UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY J. FUSHIKOSHI,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

SF-0752-14-0599-I-1

DATE: October 29, 2015

THIS ORDER IS NONPRECEDENTIAL1

Anthony J. Fushikoshi, Wailuku, Hawaii, pro se.

Bradly Siskind, Esquire, Riverdale, Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross 

petition for review of the initial decision, which mitigated his 30-day suspension 

to a 7-day suspension. For the reasons discussed below, we GRANT the petition 

for review and DENY the cross petition for review. We AFFIRM the initial 

decision to the extent that it sustained specification three of the charge, found 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

nexus, and found that the appellant failed to prove his affirmative defenses, 

VACATE the initial decision to the extent that it failed to sustain specification 

two of the charge, and REMAND the case to the regional office for further 

adjudication in accordance with this Order. 

BACKGROUND

¶2 The appellant is a GS-11 Plant Production and Quarantine Officer with the 

agency, stationed at the Kahului Airport in Hawaii. Initial Appeal File (IAF), 

Tab 12 at 4, Tab 57 at 14. The agency proposed to suspend the appellant for 

30 days based upon three specifications of improper conduct. 2

 IAF, Tab 12 

at 25-27, 51-57. Specification one alleged that, on September 10, 2013, the 

appellant failed to report for duty as scheduled and was absent without leave 

(AWOL) for 8 hours. Id. at 51. Specification two alleged that on October 6, 

2013, the appellant failed to report for a 5-hour overtime assignment. Id. at 52. 

Specification three alleged that on February 8, 2014, the appellant was AWOL 

for 45 minutes when he failed to report for duty until a supervisor telephoned 

him and reminded him that he only had requested leave for a later part of the 

day. Id. at 25-26. 

¶3 After considering the appellant’s response to the notice of proposed 

suspension, the deciding official did not sustain specification one of the charge, 

but sustained specifications two and three, and found that a 30-day suspension 

was an appropriate penalty. Id. at 5-9, 14-24. 

¶4 The appellant filed a timely Board appeal challenging his suspension. 

IAF, Tab 1 at 3, 5. During the processing of the appeal, he failed to respond 

fully to the agency’s written discovery requests, even after the administrative 

judge granted in part the agency’s motion to compel. IAF, Tabs 19, 24, 36; 

 2 The agency issued both a proposed suspension and an addendum. IAF, Tab 12 

at 25-27, 51-57. For clarity, we refer to these documents, combined, as the notice of 

proposed suspension. 
3

see IAF, Tab 39 at 3. In addition, the appellant failed to cooperate in his 

deposition, file prehearing submissions, or appear for the scheduled prehearing 

conference.

3

 IAF, Tab 9 at 2-4, Tab 25 at 7, 18-19, Tab 26 at 1, Tab 28 at 9-10, 

17, Tab 36. 

¶5 The agency filed a motion for sanctions. IAF, Tab 28. The administrative 

judge ordered the appellant to respond to the motion and scheduled a conference 

call to discuss the status of the appeal. IAF, Tab 29. After the appellant failed 

to respond to the motion and appear for the conference call, the administrative 

judge issued an order to show cause, which informed the appellant that if he 

failed to demonstrate good cause for his refusal to comply with her orders, she 

either would cancel his hearing and issue a decision based on the written record 

or dismiss the appeal for failure to prosecute. IAF, Tab 36. 

¶6 After considering the appellant’s responses, in which he alleged, among 

other things, that he suffered from depression, stress, and memory loss, and 

lacked sufficient personal time to respond to discovery, the administrative judge 

sanctioned the appellant by canceling his requested hearing. IAF, Tab 37 at 3-4, 

Tab 40 at 4, Tab 50 at 1-2; see IAF, Tab 1 at 2. She afforded the parties an 

opportunity to submit additional evidence and argument before the close of the 

written record. IAF, Tab 50 at 5. In response, on November 1, 2014, the 

appellant filed a medical document, dated October 7, 2013, which indicated that, 

on October 6, 2013, the date of the overtime assignment at issue in specification 

 3 For the first time on review, the agency has submitted a complete transcript of the 

appellant’s attempted deposition, only a portion of which was included in the record 

below. Petition for Review (PFR) File, Tab 4 at 13-41, Tab 5; IAF, Tab 25 at 7-24. 

