                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     OLAF OMARSON,                                   DOCKET NUMBER
                 Appellant,                          DC-0752-15-0675-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 10, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Olaf Omarson, Gaithersburg, Maryland, pro se.

           Laura L. Forest, 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
     affirmed 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                       BACKGROUND
¶2         The agency removed the appellant, a GS-14 Immigration Officer in the
     Fraud Detection and National Security unit of the agency’s Bureau of Citizenship
     and Immigration Services on a charge of unauthorized use of the Treasury
     Enforcement Communications System (TECS), which was supported by
     45 specifications. 2 Initial Appeal File (IAF), Tab 1; IAF, Tab 5 at 8-9, 24-29,
     38-45. He subsequently filed this appeal and did not request a hearing. IAF,
     Tab 1.   He stipulated to the agency’s charges but argued that the agency
     discriminated against him on the basis of his disability when it failed to
     accommodate his Obsessive Compulsive Disorder (OCD), Major Depressive
     Disorder, and Attention Deficit Hyperactivity Disorder (ADHD) medical
     conditions, which he conceded that neither he nor the agency were aware of prior
     to the agency proposing his removal. IAF, Tab 17 at 2-3; IAF, Tab 18. 3

     2
       TECS is a sensitive database through which certified agency personnel access several
     law enforcement information systems, for official use only and on a strict need-to-know
     basis. Initial Appeal File, Tab 5 at 8-9.
     3
       In response to the administrative judge’s prehearing conference summary, the
     appellant clarified that both he and the agency learned of his medical conditions
                                                                                          3

¶3         Citing the appellant’s stipulations to all of the specifications comprising the
     agency’s charge, as well as to a nexus with the efficiency of the service should
     misconduct be established, IAF, Tab 17 at 4, the administrative judge affirmed
     the appellant’s removal, finding that the deciding official considered the relevant
     Douglas factors and concluding that the penalty of removal did not exceed the
     bounds of reasonableness, IAF, Tab 25, Initial Decision (ID) at 8-11.              The
     administrative judge also rejected the appellant’s affirmative defense of disability
     discrimination, finding that, because the agency issued the notice of proposed
     removal before either party knew of the appellant’s medical conditions, it
     could not have taken the action because of any actual or perceived impairment,
     and the record did not reflect that the appellant had informed the agency of a
     reasonable accommodation that would allow him to perform the duties of his
     position. ID at 14.
¶4         In his timely filed petition for review, the appellant argues that he does not
     need his Top Secret security clearance, which the agency suspended in light of its
     investigation into the misconduct at issue, IAF, Tab 8 at 47-48, 4 in order for him
     to access TECS because that system does not contain classified information,
     Petition for Review (PFR) File, Tab 1 at 5. He contrasts his unblemished use of
     other, Top Secret databases with his “impulsive use of TECS” which he maintains
     was the result of his then-unknown and undiagnosed OCD, ADHD, and major
     depression. Id. He contends that the agency learned of his medical conditions
     before making its final decision to remove him and that it therefore should have
     considered his mental conditions a mitigating circumstance in making that
     determination. Id. The appellant also reiterates his claim that the agency could


     following the issuance of the notice of proposed removal. IAF, Tabs 17-18. The
     administrative judge accurately described the appellant’s stipulation in his analysis.
     IAF, Tab 24 at 14.
     4
       The agency’s report of investigation into the appellant’s misconduct is spread across
     two tabs: IAF, Tab 7 at 30-118 and IAF, Tab 8 at 4-47.
                                                                                      4

