                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WANDA T. MALLORY,                               DOCKET NUMBER
                  Appellant,                         DC-0432-13-0347-I-2

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: June 8, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Seth Masley, Lanham, Maryland, for the appellant.

           Suzanne L. Lawrence, Beltsville, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed her removal for unacceptable performance under 5 U.S.C. chapter 43.
     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 the erroneous application of

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.         See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         On August 14, 2012, the appellant was placed on a 90-day performance
     improvement plan (PIP) for not meeting the fully successful level for Critical
     Element 1, Administrative Support, and Critical Element 2, Planning and
     Organizing Work, of her Secretary position.            Mallory v. Department of
     Agriculture, MSPB Docket No. DC-0432-13-0347-I-2, Initial Appeal File (I-2
     IAF), Tab 7 at 5-9. The agency rated the appellant under a 3-tiered performance
     appraisal system consisting of the following three element ratings: (1) exceeds;
     (2) fully successful; and (3) does not meet. Id. at 11-16.
¶3         After the agency determined that the appellant’s performance had not
     improved to the fully successful level in Critical Elements 1 and 2, the agency
     issued a notice of proposed removal on November 16, 2012.            I-2 IAF, Tab 5
     at 26-31. At the same time, the agency placed the appellant on administrative
     leave pending a decision on her proposed removal.            Id. at 32-33.   Effective
     January 26, 2013, the agency removed the appellant based on her unacceptable
     performance in Critical Elements 1 and 2 of her position. Id. at 13-16.
                                                                                             3

¶4           The appellant filed a formal equal employment opportunity (EEO)
     complaint with the agency on February 7, 2013. I-2 IAF, Tab 9 at 3-4, Tab 10
     at 37-41.     She subsequently filed an appeal of her removal with the Board.
     Mallory v. Department of Agriculture, MSPB Docket No. DC-0432-13-0347-I-1,
     Initial Appeal File (I-1 IAF), Tab 1. In an initial decision, the administrative
     judge dismissed the Board appeal without prejudice.           I-1 IAF, Tab 16, Initial
     Decision.
¶5           On September 25, 2013, the appellant refiled her Board appeal without
     requesting a hearing because her EEO complaint had not been resolved by the
     agency within 120 days pursuant to 5 C.F.R. § 1201.154(b)(2). I-2 IAF, Tab 1.
     She raised the affirmative defense of disability discrimination based upon the
     agency’s alleged failure to accommodate her disabling conditions of sleep apnea,
     tendonitis, and diabetes. 2 I-2 IAF, Tab 1 at 4, Tab 4 at 4-5; see I-1 IAF, Tab 1
     at 3.    In the conference call summary, the administrative judge apprised the
     appellant of the elements of her affirmative defense of disability discrimination
     based on a failure to accommodate. I-2 IAF, Tab 4 at 4-9. The administrative
     judge also confirmed, based on discussions during the conference call, that the
     appellant was not alleging discrimination based on age, race, color, or reprisal for
     protected activity. Id. at 5 n.4. Because the appellant elected to file a Board
     appeal      after   exhausting   the   agency’s   EEO    procedures     under   5 C.F.R.
     § 1201.154(b), she is entitled to de novo review before the Board. See Peartree
     v. U.S. Postal Service, 66 M.S.P.R. 332, 341 (1995). In an initial decision based
     upon the written record, the administrative judge affirmed the agency’s removal
     action. I-2 IAF, Tab 16, Initial Decision (ID) at 1, 20. The administrative judge



