                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY C. SCOTT,                               DOCKET NUMBERS
                  Appellant,                         DE-4324-14-0611-I-1
                                                     DE-0752-13-1680-I-2
                  v.

     DEPARTMENT OF THE ARMY,
                 Agency.                             DATE: September 21, 2015



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anthony C. Scott, Sierra Vista, Arizona, pro se.

           Richard C. Wolfe, Esquire, and Dave L. Miller, Fort Huachuca, Arizona,
             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
     denied his request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
     §§ 4301-4333) (USERRA), affirmed the agency’s chapter 75 removal action, and


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     dismissed for lack of jurisdiction the appellant’s request for corrective action
     under the Federal Employees’ Compensation Act (FECA). 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 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).
¶2        The following facts are undisputed.       The appellant was an Information
     Technology (IT) Specialist with the agency, and he took leave without pay
     (LWOP) on May 20, 2009, to perform uniformed service in the U.S. Army
     Reserves.    MSPB Docket No. DE-4324-14-0611-I-1, Initial Appeal File
     (0611 IAF), Tab 34, Initial Decision (ID) at 4.      On December 10, 2012, the
     appellant returned to duty in his IT Specialist position, after his medical
     retirement from the U.S. Army Reserves on December 9, 2012, because of a
     permanent physical disability. ID at 5; 0611 IAF, Tab 6 at 15, 17. On May 20,
     2013, the agency proposed to remove the appellant for medical inability to
     perform his job, citing his submission of an April 3, 2013 letter from his
     physician stating that the appellant could not continue employment.        ID at 5;
     MSPB Docket No. DE-0752-13-1680-I-1, Initial Appeal File (1680 IAF), Tab 5
     at 95. In the letter, the appellant’s physician referred to the appellant’s “severe
                                                                                           3

     injuries/illness following his mobilization and medical retirement from active
     duty” and stated that the appellant had decided to apply for a “Civil Service
     Disability packet,” which the physician described as “in the best interest of the
     patient.”    1680 IAF, Tab 5 at 98.     The appellant’s representative submitted a
     written response opposing the removal action, and the deciding official for the
     agency sustained the appellant’s removal effective July 16, 2013.           1680 IAF,
     Tab 1 at 16, Tab 5 at 20, 33.
¶3         The appellant filed an appeal with the Board and raised several affirmative
     defenses to his removal. 2 1680 IAF, Tab 1. Specifically, he alleged that the
     agency’s removal action:        (1) constituted reprisal for his disclosures to the
     Inspector General; (2) was not in accordance with law because the agency
     violated Executive Order 5396 by not allowing him to remain in an LWOP status
     “while undergoing medical treatment” and/or “pending his Disability Retirement
     Application”; (3) constituted disability discrimination; and (4) violated his rights
     under USERRA. 0611 IAF, Tab 23 at 3. The appellant also alleged that the
     agency violated his rights under FECA, which the administrative judge
     considered both as an independent claim and as an affirmative defense to the
     agency’s removal action. Id. at 3-5.
¶4         The administrative judge issued an order informing the appellant of the
     jurisdictional criteria and burdens of proof applicable to the issues he raised on
     appeal.     0611 IAF, Tab 23 at 3-30.     The administrative judge also joined the
     appellant’s chapter 75 appeal with his separately docketed USERRA appeal for
     adjudication.    0611 IAF, Tabs 22, 23 at 2.        After considering the pleadings


     2
       The administrative judge granted the appellant’s request to dismiss the initial appeal
     without prejudice to refiling so that the appellant could obtain representation. See
     1680 IAF, Tab 26. The appellant subsequently obtained new representation and refiled
     his removal appeal on June 12, 2014. MSPB Docket No. DE-0752-13-1680-I-2, Refiled
     Appeal File (RAF), Tab 1. The administrative judge joined the refiled appeal for
     adjudication with the appellant’s separately docketed USERRA appeal under MSPB
     Docket No. DE-4324-14-0611-I-1. RAF, Tab 21; ID at 3-4.
                                                                                      4

