UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DERIK F. HALLER,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

CB-7121-20-0002-V-1

DATE: September 4, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Heidi R. Burakiewicz, Esquire, and Robert DePriest, Esquire, Washington, 

D.C., for the appellant.

Megan E. Gagnon, Esquire, Detroit, Michigan, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 The appellant has filed a request for review of an arbitration decision that

sustained the agency’s decision to remove him. For the reasons discussed below,

we GRANT the appellant’s request for review under 5 U.S.C. § 7121(d),

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
REVERSE the arbitrator’s finding that the agency proved its charge, and ORDER

the agency to cancel the appellant’s removal. 

BACKGROUND

¶2 The appellant was employed as a cartographer, GS-12, with the U.S.

Customs and Border Protection, Office of Border Patrol. Request for Review

(RFR) File, Tab 7 at 108. Part of his duties required him to respond to requests to

provide cartographic, analytical, and data management services, advice

and support, and to do so on immediate deadlines. Id. at 110-11. On

November 7, 2017, following a series of attendance and leave-related issues, the

agency issued the appellant a leave restriction memorandum requiring him to

submit a Standard Form (SF) 71 with a medical certificate for all sick leave

requested due to illness, and informing him of what he was required to obtain in

order for his medical documentation to be deemed satisfactory. Id. at 125-27.

Specifically, the memorandum required that the appellant’s medical

documentation include his name, a statement that he was incapacitated for duty

and why reporting for duty was inadvisable, the nature of the incapacitation, the

duration of incapacitation and dates of office visits, and a physician’s signature,

address, and telephone number. Id. at 126-27. The memorandum also informed

him that, if necessary, additional information may be requested in support of any

final decision to approve or deny leave. Id. at 127. It stated that the requirements

would be effective for 6 months. Id. at 126. Approximately 6 months later,

following more attendance and leave-related issues, the agency extended the

requirements of the November 7, 2017 memorandum. Id. at 149. 

¶3 On Friday, July 6, 2018, the appellant called his supervisor stating that he

did not feel well and requesting sick leave for the day. RFR File, Tab 6 at 140

(testimony of the appellant), Tab 7 at 161. The supervisor provisionally granted

the appellant’s sick leave request and reminded him of the requirement that he

provide acceptable medical documentation to support his absence. RFR File,

2
Tab 7 at 162. On Monday, July 9, 2018, the appellant again requested sick leave

and was reminded of the requirement to provide acceptable medical information

for both his July 6 and July 9 absences. Id. On July 10, 2018, the appellant

called his supervisor stating that he was still ill, had medical documentation

supporting his requests for sick leave, and had been diagnosed with an ear

infection. Id. 

¶4 The next day, July 11, 2018, the appellant reported for duty and provided

his supervisor with medical documentation from an urgent care facility, wherein a

Certified Nurse Practitioner (CNP) indicated that the appellant had been seen in

her urgent care facility on July 9, 2018, and requested that he be excused from

work on July 9 and July 10, 2018. Id. at 162, 164. Because the documentation

did not address the appellant’s absence on July 6, 2018, the appellant’s supervisor

asked him if he had any additional documentation related to that day and further

indicated that the medical documentation was not sufficient to meet the

requirements of the leave restriction memorandum for July 9 and July 10, 2018,

because it failed to identify the nature of his incapacitation and to explain why

reporting to work was inadvisable. Id. at 162-63. According to the appellant, he

returned to the urgent care facility to request further documentation. RFR File,

Tab 6 at 143 (testimony of the appellant). He testified at the arbitration hearing

that the only additional medical documentation the urgent care facility provided

him with was the administrative notes from his visit on July 9, 2018,

which reflected that his symptoms had begun on July 4, 2018. Id.; RFR File,

Tab 7 at 165-69. 

¶5 On July 17, 2018, the appellant submitted a memorandum to his supervisor

explaining his absence on July 6, 2018. RFR File, Tab 7 at 161. It does not

appear that agency management responded to the appellant’s memorandum, but

on July 19, 2018, the appellant’s supervisor sent a memorandum to the

Acting Patrol Agent in Charge, summarizing the appellant’s absences from

July 6 through July 10, 2018, and indicating that the additional medical

3
documentation still did not meet the requirements outlined in the leave

restriction memorandum. Id. at 163. The appellant’s supervisor also claimed in

the July 19, 2018 memorandum that he had informed the appellant that he would

be carried in “absence without leave” (AWOL) status for July 6, 9, and 10, 2018.

Id. 

¶6 Three months later, the agency proposed the appellant’s removal based on a

single specification of AWOL and a single specification of failure to follow leave

restriction instructions. RFR File, Tab 8 at 4. Both charges related only to the

appellant’s absence on July 6, 2018; he was not charged with any absence-related

misconduct for July 9 and July 10. Id. Following the appellant’s written and oral

replies, the deciding official sustained both charges and, citing the appellant’s

history with time and attendance issues, removed the appellant from Federal

service. Id. at 23. 