The agency has not explained why the complete transcript of the deposition, which 

predated the initial decision by several months, was previously unavailable despite due 

diligence. PFR File, Tabs 4-5; see 5 C.F.R. § 1201.115(d) (new evidence will be 

considered on review only if it was not available despite due diligence before the record 

below closed). Therefore, we have not considered any portions of the transcript that 

were not included in the record below. 
4

two, he was “unable to perform regular duties due to medical reasons.”4

IAF, Tab 51 at 10. 

¶7 After considering additional responses submitted by the appellant and the 

agency, IAF, Tabs 52-58, the administrative judge issued an initial decision 

sustaining the charge of improper conduct, which she construed as equivalent to 

an AWOL charge, IAF, Tab 59, Initial Decision (ID) at 4-8. 5

 However, she did 

not sustain specification two of the charge because she found that the October 7, 

2013 medical document that the appellant filed after the hearing was cancelled 

was administratively acceptable evidence that he was incapacitated for duty on 

October 6, 2013, and was sufficient to support his request for sick leave on that 

date. ID at 6-7; see Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9 

(2007) (finding that a charge of AWOL will not be sustained if an appellant 

presents administratively acceptable evidence that he was incapacitated for duty 

during the relevant period, provided that he has sufficient sick leave to cover the 

period of absence).

 4 Before the agency issued the notice of proposed suspension, the appellant provided the 

agency with a different medical document, also dated October 7, 2013, which indicated 

that he was seen at a medical practice on October 7, 2013, and that he required 

“supervision of healthcare needs” on October 6, 2013. IAF, Tab 12 at 52, Tab 13 at 13, 

24. In the notice of proposed suspension, the agency informed the appellant that such

medical documentation was insufficient to excuse his absence because it did not reflect

that he was incapacitated for duty on October 6, 2013. IAF, Tab 12 at 52. 

5 On review, the agency does not challenge the administrative judge’s characterization 

of the charge or argue that the charge should have been construed as a failure to follow 

leave procedures. See PFR File, Tabs 1, 4-5. Having reviewed the proposed 

suspension, we agree with the administrative judge that the improper conduct charge 

was equivalent to an AWOL charge. IAF, Tab 12 at 25-27, 51-57; see Alvarado v. 

Department of the Air Force, 103 M.S.P.R. 1, ¶ 22 (2006) (finding that a charge of 

improper conduct has no specific elements of proof, but is established by proving that 

the appellant committed the acts alleged in support of the charge); Atchley v. 

Department of the Army, 46 M.S.P.R. 297, 301 (1990) (holding that the Board is 

required to review the employing agency’s decision on an adverse action solely on the 

grounds invoked by the agency and may not substitute what it considers to be a more 

adequate or proper basis). 
5

¶8 The administrative judge further found that the appellant failed to establish 

his affirmative defenses of harmful error, discrimination on the basis of disability 

and age, and retaliation for prior protected equal employment opportunity (EEO)

and Board activity. ID at 8-16; see IAF, Tab 1 at 5, Tab 34 at 3, Tabs 35, 41. 

She held that discipline based on the appellant’s failure to report for work

promoted the efficiency of the service. ID at 16-17. However, she mitigated the 

30-day suspension to a 7-day suspension because, among other factors, the 

sustained misconduct involved only a single instance of 45 minutes of AWOL. 

ID at 17-19. 

¶9 The agency has filed a petition for review, the appellant has filed a response 

to the petition for review and cross petition for review, 6 and the agency has filed 

a combined reply and response to the cross petition for review. Petition for 

Review (PFR) File, Tabs 1-2, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency was prejudiced as an unintended consequence of the sanction 

imposed against the appellant.

¶10 On review, the agency argues that administrative judge erred in failing to 

sustain specification two of the charge. PFR File, Tab 1 at 5, 12-16, 21-23, Tab 4 

at 7-11. Specifically, the agency contends that the administrative judge abused 

her discretion in sanctioning the appellant by canceling his requested hearing. 

PFR File, Tab 1 at 16, 23. It argues that instead, she should have precluded the 

appellant from submitting additional evidence, including the October 7, 2013 

medical document that he filed at the close of the record below or, in the 

 6 Because the appellant alleges that the initial decision was incorrectly decided in part, 

we construe his filing as a cross petition for review. PFR File, Tab 2; see 5 C.F.R. 

