                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL E. PHILLIPS,                            DOCKET NUMBER
                   Appellant,                        SF-0752-13-0078-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: August 15, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas Dimitre, Esquire, Ashland, Oregon, for the appellant.

           Rayann Lund, Albuquerque, New Mexico, 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
     sustained the appellant’s 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                      BACKGROUND
¶2         Effective October 11, 2012, the agency removed the appellant from his
     Forestry Technician–Check Cruiser position with the Klamath National Forest
     (Klamath) in Yreka, California, based on a charge of failure to pass the advanced
     cruiser examination. Initial Appeal File (IAF), Tab 4 at 11-15. In support of the
     charge, the agency asserted that, in order to hold the title of Forest Check Cruiser,
     the appellant was required to be a certified advanced cruiser; however, he had
     repeatedly failed to pass the advanced cruiser exam. Id. at 17. The appellant
     filed a Board appeal of his removal in which he raised the affirmative defenses of
     harmful procedural error and disability discrimination on the basis of the
     agency’s alleged failure to accommodate his disability of post-traumatic stress
     disorder (PTSD). IAF, Tabs 1, 33.
¶3         After a hearing, the administrative judge issued an initial decision affirming
     the appellant’s removal.    IAF, Tab 38, Initial Decision (ID) at 1, 28.         The
     administrative judge found that the agency proved the charge by preponderant
     evidence, ID at 15-18, that the action promoted the efficiency of the service, ID at
                                                                                       3

     25, and that the penalty of removal was reasonable, ID at 25-27.                The
     administrative judge also found that the appellant failed to prove his affirmative
     defenses. ID at 19-25.
¶4        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition to the petition for
     review. PFR File, Tab 3.

                                        ANALYSIS
     The administrative judge correctly found that the agency proved the charge by
     preponderant evidence.
¶5        The administrative judge found that the charge of failure to pass the
     advanced cruiser exam is similar to a charge of failure to meet the requirements
     of a position based on failure to complete the necessary training. 2 ID at 3 (citing
     Radcliffe v. Department of Transportation, 57 M.S.P.R. 237, 242 (1993)). The
     administrative judge explained that, to sustain the charge, the agency must show
     the following: (1) as a condition of his employment, the employee was required to
     pass the advanced cruiser exam; (2) the employee failed to pass the exam; and
     (3) the agency provided any required training in anticipation of the examination.
     ID at 3 (citing LeBlanc v. Department of Transportation, 60 M.S.P.R. 405,
     414-17 (1994), aff’d, 53 F.3d 346 (Fed. Cir. 1995) (Table)).
¶6        Applying this standard, the administrative judge found that the agency
     required the appellant to become a certified check cruiser as a condition of
     employment, that before becoming a certified check cruiser the appellant was
     required to meet the standards for a qualified cruiser and then progress to the
     advanced cruiser level, and that he never qualified as an advanced cruiser because
     he failed to pass the advanced cruiser examination. ID at 16. The administrative
     judge also found that the agency provided the appellant the required training in


     2
       During the prehearing conference, the parties concurred with the administrative
     judge’s construction of the charge. See IAF, Tab 34 at 5.
                                                                                             4

     anticipation of the advanced cruiser examination. ID at 16. Accordingly, the
     administrative judge sustained the charge. ID at 18.
¶7           On review the appellant argues that the administrative judge erred in
     finding that passing the advanced cruiser examination was a condition of
     employment. 3 PFR File, Tab 1 at 1-5.        In particular, he asserts that passing the
     advanced cruiser exam was not a condition of employment because he was not
     informed until more than 2 months after he began his employment that he would
     need to pass an examination to become a certified check cruiser. Id. at 2.
¶8           The administrative judge rejected this argument, finding that the timing of
     when the appellant learned that he would need to pass the advanced cruiser
     examination as part of the process of becoming a certified check cruiser does not
     affect the fact that passing the exam was a condition of his employment. ID at 16
     n.19.    In rejecting the appellant’s argument, the administrative judge credited
     Klamath’s Natural Resources Officer’s testimony that, when he interviewed the
     appellant for the position, he informed the appellant that he would need to
     become a certified check cruiser and that the checklist on the application form the
     appellant completed in applying for the position indicated he would need to reach
     the advanced cruiser level before becoming a certified check cruiser. ID at 16
     n.19 (citing Hearing Compact Disc (HCD) (Blessing’s testimony) and IAF, Tab
     29 at 19); see Hillen v. Department of the Army, 35 M.S.P.R. 453, 460-61 (1987)
     (identifying the consistency of testimony with other evidence as a factor to
     consider in determining witness credibility).         The appellant’s argument that
     passing the advanced cruiser exam was not a condition of employment is thus
     essentially mere disagreement with the administrative judge’s explained finding
     to the contrary and, as such, provides no basis to disturb the initial decision. See

