                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY J. FUSHIKOSHI,                          DOCKET NUMBER
                   Appellant,                        SF-0752-14-0599-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: October 29, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Anthony J. Fushikoshi, Wailuku, Hawaii, pro se.

           Bradly Siskind, Esquire, Riverdale, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND 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 mitigated his 30-day suspension
     to a 7-day suspension. For the reasons discussed below, we GRANT the petition
     for review and DENY the cross petition for review.          We AFFIRM the initial
     decision to the extent that it sustained specification three of the charge, found

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     nexus, and found that the appellant failed to prove his affirmative defenses,
     VACATE the initial decision to the extent that it failed to sustain specification
     two of the charge, and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                                      BACKGROUND
¶2        The appellant is a GS-11 Plant Production and Quarantine Officer with the
     agency, stationed at the Kahului Airport in Hawaii. Initial Appeal File (IAF),
     Tab 12 at 4, Tab 57 at 14. The agency proposed to suspend the appellant for
     30 days based upon three specifications of improper conduct. 2         IAF, Tab 12
     at 25-27, 51-57.     Specification one alleged that, on September 10, 2013, the
     appellant failed to report for duty as scheduled and was absent without leave
     (AWOL) for 8 hours. Id. at 51. Specification two alleged that on October 6,
     2013, the appellant failed to report for a 5-hour overtime assignment. Id. at 52.
     Specification three alleged that on February 8, 2014, the appellant was AWOL
     for 45 minutes when he failed to report for duty until a supervisor telephoned
     him and reminded him that he only had requested leave for a later part of the
     day. Id. at 25-26.
¶3        After considering the appellant’s response to the notice of proposed
     suspension, the deciding official did not sustain specification one of the charge,
     but sustained specifications two and three, and found that a 30-day suspension
     was an appropriate penalty. Id. at 5-9, 14-24.
¶4        The appellant filed a timely Board appeal challenging his suspension.
     IAF, Tab 1 at 3, 5. During the processing of the appeal, he failed to respond
     fully to the agency’s written discovery requests, even after the administrative
     judge granted in part the agency’s motion to compel. IAF, Tabs 19, 24, 36;


     2
       The agency issued both a proposed suspension and an addendum. IAF, Tab 12
     at 25-27, 51-57. For clarity, we refer to these documents, combined, as the notice of
     proposed suspension.
                                                                                                 3

          see IAF, Tab 39 at 3.       In addition, the appellant failed to cooperate in his
          deposition, file prehearing submissions, or appear for the scheduled prehearing
          conference. 3 IAF, Tab 9 at 2-4, Tab 25 at 7, 18-19, Tab 26 at 1, Tab 28 at 9-10,
          17, Tab 36.
     ¶5         The agency filed a motion for sanctions. IAF, Tab 28. The administrative
          judge ordered the appellant to respond to the motion and scheduled a conference
          call to discuss the status of the appeal. IAF, Tab 29. After the appellant failed
          to respond to the motion and appear for the conference call, the administrative
          judge issued an order to show cause, which informed the appellant that if he
          failed to demonstrate good cause for his refusal to comply with her orders, she
          either would cancel his hearing and issue a decision based on the written record
          or dismiss the appeal for failure to prosecute. IAF, Tab 36.
¶6              After considering the appellant’s responses, in which he alleged, among
          other things, that he suffered from depression, stress, and memory loss, and
          lacked sufficient personal time to respond to discovery, the administrative judge
          sanctioned the appellant by canceling his requested hearing. IAF, Tab 37 at 3-4,
          Tab 40 at 4, Tab 50 at 1-2; see IAF, Tab 1 at 2. She afforded the parties an
          opportunity to submit additional evidence and argument before the close of the
          written record.    IAF, Tab 50 at 5.       In response, on November 1, 2014, the
          appellant filed a medical document, dated October 7, 2013, which indicated that,
          on October 6, 2013, the date of the overtime assignment at issue in specification



