                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 40

                             Docket No. SF-0752-12-0675-I-1

                                     Marilee Brown,
                                        Appellant,
                                             v.
                              Department of the Interior,
                                          Agency.
                                        June 4, 2014

           Michael T. Pritchard, Esquire, Fairfax, Virginia, for the appellant.

           Kevin D. Mack, Esquire, Sacramento, California, for the agency.

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         The agency has filed a petition for review, and the appellant has filed a
     cross-petition for review, of the initial decision, which sustained the agency’s
     charge but mitigated the penalty of removal to a demotion. For the foregoing
     reasons, we GRANT the agency’s petition for review, DENY the appellant’s
     cross-petition for review, and AFFIRM the portion of the initial decision that
     (1) sustained the agency’s charge of physical inability to perform the essential
     functions of a Criminal Investigator (Special Agent) position, (2) found that the
     appellant failed to establish her affirmative defenses of disability discrimination
     and retaliation based on her prior equal employment opportunity (EEO) activity,
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     and (3) found no harmful procedural error.       We REVERSE the administrative
     judge’s decision to mitigate the penalty.

                                      BACKGROUND
¶2         The appellant was a GS-12 Criminal Investigator (Special Agent) with the
     U.S. Fish and Wildlife Service (FWS) in Sacramento, California. Initial Appeal
     File (IAF), Tab 9, Subtab 4c at 1. As a Special Agent, the appellant occupied a
     law enforcement position and was required to meet physical standards set by the
     agency for the position. Id., Subtab 4c at 1-2, 7, Subtab 4s at 3. The appellant
     was also required to participate in annual medical examinations.            Hearing
     Transcript (HT), Volume 2 at 93.
¶3         The appellant sustained a back injury in 2005, for which she filed an Office
     of Workers’ Compensation Programs (OWCP) claim, and again injured her back
     in 2009. 1 IAF, Tab 9, Subtab 4q; HT, Volume 2 at 88-101, 165-66. Although the
     appellant was released to full duty by her treating physician, she was placed on
     activity restrictions. IAF, Tab 9, Subtab 4q at 1, 5.
¶4         Effective June 27, 2012, the agency removed the appellant for physical
     inability to perform the essential functions of her position. Id., Subtabs 4a, 4b.
     In support of the charge of physical inability to perform, the agency specified
     that, on April 11, 2011, a reviewing physician from the Department of Health and
     Human Services’ Federal Occupational Health Services (FOHS) completed a
     fitness-for-duty report of the appellant. Id., Subtab 4b at 1-2. The agency stated
     that the reviewing physician determined that the appellant was restricted from
     performing a number of the physical functions required in her job as a Special
     Agent due to her back condition.       Id.   The agency further specified that, on
     November 14, 2011, an agency-convened Medical Review Board determined that

     1
      It is unclear from the record whether the appellant filed an OWCP claim for her 2009
     back injury.
                                                                                       3

     the appellant was unable to perform the essential job functions of her position
     without endangering the health and safety of others. Id. at 2; see id., Subtab 4l
     (containing the findings of the Medical Review Board).
¶5            The appellant filed an appeal of her removal in which she raised the
     affirmative defenses of disability discrimination, reprisal for EEO activity, and
     harmful procedural error. IAF, Tab 1 at 4, 7, Tab 12 at 2. Following a hearing,
     the administrative judge issued an initial decision sustaining the agency’s charge,
     but mitigating the penalty to a demotion to a lower-graded nonlaw enforcement
     position. IAF, Tab 15, Initial Decision (ID) at 1, 34. The administrative judge
     found that the appellant failed to establish her affirmative defense of disability
     discrimination, either on the basis of failure to accommodate or disparate
     treatment. Id. at 20-31. The administrative judge also found that the appellant
     failed to establish that the agency’s actions were motivated by retaliation based
     on her prior EEO activity and failed to establish harmful procedural error. Id.
     at 27-32.
¶6            The agency filed a timely petition for review, and the appellant filed a
     timely cross-petition for review. Petition for Review (PFR) File, Tabs 1-2. The
     appellant has also filed a response to the agency’s petition for review. PFR File,
     Tab 4.