¶7 The appellant’s union grieved the removal action and invoked arbitration on

his behalf, arguing as follows: (1) the agency could not prove the charged

misconduct because the appellant provided sufficient medical documentation as

instructed by the leave restriction memorandum and because he was charged sick

leave and paid for the day in question; (2) the charges of AWOL and failure to

follow leave restriction instructions should be merged because they are based on

the same facts and issues; (3) the agency violated his due process rights when it

improperly considered alleged misconduct that occurred on June 20, 2018, in the

final decision but failed to discuss that incident in the proposal; (4) the agency

engaged in disparate treatment disability discrimination and failed to

accommodate his disability; and (5) the penalty of removal was unreasonable.

RFR File, Tab 6 at 208-11, 218-51; Tab 8 at 27-28. 

¶8 Following an arbitration hearing, the arbitrator issued an opinion and award

sustaining the appellant’s removal. RFR File, Tab 6 at 282-314. He declined to

merge the charges and found that the agency proved both charges by preponderant

evidence. Id. at 303-06. Specifically, he found that the appellant was required to

4
go to the doctor for each “sick day event,” and that because he failed to do so, and

also failed to provide adequate medical documentation, the agency established

that he violated the leave restriction memorandum’s requirements. Id. at 303-04.

He further found that the appellant failed to establish his affirmative defenses of

an alleged due process violation and disability discrimination, and that his

removal promoted the efficiency of the service and was reasonable. Id. at 305-06,

312-14. 

¶9 The appellant has requested review of the arbitrator’s opinion and award.

RFR File, Tabs 1, 5. He argues that the arbitrator misinterpreted civil service

sick leave requirements and incorrectly added a “nonexistent” requirement that

the appellant was required to go to his doctor on July 6, 2018. RFR File, Tab 5

at 10-11, 31-33. He also reasserts his claims that his medical documentation was

sufficient and that he was charged sick leave and was paid for his July 6, 2018

absence. Id. at 29-31. He reiterates his claim that the charges should have been

merged and his affirmative defenses of an alleged due process violation, disparate

treatment disability discrimination, and failure to accommodate disability

discrimination, and he claims that the arbitrator misapplied the Douglas factors.

Id. at 11-15, 33-47. The agency has responded in opposition to the appellant’s

request. RFR File, Tab 15.

ANALYSIS

¶10 The Board has jurisdiction to review an arbitrator’s decision under

5 U.S.C. § 7121(d) when the subject matter of the grievance is one over which the

Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.

§ 2302(b)(1) in connection with the underlying action, and a final decision has

been issued. Sadiq v. Department of Veterans Affairs, 119 M.S.P.R. 450, ¶ 4

(2013). Each condition is satisfied in this case. The appellant’s removal is within

the Board’s jurisdiction. 5 U.S.C. §§ 7512(1), 7513(d). The appellant alleged in

his grievance and during arbitration that he was subjected to discrimination on the

basis of his disability when the agency treated him differently than other

5
employees who did not suffer from alcoholism. RFR File, Tab 6 at 245-51; Tab 8

at 27. The arbitrator issued a September 24, 2019 final decision regarding the

appellant’s grievance of his removal. RFR File, Tab 6 at 282-314. Thus, we find

that the Board has jurisdiction over the request for review. See Sadiq,

119 M.S.P.R. 450, ¶ 4. 

¶11 The Board’s review of an arbitrator’s award is limited; such awards are

entitled to a greater degree of deference than initial decisions issued by the

Board’s administrative judges. Id., ¶ 5. The Board will modify or set aside such

an award only when the arbitrator has erred as a matter of law in interpreting a

civil service law, rule, or regulation. Id. Even if the Board disagrees with an

arbitrator’s decision, absent legal error, the Board cannot substitute its

conclusions for those of the arbitrator. Id. Thus, the arbitrator’s factual

determinations are entitled to deference unless the arbitrator erred in his legal

analysis, for example, by misallocating the burdens of proof or employing the

wrong analytical framework. Id. Nevertheless, the Board can defer to the

arbitrator’s findings and conclusions only if the arbitrator makes specific findings

on the issues in question. Id. Further, the Board may make its own findings

when the arbitrator failed to cite any legal standard or employ any analytical

framework for his evaluation of the evidence. Id.

The arbitrator erred in not merging the charges.

¶12 As noted above, the agency charged the appellant with AWOL and failure to

follow leave restriction instructions. RFR File, Tab 8 at 4, 23. Before the

arbitrator, the appellant argued that because the charges were both based on his

July 6, 2018 absence, they should have been merged. RFR File, Tab 6 at 222-24.

In the opinion and award, the arbitrator stated that, “[e]ven if the offenses

overlap, prejudice to [the appellant] was not established. The charges, either

individually or together, provide a basis for the [agency’s] action in this case.

