                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 7

                              Docket No. DA-0752-13-0313-I-1

                                      Ty K. Sanders,
                                         Appellant,
                                             v.
                           Department of Homeland Security,
                                          Agency.
                                      January 15, 2015


                 Ty K. Sanders, Cedar Key, Florida, pro se.

                 Lisa M. Ezra, Laredo, 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 petitioned for review of an initial decision that reversed its
     action removing the appellant for inability to perform the essential duties of his
     position.   For the reasons discussed below, we AFFIRM the initial decision
     insofar as it found that the appellant failed to prove his affirmative defense of
     reprisal for protected equal employment opportunity (EEO) activity and
     REVERSE it insofar as it reversed the agency’s removal action. We find that the
     agency proved by preponderant evidence that the appellant was unable to perform
                                                                                          2

     the essential duties of his position and that his removal promotes the efficiency of
     the service.

                                       BACKGROUND
¶2         The appellant was a Customs and Border Protection Officer (CBPO).
     Following an incident at work on August 3, 2011, the agency rescinded the
     appellant’s authority to carry a firearm and ordered him to undergo physical and
     psychiatric fitness-for-duty evaluations.      Initial Appeal File (IAF), Tab 16
     at 283-84, 290, 293-94, 297. 1 The appellant was examined by Dr. Brian Skop,
     who is certified in general and forensic psychiatry.        Hearing Transcript (HT)
     at 8-9. Dr. Skop conducted a general medical and mental health history with the
     appellant and asked him questions about the events he believed precipitated the
     fitness-for-duty evaluation.     Id. at 13.    Dr. Skop observed the appellant’s
     behavior through cognitive testing and conducted psychological testing using the
     Minnesota Multiphasic Personality Inventory (MMPI) 2, a standard psychological
     test that looks for significant mental health issues and personality styles.        Id.
     at 13-14. Dr. Skop concluded that the appellant was unable to work in a stressful
     law enforcement environment and that he was not fit for duty.            Id. at 26-27.
     Dr. Paul Prunier, a consulting psychiatrist for the agency, reviewed Dr. Skop’s
     report and its supporting medical documentation and several memoranda and


     1
       According to the agency, the appellant approached his and another supervisor on
     August 3, questioned them about why they did not enforce all federal and state laws,
     and demanded that they provide him with a written list of the laws he should enforce.
     IAF, Tab 16 at 283, Tab 7 at 4. Both supervisors indicated that the appellant was
     visibly upset. IAF, Tab 7 at 4. A few minutes later, the appellant returned with a
     detainee and began to ask questions of one of the supervisors. The supervisor provided
     guidance, and the appellant responded by asking, “Should I shoot him first . . . ?” Id.
     In a previous incident on May 18, 2011, when the appellant’s supervisor addressed the
     significance of professionalism when interacting with the general public in the course
     of a mid-year performance review, the appellant stated that he was a “target” for the
     traveling public because of his race and ethnicity and added: “I am willing to take on
     the entire Mexican army by myself, but unable to take on both sides alone.” Id.
                                                                                          3

     emails concerning the appellant’s behavior.       HT at 143, 147-50; IAF, Tab 16
     at 281-87.     Dr. Prunier, who also has significant experience assessing agency
     employees, reached the same conclusion as Dr. Skop—that the appellant was not
     fit for duty. HT at 145-46; IAF, Tab 7 at 18-19.
¶3         The agency proposed the appellant’s removal based on a charge of inability
     to perform the essential duties of his position, and a decision was issued on
     June 4, 2012, sustaining the removal effective the following day. IAF, Tab 7
     at 4-7; Tab 8 at 13-16. 2 While the subsequent appeal was pending in the Board’s
     Dallas Regional Office, the appellant was examined by Dr. Michael Gower and
     Dr. Tonia Werner, forensic psychiatrists at the University of Florida.            IAF,
     Tab 31.      In their August 2013 report, they provided a brief summary of the
     documents they reviewed, including, among other things, Dr. Skop’s psychiatric
     evaluation of the appellant, Dr. Prunier’s psychiatric consultant report, the
     appellant’s position description, emails and letters regarding the appellant’s
     conduct on August 3, 2011, and information from two of the appellant’s mental
     health providers dated November 27, 2011, and March 1, 2012.                   See id.
     Drs. Gower and Werner found that the appellant did not suffer from any
     diagnosable mental illness and that he was fit for duty. Id. at 17, 19.
¶4         After conducting a hearing, the administrative judge found, among other
     things, that the “new medical evidence shows that the appellant has recovered
     from the condition that previously prevented him from performing the duties of
     his position” and reversed the removal action on that basis. IAF, Tab 34, Initial
     Decision (ID) at 8-9.      In so finding, the administrative judge credited the
     University of Florida report over the testimony of Dr. Prunier, concluding that
     there “is no objective, identifiable basis that would, in this instance, entitle


