UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL LUCON FAVREAU,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-0752-12-0547-I-6

DATE: March 9, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

David P. Clisham, Esquire, San Francisco, California, for the appellant.

David Michael Tucker and Douglas W. Hales, Fort Hunter Liggett, 

California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed the appeal as moot. Generally, we grant petitions such as this one only 

when: the initial decision contains erroneous findings of material fact; the initial 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

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 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. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED by 

this Final Order, we AFFIRM the initial decision.3 

BACKGROUND

¶2 At the time of the removal action upon which this appeal is based, the 

appellant was employed as a Police Officer, GS-0083-06, by the U.S. Army 

Installation Management Command, Directorate of Emergency Services, 

Police/Provost Marshall Division, Law Enforcement Branch, Camp Parks, 

California. Favreau v. Department of the Army, MSPB Docket No. SF-0752-12-

0547-I-1, Initial Appeal File (IAF), Tab 5, Subtab 4a. The appellant entered on 

duty on November 11, 2007. Id., Subtab 4n. The vacancy announcement for his 

position required the incumbent to “have or be able to complete an approved Law 

Enforcement Academy training within 24 months from the date of employment,” 

and Army Regulation 190-56 imposed a requirement to attend “accredited” 

academy training unless such requirement was waived. Id., Subtabs 4k, 4o. 

Local management sought a training waiver for the appellant, but the agency’s 

Office of the Provost Marshal General denied the waiver request and also an 

 

3 We modify the initial decision to address the issue of disability discrimination de 

novo. 
3

appeal of the denial because the appellant lacked sufficient recent law 

enforcement experience. Id., Subtab 4i. Based on his inability to obtain the 

waiver and his failure to attend academy training within 2 years of his original 

hire date, the agency removed the appellant effective January 1, 2011. Favreau v. 

Department of the Army, MSPB Docket No. SF-0752-11-0273-I-1 (Favreau I), 

Initial Decision (ID) at 2-4 (Feb. 3, 2012). 

¶3 The appellant appealed the removal, which the administrative judge 

reversed on the ground of a due process violation. Favreau I ID at 1, 16. 

However, the administrative judge found that the appellant did not prove any of 

his affirmative defenses. Favreau I ID at 16. The Board affirmed the 

administrative judge’s decision, and the agency restored the appellant effective 

January 1, 2011. Favreau I Final Order (Feb. 21, 2014). 

¶4 The appellant returned to duty on February 26, 2012. On February 27, 

2012, the agency issued a Notice of Proposed Removal, proposing his removal for 

failure to maintain a basic condition of employment. IAF, Tab 5, Subtab 4f. The 

appellant was removed effective April 30, 2012, and he filed this appeal. Id., 

Subtab 4c; IAF, Tab 1. 

¶5 At the parties’ request, the administrative judge dismissed this appeal 

without prejudice five times4 while the parties awaited the Board’s decision in 

Favreau I and tried to settle the appeal before resuming adjudication. On the first 

day of the hearing, the parties entered into settlement discussions. Favreau v. 

Department of the Army, MPSB Docket No. SF-0752-12-0547-I-6, Refiled Appeal 

File, (I-6 RAF), Tab 41, Initial Decision (I-6 ID) at 3. The parties did not reach a 

settlement, but the agency rescinded the removal and returned the appellant to 

duty on May 18, 2015. I-6 RAF, Tab 11 at 16. The agency moved to dismiss the 

 

4

The administrative judge’s several initial decisions dismissing the appeals without 

prejudice are as follows: IAF, Tab 12; Favreau v. Department of the Army, MPSB 

Docket Nos. SF-0752-12-0547-I-2, Refiled Appeal File, Tab 4; SF-0752-12-0547-I-3,

Refiled Appeal File, Tab 7; SF-0752-12-0547-I-4, Refiled Appeal File, Tab 41; 

SF-0752-12-0547-I-5, Refiled Appeal File, Tab 9.
4

appeal, arguing that it was moot because the appellant had been returned to his 

prior duties and he had been provided all of the relief to which he would have 

been entitled had he prevailed. I-6 RAF, Tabs 8, 13-15. The administrative judge 

held the second day of the hearing to address issues related to the agency’s 

obligation to provide the appellant with full relief and to hear evidence and 

argument regarding the appellant’s affirmative defenses of disability 

discrimination and retaliation for engaging in equal employment opportunity 

(EEO) activity. I-6 RAF, Tabs 21, 30, 33. 