          3
            For the first time on review, the agency has submitted a complete transcript of the
          appellant’s attempted deposition, only a portion of which was included in the record
          below. Petition for Review (PFR) File, Tab 4 at 13-41, Tab 5; IAF, Tab 25 at 7-24.
          The agency has not explained why the complete transcript of the deposition, which
          predated the initial decision by several months, was previously unavailable despite due
          diligence. PFR File, Tabs 4-5; see 5 C.F.R. § 1201.115(d) (new evidence will be
          considered on review only if it was not available despite due diligence before the record
          below closed). Therefore, we have not considered any portions of the transcript that
          were not included in the record below.
                                                                                           4

     two, he was “unable to perform regular duties due to medical reasons.” 4
     IAF, Tab 51 at 10.
¶7         After considering additional responses submitted by the appellant and the
     agency, IAF, Tabs 52-58, the administrative judge issued an initial decision
     sustaining the charge of improper conduct, which she construed as equivalent to
     an AWOL charge, IAF, Tab 59, Initial Decision (ID) at 4-8. 5 However, she did
     not sustain specification two of the charge because she found that the October 7,
     2013 medical document that the appellant filed after the hearing was cancelled
     was administratively acceptable evidence that he was incapacitated for duty on
     October 6, 2013, and was sufficient to support his request for sick leave on that
     date. ID at 6-7; see Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9
     (2007) (finding that a charge of AWOL will not be sustained if an appellant
     presents administratively acceptable evidence that he was incapacitated for duty
     during the relevant period, provided that he has sufficient sick leave to cover the
     period of absence).


     4
       Before the agency issued the notice of proposed suspension, the appellant provided the
     agency with a different medical document, also dated October 7, 2013, which indicated
     that he was seen at a medical practice on October 7, 2013, and that he required
     “supervision of healthcare needs” on October 6, 2013. IAF, Tab 12 at 52, Tab 13 at 13,
     24. In the notice of proposed suspension, the agency informed the appellant that such
     medical documentation was insufficient to excuse his absence because it did not reflect
     that he was incapacitated for duty on October 6, 2013. IAF, Tab 12 at 52.
     5
       On review, the agency does not challenge the administrative judge’s characterization
     of the charge or argue that the charge should have been construed as a failure to follow
     leave procedures. See PFR File, Tabs 1, 4-5. Having reviewed the proposed
     suspension, we agree with the administrative judge that the improper conduct charge
     was equivalent to an AWOL charge. IAF, Tab 12 at 25-27, 51-57; see Alvarado v.
     Department of the Air Force, 103 M.S.P.R. 1, ¶ 22 (2006) (finding that a charge of
     improper conduct has no specific elements of proof, but is established by proving that
     the appellant committed the acts alleged in support of the charge); Atchley v.
     Department of the Army, 46 M.S.P.R. 297, 301 (1990) (holding that the Board is
     required to review the employing agency’s decision on an adverse action solely on the
     grounds invoked by the agency and may not substitute what it considers to be a more
     adequate or proper basis).
                                                                                              5

¶8          The administrative judge further found that the appellant failed to establish
      his affirmative defenses of harmful error, discrimination on the basis of disability
      and age, and retaliation for prior protected equal employment opportunity (EEO)
      and Board activity. ID at 8-16; see IAF, Tab 1 at 5, Tab 34 at 3, Tabs 35, 41.
      She held that discipline based on the appellant’s failure to report for work
      promoted the efficiency of the service. ID at 16-17. However, she mitigated the
      30-day suspension to a 7-day suspension because, among other factors, the
      sustained misconduct involved only a single instance of 45 minutes of AWOL.
      ID at 17-19.
¶9          The agency has filed a petition for review, the appellant has filed a response
      to the petition for review and cross petition for review, 6 and the agency has filed
      a combined reply and response to the cross petition for review.              Petition for
      Review (PFR) File, Tabs 1-2, 4.