     2
      The agency’s proposal notice cited five workplace incidents, in addition to the May 18
     and August 3, 2011 incidents, which it found to indicate rude and unprofessional
     behavior. IAF, Tab 7 at 4.
                                                                                         4

     Prunier’s opinion to more weight than the opinion of Werner at the University of
     Florida.”   ID at 7.   The administrative judge further found that the appellant
     failed to prove his affirmative defense that the removal action was reprisal for
     protected EEO activity. ID at 8-9.
¶5        The agency has filed a timely petition for review in which it asks the Board
     to sustain its removal action.     Petition for Review (PFR) File, Tab 1.         The
     appellant filed a timely response and also filed what he styled as a “petition for
     enforcement” regarding the agency’s alleged failure to provide interim relief as
     ordered in the initial decision. 3 PFR File, Tabs 3-4.

                                          ANALYSIS
     The agency complied with its interim relief obligations.
¶6        When an initial decision provides an appellant with interim relief, an
     agency’s petition for review must be accompanied by a certification that the
     agency has complied with the interim relief order, either by returning the
     appellant to duty or by making a determination that the appellant’s return to duty
     would be unduly disruptive. 5 U.S.C. § 7701(b)(2)(A); 5 C.F.R. § 1201.116(a);
     see Hodges v. Department of Justice, 121 M.S.P.R. 337, ¶ 17 (2014); see also
     Lavette v. U.S. Postal Service, 96 M.S.P.R. 239, ¶ 12 (2004). If an agency fails
     to provide the required certification with its petition for review, the Board may
     dismiss the agency’s petition on that basis; however, it is not required to do so.
     Hodges, 121 M.S.P.R. 337, ¶ 17; see 5 C.F.R. § 1201.116(e).
¶7        The September 13, 2013 initial decision in this appeal ordered that, in the
     event that a petition for review was filed, the agency was to provide the appellant


     3
       The appellant also asked the Board to dismiss the agency’s petition for review as
     untimely filed. PFR File, Tab 3. Although the original filing deadline was October 18,
     2013, this was extended by 16 days, until Monday, November 4, because of the
     government-wide shutdown. Accordingly, the agency’s November 4 petition for review
     filing was timely filed.
                                                                                        5

     interim relief in accordance with 5 U.S.C. § 7701(b)(2)(A), effective the date of
     the initial decision and continuing until the Board issued a final decision in the
     appeal. ID at 10-11. The agency submitted an interim relief certification with its
     petition for review, in which the Director of Field Operations for the appellant’s
     work station submitted a Standard Form 52 showing that the appellant would be
     restored to a pay and benefit status as ordered in the initial decision. PFR File,
     Tab 1 at 29-31. The Director stated that he had determined not to return the
     appellant to work during the pendency of the appeal on the ground that his
     presence would be unduly disruptive.       Id. at 29.     About 6 weeks after this
     certification, the appellant filed what he styled as a petition for enforcement of
     the interim relief order in which he said he had not yet received any interim relief
     pay or benefits.    PFR File, Tab 4.      In its responsive pleading, the agency
     described delays in processing the appellant’s pay and benefits but presented
     evidence that it had started processing back pay and benefits starting from
     August 9, 2013.    PFR File, Tab 5 at 6, 34, 47.        In his amended petition for
     enforcement, the appellant conceded that he had been provided interim relief pay
     and benefits from August 9, 2013, forward, but argued that he was due back pay
     from June 5, 2012, the effective date of his removal. PFR File, Tab 6.
¶8        The statute provides for the award of interim relief “effective upon the
     making of the [initial] decision, and remaining in effect pending the outcome of
     any petition for review . . . .”    5 U.S.C. § 7701(b)(2)(A).     Accordingly, the
     agency was required to provide pay and benefits starting on September 13, 2013,
     the date on which the initial decision was issued. 4 As there does not appear to be


