                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 27

                              Docket No. DA-0752-12-0339-I-1

                                     Socorro Thome,
                                        Appellant,
                                             v.
                            Department of Homeland Security,
                                           Agency.
                                     February 27, 2015

           Deryn Sumner, Esquire, Silver Spring, Maryland, for the appellant.

           Christopher M. Meissner, Esquire, and Mark W. Hannig, Esquire, El Paso,
             Texas, 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 that reversed her removal but
     denied her discrimination claims. For the reasons set forth below, we DENY the
     agency’s   petition,   GRANT    the   appellant’s   cross-petition,   AFFIRM   the
     administrative judge’s reversal of the removal action and her determinations that
     the appellant failed to prove her claims of disability discrimination and reprisal,
     VACATE the administrative judge’s determination that the appellant failed to
     prove her claim that the agency discriminated against her based on her sex in
     violation of the Pregnancy Discrimination Act of 1978, and REMAND the case to
                                                                                        2

     the regional office for adjudication of the appellant’s sex discrimination claim as
     set forth in this Opinion and Order.

                                      BACKGROUND
¶2            Prior to her removal on April 3, 2012, the appellant was employed as a
     Customs and Border Protection Officer (CBPO) with the Bureau of Customs and
     Border Protection (CBP), at the Port of El Paso.        Initial Appeal File (IAF),
     Tab 12, Subtab 4c. As a CBPO, the appellant was required to be available for
     rotating shifts and overtime assignments and to carry and maintain proficiency in
     the use of a firearm. Id., Subtab 4n.
¶3            Following a positive pregnancy test on November 11, 2010, the appellant
     began light duty on the recommendation of her obstetrician/gynecologist
     (OB/GYN). See id., Subtab 4j at 75, 78. On July 6, 2011, the appellant gave
     birth to her son. IAF, Tab 31, Appellant’s Exhibit (Ex.) C. Following a period of
     approved leave taken under the Family and Medical Leave Act (FMLA), the
     appellant returned to duty in the Port’s Operations Support Office (OSO) on
     October 3, 2011. IAF, Tab 12, Subtab 4k. In a form dated October 14, 2011, the
     appellant’s OB/GYN released the appellant to work without restrictions, with the
     proviso that she be provided frequent breaks for breastfeeding. Id., Subtab 4j
     at 77.    The agency moved ahead to return the appellant to full duty, and on
     October 17, 2011, the OSO Supervisory Program Manager forwarded a firearm
     restoration letter to the Port Director for review and approval. Id., Subtab 4k.
¶4            Subsequently, the appellant submitted an October 25, 2011 note from her
     son’s pediatrician, who “highly recommended” that the appellant continue on
     light duty while breastfeeding due to a concern that “she may be exposed to
     contaminants such as lead, drugs, or infectious diseases that may be transmitted
     to the child through breast milk.” Id., Subtab 4j at 76. In response to the Port
     Director’s request for further documentation, the appellant provided a second
     note, dated November 17, 2011, in which the pediatrician stated that the appellant
                                                                                        3

     planned to continue breastfeeding her son until he was 1 year old, and reiterated
     the concern that she might be exposed to the aforementioned contaminants which
     could be transmitted to her son through breast milk. Id. at 74. The pediatrician,
     in his note, further stated that he understood the appellant had asked to be
     relieved from alternating shifts and opined that “[t]his would be preferred in a
     breast-feeding situation as the alternating shifts will disrupt breast milk
     production because this is closely tied to sleep and circadian rhythm.”           Id.
     Finally, the pediatrician stated that it was “also preferred that [the appellant] not
     be exposed to lead fumes in an indoor gun range due to exposure to vaporized
     lead.” Id. After being informed that the agency required medical documentation
     from her own provider, the appellant submitted a December 16, 2011 letter from
     her treating physician, who stated that it had come to her attention that the
     appellant is “exposed to lead fumes, drugs, and infectious disease that can be
     harmful to her newborn baby, through [her] breast milk,” and that it was her
     medical opinion that the appellant should remain on light duty. Id. at 73. In a
     January 19, 2012 email, an agency Labor and Employment Relations Specialist
     stated that she had determined that the appellant’s medical documentation was
     sufficient to support her request to remain on light duty while breastfeeding.
     IAF, Tab 31 at 38.
¶5         On February 7, 2012, the Port Director issued the appellant an option letter,
     directing her to return to full duty or resign. IAF, Tab 12, Subtab 4f. The option
     letter noted that the appellant had not fully performed her CBPO duties since
     November 12, 2010, and stated that the agency needed her to return to full duty.
     Id. The Port Director explained that CBP had a lactation program available to its
     employees but could not “with certainty” meet the appellant’s doctor’s
     recommendation that she avoid potential exposure to lead, drugs, and infectious
     diseases. Id. The Port Director informed the appellant that she must identify her
     choice within 5 days, and that, if she did not, the agency would “take action as
                                                                                       4

