                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NATHAN PAPPAS,                                  DOCKET NUMBER
                 Appellant,                          AT-0752-15-0407-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: February 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobby Devadoss, Esquire, and Elizabeth Morse, Esquire, Dallas, Texas, for
             the appellant.

           Daniel J. Watson and Leah Eccles Watson, Eglin Air Force Base, Florida,
             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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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).

                                      BACKGROUND
¶2        The appellant was employed as a Supervisory Systems Development
     Engineer.   Initial Appeal File (IAF), Tab 5 at 11.     The agency proposed his
     removal based on one charge of use of illegal drugs and one charge of misuse of a
     Government travel card. Id. at 17-19. The appellant provided an oral response to
     the proposal. Id. at 14. After considering the appellant’s response, the deciding
     official sustained his removal. Id. at 12-13.
¶3        The appellant filed the instant appeal challenging his removal. 2 IAF, Tab 1.
     He asserted that: (1) he was not guilty of the charges listed in the proposal and
     decision letter; (2) the facts listed therein were false and inaccurate; (3) the
     agency’s action did not promote the efficiency of the service; and (4) his removal
     was motivated by discrimination.       Id.   In a later submission, the appellant
     challenged the penalty and alleged that the agency violated his due process rights
     because he was removed based upon the charge of conduct unbecoming of a
     supervisor, which was not the charge listed in the proposal. IAF, Tab 18 at 2-6.

     2
      The appellant initially requested a hearing. IAF, Tab 1. However, he subsequently
     moved for a decision based upon the written record. IAF, Tab 16.
                                                                                           3

     The appellant also argued that the agency committed disability discrimination.
     Id. at 16.   The agency responded in opposition to the appellant’s allegations.
     IAF, Tab 5 at 4-8, Tab 20 at 4-8.
¶4         The administrative judge issued an initial decision based upon the written
     submissions sustaining the removal.           IAF, Tab 22, Initial Decision (ID).
     Specifically, he found that:     (1) the agency proved both the charge of use of
     illegal drugs and misuse of a Government travel card; (2) the appellant failed to
     prove his due process affirmative defense because he was not removed based
     upon a new charge not previously proposed; (3) the appellant failed to prove his
     affirmative defense of disability discrimination because he was not a “qualified
     individual” with a disability; (4) the agency established that its action promoted
     the efficiency of the service; and (5) the penalty of removal did not exceed the
     tolerable bounds of reasonableness. ID at 5-12.
¶5         The appellant has filed a timely petition for review challenging the initial
     decision. 3 Petition for Review (PFR) File, Tab 1. Specifically, he argues that the
     administrative   judge   erred   in   deciding   his   due   process   and    disability
     discrimination affirmative defenses and challenges the penalty determination by
     asserting that the administrative judge should have, but did not, consider that he
     requested a demotion in addition to a reassignment to a nonsupervisory position.
     Id. at 6-9. The agency has responded in opposition to the appellant’s petition for
     review. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant did not establish his due process affirmative defense because he
     was notified of, and had the opportunity to respond to, the charges.
¶6         The appellant argues that the agency committed a due process violation by
     proposing his removal based upon two charges but removing him on the basis of a

     3
       On review, the appellant does not challenge the initial decision to the extent that it
     sustained the charges and found nexus. Petition for Review (PFR) File, Tab 1. We see
     no reason to disturb these findings.
                                                                                     4

     new, completely different charge of conduct unbecoming of a supervisor. PFR
     File, Tab 1 at 6-8. We disagree because, as described below, the appellant was
     notified of, and had the opportunity to respond to, all of the charges.
¶7         Procedural due process requires an agency to afford an employee notice of
     the charges against him and of the agency’s supporting evidence and to give that
     employee an opportunity to respond before effecting his removal. See Stone v.
     Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375-76 (Fed. Cir.
     1999). Procedural due process guarantees are not met if the employee has notice
     only of certain charges. Id. at 1376. In determining if an employee has received
     adequate notice of a charge, the Board examines the employee’s reply to see
     whether the employee defended against it. See, e.g., Thome v. Department of
     Homeland Security, 122 M.S.P.R. 315, ¶ 22 (2015).
¶8         The agency proposed the appellant’s removal for “Use of Illegal Drugs and
     Misuse of Government Travel Charge Card, both of which constitute Conduct
     Unbecoming of a Supervisor.”       IAF, Tab 5 at 17 (emphasis in original).   The
     proposal letter stated that, as a supervisor, the appellant was entrusted with the
     responsibility to act on behalf of the agency and that his admitted and
     demonstrated use of illegal drugs and association with such activity caused the
     proposing official to lose trust and confidence in his ability to exercise sound
     judgment as a supervisor and in his duties as a senior-level engineer. Id. at 18.
     Regarding the misuse of a Government travel card charge, the proposal stated that
     misuse of any Government resource violates the basic obligation to safeguard
     Government resources for their intended purpose and that such conduct was not
     expected of a supervisor. Id.
¶9         In his oral response, the appellant stated that his doctor recommended, and
     he believed that, he should not have been a supervisor. IAF, Tab 5 at 14. He
     requested a demotion and reassignment instead of a removal. Id. The appellant
     described his psychological and addiction issues and how these related to his
                                                                                            5

