UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) MARGARET ELAI

NE RAND, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-0703 ( PL F) ) TI MOTHY F . GEI THNER, ) Secre tary of the Tr easur

y , )

) Def endant. )

1 __________________________________________)
OPI NI ON Plaintiff Marg are t Elaine Rand brought this employ ment discrimination and reta liation suitag ainst her f ormer e mploy er, the United States Depa rtment of the Tr easur

y . The Court previously

dismiss ed plaintiff’ s failure to acc ommodate claim for lack of subject matter jurisdiction and enter ed judg ment in defe ndant’s fa vor on plaintiff’s unla

wful dischar g e cla im. See Rand v. Ge ithner, 609 F . Supp. 2d 97 (D.D.C. 2009). Ms. Rand’s re maining c laims are that the Tre asury

Depa rtment reta liated ag ainst her in violation of Title VI Iof the Civil Ri g hts Act of 1964, as ame nded, 42 U.S.C. §§ 2000e et seq ., and that the Me rit Sy stems Protection Boa rd’s (“MSPB” ) dec ision at the administrative level wa s arbitra ry and ca pricious. The de fenda

nt has moved for

summary judgme nt on the g rounds that it had leg itimate, non-reta liatory rea sons for Ms. Rand’s re moval, that Ms. Rand failed to produc e evidenc e that these rea sons are a pre textfor r etaliation, and that the MSPB’ s decision upholding

Pursuant to Rule 25(d) of the F eder al Rules of Civil P roce dure, the Court 1 substitut es as the de fenda nt the curr ent Secr etar

y of the Tr easur

y , Timothy

Geithner , for former Secre tary Henr y Paulson.plaintiff’s re moval was not ar bitrary , capr icious, or otherw ise in derog ation of the law and there fore should be upheld. Upon c are ful consider ation of the pa rties’ pa pers, the e ntire re cord in the ca se, and the rele vant statutes and c ase la w, the Court will gr ant def endant’ s motion. 2
I . BA CKGROUND At all times releva

nt to her complaint, plaintiff Mar g are t Elaine Rand wor ked for the Depa rtment of the Tr easur

y . See De f. SMF ¶ 1. O n J une 28, 2006, plaintiff f iled a re quest for a n acc ommodation, stating that “[b]ecause of the anxiety

cause d by

[a] supervisor who discriminates ag ainst me by watching ever y single minute of my

day , and ac cusingme of not beingat my

desk whe n Iam, I

can no long er pe rfor

m the duties of a r egular, c apable , employ ee.” Mot., Ex . C at 3 (plaintiff’s r equest for rea sonable a ccommodation). She r equeste d a tra nsfer to another position i n the Depa

rtment. See id. at 3-4. Plaintiff lef t work af ter a J uly 3, 2006 “panic attack” and neve r re turned to her job after that date. See Def

. SMF ¶ 23. On July

6, 2006, plaintiff filed a

n EEO complaint ag ainst Martin Melone a nd J ames Sullivan. See id. ¶ 24. He r complaint alleg ed the c reation of a hostile work e nvironment, hara ssment based on he r sex (fe male), a g e (62) , and ra ce ( Cauca sian), and r eprisal f or prior EE O ac tivity . See id. On August 1, 2006, plaintiff’s supervisor, James Sulli van, denie d her r equest for
acc ommodation on the gr ound that she had not e stablished that she wa s a qualified individual with a disability . See De f. SMF ¶ 25. O n September 25, 2006, Mr . Sulli van sent plaintiff a

The pa pers submitted in connec tion with thi s motion i nclude: De fenda nt’s Motion 2 for Summary

J udg ment (“Mot.”) ; Defe ndant’s Memora ndum of Points and Authorities in Support of Def

endant’ s Motion for Summary J udg ment (“Me mo.”); Plaintiff’s Opposition to Def endant’ s Motion for Summary J udg ment (“O pp.”); De fenda nt’s Reply

to Plainti ff’ s Opposition to Defenda

nt’s Motion for Summary J udg ment (“Rep.” ); Def

endant’ s Statement of Materia l Fac ts Not in Genuine Dispute (“ Def . SMF”); a

nd Plaintiff’s Response to Def endant’ s Statement of Mater ial Fa cts Not in Genuine D ispute (“Pl. SMF”). 2letter notifying he r that she ha d exhausted her a nnual and sick le ave sinc e her depar ture on July 5, 2006, and instructingher to re turn to work by October 2, 2006. See id. ¶ 28. On O ctober 2, 2006, plaintiff submitted a Fa mily and Medic al L eave Act (“ FMLA”) cer tification signe d by

her psy chiatrist. See id. ¶ 29. Plaintiff’s supe rvisors appr oved her FMLA ce rtification and grante d her le ave until Dec ember 29, 2006. See id. ¶ 31. On Dec ember