     3
       The appellant does not challenge the administrative judge’s findings that the agency
     met the other requirements for proving the charge, i.e., that the appellant failed to pass
     the advanced cruiser examination and the agency provided him the required training in
     anticipation of the exam. See PFR, Tab 1. Based on our review of the record, we
     discern no reason to disturb those findings.
                                                                                        5

      Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
      (1987).

      The administrative judge correctly found that the appellant failed to prove his
      affirmative defenses.
            Harmful Procedural Error

¶9         The appellant reiterates his harmful procedural error claim on review. PFR
      File, Tab 1 at 5-6. An agency error is harmful only where the record shows that
      the procedural error was likely to have caused the agency to reach a conclusion
      different from the one it would have reached in the absence or cure of the error.
      Bair v. Department of Defense, 117 M.S.P.R. 374, ¶ 8 (2012).            It is the
      appellant’s burden to prove that a procedural error occurred and that the error
      substantially prejudiced his rights such that the outcome was probably affected.
      Mercer v. Department of Health & Human Services, 772 F.2d 856, 859 (Fed. Cir.
      1985); 5 C.F.R. § 1201.56(c)(3).
¶10        Both before the administrative judge and on review, the appellant argues
      that the agency committed harmful procedural error by removing him without
      providing annual Individual Development Plans (IDPs) setting forth what training
      he should receive and without placing him on a Performance Improvement Plan
      (PIP). PFR File, Tab 1 at 5-6; IAF, Tab 33 at 6; see ID at 19 (citing HCD (the
      appellant’s closing argument)). Regarding the IDP issue, the appellant argues
      that the applicable collective bargaining agreement (CBA) and agency handbooks
      require the annual preparation of an IDP by the employee and the employee’s
      supervisor setting forth the training needs of the employee; however, he never
      received one.   PFR File, Tab 1 at 5.     Regarding the PIP issue, the appellant
      asserts that his failure to achieve certification was a performance issue, and the
      agency was therefore required, pursuant to both the CBA and agency handbooks,
      to provide him a PIP.      Id.     The appellant also argues on review that the
      administrative judge never made a finding regarding the IDP and PIP issues. Id.
                                                                                      6

¶11         Contrary to the appellant’s assertion, the administrative judge made
      findings regarding both of these issues. See ID at 19-21. As to the IDP issue, the
      administrative judge found that the appellant did not explain how completing and
      finalizing an IDP would have resulted in his receiving more training than was
      already provided by the agency. ID at 20. Thus, the administrative judge found,
      to the extent that the agency violated a procedural requirement regarding the IDP,
      that the appellant failed to show how this violation substantially prejudiced his
      rights. ID at 20.
¶12         Regarding the appellant’s argument that the agency committed harmful
      procedural error by failing to place him on a PIP when it identified specific
      deficiencies in his performance, the administrative judge found that the appellant
      failed to prove by preponderant evidence that the agency was bound by a
      provision in either the CBA or an agency handbook to place the appellant on a
      PIP prior to removing him pursuant to 5 U.S.C. chapter 75. ID at 21. In making
      this finding, the administrative judge noted that an employee is entitled to a
      reasonable opportunity to improve prior to an agency removing the employee for
      performance-based reasons pursuant to 5 U.S.C. chapter 43.          However, the
      administrative judge determined that the agency’s action here was not taken for
      performance reasons but for failure to meet a necessary condition of employment
      by not passing a mandatory examination. ID at 20-21; IAF, Tab 4 at 11-12, 17.
      Thus, the administrative judge found that the agency did not make a procedural
      error in not meeting the requirements of an action brought pursuant to chapter 43.
      ID at 21.    The administrative judge further found that, even presuming a
      procedural error occurred, there was no evidence that the presumed error of not
      placing the appellant on a PIP was likely to have caused the agency to reach a
      conclusion different from the one it reached in the absence or cure of the error.
      ID at 21.
¶13         Based on our review of the record, we agree with the administrative judge
      that the record does not support the appellant’s claims of harmful procedural
                                                                                            7

