                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JARVIS O'BRYAN MOSLEY,                          DOCKET NUMBER
                   Appellant,                        AT-0752-14-0666-I-1

                  v.

     DEPARTMENT OF                                   DATE: December 3, 2015
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           H. Jerome Briscoe III, Esquire, Huntsville, Texas, for the appellant.

           Alison M. Debes, Esquire, and Jennifer D. Ambrose, Esquire, Washington,
             D.C., 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
     sustained his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).                After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as expressly MODIFIED by
     this Final Order to incorporate the standards set out in Savage v. Department of
     the   Army,   122 M.S.P.R.     612 (2015),   for   affirmative   defenses     of   equal
     employment opportunity (EEO) reprisal and race discrimination, we AFFIRM the
     initial decision.
¶2         The agency hired the appellant for the position of Air Traffic Control
     Specialist in 2008.    Initial Appeal File (IAF), Tab 4, Subtab 4a; Hearing
     Transcript (HT) at 10 (testimony of the appellant).       Retention in the position
     required that he satisfactorily complete training and become a Certified
     Professional Controller (CPC).       IAF, Tab 4, Subtab 4x at 1, 3.          Following
     academy training as well as on-the-job training at two facilities, the appellant
     relocated to a third facility in Columbus, Georgia, around July 2011, where he
     received additional on-the-job training. HT at 10-14 (testimony of the appellant);
     IAF, Tab 4, Subtab 4w.       However, by August 2013, the appellant had not yet
     received his CPC certification.      HT at 65 (testimony of H.B.); IAF, Tab 4,
     Subtab 4t.
¶3         The agency’s facility manager, H.B., convened a Training Review Board
     (TRB) in September 2013, to determine an appropriate course of action. IAF,
     Tab 4, Subtab 4s. Citing consistent deficiencies in the appellant’s performance
     and an inability to demonstrate significant improvement, members of the TRB
                                                                                             3

     unanimously recommended terminating his training. Id. at 19. Thereafter, the
     District Manager, B.L., proposed terminating the appellant’s training.               IAF,
     Tab 4, Subtab 4r. The appellant submitted a response to the proposal, IAF, Tab 4,
     Subtab 4n, but B.L. issued a decision to terminate his training, IAF, Tab 4,
     Subtab 4m. In November 2013, the agency’s National Employee Services Team
     reviewed the matter and unanimously recommended the appellant no longer be
     retained due to his failure to certify at even the lowest activity level, despite
     5 years of combined training. IAF, Tab 4, Subtabs 4i, 4k.
¶4         In January 2014, the agency proposed the appellant’s removal from service
     for “fail[ing] to demonstrate the ability to work at the CPC/[Full Performance
     Level] in a less complex” Federal Aviation Administration facility. 2 IAF, Tab 4,
     Subtab 4g. The appellant did not submit a substantive response to the proposal.
     Cf. IAF, Tab 4, Subtab 4d (request to stay his proposed removal). In April 2014,
     the agency issued its decision to terminate the appellant’s employment.              IAF,
     Tab 4, Subtab 4b.
¶5         The appellant filed the instant appeal. IAF, Tab 1. He raised affirmative
     defenses of harmful error, EEO reprisal, disability discrimination, and racial
     discrimination.     See, e.g., IAF, Tab 17 at 4-9.       After holding the requested
     hearing, the administrative judge affirmed the appellant’s removal. IAF, Tab 22,
     Initial Decision (ID). The appellant has filed a petition for review. Petition for
     Review (PFR) File, Tab 1. The agency has not filed a response. 3

     2
       The specification supporting the agency’s charge indicated that the appellant “failed to
     successfully complete the Air Traffic Control Training Program” and that he was
     deficient in (1) “consistently apply[ing] separation standards during light to moderate
     traffic,” (2) “demonstrat[ing] the ability to maintain focus on the entire traffic
     situation,” and (3) “demonstrat[ing] the capacity for effective and timely reaction to
     emergency or unusual situations.” IAF, Tab 4, Subtab 4g at 1-2.
     3
       On November 16, 2015, the appellant submitted a pleading titled “Addendum to
     Petition for Review.” PFR File, Tab 3. Because the appellant did not comply with the
     Board’s regulation that required him to file a motion and obtain leave to submit an
     additional pleading, see 5 C.F.R. § 1201.114(a)(5), we have not considered this
     pleading on review.
                                                                                         4

¶6         The appellant’s petition contains a number of arguments, all of which
     appear to implicate his affirmative defenses. 4         First, he alleges that the
     administrative judge failed to adequately consider numerous instances of
     purported   impropriety     involving   the   appellant’s    supervisor,   H.B.,   as
     circumstantial evidence of a discriminatory or retaliatory intent. Id. at 5-11. In
     addition, the appellant appears to reassert his disability discrimination allegation,
     arguing that the agency erred by failing to address his request for reasonable
     accommodation. Id. at 12-13. Finally, the appellant reasserts that his removal
     should be reversed due to harmful error and a violation of his right to due
     process. Id. at 14-15.
     The appellant failed to prove his affirmative defenses of race discrimination and
     EEO reprisal.
¶7         The administrative judge determined that the appellant failed to prove his
     affirmative defenses of race discrimination and retaliation for engaging in EEO
     activity. ID at 13-15, 19-22. We agree.
¶8         After the initial decision was issued, however, the Board issued a decision
     that clarified the evidentiary standards and burdens of proof under which the
     Board analyzes such claims. Savage v. Department of the Army, 122 M.S.P.R.
     512, ¶¶ 42-43, 51 (2015).     We find that applying the analytical framework in
     Savage would not change the result in this case. Although the appellant disagrees
     with how his training was conducted and evaluated, primarily because of a
     discrepancy in the documentation of a training session, see, e.g., PFR File, Tab 1
     at 5-8; HT at 80-83, 180-81, he failed to establish that race discrimination or EEO
     reprisal were motivating factors in his removal.       Thus, based on the existing