                                          ANALYSIS
     The administrative judge correctly sustained the agency’s charge.
¶7            On review, the appellant challenges the administrative judge’s finding that
     the agency proved its charge of physical inability to perform the essential
     functions of her position.     Among other things, the appellant contends that the
     administrative judge failed to adequately consider and weigh evidence indicating
     that the appellant could work without restrictions and ignored post-removal
     evidence showing the appellant was fit to perform the duties of her Special Agent
     position. PFR File, Tab 2 at 6-9, 12-19.
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¶8         Where, as here, the appellant occupied a position with medical standards or
     physical requirements and the finding that she was unable to perform was based
     on medical history, the agency was required to show the following in order to
     establish a charge of physical inability to perform: that the disabling condition
     itself is disqualifying, its recurrence cannot be ruled out, and the duties of the
     position are such that a recurrence would pose a reasonable probability of
     substantial harm. Slater v. Department of Homeland Security, 108 M.S.P.R. 419 ,
     ¶¶ 7, 11 (2008); see 5 C.F.R. § 339.206 (noting that a history of a particular
     medical problem may result in medical disqualification only when these
     requirements are met). The administrative judge properly applied the evidentiary
     standard in Slater to the current appeal. ID at 15.
¶9         In sustaining the agency’s charge, the administrative judge noted that the
     position of Special Agent required the ability to meet arduous physical demands,
     including being capable of engaging in maximum physical exertion without
     warning,     pursuing   perpetrators   on   foot,   responding   to   life   threatening
     emergencies, traversing long distances over difficult or hazardous terrain in
     extreme weather conditions, and lifting moderate to heavy objects. ID at 16; IAF,
     Tab 9, Subtab 4c at 7. The administrative judge considered the opinion of the
     FOHS Law Enforcement Medical Program physician, who completed the
     appellant’s April 11, 2011 fitness-for-duty report.        ID at 16-19; IAF, Tab 9,
     Subtab 4q. That physician opined that, based on the documentation submitted for
     review by FWS, information supplied by the appellant and her treating physician,
     as well as the doctor’s knowledge of the essential functions of the appellant’s
     position as a Criminal Investigator (Special Agent), it was her professional
     opinion that the appellant was not medically qualified to perform the full
     functions of her job safely and effectively.        IAF, Tab 9, Subtab 4q at 1.     The
     doctor further stated that “[p]rognosis for return to full duty is considered to be
     poor.” Id.
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¶10         Contrary to the appellant’s contentions, the record reflects that the
      administrative judge also carefully considered medical evidence submitted by the
      appellant’s treating physicians. For example, the administrative judge considered
      a May 19, 2011 memorandum submitted by the appellant’s treating physician, in
      which the physician opined that the appellant’s back problem “has basically
      resolved,” and that she was able “to perform the duties of her usual and
      customary occupation” without accommodation.         ID at 17-18; IAF, Tab 11,
      Subtab E at 7-10. In addition, the administrative judge considered an April 13,
      2012 medical report by another of the appellant’s treating physicians, which
      stated that he agreed with the appellant’s contention that she was doing well and
      should be able to return to full capacity in her job.     ID at 18; IAF, Tab 11,
      Subtab F at 3-5.
¶11         We discern no basis to disturb the administrative judge’s decision to give
      more probative weight to the medical opinion of the FOHS physician than those
      of the appellant’s treating physicians. As noted by the administrative judge, in
      assessing the probative weight of medical opinions, the Board considers whether
      the opinion was based on a medical examination and whether the opinion
      provided a reasoned explanation for its findings as distinct from mere conclusory
      assertions, the qualifications of the expert rendering the opinion, and the extent
      and duration of the expert’s familiarity with the treatment of the appellant. ID
      at 16; see Slater, 108 M.S.P.R. 419 , ¶ 15.   The administrative judge properly
      noted the appellant’s physicians’ expertise and qualifications as specialists in
      back and spine conditions and their familiarity with the appellant.     ID at 17.
      However, the administrative judge found that the appellant’s treating physicians
      did not base their medical opinions on the appellant’s position description but
      rather on the appellant’s own description to them of her functions and duties. ID
      at 17-18.   Accordingly, the administrative judge found their opinions that the
      appellant was able to perform her job duties were not persuasive because they
      were conclusory assertions not based on a reasoned explanation. ID at 17-18. By
                                                                                      6