Moreover, there does seem to be a distinction between the two charges.”

6
RFR File, Tab 6 at 305-06. The appellant raises this issue again in his request for

review. RFR File, Tab 5 at 46-47. Because the arbitrator failed to fully and

adequately determine whether the charges should be merged, we make our own

findings on this issue. See Sadiq, 119 M.S.P.R. 450, ¶ 5. 

¶13 The Board will “merge” charges if they are based on the same conduct and

proof of one charge automatically constitutes proof of the other charge. Powell

v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 10 (2014). In the context of AWOL

and failure to follow instructions of a leave restriction letter charges, the Board

has held that, when both charges are based on the same underlying conduct and an

appellant’s failure to follow instructions and provide the medical documentation

caused him to be AWOL, the charges merge. See Jones v. Department of Justice,

98 M.S.P.R. 86, ¶ 16 (2004), review dismissed, 125 F. App’x 1006 (Fed. Cir.

2005). Here, the agency charged the appellant with AWOL on July 6, 2018,

because he failed to provide adequate medical documentation regarding his

absence on that date pursuant to the leave restriction letter. RFR File, Tab 8 at 4,

23. The agency also charged him with failure to follow the leave restriction letter

on that same date. Id. Therefore, we find that it is appropriate to merge the

failure to follow leave restriction instructions charge into the AWOL charge. See

McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014) (finding that

the administrative judge properly merged into the AWOL charge specific

instances of failure to follow leave restriction letter procedures that were also

listed under the AWOL charge); Westmoreland v. Department of Veterans Affairs,

83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow

leave-requesting procedures into the charge of AWOL when the charge of AWOL

was based solely on the appellant’s failure to follow the leave requesting

procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds

as recognized in Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 11

(2011). Because the failure to follow the leave restriction letter charge merges

into the AWOL charge, proof of the AWOL charge will constitute proof of the

7
failure to follow the leave restriction letter charge. See Powell, 122 M.S.P.R. 60,

¶ 10.

Regardless of whether the appellant’s medical documentation was sufficient to

justify his absence on July 6, 2018, the arbitrator failed to make a material

finding of fact regarding whether the agency denied the appellant sick leave for

that day.

¶14 To prove a charge of AWOL, an agency must show by preponderant

evidence that the employee was absent without authorization and, if the employee

requested leave, that the request was properly denied. Savage v. Department of

the Army, 122 M.S.P.R. 612, ¶ 28 (2015), overruled in part on other grounds by

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 25. Regarding

the first requirement, the arbitrator concluded that the agency proved that the

appellant violated the requirement of the leave restriction memorandum that he

obtain medical documentation for his July 6, 2018 absence and was, therefore,

absent without authorization. RFR File, Tab 6 at 303-04. He appears to have

based this conclusion on two findings: (1) the leave restriction memorandum

required the appellant to visit a doctor for “each sick day event,” and the

appellant failed to go to the doctor when he called in sick on July 6, 2018; and

(2) the appellant’s medical documentation was otherwise inadequate because the

July 9, 2018 letter from the CNP excused only his absences from July 9 and 10,

2018, and the administrative notes from his July 9, 2018 visit to the urgent care

facility “represent[] a description of [the appellant’s] complaint, not a medical

diagnosis.” Id. at 303-04. 

¶15 In his request for review, the appellant argues that the arbitrator applied an

“incorrect and overly burdensome standard for using sick leave that imposed an

obligation beyond the requirements of 5 C.F.R. § 630.401(a) and [his] leave

restriction letter.” RFR File, Tab 5 at 29. He argues that, when an employee

provides sufficient medical documentation and he has sick leave available, an

agency must grant sick leave. Id. He asserts that the arbitrator violated civil

service law when he determined that the appellant was required to visit a doctor

8
each sick day because the Federal regulation governing the granting of sick leave

imposes no such requirement. Id. at 31-33. He also claims that his medical

documentation was sufficient. Id. at 30. 

¶16 We agree with the appellant that neither Federal regulation nor his leave

restriction memorandum required that he visit the doctor on each sick day. See

5 C.F.R. §§ 630.401, 630.405; RFR File, Tab 7 at 126-27, 149-50. However, the

arbitrator’s determination that the agency proved the charges is also based on his

finding that the appellant’s sick leave documentation was not sufficient because it

did not specifically address his illness on July 6, 2018, or contain a medical

diagnosis. RFR File, Tab 6 at 303-04. The appellant’s argument that his medical

documentation was sufficient because he provided an official memorandum

stating that he was sick when he returned to work, a medical note from a CNP

asking that he be excused from duty due to illness on July 9 and July 10, and the

administrative notes reflecting that he had been experiencing symptoms beginning

on July 4, 2018, amounts to a disagreement with the arbitrator’s factual

determinations. RFR File, Tab 5 at 21-22, Tab 6 at 304. Even if we disagreed

with his factual findings, as stated above, we cannot substitute our conclusions

for his because they are entitled to deference unless he erred in his legal analysis.

