UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SOCIAL SECURITY 

ADMINISTRATION,

Petitioner,

v. 

MARLENE R. ABRAMS,

Respondent. 

DOCKET NUMBERS

CB-7521-13-0008-T-1

CB-7521-14-0004-T-1

DATE: November 17, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michelle M. Murray, Esquire, and Sharese M. Reyes, Esquire, Baltimore, 

Maryland, for the petitioner. 

Patrick W. Carlson, Chicago, Illinois, for the petitioner. 

Julie M. Brady, Esquire, Peter H. Noone, Esquire, Robert Fedder, Esquire, 

Sean M. Foley, Esquire, Belmont, Massachusetts, for the respondent. 

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

FINAL ORDER

¶1 The respondent administrative law judge (respondent) has filed a petition 

for review, and the Social Security Administration (SSA or petitioner) has filed a 

cross petition for review, of the initial decision, which sustained charges of 

unacceptable docket management and medical inability to perform, found that the 

respondent did not prove her disability discrimination claims, and determined that 

SSA had good cause to remove the respondent. Generally, we grant petitions 

such as these only in the following circumstances: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative law judge’s rulings during either the 

course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

neither party has established any basis under section 1201.115 for granting the 

petition or cross petition for review. Therefore, we DENY the petition for review

and the cross petition for review. We MODIFY the initial decision to find that 

the respondent has not proven her claim of disability harassment, but a different 

outcome is not warranted. Except as expressly MODIFIED by this Final Order, 

we AFFIRM the initial decision. 

BACKGROUND

¶2 SSA proposed to suspend the respondent for 30 days based on a charge of 

failure to follow instructions. Social Security Administration v. Abrams, MSPB 

Docket No. CB-7521-13-0008-T-1, Initial Appeal File (0008 IAF), Tab 1. SSA 

subsequently proposed to remove the respondent based on charges of medical 
3

inability to perform, unacceptable docket management, neglect of duties, and 

failure to follow instructions. Social Security Administration v. Abrams, MSPB 

Docket No. CB-7521-14-0004-T-1, Initial Appeal File (0004 IAF), Tab 1. The 

administrative law judge (ALJ) who was assigned to adjudicate this matter joined 

these appeals. 0008 IAF, Tab 85. A multi-day hearing was held. Hearing 

Transcripts (HTs) 1-13. The ALJ granted the respondent’s request to merge the 

charges of unacceptable docket management and neglect of duties. 0008 IAF,

Tab 162 at 10-11, Tab 166. The ALJ issued an initial decision in which he made 

the following findings: (1) SSA proved the unacceptable docket management and 

medical inability to perform charges; (2) SSA did not prove either of the failure 

to follow instructions charges; (3) the respondent did not prove her disability 

discrimination claims; and (4) SSA demonstrated good cause to remove the 

respondent. 0008 IAF, Tab 175, Initial Decision (ID) at 17-55. 

¶3 The respondent has filed a petition for review, SSA has filed a response, 

and the respondent has filed a reply brief. Social Security Administration v.

Abrams, MSPB Docket No. CB-7521-13-0008-T-1, Petition for Review (PFR) 

File, Tabs 3, 8-9.2 SSA also has filed a cross petition for review, the respondent 

has filed a response, and SSA has filed a reply brief.3 PFR File, Tabs 8, 10, 12. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 In her petition for review, the respondent argues that the ALJ erred in 

analyzing the unacceptable docket management charge, and she cites to “new” 

 

2

For consistency, we will only cite to the parties’ submissions on review in MSPB 

Docket No. CB-7521-13-0008-T-1.

3

The agency filed a motion for additional time to file a reply brief, and it filed a reply 

brief. PFR File, Tabs 11-12. Although our regulations do not provide for a reply to a 

response to a cross petition for review, we have considered the agency’s reply brief.
4

evidence in support of this argument. 4 PFR File, Tab 3 at 15-17. She also asserts 

that the ALJ improperly analyzed her claims of disability discrimination and 

harassment and the relevant factors for determining if SSA had good cause to 

remove her. Id. at 8-14, 17-26. She further asserts that the ALJ improperly 

joined the appeals and issued a protective order. 5 Id. at 5-8. In its cross petition 

for review, SSA asserts that the ALJ improperly analyzed the failure to follow 

instructions charges. PFR File, Tab 8 at 23-26. For the following reasons, we 

deny the petition for review and cross petition for review, and we affirm the 

initial decision as modified herein. 

SSA proved the unacceptable docket management charge.