                       DISCUSSION OF ARGUMENTS ON REVIEW
      The agency was prejudiced as an unintended consequence of the sanction
      imposed against the appellant.
¶10         On review, the agency argues that administrative judge erred in failing to
      sustain specification two of the charge. PFR File, Tab 1 at 5, 12-16, 21-23, Tab 4
      at 7-11. Specifically, the agency contends that the administrative judge abused
      her discretion in sanctioning the appellant by canceling his requested hearing.
      PFR File, Tab 1 at 16, 23. It argues that instead, she should have precluded the
      appellant from submitting additional evidence, including the October 7, 2013
      medical document that he filed at the close of the record below or, in the




      6
        Because the appellant alleges that the initial decision was incorrectly decided in part,
      we construe his filing as a cross petition for review. PFR File, Tab 2; see 5 C.F.R.
      § 1201.114(a)(1)-(2).
                                                                                            6

      alternative, dismissed the appeal for failure to prosecute. 7        PFR File, Tab 1
      at 14-16, 21-23, Tab 4 at 7-11.
¶11           We find that the administrative judge did not abuse her discretion in
      sanctioning the appellant by canceling the hearing. See IAF, Tab 50 at 2. An
      administrative judge may impose various sanctions as necessary to serve the ends
      of justice. 5 C.F.R. § 1201.43. Once an administrative judge imposes a sanction,
      the Board ordinarily will not disturb such a determination unless it is shown that
      the administrative judge abused her discretion or that her ruling adversely
      affected a party’s substantive rights.       Wagner v. Department of Homeland
      Security, 105 M.S.P.R. 67, ¶ 9 (2007).
¶12           The Board’s regulations authorize an administrative judge to cancel a
      scheduled hearing as a sanction where an appellant engages in contumacious
      conduct or conduct prejudicial to the administration of justice.         See 5 C.F.R.
      § 1201.43(e); see also Hart v. Department of Agriculture, 81 M.S.P.R. 329, ¶ 5
      (1999) (finding that an appellant’s right to a hearing should not be denied as a
      sanction absent extraordinary circumstances).        In the present case, the record
      reflects that the appellant repeatedly refused to cooperate in discovery and failed
      to comply with three separate orders issued by the administrative judge. See IAF,
      Tab 9 at 2-4, Tabs 19, 24, Tab 25 at 7-19, Tab 26 at 1, Tabs 28-29, 36, Tab 39
      at 3.   The appellant’s assertions that he suffered from depression, stress, and

      7
        On review, the agency also claims that the administrative judge failed to rule on its
      second motion to compel regarding the appellant’s conduct during his deposition. PFR
      File, Tab 1 at 8, 16; IAF, Tab 25. We agree that an administrative judge is obligated to
      rule on motions filed by the parties.          See Johnson v. U.S. Postal Service,
      37 M.S.P.R. 388, 392 (1988) (finding that an administrative judge’s failure to rule on a
      motion was error). However, after the agency filed the second motion to compel, the
      agency subsequently filed the motion for sanctions in which it argued, among other
      things, that the appellant should be sanctioned for his failure to cooperate in his
      deposition. IAF, Tab 28 at 4-7. It appears that the administrative judge construed the
      motion for sanctions as superseding the second motion to compel and in fact considered
      the appellant’s refusal to cooperate in his deposition when imposing sanctions.
      See IAF, Tab 50 at 2. Therefore, we find that the administrative judge did not err in
      failing to rule on the agency’s second motion to compel.
                                                                                        7

      memory loss, and lacked sufficient personal time did not establish good cause for
      his noncompliance and lack of cooperation. IAF, Tab 37 at 3-4, Tab 40 at 4. We
      find that, in light of the egregious and persistent nature of the appellant’s
      conduct, the administrative judge appropriately exercised her discretion in
      sanctioning him by canceling his requested hearing. See Heckman v. Department
      of the Interior, 106 M.S.P.R. 210,       ¶¶ 8-12 (2007) (determining       that an
      administrative judge did not abuse her discretion in sanctioning an appellant by
      canceling his requested hearing when the appellant failed to comply with three
      orders directing him to submit evidence or argument regarding his claims).
¶13        We have considered the agency’s arguments on review that other
      administrative judges imposed more appropriate sanctions based upon conduct
      similar to the appellant’s. PFR File, Tab 1 at 22, Tab 4 at 7-8; see, e.g., Smets v.
      Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011) (declining to find that an
      administrative judge abused her discretion by precluding an appellant from
      submitting additional evidence regarding her claim of disability discrimination
      after she failed to comply with an order to appear for a deposition), aff’d, 498 F.
      App’x 1 (Fed. Cir. 2012); Williams v. U.S. Postal Service, 116 M.S.P.R. 377,
      ¶¶ 9-12 (2011) (finding that dismissing an appeal for failure to prosecute after an
      appellant failed to comply with multiple orders was not an abuse of discretion).
      However, in light of the great deference afforded to administrative judges in
      selecting an appropriate sanction, we cannot conclude that the administrative
      judge abused her discretion in declining to impose such sanctions here, and
      instead electing to sanction the appellant by canceling the scheduled hearing. See
      Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010) (observing
      that the abuse of discretion is a very high standard and allows for great
      deference).
¶14        Although the administrative judge did not abuse her discretion, we agree
      with the agency that, as an unintended consequence of the sanction imposed by
      the administrative judge, the agency was prejudiced. PFR File, Tab 1 at 14-15,
                                                                                         8