     necessary to remedy the matter up to and including your removal.”         Id.   The
     appellant refused to sign the option letter. Id.
¶6         The Port Director, in a February 16, 2012 memorandum to the Director of
     Field Operations (DFO) for the El Paso Field Office, recommended that the
     appellant be terminated “not based on any disciplinary reasons [but] rather on a
     non-disciplinary issue due to non-performance as a [CBPO].” Id., Appellant’s
     Ex. I. The Port Director related that the appellant began light duty due to her
     pregnancy on November 11, 2010, and that following the birth of her child she
     “continued on her non-performance of her duties” while on FMLA leave from
     August 30, 2011, to October 4, 2011. Id. The Port Director further noted that the
     appellant had been released for full duty on October 17, 2011, but had not
     returned to full duty. Id. He concluded: “CBPO Thome has not returned to full
     duty as a [CBPO] as of to [sic] date and has not performed as a full duty [CBPO]
     for approximately 15 months due to the continuation of her pregnancy and the
     birth of her child.” Id.
¶7         By notice dated February 22, 2012, the Port Director (who was also the
     proposing official) proposed to remove the appellant on a charge of
     “Unavailability for Full Performance of Customs and Border Protection Officer
     Duties.” IAF, Tab 12, Subtab 4e. The proposal letter described the proposed
     removal as a “non-disciplinary adverse action.” Id. Under the specification, the
     proposing official provided a chronology of events beginning November 12,
     2010, when the appellant began working light duty during her pregnancy, and
     continuing through her nonselection of the options set forth in the February 7,
     2012 letter.    Id.    The specification concluded, “You have been and are
     unavailable to fully perform the duties for which you are employed.” Id. The
     proposing official stated that he considered the appellant’s decision to breastfeed
     her infant child as a “personal choice,” and that she could avail herself of the
     agency’s lactation support program. Id. The proposing official further stated that
     he had considered that the appellant’s “continued unwillingness or inability” to
                                                                                       5

     fully perform CBPO duties “negatively impacts the operations of the Port” and
     that her removal would allow the agency to fill her position with an individual
     capable of performing full duty. Id.
¶8         The appellant responded through counsel to the notice of proposed
     removal. Id., Subtab 4d. Citing the Board’s decision in Edwards v. Department
     of Transportation, 109 M.S.P.R. 579 (2008), the appellant contended that because
     there was a foreseeable end to her unavailability, i.e., her son’s first birthday on
     July 6, 2012, and the agency did not have an urgent need to replace her before
     that date, her removal would not promote the efficiency of the service. See id.
     The appellant further contended that by proposing her removal, the agency had
     “effectively” punished her for her decision to care for her child, noting that the
     Surgeon General and numerous professional medical associations recommended
     that infants be breastfed for at least 1 year. Id.
¶9         By letter dated April 2, 2012, the DFO for the El Paso Field Office (who
     also served as the deciding official) notified the appellant of her decision to
     remove her effective the following day. IAF, Tab 12, Subtab 4c. The deciding
     official sustained the charge, noting that there was no dispute regarding the
     appellant’s “fifteen month unavailability for full performance of [her] duties.”
     Id.   The deciding official further asserted that Edwards was distinguishable
     because, unlike the appellant in Edwards, the appellant here was medically able
     to fully perform her duties but chose to make herself unavailable.        Id.   The
     deciding official also denied that the agency had suggested, recommended, or
     ordered the appellant to stop nursing her child. Id. The deciding official asserted
     that the appellant’s pediatrician’s recommendation that the appellant be isolated
     from lead, drugs, and infectious diseases was “literally impossible to fulfill” and
     noted that the National Institute for Occupational Safety and Health (NIOSH) had
                                                                                             6