6

 

¶5 In the unacceptable docket management charge, SSA alleged that in fiscal 

year (FY) 2012, the respondent only held approximately 160 hearings, only issued 

approximately 144 decisions, and failed to move cases timely through 

 

4

The respondent does not appear to challenge the ALJ’s conclusion that SSA proved 

the charge of medical inability to perform. ID at 35-42. We affirm the ALJ’s 

conclusion herein. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014) 

(explaining that, to establish a charge of physical inability to perform, the agency must 

prove a nexus between the employee’s medical condition and observed deficiencies in 

her performance or conduct, or a high probability, given the nature of the work 

involved, that her condition may result in injury to herself or others). 

5

The respondent raises arguments concerning a third appeal. PFR File, Tab 3 at 14-15; 

see Abrams v. Social Security Administration, MSPB Docket No. CB-7521-15-0031-

T-1. The Board denied Ms. Abrams’ petition for review of the initial decision in that 

matter. Abrams v. Social Security Administration, MSPB Docket No. CB-7521-15-

0031-T-1, Final Order (Nov. 17, 2022). 

6

The ALJ defined the charge of “unacceptable docket management” as managing a 

docket in a way that prevents an ALJ from meeting, or striving for, SSA’s benchmarks 

and goals. ID at 21 n.3. The ALJ further found that in order to prove the charge, SSA 

must show that the respondent had a duty to acceptably manage her docket, she failed to 

acceptably manage her docket, and the criteria relied upon by SSA allows measuring

her performance in a way that sufficiently establishes she was performing inadequately. 

ID at 21-22. The respondent does not challenge the ALJ’s definition of unacceptable 

docket management or the elements of the charge. 
5

ALJ-controlled statuses. 0004 IAF, Tab 1 at 16-17. SSA further alleged that in 

FY 2013, the respondent held approximately only 66 hearings, issued 

approximately only 81 decisions, and failed to move cases timely through 

ALJ-controlled statuses. Id. In the initial decision, the ALJ reviewed SSA’s 

expectations for production in terms of hearings held, decisions issued, and 

number of cases languishing in ALJ-controlled statuses, the respondent’s low 

productivity during the relevant time frames, SSA’s “extraordinary” efforts to 

assist her with docket management, and the respondent’s explanations for her 

poor production. ID at 22-33. The ALJ concluded that the respondent was 

unable to effectively manage her docket and that SSA proved this charge. ID

at 33-35. 

¶6 We agree with the ALJ that SSA proved this charge. The record reflects 

that, during the relevant time frames, SSA maintained benchmarks or goals of 

500-700 case dispositions per year, an average of 50 scheduled hearings per 

month, and 7 days in ALJ post-hearing review (ALPO) status. 0008 IAF, Tab 171

at 63, 66; HT 4 at 1011, 1017-18, 1026. The respondent’s production in terms of 

hearings held and decisions issued fell well below these goals. ID at 11-12. In 

particular, SSA’s evidence showed that, in FY 2012, the average days that a case 

on the respondent’s docket was in ALPO status was 250 days, as compared to an 

average of 32 days for all of the ALJs in SSA’s Chicago Hearing Office (except 

the respondent), and an average of 15-16 days for ALJs in Region V and 

nationally. 0008 IAF, Tab 173 at 284; HT 3 at 932-34. SSA’s evidence further 

revealed that, in FY 2013, the average number of days that a case on the 

respondent’s docket remained in ALPO status was 323 days, compared to an 

average of 35 days for ALJs in the Chicago Hearing Office, an average of 14 days 

for ALJs in Region V, and 16 days for ALJs nationally. 0008 IAF, Tab 173

at 284; HT 3 at 934-36. 

¶7 The respondent contends on review that the underlying statistical models 

were flawed because SSA’s data did not consider certain critical variables, such 
6

as the complexity of each individual case, whether an ALJ had physical or mental 

disabilities, whether cases resulted in a favorable or unfavorable decision, and 

whether an ALJ received a reasonable accommodation. PFR File, Tab 3 at 15-16. 

The respondent references a Work Analysis Study commissioned by the 

Association of Administrative Law Judges (AALJ) (hereinafter, AALJ Work 

Analysis Study), which was issued after the close of the record below.

7

 PFR File,

Tab 3 at 17. In its response to her petition, SSA asserts that the information 

contained in the AALJ Work Analysis Study concerning ALJ adjudications in 

fiscal years 2012 and 2013 was available and introduced before the close of the 

record, and the AALJ Work Analysis Study had not been found to satisfy 

reliability standards. PFR File, Tab 8 at 9-10 & n.4. 

