                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JESSE WORTHEN,                                  DOCKET NUMBER
                  Appellant,                         SF-0432-14-0539-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 26, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Justin Prato, Esquire, San Diego, California, for the appellant.

           Eric LaZare, Esquire, San Diego, California, 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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 agency removed the appellant from the GS-11 position of Program
     Analyst based on unacceptable performance. Initial Appeal File (IAF), Tab 5,
     Subtabs 4a-4b. Specifically, the agency charged that the appellant’s performance
     was unacceptable in the critical elements o f Program Administration Management
     and Planning, and Communication. Id., Subtabs 4b, 4m. Regarding the critical
     element Program Administration Management and Planning, the agency charged
     that the appellant failed to: (1) input Methicillin-resistant Staphylococcus Aureus
     (MRSA) and Clostridium Difficile Infection (CDI) data into the Inpatient
     Evaluation Center by the submission deadline each month with no more than two
     errors per year; (2) analyze MRSA data for swab completion rates, prevalence
     rates and transmission rates by unit, and share information with unit leadership;
     (3) consistently complete assigned work within identified timeframes; and
     (4) assure   that   monthly   Hand    Hygiene/Transmission     Based    Precaution
     observations were entered monthly, and prepare graphs and monthly reports for
     the Infection and Environmental Control Committee use.           Id., Subtab 4m.
     Regarding the Communication critical element, the agency charged that the
     appellant failed to timely and accurately complete written communication. Id.
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¶3        The appellant appealed the agency’s action, alleging that he did not “under
     perform,” and that any performance issues were caused by the agency’s failure to
     accommodate him or to provide assistance. IAF, Tab 1. He also asserted that the
     agency discriminated against him on the basis of his disabilities of: (1) back and
     neck injuries suffered in a parachuting accident while he was in the Army that
     limited his ability to sit for long periods, walk long distances, and lift; and
     (2) a work-related repetitive stress injury for which he needed surgery to remove
     a nerve, leaving him with pain in his arm and loss of some fine motor skills. Id.;
     IAF, Tab 9.     Additionally, the appellant alleged that the agency committed
     harmful procedural error in considering the Douglas factors. IAF, Tab 12. The
     appellant requested a hearing that the administrative judge held on July 30, 2014.
     IAF, Tabs 1, 17.
¶4        The administrative judge noted that, when the agency charged the appellant
     with unacceptable performance, he was working under approved accommodations
     that indicated that the agency would: (1) provide him with an ergonomic chair
     and a sit-and-stand desk; (2) restructure his daily activities to require data entry
     in no more than 30-minute intervals; (3) recommend a desk audit to determine if
     the job duties of the position description were accurate; and (4) provide assistance
     on a temporary basis to clean up his backlog of past assignments while he
     performed his daily duties. IAF, Tab 19, Initial Decision (ID) at 4-5, Tab 12,
     Exhibit A.    It was with these accommodations in mind that the administrative
     judge determined that the agency proved that the appellant’s performance was
     unacceptable as charged.
¶5        The administrative judge found that the agency established that the Office
     of Personnel Management (OPM) had approved the agency’s performance
     appraisal system, ID at 11, and that the agency communicated to the appellant the
     critical elements and performance standards of his position, ID at 11-15, warned
     him of the inadequacies of his performance during the appraisal period, and gave
     him a reasonable opportunity to improve during a performance improvement plan
                                                                                         4