¶6 In an initial decision, the administrative judge found that the agency 

showed by preponderant evidence that it had completely rescinded the appellant’s 

removal and granted him full relief in the matters related to his reinstatement, 

back pay, and benefits. I-6 ID at 5-18. The administrative judge found that the 

appellant failed to prove his affirmative defenses of discrimination and 

retaliation. I-6 ID at 18-28. Because the appellant would not be able to receive 

damages based on these defenses, and the agency provided all the other relief to 

which he was entitled, the administrative judge declined to rule on the appellant’s 

affirmative defenses of retaliation for union activity, harmful procedural error, 

and denial of minimum due process. I-6 ID at 28. The administrative judge 

likewise declined to consider the appellant’s whistleblower claim. I-6 ID

at 28-29. He found the appellant’s claim for attorney fees to be premature. 

I-6 ID at 18. The administrative judge thus dismissed the appeal as moot. I-6 ID

at 29-30. The appellant filed this petition for review. Petition for Review (PFR) 

File, Tab 3. 

Applicable Law

¶7 An agency’s rescinding a final decision divests the Board of jurisdiction 

over an otherwise appealable action if the agency returns the appellant to the 

status quo ante. In such cases, the appeal is rendered moot. Ryan v. Department 

of the Air Force, 117 M.S.P.R. 362, ¶ 9 (2012) (stating that an appeal is rendered 

moot when an appellant receives all of the relief that he could have received if the 
5

matter had been adjudicated and he had prevailed). An appealable adverse action 

cannot be rendered moot by an agency’s rescinding the action unless the 

employee has received all the back pay to which he is entitled. Sredzinski v. U.S. 

Postal Service, 105 M.S.P.R. 571, ¶ 7 (2007). Additionally, an agency must 

remove all references to such action from the employee’s personnel records when 

it cancels an action. Gonzales v. U.S. Postal Service, 44 M.S.P.R. 517, 

519-20 (1990). 

Reinstatement

¶8 Here, the administrative judge found in the initial decision that the 

appellant, by his own admission, was reinstated to the status quo ante because he 

was returned to the same GS-0083-06 position he occupied before his removal, 

and after he completed the required police academy training, he was assigned the 

full duties of that position. I-6 ID at 6. The appellant argues that he should not 

have been required to complete the police academy training before returning to 

the position. PFR File, Tab 3 at 5-7, 10. He asserts that, had he prevailed on 

appeal, he would have been found to have met the conditions of employment and 

would not have been required to attend the academy. Id. at 10. He argues that 

the administrative judge’s findings “ratif[y] the [a]gency’s failure to regard [him] 

as having prevailed on his appeal.” Id. He additionally points out that local 

management testified that he had met the training requirements for his position 

when he was hired. Id. at 7-8. 

¶9 We find that, whether local managers and the appellant believed his prior 

training was sufficient, he nevertheless completed additional police academy 

training after his reinstatement and was fully reinstated to the duties of his 

position. Hearing Transcript (HT) (April 8, 2016) at 124-26 (testimony of the 

appellant). The Board cannot grant him any further relief in this respect. 
6

Special Assignments

¶10 The appellant argued on appeal that he was not reinstated to two special 

assignments in which he served before his removal: unit armorer and traffic 

accident investigator. Based on undisputed testimony, the administrative judge 

found that these were merely collateral duties to which he was assigned, which 

were “neither permanent nor intrinsic to [his] position as a police officer.” I-6 ID

at 7-9. The administrative judge further noted that the appellant had not been 

certified to serve as a traffic investigator, no permanent position had been funded 

for these assignments, and the armorer position was entirely informal in nature. 