     have accommodated him without undue hardship by assigning him to a position
     that did not require the use of TECS.      Id. at 5-7.   The agency responds in
     opposition. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        As noted above, the appellant stipulated to all of the agency’s specifications
     and to the element of nexus should the administrative judge find misconduct.
     IAF, Tab 17 at 4; ID at 8-9.      The appellant’s stipulation that he accessed
     information in TECS without authorization is sufficient to prove the charge of
     misusing TECS. E.g., Anderson v. Tennessee Valley Authority, 77 M.S.P.R. 271,
     275 (1998) (explaining that parties may stipulate to any matter of fact and the
     stipulation will satisfy a party’s burden of proving the fact alleged); 5 C.F.R.
     § 1201.63.   Accordingly, we agree with the administrative judge and find no
     reason to disturb his finding that the agency proved its charge and that a nexus
     exists between the appellant’s misconduct and the efficiency of the service.
¶6        We also agree with the administrative judge that the appellant failed to
     establish his affirmative defense of disability discrimination.      ID at 11-15.
     Assuming the appellant’s misconduct was, as he contends, a manifestation of his
     alleged disabling conditions of OCD, ADHD, and major depression, neither the
     Rehabilitation Act of 1973 nor the Americans with Disabilities Act of 1990
     (ADA) immunize disabled employees from being disciplined for misconduct in
     the workplace, provided the agency would impose the same discipline on an
     employee without a disability. E.g., Laniewicz v. Department of Veterans Affairs,
     83 M.S.P.R. 477, ¶ 5 (1999). Although we concur with the administrative judge’s
     determination that the agency did not take the action at issue because of an actual
     or perceived impairment, ID at 14, even if it had done so, a disabled employee
     is not “immunize[d]” from discipline for misconduct, provided that “the agency
     would impose the same discipline on an employee without a disability.”
     Fitzgerald v. Department of Defense, 85 M.S.P.R. 463, ¶ 12 (2000) (observing
                                                                                         5

     that an agency is never required to excuse a disabled employee’s violation of a
     uniformly applied, job-related rule of conduct, even if the employee’s disability
     caused the misconduct).       Further, because agencies have a duty to provide
     accommodation only to “otherwise qualified” employees, agencies have no
     obligation to accommodate employees who have committed misconduct because,
     as a result of their misconduct, they are not “otherwise qualified” employees. 5 Id.
     Moreover, the appellant failed to show that the agency would not have imposed
     the same discipline on an employee without a disability who committed the
     same misconduct.
¶7           Finally, we agree with the administrative judge that the penalty of removal
     is well within the bounds of reasonableness.       ID at 11.   As noted above, the
     appellant’s stipulation to the specified misconduct is sufficient to sustain the
     charge, and under such circumstances the Board will review the agency’s choice
     of penalty only to determine if it considered all the relevant factors and exercised
     management discretion within tolerable limits of reasonableness.          Douglas v.
     Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The administrative judge
     found that the deciding official considered all the relevant factors, concluding
     that, in light of the direct relationship between the appellant’s admitted
     misconduct and his duties and the clear notice he had that such behavior was
     prohibited, the aggravating factors far outweighed any mitigating factors present.
     ID at 9-10; IAF, Tab 5 at 26-27. In his petition for review, the appellant argues
     that the agency should have considered his previously undiagnosed mental
     conditions a mitigating circumstance in making its decision.        PFR File, Tab 1
     at 5.


     5
       Although 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.), changed the
     interpretation of the law concerning the definition of a disability, the ADAAA did not
     affect the requirements of the law as to reasonable accommodation. See Davis v. U.S.
     Postal Service, 119 M.S.P.R. 22, ¶ 11 n. 4 (2012).
                                                                                         6

¶8        Evidence that an employee’s medical condition “played a part in the
     charged conduct is ordinarily entitled to considerable weight as a significant
     mitigating factor.” Roseman v. Department of the Treasury, 76 M.S.P.R. 334,
     345 (1997); see, e.g., Robb v. Department of Defense, 77 M.S.P.R. 130, 137
     (1998).    In circumstances where the medical conditions are reasonably
     substantiated, and shown to be related to the grounds for removal, they must be
     considered in the penalty analysis.      E.g., Norris v. Securities & Exchange
     Commission, 675 F.3d 1349, 1356-57 (Fed. Cir. 2012). Nevertheless, contrary to
     the appellant’s contentions on review, the deciding official explicitly considered
     the appellant’s arguments in this regard and found them insufficient to mitigate
     the penalty. IAF, Tab 5 at 27. The administrative judge acknowledged this, ID
     at 8, and we agree with him that the seriousness of the proven misconduct,
     especially considering the length of time over which it repeatedly occurred and
     the appellant’s disregard for the clear notice which the agency provided that such
     behavior   was   prohibited,   demonstrated poor     rehabilitative   potential   and
     significantly outweighed the mitigating factors of his long record of satisfactory
     service and his medical impairment, ID at 9-11.

                      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 U.S. 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
                                                                                 7

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 U.S. 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
                                                                            8

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




FOR THE BOARD:                         ______________________________
                                       Jennifer Everling
                                       Acting Clerk of the Board
Washington, D.C.