     4
       Because the appellant has presented no substantive arguments concerning the proof of
     the charge, nexus, or penalty, we will not revisit the administrative judge’s
     well-reasoned findings as to the same. ID at 6-9; see Crosby v. U.S. Postal Service,
     74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s
     findings where she considered the evidence as a whole, drew appropriate inferences,
     and made reasoned conclusions on issues of credibility); Broughton v. Department of
     Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
                                                                                        5

      record, and for the reasons contained in the initial decision, we affirm the
      administrative judge’s finding that the appellant did not meet his burden of
      proving these claims.
      The administrative      judge     properly   denied   the   appellant’s   remaining
      affirmative defenses.
¶9         The appellant appears to reassert his disability discrimination affirmative
      defense, alleging that the agency failed to properly address his request for
      reasonable accommodation. PFR File, Tab 1 at 12-13; see IAF, Tab 15 at 6-7.
      He also reasserts that the agency’s training review process was tainted by harmful
      error and a due process violation. PFR File, Tab 1 at 14-15. We find no merit to
      these arguments.
            Disability discrimination
¶10        To prove a failure to accommodate disability discrimination claim, an
      appellant must prove that he is a disabled person, that the action appealed was
      based on his disability and, to the extent possible, he must articulate a reasonable
      accommodation under which he believes he could perform the essential duties of
      his position or of a vacant funded position to which he could be reassigned.
      Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 16 (2010).
      However, reasonable accommodation is always prospective; an agency does not
      have a duty to retroactively excuse poor performance based upon a subsequent
      request to accommodate a previously unknown disability.             See 42 U.S.C.
      § 12112(b)(5) (defining illegal disability discrimination under the Americans with
      Disabilities Amendments Act (ADAAA) to include failing to reasonably
      accommodate “known physical or mental limitations”); 5 Purcell v. Department of
      Veterans Affairs, EEOC Request No. 05970773, 1999 WL 448126, at *1-*2
      5
        As a Federal employee, the appellant’s claim of discrimination on the basis of
      disability arises under the Rehabilitation Act of 1973. However, the regulatory
      standards for the 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. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 16
      (2010) (citing 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203(b)).
                                                                                             6

      (June 24, 1999) (finding that an agency was not required to accommodate an
      employee or retroactively excuse her poor performance based on a request for
      accommodation      she   made    after   receiving   the    performance    appraisal   at
      issue); 29 C.F.R. § 1630.9(a).
¶11         It is undisputed that the appellant did not inform the agency of his medical
      conditions or seek reasonable accommodation until after H.B. suspended his
      training, the TRB recommended terminating his training, and B.L. proposed
      terminating his training, all of which resulted from the appellant’s poor
      performance. See, e.g., PFR File, Tab 1 at 13; IAF, Tab 4, Subtab 4q. Therefore,
      as   the   administrative   judge   properly   noted,      the   appellant’s   reasonable
      accommodation request did not obligate the agency to excuse his prior failures.
      ID at 19; see Purcell, 1999 WL 448126, at *2.
             Harmful error and due process
¶12         Pursuant to 5 U.S.C. § 7701(c)(2), an agency’s adverse action “may not be
      sustained . . . if the employee or applicant for employment shows harmful error in
      the application of the agency’s procedures in arriving at such decision[.]”
      Reversal of an agency’s action is therefore required where an appellant
      establishes that the agency committed a procedural error that likely had a harmful
      effect on the outcome of the case before the agency. Goeke v. Department of
      Justice, 122 M.S.P.R. 69, ¶ 7 (2015).
¶13         In his petition for review, the appellant reasserts that the agency erred by
      introducing information concerning a driving under the influence citation into the
      TRB process. PFR File, Tab 1 at 14. However, the administrative judge found,
      inter alia, that the appellant failed to prove that this was an error, ID at 10-11, and
      we agree. Although the appellant characterizes the agency’s actions as harmful
      error, he has failed to present anything to demonstrate that those actions were
      prohibited by law, rule, or regulation.        PFR File, Tab 1 at 14; see Scott v.
      Department of Justice, 69 M.S.P.R. 211, 242 (1995) (concluding that the
      appellant did not meet his burden of showing that the agency committed harmful
                                                                                          7

      error when he failed to identify any rule or regulation that the agency violated in
      the application of its procedures), aff’d, 99 F.3d 1160 (Fed. Cir. 1996) (Table).
¶14        The appellant also characterizes the aforementioned introduction of
      information concerning the driving under the influence citation into the TRB
      process as a due process violation. PFR File, Tab 1 at 14-15 (citing Ward v. U.S.
      Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal
      Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999)). This
      argument similarly fails.
¶15        Ward and Stone stand for the proposition that a deciding official violates an
      employee’s due process rights when he relies upon new and material ex parte
      information as a basis for his decisions on the merits of a proposed charge or the
      penalty to be imposed. See Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 6
      (2015).   In this case, the TRB merely convened to consider and ultimately
      recommend terminating the appellant’s training.      IAF, Tab 4, Subtab 4s at 19.
      The TRB was not the deciding official for the appellant’s removal, nor did it
      deprive him of any other property interest. 6 IAF, Tab 4, Subtab 4b. Therefore,
      we find that the TRB’s consideration of information concerning a driving under
      the influence charge is of no consequence in this appeal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5


      6
        Further, the TRB process preceded the appellant’s removal, and he was permitted to
      respond prior to the final TRB determination. Supra ¶ 3.
                                                                                    8

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,
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
                                                                        9

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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