I-6 ID at 8. The appellant argues on review that he should have been reinstated to 

these collateral duties. He asserts that the initial decision adopts the agency’s 

position on the issue, and its failure to reassign him to these “appointments” 

constitutes continuing animus against him. PFR File, Tab 3 at 11-12. 

¶11 We find that the administrative judge did not err in determining that these 

assignments were collateral duties. In fact, the appellant admitted that the unit 

armorer duties were collateral in nature. Id. at 11; see also Favreau v. 

Department of the Army, MPSB Docket No. SF-0752-12-0547-I-5, Refiled Appeal 

File (I-5 RAF), Tab 34 at 12. Moreover, the appellant’s traffic investigator duties 

could have been only collateral because the agency was not authorized to fill a 

permanent Traffic Investigator position. HT (April 8, 2016) at 14-18, 25 

(testimony of the Emergency Services Director); I-5 RAF, Tab 32 at 47-49. 

Further, the appellant lacked the specialized training required to fill a permanent 

Traffic Investigator position. HT (April 8, 2016) at 14-20 (testimony of the 

Emergency Services Director); I-5 RAF, Tab 32 at 48. The appellant’s arguments 

are thus unavailing. 

Promotion

¶12 Next, the administrative judge found that the appellant failed to 

nonfrivolously allege facts clearly establishing that he would have been promoted 

during the period of his absence from May 1, 2012, through May 15, 2015, or that 
7

such a promotion was mandated by law. I-6 ID at 9-10. The administrative judge 

particularly noted that the appellant had not completed the required police 

academy training at the time during which any promotional opportunity might 

have arisen. Id.; see Harris v. Department of Agriculture, 50 M.S.P.R. 686, 697 (1991) 

(holding that, in the absence of a law requiring a promotion or facts establishing a 

clear entitlement to a retroactive promotion, an employee is not automatically 

entitled to a promotion upon reinstatement). The administrative judge found that, 

at best, the appellant was simply asserting that he should have been selected o ver 

other persons in various competitive promotion opportunities that arose during 

the relevant time period. I-6 ID at 10. 

¶13 On review, the appellant reiterates the argument he made during the 

compliance proceedings related to Favreau I—that lesser-qualified individuals 

were hired or promoted to higher-graded positions during his absence. PFR File, 

Tab 3 at 12-13; Favreau v. Department of the Army, MSPB Docket No. SF-0752-

11-0273-C-2, Compliance Initial Decision at 11-12 (May 6, 2016); Favreau v. 

Department of the Army, MSPB Docket No. SF-0752-11-0273-C-2, Compliance 

Petition for Review File, Tab 1 at 10-11. These matters relate to the time period 

before the appellant’s April 2012 removal and not to the post-removal period that 

would be relevant in the instant appeal.5 We find, therefore, that the appellant 

has not shown that he would have been promoted, or any promotion would have 

been mandated by law, during the period following his second removal. 

Back Pay

¶14 In addition, the administrative judge found that the appellant had been paid 

all of the back pay owed to him for the period between May 1, 2012, and May 16, 

2015. I-6 ID at 10-12. On review, the appellant asserts that he cannot be sure he 

received all such pay because the agency’s information rega rding back pay was 

 

5

The administrative judge noted that the appellant raised several issues regarding 

agency actions prior to his April 2012 removal. The administrative judge found that 

these issues were beyond the scope of this appeal. I-6 ID at 10 n.2. 
8

confusing, incomplete, and inaccurate. PFR File, Tab 3 at 13-15. He further 

asserts that the agency did not provide him with timesheets to verify that he was 

awarded back pay for the pertinent pay periods. Id. at 14. 

