concerning both the charge and the affirmative defense.          She argues that the
     administrative judge improperly failed to consider several issues she raised and
     “focused on two points and nothing else: excessive absenteeism and failure to
     maintain a full-time schedule.” Petition for Review (PFR) File, Tab 1 at 1, Tab 4
     at 2.    We find, however, that the administrative judge properly limited his
     analysis to whether the agency had proven the charge.           The appellant raised
     several other issues on review, including allegations that her supervisors
     improperly denied her LWOP, miscoded leave on her time sheet, improperly
     rejected her medical documentation as insufficient, failed to delay her removal
     until the Office of Personnel Management could process her retirement
     application, and inappropriately harassed and threatened her. 2 See PFR File, Tab
     1 at 6-8, 10-17, Tab 4 at 3. We find, though, that these issues do not bear on
     whether the agency proved the charge or the appellant established her affirmative
     defense.



     2
       The appellant also asserted that her removal was improper because she lost her health
     insurance. See PFR File, Tab 1 at 4, 20-21, Tab 4 at 4. This argument is neither
     relevant to the charge nor to the affirmative defense.
                                                                                      4

¶5        An agency may bring an adverse action against an employee for excessive
     absences, such as those accrued because of the continuing effects of an injury or
     illness. The following criteria, however, must have been met: (1) the employee
     was absent for compelling reasons beyond her control so that the agency’s
     approval or disapproval was immaterial because the employee could not be on the
     job; (2) the absences continued beyond a reasonable time, and the agency warned
     the employee that an adverse action could be taken unless the employee became
     available for duty on a regular, full-time or part-time basis; and (3) the position
     needed to be filled by an employee available for duty on a regular, full-time or
     part-time basis.   Gartner v. Department of the Army, 104 M.S.P.R. 463, ¶ 9
     (2007) (citing Cook v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984)).
     Such a removal action will promote the efficiency of the service if the employee’s
     “absence for which no foreseeable end is in sight constitutes a burden which no
     employer can efficiently endure.” Bair v. Department of Defense, 117 M.S.P.R.
     374, ¶ 5 (2012) (quoting Ward v. General Services Administration, 28 M.S.P.R.
     207, 209 (1985)), overruled on other grounds by Abbott v. U.S. Postal
     Service, 121 M.S.P.R. 294 (2014); see also Edwards v. Department of
     Transportation, 109 M.S.P.R. 579, ¶ 17 (2008) (when an employee has been
     removed for unavailability for duty because of incapacitation, the Board relies on
     the absence of a foreseeable end to her unavailability).
¶6        The appellant used LWOP for most of the period between September 11,
     2011, and the end of January 2012. IAF, Tab 16 at 34, 36. She did not work the
     majority of time from January 2012 to the beginning of May 2012. Id. at 32, 34.
     Her absences between May 2012 and July 2012 were covered under the Family
     and Medical Leave Act. Id. She then was continuously absent between August
     2012 and the end of the year.      The appellant continued to be absent during
     January 2013, using LWOP on some days and AWOL on others. Id. at 27, 34.
     She returned to work intermittently for 25 hours during February 2013, but
     worked only 4 hours during March 2013 and was otherwise absent through the
                                                                                         5

     date of her removal. Id. at 27-28, 34; see id. at 44-45. She does not dispute the
     agency’s record of absences.
¶7         The agency submitted considerable evidence that the appellant was absent
     because of an ongoing medical condition. See IAF, Tab 7, Tab 16 at 54-55, 67,
     91-92, 106, 108, 116, 129, 131.          After considering this evidence and the
     appellant’s “abortive attempts to return to work . . . while attempting to overcome
     a chronic medical condition,” the administrative judge appropriately concluded
     that the agency proved that the appellant was absent for compelling medical
     reasons beyond her control. 3 ID at 9. The administrative judge also found that
     the agency established that it had warned the appellant that it would take an
     adverse action unless she became available for duty on a regular, full-time or
     part-time basis. ID at 9; see IAF, Tab 16 at 28, 74-75. The agency likewise
     established that the appellant’s position needed to be filled by an employee
     available for duty on a regular, full-time or part-time basis. ID at 9-10; see IAF,
     Tab 16 at 28-29, 36. The agency thus met its burden of proof for the charge.
¶8         The appellant further argues that she meets the definition of a qualified
     individual with a disability because she suffers from a severe medical condition
     that affects her ability to work. See PFR File, Tab 1 at 2. She asserts that the
     administrative judge failed to consider that she had requested and was denied a
     reasonable accommodation.       See id. at 8.    She also asserts that the agency
     retaliated against    her for claiming a disability by requiring excessive
     documentation of her medical condition and removing her after she announced
     her intention to retire. See id. at 16-20.
¶9         The administrative judge addressed at length the appellant’s affirmative
     defense of disability discrimination. See ID at 10-11. The administrative judge