¶8 We need not resolve this evidentiary issue. Even if we assumed for the 

purposes of our analysis that the AALJ Work Analysis Study was reliable, and we 

considered its recommendations herein, a different outcome is not warranted. 

Notably, the respondent’s production numbers in FY 2012 and 2013 were 

significantly less than the AALJ Work Analysis Study’s “challenging goals” of 

277 annual case dispositions and 23 hearings on average per month. AALJ Work 

Analysis Study, Executive Summary at iii-v. It is true that SSA’s data did not 

account for all of the variables identified by the respondent; however, the AALJ 

Work Analysis Study did not account for all of the variables, either. 

¶9 We also have considered the respondent’s assertion that the cases assigned 

to her were not substantially the same or similar to the cases assigned to every 

 

7

The respondent does not include a copy of the AALJ Work Analysis Study, and she 

does not correctly cite to the AALJ website. However, it appears that she is referring to 

a November 12, 2015 Work Analysis Study, which we have found on the www.aalj.org

website. See Human Resources Research Organization (HumRRO), Administrative Law 

Judge Work Analysis Study (Nov. 12, 2015), https://www.aalj.org/wpcontent/uploads/2017/08/aalj_work_analysis_study_executive_summary.pdf (last 

visited Nov. 15, 2022).
7

other ALJ in the Chicago Hearing Office. PFR File, Tab 3 at 16 (citing Shapiro

v. Social Security Administration, 800 F.3d 1332 (Fed. Cir. 2015), for the 

proposition that SSA was required to show the average disposition rate for a 

particular region across the same time period). The respondent’s reliance on 

Shapiro is not persuasive. Importantly, the court in Shapiro held that, “in 

extreme cases . . . where [the respondent’s] production is, at best, roughly a 

quarter of that performed by the rest of the ALJs in his region, that [fact] standing 

alone is highly relevant and potentially preponderant evidence that he failed to 

manage his cases acceptably.” Shapiro, 800 F.3d at 1339. Similarly, we find that 

the exponentially higher length of time that many of the respondent’s cases 

languished in ALPO status constitutes relevant evidence that she did not 

acceptably manage her cases. Accordingly, we affirm the ALJ’s decision in this

regard. 

SSA did not prove the failure to follow instructions charges. 

¶10 To determine whether SSA proved the failure to follow instructions charges

in the suspension and removal appeals, we must first look at the directives that 

were issued to the respondent and her responses thereto. The May 7, 2012 

directive that was at issue in the suspension appeal ordered the respondent to 

“take action toward issuing a decision on [20 identified cases] by the close of 

business on May 18, 2012.” 0008 IAF, Tab 1 at 3, Tab 171 at 261. The directive 

further ordered the respondent to provide a written explanation by May 18, 2012,

if she “move[d] a case into any status other than [UNWR status, which means that 

the case is ready to be written but has not been assigned]” or if she “fail[ed] to 

move one or more of these cases out of ALPO status.” 0008 IAF, Tab 171 at 261. 

The respondent submitted several timely responses to this directive. Id.

at 264-68, 270-74, 276-78. Likewise, the January 22, 2013 directive that was at 

issue in the removal appeal ordered the respondent to “decide and issue 

decision-writing instructions on the 25 cases [identified therein] by the close of 

business on February 1, 2013.” 0004 IAF, Tab 1 at 17; 0008 IAF, Tab 171 
8

at 336-38. The directive further advised the respondent that, if she were “unable 

to decide and issue instructions for any of these cases during this time period,” 

she was to provide the Hearing Office Chief ALJ with “a reason why [she was] 

unable to do so no later than February 1, 2013.” Id. at 336-37. The respondent 

submitted several timely responses to this directive. Id. at 342-43, 345-52, 

354-59. 

¶11 The ALJ determined that the respondent’s responses satisfied her obligation 

under the directives; the fact that SSA did not find her responses satisfactory was 

a different issue than whether or not she followed the instructions contained 

therein. ID at 20-21. We agree with the ALJ that neither directive required the 

respondent to submit “satisfactory” explanations; rather, she was only required to 

provide explanations if she were unable to move the requisite cases as directed. 

ID at 20-21. Her numerous responses indicate that she either moved the cases as 

directed or provided an explanation thereto. 