18, 2006, Mr. Sullivan ag ain wrote to Ms. Rand, instructing he r to return to wor

k by J anuar y 2, 2007. See De f. SMF ¶ 32. Plaintiff did not retur n to work, and on J anuar y 25, 2007, her supe rvisor propose d her r emoval. See id. ¶ ¶ 32, 37. On F ebrua

ry 12, 2007, plaintiff soug ht rec onsideration of the August 1, 2006, denial of her reque st for re asonable
acc ommodation. See Def . SMF ¶ 38; Pl. SM F ¶

38. Def endant did not agree to plaintiff’s reque st and, rathe r than be remove d, plaintiff re tired on F ebrua ry 28, 2007. See De f. SMF ¶ 40. Plaintiff filed an a

ppeal of her r emoval with the Mer it Sy stems Protection Boa rd, and the MSP B aff irmed def endant’ s decision on Octobe r 4, 2007. See id. ¶¶ 41-42. Plaintiff then appe aled the MSP B’ s decision with respe ct to her Title VI Iand Reha bilitation Act claims to the Equal Employ ment Opportunity

Commi ssion (“EEOC”) . See Rand v. Paulson, Petition No. 0320080034, 2008 WL957758 at *1 (E.E.O .C. March 27, 2008) . The EEO C upheld the decision of the MSPB. I d. at *2.

On April 24, 2008, plaintiff filed suit in this Court allegingdisability discrimination as well as r etaliation for e ng ag ing in pr otected a ctivity under Title VI I , the Rehabilitation Act, 29 U.S.C. §§ 701, et seq ., and under the Civil S ervic e Refor

m Act of 1978, Pub. L . No. 94-454, 92 Stat. 1111 (codif ied as amended in scattered se ctions of Title 5 of the United States Code). Plaintiff alleg es that she wa s forc ed to re tire fr om her position at the
3Depa

rtment of the Tr easur

y afte r the Department initiated her remova l in J anuar

y 2007. See Pl. SMF ¶ 40. She cla ims that the decision to remove he r wa s retaliation for her pr ior protec ted Equal Employ

ment Opportunity

(“EE O”) activities. See Complaint (“Comp.”) ¶ 5. Def endant moved to dismiss plaintiff’s cla im or, in the alternative, for summary judgme nt on the Rehabilitation Act claim only . On Marc h 31, 2009, this Court di smissed plaintiff’s failure to
acc ommodate claim for

lack of subject matter jur isdiction and entere d judgme nt in defenda nt’s favor on plaintiff’s unlawf

ul discharg e cla im. See Rand v. Geithner , 609 F. Supp. 2d 97 (D.D .C. 2009). Now that discovery has conc luded, def

endant moves f

or summary

judgme nt on plaintiff’s
rema ining c laims.
I I . STANDARD OF REVI EW

Summary judgme nt should be rende red if “ the pleading s, the discover y and disclosure mate rials on file, a nd any aff idavits [ or dec larations] show that there is no ge nuine issue as to any

materia l fac t and that the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(c); see also Ander son v. L iberty L obby , Inc., 477 U.S. 242, 247-48 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 ( D.C. Cir. 2006). “A f act is ‘mate rial’ if a

dispute over it might af fec t the outcome of a

suit under the g overninglaw; fa ctual disputes that ar e ‘irr eleva nt or
unnece ssary ’ do not aff

ect the summar

y judgme nt determination.” H olcomb v. Powell, 433 F.3d at 895 (quotingAnder son v. L iberty L obby , Inc., 477 U.S. at 248). An issue is “g enuine” if the evide nce is such that a re asonable jury could re turn a verdic t for the nonmovingparty . See Scott v. Har ris, 550 U.S. 372, 380 (2007); Ander son v. L iberty L obby , Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for