      contrast, the administrative judge found that the FOHS physician’s opinion was
      supported by a reasoned explanation based on her knowledge of the job functions
      of law enforcement officers. ID at 18. The administrative judge’s finding that
      the FOHS physician’s opinion was more persuasive than the opinions of the
      appellant’s treating physicians is supported by the weight of the record evidence
      and the applicable law; accordingly, we discern no basis for disturbing this
      finding on review.    See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 , 106
      (1997) (finding no reason to disturb the administrative judge’s findings where the
      administrative judge 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) (same).
¶12         On review, the appellant contends that the administrative judge failed to
      consider post-removal medical evidence, including a July 20, 2012 report from
      one of the appellant’s treating physicians. PFR File, Tab 2 at 8-9. Even when an
      agency proves that an employee was physically unable to perform the duties of
      her position at the time she was removed, a removal for physical inability to
      perform cannot be sustained where an employee presents medical evidence that
      clearly and unambiguously establishes that she has recovered during the
      pendency of her Board appeal such that she is able to perform the essential
      functions of her position. Wren v. Department of the Army, 121 M.S.P.R. 28 , ¶ 6
      (2014); see Edwards v. Department of Transportation, 109 M.S.P.R. 579 ,
      ¶¶ 19-22 (2008) (holding that the efficiency of the service requirement cannot be
      met where an employee diligently obtains and presents new medical evidence
      of recovery).
¶13         Here, the record reflects that the administrative judge properly considered
      the July 20, 2012 medical report. The appellant’s treating physician evaluated
      her on July 20, 2012, following a recent magnetic resonance imaging (MRI).
      IAF, Tab 11, Subtab F at 6-9. The administrative judge implicitly referred to the
      July 20, 2012 medical report in the initial decision, correctly noting that the
                                                                                       7

      appellant’s physician’s diagnosis remained the same after the new MRI and his
      examination of the appellant. ID at 19; compare IAF, Tab 11, Subtab F at 8, with
      IAF, Tab 11, Subtab F at 3. The administrative judge also properly noted that the
      appellant testified that the MRI performed by her treating physician in mid-2012
      showed no improvement in her disc herniation condition.            ID at 19; HT,
      Volume 2 at 158-59.
¶14         Furthermore, the appellant’s contention that the administrative judge erred
      in denying her motion to submit a November 10, 2012 medical report from one of
      her treating physicians does not provide a basis for review.      PFR File, Tab 2
      at 25-26.   The administrative judge stated in the initial decision that she was
      denying the appellant’s motion to submit this additional medical evidence
      because the appellant had failed to show that it was not readily available before
      the close of the record. ID at 14 n.5.
¶15         We find no error in the administrative judge’s denial of the appellant’s
      motion. The administrative judge advised the parties that the record would close
      at the end of the hearing, which was October 26, 2012. ID at 1; IAF, Tab 12 at 8.
      Once the record closes, additional evidence or argument ordinarily will not be
      accepted unless it is new and material. Grassell v. Department of Transportation,
      40 M.S.P.R. 554 , 563 (1989). Evidence is material if it is of sufficient weight to
      warrant an outcome different from that of the initial decision.      See Russo v.
      Veterans Administration, 3 M.S.P.R. 345 , 349 (1980). The physician’s diagnosis
      in the November 10, 2012 medical report is the same as the physician’s prior
      diagnoses of the appellant’s back condition. Compare PFR File, Tab 2 at 29, with
      IAF, Tab 11, Subtab F at 3, 8.      Further, he notes “no major changes in her
      symptomatologies,” and that the appellant “denies any changes to her medical
      history since her last visit.” PFR File, Tab 2 at 29. The report is neither new nor
      material because it contains the same information that the administrative judge
                                                                                             8