     4
       The agency commenced the provision of interim relief effective August 9, 2013,
     approximately a month earlier than required by the initial decision. PFR File, Tab 1
     at 29, Tab 5 at 34. We assign no significance to this error. See Lavette, 96 M.S.P.R.
     239, ¶ 14 (declining to dismiss a petition for review where the agency exceeded the
     relief ordered by the initial decision); see also Hardison v. Department of the Navy,
     103 M.S.P.R. 147 (2006) (same).
                                                                                           6

     any dispute that the agency has provided the required interim relief, we deny the
     appellant’s request for relief in this regard. 5 Because the agency has provided the
     required interim relief, we will consider the agency’s arguments regarding its
     removal action.
     The Board will consider post-removal medical evidence that is probative of
     whether, during the pendency of the Board appeal, the appellant continues to
     suffer from a medical condition that prevents him from performing the essential
     functions of his position.
¶9         In reversing the removal action on the ground that new medical evidence
     showed that the appellant was able to perform the duties of his position, the
     administrative judge relied on a line of precedent that began with Street v.
     Department of the Army, 23 M.S.P.R. 335 (1984). ID at 2-3. These cases hold
     that, even where an agency proves by preponderant evidence that the appellant
     was unable for medical reasons to perform the duties of his position when he was
     removed, the removal action will be reversed on the basis that such action does
     not promote the efficiency of the service if, during the pendency of the Board
     appeal, the appellant presents new medical evidence showing that he has
     recovered such that he is able to perform the essential duties of his position. See,
     e.g., Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 8 (2013); Morgan v. U.S.
     Postal Service, 48 M.S.P.R. 607, 610-13 (1991); Street, 23 M.S.P.R. at 340-43. 6
     In a recent case, the Board stated that this line of precedent applies “where the


     5
      The Board’s regulations do not provide for petitions for enforcement of interim relief
     orders; such petitions apply only to final Board decisions. 5 C.F.R. § 1201.182(a). The
     Board’s regulations do allow an appellant to challenge an agency’s certification that it
     has provided interim relief. 5 C.F.R. § 1201.116(b). We have therefore considered the
     appellant’s pleadings in this regard under section 1201.116.
     6
       The agency argues that the Street/Morgan line of cases should not be applied to
     agency removal actions based on psychiatric reasons because psychiatric assessments
     are less definitive. PFR File, Tab 1 at 20-21. The agency cites nothing to support its
     theory that actions based on psychiatric conditions should be viewed differently, and we
     discern no reason to do so.
                                                                                       7

      evidence clearly and unambiguously demonstrates that the appellant has
      recovered during the pendency of a Board appeal such that he is able to perform
      the essential duties of his position.”      Wren v. Department of the Army,
      121 M.S.P.R. 28, ¶ 6 (2014). The Board noted that this line of precedent was
      consistent with a then-recent decision by our reviewing court in which the court
      ruled that the Board must consider new, post-removal evidence in mitigation of
      the penalty that was not before the deciding official. Id., ¶ 8 (citing Norris v.
      Securities & Exchange Commission, 675 F.3d 1349 (Fed. Cir. 2012)).
¶10        This case is not on all fours with the Street/Morgan line of precedent in that
      the post-removal medical report issued by Drs. Gower and Werner does not
      “clearly and unambiguously” find that the appellant recovered from the
      psychiatric conditions noted in the original reports issued by Drs. Skop and
      Prunier. See Wren, 121 M.S.P.R. 28, ¶ 6. It does, however, indicate that at the
      time of Drs. Gower and Werner’s August 2013 assessment of the appellant, he
      did not suffer a psychiatric condition, including those identified in Drs. Skop’s
      and Prunier’s assessment.      Because this is probative, but not necessarily
      dispositive, evidence of whether the appellant currently suffers from a psychiatric
      condition, we conclude that the Street/Morgan doctrine applies and the evidence
      should be considered.