      conducted a study of agency operations, which determined that “exposures for
      Agency employees were within tolerable limits.” 1 Id.
¶10         The appellant filed an appeal with the Board on April 9, 2012. IAF, Tab 1.
      In addition to contesting the charge and penalty, the appellant alleged that the
      agency had violated her constitutional due process rights, unlawfully imposed
      discipline for taking FMLA leave or other approved leave, and engaged in
      unlawful discrimination based on sex and disability, as well as retaliation for
      protected equal employment opportunity activity. IAF, Tab 35. On July 6, 2012,
      the appellant’s son turned 1 year old, and on August 13, 2012, the appellant filed
      a request to return to duty, noting that she had ceased breastfeeding her son and
      had received clearances from the pediatrician and her primary care nurse
      practitioner to return to work without restrictions. IAF, Tab 17. Ultimately, on
      February 15, 2013, the agency extended the appellant a conditional offer of
      employment for a GS-12 CBPO position. IAF, Tab 106.
¶11         Following a hearing, the administrative judge issued an initial decision on
      March 22, 2013. IAF, Tab 107, Initial Decision (ID). The administrative judge
      reversed the removal action, finding that the NIOSH study, which was not cited
      in the proposal notice or included in the accompanying materials, constituted new
      and   material    information    under    Stone    v.   Federal    Deposit    Insurance
      Corporation, 179 F.3d 1368 (Fed. Cir. 1999), and that the deciding official’s
      consideration of that information violated the appellant’s due process rights. ID
      at 13-17. However, the administrative judge went on to find that the appellant
      had failed to establish her discrimination and reprisal claims. ID at 17-26. The
      administrative judge directed that, in the event either party filed a petition for



      1
        The NIOSH survey concerned exposure to carbon monoxide, which was not among the
      risks identified by either the appellant’s son’s pediatrician or the appellant’s treating
      physician.
                                                                                         7

      review, the agency should provide interim relief in accordance with 5 U.S.C.
      § 7701(b)(2)(A), effective as of the date of the initial decision. ID at 28-29.
¶12         On May 23, 2013, the agency filed a petition for review, in which it
      contested the administrative judge’s finding that the NIOSH study constituted
      new and material information. Petition for Review (PFR) File, Tab 7. Five days
      later, the appellant filed a cross-petition for review, contesting the administrative
      judge’s findings on her sex and disability discrimination claims. PFR File, Tab 8.
      The appellant did not further pursue her claim of reprisal. 2 See id.
¶13         Subsequently, on May 30, 2013, the appellant filed a motion to dismiss the
      agency’s petition pursuant to 5 C.F.R. § 1201.116(e), on the grounds that the
      agency did not attach a certification of compliance with the interim relief order,
      as required under 5 C.F.R. § 1201.116(a). PFR File, Tab 9. On June 4, 2013, the
      agency belatedly filed a certification of compliance, indicating that the appellant
      had been appointed to a CBPO position effective March 22, 2013, and would
      return to full duty on June 5, 2013. PFR File, Tab 10. In a separate pleading, the
      agency responded to the appellant’s motion to dismiss. PFR File, Tab 11. In its
      response, the agency contended that 5 C.F.R. § 1201.116(a) does not require that
      a certification of compliance be filed simultaneously with an agency’s petition for
      review. The agency further argued that, if its petition were dismissed, it “could
      rename its petition a cross petition for review, attach the certification of
      compliance, and refile both” within 25 days of the appellant’s May 28, 2013
      pleading. Id.
¶14         On June 17, 2013, the agency proceeded to do just that, refiling its petition
      as a “cross petition,” with the certification of compliance attached. PFR File,


      2
        Because the appellant on petition for review did not challenge the administrative
      judge’s findings on her reprisal claim, we need not address this issue. In any event,
      even if we did, we would find no reason to disturb the administrative judge’s
      well-reasoned findings on this matter.
                                                                                          8