¶12 We have considered SSA’s citation to Abrams v. Social Security 

Administration, 703 F.3d 538 (Fed. Cir. 2012), to support its contention that it 

proved these charges. PFR File, Tab 8 at 23-26. Abrams is distinguishable from 

this matter, in pertinent part, because the respondent in Abrams “admitted that he 

had not fully complied with the directives,” Abrams, 703 F.3d at 543, whereas the 

respondent here testified that her written responses comported with SSA’s 

directives, HT 7 at 1944-49, 2011-17 (testimony of the respondent). For these 

reasons, we affirm the ALJ’s determination that SSA did not prove either of the 

failure to follow instructions charges. 

The respondent did not prove her claims of disability discrimination 

or harassment. 

¶13 To prove disability discrimination based on a failure to accommodate, an 

employee must show that (1) she is an individual with a disability, as defined by 
9

29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability as 

defined by 29 C.F.R. § 1630.2(m);

8

and (3) the agency failed to provide a 

reasonable accommodation. Miller v. Department of the Army, 121 M.S.P.R. 189, 

¶ 13 (2014). The ALJ made the following findings of fact concerning the 

respondent’s medical conditions: (1) between December 2010 and January 2011, 

the respondent suffered a series of falls resulting in two concussions, and she was 

subsequently diagnosed with post-concussion syndrome; (2) she had been 

previously diagnosed with fibromyalgia 9and chronic fatigue syndrome; and 

(3) the physical trauma resulting from her falls and long commute triggered a 

flare-up of her fibromyalgia symptoms. ID at 12-14. The ALJ further found that 

the respondent was disabled based on her conditions of post-concussion 

syndrome, fibromyalgia, and chronic fatigue syndrome, which substantially 

limited her major life activities.

10 ID at 12-14, 36-37. 

¶14 The ALJ concluded, however, that the respondent was not a qualified 

individual with a disability because she was not able to perform the essential 

functions of her position—holding hearings and issuing timely decisions—with or 

without a reasonable accommodation. ID at 7, 43-45. In pertinent part, the ALJ 

noted that, as far back as 2011, the respondent requested a temporary cessation 

and/or reduction in the number of hearings that she had to hold, SSA provided her 

with several accommodations, including a reduced workload for an extended 

 

8 A qualified individual with a disability is an individual who has the requisite skill, 

experience, education and other job-related requirements of the employment position 

such individual holds or desires and, with or without reasonable accommodation, can 

perform the essential functions of such position. 29 C.F.R. § 1630.2(m). 

9

Fibromyalgia is a disorder characterized by widespread musculoskeletal pain 

accompanied by fatigue, sleep, memory and mood issues. Mayo Clinic, Fibromyalgia, 

http://www.mayoclinic.org/diseases-conditions/fibromyalgia/home/ovc-20317786 (last 

visited Nov. 15, 2022). 

10 The parties do not appear to challenge the ALJ’s finding on review, and we affirm 

it herein. 
10

period of time, a “very liberal” use of leave,11 and additional staff for assistance 

and support. ID at 45-48. Notwithstanding SSA’s efforts to provide the 

respondent with significant adjustments to her work schedule and leave 

flexibilities, she continued to issue relatively few dispositions and maintained a 

high number of cases kept in ALJ-controlled statuses for extended periods of 

time. ID at 47. The ALJ further found that because the respondent’s conditions 

were triggered by stress, and being an ALJ was a stressful endeavor, there was no 

reasonable accommodation that would allow her to perform the essential 

functions of her position. ID at 48. 

¶15 On review, the respondent contends that she was a qualified individual with 

a disability because she possessed the requisite skill, experience, and education of 

an ALJ, and she was able to perform all of an ALJ’s functions, including holding 

hearings12 and writing decisions. PFR File, Tab 1 at 9-10. She further alleges 

that SSA’s attack on her production levels did not constitute evidence that she 

was unable to perform the essential functions of her position. Id. at 10. She 

contends that she did not request permanent relief from holding hearings or 

issuing decisions, but rather “sought accommodation from the obligation to hold 

hearings[] only during finite and specified time periods.” Id. at 10-12 (emphasis 

in original). 

¶16 The term “reasonable accommodation” means, in pertinent part, 

“[m]odifications or adjustments to the work environment, or to the mann er or 

 

11 The ALJ noted that SSA informally allowed the respondent not to hold hearings in 

late August and September 2011, provided her with a drastically reduced caseload, 

granted her month-long leave requests for November 2012, December 2012 to 

January 2013, and May to June 2013, allowed her to work a part-time schedule with 

liberal use of leave from mid-March to May 1, 2013, and reduced her hearing schedule 

for March and April 2013. ID at 15-16. 