Sadiq, 119 M.S.P.R. 450, ¶ 5. We discern no legal error in his analysis of the

sufficiency of the medical documentation. 

¶17 Nonetheless, as discussed above, to prove an AWOL charge, the agency

must also prove that a leave request was properly denied. Savage, 122 M.S.P.R.

612, ¶ 28. Inherent in this burden is the requirement that the agency prove that it

actually denied the leave request at all, regardless of whether the appellant’s

medical documentation was adequate. Before the arbitrator and again in his

request for review, the appellant claims that he was ultimately charged 8 hours of

sick leave for July 6, 2018, and that his paycheck reflected his regular pay for the

pay period including that day. RFR File, Tab 5 at 22-23, Tab 6 at 211. The

arbitrator did not address this material issue in the opinion and award. RFR File,

9
Tab 6 at 301-04. Accordingly, we address it here. See Hollingsworth

v. Department of Commerce, 115 M.S.P.R. 636, ¶ 8 (2011) (reasoning that an

arbitrator’s failure to analyze a material issue constitutes legal error, which

permits the Board to make its own findings). 

The agency failed to prove that it denied the appellant’s leave

request and, therefore, failed to prove its charge. 

¶18 In examining the record to determine whether the agency proved that it

denied the appellant’s sick leave request for July 6, 2018, we note that, as an

initial matter, it is undisputed that the appellant’s supervisor provisionally

granted his sick leave request. RFR File, Tab 7 at 162. The question the Board

must decide is whether the agency ever changed that designation to AWOL. We

find there to be contradictory evidence on this point. On the one hand, the

July 19, 2018 memorandum from the appellant’s supervisor to the Acting Patrol

Agent in Charge states that he informed the appellant that he “would be carried in

an AWOL status on July 6, 2018.” RFR File, Tab 7 at 163. We also

acknowledge that the appellant’s time and attendance records show that on July 6,

2018, he was coded as “72,” which is the agency’s code for “absent without pay.”

RFR File, Tab 6 at 138 (testimony of the appellant), Tab 9 at 4, 7-8. Notably, the

appellant’s time and attendance records do not show any code for sick leave. 2

RFR File, Tab 9 at 4, 7-9. On the other hand, the appellant’s earnings and leave

statements for the pay period in question show that he was charged 8 hours of

sick leave. RFR File, Tab 12 at 22. Because this earnings and leave statement

credits the appellant with an 80-hour pay period during which he was otherwise in

regular time, annual leave, or holiday pay, and there is no other record of the

appellant using sick leave during that pay period apart from July 6, 2018, we

conclude that the sick leave charged to the appellant was for July 6, 2018,

consistent with his supervisor’s indication that his sick leave request was

provisionally granted. Id. Moreover, the appellant testified that he did not lose

2

 The code for sick leave is “62.” RFR File, Tab 9 at 42. 

10
any pay for the relevant pay period. RFR File, Tab 6 at 145-46 (testimony of the

appellant). This unrebutted testimony is supported by documentation from his

credit union showing the same salary amount deposited for the pay period in

question and the previous pay period. 3 RFR File, Tab 12 at 24. The appellant’s

receipt of full pay for the pay period is consistent with a finding that his

attendance status was never changed to AWOL, which would have prompted

reduced pay. 

¶19 We emphasize that it is the agency’s burden to prove the charge by

preponderant evidence. See 5 U.S.C. § 7701(c)(1)(B). This includes its

obligation to rebut, by preponderant evidence, testimony by an employee or other

record evidence contesting the charge by putting forth contrary evidence. See

Rudnick v. General Services Administration, 11 M.S.P.R. 247, 250 (1982)

(reasoning that the agency’s burden to prove a removal action by preponderant

evidence never shifts and that it must rebut testimony or evidence put forth by an

employee either by impeachment or contrary evidence). Here, the appellant has

consistently argued that he ultimately was not placed in an AWOL status, and, as

discussed above, he submitted the evidence supporting that assertion. RFR File,

Tab 5 at 22-23, Tab 6 at 211. Despite having the opportunity—on several

occasions—the agency has not explained why the appellant was charged sick

leave during the relevant pay period or why his pay was not affected for the pay

period it asserts he was AWOL. At the very least, the agency has not resolved the

inconsistent evidence of record. In such a circumstance, we find that the agency

has failed to prove that it is more likely than not that it denied the appellant’s sick

leave request, rendering him AWOL. See Metropolitan Stevedore Co. v. Rambo,

521 U.S. 121, 137 n.9 (explaining that, when the evidence is evenly balanced, the

party with the burden of persuasion must lose); Knudsen v. Department of Health

3

 The appellant’s pay for the pay period following the one in question appears to have

increased, but that increase seems to be the result of a within grade increase that

became effective at the beginning of the pay period following the one in question.