      The agency proved by preponderant evidence that the appellant was unable to
      perform the essential duties of his position.
¶11        The administrative judge did not cite any particular legal standard or test
      for determining whether the agency proved its charge that the appellant was
      unable to perform the essential duties of his position.      The Board has held,
      however, that where an employee occupies a position with medical standards or
      physical requirements and the finding that he was unable to perform was based on
      medical history, the agency is required to show the following in order to establish
      a charge of physical inability to perform: (1) the disabling condition itself is
      disqualifying; (2) its recurrence cannot be ruled out; and (3) the duties of the
                                                                                       8

      position are such that a recurrence would pose a reasonable probability of
      substantial harm. Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 8
      (2014); see 5 C.F.R. § 339.206.      The appellant’s CBPO position had physical
      requirements, and thus the standard set forth above is applicable. IAF, Tab 16
      at 180-83.
¶12         Doctors Skop and Prunier presented a consistent and persuasive account for
      their conclusion that the appellant was not currently fit for duty.       Dr. Skop
      diagnosed the appellant as having symptoms of an adjustment disorder with
      anxiety, found that he had narcissistic and obsessive/compulsive personality
      traits, and determined that there were indicators of possible substance abuse. HT
      at 21-22. Dr. Skop explained these diagnoses and how they were affecting the
      appellant’s ability to perform the duties of his position as follows:
            [A]n adjustment disorder is a maladaptive reaction to stress and
            (indiscernible) that might lead to . . . increased acting out behaviors,
            such as some of the sarcasm that isn’t perhaps merited in some of the
            memorandum. It appears it probably led him to get a prescription for
            Valium, which is an anxiolytic that can impact a person’s ability to
            perform their [sic] duties. So those are the main ways that I was
            concerned.
            ...
            [I]t appeared to me, through reading the memorandum and through
            the psychological testing, that he was prone to get angry quickly,
            that he maybe was not very flexible with working with others, and
            that that would impair his duty performance.
      Id. at 22-23.
¶13         Regarding the results of the MMPI-2 psychological test, Dr. Skop testified
      that the appellant was “somewhat guarded and defensive, that he is emotional—
      out of control and was notable for being excitable, that impulse control can be a
      problem. He can be quick tempered, and he had a history of angry acting out.”
      HT at 23. Dr. Skop testified that he was particularly “worried about the poor
      anger modulation, difficulty working with others, interfering with the teamwork
      that is necessary to effectively carry out law enforcement duties.” Id. at 24-25.
                                                                                      9

      Regarding the appellant’s ability to carry a government-issued firearm, Dr. Skop
      testified that:
             I had concerns about that, as well as the psychological testing that I
             was reflecting him having a quick temper. And agitating people that
             were crossing as civilians, as well as coworkers, I thought that that
             might potentially lead to escalation of the situation that might, you
             know, lead to imprudence with him potentially.
      HT at 25.
¶14         In addition, the record shows that the appellant was prescribed controlled
      substances, including Hydrocodone and Diazepam. IAF, Tab 31 at 12-13. He
      also drinks three to four glasses of wine 4 to 5 days a week. Id. at 14. The
      record further shows that CBPOs are required, as a condition of their
      employment, to work unscheduled work hours or overtime. HT at 42 (testimony
      of deciding official); IAF, Tab 16 at 182 (“The essential duties and tasks are
      performed indoors and outdoors throughout the day and night”; “Due to the
      unique function of the job, the Officer may work extended or unscheduled
      hours.”).
¶15          Dr. Skop testified that the appellant’s drinking and use of prescription
      medication would interfere with the requirement that he work unscheduled hours
      or overtime:
             A. I had concerns about that based on the medications he was on and
             his drinking, drinking two to three drinks per night, and also
             intermittently taking Valium and [H]ydrocodone, both of which are
             sedatives.
             Q. And why would that prevent him from performing unscheduled
             work or overtime?
             A. Well, basically, if there was an emergency or they needed to call
             him in in the middle of the night, he would be under the influence of
             these drugs. It would slow his reaction time down, make it difficult
             for him to safely operate a vehicle, or, you know, typical with
             alcohol intoxication (indiscernible) where people don’t necessarily
             use the restraint that they would have when sober.
      HT at 26.
                                                                                              10