      previously found unpersuasive when properly weighing the medical evidence. 2
      Grassell, 40 M.S.P.R. at 564 (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).
¶16         Based on the foregoing, we agree with the administrative judge’s finding
      that the appellant’s back condition renders her physically unable to perform in
      that it is disqualifying, its recurrence cannot be ruled out, and the duties of her
      law enforcement Special Agent position were such that a recurrence would pose a
      reasonable probability of substantial harm. ID at 15-16, 20. The administrative
      judge, therefore, properly sustained the agency’s charge of inability to perform.

      The agency-imposed penalty of removal fell within the limits of reasonableness.
¶17         Removal for physical inability to perform the essential functions of a
      position promotes the efficiency of the service. Jackson v. U.S. Postal Service,
      666 F.2d 258 , 260 (5th Cir. 1982); D’Leo v. Department of the Navy,
      53 M.S.P.R. 44 , 51 (1992). This is especially true where, as here, the inability to
      perform the essential functions of the position would endanger the health and
      safety of others. See Clemens v. Department of the Army, 120 M.S.P.R. 616 ,
      ¶¶ 9, 18 (2014) (involving a removal for physical inability to perform from a
      position not subject to medical evaluation programs).
¶18         The traditional analysis for mitigating the penalty under Douglas v.
      Veterans Administration, 5 M.S.P.R. 280 (1981), does not apply in this instance
      because of the nondisciplinary nature of the agency’s action. See Chandler v.
      Department of the Treasury, 120 M.S.P.R. 163 , ¶ 31 (2013) (noting that the


      2
        We further note that the report does not outweigh the previous medical evidence
      indicating that the appellant was medically unable to perform the essential duties of her
      position. See Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 7 (2013) (finding that
      a new medical report did not outweigh the weight of reports over a 2-year period that
      the appellant was medically unable to perform the duties of her position).
                                                                                         9

      Douglas factors do not apply to a furlough, consistent with the Board’s practice
      of not applying them to nondisciplinary matters). In Douglas, the Board listed
      twelve nonexhaustive factors that are relevant in assessing the penalty to be
      imposed for an act of misconduct, including the nature and seriousness of the
      offense, the appellant’s past disciplinary record, the appellant’s past work record,
      the appellant’s potential for rehabilitation, and mitigating circumstances
      surrounding the offense.     5 M.S.P.R. at 305-06.      None of these factors are
      relevant in a case where the agency’s action is based on physical inability to
      perform because such a case does not involve any alleged misconduct on the part
      of the appellant. Rather, the correct standard to be applied in determining the
      penalty for a removal based on physical inability to perform is whether the
      penalty   of   removal   exceeded   “the   tolerable   limits   of   reasonableness.”
      Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518 , ¶ 14
      (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005). The record reflects that the
      appellant’s medical condition required long-term recovery and rehabilitation,
      without a foreseeable end to her incapacity. As discussed above, the appellant’s
      medical documentation does not persuade us that she is able to return to duty in
      her position of record. The reasonableness of the appellant’s removal should be
      based solely on the medical evidence which, in this case, clearly established her
      physical inability to perform.
¶19         Generally, in instances where an employee cannot perform the essential
      functions of her position, the Board must examine whether this is true with or
      without reasonable accommodation and whether the agency has any vacant
      positions to which it can assign the appellant within her restrictions. Id.; D’Leo,
      53 M.S.P.R. at 51; see Jackson v. U.S. Postal Service, 79 M.S.P.R. 46 , 54 (1998)
      (the Board sustained a removal for physical inability to perform where the
      appellant failed to identify any vacant funded positions at or below her grade
      level, the duties of which she could perform).         Nonetheless, the Board has
      recognized an exception to this general rule. In particular, the Board held in
                                                                                           10