     (PIP) period, ID at 15-22. She found that, during the PIP period, the appellant’s
     performance remained unacceptable in the critical elements for which he was
     provided an opportunity to demonstrate acceptable performance. ID at 22-25.
¶6            The administrative judge also found that the appellant failed to prove his
     affirmative defenses.      ID at 25-33.      She found that, although the factors
     enumerated in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981),
     are not applicable in a removal for unacceptable performance taken under
     chapter 43, the appellant failed to show that he was harmed by the deciding
     official’s consideration of the Douglas factors in deciding to remove him.         ID
     at 27-28. Thus, she found that the appellant failed to prove harmful procedural
     error.     She also found that the appellant presented no evidence to show that
     agency officials were motivated by discriminatory animus in their efforts to
     identify     hindrances   to   the   appellant’s   successful   performance,   provide
     accommodations designed to assist him in improving his performance, and
     evaluate his performance during the PIP period. ID at 32-33. Thus, she found
     that the appellant failed to prove his disability discrimination claim.
¶7            The appellant has petitioned for review, alleging that the administrative
     judge erred in finding that the agency provided him a meaningful improvement
     period despite issues with his computer and work programs. He also contends
     that the agency did not give him the assistance he was promised. The appellant
     further alleges that the administrative judge erred in finding that that the agency
     accommodated his disability when it failed to provide him with agreed-upon
     accommodations. Petition for Review (PFR) File, Tab 1.
¶8            In a performance-based action under chapter 43, an agency must establish
     by substantial evidence that:        (1) OPM approved its performance appraisal
     system; (2) the agency communicated to the appellant the performance standards
     and critical elements of his 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 his performance during the appraisal period and gave him a
                                                                                         5

      reasonable opportunity to improve; and (5) the appellant’s performance remained
      unacceptable in at least one critical element. Henderson v. National Aeronautics
      & Space Administration, 116 M.S.P.R. 96, ¶ 9 (2011); Lee v. Environmental
      Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). 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. § 1201.56(c)(1).
¶9         As noted, the administrative judge found, and the appellant does not dispute
      on review, that the agency met the first three elements of its burdens of proof.
      The appellant’s contention is that, although the agency warned him of the
      inadequacies   of his     performance   in   the   critical   elements   of   Program
      Administration Management and Planning, and Communications, he was not
      given a meaningful opportunity to improve.
¶10        The appellant’s assertions on review that issues with the MRSA software
      prevented him from being able to complete his duties in a timely manner are the
      same as those he advanced below.        The administrative judge addressed the
      appellant’s assertions.   She noted that the appellant claimed that the MRSA
      software was flawed and required adjustments to enter the data accurately. ID
      at 17-19. He claimed that the “work around” that his supervisor told him to use
      would not address the programming problem. ID at 18. As a result, he did not
      complete the data entry or complete a report concerning MRSA for any month of
      the 60-day PIP period. ID at 18. The administrative judge found that the agency
      did not dispute that the nationally distributed program that the appellant had to
      use during the PIP period did not interface seamlessly with the operations at his
      locality. ID at 18. However, she found that the appellant’s supervisor testified
      credibly that the “work around” she suggested to the appellant would have met
      his needs. ID at 18. The administrative judge also found that, on the other hand,
      the appellant’s testimony that the “work around” would not work was
                                                                                            6

      unsupported, as he admitted that he refused to try the “work around.”                ID
      at 18-19.
¶11           In his petition for review, the appellant argues that the Board should credit
      his testimony that the “work around” would not be effective over that of his
      supervisor in light of his familiarity with computers. PFR File, Tab 1 at 2-3. We
      find the appellant’s assertion unavailing. As the administrative judge correctly
      noted, the appellant failed to support his assertion that the “work around” would
      be ineffective for him to perform his duties and he refused to even try to use it.
      Under these circumstances, the appellant’s assertion based on his alleged
      expertise with computer programs amounts to mere disagreement with his
      supervisor’s credible testimony that the “work around” would have been effective
      and provides no basis to overturn the administrative judge’s finding in this
      regard.     See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
      2002)     (the   Board   must   defer   to   an   administrative   judge’s   credibility
      determinations when they are based, explicitly or implicitly, on the observation of
      the demeanor of witnesses testifying at a hearing; the Board may overturn such
      determinations only when it has “sufficiently sound” reasons for doing so).
¶12           Next, we find the appellant’s assertion on review, that the agency did not
      give him the assistance he was promised to clear up the backlog, is not
      persuasive.      As the administrative judge noted, during the PIP period and
      consistent with the accommodation request, the agency did provide the appellant
      temporary assistants to help him clear up his backlog. ID at 20-21 n.8. Further,
      the administrative judge found that, although the appellant claimed during the
      litigation of his appeal that the assistants were incompetent, he made no
      complaints about these employees during the PIP period. ID at 20. Under these
      circumstances, we agree with the administrative judge that any alleged
      deficiencies in the assistance that the agency provided the appellant did not leave
      him without a meaningful opportunity to improve his performance. ID at 22.
                                                                                        7