¶16         After reviewing the same materials as Dr. Skop, Dr. Prunier reached very
      similar conclusions. Regarding the results of the MMPI-2 psychological testing,
      he testified as follows:
             Mr. Sanders was somewhat guarded and defensive, and portrayed
             himself as functioning at an excellent level, because he’s minimizing
             problems or trying to manage impressions. That he reported that he
             has used alcohol excessively. And, in addition, for a number of
             other statements in that section, including difficulties with impulse
             control, where Dr. Frederick says that the testing indicated that
             impulse control can be a problem, that Mr. Sanders is quick
             tempered, and he has a history of angry acting-out, that he has angry
             responses to perceived slights, and that he has a history of acting out
             against authority, that he is easily annoyed. And most importantly,
             that he is likely to continue to demonstrate the same level of
             impulsiveness as he has in recent years.
      HT at 156. Emphasizing that the duties of a CBPO are “very demanding and
      stressful,” Dr. Prunier testified that:
             It’s a weapon-carrying position that requires somebody to be on task
             and on target at all times, to be under good emotional control and to
             be stable. Because the hours are long and unpredictable, and people
             are working in hazardous positions, it further exacerbates the
             difficulty of performing these kind of duties. And in addition, the
             position requires, really, that an individual be able to work very
             closely with others and make the risk-assessment decisions quickly
             and accurately.
             The various things that Dr. Frederick noted in the MMPI-2 data,
             along with the data that Dr. Skop determined in the process of his
             evaluation, in my mind indicated that Mr. Sanders is unable to
             perform the duties of that position in the manner that I described.
      Id. at 157. Dr. Prunier also expressed concern about the appellant’s alcohol use. 7
      Id. at 169-71.


      7
        The administrative judge stated that he “must discount [Dr.] Prunier’s assessment
      because, at least in his hearing testimony, he presented conflicting opinions about the
      appellant . . . . He testified that the appellant’s inability to control his anger can make
      him violent, and this is an imminent risk of danger to himself or others . . . . Later in
      his testimony, he stated that the appellant’s ‘unfitness’ was not based on a propensity to
                                                                                           11

¶17         As discussed above, Drs. Gower and Werner examined the appellant in
      August 2013, and found that he did not suffer from a psychiatric condition. Their
      professional assessment is worthy of consideration but must be viewed in light of
      the fact that, although they were provided the position description for the CBPO
      position, there is no indication in the record that they were experienced in
      assessing law enforcement officers in general or CBPOs in particular.                In
      contrast, Dr. Skop and Dr. Prunier each had a great deal of experience evaluating
      applicants for and employees in the CBPO position.             In fact, Dr. Skop has
      performed 30 to 40 fitness-for-duty examinations for Customs and Border
      Protection.   HT at 11.       Likewise, Dr. Prunier has completed about 8,000
      preemployment fitness-for-duty consultations and 750 to 800 fitness-for-duty
      consultations on current employees at Customs and Border Protection. Id. at 146.
      They are thus intimately familiar with the essential duties of the CBPO position.
¶18         In addition to Drs. Skop’s and Prunier’s greater experience in assessing the
      psychiatric conditions of CBPOs, we note that the University of Florida doctors
      did not address Drs. Skop’s and Prunier’s concerns about the effect of the
      appellant’s alcohol and prescription drug use on his ability perform his duties.
      This omission is significant because of the legitimate concern that, because of his
      alcohol and prescription drug use, the appellant would be unable to comply with
      the requirement that he be available to work unscheduled hours during an
      emergency or in the middle of the night. 8


      violence and that the appellant is not an immediate risk to himself or others.” ID at 7.
      We have reviewed Dr. Prunier’s testimony in its entirety. At no point did he testify or
      suggest that the appellant posed an imminent risk of danger to himself or others. See
      HT at 141-206. Dr. Prunier acknowledged Dr. Skop’s opinion that the appellant’s
      immediate risk of danger to himself or others was low, but not nonexistent, and added
      that his imbibing alcohol and taking prescription medication would exacerbate the risk.
      Id. at 157-60. Thus, we discern no basis to discount Dr. Prunier’s testimony.
      8
        The Special Panel has recently ruled that, for purposes of determining whether an
      agency has failed to accommodate a disability as required under the Rehabilitation Act,
      working substantial overtime and/or the graveyard shift are not “essential functions” of
                                                                                            12