      Tab 13.   That same day, the agency also filed a response to the appellant’s
      cross-petition.   PFR File, Tab 14.    On June 19, 2013, the appellant moved to
      strike the agency’s June 17, 2013 “cross petition,” and on June 25, 2013, she filed
      a response to the agency’s May 23, 2013 petition for review. PFR File, Tabs 16,
      18. On July 3, 2013, the agency filed a reply to the appellant’s June 25, 2013
      response. PFR File, Tab 19. On July 8, 2013, the appellant filed a supplemental
      motion to dismiss the agency’s May 23, 2013 petition, arguing that the agency
      had substantively failed to comply with the interim relief order.           PFR File,
      Tab 20. Finally, on July 11, 2013, the appellant filed a reply to the agency’s
      June 17, 2013 response to her May 28, 2013 cross petition. PFR File, Tab 21.

                                          ANALYSIS
      The disposition of pleadings on petition for review.
¶15         The Board’s regulations provide that, where an appellant was the
      prevailing party in the initial decision, and the initial decision granted the
      appellant interim relief under 5 U.S.C. § 7701(b)(2)(A), an agency petition for
      review “must be accompanied” by a certification that the agency has complied
      with the interim relief order. 5 C.F.R. § 1201.116(a). Our regulations further
      contemplate that when, as here, an agency fails to submit the required
      certification with its petition, the petition may be dismissed with prejudice.
      See 5 C.F.R. § 1201.116(e).
¶16         However,     the   Board’s   authority   to   dismiss   an   agency     petition
      under 5 C.F.R. § 1201.116(e) is discretionary, not mandatory. See Erickson v.
      U.S. Postal Service, 120 M.S.P.R. 468, ¶ 11 (2013). Given the disposition of this
      appeal, we find it appropriate to DENY the appellant’s motion and supplemental
      motion to dismiss the agency’s petition for review. 3 We GRANT the appellant’s



      3
       The appellant’s supplemental motion to dismiss was filed more than 25 days after the
      date of service of the agency’s petition for review and was therefore untimely. See
                                                                                       9

      motion to strike the agency’s June 17, 2013 “cross petition,” which is duplicative
      of its original petition for review. We have considered the appellant’s response
      to the agency’s petition for review, the agency’s reply to that response, and the
      agency’s response to the appellant’s cross-petition. However, we do not consider
      the appellant’s reply to the agency’s response to her cross-petition for review, as
      our regulations do not allow for such a pleading. See 5 C.F.R. § 1201.115(a).
      The administrative judge correctly found that the agency failed to provide the
      appellant due process.
¶17         Due process requires that a tenured government employee receive “notice
      of the charges against [her], an explanation of the employer’s evidence, and an
      opportunity to present [her] side of the story” prior to being removed. Cleveland
      Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). If the agency fails
      to provide these rights, the action must be reversed. Stephen v. Department of the
      Air Force, 47 M.S.P.R. 672, 680-81 (1991). In this case, the administrative judge
      found that the agency failed to put the appellant on notice of the evidence on
      which it relied because the deciding official considered new and material
      information in the form of the NIOSH study. ID at 10-17; see Stone, 179 F.3d
      at 1377. We need not decide whether the administrative judge was correct in that
      finding because we find the agency violated the appellant’s due process rights by
      failing to provide adequate notice of the charges against her.
¶18         At the hearing, the deciding official testified that agency policy
      distinguishes between “disciplinary” actions, i.e., adverse actions based on
      misconduct charges, and “nondisciplinary” actions.       Hearing Transcript (HT)
      at 277-78 (Dec. 28, 2012).      According to the deciding official, disciplinary
      actions generally involve an investigation, development of a case file with
      supporting information, and referral to a disciplinary review board for


      5 C.F.R. § 1201.116(d). We have considered the motion, however, as it appears to be
      based on information that was unavailab le before the filing deadline. See id.
                                                                                             10