¶15 In reaching his decision, the administrative judge relied on an affidavit from 

the civilian branch chief at the Defense Finance and Accounting Services (DFAS) 

who processed the appellant’s back pay award. I-6 ID at 10-12. The affidavit 

describes in detail the processing of the award. Favreau v. Department of the 

Army, MPSB Docket No. SF-0752-12-0547-I-5, Refiled Appeal File (I-5 RAF), 

Tab 13 at 22-25. The administrative judge additionally relied upon a 

DFAS-generated spreadsheet, which shows the number of regular and overtime 

hours, special payments, night differentials, holiday pay, and the hourly rate for 

each pay category for every pay period for which an award was made. Id.

at 27-33. The record also includes a copy of the appellant’s leave and earnings 

statement for November 12, 2015, which shows that he received the back pay 

award. Id. at 19-20. The record additionally includes a sworn statement from the 

supervisory official responsible for ensuring that the appellant’s back pay was 

processed correctly. She explained that she had prepared timesheets for the back 

pay period and presented them to the appellant for his consideration. I-5 RAF, 

Tab 7 at 8-10. She appended related email messages to her statement. We find 

that these messages indicate that the appellant, despite his argument to the 

contrary, received and reviewed the applicable timesheets. Id. at 11-18. The 

appellant’s argument that he did not receive all of the back pay the agency owed 

him is thus unavailing. 

Overtime Pay

¶16 The administrative judge found, moreover, that the method the agency used 

for computing the appellant’s overtime during the back pay period was reasonable 

and workable. I-6 ID at 13-16. The administrative judge was not persuaded by 

the appellant’s assertion that the agency should have matched his average 

overtime earnings for 2008 and 2009 when calculating his overtime for the period 
9

from May 1, 2012, to May 15, 2015. The administrative judge determined that 

the amount of available overtime changed from year to year based on multiple 

factors, including the agency’s budget and the willingness of other personnel to 

work overtime. Id. He further determined that the policy authorizing overtime 

pay for changing into and out of uniform at the beginning and ending of shifts, 

i.e., “donning and doffing” pay, was not implemented until May 3, 2015, the last 

pay period prior to the appellant’s return to duty, and the appellant had been paid 

appropriately for that pay period. I-6 ID at 16. The administrative judge found 

that the appellant’s other assertions about the agency’s overtime pay practices 

were vague and unsupported. Id. 

¶17 On review, the appellant argues that the administrative judge erred in 

upholding the agency’s calculation of overtime based on his “wrongful relegation 

to the status of ‘security guard’ beginning in March 2010.” PFR File, Tab 3 

at 15. The appellant contends that he had completed two police academies prior 

to entering on duty, had been “routinely instructed . . . to engage in law 

enforcement activities as a police officer despite the erroneous designation of 

security guard,” and was still paid as a police officer. Id. He argues that his 

overtime should have been calculated based on his service as a police officer 

during 2008 and 2009, and not by averaging the overtime that other employees 

earned during his absence. Id. at 15-16. 

¶18 Agency regulations, however, allow for “[t]he method of computing 

overtime . . . [to] be based on the average number of overtime hours worked by 

fellow employees occupying similar positions during the same period.” 

Department of Defense (DOD) Financial Management Regulation 

(FMR) 7000.14-R, vol. 8, ch. 6, ¶ 060404D. Noting that overtime can vary 

greatly for a variety of reasons, the agency acknowledged that the appellant’s 

overtime hours dropped significantly after he was assigned to security guard 

duties. I-5 RAF, Tab 13 at 7-8. The agency further acknowledged that the 

average number of overtime hours was likely insufficient to compensate the 
10

appellant at the rate of overtime pay he received as a police officer prior to 2010. 

Id. at 7. For these reasons, the agency explained, it matched the appellant’s 

overtime pay to that of the top earner in each calendar year. Id. at 7-8. The 

Board will not nullify the method employed by an agency in calculating a back 

pay award absent a showing that the method was unreasonable or unworkable. 

Broadnax v. U.S. Postal Service, 35 M.S.P.R. 219, 226 (1987). The appellant has 

not made such a showing, and, in any event, we agree with the administrative 

judge’s assessment that the agency’s approach was both reasonable and workable. 

I-6 ID at 15-16. 