      Marshall-Carter that an agency did not abuse it discretion when assessing the
      reasonableness of the penalty by failing to consider reassignment as an alternative
      to removal where the appellant refused to cooperate with the agency’s attempts to
      determine the extent of her physical limitations.          94 M.S.P.R. 518 , ¶ 14.    In
      addition, the appellant is obligated to interact with the agency during the
      reasonable accommodation process, and the penalty of removal may be justified
      where an appellant fails to do so. See id.
¶20         Here, the appellant repeatedly thwarted the agency’s numerous attempts to
      reasonably accommodate her medical restrictions. As noted by the administrative
      judge, the agency offered to reassign the appellant to one of two lower-graded
      positions.   The appellant, however, rejected the agency’s offers of the two
      lower-graded positions. In fact, she adamantly emphasized that she would only
      agree to be reassigned to jobs where she would retain her law enforcement status
      at an equivalent grade and pay level, which the medical evidence clearly showed
      were jobs for which she could not qualify in light of her medical restrictions.
      HT, Volume 2 at 33-35, 38.             Yet, the administrative judge determined that
      demotion to one of these lower-graded positions was an appropriate penalty
      because the agency previously decided the appellant qualified for them and
      offered them to her, notwithstanding the fact that she categorically rejected these
      offers. Id. at 34.
¶21         The record shows that the appellant’s continual rejection of the agency’s
      offers to provide her with lower-graded positions was obstructive, not interactive.
      See   29 C.F.R.      § 1630.2 (o)(3)    (to   determine   the   appropriate   reasonable
      accommodation, an agency may need to “initiate an informal, interactive process
      with the individual with a disability in need of the accommodation”) (emphasis
      added); Appendix to 29 C.F.R. Part 1630, § 1630.9 (“The appropriate reasonable
      accommodation is best determined through a flexible, interactive process that
      involves both the employer and the individual with a disability.”) Courts have
      generally required the parties to engage in this process in good faith. See, e.g.,
                                                                                           11

      Rehling v. City of Chicago, 207 F.3d 1009 , 1015-16 (7th Cir 2000); see also
      Simpson v. U.S. Postal Service, 113 M.S.P.R. 346 , ¶ 18(2010) (finding that the
      appellant did not prove the denial of reasonable accommodation where he was
      unresponsive      to   the   agency’s   good   faith   attempts   to   engage   in   the
      interactive process).
¶22            In light of the appellant’s repeated refusals to accept any of the agency’s
      numerous offers to accommodate her, we find that this case falls squarely within
      the exception set forth in Marshall-Carter. As we have pointed out, the appellant
      has certain obligations during the interactive reasonable accommodation process,
      and the penalty of removal may be justified where the appellant falls short of
      those obligations. Jackson, 79 M.S.P.R. at 54 (citing Gonzagowski v. Widnall,
      115 F.3d 744 , 748-49 (10th Cir. 1997)); Shiring v. Runyon, 90 F.3d 827 , 832 (3d
      Cir. 1996); Robinson v. Runyon, 987 F. Supp. 620, 622 (N.D. Ohio 1997).
      Consequently, we find that, under the circumstances in this case, the
      agency-imposed penalty of removal fell within the tolerable limits of
      reasonableness. See Beard v. General Services Administration, 801 F.2d 1318 ,
      1322 (1986) (the Board will give deference to an agency’s decision regarding a
      penalty); McPherson v. U.S. Postal Service, 48 M.S.P.R. 624 , 632-34 (1991)
      (removal of an employee whose physical condition rendered him incapable of
      performing the duties of his position promoted the efficiency of the service);
      Coley v. Department of the Army, 29 M.S.P.R. 101 , 106 (1985) (same).