12 The respondent conceded below that holding a hearing was an essential function of 

the ALJ position. 0008 IAF, Tab 160 at 18. 
11

circumstances under which the position held or desired is customarily performed, 

that enable an individual with a disability who is qualified to perform the 

essential functions of that position” or “[m]odifications or adjustments that 

enable a covered entity’s employee with a disability to enjoy equal benefits and 

privileges of employment as are enjoyed by its other similarly situated employees 

without disabilities.” 29 C.F.R. § 1630.2(o). Thus, a reasonable accommodation 

may include, but is not limited to, job restructuring and part-time or modified 

work schedules. Id. Absent undue hardship,

13

a covered entity is required to 

provide a reasonable accommodation to an otherwise qualified individual who 

meets the definition of disability. Id. 

¶17 The respondent frames her requested accommodations as a “modified work 

schedule,” PFR File, Tab 3 at 10, but she was essentially asking to be relieved of 

her essential functions for extended periods of time or, in 2013, an unspecified 

period of time. See, e.g., 0008 IAF, Tab 171 at 183 (asking, in her June 2011 

reasonable accommodation request, to “be excused from any new cases/hearings 

from at least August through September, 2011, until [her] pending cases have 

been resolved,” and then a 50% reduction in the assignment of any “new 

cases/hearings” for the following 3-6 months), 332 (explaining, in her 

 

13 The ALJ mentioned in the initial decision that a reasonable accommodation does not 

include an accommodation that would impose an undue hardship on the operation of the 

agency, noted that the respondent’s conditions were triggered by stress, and found that 

there was “no reasonable accommodation” that would allow her to perform the essential 

functions of the ALJ position in line with SSA’s expectations. ID at 48 (emphasis in 

original). On review, the respondent contends that SSA’s previous accommodations of 

temporary relief from her obligation to hold hearings or to issue decisions shows that 

her requested accommodation did not “present an actual, demonstrated undue hardship.” 

PFR File, Tab 3 at 13. We need not address this argument because we find that the ALJ 

did not make a finding of undue hardship in the initial decision. Notably, there is no 

discussion in the initial decision of the relevant factors described in 29 C.F.R. 

§ 1630.2(p) to determine whether an accommodation would impose an undue hardship, 

such as the nature and net cost of the accommodation, and the overall financial 

resources of the facilities involved and the covered entity. 
12

January 2013 reasonable accommodation request, that her “condition does not 

allow [her] to be certain that [she] will be physically able to hear a case on a 

precise date”). We agree with the ALJ that, despite SSA’s numerous informal 

accommodations, the respondent continued to be unable to perform the essential 

functions of her position and, therefore, she was not a qualified individual with 

a disability. 

¶18 The respondent cites to Holland v. Social Security Administration, EEOC 

Appeal No. 01A01372, 2003 WL 22346114 (Oct. 2, 2003), to support her 

contention that an appropriate accommodation can be reducing the time that she is

required to dedicate to an essential function. PFR File, Tab 3 at 10 & nn.12-13.

However, the respondent misreads Holland. In that matter, the Equal 

Employment Opportunity Commission found that an essential function of the 

complainant’s Telephone Service Representative position was “handling 

incoming telephone calls,” but he was not required to handle a certain number of 

calls within a specified time or have “constant” telephone availability. Holland, 

2003 WL 22346114, at *12-13. Here, in contrast, the respondent sought to have a 

reprieve from holding hearings, and in January 2013, requested a reprieve for an 

undetermined length of time, despite the fact that holding hearings was an 

essential function of her ALJ position. The respondent has not cited, and we are

not aware of, any binding precedent that would require SSA to provide such an 

accommodation under these circumstances. See, e.g., Byrne v. Department of 

Labor, 106 M.S.P.R. 43, ¶ 7 (2007) (finding that an agency is not required to 

lower production or performance standards, and, upon determining that the 

appellant was incapable of meeting the productivity requirements of his position, 

the arbitrator correctly concluded that the appellant was not a qualified individual 

with a disability because he could not perform the essential functions of his 

position with or without a reasonable accommodation). 