Deductions for Interim Earnings

¶19 The administrative judge further found that the agency properly deducted 

$35,796.83 from the back pay award, representing the appellant’s interim 

earnings during 2012 through 2014, because these earnings did not constitute 

additional or “moonlight” employment under 5 C.F.R. § 550.805(e)(1). I-6 ID

at 16-18. The agency asserted that the appellant’s earnings as a security guard 

with his interim employer, Strategic Threat Management, did not represent 

additional or “moonlight” employment because his superiors specifically directed 

him to stop such work in 2008. I-5 RAF, Tab 13 at 9. Agency regulations 

provide that the “only earnings from other employment that may not be deducted 

from back pay are earnings from outside employment the employee already had 

before the period of wrongful suspension or separation.” DOD, FMR 7000.14 -R, 

vol. 8, ch. 6, ¶ 060405C.

¶20 On review, the appellant argues that his interim earnings should not have 

been deducted as they constituted work as a security guard, and not as a police 

officer. PFR File, Tab 3 at 16. The appellant contends that the agency’s 

rescinding his removal meant he had prevailed on appeal and that the agency was 

required to have allowed him outside or “moonlight” employment before his 

removal. Id. The appellant has not shown, however, that he could or would have 
11

worked at his outside employment had he not been removed. See Weber v. 

Department of Justice, 88 M.S.P.R. 345, ¶ 11 (2001). Interim employment must 

be in the same position as the pre-removal outside employment, and it must have 

been approved by the agency. Id. It is undisputed that the agency forbade the 

appellant from working as a security guard for Strategic Threat Management. 

I-5 RAF, Tab 15, Subtab 6 at 37. The appellant was only able to work at 

Strategic Threat Management because he had been removed. Further, rescinding 

the appellant’s removal has no bearing on this issue. As the appellant admitted in 

his affidavit, the agency ordered him not to work as a security guard in 2008 

because it posed a conflict of interest with his agency employment. I-5 RAF, 

Tab 15 at 37. 

Disability Discrimination

¶21 When the Board reverses a case on due process grounds without reaching 

the merits of the underlying action, it must nevertheless render a decision on the 

affirmative defense of disability discrimination. Favreau I ID at 16; see 5 U.S.C. 

§ 7702(a)(1); Schibik v. Department of Veterans Affairs, 98 M.S.P.R. 591, ¶ 11 

(2005); Marchese v. Department of the Navy, 32 M.S.P.R. 461, 464 (1987), 

overruled on other grounds by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294

(2014). The administrative judge made findings on the appellant’s discrimination 

claims in Favreau I. Favreau I ID at 26-31. The administrative judge concluded 

that the appellant failed to prove that either of his claimed impairments 

substantially limited one or more major life activities. Id. at 28-29. The Board 

affirmed the initial decision without modifying those findings. Favreau I Final 

Order at 2. 

¶22 In the instant appeal, the appellant reasserted his affirmative defense of 

disability discrimination. Favreau v. Department of the Army, MPSB Docket 

No. SF-0752-12-0547-I-3, Refiled Appeal File (I-3 RAF), Tab 28 at 13-20. He 

alleged that his removal constituted disability discrimination based on disparate 

treatment and the agency’s failure to accommodate his disability. I-3 RAF, 
12

Tab 20 at 14. Relying on the findings in Favreau I, the administrative judge 

found the appellant’s discrimination claim to be barred by collateral estoppel. I-6 

ID at 21-22. The administrative judge found that the issue of whether the 

appellant was a qualified person with a disability was identical to the issue 

already litigated in Favreau I, the determination on that issue was necessary to 

the resulting judgment, and the appellant was fully represented. 6 I-6 ID at 22. 

¶23 The administrative judge also considered the appellant’s claim that the 

agency’s action was motivated at least in part by the proposing official’s 

perception that he was disabled and thus unable to meet the physical requirements 

for attending police academy training after he proffered the results of an 

alternative to the physical agility test (PAT) required for admission to the 

academy. I-3 RAF, Tab 28 at 17. Without relying on the doctrine of collateral 

estoppel, the administrative judge rejected the appellant’s claim that the agency 

regarded him as disabled on grounds similar to the Board’s rejecting the same 

claim in Favreau I. I-6 ID at 22-23; Favreau I Final Order at 11-12. 