      The administrative judge properly found that the appellant failed to establish her
      affirmative defenses.
               Failure to Accommodate
¶23            On review, the appellant asserts that the administrative judge erred in
      adjudicating her reasonable accommodation claim. PFR File, Tab 2 at 6, 10-12,
      20-21.     An appellant may establish a disability discrimination claim based on
      failure to accommodate by showing that: (1) she is a disabled person; (2) the
      action appealed was based on her disability; and, to the extent possible, (3) there
                                                                                          12

      was a reasonable accommodation under which the appellant believes she could
      perform the essential duties of her position or of a vacant position to which she
      could be reassigned.    Sanders v. Social Security Administration, 114 M.S.P.R.
      487 , ¶ 16 (2010). The administrative judge found that the appellant was a person
      with a disability under the Americans with Disabilities Act Amendments Act of
      2008, and the parties do not dispute this finding on review. 3 ID at 21. After
      finding that the appellant could not be accommodated in her current position, ID
      at 22-23, the administrative judge considered whether there was a vacant position
      to which the appellant could have been reassigned.        The administrative judge
      found that there were two vacant Law Enforcement Support Assistant positions
      that were suitable for the appellant, and that the agency did not fail to reasonably
      accommodate the appellant concerning these positions because it offered to
      noncompetitively convert her to either of them. ID at 24.
¶24         The administrative judge also considered whether the agency was required
      to reasonably accommodate the appellant in a position at the Federal Law
      Enforcement Training Center (FLETC) in Glynco, Georgia, as a GS-12 Instructor.
      ID at 25-26. Upon careful consideration, the administrative found the FLETC
      Instructor job was not a vacant position which the agency was required to fill as a
      reasonable accommodation for the appellant.           ID at 25.    Specifically, the
      administrative judge found that the position was not a permanent one but rather
      one that the agency could fill on a short-term basis at its discretion. ID at 26.
¶25         The appellant contends on review that the administrative judge erred in
      finding that the GS-12 FLETC Instructor position was not vacant.           PFR File,

      3
        As a federal employee, the appellant’s claim of discrimination on the basis of
      disability arises under the Rehabilitation Act of 1973. However, the regulatory
      standards for the Americans with Disabilities Act have been incorporated by reference
      into the Rehabilitation Act, and the Board applies them to determine whether there has
      been a Rehabilitation Act violation. 29 U.S.C. § 791(g); Sanders, 114 M.S.P.R. 487,
      ¶ 16; 29 C.F.R. § 1614.203(b).
                                                                                         13

      Tab 2 at 10-12. We discern no basis for disturbing the administrative judge’s
      finding   that   the   GS-12   FLETC    Instructor   position   was   a   short-term,
      nonpermanent position. As such, it did not constitute a funded vacant position.
      See Okleson v. U.S. Postal Service, 90 M.S.P.R. 415 , ¶ 13 (2001) (finding that a
      detail did not constitute a funded vacant position within the meaning of Equal
      Employment Opportunity Commission regulations).           Thus, the appellant has
      failed to establish that the agency discriminated against her by failing to
      reasonably accommodate her disability.
            Disparate Treatment and Retaliation
¶26         The appellant contends on review that the administrative judge erred in
      denying her disparate treatment and retaliation claims. PFR File, Tab 2 at 22-25.
      Where an agency has already articulated a nondiscriminatory reason for its
      action, such as in this case, the inquiry is whether, upon weighing all the
      evidence, the appellant has met her burden of proving that the agency
      intentionally discriminated against her based on her disability or retaliated
      against her based on EEO activity. Fox v. Department of the Army, 120 M.S.P.R.
      529 , ¶ 36 (2014).     The evidence to be considered at this stage may include:
      (1) the elements of the prima facie case; (2) any evidence the employee presents
      to attack the employer’s proffered explanations for its actions; and (3) any further
      evidence of discrimination or retaliation that may be available to the employee,
      such as independent evidence of discriminatory statements or attitudes on the part
      of the employer, or any contrary evidence that may be available to the employer,
      such as a strong track record in equal opportunity employment. Id. While such
      evidence may include proof that the employer treated similarly-situated
      employees differently, an employee may also prevail by introducing evidence:
      (1) that the employer lied about its reason for taking the action; (2) of
      inconsistency in the employer’s explanation; (3) of failure to follow established
      procedures; (4) of general treatment of disabled employees or those who engage
      in protected activities; or (5) of incriminating statements by the employer. Id.
                                                                                       14