      determination of the appropriate action.         Id. at 279.    However, the deciding
      official indicated that when an employee has not committed misconduct but is
      simply unavailable for work the agency may bypass these procedures and impose
      a nondisciplinary action under the direct authority of 5 C.F.R. Part 752.              Id.
      at 277.
¶19         In the notice letter, the proposing official represented that the proposed
      removal was a nondisciplinary adverse action based on a charge of Unavailability
      for Full Performance of Customs and Border Protection Officer Duties.                IAF,
      Tab 12, Subtab 4e. The proposing official explained that, under the specification,
      the appellant had been absent or on light duty since November 2011, but he
      did not allege any affirmative misconduct on her part, and it is undisputed that
      the agency did not follow its procedures for misconduct-based actions. Id. While
      the proposing official referred elsewhere in the notice to the appellant’s
      “unwillingness or inability” to perform full-time CBPO duties, he did not indicate
      that the action was based specifically on her unwillingness to return to full duty,
      as opposed to her unavailability per se. Id. 4
¶20         In the decision letter, the deciding official again indicated that the action
      was being taken for nondisciplinary reasons.          Id., Subtab 4c.     However, the
      deciding official repeatedly testified at the hearing that the appellant was
      removed because she “refused” to return to full duty. HT at 156-57, 174, 245,
      246, 249, 280 (Dec. 28, 2012). The proposing official testified to the same effect.
      HT at 252 (Nov. 29, 2012). The testimonies of both the proposing and deciding
      officials demonstrate that, contrary to the proposal notice, the appellant’s removal
      was in fact a disciplinary action based on a charge of misconduct, namely, her
      alleged refusal to return to full duty.


      4
       The agency now maintains that the “fundamental question” of the case is whether the
      appellant’s unavailability for full duty was the result of her “unwillingness” rather than
      her “inability.” IAF, Tab 21 at 11.
                                                                                         11

¶21         The deciding official embraced the contradiction, stating “I don’t think that
      she engaged in misconduct. I think that she simply refused to perform her job.”
      HT at 280 (Dec. 28, 2012). When the administrative judge asked the deciding
      official why she did not consider the appellant’s refusal to constitute misconduct,
      the deciding official offered the following explanation:
            I would consider misconduct—I mean, generally the way we look at
            misconduct cases are where we say she had been ordered, you know,
            to return to full-duty and she had disobeyed an order, then we have a
            specific charge of misconduct.
      Id. We find, however, that the February 7, 2012 option letter, which offered the
      appellant the Hobson’s choice of returning to full duty or ending her employment
      with the agency, was tantamount to an order to return to full duty. The allegation
      that the appellant “refused” to select the former option is indistinguishable from a
      charge of failure to follow instructions.
¶22         We conclude that, whether by mistake or for the sake of administrative
      convenience, the agency misrepresented the basis for its action.        Furthermore,
      nothing in the appellant’s reply to the proposal notice suggests that she believed
      the agency intended to remove her based on her refusal to return to full duty, as
      opposed to her unavailability per se. See O’Connor v. Department of Veterans
      Affairs, 59 M.S.P.R. 653, 658 (1993) (in determining if an employee has received
      adequate notice of a charge, the Board examines the employee’s reply to see
      whether the employee defended against it).        Rather, her reliance on Edwards
      demonstrates that she took the agency’s statement of the charge at face value.
      The action must therefore be reversed because the agency failed to provide the
      appellant her due process right to advance notice of the basis for the proposed
      action and an opportunity to respond. See id. at 656-58. 5


      5
        Having found that the agency vio lated the appellant’s due process rights, we do not
      reach the question of whether the agency committed harmful error by failing to fo llow
      its internal procedures for adverse actions based on misconduct.
                                                                                        12

      The administrative judge correctly determined that the appellant failed to prove
      her claim of disability discrimination.
¶23           As a federal employee, the appellant’s disability discrimination claim
      arises under the Rehabilitation Act of 1973. However, the Equal Employment
      Opportunity Commission (EEOC) regulations implementing the Americans with
      Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA),
      have been incorporated by reference into the Rehabilitation Act, and the Board
      applies them to determine whether there has been a Rehabilitation Act violation. 6
      Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, ¶ 36 n.3
      (2007); 29 C.F.R. § 1614.203(b). Those regulations are found at 29 C.F.R. Part
      1630.
¶24           To prove disability discrimination, the appellant first must establish that
      she is an individual with a disability as that term is defined in the ADAAA and
      the     EEOC   regulations.   See,   e.g.,   Doe   v.   Pension   Benefit   Guaranty
      Corporation, 117 M.S.P.R. 579, ¶ 38 (2012). The appellant may prove that she
      has a disability by showing that she: (1) has a physical or mental impairment that
      substantially limits one or more major life activities; (2) has a record of such
      impairment; or (3) is regarded as having such an impairment.            42 U.S.C. §
      12102(1); 29 C.F.R. § 1630.2(g)(1).          An impairment is considered to be a
      disability if it substantially limits an individual’s ability to perform a major life
      activity as compared to most people in the general population.          29 C.F.R. §
      1630.2(j)(1)(ii). Major life activities include, but are not limited to, caring for
      oneself, performing manual tasks, eating, lifting, bending, concentrating,