§ 1201.114(a)(1)-(2). 
6

alternative, dismissed the appeal for failure to prosecute. 7 PFR File, Tab 1 

at 14-16, 21-23, Tab 4 at 7-11. 

¶11 We find that the administrative judge did not abuse her discretion in 

sanctioning the appellant by canceling the hearing. See IAF, Tab 50 at 2. An

administrative judge may impose various sanctions as necessary to serve the ends 

of justice. 5 C.F.R. § 1201.43. Once an administrative judge imposes a sanction, 

the Board ordinarily will not disturb such a determination unless it is shown that 

the administrative judge abused her discretion or that her ruling adversely 

affected a party’s substantive rights. Wagner v. Department of Homeland 

Security, 105 M.S.P.R. 67, ¶ 9 (2007). 

¶12 The Board’s regulations authorize an administrative judge to cancel a 

scheduled hearing as a sanction where an appellant engages in contumacious 

conduct or conduct prejudicial to the administration of justice. See 5 C.F.R. 

§ 1201.43(e); see also Hart v. Department of Agriculture, 81 M.S.P.R. 329, ¶ 5 

(1999) (finding that an appellant’s right to a hearing should not be denied as a 

sanction absent extraordinary circumstances). In the present case, the record 

reflects that the appellant repeatedly refused to cooperate in discovery and failed 

to comply with three separate orders issued by the administrative judge. See IAF, 

Tab 9 at 2-4, Tabs 19, 24, Tab 25 at 7-19, Tab 26 at 1, Tabs 28-29, 36, Tab 39 

at 3. The appellant’s assertions that he suffered from depression, stress, and 

 7 On review, the agency also claims that the administrative judge failed to rule on its 

second motion to compel regarding the appellant’s conduct during his deposition. PFR 

File, Tab 1 at 8, 16; IAF, Tab 25. We agree that an administrative judge is obligated to 

rule on motions filed by the parties. See Johnson v. U.S. Postal Service, 

37 M.S.P.R. 388, 392 (1988) (finding that an administrative judge’s failure to rule on a 

motion was error). However, after the agency filed the second motion to compel, the 

agency subsequently filed the motion for sanctions in which it argued, among other 

things, that the appellant should be sanctioned for his failure to cooperate in his 

deposition. IAF, Tab 28 at 4-7. It appears that the administrative judge construed the 

motion for sanctions as superseding the second motion to compel and in fact considered 

the appellant’s refusal to cooperate in his deposition when imposing sanctions. 

See IAF, Tab 50 at 2. Therefore, we find that the administrative judge did not err in 

failing to rule on the agency’s second motion to compel. 
7

memory loss, and lacked sufficient personal time did not establish good cause for 

his noncompliance and lack of cooperation. IAF, Tab 37 at 3-4, Tab 40 at 4. We 

find that, in light of the egregious and persistent nature of the appellant’s 

conduct, the administrative judge appropriately exercised her discretion in

sanctioning him by canceling his requested hearing. See Heckman v. Department 

of the Interior, 106 M.S.P.R. 210, ¶¶ 8-12 (2007) (determining that an 

administrative judge did not abuse her discretion in sanctioning an appellant by 

canceling his requested hearing when the appellant failed to comply with three

orders directing him to submit evidence or argument regarding his claims). 

¶13 We have considered the agency’s arguments on review that other 

administrative judges imposed more appropriate sanctions based upon conduct 

similar to the appellant’s. PFR File, Tab 1 at 22, Tab 4 at 7-8; see, e.g., Smets v. 

Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011) (declining to find that an 

administrative judge abused her discretion by precluding an appellant from 

submitting additional evidence regarding her claim of disability discrimination 

after she failed to comply with an order to appear for a deposition), aff’d, 498 F. 

App’x 1 (Fed. Cir. 2012); Williams v. U.S. Postal Service, 116 M.S.P.R. 377, 

¶¶ 9-12 (2011) (finding that dismissing an appeal for failure to prosecute after an 

appellant failed to comply with multiple orders was not an abuse of discretion). 