      23. As a direct result of the appellant’s conduct during the processing of his
      appeal, the agency was deprived of the opportunity to question him regarding the
      medical documentation he submitted after the hearing was cancelled.             IAF,
      Tab 50 at 5, Tab 51 at 10; ID at 6-7. The medical documentation would have
      been responsive to several of the agency’s discovery requests. 8       IAF, Tab 19
      at 31-33. The appellant does not dispute the agency’s assertion that he failed to
      produce the medical documentation in the normal course of discovery, or after he
      was ordered to do so by the administrative judge in response to the agency’s
      motion to compel. PFR File, Tab 1 at 14-15, Tab 2; IAF, Tab 24 at 2. The
      appellant’s failure to produce the documentation, in combination with his failure
      to cooperate in his deposition, precluded the agency from developing evidence
      that potentially would have enabled it to rebut the assertion that he was
      incapacitated for duty on the date at issue. See, e.g., IAF, Tab 23 at 19 (reflecting
      that the appellant’s attempted deposition concluded before the agency could
      question him regarding his absence on October 6, 2013).
¶15         Notably, after the appellant filed the medical documentation, the agency
      argued that the documentation was inconsistent with a statement that the
      appellant made to his supervisor on October 6, 2013. IAF, Tab 57 at 5, 16-17, 29.
      The agency reiterates this argument on review. PFR File, Tab 1 at 12-13. Below,
      the agency submitted an affidavit from the appellant’s supervisor, which stated
      that on October 6, 2013, approximately 40 minutes after the appellant’s overtime
      assignment was scheduled to begin, he telephoned his supervisor, and stated that
      he “just woke up.” IAF, Tab 57 at 16. The administrative judge found that the
      medical documentation was not inconsistent with the appellant’s statement that he
      had overslept, because he described his symptoms as including physical
      exhaustion. ID at 7 n.1. However, the medical documentation did not indicate
      that the appellant suffered from exhaustion, and the agency was not afforded the
      8
       At a minimum, the medical documentation was responsive to requests for document
      numbers 1, 10, and 13. IAF, Tab 19 at 31-33.
                                                                                            9

      opportunity to question the appellant regarding any potential inconsistencies
      between the medical documentation and his statement to his supervisor. 9 IAF,
      Tab 51 at 10.
¶16         We find that, because the agency was denied the opportunity to develop the
      record regarding the documentation that the appellant relied on to rebut
      specification two of the charge, and the agency otherwise might have been able to
      prove this specification, as an inadvertent consequence of the sanction imposed
      against the appellant, the agency’s substantive rights were adversely affected.
      See Wagner, 105 M.S.P.R. 67, ¶ 9. Under the circumstances of this case, we
      conclude that it is in the interest of justice to afford the agency an opportunity to
      rebut the medical documentation submitted by the appellant. Accordingly, we
      vacate the administrative judge’s finding that the agency failed to sustain
      specification two of the charge, and remand the case to the regional office for the
      administrative judge to conduct a limited hearing on the subject of the medical
      documentation that the appellant filed on November 1, 2014. The scope of the
      hearing shall include, but not be limited to, the consistency of the medical
      documentation with the appellant’s prior statements to his supervisor. 10 In the
      event that the appellant fails to cooperate in this limited hearing, the