4summary

judgme nt is under consider ation, “the e vidence of the non-mova nt is to be believed, and all justifiable infe renc es ar e to be dr awn in [her] favor.” Ander son v. L iberty L obby , Inc., 477 U.S. at 255; see a lso Mastro v. Potomac Electric Power Co., 447 F.3d 843, 850 ( D.C. Cir. 2006); Aka v. Washing ton Hospital Center, 156 F .3d 1284, 1288 (D.C. Cir. 1998) ( en banc ); Washington Post Co. v. U.S . Dep' t of Hea lth and Human Servic es, 865 F .2d 320, 325 (D.C. Cir. 1989). On a

motion for summary

judgme nt, the Court must “eschew makingcre dibilit y deter minations or weig hing the evidenc e.” Czekalski v. Peters, 475 F .3d 360, 363 (D.C. Cir. 2007). The nonmovingparty ’s opposition, however, must consist of more than mere unsupported alleg ations or denials a nd must be supported by

aff idavits, declar ations, or other competent e vidence , setting f orth specif

ic fa cts showingthat there is a g enuine issue f or trial. F E D . R. C I V . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is require d to provide e vidence that would permit a re asonable jury to find in her fa

vor. L aning ham v. United States Navy , 813 F.2d 1236, 1242 ( D.C. Cir. 1987). I f the nonmovant’s e vidence is “mere ly colora ble” or “not sig nificantly

probative,” summary

judgme nt may

be grante d. Ander son v. L iberty L obby , Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 (“ [W ]here the r ecor d taken a s a whole c ould not lead a r ational trier of fac t to find for the non-movingparty , there is ‘no g enuine issue f

or trial.’” ) (quotingMatsushita Electric Industrial Co. v. Ze nith Radio Corp., 475 U.S. 574, 586-87 (1986)) . To defe at a motion for summary judgme nt, a plaintiff must have more than “ a scintilla of evide nce to support [her] claims.” F ree dman v. MCI Telec ommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).

5I I I . PL AI NTI FF ’S RETAL IATI ON CLAI M A. Legal Framework Title VI Iprovides, in per

tinent part, that “[a]ll personnel ac tions affe cting employ ees or

applicants for

employ ment . . . in executive ag encie s . . . shall be made f ree from any discrimination based on ra ce, c olor, relig ion, sex , or national orig in.” 42 U.S.C. § 2000e-16. I t is unlawful for a

n employ er “ to fail or re fuse to hire or to dischar g e any individual, or otherwise disc riminate ag ainst any individual with respect to his compensation, terms, conditions, or privileg es of e mploy ment, beca

use of suc h individual’s rac e, color , relig ion, sex , or national orig in.” 42 U.S.C. § 2000e-2(a)(1) . Title VI I also makes it unlawf

ul for an e mploy er to retaliate ag ainst an employ ee f or eng ag ing in pr otected a ctivity such as f iling a c harg e of discrimination. See 42 U.S.C. § 2000e-3(a ); see a lso Holcomb v. Powell, 433 F.3d at 901.

Absent direc t evidence that an employ ment-re lated dec ision was discriminatory or reta liatory , the claims must be ana ly zed under the bur den-shiftingframework of McDonne ll Doug las Corp. v. Gre en, 411 U.S. 792 (1973). See J ones v. B erna nke, 557 F .3d 670, 678 (D.C. Cir. 2009); Ba loch v. Kempthorne , 550 F.3d 1191, 1197, 1200 ( D.C. Cir. 2008); Koch v. Schapiro, 697 F . Supp. 2d 65, 69 (D.D.C. 2010). Tra ditionally , within that framew ork, a pla intiff must first establish a prima facie case of re taliation or discrimination. See Koc h v. Schapiro, 697 F. Supp. 2d at 69; Monca da v. Peter s, 579 F. Supp. 2d 46, 53 (D.D.C. 2008) ( citing T eneyck v. Omni Shoreham Hotel, 365 F .3d 1139, 1149 (D.C. Cir. 2004)). “ Doingso cre ates a rebuttable presumption of discrimination [or retaliation] and ‘trig g ers the e mploy er’ s burden to produc e admissible evidence that, if believe d, would establish that the employ er’ s action wa s motivated

6by

a leg itimate, nondiscriminatory [or non-retaliator

y ] reason.’” Moncada

v. Peters, 579 F . Supp. 2d at 53 (quotingTene y ck v. Omni Shoreham Hotel, 365 F.3d at 1151).