     2
       Although the appellant alleged that she has a high risk of fibroid tumors, she did not
     provide any evidence to support her claim. I-1 IAF, Tab 1 at 3. Further, the
     administrative judge did not address this claim in the initial decision, and the appellant
     did not raise it as an issue on review.
                                                                                         4

     also found that the appellant failed to prove her affirmative defense of disability
     discrimination. ID at 15-20.
¶6        The appellant has filed a petition for review reasserting disability
     discrimination. Petition for Review (PFR) File, Tab 1. The agency has filed a
     response in opposition.    PFR File, Tab 4.     The appellant filed a reply to the
     agency’s response. PFR File, Tab 5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly sustained the appellant’s performance-based
     removal.
¶7        To prevail in an appeal of a performance-based removal under chapter 43,
     the agency must establish the following factors by substantial evidence 3: (1) the
     Office of Personnel Management (OPM) approved its performance appraisal
     system and any significant changes thereto 4; (2) the agency communicated to the
     appellant the performance standards and critical elements of her position; (3) the
     appellant’s performance standards are valid under 5 U.S.C. § 4302(b)(1); (4) the
     agency warned the appellant of the inadequacies of her performance during the
     appraisal period and gave her a reasonable opportunity to demonstrate acceptable
     performance; and (5) the appellant’s performance remained unacceptable in one
     or more of the critical elements for which she was provided an opportunity to
     demonstrate acceptable performance. Lee v. Environmental Protection Agency,
     115 M.S.P.R. 533, ¶ 5 (2010).



     3
       Substantial evidence is the “degree of relevant evidence that a reasonable person,
     considering the record as a whole, might accept as adequate to support a conclusion,
     even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
     4
       Ordinarily, the Board will presume that OPM has approved the agency’s performance
     appraisal system; however, if an appellant has alleged that there is reason to believe
     that OPM did not approve the agency’s performance appraisal system or significant
     changes to a previously approved system, the Board may require the agency to submit
     evidence of such approval. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,
     ¶ 5 (2010). The appellant has not contested this factor. I-2 IAF, Tab 4 at 3.
                                                                                       5

¶8         Agency performance appraisal systems may include between two and five
      summary rating levels. 5 C.F.R. § 430.208(d). Under any performance appraisal
      system, the lowest rating level is unacceptable, which is the only rating that will
      support removal under chapter 43.      Van Prichard v. Department of Defense,
      117 M.S.P.R. 88, ¶ 14 (2011), aff’d, 484 F. App’x 489 (Fed. Cir. 2012). Under
      certain performance appraisal systems, performance of a critical element may fall
      between fully successful and unacceptable. Id., ¶¶ 14-15; 5 C.F.R. §§ 430.207(c),
      430.208(d). When there is such an intermediary rating level, an appellant could
      reach a marginal level of performance without falling to the unacceptable level of
      performance that would support removal under chapter 43.            Van Prichard,
      117 M.S.P.R. 88, ¶ 15.    In this case, the agency rated the appellant under a
      3-tiered system without an intermediary level between the element ratings of fully
      successful and does not meet. I-2 IAF, Tab 7 at 11-16. Therefore, the agency
      validly required the appellant to meet the fully successful level during her PIP to
      avoid removal under chapter 43. Cf. Van Prichard, 117 M.S.P.R. 88, ¶¶ 14-15
      (finding that the agency erred by requiring the appellant to reach the fully
      successful level during his PIP to avoid removal under chapter 43 when the
      agency rated him under a 5-tiered performance appraisal system containing a
      marginal rating level that fell between fully successful and unacceptable).
¶9         In her petition for review, the appellant asserts for the first time that she
      had “Documents and Folders of Time and Attendance records, and lots of Travel
      finished Documents” that she could have submitted as evidence of her acceptable
      performance, but she was unable to because she was placed on administrative
      leave prior to her removal and her personal items were placed in a box and
      thrown away before she could retrieve them. PFR File, Tab 1 at 3. Because she
      does not explain why she could not raise this argument below, we decline to
      address it on review. See 5 C.F.R. § 1201.115(d).
¶10        The appellant does not provide any other evidence or argument to dispute
      the administrative judge’s finding that the agency proved the five factors of a
                                                                                            6