However, in light of the great deference afforded to administrative judges in 

selecting an appropriate sanction, we cannot conclude that the administrative 

judge abused her discretion in declining to impose such sanctions here, and 

instead electing to sanction the appellant by canceling the scheduled hearing. See 

Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010) (observing 

that the abuse of discretion is a very high standard and allows for great 

deference).

¶14 Although the administrative judge did not abuse her discretion, we agree 

with the agency that, as an unintended consequence of the sanction imposed by 

the administrative judge, the agency was prejudiced. PFR File, Tab 1 at 14-15, 
8

23. As a direct result of the appellant’s conduct during the processing of his 

appeal, the agency was deprived of the opportunity to question him regarding the

medical documentation he submitted after the hearing was cancelled. IAF, 

Tab 50 at 5, Tab 51 at 10; ID at 6-7. The medical documentation would have 

been responsive to several of the agency’s discovery requests.

8

 IAF, Tab 19 

at 31-33. The appellant does not dispute the agency’s assertion that he failed to 

produce the medical documentation in the normal course of discovery, or after he 

was ordered to do so by the administrative judge in response to the agency’s 

motion to compel. PFR File, Tab 1 at 14-15, Tab 2; IAF, Tab 24 at 2. The 

appellant’s failure to produce the documentation, in combination with his failure 

to cooperate in his deposition, precluded the agency from developing evidence 

that potentially would have enabled it to rebut the assertion that he was 

incapacitated for duty on the date at issue. See, e.g., IAF, Tab 23 at 19 (reflecting 

that the appellant’s attempted deposition concluded before the agency could 

question him regarding his absence on October 6, 2013). 

¶15 Notably, after the appellant filed the medical documentation, the agency 

argued that the documentation was inconsistent with a statement that the 

appellant made to his supervisor on October 6, 2013. IAF, Tab 57 at 5, 16-17, 29. 

The agency reiterates this argument on review. PFR File, Tab 1 at 12-13. Below, 

the agency submitted an affidavit from the appellant’s supervisor, which stated 

that on October 6, 2013, approximately 40 minutes after the appellant’s overtime 

assignment was scheduled to begin, he telephoned his supervisor, and stated that 

he “just woke up.” IAF, Tab 57 at 16. The administrative judge found that the 

medical documentation was not inconsistent with the appellant’s statement that he 

had overslept, because he described his symptoms as including physical 

exhaustion. ID at 7 n.1. However, the medical documentation did not indicate 

that the appellant suffered from exhaustion, and the agency was not afforded the 

 8 At a minimum, the medical documentation was responsive to requests for document 

numbers 1, 10, and 13. IAF, Tab 19 at 31-33.
9

opportunity to question the appellant regarding any potential inconsistencies

between the medical documentation and his statement to his supervisor.

9

 IAF, 

Tab 51 at 10. 

¶16 We find that, because the agency was denied the opportunity to develop the 

record regarding the documentation that the appellant relied on to rebut 

specification two of the charge, and the agency otherwise would have proven this 

specification, as an inadvertent consequence of the sanction imposed against the 

appellant, the agency’s substantive rights were adversely affected. See

Wagner, 105 M.S.P.R. 67, ¶ 9. Under the circumstances of this case, we conclude 

that it is in the interest of justice to afford the agency an opportunity to rebut the 

medical documentation submitted by the appellant. Accordingly, we vacate the 

administrative judge’s finding that the agency failed to sustain specification two 

of the charge, and remand the case to the regional office for the administrative 

judge to conduct a limited hearing on the subject of the medical documentation 

that the appellant filed on November 1, 2014. The scope of the hearing shall 

include, but not be limited to, the consistency of the medical documentation with 

the appellant’s prior statements to his supervisor. 10 In the event that the appellant 

fails to cooperate in this limited hearing, the administrative judge shall determine 

whether additional sanctions are appropriate. 11

 9 On review, the agency also argues that the medical documentation that the appellant 

filed on November 1, 2014, was not administratively acceptable evidence that he was 

incapacitated for duty because it did not specify the medical condition that caused him 

to be incapacitated. PFR File, Tab 1 at 13-14. Under the circumstance of the present 

appeal, we find this argument unpersuasive. The deciding official relied on nearly 

identical medical documentation, which also failed to specify the appellant’s diagnosis,

in finding that the appellant’s absence at issue in specification one should not be 

sustained. IAF, Tab 12 at 5, 50. 10 The agency’s arguments also possibly call into question the authenticity of the 

appellant’s November 1, 2014 medical documentation, an issue the administrative judge 

may wish to explore on remand. 

