UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

OLAF OMARSON,

Appellant,

v. 

DEPARTMENT OF HOMELAND 

SECURITY,

Agency. 

DOCKET NUMBER

DC-0752-15-0675-I-1

DATE: August 10, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board