I t is now established, howeve r, that a “ district court nee d not – and should not – decide whether

the plaintiff ac tually

made out a prima facie case under Mc Donnell Doug las” at the summary

judgme nt stag e if the pla intiff “has suf fer ed an a dverse employ

ment action, and [the defe ndant] has asserte d a leg itimate, non-discriminatory rea son for the de cision.” B rady v. Offic e of the Serg eant at Arms, 520 F.3d 490, 494 ( D.C. Cir. 2008) (empha sis in original). I n these c ircumstance s,

the district court must resolve one centr al question: Has the employ ee pr oduced suf

ficient e vidence for a

rea sonable jury

to find that the employ er’ s asserte d non-discriminatory rea son was not the actua l rea son and that the e mploy er intentionally discriminated ag ainst the employ ee on the basis of [any statutorily

prohibited fac tors]? I d. This frame work for

analy sis under B rady

“appl[ies] equally

to retaliation cla ims” as it does to discrimination claims. J ones v. B erna nke, 557 F .3d at 678. Plaintiff argues that she ha d a “ste ady course of protec ted ac tivity under the Rehabilitation Act and Title VI Ifrom at lea st J une 28, 2006, through J anuar y 2007.” See O pp. at 3. Ms. Rand’s protec ted ac tivity consists of filing one EEO complaint eve ry y ear beg inning in 2002 and endingin 2006 with her final c omplaint ag ainst Messrs. Melone a nd Sulli van, as w ell as her reque st for ac commodation filed on June 28, 2006. See Def . SMF ¶¶ 17, 24; Memo. at 17. Whil e the Tr easur

y Depa rtment ac knowledg es that plaintiff e ng ag ed in protec ted EEO a ctivity , see Me mo. at 2-3, 17, it nonetheless a rgues that it had a le g itimate, non-reta liatory rea son for initiating Ms. Rand’s re moval, namely that Ms. Rand did not report to work f or appr ox imately

7seven months and r efuse d to return e ven whe n informed by her supe rvisors that she ha d exhausted all of her

leave . See id. at 18-19. The Court must determine whether the undisputed fac ts show that defe ndant’s stated re ason for

initiating plaintiff’s r emoval wa s in fact the r eason a nd not pretext for reta liation. Pl aintiff ra ises two arguments in support of her a ssertion that defe ndant’s stated
rea son for initiating he r re moval is pretext: (1) that defe ndant re fused to tempora rily rea ssign plaintiff when she reque sted to be moved to a diff ere nt positi on repor

ting to diffe rent supervisors; and ( 2) in a re ply to an e- mail from plaintiff’s f ormer se cond-line supe rvisor about initiating plaintiff’s r emoval, plaintiff’ s former first-line super

visor said that he “ [w] ouldn’t miss it for the wor ld.” See Opp., E x . 4 (ser ies of e- mails betwee n plaintiff’s super visors and other Trea sury Depa rtment offic ials discussing he r re moval). The Court will addr ess both of these contentions and e x plain why they do not establish a g enuine issue of materia l fac t that would qualify this case f

or trial. B. Plaintiff ’s Reassignme nt Request Plaintiff argues that the fa ilure to rea ssign he r shows pre textbeca use her doctor had informe d the ag ency

that she could re turn to work if the a g ency rea ssigne d plaintiff to a differ ent position. S ee Pl. SMF ¶¶ 28, 32. Plaintiff also alleg es that her supervisor “ rene g ed on his ag ree ment to allow plaintiff to g o on a deta il to another off ice whe re she could have functioned satisfactorily .” Opp. at 6-7. To be c lear , plaintiff does not ar gue that the f ailure to
rea ssign he r wa s the reta liatory action; rather, plaintiff se ems to be cla iming that the r efusa l to