      6
        The ADAAA, which expanded the definition of disab ility, became effective on
      January 1, 2009. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 17
      (2010) (citin g Pub. L. No. 110-325, 122 Stat. 3553 (2008), codified at 42 U.S.C.
      § 12101 et seq.). Thus, the ADAAA and the amended regulations implementing the
      ADAAA apply in this case. See Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 10
      (2010).
                                                                                           13

      communicating, and working; major life activities also include the operation of
      major bodily functions. 42 U.S.C. § 12012(2). The term “substantially limits” is
      construed broadly in favor of expansive coverage, to the maximum extent
      permitted under the ADA, and is not meant to be a demanding standard.                29
      C.F.R. § 1630.2(j)(1)(i).
¶25         The appellant contends that she was an individual with a disability because
      her lactation substantially limited her in the major life activity of working, as she
      was unable to safely breastfeed her child while performing full duty. PFR File,
      Tab 8 at 19-20. We disagree. The EEOC has clarified that pregnancy is not an
      “impairment” within the meaning of the ADA and is therefore not itself a
      disability, although pregnancy-related impairments (e.g., pelvic inflammation)
      may be covered.      29 C.F.R. Part 1630 app. § 1630.2(h); EEOC Enforcement
      Guidance, Pregnancy Discrimination and Related Issues (Enforcement Guidance),
      § II.A (July 14, 2014). Similarly, we find that lactation is not an impairment and
      therefore not itself a disability. See Bond v. Sterling, Inc., 997 F. Supp. 306, 311
      (N.D.N.Y. 1998) (“It is simply preposterous to contend a woman’s body is
      functioning abnormally because she is lactating.”). The appellant has not alleged
      that she herself suffered any medical impairments relating to lactation, and, to the
      extent that she contends that breastfeeding was a matter of medical necessity for
      her son, “any disability would be that of her child alone.” Id.; cf. McNill v. New
      York City Department of Correction, 950 F. Supp. 564, 569-80 (S.D.N.Y. 1996)
      (malfunction    of   infant’s   palate   necessitating   breastfeeding   was   not    a
      pregnancy-related medical condition of the mother). We conclude the appellant
      has not established that she is a person with a disability and that her claim of
      disability discrimination therefore fails.
                                                                                       14

      We need not address at this juncture whether the administrative judge correctly
      determined that the appellant failed to establish her claim of sex discrimination
      under Title VII and the Pregnancy Discrimination Act.
¶26         The Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat.
      2076 (1978), codified at 42 U.S.C. § 2000e(k), amended Title VII of the Civil
      Rights Act by expanding the definition of sex discrimination to include
      discrimination “because of or on the basis of pregnancy, childbirth, or related
      medical conditions.” Id. Lactation is a pregnancy-related medical condition for
      purposes of the PDA. Equal Employment Opportunity Commission v. Houston
      Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013); Enforcement Guidance,
      § I.A.4(b). Thus, Title VII protects the appellant from discrimination based on
      her status as a nursing mother. See Puente v. Department of Homeland Security,
      EEOC Appeal No. 07A30018, 2003 WL 22432740 (E.E.O.C. Oct. 15, 2003); see
      also O’Brien v. National Security Agency, EEOC Appeal No. 01951902, 1997
      WL 291810 (E.E.O.C. May 27, 1997).
¶27         The PDA further specifies that women affected by pregnancy, childbirth, or
      related medical conditions must be treated the same for employment-related
      purposes as other persons not so affected “but similar in their ability or inability
      to work.” 42 U.S.C. § 2000e(k). According to the EEOC, a violation under this
      provision is established where all the evidence, on the whole, establishes that an
      employer has treated a covered employee less favorably than an employee who is
      similar in his or her ability or inability to work, but is not covered under the
      PDA. Enforcement Guidance, § I.B.1. It is undisputed that the appellant’s own
      medical condition did not render her physically unable to perform full duty and
      that her request for light duty was based solely on concerns about the health and
      safety of her child. See Atteberry v. Department of State Police, 224 F. Supp. 2d
      1208, 1214 (C.D. Ill. 2002).
¶28         Nonetheless, the circuit courts have been divided on the question of
      whether the PDA permits a “pregnancy neutral” policy of granting light duty
                                                                                           15