11 On review, the agency also argues that the administrative judge erred in mitigating 

the penalty to a 7 day suspension. PFR File, Tab 1 at 17-21. We have not addressed 
10

The appellant has failed to establish any basis for granting his cross petition for 

review.

¶17 On review, the appellant argues that his supervisor retaliated and 

discriminated against him when, among other things, he failed to sufficiently 

investigate the circumstances surrounding the charge prior to proposing the 

appellant’s suspension and took “negative action[s]” against him. PFR File, 

Tab 2 at 4-6. He provides no citations to the record to support his claims. Id. 

We find that these arguments do not establish a basis for disturbing the 

administrative judge’s conclusion that the appellant failed to establish his 

affirmative defenses of retaliation and discrimination. ID at 8-13; see Weaver v. 

Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (holding that, before the 

Board will undertake a complete review of the record, the petitioning party must 

explain why the challenged factual determination is incorrect and identify the 

specific evidence in the record that demonstrates the error).

¶18 Next, the appellant reiterates his argument, raised below, that the agency 

failed to provide him with an effective reasonable accommodation. PFR File, 

Tab 2 at 8; see IAF, Tab 35 at 5-6. An agency is required to provide reasonable 

accommodation to the known physical or mental limitations of an otherwise 

qualified individual with a disability unless the agency can show that 

accommodation would cause an undue hardship on its business operations.

Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). Reasonable 

accommodation includes modifications to the manner in which a position is 

customarily performed to enable a qualified individual with a disability to 

perform the essential job functions, or reassignment to a vacant position whose 

 

these arguments, as the administrative judge’s findings regarding the agency imposed 

penalty may be affected by the outcome of the limited hearing on remand. 
11

duties the employee can perform. 12 Id. The appellant bears the burden of 

proving that an accommodation that he seeks is reasonable. Id., ¶ 17. 

¶19 We agree with the administrative judge that the appellant failed to prove 

that the agency denied him a reasonable accommodation. See ID at 13-15. 

Although Plant Production and Quarantine Officers ordinarily rotate between day 

and night shifts, starting in 2009, the agency assigned the appellant to a regular 

tour of duty on the night shift as an accommodation for his depression. IAF, 

Tab 45 at 15, Tab 57 at 26. Subsequently, starting in 2013, the agency granted 

the appellant the accommodation of a regular schedule with fixed days off.13 

IAF, Tab 12 at 8, Tab 57 at 26. 

¶20 The agency was not required to provide the appellant’s requested 

accommodation of being allowed to report to work on an unscheduled basis. See

ID at 14; IAF, Tab 13 at 18. His duties as a Plant Production and Quarantine 

Officer include performing predeparture inspections, which require him to be 

present when flights are scheduled to conduct inspections so that aircrafts can 

depart on time. IAF, Tab 16 at 37, Tab 57 at 26. His requested accommodation 

of a flexible start time would require other employees to perform his duties for 

him to maintain on-time aircraft departures and, accordingly, would not be 

reasonable. See IAF, Tab 57 at 26; see also 29 C.F.R. § 1630.2(o)(1)(ii) 

(defining a reasonable accommodation to include a modification to the manner in 

which an employee performs work that enables the employee to perform the 

essential functions of the position). For similar reasons, we agree with the 

administrative judge that the agency was not required to call the appellant each 

 12 Here, the appellant has not established that any vacant, funded positions for which he 

was otherwise qualified were available. See Jackson v. U.S. Postal Service, 

79 M.S.P.R. 46, 53-54 (1998) (explaining that, in a disability discrimination claim, the 

appellant bears the ultimate burden of proving that vacant, funded positions for which 

he was otherwise qualified were available).

13 The appellant was the only Plant Production and Quarantine Officer with primary 

duties involving predeparture passenger and cargo inspection who was assigned a fixed 

schedule with regular days off. IAF, Tab 57 at 26.
12

day and remind him to come to work as a reasonable accommodation. ID

at 14-15. 

ORDER

¶21 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board