8rea ssign he r is evidenc e of pr etext in pl aintiff’s r emoval, which is the a lleg ed re taliatory action. See Opp. at 6. In the dec ision gra nting summary

judgme nt for def

endant on plaintiff’ s unlawful discharg e cla im, this Court concluded that plaintiff was not entitled to an a ccommodation under the Rehabilitation Act bec ause she was not disabled within the mea ning of the Act. See Rand v. Geithner , 609 F. Supp. 2d at 104. As a result, plaintiff’s f

ormer supe rvisors had no leg al duty to
rea ssign he r under

the Act. The failure to do so, theref ore, c rea tes no g enuine issue of

materia l fac t with reg ard to the a g ency ’s stated re ason for initiating her

termination.
C. Termination E-mail In support of her

argument reg ardingprete x t, plaintiff also cites an e -mail by her first-line super

visor, J ames Sullivan, respondingto an e- mail from her second- line supervisor, Martin Melone, instruc ting Mr. Sullivan to initiate plaintiff’s re moval. See Opp., Ex. 4 (series of
e-ma ils between pla intiff’s supervisors a nd other a g ency

officia ls discussing her

remova l). In his reply , Mr. Sullivan writes that he “w ouldn’t miss i t [ plaintiff’s re moval] for the world.” I d. This
e-ma il, even whe n viewed in a light most favor able to the plaintiff, doe s not establish a g enuine issue of mater ial fac t with reg ard to de fenda nt’s stated re ason for

initiating plaintiff’s r emoval. At most, the e-mail shows that Mr. Sullivan had a pe rsonal dislike for Ms. Rand; it does not show reta liatory

animus. See, e.g ., Armstrongv. J ackson, Civil Action. No. 05-0075, 2006 U.S. Dist. L EXI S 48149 at *29 n.3 (D.D.C. J uly 17, 2006) (“ The Court notes that plaintiff’ s assertion that [t he dire ctor] called he r ‘bitter’ and said that ‘the neg ative thing s people say about [plainti ff
are ] t rue’ does not war

rant a contra ry conclusion [to the Court gra nting summary

judgme nt in

9favor

of def endant]. At best, those statements illustrate only a per sonal dislike, not discriminatory

[or retaliatory] animus.”). Given Ms. Rand’s a

bsence from the wor

kplace for se ven months, it is not surprisingand not probative of re taliatory intent that Mr. Sulli van would express re lief at the prospec t of finalizing her termination. Be cause the def endant ha s asserte d a leg itimate, nonreta liatory , and non-pr etextual reason f or plaintiff’s r emoval, ther e is no evidenc e of r etaliation and the Court ther efor e grants summary judgme nt for def

endant on the pla intiff’s re maining T itle VI Iclaim.
IV. PL AI

NTI FF ’S CL AI M FOR JUDI CI AL REVI EW OF THE MSPB’S DECI SI ON Be cause the Court has alre ady disposed of plaintiff’s Title VI Iclaims, see supr a Part I I I , all that is left to revieware the non-Title VI Icomponent’s of plaintiff’s mix ed ca se befor e the MSPB. In a so-c alled “mixed case ” — that is, one in which “ an adve rse pe rsonnel action subjec t to appeal to the MSPB [is] coupled with a c laim that the action wa s motivated by discrimination,” B utler v. West, 164 F.3d 634, 638 (D .C. Cir. 1999) (citations omitted); see also 29 C.F.R. § 1614.302(a) — the Court conducts a de novo revie w of the Title VI I claims but must revie w the non-Title VI Iclaims exclusively on the administrative re cord. See Butler v. West, 164 F.3d at 638-39 n.10; Ba rnes v. Small, 840 F.2d 972, 979 ( D.C. Cir. 1988); Osborne v. Eisner, 696 F . Supp. 2d 73, 76 (D.D.C. 2010); Har ley v. Dalton, 896 F. Supp. 29, 31 n.2 (D .D.C. 1995). Ther efor e, in consider ing a plaintiff’s non-Title VI I

claims, “[a] dist rict cour

t may set aside the a dminist rative a djudication only if it is arbitrary

or ca pricious, obtained without compliance with lawful proc edure s, unsupported by substantive evidenc e or othe rwise not in

10acc ordanc e with law.” Ba rnes v. Small, 840 F.2d at 979; see 5 U.S.C. § 7703(c). I n order “[t] o show that the MSPB’s dec ision is notarbitra ry and ca pricious, def

endant ne eds only

to show that the dec ision has ‘a rational basis in the law.’” Hanna v. Her man, 121 F. Supp. 2d 113, 121 (D.D.C. 2000) ( quoting Wilder v. Prokop, 846 F.2d 613, 620 ( 10th Cir. 1988)). Fur thermore , the Court must uphol d the MSPB’s dec ision if it i s supported by “such r eleva