RFR File, Tab 6 at 148 (testimony of the appellant), Tab 12 at 21-24.

11
& Human Services, 35 F.3d 542, 550 (Fed. Cir. 1994) (concluding that, when the

evidence is in “equipoise,” the party with the burden of persuasion has failed to

meet its burden); Jaramillo v. Department of the Army, 81 M.S.P.R. 469, ¶ 7

(1999); Vasquez v. Department of the Navy, 27 M.S.P.R. 312, 315 (1985).

Accordingly, we find that the agency failed to prove its charge by preponderant

evidence.

Although the arbitrator failed to make any finding regarding whether the

appellant is a qualified individual with a disability and regarding the appellant’s

failure to accommodate disability discrimination claim, and although he was

unable to apply the Board’s most recent precedent to the appellant’s disparate

treatment disability discrimination claim, we ultimately agree with the arbitrator

that the appellant failed to establish his disability discrimination affirmative

defense.

¶20 Before the arbitrator, the appellant claimed that he suffered from

alcoholism, that the Equal Employment Opportunity Committee (EEOC) has

recognized alcoholism as a disability, and that the agency engaged in disparate

treatment disability discrimination and failed to accommodate his disability.

RFR File, Tab 6 at 246-51. Specifically, he asserted that the agency treated him

less favorably than nondisabled employees with a history of more significant

attendance issues and that the agency could have accommodated him by offering

him the opportunity to get treatment before removing him. Id. at 247-51.

¶21 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 of 1973. Pridgen v. Office of Management

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

Disabilities Act of 1990 (ADA), as amended by the Americans with Disabilities

Act 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. 29 U.S.C. § 791(f); Pridgen, 2022

MSPB 31, ¶ 35. The ADAAA provides that it is illegal for an employer to

“discriminate against a qualified individual on the basis of disability.” 42 U.S.C.

12
§ 12112(a); Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 28. A

qualified individual with a disability is one who can “perform the essential

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

without reasonable accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB

36, ¶ 28. Only an otherwise qualified individual with a disability is entitled to

relief under the statute for a claim of status-based discrimination or denial of

reasonable accommodation. Haas, 2022 MSPB 36, ¶ 29. 

¶22 The arbitrator did not make any factual findings regarding whether the

appellant was a qualified individual with a disability. Because the record appears

to be sufficiently developed on this issue, we make our own finding on this point.

See Sadiq, 119 M.S.P.R. 450, ¶ 5; Sands v. Department of Labor, 88 M.S.P.R.

281, ¶ 8 (2001) (reasoning that, when the record is fully developed and credibility

determinations are not necessary for the Board to make a factual finding and it is

otherwise unable to defer to an arbitrator’s finding, the Board will examine the

record evidence and submissions on review to resolve an issue). Neither party

disputes that the appellant is a recovering alcoholic who was seeking treatment

during the relevant time period, RFR File, Tab 6 at 45 (testimony of the

appellant’s supervisor), 111 (testimony of the deciding official), 133 (testimony

of the appellant), and alcoholism is generally considered a disability within the

meaning of the Rehabilitation Act, as amended by the ADA, see 42 U.S.C.

§ 12114(b)(2) (providing that nothing excludes an alcoholic from being

considered a qualified individual with a disability when he is either currently

participating in a supervised rehabilitation program or when he is no longer

engaging in such use); see also Humphrey v. Department of the Army,

76 M.S.P.R. 519, 524 (1997) (stating that alcoholism has been recognized to be a

disability under the law); Walsh v. U.S. Postal Service, 74 M.S.P.R. 627, 631

(1997) (agreeing with an administrative judge that the Board has long held that

alcoholism is a disabling condition). Additionally, the appellant’s performance

was regarded as “successful” or “acceptable.” RFR File, Tab 6 at 108, 111

13
(testimony of the deciding official), 128 (testimony of the appellant); Tab 12

at 14-19. We, therefore, find that he was a qualified individual with a disability. 

The appellant failed to establish a claim of disparate treatment

disability discrimination under Pridgen. 

¶23 As previously discussed, the appellant argued below that he was treated less

favorably than other nondisabled employees with a history of more significant

attendance issues. RFR File, Tab 6 at 250. At the hearing, a union representative

testified that he was aware of other employees with attendance issues, including

one who regularly maintained a negative leave balance, but that none were

disciplined for leave abuse. Id. at 180 (testimony of union official). In the

opinion and award, the arbitrator determined that there was “insufficient evidence

to conclude that employees with similar attendance records to [the appellant]

were not disciplined” or that the appellant was removed “because of his

alcoholism.” RFR File, Tab 6 at 313. He concluded that “[d]isability

discrimination was not established.” Id. In his request for review, the appellant

reasserts his disparate treatment disability discrimination claim and argues that

the arbitrator ignored comparators and did not apply the “correct standard” in

evaluating this claim. RFR File, Tab 5 at 40-44. 