      exclusively to employees who have on-the-job injuries and/or disabilities under
      the ADA. Compare, e.g., Young v. United Parcel Service, Inc., 707 F.3d 437,
      446 (4th Cir. 2013), cert. granted, 134 S. Ct. 2898 (July 1, 2014), with
      Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996). The EEOC has
      taken the position that such a policy is impermissible and that an employer cannot
      lawfully deny or restrict light duty based on the source of a pregnant employee’s
      limitation. Enforcement Guidance, § I.C.1(b).
¶29         Consequently, we believe that a decision on whether the administrative
      judge correctly determined that the appellant failed to establish her claim of
      unlawful sex discrimination would be premature at this time, inasmuch as the
      Supreme Court is currently considering a potentially dispositive PDA issue in a
      pending case, Young v. United Parcel Service, Inc. 7 Accordingly, we REMAND
      the appellant’s sex discrimination claim to the regional office for further
      adjudication upon the Supreme Court’s issuance of its decision in Young.
¶30         Also, because we agree with the administrative judge that the removal
      action should be reversed, the agency will have an opportunity to later take—or
      not to take—a constitutionally-correct removal action. Should the agency take a
      second removal action, the appellant will again be able to raise a claim of
      PDA-based sex discrimination if she believes the agency’s second removal action
      was taken on that basis.

                                             ORDER
¶31         We REMAND the appellant’s PDA-based sex discrimination claim to the
      regional office for further adjudication in accordance with this Opinion and Order
      and upon the Supreme Court’s issuance of its decision in Young. On remand, the

      7
        Oral arguments in the Young case were held on December 3, 2014. Both parties in
      this case were provided an opportunity to brief what effect, if any, the Supreme Court’s
      Young decision might have on the appellant’s allegation of sex d iscrimination. See PFR
      File, Tabs 25-28.
                                                                                              16

      administrative judge shall dismiss this case without prejudice to be automatically
      refiled within 30 days of the Supreme Court’s issuance of its decision in Young.
      The administrative judge shall issue a new initial decision incorporating by
      reference our findings on the appellant’s removal and disability discrimination
      and reprisal claims so that the appellant will have a single decision with
      appropriate notice of appeal rights addressing all of her claims. 8 See Goldberg v.
      Department of Homeland Security, 99 M.S.P.R. 660, ¶ 12 (2005).
¶32          Because we cannot uphold the appellant’s removal regardless of the
      findings on the sex discrimination claim on remand, and despite the absence of a
      final decision on that claim, we ORDER the agency to cancel the removal and
      retroactively restore the appellant effective April 3, 2012. 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.
¶33          We also ORDER the agency to pay the appellant the correct amount of
      back pay, interest on back pay, and other benefits under the Back Pay Act and/or
      Postal Service Regulations, as appropriate, 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

      8
         The Board’s regulation at 5 C.F.R. § 1201.203(d) provides that any request for
      attorney fees must be made no later than 60 days after the date on which a decision
      becomes final. In this case, the time lim it for filing a motion for fees will not begin to
      run until the decision on remand is final. See Ginocchi v. Department of the Treasury,
      53 M.S.P.R. 62, 73 n.9 (1992). Similarly, an appellant who prevails in an appeal before
      the Board based on a finding of discrim ination may recover compensatory damages
      from the agency pursuant to the Civil Rights Act of 1991. See Hocker v. Department of
      Transportation, 63 M.S.P.R. 497, 505 (1994), aff’d, 64 F.3d 676 (Fed. Cir. 1995)
      (Table).    Thus, if, on remand, the appellant prevails based on a finding of
      discrimination, she may submit a request for compensatory damages to the
      administrative judge in accordance with her instructions.
                                                                                      17

      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.
¶34         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 to describe 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).
¶35         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 in 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).
¶36         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.



      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 B Y 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.