      performance-based removal by substantial evidence.           See ID at 4-15, 19-20.
      Based on our review of the record, we discern no reason to disturb this finding.
      See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
      reason to disturb the administrative judge’s findings when she considered the
      evidence as a whole, drew appropriate references, and made reasoned
      conclusions).
      The administrative judge properly found that the appellant failed to prove her
      affirmative defense of disability discrimination based on a failure to
      accommodate.
¶11         The appellant reasserts on review her claim of disability discrimination
      based on the agency’s failure to accommodate.           PFR File, Tabs 1, 5.       The
      Rehabilitation Act requires an agency to provide reasonable accommodation to
      the known physical or mental limitations of an otherwise qualified individual
      with a disability unless the agency can show that accommodation would cause an
      undue hardship on its business operations. 5 Clemens v. Department of the Army,
      120 M.S.P.R. 616, ¶ 10 (2014). As pertinent here, a “qualified individual” means
      “an individual who, with or without reasonable accommodation, can perform the
      essential functions of the employment position that such individual holds or
      desires.”   42 U.S.C. § 12111(8).       A “disability” is “a physical or mental
      impairment that substantially limits 6 one or more major life activities of such


      5
        As a federal employee, the appellant’s claim of disability discrimination arises under
      the Rehabilitation Act. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11 n.4
      (2012). However, the standards under the American with Disabilities Act (ADA) have
      been incorporated by reference into the Rehabilitation Act. Id.; see 29 U.S.C. § 791(f).
      The ADA Amendments Act of 2008 (ADAAA), which liberalized the definition of
      disability, became effective on January 1, 2009. See Pub. L. No. 110-325, 122 Stat.
      3553 (2008). Because the appellant was removed from her position on January 26,
      2013, the ADAAA definition is applicable. See I-2 IAF, Tab 5 at 13. Although the
      ADAAA changed the interpretation of the law as to the existence of a disability, it did
      not affect the requirements of the law as to reasonable accommodation. See Davis,
      119 M.S.P.R. 22, ¶ 11 n.4.
      6
       The Equal Employment Opportunity Commission’s regulations that implement the
      ADA, as amended by the ADAAA, provide that the term “‘substantially limits’ shall be
                                                                                               7

      individual; a record of such an impairment; or being regarded as having such an
      impairment.” 42 U.S.C. § 12102(1)(A)-(C). “Major life activities” include, but
      are not limited to, “caring for oneself, performing manual tasks, seeing, hearing,
      eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
      learning, reading, concentrating, thinking, communicating, and working.”
      42 U.S.C. § 12102(2)(A). Reasonable accommodation includes modifications to
      the manner in which a position is customarily performed to enable a qualified
      individual with a disability to perform the essential job functions, or reassignment
      of the employee to a vacant position whose duties the employee can perform.
      Clemens, 120 M.S.P.R. 616, ¶ 10.
¶12         In order to prove a disability discrimination claim based on a failure to
      accommodate, an appellant must prove that she is a disabled person, that the
      action appealed was based on her disability and, to the extent possible, she must
      articulate a reasonable accommodation under which she believes she could
      perform the essential duties of her position or of a vacant funded position to
      which she could be reassigned.          Sanders v. Social Security Administration,
      114 M.S.P.R. 487, ¶ 16 (2010).
¶13         The administrative judge found that the appellant failed to prove her
      disability discrimination claim based on a failure to accommodate the conditions
      of diabetes, sleep apnea, and tendonitis.           ID at 15-19.       Specifically, the
      administrative judge found that the appellant failed to provide evidence that she
      had diabetes, that diabetes caused her unacceptable performance, or that any


      construed broadly in favor of expansive coverage, to the maximum extent permitted by
      the terms of the ADA. ‘Substantially limits’ is not meant to be a demanding standard.”
      29 C.F.R. § 1630.2(j)(1)(i). “An impairment is a disability within the meaning of this
      section if it substantially limits the ability of an individual to perform a major life
      activity as compared to most people in the general population. An impairment need not
      prevent, or significantly or severely restrict, the individual from performing a major life
      activity in order to be considered substantially limiting. Nonetheless, not every
      impairment will constitute a disability within the meaning of this section.” 29 C.F.R.
      § 1630.2(j)(1)(ii).
                                                                                            8