nt evidence as a
rea sonable mind might a cce pt as ade quate to support a c onclusion.” I d. (interna l citations omitted). Plaintiff argues that the de cision of the Mer it Sy stems Protection Boa rd and its Administrative L aw Judge (“A L J ”), who aff irmed the Tr easur

y Depa rtment’s dec ision to remove plaintiff, was “ arbitra

ry , capr icious, an abuse of discre tion or otherwise not in ac corda nce w ith law and unsuppor

ted by substantial evidence .” Comp. ¶ 8. Plaintiff supports her a rgument that the AL J ’s dec ision is notbased on substantial e vidence by stating that “[t] he Administrative [L aw] J udg e did not g ive prope r consider ation to plaintiff’s re prisal ar gument, ignor ed the ag ency ’s promises to rea ssign plaintiff a nd ignor ed re levant author ity .” See O pp. at 7. Plaintiff also disputes the MSPB’s findingthat the ag ency ’s ac tion (plaintiff’s re moval) promoted the eff iciency of the fe dera l service , arguing that it “does not promote the ef ficienc y of the [fede ral] service to remove a

car eer employ ee instea d of re assig ning he r . . . .” a nd that she “w as re ady

and willing to work in a

nother unit of the a g ency .” I d. at 8. Plaintiff ag ain asser ts that the ag ency had “a gree d” to re assig n her a nd that she had f

ound two alternate assig nments that her supervisors did not “a llow her to ac cept.” I d.

Be cause the Court has addr essed plaintiff’ s Title VI I claims ea rlier in this opinion and her Rehabilitation Act claims in its previous opinion in t his case, se e Rand v. Ge ithner,
11609 F. Supp. 2d 97 (D.D .C. 2009), the only MSP B f indings to re view for

arbitra riness and capr iciousness are the AL J ’s conc lusions about “the appr opriatene ss of the pena lty ” and that plaintiff’s re moval “promoted the eff iciency of the [fede ral] service .” Administrative Rec ord at 29-30 (Initial Decision of the United States Me rit Sy stems Protection Boa rd, Washington Reg ional Offic e, in Rand v. De partment of T rea sury ) (“ MSP B D ecision”) (interna l citation omitted). In the dec ision on plainti ff’ s claim, the AL J stated that “[a]n adverse action promotes the ef

ficienc y of the [fede ral] service when the ba sis for the ac tion either re lates to the employ ee’ s ability

to acc omplish her duties satisfactor ily or to some other le g itimate gove rnment interest.” MSPB De cision at 29. The ALJ also noted that plaintiff wa s awa y from her workplac e for a period of se ven months, duringwhich time, ac cordingto plaintiff’s supervisors the re w as a need to f ill her position with an employ ee who was available to wor k full time. See id. at 13-14. Plaintiff’s supervisors stated that they could not fill her position while she was a bsent. See id. at 15. Plaintiff herself

said that she could not, and w ould not, return to her position because of

her medical c ondition. S ee id. at 28. There was a lso evidence befor e the AL J that the ag ency had no available positions for which plaintiff wa s qualified to which it could assig n her. See id. at 27. I t
was ne ither ar

bitrary nor ca pricious, there fore , for the A L J to find “that the a g ency had no duty

to reta in the appellant onc e it had esta blished that she was una

ble to perf

orm the duties of he r position and it had no other ava ilable positions for which she w as qualified to whic h it could assig n her.” I d. at 28.

12In addition, there w as substantive evide nce be fore the AL J to support the decision

that remova l was an a

ppropriate penalty

for plaintiff’ s failure to report to wor k for se ven months. The role of the MSPB in revie winga pena lty is to “ensure that the ag ency considere d rele vant fac tors and asse ssed a pe nalty that is within t he limits of reasona bleness.” MSPB De cision at 29. Plaintiff did not provide any evidenc e to the MSPB showingthat she could pe rfor m the essential functions of he r position. I d. at 30. In addition, as noted, there is no evidence in the rec ord that the ag ency

had any vaca nt positi ons to which it could have r eassig ned plaintiff. I d. There is ample re levant evide nce to support the MSPB’ s conclusion that re moval was a n appropriate penalty
. V. CONCLUSI ON

For the fore g oing r easons, the Court will g rant summary judgme nt for the defe ndant. An Or der c onsistent with thi s Opinion will be issued this s ame da y .
/s/________________________________ PAULL . FRI EDMAN United States District J udg e DATE: August 11, 2010

13