¶19         In sum, while Drs. Gower and Werner’s post-removal medical evidence is
      probative and thus must be considered, after carefully weighing the totality of the
      evidence, we conclude that the agency proved by preponderant evidence that the
      appellant’s condition disqualifies him from his CBPO position, its recurrence
      cannot be ruled out, and the duties of the CPBO position are such that a
      recurrence would pose a reasonable probability of harm. Thus, we find that the
      appellant is physically unable to perform the duties of his position. 9

      The removal penalty does not exceed the tolerable limits of reasonableness.
¶20         We have recently observed that the Douglas factors do not apply in an
      adverse action based on inability to perform because of the nondisciplinary nature
      of the agency action. Brown, 121 M.S.P.R. 205, ¶ 18. The standard to be applied
      in such cases is whether the penalty of removal exceeded the “tolerable limits of
      reasonableness.” Id. (citing 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)). When,
      as here, an employee cannot perform the essential duties of his position, the
      Board must generally examine whether the agency has any vacant positions



      the CBPO position. Alvara v. Department of Homeland Security, 121 M.S.P.R. 613,
      ¶¶ 5-15, 45-46 (2014). That holding does not affect the correct disposition in this case,
      as there is no claim of failure to accommodate a disability. Working unscheduled hours
      during an emergency or in the middle of the night is a requirement for the CPBO
      position, and the appellant’s ability to comply with that requirement is properly
      considered in determining whether his removal for inability to perform was proper.
      9
        In its petition for review, the agency contends that the Board must give deference to
      an agency’s determination that an employee does not meet the fitness-for-duty
      standards of a position because “the [a]gency is in a better position than the [B]oard to
      determine whether medical evidence supports or disproves an employee’s ability to
      properly perform the essential duties of his position.” PFR File, Tab 1 at 14-15. In
      support of its position, the agency cites the Federal Circuit’s decision in Lachance v.
      Devall, 178 F.3d 1246, 1251-52 (Fed. Cir. 1999), in which the court found that the
      Board must give deference to an agency’s penalty determinations. Id. at 15-17. We are
      unaware of a Board or Federal Circuit decision holding that the Board must defer to an
      agency’s determination of an employee’s medical ability to perform the essential duties
                                                                                           13

      within the employee’s restrictions to which the employee could be assigned. See
      Brown, 121 M.S.P.R. 205, ¶ 19. The Board has recognized an exception to this
      general rule when the employee has refused to cooperate with the agency’s
      attempts to accommodate the employee. Id.
¶21            Here, the record shows that the agency offered the appellant the opportunity
      to apply for any available positions for which he might qualify, including outside
      of his current commuting area. IAF, Tab 6 at 17. The appellant rejected this
      offer.     Id. at 20.    Accordingly, the agency did explore the possibility of
      reassigning the appellant to another position, but he rebuffed the agency’s
      effort. 10 Under these circumstances, we find that the removal penalty does not
      exceed the tolerable limits of reasonableness.

                                              ORDER
¶22            This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).
                         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 his position. The agency does not cite any such authority for that proposition in its
      petition for review. See PFR File, Tab 1.
      10
         Neither Dr. Skop nor Dr. Prunier expressed the view that the appellant was unable to
      perform the essential duties of the CBPO position on a permanent basis. See HT
      at 26-27 (Dr. Skop); IAF, Tab 7 at 18-19 (Dr. Prunier). However, Dr. Prunier observed
      that he saw no indication that the appellant had made any efforts to engage in anger or
      stress management therapy, as recommended by Dr. Skop. HT at 181.
                                                                                   14

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
                                                                          15

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
