                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KRISTOPHER D. KELLY,                            DOCKET NUMBER
                   Appellant,                        AT-0752-15-0064-I-1

                  v.

     TENNESSEE VALLEY AUTHORITY,                     DATE: June 16, 2016
                  Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Jennifer B. Morton, Esquire, and Pat Kelly, Knoxville, Tennessee, for
             the appellant.

           William T. Terrell, Knoxville, Tennessee, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant filed this appeal challenging the agency’s action removing
     him from the position of Senior Nuclear Security Officer (NSO) at the Tennessee
     Valley Authority (TVA) Watts Bar Nuclear Plant in Spring City, Tennessee,
     effective September 11, 2014.     Initial Appeal File (IAF), Tab 1.        The agency
     based the action on a charge of failure to meet the requirements of the Senior
     NSO position due to medical restrictions. 2 IAF, Tab 21.
¶3        It is undisputed that the appellant was hired in June 2009, and that in 2013,
     he began to experience progressively more severe symptoms of an injury he
     sustained in 2005 while serving in the Department of the Army in Operation Iraqi
     Freedom. IAF, Tab 1. Because he was concerned about his symptoms, which
     include periodic loss of control over his legs, and his ability to respond in the
     event of an emergency, on November 19, 2013, the appellant had his physician
     write a letter detailing his medical restrictions. IAF, Tab 21 at 34. This letter
     stated that the appellant had been diagnosed with spastic gait, which interfered

     2
       The NSO position      is   a   law   enforcement   officer   position   that   includes
     medical standards.
                                                                                        3

     with “his ability to walk and makes running very difficult and decreases his
     ability to control his legs when necessary to stop,” and that the appellant was
     having pain on the left side of his spine that was worsened by strenuous
     movement or activity.         Id.   This letter was provided to the agency in
     November 2013, and the agency immediately pulled the appellant’s S11-Medical
     Clearance Form and placed him on administrative leave. IAF, Tab 30, Hearing
     Compact Disc (HCD). The appellant later met with the agency’s Site Security
     Superintendent who advised him that the agency would look for a job for him,
     and he provided her with a copy of his résumé. On November 22, 2013, the Site
     Security Superintendent emailed the appellant’s résumé to the Senior Human
     Resources (HR) Generalist for Watts Barr. IAF, Tab 21 at 22. The Site Security
     Superintendent stated in her email that the appellant “had his S11 pulled last
     night” and “he’s asked if we could help finding him another position.” Id.
¶4         The Senior HR Generalist testified that she had several conversations with
     the appellant by telephone and email about available jobs in TVA and about
     possible disability benefits and that she told him that he also should look for jobs.
     HCD. She also testified that she told him that she would do everything in her
     power to find him another position and that she followed the agency’s standard
     process for reassignments by emailing his résumé to three other agency HR
     employees and asking if they knew of “anything in TVA in which he would be
     qualified.” HCD; IAF, Tab 21 at 22. The Senior HR Generalist followed up with
     two additional emails asking to be contacted if the agency HR employees knew of
     an opening that might fit the appellant’s qualifications. Id. On June 1, 2014, the
     agency proposed to remove the appellant from his position for failing to meet the
     medical requirements of his position, and his removal was effective on
     September 11, 2014.
¶5         On appeal, the administrative judge found that the medical documentation
     supported the agency’s removal action by preponderant evidence. IAF, Tab 33,
     Initial Decision (ID) at 5.     However, the administrative judge found that the
                                                                                          4

     agency failed to make a good faith effort to accommodate the appellant through
     reassignment. ID at 8. The administrative judge found no documentary evidence
     that the agency ever performed a search of available positions for the appellant or
     any other evidence showing that anyone looked at the appellant’s qualifications to
     see if he could be placed in any of the vacant, funded positions during the
     relevant time period. Furthermore, the administrative judge found that the agency
     failed to produce any position descriptions of available funded positions. Thus,
     the administrative judge found that the agency failed to engage in a good faith
     effort to accommodate the appellant. ID at 9. The administrative judge found
     further that the appellant identified a vacant position, Custodian (Trainee) (Job
     Opening ID No. 501479), as one of the positions to which he could be reassigned
     and that the agency failed to address the appellant’s qualifications for this
     position or otherwise rebut his assertions that he was qualified to perform the
     position of Custodian (Trainee).      ID at 10.    Thus, based on the appellant’s
     unrebutted testimony that he was qualified for at least one position on the
     vacancy list, the administrative judge found that the appellant established by
     preponderant evidence that the agency failed to meet its obligation to reasonably
     accommodate him by reassigning him to another position.             Accordingly, the
     administrative judge reversed the agency’s removal action finding that the agency
     discriminated against the appellant based on his disability. ID at 10-11.
¶6         On review, the agency argues that the appellant failed to prove his
     affirmative defense of disability discrimination. 3 Petition for Review (PFR) File,
     Tab 1. The agency asserts that the appellant failed to meet his burden of proof by
     identifying a vacant, funded position for which he was qualified, with or without
     accommodation, that existed at the time he requested accommodation. Id. at 17.