¶24 On review, the appellant asserts that the administrative judge should not 

have relied on the doctrine of collateral estoppel because the second removal 

action was separate and distinct from the first removal action; that is, the deciding 

official and some of the evidence was different, additional evidence was available 

establishing that his prior police academy courses met the training requirements 

for his position, and he had passed an alternative PAT, which qualified him to 

 

6

The elements of collateral estoppel are as follows: (1) the issue must be identical to 

that involved in the prior action; (2) the issue was actually litigated in the prior action; 

(3) the determination on the issue in the prior action was necessary to the resulting 

judgment; and (4) the party against whom issue preclusion is sought had a full and fair 

opportunity to litigate the issue in the prior action, either as a party to the earlie r action 

or as one whose interests were otherwise fully represented in that action. 

Kavaliauskas v. Department of the Treasury, 120 M.S.P.R. 509, ¶ 5 (2014). The 

appellant objected to the administrative judge’s citing these cases, asserting that they 

are factually inapposite. PFR File, Tab 3 at 19. We cite these cases not for their 

factual similarity to the instant appeal, but, instead, because they articulate the standard 

for determining whether collateral estoppel may apply. 
13

attend the police academy. PFR File, Tab 3 at 19-20. He also reiterates his 

assertion that the agency’s action was motivated in part by the proposing 

official’s perception that he was disabled. Id. at 17-18. The appellant 

additionally argues that the administrative judge failed to address the issue of 

whether he had a record of an impairment that substantially limited one or more 

major life activities. Id. at 17; see 42 U.S.C. § 12102(1). 

¶25 We agree with the administrative judge’s application of the doctrine of 

collateral estoppel. Alternatively, though, assuming arguendo that the appellant 

is correct in arguing that the administrative judge erred in not reviewing his 

discrimination allegations as to the second removal, as the record is complete on 

this issue we may consider this claim now. The appellant’s claim arises under the 

Rehabilitation Act of 1973. Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, 

¶ 8 (2010). The Board adjudicates claims of disability discrimination raised in 

connection with an otherwise appealable action under the substantive standards of 

section 501 of the Rehabilitation Act. Pridgen v. Office of Management and 

Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with 

Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 

(ADAAA), have been incorporated by reference into the Rehabilitation Act and 

the Board applies them to determine whether there has been a Rehabilitation Act 

violation. Id.

¶26 The ADAAA prohibits discrimination “against a qualified individual on the 

basis of disability in regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee compensation, job training, 

and other terms, conditions, and privileges of employment.” 42 U.S.C. 

§ 12112(a); Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 18 

(2010). The ADAAA defines “qualified individual,” in part, as “an individual 

who, with or without reasonable accommodation, can perform the essential 

functions of the employment position that such individual holds or desires.” 

42 U.S.C. § 12111(8). An employer is also required to provide reasonable 
14

accommodations to an otherwise qualified individual with a disability. 42 U.S.C. 

§ 12112(b)(5). Thus, both a claim of disability discrimination based on an 

individual’s status as disabled and a claim based on an agency’s failure to 

reasonably accommodate that disability require that the individual be “qualified.” 

Haas v. Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29.

¶27 An individual may prove that he has a disability by showing that he suffers 

from a physical or mental impairment that substantially limits one or more major 

life activities; has a record of such impairment; or is regarded as having such 

impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An impairment is 

considered a disability if it substantially limits an individual’s ability to perform 

a major life activity as compared to most people in the general population. 

29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include, but are not limited to, 

caring for oneself, performing manual tasks, eating, lifting, bending, 

concentrating, communicating, and working. 29 C.F.R. § 1630.2(i)(1)(i). Major

life activities also include the operation of major bodily functions. 29 C.F.R. 

§ 1630.2(i)(1)(ii). 