¶19 We have considered the respondent’s challenge to the ALJ’s finding that 

her condition will never go into remission, PFR File, Tab 3 at 8; ID at 42, but this 
13

argument is unavailing. The ALJ stated in the initial decision that it was 

“reasonable” to conclude that the respondent’s fibromyalgia will never go into 

remission because the only way for that to happen is to eliminate stress, and the 

very nature of the respondent’s job as an ALJ, coupled with her inability to 

manage her docket, “creates the impossibility of eliminating [her] stress.” ID

at 42. Indeed, the respondent’s treating physician, who was admitted as an expert 

in the field of fibromyalgia, testified that patients who suffer from fibromyalgia 

“get better when their stress is lowered.” HT 12 at 3358, 3412 (testimony of the 

treating physician). However, the physician acknowledged that the respondent’s

work was a stressor. Id. at 3348, 3403 (testimony of the treating physician). 

Given the physician’s testimony, we discern no error with the ALJ’s statement in 

the initial decision. 

¶20 In sum, the respondent has not proven that she was a qualified individual 

with a disability. The record reflects that in 2010, prior to her falls (which 

resulted in the diagnosis of post-concussion syndrome and a flare-up of her 

fibromyalgia), the respondent was issued a Letter of Counseling concerning her 

failure to manage her docket in a timely and efficient manner. 0008 IAF, Tab 171

at 125-26, 138-41. However, after her falls, the record demonstrates fairly 

conclusively that the respondent was unable to perform the essential functions of 

her position with or without an accommodation. Accordingly, we agree with the 

ALJ that the respondent did not prove her claim of disability discrimination based 

on a failure to accommodate. 

¶21 We also have considered the respondent’s contention that SSA treated ALJ 

H.C. and other ALJs differently than her. In pertinent part, she asserts on review 

that, in fiscal year 2012, she issued more decisions and held more hearings than 

ALJ H.C., but ALJ H.C. was never reprimanded, disciplined, charged with 

unacceptable docket management, or had her removal proposed. PFR File, Tab 3

at 15. We interpret this argument as a challenge to the ALJ’s conclusion that she 

did not prove her disparate treatment disability discrimination claim. ID at 49. 
14

¶22 As with a claim of disability discrimination based on an agency’s failure to 

reasonably accommodate that disability, a claim based on an individual’s status as 

disabled requires that the individual be a qualified individual with a disability. 

Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 28. Further, to 

establish a claim of disparate treatment disability discrimination, the respondent

has the burden of proving that her disability was a motivating factor in the 

agency’s proposed suspension and removal actions. See Pridgen v. Office of 

Management and Budget, 2022 MSPB 31, ¶¶ 35, 37, 40, 42. If the respondent

meets her burden, the Board will then inquire whether the agency has shown by 

preponderant evidence that the action was not based on the prohibited personnel 

practice, i.e., that it still would have taken the contested action in the absence of 

the discriminatory motive. Id., ¶¶ 33-34. If the Board finds that the agency has 

made that showing, its prohibited personnel practice will not require reversal of 

the action.14 Id. 

¶23 As we found above, we agree with the ALJ that the respondent was not a 

qualified individual with a disability. Furthermore, we agree with the ALJ that 

the respondent has not identified any comparators that had such deficiencies in 

docket management, low production, a backlog of cases, or inability to perform 

the essential functions of her position. ID at 49; see Brown v. Department of the 

Interior, 121 M.S.P.R. 205, ¶ 27 (2014) (explaining that for employees to be 

similarly situated for purposes of a disparate treatment discrimination claim, all 

relevant aspects of the employee’s employment situation must be “nearly 

identical” to those of the comparator employees). For instance, the record 

reflects that ALJ H.C., a nearly 20-year employee who was diagnosed with 

 

14 Because we affirm the ALJ’s finding that the respondent failed to show that any 

prohibited consideration was a motivating factor in the petitioner’s actions, we need not 

resolve the issue of whether the respondent proved that discrimination was a but-for 

cause of the petitioner’s actions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33. 
15

Stage 4 metastatic breast cancer, had her request to hold fewer hearings as an 

accommodation denied starting in 2012, she was issued a written directive to 

schedule more hearings in May 2013, but, in the following fiscal year, she issued 

more decisions and held more hearings than she had in previous years. 0008 IAF,

Tab 174 at 666-68; HT 11 at 3160-61, 3189-91, 3195-96, 3199-3201. Therefore, 

we agree with the ALJ that the respondent has not proven her disparate treatment 

disability discrimination claim.15 

SSA proved that it had good cause to remove the respondent. 