¶24 After the arbitrator issued the opinion and award, the Board clarified the

standards for a disability discrimination disparate treatment claim. Specifically,

we recognized that such claims are subject to the same analytical framework for

discrimination claims arising under Title VII. Pridgen, 2022 MSPB 31 ¶ 42. An

appellant raising an affirmative defense of disparate treatment under Title VII

bears the burden of proving by preponderant evidence that the prohibited

consideration was a motivating factor in the agency’s action or decision. Id.,

¶¶ 20-22. However, to obtain full relief under the statute, including status quo

ante relief, he must show that the discrimination was a but-for cause of the

contested action or decision. Id. 

14
¶25 We understand that the arbitrator did not have the benefit of our analysis in

Pridgen when he issued the opinion and award, but we find his disparate

treatment disability discrimination claim analysis otherwise insufficient for us to

determine whether the appellant met either standard set forth in that case.

RFR File, Tab 6 at 312-12. Because the record is sufficiently developed on this

issue, we decide it here. See Sadiq, 119 M.S.P.R. 450, ¶ 5; Sands, 88 M.S.P.R.

281, ¶ 8. 

¶26 The methods by which an appellant may prove a claim of discrimination

are: (1) direct evidence; (2) circumstantial evidence, which may include

(a) 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 form which an inference of discriminatory intent might be drawn,

also known as “convincing mosaic”; (b) comparator evidence, consisting of

evidence, whether or not rigorously statistical, that employees similarly situated

to the appellant other than in the characteristic on which an employee is forbidden

to base a difference in treatment received systematically better treatment; (c)

evidence that the agency’s stated reason for its action is unworthy of believe, a

mere pretext for discrimination; and (3) some combination of direct and indirect

evidence. Pridgen, 2022 MSPB 31, ¶ 24. 

¶27 To reiterate the appellant’s argument regarding disparate treatment

discrimination, the appellant asserts that his supervisors “targeted” him and that

there were several other employees who engaged in the same or similar

misconduct and were not removed. RFR File, Tab 6 at 202-03, 206-07, 214-16,

236-240. Regarding his claim that he was targeted, the appellant points to

testimony from a union steward who claimed that the appellant’s supervisors did

not talk to him or eat lunch with him and always asked him to write memoranda

for “whatever he did wrong.” Id. at 167 (testimony of the union steward), 206.

The union steward further testified that he was told to “mind what [he] said and

did around [the appellant] because he wasn’t going to be there very long.” Id.

15
at 166 (testimony of the union steward). As it relates to the appellant’s

alcoholism, the union steward testified that on at least one occasion, despite

having a positive leave balance, the appellant’s supervisors initiated a

“surveillance operation” on the appellant, asking employees to observe him to see

whether he had been drinking. Id. at 168-69 (testimony of the union steward),

206, 217, 242.

¶28 We do not believe the above creates a “convincing mosaic” of

discrimination. See Pridgen, 2022 MSPB 31, ¶ 24. The appellant does not

appear to have presented any specific evidence regarding when these

conversations or “surveillance operation” occurred, nor is there any corroborating

testimony or other evidence establishing that they occurred. Notably, the union

steward testified that he witnessed a conversation among three individuals

regarding the alleged surveillance operation, yet none of the three testified as

parties to the conversations. 4 RFR File, Tab 6 at 168 (testimony of the union

steward). In any event, to the extent the conversations occurred as testified, the

record is otherwise replete with evidence that the agency was sympathetic to the

appellant’s struggle with alcohol. The appellant’s supervisor testified that the

agency offered him assistance with the Employee Assistance Program (EAP) and

other peer assistance. Id. at 35-36 (testimony of the appellant’s supervisor). He

also testified that he personally offered to look into a rehabilitation facility to

help the appellant with his alcoholism, but the appellant declined. Id. at 36

(testimony of the appellant’s supervisor). Additionally, the appellant’s supervisor

further testified that he gave the appellant a ride home one day after the appellant

smelled of alcohol while on duty because he lacked a support system to assist

him, and that the agency always gave him a ride when he was sent home.

Id. at 36-39 (testimony of the appellant’s supervisor). Although it is unclear

4

 Although the appellant’s supervisor, who was a party to this alleged conversation,

testified during the arbitration, appellant’s counsel did not ask him any questions

on cross examination about any alleged surveillance of the appellant. RFR File, Tab 6

at 41-48. 

16
whether the events related to the appellant’s alcoholism, the supervisor also

testified that he would give the appellant a ride to medical appointments and had

offered to pay the appellant’s co-pay when he was “short on cash.” Id. at 36-37

(testimony of the appellant’s supervisor). To the extent the agency acted on

concerns that the appellant was intoxicated while on duty, neither the

Rehabilitation Act nor the ADA immunizes a disabled employee from being

disciplined for misconduct in the workplace, provided the agency would impose

the same discipline on an employee without a disability. Burton v. U.S. Postal

Service, 112 M.S.P.R. 115, ¶ 16 (2009). 