      accommodation was necessary as a result of her diabetes. 7            ID at 17.    The
      administrative judge also found that, despite the appellant’s medical evidence
      showing that she suffers from sleep apnea, the appellant did not provide any
      evidence that she sought an accommodation for the condition or that she
      identified what accommodations would have been required.              ID at 18.    The
      administrative judge noted that the medical evidence indicated that the
      appellant’s sleep apnea is fully treatable with the use of a “continuous positive
      airway pressure” or “CPAP machine.” 8            ID at 16-17.       Additionally, the
      administrative judge found that, although the appellant submitted a formal request
      for reasonable accommodation for tendonitis, her condition was temporary and
      would not qualify her as disabled. ID at 18-19. The administrative judge further
      found that the appellant failed to establish how her tendonitis affected her ability
      to achieve a fully successful rating in both Critical Elements 1 and 2 or what
      accommodations would be necessary. ID at 19.
¶14         In her petition for review, the appellant reasserts that she is disabled. PFR
      File, Tabs 1, 5. She asserts that she originally was hired by the agency under
      Schedule A hiring authority for people with disabilities and attaches a Schedule A
      certification. PFR File, Tab 1 at 3-4; see 5 C.F.R. § 213.3102(u). She further
      alleges that her coworker told her that her disability was documented by the
      agency and that he influenced her former supervisor into placing her on a PIP.
      PFR File, Tab 5 at 3; see I-2 IAF, Tab 10 at 56-57, 60, 63-64. The appellant
      contends that she told her coworker, her former supervisor, and her current
      supervisor that she had a disability and wanted an accommodation. PFR File,
      Tab 5 at 3; see I-2 IAF, Tab 10 at 28, 56-57, 63. She also alleges that the agency


      7
        The appellant submitted medical evidence of diabetes; however it indicates that she
      only had an “increased risk of diabetes” and not that she suffered from diabetes itself.
      I-2 IAF, Tab 9 at 14.
      8
        The CPAP machine assists an individual to more easily breathe by supplying a
      constant and steady air pressure to the individual via a hose and a mask or nose piece.
                                                                                        9

      representative told her that the administrative judge could not find her “Files” and
      “Disability Documents.” PFR File, Tab 5 at 3. As evidence of her disabilities,
      the appellant submits a certificate of service from her former counselor at the
      Maryland State Department of Education, Division of Rehabilitation Services,
      stating that she received services from the organization based on her learning
      disability and back disorder. Id. at 2. She also attaches two articles on learning
      disabilities. Id. at 4-6.
¶15         We find that the appellant has failed to establish her disability
      discrimination claim because she has not provided evidence that the agency knew
      she had a learning disability or back disorder, that she requested a reasonable
      accommodation for either condition, or that her removal was based on either
      condition.    See Sanders, 114 M.S.P.R. 487, ¶ 16.         Although the appellant
      submitted a Standard Form (SF) 50 reflecting that she was hired under
      Schedule A hiring authority, the SF-50 was issued by a different agency. I-2 IAF,
      Tab 9 at 29. She does not allege that she sent the agency a copy of a letter from
      the Maryland State Department of Education, Division of Rehabilitation Services
      certifying her eligibility for Schedule A hiring. Id. at 24-28, 30-31, 33. Finally,
      the appellant did not assert below or in her EEO complaint that the agency failed
      to accommodate her learning disability or back disorder, and she has not shown
      that this new argument is based on any material and previously unavailable
      evidence. I-1 IAF, Tab 1; I-2 IAF, Tab 1, Tab 4 at 4-5, Tab 9; see 5 C.F.R.
      § 1201.115(d). For these reasons, we find that the administrative judge properly
      denied the appellant’s claim of disability discrimination based on a failure to
      accommodate.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.
                                                                                   10

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

      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,
                                                                             11

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
repayment 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.