¶28 Whether an impairment substantially limits a major life activity requires an 

individualized assessment. 29 C.F.R. § 1630.2(j)(1)(iv). Although not every 

impairment will be limiting, an impairment need not prevent, or significantly or 

severely restrict, the individual from performing a major life activity to be 

considered substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ii). An impairment 

that substantially limits one major life activity need not limit other major life 

activities. 29 C.F.R. § 1630.2(j)(1)(viii). An impairment that is episodic or in 

remission is a disability if it would substantially limit a major life activity when 

active. 29 C.F.R. § 1630.2(j)(1)(vii). Determining whether an impairment 

substantially limits a major life activity shall be made without regard to the 

ameliorative effects of mitigating measures other than ordinary eyeglasses or 

contact lenses. 29 C.F.R. § 1630.2(j)(1)(vi). 
15

¶29 The appellant has not presented any evidence of disability other than the 

evidence he presented in Favreau I. He has alleged two impairing conditions: 

hypertension, diagnosed in 2008, which requires him to take daily medication and 

prevents him from running for more than a mile, and a 2010 shoulder injury, 

which prevents him from being able to perform more than five pushups. I-3 RAF, 

Tab 20 at 11-12, Tab 28 at 13-14; HT (April 8, 2016) at 108 (testimony of the

appellant). He cited March 10, 2010 and November 3, 2010 medical clearance 

letters as evidence that he suffered from the shoulder condition and that he could 

perform the essential functions of the position. I-3 RAF, Tab 28 at 14, 54-55, 60. 

The November 2010 clearance letter was addressed in Favreau I. Favreau I ID 

at 28. The appellant did not document his hypertension diagnosis at all, and the 

November 2010 clearance letter specifies that his condition was temporary and 

his prognosis for recovery was good. I-3 RAF, Tab 28 at 54-55. He alleged only 

that the shoulder injury affected his ability to do pushups. Id. at 14. The 

appellant thus has not shown that either claimed impairment substantially limited 

his ability to perform any major life activity. For the same reason, he has not 

shown that he has a record of having an impairment that substantially limited his 

ability to perform any major life activity. 

¶30 As for the appellant’s assertion that the agency failed to grant reasonable 

accommodations for his conditions, PFR File, Tab 3 at 18, an agency is required 

to provide such accommodations for the known physical and mental limitations of 

an otherwise qualified individual with a disability unless the agency can show 

that an accommodation would create an undue hardship for its business 

operations. 29 C.F.R. § 1630.9(a). Reasonable accommodations include 

modifications to the manner in which the duties of a position are 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). Even if the appellant had established that he suffered from or had a 

record of suffering from a substantially limiting impairment to his shoulder, he 
16

would not have been entitled to an accommodation under the regulations in effect 

at the time of his removal because his impairment was not a long-term condition. 

I-3 RAF, Tab 28 at 54-55. Under the rules then in effect, individuals with 

temporary medical restrictions were exempt from the PAT only for the duration 

of the restrictions. I-5 RAF, Tab 15 at 44. Furthermore, had the agency regarded 

the appellant as disabled, it would not have been obligated to provide a 

reasonable accommodation because he did not have a substantially limiting 

impairment. Carter v. Department of Justice, 88 M.S.P.R. 641, ¶ 24 (2001); 

29 C.F.R. § 1630.2(o)(4) (a covered entity is not required to provide a reasonable 

accommodation to an individual who meets the definition of disability solely 

under the “regarded as” prong).

¶31 Because the appellant is not a qualified individual with a disability, he also 

failed to prove his claim that the agency discriminated against him based on his 

disability. Moreover, we find that he has not shown that his disability was a 

motivating factor in the agency’s removal decision. To analyze a claim of 

disability discrimination based on disparate treatment, the Board first determines 

whether the appellant has shown by preponderant evidence that the prohibited 

consideration was a motivating factor in the contested personnel action, and, if 

so, whether the agency has shown by preponderant evidence that it would have 

taken the contested action in the absence of the discriminatory motive. Pridgen, 

2022 MSPB 31, ¶¶ 35, 37, 40.

7

¶32 The appellant has not put forward any evidence to show that the removal 

action was motivated by the impairments he alleges to be disabling or by any 

perceived disability. Instead, the agency’s sole stated rationale for the removal 

action was his failure to attend police academy training. Neither the proposal 

 