¶29 In that regard, we turn to the appellant’s argument that the agency treated

him less favorably than other similarly situated employees due to his disability.

The appellant puts forth four individuals who, he asserts, have been disciplined

less severely for similar or more severe misconduct. RFR File, Tab 6 at 214-16.

To be similarly situated for purposes of a discrimination claim, comparators must

have reported to the same supervisor, been subjected to the same standards

governing discipline, and engaged in conduct similar to the appellant’s without

differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27; Fox

v. Department of the Army, 120 M.S.P.R. 529, ¶ 37 (2014). Here, three of the

four employees identified by the appellant were charged with attendance-related

misconduct, while the fourth was charged with conduct unbecoming relating to

inappropriate sexual behavior while off-duty. RFR File, Tab 6 at 214-16, Tab 12

at 4-11, 32-56. The appellant has not established, however, that any of the

alleged comparators had the same supervisor. To the contrary, based on the

limited record evidence, all four employees appear to have been stationed at

locations different from one another and from the appellant, making any chance

of having the same supervisor unlikely. RFR File, Tab 12 at 32-56. Accordingly,

the appellant has not established that these employees were similarly situated to

him. See Pridgen, 2022 MSPB 31, ¶ 27. 

17
¶30 Based on the foregoing, we find that the appellant failed to prove that his

status as a disabled person was a motivating factor in the decision to remove him.

Pridgen, 2022 MSPB 31, ¶¶ 20-22. 

The arbitrator failed to make any findings regarding the appellant’s

failure to accommodate disability discrimination claim, but we

nonetheless find that this claim fails. 

¶31 As noted above, the appellant asserted before the arbitrator that the agency

failed to accommodate his disability. RFR File, Tab 6 at 247-48. In the opinion

and award, the arbitrator briefly acknowledged that the appellant raised a failure

to accommodate claim, but he did not provide any discussion of the claim.

RFR File, Tab 6 at 312-13. The appellant has raised this affirmative defense

again in his request for review. RFR File, Tab 5 at 39-40. Because the record

appears to be sufficiently developed on this issue, we make our own findings on

this claim. See Sadiq, 119 M.S.P.R. 450, ¶ 5; Sands, 88 M.S.P.R. 281, ¶ 8.

¶32 An agency is required to make reasonable accommodation to the known and

physical and mental limitations of an otherwise qualified individual with a

disability unless the agency can show that the accommodation would cause an

undue hardship on its business operations. Miller v. Department of the Army,

121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). Reasonable

accommodation includes modifications to the manner in which a position is

customarily performed in order to enable a qualified individual with a disability

to perform the essential job functions. Miller, 121 M.S.P.R. 189, ¶ 13. In

addition to showing that the appellant is a qualified individual with a disability,

as discussed above, he must also show that the agency failed to provide a

reasonable accommodation. Id. 

¶33 Despite the appellant’s claim that the agency could have offered him the

opportunity to get treatment before removing him, the Board has held that Federal

agencies are not required to provide alcoholic employees with a firm choice

between rehabilitation and discipline. See Kimble v. Department of the Navy,

18
70 M.S.P.R. 617, 622-23 (1996). Moreover, the appellant testified that he was

absent on July 6, 2018, because he was experiencing symptoms which would later

result in a diagnosis of an ear infection—not because he was drinking the night

before. RFR File, Tab 6 at 139-41 (testimony of the appellant). Thus, his

removal was not the result of his disability or the agency’s purported failure to

accommodate that disability. Accordingly, we find that his reasonable

accommodation claim fails.

The arbitrator correctly found that the appellant failed to prove his affirmative

defense alleging a due process violation. 

¶34 The appellant argued below that the agency violated his due process rights

when the deciding official improperly considered allegations of misconduct from

a June 20, 2018 incident, which allegedly involved the appellant’s use of alcohol,

and the agency failed to inform him in the proposal notice that it would be relying

on this incident in deciding to remove him. RFR File, Tab 6 at 218-22. He cites

the deciding official’s testimony from the arbitration hearing where he admits that

he considered the June 20, 2018 incident and asserts that it was undisputed that

the event was not discussed in the notice of proposed removal. Id. at 102-03

(testimony of the deciding official), 221-22. 

¶35 In the opinion and award, the arbitrator reasoned that the deciding official’s

consideration of the June 20, 2018 incident “appears to be a response to the

[appellant’s] claim of an alcohol issue [in his reply to the proposed removal],

rather than as an independent basis for discipline outside of the listed charges.”

Id. at 305. He concluded that the appellant failed to establish a due process

violation. Id. at 305. In his request for review, the appellant claims that “[i]t is

impossible for the [a]rbitrator’s analysis to be correct” because the appellant did

not raise the affirmative defense of disability discrimination until after the agency

proposed his removal and “included inflammatory documents about an

alcohol-related incident that were totally unrelated to the substance of the charges

against him.” RFR File, Tab 5 at 36. 