      misconduct. Id. He also acknowledged the impact of his actions and apologized
      for the effect of his conduct on his supervisors and the agency’s program. Id.
¶10         The decision letter stated that the appellant was being removed for conduct
      unbecoming of a supervisor and found that the facts, as outlined in paragraphs
      one, two, and three in the proposal, which specified the original charges and
      described the underlying conduct, were fully supported by a preponderance of the
      evidence. Id.; see id. at 17-18. We agree with the administrative judge that the
      proposal as written was sufficient to put the appellant on notice of the specific
      conduct with which he was being charged and the fact that the agency considered
      that conduct to be unbecoming of a supervisor.                  The instant case is
      distinguishable from those in which the Board has found a due process violation
      based on the differing characterizations of the charge in the proposal and decision
      letters.     For    example,     in   O’Connor      v.   Department      of   Veterans
      Affairs, 59 M.S.P.R. 653 (1993), the Board found a due process violation where
      the agency’s notice of proposed removal charged the appellant with having been
      convicted of a crime but the removal decision was based on underlying conduct
      that led to the alleged conviction. The Board in O’Connor found that the notice
      of proposed removal gave the appellant no reason to think he was being removed
      for his conduct, as distinguished from his conviction.          Id. at 658.   Here, by
      contrast, the notice of proposed removal gave the appellant clear notice of the
      basis for his removal. We therefore agree with the administrative judge that the
      agency did not violate the appellant’s right to due process.
      The appellant      did   not   establish   his   affirmative   defense   of   disability
      discrimination.
¶11         The administrative judge found that the appellant had not established his
      disability discrimination claim because he was “currently engaging” in the illegal
      use of drugs and therefore was not eligible for protection under the Rehabilitation
      Act. ID at 8-9. The appellant challenges this finding on review, arguing that he
      successfully completed, or was participating in, a supervised drug rehabilitation
                                                                                            6

      program and no longer engaged in the illegal use of drugs.           PFR File, Tab 1
      at 8-9. For the reasons discussed below, we agree with the administrative judge.
¶12         Under the Rehabilitation Act of 1973, as amended by the Americans with
      Disabilities Act (ADA) of 1990, Pub. L. No. 101-336, to establish disability
      discrimination, an employee must show, inter alia, that: (1) he is an individual
      with a disability, as defined by 29 C.F.R. § 1630.2(g); and (2) he is a qualified
      individual with a disability, as defined by 29 C.F.R. § 1630.2(m). 4          Miller v.
      Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). A “qualified individual
      with a disability” does not include an employee “who is currently engaging in the
      illegal use of drugs, when the covered entity acts on the basis of such
      use.” 42 U.S.C. § 12114(a). However, under 42 U.S.C. § 12114(b), an individual
      is not excluded from Rehabilitation Act protection as someone currently engaged
      in the illegal use of drugs if he: (1) successfully completed a supervised drug
      rehabilitation program where he is no longer engaging in the illegal use of drugs;
      (2) has otherwise been rehabilitated successfully and is no longer engaging in
      such use; (3) is participating in a supervised rehabilitation program and is no
      longer engaged in such use; or (4) is erroneously regarded as engaging in such
      use. See Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 17 (2009).
¶13         Nothing in the record shows that the appellant met any of these criteria
      prior to the date his removal was proposed.          Here, the agency proposed the
      appellant’s removal in November 2014, and described specific prior conduct to
      support its charge of illegal drug use—namely, that the appellant provided a
      specimen that was positive for illegal drugs and that he admitted to using illegal
      drugs.   IAF, Tab 5 at 17-18; see id. at 28, 33, 35-37.         After the appellant’s