¶27         Regarding the claim of disparate treatment based on disability, the
      appellant contends that the agency treated her less favorably than another
      employee who was provided with an accommodation to allow him to continue
      working.   PFR File, Tab 2 at 22-24.      For employees to be deemed similarly
      situated for purposes of a disparate treatment discrimination claim, all relevant
      aspects of the appellant’s employment situation must be “nearly identical” to
      those of the comparator employees. Fox, 120 M.S.P.R. 529 , ¶ 37. The appellant
      contends on review that the administrative judge erred in finding that the
      appellant was not similarly situated to the other employee who was provided an
      accommodation.     PFR File, Tab 2 at 23; ID at 29. The appellant, however,
      does not dispute the administrative judge’s findings that the other employee had
      unique expertise in a subject area involving extensive activity on the internet and
      that the appellant’s supervisors were not involved in the modification of that
      employee’s work duties.      ID at 29.    Accordingly, we discern no basis for
      disturbing the administrative judge’s finding that the appellant and the other
      employee were not similarly situated.     See Ly v. Department of the Treasury,
      118 M.S.P.R. 481 , ¶ 10 (2012) (denying the appellant’s discrimination claim
      based on disparate treatment where not all aspects of the appellant’s employment
      situation were nearly identical to those of the comparator employee).
¶28         As to the appellant’s retaliation claim, the appellant contends that the
      deciding official was aware of the appellant’s EEO complaint prior to the
      appellant’s removal.   PFR File, Tab 2 at 24.     However, the appellant fails to
      establish that the deciding official had a motive to retaliate against the appellant
      based on her EEO complaint. In the initial decision, the administrative judge
      found the appellant’s EEO complaint was not directed at the deciding official and
      did not implicate the deciding official’s conduct.      ID at 31.    The appellant
      does not dispute this finding on review or offer any evidence or argument
      suggesting the deciding official had a retaliatory motive. Based on the evidence
      of record, we agree with the administrative judge that the appellant has failed to
                                                                                      15

      meet her ultimate burden of establishing that the agency intentionally retaliated
      against her based on her protected EEO activity. See Mahaffey v. Department of
      Agriculture, 105 M.S.P.R. 347 , ¶ 22 (2007) (denying the appellant’s retaliation
      claim where the appellant failed to establish a retaliatory animus).
            Harmful Procedural Error
¶29         The appellant reiterates her harmful procedural error claim on review. PFR
      File, Tab 2 at 21-22.   The appellant’s assertions constitute mere disagreement
      with the administrative judge’s well-reasoned finding that the appellant failed to
      establish that the agency committed a harmful procedural error.        ID at 31-32.
      Therefore, they fail to provide a basis for disturbing the initial decision. See
      Crosby, 74 M.S.P.R. at 106 (finding no reason to disturb the administrative
      judge’s findings where the administrative judge considered the evidence as a
      whole, drew appropriate inferences, and made reasoned conclusions); Broughton,
      33 M.S.P.R. at 359 (same).
¶30         For the foregoing reasons, we SUSTAIN the agency’s removal action.

                                            ORDER
¶31         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
      § 1201.113 (c)).

                         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:
                                                                                   16

                           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
                                                                            17

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.