19
¶36 The essential requirements of constitutional due process for a tenured public

employee are notice of the charges against him, an explanation of the evidence,

and an opportunity for him to present his account of events. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985). The U.S. Court of Appeals

for the Federal Circuit has held that a deciding official violates an employee’s

due process rights when he relies upon new and material ex parte information as a

basis for his decision on the merits of a proposed charge or the penalty to be

imposed. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011);

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed.

Cir. 1999). To determine if ex parte information is new and material, the Board

will consider (1) whether it introduced cumulative, as opposed to new,

information; (2) whether the employee knew of the information and had an

opportunity to respond; and (3) whether the communication was of the type likely

to result in undue pressure on the deciding official to rule in a particular manner.

Stone, 179 F.3d at 1377. 

¶37 We agree with the arbitrator that the appellant failed to establish a due

process violation. By the appellant’s own admission, the agency included

“inflammatory documents about an alcohol-related incident” with its notice of

proposed removal. RFR File, Tab 5 at 36. He specifically acknowledges that the

agency included with its proposal notice six documents from a separate

investigation about the June 20, 2018 incident, and that it did so to “show the

deciding official information about another potential example of misconduct,

which it chose not to include among the charges.” Id. at 36-37. Although it is

undisputed that the agency did not charge the appellant with any misconduct

related to the June 20, 2018 incident in the proposal notice, the appellant’s

admission that he knew of the information and had an opportunity to respond to it

prior to his removal establishes that there was no new and material ex parte

information that was considered in violation of the appellant’s due process rights.

See Stone, 179 F.3d at 1377. 

20
¶38 Moreover, contrary to the appellant’s assertions, the deciding official

testified that he considered information surrounding the June 20, 2018 incident as

confirmation of the appellant’s struggle with alcoholism—not as uncharged

misconduct—and that he “focused very much on the charges that were in the

proposal letter.” RFR File, Tab 6 at 115 (testimony of the deciding official). To

the extent the appellant argues that the deciding official violated his due process

rights in considering the incident at all, we agree with the arbitrator that it is the

appellant who first raised the incident with any particular substance. 5 RFR File,

Tab 6 at 305. The Board has held that a deciding official does not violate an

employee’s right to due process when he considers issues raised by an employee

in his response to the proposed adverse action. See Grimes v. Department of

Justice, 122 M.S.P.R. 36, ¶ 13 (2014) (finding that, when the appellant raised

issues in her written and oral replies, the deciding official’s consideration of

those issues did not violate her right to due process). Accordingly, the

appellant’s due process affirmative defense is without merit. 6

We need not address the arbitrator’s findings regarding whether the penalty

promotes the efficiency of the service and was reasonable. 

¶39 Because we have found above that the agency failed to prove its charge, we

need not address the appellant’s arguments concerning whether the arbitrator’s

findings regarding the penalty of removal were in accordance with civil service

law. RFR File, Tab 5 at 44-46. 

5

 Although the agency included as background with its proposal notice information

concerning the June 20, 2018 incident, it is undisputed that the incident was not

discussed in the proposal notice itself as a potential charge or as a part of the proposing

official’s preliminary penalty determination. RFR File, Tab 8 at 4-7. The appellant has

not cited anything limiting what an agency may include as background information with

its proposal notice to support its action. The first time the June 20, 2018 incident was

mentioned as a particularly relevant issue was in the appellant’s response to the

proposal notice. RFR File, Tab 8 at 19-20. 

6

 The appellant has not argued in his request for review that the circumstances

surrounding any consideration of the June 20, 2018 incident constituted harmful error,

nor has he identified any agency policy or regulation with which the agency has failed

to comply. RFR File, Tab 5 at 33-37. 

21
ORDER

¶40 We ORDER the agency to cancel the removal and reinstate the appellant to

his position of cartographer, GS-12, effective December 12, 2018. See Kerr

v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency

must complete this action no later than 20 days after the date of this decision. 

¶41 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision. 

¶42 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶43 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the Clerk of the Board if the appellant believes that the agency did not fully

carry out the Board’s Order. The petition should contain specific reasons why the

appellant believes that the agency has not fully carried out the Board’s Order, and

should include the dates and results of any communications with the agency.

5 C.F.R. § 1201.182(a).

¶44 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

22
are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶45 This is the final decision of the Merit Systems Protection Board in this

request for review. Title 5 of the Code of Federal Regulations, section

1201.113(c) (5 C.F.R. § 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees motion with the Clerk of the Board.

NOTICE OF APPEAL RIGHTS7

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 situation 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

7

 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.

23
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). 

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. 

24
(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. 420 (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 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: 

25
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

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.8 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). 

8

 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. 

26
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

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

27