     3
       The appellant, who was represented by his mother below and who is now represented
     by an attorney on review, does not challenge the administrative judge’s determination
     that the agency proved the charge that he failed to meet the requirements of the Senior
     NSO due to medical restrictions. PFR File, Tab 8.
                                                                                        5

     The agency contends that the appellant did not “request any particular
     reassignment opportunity” and he did not “articulate” prior to the hearing which
     of the 75 jobs on the job listing that he believed he was qualified for. Id. at 9.
     The agency argues that, it is only if the appellant satisfies his burden of
     establishing that he met the minimum requirements for a reassignment job that the
     burden shifts back to the agency to establish that the requested accommodation
     would create an undue hardship. Id.
¶7         We disagree. An agency must provide reasonable accommodation to the
     known limitations of a qualified individual with a disability unless to do so would
     create an undue hardship. 42 U.S.C. § 12112(a); Simpson v. U.S. Postal Service,
     113 M.S.P.R. 346, ¶ 13 (2010); 29 C.F.R. § 1630.9. A qualified individual with a
     disability is a person with skills, training, and experience to perform the essential
     functions of a position, with or without reasonable accommodations. Simpson,
     113 M.S.P.R. 346, ¶ 13; 29 C.F.R. § 1630.2(m).        Reasonable accommodations
     may entail modifications to the individual’s current position or reassignment to a
     vacant position.     42 U.S.C. § 12111(9); Simpson, 113 M.S.P.R. 346, ¶ 13;
     29 C.F.R. § 1630.2(o).
¶8         A disability discrimination claim will fail under the Americans with
     Disabilities Act or the Rehabilitation Act if the employee never requested
     accommodation while employed.           Paris v. Department of the Treasury,
     104 M.S.P.R. 331, ¶ 17 (2006). Nevertheless, an employee only has a general
     responsibility to inform his employer that he needs accommodation for a medical
     condition.   Id.; 29 C.F.R. Pt. 1630 App. § 1630.9.        Once the employee has
     requested accommodation for a medical condition, the employer must engage in
     the interactive process in an effort to determine an appropriate accommodation.
     Paris, 104 M.S.P.R. 331, ¶ 17; see 29 C.F.R. § 1630.2(o)(3). As the Board has
     repeatedly stated, an employing agency is in a better position than a disabled
     employee to modify duties or working conditions to meet the needs of the
                                                                                          6

      employee.     Paris, 104 M.S.P.R. 331, ¶ 17; Baker v. U.S. Postal Service,
      71 M.S.P.R. 680, 693 (1996).
¶9          With these principles in mind, we agree with the administrative judge that
      the appellant met his responsibilities. In November 2013, the appellant provided
      the agency a letter from his physician dated November 19, 2013, which advised
      the agency of his diagnosed medical condition of spastic gait and of his related
      medical restrictions.     IAF, Tab 21 at 34.        The appellant also discussed
      reassignment with the Site Security Superintendent.       HCD.     On November 22,
      2013, the agency’s Site Security Manager emailed the appellant’s résumé to the
      Senior HR Generalist.      IAF, Tab 21 at 23.     After receiving his résumé, the
      appellant and the Senior HR Generalist had several conversations by telephone
      and email about available jobs in TVA, and the Senior HR Generalist testified
      that she told the appellant that she would do everything in her power to find him
      another job. Id. Thus, the record establishes that the appellant fully cooperated
      in the interactive process envisioned in 29 C.F.R. Pt. 1630 App. § 1630.9 by
      providing the letter from his physician and in his meeting and discussion with the
      Site Security Manager and the Senior HR Generalist.
¶10         The agency argues, in essence, that it was the appellant’s duty to do all the
      searching for positions and to determine whether he met the requirements for the
      position descriptions for those positions.     PFR File, Tab 1.     The agency also
      contends that the Senior HR Generalist would have “assisted him if he had
      identified an open job that he was interested in.” Id. at 9. The agency asserts
      that, because the appellant did not identify a specific position prior to the hearing,
      the agency “was not able to, and therefore did not, present rebuttal evidence,
      including medical testimony, to establish Appellant’s lack of physical ability to
      perform the essential job duties of a custodian trainee.” Id. at 9-10.
¶11         Courts generally have required the parties to engage in the interactive
      process in good faith. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 15
      (2014). Here, the agency appears to have made no effort to identify whether the
                                                                                             7

      appellant met the qualifications for any of the positions on the job listing that it
      provided to him, and it is undisputed that the agency failed to provide him with
      the position descriptions to accompany any of the positions on those listings. The
      agency further failed to provide any of the position descriptions during the
      proceedings below, including the position description for the Custodian (Trainee)
      position. Thus, we agree with the administrative judge that the agency failed to
      make a good faith effort during the interactive process.
¶12         The administrative judge found, moreover, that the appellant proved by
      preponderant evidence that the agency discriminated against him based on his
      disability because he identified a vacant position to which he could be assigned
      and the agency failed to address his qualifications for this position or otherwise
      rebut his assertions that he was qualified to perform the Custodian (Trainee)
      position. We agree with the administrative judge that the appellant identified a
      vacant funded position and the agency failed to rebut his assertions that he was
      qualified for that position below. 4 Accordingly, we affirm the initial decision.

                                             ORDER
¶13         We ORDER the agency to cancel the removal and to restore and reassign
      the appellant to the Custodian (Trainee) position, or to another position at or
      below the appellant’s former grade level for which he is qualified, effective
      September 11, 2014. See Kerr v. National Endowment for the Arts, 726 F.2d 730
      (Fed. Cir. 1984). The agency must complete this action no later than 20 days
      after the date of this decision.
¶14         We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel


      4
        On review, the agency has submitted alleged new evidence in support of its argument
      that the appellant is not qualified to perform the Custodian (Trainee) position. PFR
      File, Tab 1 at 29-62. Because the agency has failed to show that this evidence was
      unavailable prior to the close of the record below despite its due diligence, we have not
      considered it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
                                                                                       8

      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶15        We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶16        No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶17        For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.
                                                                                  9

                  NOTICE TO THE APPELLANT REGARDING
                        YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
     You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  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
                                                                                   10

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
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.
                                                     DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                 CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc., with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