¶24 Under 5 U.S.C. § 7521(a), “[a]n action may be taken against an [ALJ] . . . 

only for good cause established and determined by the Merit Systems Protection 

Board on the record after an opportunity for a hearing.” Abrams, 703 F.3d at 543; 

Jennings v. Social Security Administration, 123 M.S.P.R. 577, ¶ 27 (2016). There 

is no statutory definition of good cause; thus, the interpretation of the term is left 

to the adjudicatory process and the facts of each case. Social Security 

Administration v. Long, 113 M.S.P.R. 190, ¶ 13 (2010), aff’d, 635 F.3d 526 (Fed.

Cir. 2011). SSA must prove good cause by preponderant evidence. Id., ¶ 12. 

The Board has made clear that the term “good cause” is not the equivalent of the 

efficiency of the service standard in cases arising in adverse action appeals 

pursuant to 5 U.S.C. § 7513, but chapter 75 appeals can provide some guidance 

 

15 The respondent reiterates her claim, made below, that SSA harassed her based on her 

disability and reasonable accommodation requests by, among other things, issuing many 

directives to her. PFR File, Tab 3 at 17-25; 0008 IAF, Tab 160 at 5-15. The ALJ 

did not explicitly address this claim in the initial decision, and we modify the initial 

decision herein to do so. The respondent identifies on review the following legal 

standard for such a claim: (1) a qualified individual with a disability; (2) subject to 

unwelcome conduct or harassment; (3) based on the individual’s disability; (4) that 

unreasonably interfered with work performance or created a hostile work environment; 

and (5) there is a basis for imputing liability on the employer. PFR File, Tab 3 at 17-18

(citing Wagner v. Department of Transportation, EEOC Appeal No. 0120103125, 2010 

WL 4972778 (Dec. 1, 2010)). Because we have found that the respondent is not a 

qualified individual with a disability, she also could not prevail on this claim. 
16

for determining what is good cause for an action against an ALJ. Id., ¶ 13. 

Because we have affirmed the ALJ’s finding that SSA proved the charges of 

unacceptable docket management and medical inability to perform, we find that 

there is good cause to discipline the respondent. ID at 21-42. 

¶25 In original jurisdiction cases such as this under 5 U.S.C. § 7521, it is the 

Board, rather than the employing agency, which selects the penalty. Long, 

113 M.S.P.R. 190, ¶ 47. The Board does not defer to SSA’s penalty selection, but 

it uses the factors articulated in Douglas v. Veterans Administration, 5 M.S.P.R. 

280, 305-06 (1981), to guide its penalty determination. Long, 113 M.S.P.R. 190, 

¶ 47. In the initial decision, the ALJ discussed several of the relevant Douglas 

factors, and he ultimately concluded that SSA demonstrated good cause to remove 

the respondent. ID at 49-55. On review, the respondent contends that her 

medical conditions warrant mitigation. PFR File, Tab 3 at 15, 25-26. We have 

considered this argument, but a different outcome is not warranted. 

¶26 The respondent correctly notes that evidence that an employee’s medical 

condition played a part in the charged conduct is ordinarily entitled to 

considerable weight as a mitigating factor. PFR File, Tab 3 at 25; see Malloy v. 

U.S. Postal Service, 578 F.3d 1351, 1357 (Fed. Cir. 2009); Bowman v. Small 

Business Administration, 122 M.S.P.R. 217, ¶ 13 (2015); Roseman v. Department 

of the Treasury, 76 M.S.P.R. 334, 345 (1997). In the initial decision, the ALJ 

noted the respondent’s “several serious medical conditions” were mitigating 

factors. ID at 54-55. The ALJ found, however, that the mitigating circumstances 

were “lessened” because the respondent was unable to manage her case docket 

prior to any flare-up of her chronic conditions. Id. 

¶27 We agree with the ALJ regarding the weight to be attributed to the 

respondent’s medical conditions. In Mingledough v. Department of Veterans 

Affairs, 88 M.S.P.R. 452, ¶ 12 (2001), the Board noted that a medical condition 

was not a significant mitigating factor absent evidence that the impairment can be 

remedied or controlled, i.e., when the potential for rehabilitation was poor. We 
17

agree with the ALJ that there is not a good potential for rehabilitation because the 

respondent has been unable to manage her docket since she began her tenure as an 

SSA ALJ, which is before she had her two falls, was diagnosed with 

post-concussion syndrome, or experienced any flare-up of her fibromyalgia

symptoms, and her work as an ALJ was inherently stressful and would likely

result in additional flare-ups. ID at 53-54. Accordingly, we have considered 

evidence surrounding her conditions, but we find that they do not outweigh other 

relevant factors, such as the nature and seriousness of the offenses. See, e.g., 

Long, 113 M.S.P.R. 190, ¶ 48 (explaining that the Board considers first and 

foremost the seriousness of the charged conduct and its relationship to the 

employee’s position and duties). 