     3
        The appellant argues on review that the agency characterized her absences as
     intentional in the notice of proposed removal and decision letter. See PFR File, Tab 1
     at 1, 20; see also PFR File, Tab 4 at 1-2. We concur with the administrative judge’s
     conclusion that the appellant’s absences were for compelling medical reasons beyond
     her control, and not the result of any misconduct on her part.
                                                                                              6

      did not find that the appellant failed to meet the definition of an individual with a
      disability under the Americans with Disabilities Amendments Act (ADAAA). ID
      at 10-11; see 29 C.F.R. § 1630.2(g)-(l). Instead, the administrative judge found
      that the appellant was not a qualified individual with a disability under the
      ADAAA. ID at 11; see 29 C.F.R. § 1630.2(m)-(n). A qualified individual with a
      disability must be able to perform the essential functions of her position with or
      without a reasonable accommodation. See 29 C.F.R. § 1630.2(m). The appellant
      requested a part-time schedule as a reasonable accommodation. IAF, Tab 16 at
      90. The agency approved her request to work 4 hours per day. Id. at 27-29. She
      subsequently failed to return to work, asserting that she was medically unable to
      do so.   Id. at 28-29.     After receiving the accommodation she requested, the
      appellant was thus unable to maintain a regular part-time work schedule. Because
      she was medically unable to report for work, 4 she could not perform the essential
      functions of her position.
¶10         The appellant argues on review that she should have been allowed to
      telecommute. See PFR File, Tab 1 at 8. The record, however, includes evidence
      of her general level of discomfort, as well as the strong medications she was
      taking. See, e.g., IAF, Tab 16 at 46, 48, 50, 52, 56-58, 63, 68, 77, 81, 84, 94-96,
      104-05, 111-13.     She might not have been able to work at home, even if the
      agency had approved such an accommodation. Moreover, to the extent that she
      formally requested telecommuting as a reasonable accommodation, the agency
      was not obligated to grant her request.         See Ryan v. Department of the Air
      Force, 107 M.S.P.R. 71, ¶ 9 (2007) (an agency is not obligated to provide a


      4
        The appellant’s immediate supervisor stated that the appellant “consistently call[ed] in
      to inform [her] that she had a really hard time getting out of bed and she [would] be in
      around 12:00 p.m. but [she] did not make a concerted effort to report at the time
      indicated. Instead [she] sent e-mails between 1:00 p.m. and 2:00 p.m. stating that she
      [would] not make it to work.” IAF, Tab 16 at 29. Other record evidence substantiates
      this claim. See, e.g., id. at 46, 48, 50, 52, 56-58, 63, 68, 77, 81, 84, 94-96, 104-05,
      111-13.
                                                                                          7

      disabled individual with every accommodation he may request), overruled on
      other grounds by McCauley v. Department of the Interior, 116 M.S.P.R. 484
      (2011).
¶11         The appellant’s claim that the agency retaliated against her is newly
      asserted on review.     Although she argued that the agency found her medical
      documentation to be insufficient, she did not do so in the context of a retaliation
      claim. See IAF, Tab 1 at 6. The summary of the close of record conference call
      shows that she stated that she was raising only the single affirmative defense of
      disability discrimination. 5   IAF, Tab 15 at 6.     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 offered such evidence
      and is simply reframing prior allegations as retaliation. She cannot raise this issue
      on review.
¶12         Finally, the appellant argues that she would have submitted more medical
      documentation for the record, including materials she had given the agency
      during discovery, but the agency representative told her she could not do so. See
      PFR File, Tab 4 at 2.     She asserts that she misunderstood what she was told
      during teleconferences and that she was at a disadvantage while the appeal was
      pending because she was taking strong medication. Id. She submitted materials
      to be added to the record with her petition for review. Id. at 3; see PFR File,
      Tab 1, Subtabs 1-9.

      5
        In her petition for review, the appellant cites language in the agency’s Closing
      Submissions that suggests that the issues of retaliation for equal employment
      opportunity activity and whistleblowing may have been discussed below. PFR File,
      Tab 1 at 2; see IAF, Tab 16 at 7-8. The Order and Summary of the Close of Record
      Conference Call, however, memorializes the administrative judge’s ruling that the
      appellant’s sole affirmative defense was disability discrimination. IAF, Tab 15 at 6.
      The appellant lodged no objection to the summary, although she was informed of the
      opportunity to do so. See id. at 6, 13.
                                                                                      8

¶13         Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
      for the first time with the petition for review absent a showing that it was
      unavailable before the record was closed despite the party’s due diligence.
      Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). For the Board to
      grant a petition for review based on new evidence, the petitioning party also must
      show that the evidence is of sufficient weight to warrant an outcome different
      from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.
      345, 349 (1980). To the extent that the appellant’s submissions are already in the
      record, see PFR File, Tab 1, Subtabs 3-6, 8-9, they cannot be considered to be
      new evidence, see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
      (1980) (evidence that is already a part of the record is not new). The appellant
      also has not shown that her submissions would change the outcome of the initial
      decision. The sustained charge is based on her absence from work for compelling
      reasons beyond her control and she has not argued that she was not absent for
      these reasons. Accordingly, the Board will not incorporate the newly submitted
      items into the record.

                      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:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013
                                                                                    9

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
                                                                      10

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.




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