¶13           The appellant also contends that he was not provided the desk audit that was
      identified in his reasonable accommodation memorandum. PFR File, Tab 1. The
      memorandum approving the appellant’s accommodation request included a
      notation that he and his supervisor had described additional duties that had been
      given to the appellant over time. IAF, Tab 12, Exhibit A. The accommodation
      agreement provided that a request would be made for a desk audit to determine if
      the job duties of the appellant’s position description were accurate and current.
      Id. As the administrative judge noted, the appellant’s supervisor testified that she
      inquired about providing a desk audit to the appellant as was mentioned in the
      Approval of Accommodation Request, but she was advised that a desk audit was
      unnecessary and that instead it was appropriate to update the appellant’s position
      description to include that he was to prepare reports of CDI data each month. ID
      at 7.    However, during the PIP period, the appellant’s supervisor temporarily
      removed the appellant’s CDI reporting responsibilities, and, therefore, those
      responsibilities were not considered in the assessment of his performance during
      the PIP period. ID at 9. Under these circumstances, the appellant’s assertion that
      he was harmed in his ability to perform successfully during the PIP period
      because the agency did not provide a recommended desk audit is unavailing.
¶14           The appellant further contends that he proved his affirmative defense of
      disability discrimination because the agency failed to provide him the assistance
      to clear up the backlog and failed to provide him a desk audit. An agency is
      required to make a reasonable accommodation to the known physical and 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.     29 C.F.R. § 1630.9(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. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). To
                                                                                             8

      establish disability discrimination, 2 an employee must show that: (1) he is an
      individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a
      qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and
      (3) the agency failed to provide a reasonable accommodation. Id.
¶15         We agree with the administrative judge’s determination that the appellant is
      an individual with a disability as defined by 29 C.F.R. § 1630.2(g), i.e., an
      individual with a physical or mental impairment that substantially limits one or
      more of his major life activities. Assuming without deciding that the appellant
      also established that he is a qualified individual with a disability under 29 C.F.R.
      § 1630.2(m), i.e., that he can perform the essential functions of his position with
      or without reasonable accommodation, we conclude, for the reasons discussed
      above, that the appellant failed to establish that the agency violated its duty of
      reasonable accommodation when it allegedly failed to provide him assistance
      with the backlog and failed to provide the desk audit. As noted, the agency did
      provide the appellant with assistance in clearing up his work backlog pursuant to
      the reasonable accommodation memorandum. Additionally, as noted, the agency
      did not require that, during the PIP period, the appellant perform the additional
      duty of CDI reporting that a desk audit might have shown required further
      accommodation. Under the circumstances here, we find that the agency provided
      the accommodation of assistance with the backlog, and did not require that the
      appellant perform the duties during the PIP period that appear to have
      precipitated the requested accommodation of the desk audit.           Accordingly, we


      2
        As a federal employee, the appellant’s claim of disability d iscrimination arises under
      the Rehabilitation Act. However, the standards under the Americans with Disabilities
      Act (ADA) have been incorporated by reference into the Rehabilitation Act. 29 U.S.C.
      § 791(g). Further, the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325,
      122 Stat. 3553 (2008) (codified at 42 U.S.C. §§ 12101 et seq.), applies to this appeal
      because the incidents in question occurred after the January 1, 2009 effective date of
      the ADAAA. Although the ADAAA changed the interpretation of the law concerning
      the existence of a disability, it did not affect the legal requirements as to reasonable
      accommodation. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11 n. 4 (2012).
                                                                                  9

find that the administrative judge properly found that the appellant failed to prove
his affirmative defense of disability discrimination based on a failure to
accommodate. 3

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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
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.


3
   The appellant has not challenged, and we discern no basis to disturb, the
administrative judge’s finding that the appellant failed to prove his disability
discrimination claim based on disparate treatment.
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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
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.