¶28 For the reasons discussed herein and in the initial decision, we concur with 

the ALJ that SSA has shown good cause to remove the respondent under 5 U.S.C. 

§ 7521. See, e.g., Shapiro, 800 F.3d at 1340 (finding no error in the Board’s 

removal of the respondent based on a charge of unacceptable performance); 

Social Security Administration v. Mills, 73 M.S.P.R. 463, 467-75 (1996) (finding 

that an ALJ’s long-term absence from duty as a result of a disability with no 

realistic chance of return, coupled with the agency’s demonstrated need t o fill the 

position, constituted good cause for removal under 5 U.S.C. § 7521), aff’d,

124 F.3d 228 (Fed. Cir. 1997) (Table). 

We discern no error with the ALJ’s decision to join the appeals or to issue the 

protective order. 

¶29 We have considered the respondent’s argument that, in joining the 

suspension and removal appeals, the ALJ denied her the opportunity to “learn 

from her mistakes” and was counter to the principle of progressive discipline. 

PFR File, Tab 3 at 5-6. SSA, in its response, asserts that joinder is appropriate in 

cases involving successive disciplinary petitions, cites to 5 C.F.R. § 1201.36, and 

states that the respondent does not challenge that there are common witnesses, 
18

evidence, and affirmative defenses between the two matters. PFR File, Tab 8 

at 20. 

¶30 We agree with SSA and the ALJ that joinder was appropriate. The 

regulation at 5 C.F.R. § 1201.36(b) states that an ALJ may join cases if doing so 

would expedite processing of the cases and not adversely affect the interests of 

the parties. The respondent has not identified how her interests were adversely 

affected when, as here, she was on notice of her performance deficiencies as early 

as December 2010. Moreover, when there is voluminous evidence and witnesses

in common, we see no basis to preclude joinder in the absence of such an adverse 

effect. See, e.g., Abrams, 703 F.3d at 540-42 (noting that the three complaints, 

involving a 14-day suspension, a 30-day suspension, and a removal, were 

“combined”). 

¶31 Finally, the record reflects that SSA filed a motion for a protective order to 

protect personal medical records of claimants, personnel information about other 

employees, and its internal deliberations that would be provided to the respondent 

during discovery, and the ALJ granted this request over the respondent’s 

objection. 0008 IAF, Tabs 16, 20. The respondent asserts on review that the 

protective order denied her rights as set forth in 5 C.F.R. § 1201.139(b)(2), which 

states in pertinent part that, when an agency files a complaint proposing an action 

against an ALJ, the ALJ has a right to be represented. PFR File, Tab 3 at 6-8. In 

particular, the respondent asserts that her right to representation was limited 

because the protective order “imposed broad restrictions upon [her] ability to 

provide her counsel with materials and information.” Id. at 7. She appears to 

contend that she was unable to share any document that she authored or received 

in the course of her work as an ALJ, including to supervisors or doctors, nor 

could she share with her attorney any emails that she may have sent to her 

supervisor that contained protected whistleblowing or other disclosures. Id. 

¶32 The Board will not reverse an administrative judge’s rulings on discovery 

matters absent an abuse of discretion. Wagner v. Environmental Protection 
19

Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) 

(Table). The abuse-of-discretion standard is a very high standard and allows for 

great deference. Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 

(2010). We have reviewed the protective order. However, we are not persuaded 

that the ALJ’s decision to grant SSA’s request for a protective order constituted 

an abuse of discretion because it does not appear to prohibit the respondent from 

sharing with her attorney any documentation that she deemed essential to her 

defense in these matters. 

¶33 Accordingly, the initial decision is affirmed, except as modified herein. 

ORDER

¶34 The Board authorizes SSA to remove the respondent from her ALJ position 

for good cause shown, pursuant to 5 U.S.C. § 7521. 

NOTICE OF APPEAL RIGHTS16

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

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

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

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

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

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

provide legal advice on which option is most appropriate for your 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 immediately review the law applicable to your 

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

 

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

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

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

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. 
21

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

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

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

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

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

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

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

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

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

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

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

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

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: 
22

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.17 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). 

 

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

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

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

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

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

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

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

132 Stat. 1510. 
23

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board