      9
        On review, the agency also argues that the medical documentation that the appellant
      filed on November 1, 2014, was not administratively acceptable evidence that he was
      incapacitated for duty because it did not specify the medical condition that caused him
      to be incapacitated. PFR File, Tab 1 at 13-14. Under the circumstance of the present
      appeal, we find this argument unpersuasive. The deciding official relied on nearly
      identical medical documentation, which also failed to specify the appellant’s diagnosis,
      in finding that the appellant’s absence at issue in specification one should not be
      sustained. IAF, Tab 12 at 5, 50.
      10
        The agency’s arguments also possibly call into question the authenticity of the
      appellant’s November 1, 2014 medical documentation, an issue the administrative judge
      may wish to explore on remand.
                                                                                     10

  administrative    judge   shall   determine   whether    additional   sanctions   are
  appropriate. 11
  The appellant has failed to establish any basis for granting his cross petition for
  review.
¶17     On review, the appellant argues that his supervisor retaliated and
  discriminated against him when, among other things, he failed to sufficiently
  investigate the circumstances surrounding the charge prior to proposing the
  appellant’s suspension and took “negative action[s]” against him.          PFR File,
  Tab 2 at 4-6. He provides no citations to the record to support his claims. Id.
  We find that these arguments do not establish a basis for disturbing the
  administrative judge’s conclusion that the appellant failed to establish his
  affirmative defenses of retaliation and discrimination. ID at 8-13; see Weaver v.
  Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (holding that, before the
  Board will undertake a complete review of the record, the petitioning party must
  explain why the challenged factual determination is incorrect and identify the
  specific evidence in the record that demonstrates the error).
¶18     Next, the appellant reiterates his argument, raised below, that the agency
  failed to provide him with an effective reasonable accommodation. PFR File,
  Tab 2 at 8; see IAF, Tab 35 at 5-6. An agency is required 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.
  Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). 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 to a vacant position whose

  11
     On review, the agency also argues that the administrative judge erred in mitigating
  the penalty to a 7 day suspension. PFR File, Tab 1 at 17-21. We have not addressed
  these arguments, as the administrative judge’s findings regarding the agency imposed
  penalty may be affected by the outcome of the limited hearing on remand.
                                                                                       11

  duties the employee can perform. 12        Id.   The appellant bears the burden of
  proving that an accommodation that he seeks is reasonable. Id., ¶ 17.
¶19     We agree with the administrative judge that the appellant failed to prove
  that the agency denied him a reasonable accommodation.              See ID at 13-15.
  Although Plant Production and Quarantine Officers ordinarily rotate between day
  and night shifts, starting in 2009, the agency assigned the appellant to a regular
  tour of duty on the night shift as an accommodation for his depression. IAF,
  Tab 45 at 15, Tab 57 at 26. Subsequently, starting in 2013, the agency granted
  the appellant the accommodation of a regular schedule with fixed days off. 13
  IAF, Tab 12 at 8, Tab 57 at 26.
¶20     The agency was not required to provide the appellant’s requested
  accommodation of being allowed to report to work on an unscheduled basis. See
  ID at 14; IAF, Tab 13 at 18. His duties as a Plant Production and Quarantine
  Officer include performing predeparture inspections, which require him to be
  present when flights are scheduled to conduct inspections so that aircrafts can
  depart on time. IAF, Tab 16 at 37, Tab 57 at 26. His requested accommodation
  of a flexible start time would require other employees to perform his duties for
  him to maintain on-time aircraft departures and, accordingly, would not be
  reasonable.    See IAF, Tab 57 at 26; see also 29 C.F.R. § 1630.2(o)(1)(ii)
  (defining a reasonable accommodation to include a modification to the manner in
  which an employee performs work that enables the employee to perform the
  essential functions of the position).      For similar reasons, we agree with the
  administrative judge that the agency was not required to call the appellant each
  12
    Here, the appellant has not established that any vacant, funded positions for which he
  was otherwise qualified were available.         See Jackson v. U.S. Postal Service,
  79 M.S.P.R. 46, 53-54 (1998) (explaining that, in a disability discrimination claim, the
  appellant bears the ultimate burden of proving that vacant, funded positions for which
  he was otherwise qualified were available).
  13
     The appellant was the only Plant Production and Quarantine Officer with primary
  duties involving predeparture passenger and cargo inspection who was assigned a fixed
  schedule with regular days off. IAF, Tab 57 at 26.
                                                                                   12

      day and remind him to come to work as a reasonable accommodation.            ID
      at 14-15.

                                          ORDER
¶21        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




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