      4
        As a Federal employee, the appellant’s claim of disability discrimination arises under
      the Rehabilitation Act. However, the standards under the ADA have been incorporated
      by reference into the Rehabilitation Act. 29 U.S.C. § 791(g). Further, the ADA
      Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553 (codified at
      42 U.S.C. §§ 12101 et seq.), applies to this appeal because the incidents in question
      occurred after the January 1, 2009 effective date of the ADAAA.
                                                                                                7

      admission of drug use and the collection of the positive specimen, but prior to the
      proposal to remove him, the appellant entered a drug rehabilitation program. Id.
      at 46.     The appellant completed this program in August 2014, id., and, in
      December 2014, during his response to the proposal, he stated that he had not
      used drugs since that time, id. at 14.                  The appellant was removed in
      February 2015.      Id.     at 12-13.     The appellant’s admission to the misconduct,
      completion of a rehabilitation program, and statement in his oral reply that he had
      been drug-free do not negate this prior drug involvement. Therefore, we find that
      the appellant used drugs recently enough to exclude him from coverage as a
      qualified individual with a disability and that the agency could properly remove
      him based, in part, upon his illegal drug use. Accordingly, the appellant has not
      shown that he was entitled to the protections of the Rehabilitation Act.
¶14            Even assuming that the appellant was covered under the Rehabilitation Act,
      the appellant failed to demonstrate that he was removed on the basis of his drug
      addiction rather       than on      the    basis   of   the charged    misconduct.       See
      Adams, 112 M.S.P.R. 288, ¶ 18. Further, the appellant did not present evidence
      that the agency tolerates the sort of misconduct that he committed from the
      nondisabled.     Id.   The appellant is not immunized from being disciplined for
      misconduct provided that the agency would have imposed the same discipline on
      an employee without a disability. Burton v. U.S. Postal Service, 112 M.S.P.R.
      115, ¶ 16 (2009). He has presented no evidence that the agency would not have
      disciplined other employees without a disability for similar misconduct.
      Accordingly,      he      has   failed    to   establish   his   affirmative   defense    of
      disability discrimination.
      The appellant has not provided a basis for disturbing the penalty.
¶15            The appellant asserts that the administrative judge erred in his penalty
      analysis by failing to acknowledge that the appellant had requested reassignment
      to a nonsupervisory position during his response to the proposed removal. PFR
      File, Tab 1 at 8. In determining the penalty, the deciding official noted that the
                                                                                          8

      appellant had requested a demotion and reassignment, but found that a lesser
      penalty than removal would not be in the best interest of the agency. IAF, Tab 11
      at 15.     The administrative judge did not specifically address the appellant’s
      request, but found that the penalty of removal did not exceed the bounds of
      reasonableness, given that the appellant was a supervisor; he intentionally and
      repeatedly used illegal drugs over the course of a year and repeatedly misused his
      Government travel card for almost 8 months; and he worked with military
      aircraft, weapons and equipment systems programs, which rendered the sustained
      misconduct serious, as work performed by him or under his supervision while he
      was under the influence of drugs could result in an accident with the potential for
      loss of life and property. ID at 11-12.
¶16            The administrative judge’s failure to mention the appellant’s request for a
      demotion does not warrant an outcome different from that of the initial decision.
      The Board will not disturb an administrative judge’s findings when he considered
      the evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions. Broughton v. Department of Health & Human Services, 33 M.S.P.R.
      357, 359 (1987).      The administrative judge generally noted that the appellant
      argued for a lesser penalty. ID at 11. His failure to mention all of the evidence
      of record does not mean that he did not consider it in reaching his decision. See
      Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015).
      Moreover, we agree with the administrative judge that the appellant’s length of
      service and expression of remorse for his misconduct, although relevant, does not
      render the penalty of removal outside the tolerable limits of reasonableness. 5



      5
        Similarly, although we have considered the appellant’s subsequent participation in a
      supervised drug rehabilitation program, it does not render the penalty of removal
      unreasonable under the circumstances.       Cf. Norris v. Securities & Exchange
      Commission, 675 F.3d 1349 (Fed. Cir. 2012) (explaining that the Board must consider
      new, post-removal evidence in mitigation of the penalty that was not before the
      deciding official).
                                                                                 9

                 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 U.S. 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
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
                                                                                10

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