      error.     Even assuming that the agency violated a procedural requirement by
      failing to provide the appellant with an IDP, there is no evidence that the result
      would have been different absent the error because there is no evidence that the
      agency would not have removed him from his position because of his failure to
      pass the advanced certified cruiser exam even if it had provided him with an
      annual IDP. We also agree with the administrative judge that the agency did not
      err by failing to place the appellant on a PIP prior to removing him because he
      was not removed for performance-based reasons pursuant to 5 U.S.C. chapter 43.
      Therefore, we find that the administrative judge correctly found that the appellant
      failed to prove his harmful procedural error claims.
               Disability Discrimination
¶14            On review the appellant also reasserts his claim of disability discrimination
      based on failure to accommodate. PFR File, Tab 1 at 6-7. The Rehabilitation Act
      requires an agency to provide reasonable accommodation to the known physical
      or mental limitations of an otherwise qualified individual with a disability unless
      the agency can show that accommodation would cause an undue hardship on its
      business operations. 4 Clemens v. Department of the Army, 120 M.S.P.R. 616,
      ¶ 10 (2014). The ADAAA defines “qualified individual,” in part, to mean “an
      individual who, with or without reasonable accommodation, can perform the
      essential functions of the employment position that such individual holds or
      desires.” See 42 U.S.C. § 12111(8). The ADAAA defines “disability” to mean:

      4
        As a federal employee, the appellant’s claim of disability discrimination arises under
      the Rehabilitation Act. However, the standards under the Americans with Disabilities
      Act have been incorporated by reference into the Rehabilitation Act. 29 U.S.C.
      § 791(g). The Americans with Disabilities Act Amendments Act of 2008 (ADAAA),
      which liberalized the definition of disability, became effective on January 1, 2009. See
      Pub. L. 110-325, 122 Stat. 3553 (2008), codified at 42 U.S.C. § 12101 et seq. Because
      the appellant was removed from his position on October 11, 2012, the ADAAA
      definition is applicable. Although the ADAAA changed the interpretation of the law as
      to the existence of a disability, it did not affect the requirements of the law as to
      reasonable accommodation. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11
      n.4 (2012).
                                                                                                8

      “a physical or mental impairment that substantially limits 5 one or more major life
      activities of such individual; a record of such an impairment; or being regarded as
      having such an impairment . . . .” 42 U.S.C. § 12102(1)(A)-(C). “Major Life
      Activities” include, but are not limited to, “caring for oneself, performing manual
      tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
      speaking, breathing, learning, reading, concentrating, thinking, communicating,
      and working.” 42 U.S.C. § 12102(2)(A). Reasonable accommodation includes
      modifications to the manner in which a position is customarily performed to
      enable a qualified individual with a disability to perform the essential job
      functions, or reassignment of the employee to a vacant position whose duties the
      employee can perform. Clemens, 120 M.S.P.R. 616, ¶ 10.
¶15         An appellant may establish a disability discrimination claim based on
      failure to accommodate by showing that: (1) he is a disabled person; (2) the
      action appealed was based on his disability; and (3) to the extent possible, that
      there was a reasonable accommodation under which the appellant believes he
      could perform the essential duties of his position or of a vacant position to which
      he could be reassigned. Bennett v. U.S. Postal Service, 118 M.S.P.R. 271, ¶ 10
      n.2 (2012).
¶16         The administrative judge found that the appellant did not provide the
      agency or the Board any documentation supporting his claim that he suffers from
      PTSD, nor did he submit any credible evidence showing that his inability to pass