7 Because we affirm the administrative judge’s finding that the appellant failed to show

that any prohibited consideration was a motivating factor in the agency’s actions, we

need not resolve the issue of whether the appellant proved that discrimination or

retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB

31, ¶¶ 20-22, 29-33.
17

notice nor the decision notice mention his medical conditions. IAF, Tab 5, 

Subtabs 4c, 4f; cf. Southerland, 119 M.S.P.R. 566, ¶¶ 16, 22 (finding that the 

deciding official’s statements in the decision letter regarding the appellant’s 

inability to fulfill the full range of his duties owing to his medical condition

constituted direct evidence of a discriminatory motive), overruled on other 

grounds by Pridgen , 2022 MSPB 31, ¶¶ 44-47. In his deposition, the deciding 

official stated that he based his decision to remove solely on the appellant’s 

failure to attend or waive the police academy attendance requirement. I-5 RAF, 

Tab 37 at 11-12. He explained that he knew of the appellant’s shoulder injury, 

but the injury did not factor into his removal decision. Id. at 12. Additionally, 

the proposing official and agency chain of command supported the appellant’s 

request for a waiver of the academy training requirement, as the Board also 

observed in Favreau I. Favreau I Final Order at 12. 

¶33 Accordingly, we find that the administrative judge correctly applied the 

doctrine of collateral estoppel to the appellant’s disability discrimination claim. 

Alternatively, we find that the appellant failed to establish his affirmative defense

of disability discrimination.

Retaliation

¶34 The administrative judge also found the appellant’s claim that the agency 

had retaliated against him for prior EEO activity to be moot because he had not 

claimed any compensatory damages arising from the alleged retaliation. I-6 ID

at 24. In the alternative, the administrative judge found that the appellant failed 

to meet his burden of proving that the agency removed him in retaliation for his 

prior EEO activity. I-6 ID at 24-28. 

¶35 On review, the appellant objects to the latter finding. PFR File, Tab 3 

at 16-20. He has, however, offered no direct evidence and only scant 

circumstantial evidence of retaliation. Certainly, suspicious timing is not evident 
18

here.8 As the administrative judge noted, the activities that the appellant alleges 

underlay the retaliation predate the January 2011 removal action, and some date 

from 2007 and 2008. I-3 RAF, Tab 20 at 83-87. The appellant also offered no 

evidence that the deciding official knew about his EEO activity. The deciding 

official stated under oath that, in his limited interactions with the proposing 

official, he did not recall talking about the appellant. I-5 RAF, Tab 37 at 10. We 

thus find the appellant’s claim of retaliation to be unavailing. In any event, 

because he has not requested damages, the issue is moot as the administrative 

judge correctly explained in the initial decision. I-6 ID at 24.

Attorney fees

¶36 Finally, the appellant argues that he has not received the attorney fees to 

which he is entitled as a prevailing party. He argues that he has not had an 

opportunity to request fees in the first instance, and dismissal on grounds of 

mootness appears to be intended to deprive the Board of jurisdiction to consider 

his request for fees. Potential recovery of attorney fees, however, does not 

prevent the dismissal of an appeal as moot. Murphy v. Department of Justice, 

107 M.S.P.R. 154, ¶ 6 (2007). The Board considers attorney fees in an addendum 

proceeding after an appellant files a separate petition on that issue. See 5 C.F.R. 

§§ 1201.201-.205. 

¶37 Accordingly, we affirm the initial decision, except as modified by this Final 

Order. 

 

8 Circumstantial evidence includes evidence of suspicious timing, ambiguous statements 

oral or written, behavior toward or comments directed at other employees in the 

protected group, and other bits and pieces from which an inference of discriminatory 

intent might be drawn. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 

(2015), overruled in part by Pridgen, 2022 MSPB 31, ¶¶23-25. It also includes 

comparator evidence and evidence that the agency’s stated reason for its action is 

pretextual. Id. 
19

NOTICE OF APPEAL RIGHTS9

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situ ation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

9

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
20

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
21

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. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
22

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 10 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

 

10 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
23

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board