     submitted by both parties in the joined appeal, the administrative judge found that
     the Board has jurisdiction over the appeal and issued an initial decision affirming
     the appellant’s removal based on the written record, because the appellant
     withdrew his request for hearing. ID at 2, 4; 0611 IAF, Tab 23 at 1.
¶5        Regarding the appellant’s USERRA appeal, the administrative judge denied
     the appellant’s request for corrective action.    ID at 10.    He found that the
     appellant failed to prove that the agency violated his USERRA restoration rights
     when he returned from military service on December 10, 2012, by: (1) failing to
     assign him to his premobilization duties; (2) failing to accord him a process by
     which his medical abilities would be assessed; and (3) forcing him to return to the
     rolls immediately instead of giving him 90 days to return to duty. ID at 6, 10.
     The administrative judge determined that the agency afforded the appellant proper
     reemployment rights and that he voluntarily returned to work on January 2, 2013.
     ID at 10. The administrative judge also considered whether the appellant raised a
     USERRA discrimination claim and found no evidence of discriminatory animus
     by the agency and no evidence that the appellant’s military service was a
     substantial or motivating factor in his removal. ID at 17.
¶6        As to the appellant’s chapter 75 removal appeal, the administrative judge
     found that the agency proved its charge of medical inability to perform and that
     there was a nexus between the charge and the efficiency of the service.
     ID at 11-12. The administrative judge further found that the appellant failed to
     prove his affirmative defenses by preponderant evidence and that the removal
     penalty did not exceed the tolerable limits of reasonableness because the medical
     evidence clearly established a medical inability to perform without a foreseeable
     end to the appellant’s incapacity. ID at 22-23.
¶7        The administrative judge also found that the appellant failed to prove his
     not in accordance with law affirmative defense based on his allegation that the
     agency violated Executive Order 5396. ID at 12-14. The administrative judge
     further found that the appellant failed to establish his whistleblowing affirmative
                                                                                    5

defense. ID at 14-16. Specifically, the administrative judge found that, although
the appellant failed to prove that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8)(A), he threatened to make a disclosure to an Inspector General,
which was protected under 5 U.S.C. § 2302(b)(9)(C).               ID at 16.       The
administrative judge also found that the appellant established that the threatened
disclosure was a contributing factor in the proposed removal action, but that the
agency proved by clear and convincing evidence that it would have removed the
appellant in the absence of his threatened disclosure. ID at 16-17. In analyzing
this issue, the administrative judge acknowledged that the proposing official had
a motive to retaliate against the appellant but found that the appellant’s medical
inability to perform his job was an overwhelmingly strong, nonretaliatory reason
for proposing the appellant’s removal. ID at 16. The administrative judge further
found that the appellant failed to prove his affirmative defense of disability
discrimination based on a failure to accommodate, disparate treatment, or
disparate impact.   ID at 18-19.     Concerning the appellant’s restoration claim
under FECA, the administrative judge found, inter alia, that the appellant had an
Office of Workers’ Compensation Programs (OWCP) claim but that there was no
evidence that he had “recovered sufficiently” to resume working.           ID at 20.
Based on this finding, the administrative judge found that the appellant failed to
meet his burden of proving his affirmative defense to the removal action based on
an alleged denial of restoration under FECA or establish that the Board has
jurisdiction over his FECA claim. 3 ID at 20-21.




3
  The appellant has not challenged, and we therefore discern no reason to disturb, the
administrative judge’s findings that the appellant failed to establish: (1) his not in
accordance with law affirmative defense based on his allegation that the agency
violated Executive Order 5396; (2) his whistleblowing retaliation affirmative defense;
(3) his disability discrimination affirmative defense; (4) his claim under FECA as an
affirmative defense; and (5) that the Board has jurisdiction over his FECA claim as a
separate action.
                                                                                            6

¶8         The appellant filed a timely petition for review of the initial decision.
     Petition for Review (PFR) File, Tab 1. On review, the appellant appears to argue
     that: (1) the deciding official stressed his consideration of the Douglas factors in
     determining the removal penalty although those factors do not apply in his case;
     (2) he proved his affirmative defense of USERRA discrimination; and (3) his
     removal was not in accordance with law because: (i) the deciding official refused
     to hold a hearing and prevented the appellant’s representative from making oral
     statements, and (ii) the agency refused to assist him in processing his disability
     retirement application and instructed him to return to work, although the agency
     “was authorized to allow [him] to apply for [Office of Personnel Management
     (OPM)] disability in September 2012.” 4 PFR File, Tab 1 at 3. For the reasons
     stated below, we find the appellant’s arguments on review do not affect the
     outcome of this appeal.
¶9         Generally, removal for physical inability to perform the essential functions
     of a position promotes the efficiency of the service. See Clemens v. Department
     of the Army, 120 M.S.P.R. 616, ¶¶ 9, 18 (2014) (involving a removal for physical
     inability to perform from a position not subject to medical evaluation programs).
     The appellant does not dispute the administrative judge’s findings that the agency
     proved by preponderant evidence that he was physically unable to perform the
     duties of his position, that there was a nexus between his inability to perform and
     the accomplishment of the agency’s mission, and that his removal promoted the
     efficiency of the service. Rather, he asserts on review that the deciding official