      5
        The Equal Employment Opportunity Commission’s ADAAA regulations provide that
      the term “‘substantially limits’ shall be construed broadly in favor of expansive
      coverage, to the maximum extent permitted by the terms of the ADAAA. ‘Substantially
      limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630(j)(1)(i). “An
      impairment is a disability within the meaning of this section if it substantially limits the
      ability of an individual to perform a major life activity as compared to most people in
      the general population. An impairment need not prevent, or significantly or severely
      restrict, the individual from performing a major life activity in order to be considered
      substantially limiting. Nonetheless, not every impairment will constitute a disability
      within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ii).
                                                                                         9

      the advanced cruiser exam was related to his PTSD. ID at 23. Therefore, the
      administrative judge found that the appellant failed to prove either that he was
      disabled during the relevant time frame due to PTSD or that he was removed
      based upon any disability-related limitations. ID at 23.
¶17         The administrative judge further found that, even if the appellant could
      show that his removal was based on disability-related impairments, he failed to
      show that there was a reasonable accommodation that the agency could have
      provided that would allow him to continue working. ID at 23-25. In that regard,
      the administrative judge rejected the appellant’s argument that the agency should
      have accommodated him by providing more one-on-one assistance in teaching
      him how to develop cruise designs. ID at 23. The administrative judge noted that
      the agency had provided the appellant extensive assistance from multiple sources
      and only removed him after years of such assistance had proved unsuccessful. ID
      at 23-24. In addition, the administrative judge noted that “it is unrebutted that the
      agency needed a certified check cruiser in the appellant’s position.” ID at 23-24.
      The administrative judge therefore found that “it would be unreasonable to
      require the agency to keep the appellant in a position where he is not performing
      its essential functions while providing still more training similar to that which
      had already proven ineffective.” ID at 24.
¶18         The administrative judge also rejected the appellant’s argument that the
      agency should have reassigned him to another position.           ID at 24-25.     In
      particular, the administrative judge credited the deciding official’s testimony that
      she looked into reassigning the appellant but was unable to find any vacant
      positions for which he was qualified. ID at 24. By contrast, the administrative
      judge did not find credible the appellant’s claim that he was aware of vacant
      positions for which he was qualified. ID at 24 Therefore, the administrative
      judge found that the appellant failed to prove by preponderant evidence his
      affirmative defense of disability discrimination. ID at 25.
                                                                                        10

¶19         The appellant reasserts his disability discrimination claim on review
      arguing that the administrative judge erred in finding that the agency had not
      discriminated against him “because ‘the appellant never requested reassignment’
      and because the [a]ppellant ‘believed that the agency should have accommodated
      him’.” PFR File, Tab 1 at 7. The appellant has apparently misread the initial
      decision.   Although the administrative judge noted that the appellant never
      requested a reassignment or, for that matter, any accommodation, he did not find
      that the appellant failed to prove his disability discrimination claim on that basis.
      Rather, as noted above, the administrative judge found that the appellant failed to
      prove his claim because, even if the appellant could show that his removal was
      based on disability-related impairments, he did not meet his burden of showing
      that there was a reasonable accommodation that the agency could have provided
      that would have allowed him to continuing working. ID at 23-25.
¶20         We also find unavailing the appellant’s argument on review that he proved
      his disability discrimination claim by showing that he notified his supervisor of
      his disability in 2011 and 2012, and that the agency failed to engage in the
      interactive process required by the Rehabilitation Act. PFR File, Tab 1 at 6-7.
      Even assuming that the appellant informed his supervisor that he had a disability,
      thereby triggering the agency’s obligation to engage in the interactive process, the
      agency’s failure to engage in the interactive process alone does not violate the
      Rehabilitation Act; rather, the appellant must show that this omission resulted in
      a failure to provide reasonable accommodation. Gonzalez-Acosta v. Department
      of Veterans Affairs, 113 M.S.P.R. 277, ¶ 16 (2010).
¶21         As discussed above, the agency established at the hearing that there was no
      appropriate vacancy to which the appellant could be reassigned. ID at 24-25.
      Further, we discern no reason to disturb the administrative judge’s finding that
      the agency did not deny the appellant a reasonable accommodation by failing to
      provide him with additional one-on-one training, given the appellant’s failure to
      pass the advanced cruiser exam despite having received “extensive assistance
                                                                                      11

      from multiple resources.” ID at 23-24. Thus, even if the agency failed to engage
      in the interactive process, the appellant has not shown that this omission resulted
      in failure to provide reasonable accommodation.

      The administrative judge correctly found that the agency proved that removal is a
      reasonable penalty and promotes the efficiency of the service.
¶22         The appellant does not offer any specific argument on review challenging
      the administrative judge’s findings that there is a nexus between the charge and
      the efficiency of the service and that removal is a reasonable penalty for the
      sustained charge. ID at 25-27. Based on our review of the record, we discern no
      reason to disturb these findings.

                      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

            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
                                                                                   12

      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
ofprepayment 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.