     4
       The appellant also argued on review that his former attorney representative notified
     him in November 2013 that she never agreed to represent the appellant before the
     Board, and he asserted that the agency never gave him a certificate of service for all of
     the documents sent to his former attorney. He made a similar argument in his initial
     appeal, which the administrative judge dismissed without prejudice so that the appellant
     could obtain representation. 0611 IAF, Tab 26 at 2-3. The appellant subsequently
     obtained new representation and refiled his removal appeal on June 12, 2014. RAF,
     Tab 1. The appellant, who is acting pro se on review, does not explain how his
     problems with his former attorney affected the outcome of his appeal and his argument
     presents no basis for disturbing the initial decision.
                                                                                        7

      considered the Douglas factors in his decision, and those factors do not apply
      here. PFR File, Tab 1 at 3.
¶10        We agree that the deciding official erred by considering the Douglas factors
      in his removal decision; however, the appellant does not explain how this error
      adversely affected the outcome of his appeal. See Brown v. Department of the
      Interior, 121 M.S.P.R. 205, ¶ 18 (2014) (finding that the analysis for mitigating
      the penalty under Douglas does not apply to nondisciplinary actions based on a
      physical inability to perform). As noted by the administrative judge, the standard
      in determining the penalty for a removal based on physical inability to perform is
      whether the penalty of removal exceeds “the tolerable limits of reasonableness.”
      ID at 22; Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518,
      ¶ 14 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005); ID at 22.                The
      administrative judge found that the agency’s removal penalty did not exceed the
      tolerable limits of reasonableness because the medical evidence clearly
      established that the appellant was physically unable to perform without a
      foreseeable end to his incapacity. ID at 22-23. The appellant submits no new
      evidence or argument on review showing that the agency’s decision to remove
      him, based on his undisputed medical inability to perform his duties, exceeded the
      tolerable limits of reasonableness.       Although the appellant reasserts his
      affirmative defense of USERRA discrimination by alleging that the agency
      created a “hostile and toxic work environment” to punish him for going on active
      duty, he fails to identify any evidence in the record that supports this allegation.
      PFR File, Tab 1; see ID at 17.
¶11        The appellant also argues that the deciding official refused to hold a hearing
      before issuing a decision on his proposed removal and that the agency prevented
      his representative from making oral statements in opposition to the notice of
      proposed removal. The appellant may be attempting to show that his removal was
      not in accordance with law; however, the appellant fails to identify any law, rule,
      or regulation that required a hearing on the proposed removal action.
                                                                                        8

      See 5 U.S.C. § 7513(c).    Pursuant to 5 U.S.C. § 7513(b)(2), an employee is
      entitled to a reasonable time to submit an oral and written answer to an adverse
      action proposed by an agency, and the agency informed the appellant of his right
      to respond in the proposed removal notice.       0611 IAF, Tab 5 at 42.       Here,
      however, the record reflects that the appellant’s representative submitted a
      written answer to the agency’s notice of proposed removal, and the appellant
      identifies no evidence in the record showing that the agency prevented him from
      submitting an oral answer to the proposal notice. 0611 IAF, Tab 1 at 16-24.
¶12         Next, the appellant appears to argue on review that his removal was not in
      accordance with law because the agency refused to assist him in processing his
      disability retirement application and ordered him back to work. PFR File, Tab 1
      at 3. He argues that an OPM regulation allows employees, disabled because of
      active military duty, to apply immediately for disability and that the agency has a
      policy of immediate retirement for wounded warriors.           Id.   However, the
      appellant identifies no evidence in the record to support his claim that the agency
      refused to allow him to apply for disability retirement or that the agency failed to
      assist him in processing his disability retirement application. Moreover, although
      Federal regulations require agencies to file disability retirement applications for
      disabled employees under very limited circumstances, those circumstances are not
      present in this appeal. See 5 C.F.R. §§ 831.1205, 844.202.
¶13         Because the appellant’s arguments on review present no reason to disturb
      the initial decision denying the appellant’s request for corrective action under
      USERRA, affirming the agency’s removal action under chapter 75, and
      dismissing the appellant’s request for corrective action under FECA, we deny his
      petition for review.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
                                                                                    9

choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.

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
                                                                                 10

you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.          See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
     If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board’s decision
without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit.
     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
                                                                                     11

      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,     at   our     website,    http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective          websites,          which             can        be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono           for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




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