UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2012 MSPB 42 

 Docket Nos. DC-0752-09-0881-I-1 

 DC-0752-10-0223-I-1 

John Doe,1

Appellant, 

v. 

Pension Benefit Guaranty Corporation, 

Agency. 

March 27, 2012 

Stuart E. Bernsen, Washington, D.C., for the appellant. 

Monica Pogula, Esquire, and Scott E. Schwartz, Esquire, Washington, 

D.C., for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

OPINION AND ORDER

¶1 These matters are before the Board on: (1) the appellant’s petition for 

review of a July 1, 2010 initial decision reversing the agency’s action placing her 

on enforced leave from August 4, 2009, to September 9, 2009; finding the 

appellant’s placement on enforced leave was not taken because of disability 

 

1

 For the reasons we explain in ¶ 23, we grant the appellant’s request to proceed as John 

Doe. The Board no longer uses Jane Doe and John Doe, universally using “John Doe” 

for all appeals when anonymity is granted. 

 
2

discrimination; and issuing sanctions against the appellant for her failure to 

comply with multiple Board orders (0881 appeal); and (2) both parties’ petitions 

for review 2 of a February 24, 2010 initial decision reversing the agency’s 

decision to place the appellant on absence without leave (AWOL) starting on 

November 9, 2009, and finding that the appellant was not entitled to a hearing on 

her affirmative defenses of discrimination based on perceived disability and 

reprisal for equal employment opportunity (EEO) activity, for filing a Board 

appeal and for protected whistleblowing activity. The appellant alleges, among 

other things, that the administrative judge improperly failed to consider her 

discrimination claims of disparate treatment, harassment, and hostile work 

environment (0223 appeal). For the reasons discussed below, we JOIN these 

rk environment and REMAND the appeal for 

further adjudication of those issues. 

 

appeals on review. 

¶2 In the 0881 appeal, we AFFIRM the initial decision insofar as it 

determined that the agency did not have the authority to order the appellant to 

take a fitness-for-duty (FFD) examination and reversed the agency’s enforced 

leave action. We VACATE the part of the initial decision addressing the 

appellant’s disability discrimination claim and REMAND that claim to the 

regional office for further adjudication consistent with this Opinion and Order. 

We also VACATE the sanctions award. In the 0223 appeal, we AFFIRM the 

initial decision insofar as it reversed the agency’s enforced leave action and 

dismissed the appellant’s retaliation claims. We VACATE the initial decision 

with respect to the appellant’s disability discrimination claim based on disparate 

treatment, harassment and hostile wo

2

 Although the appellant labels her response to the agency’s petition for review as both 

a response and a cross-petition for review, it is more appropriate to consider it a 

response and a supplement to her petition for review. Petition for Review File-0223, 

Tab 6. Because the parties filed their respective petitions for review so close in time, 

we have not designated one a petition for review and the other a cross petition. 
3

BACKGROUND

¶3 The appellant is a GS-13 Administrative Officer with the agency’s Office 

of Information Technology (OIT), Resource Management Division (RMD). See 

Doe v. Pension Benefit Guaranty Corporation, MSPB Docket No. DC-0752-09-

0881-I-1, Initial Appeal File (IAF-0881), Tab 1 at 3, Tab 6, Subtab 4SS. On 

February 17, 2009, the appellant sent an e-mail to Deborah Stover-Springer, the 

agency’s Deputy Inspector General, claiming that her home had been broken into 

several times since she released information to Ms. Stover-Springer’s former 

colleague and asking whether any of Ms. Stover-Springer’s staff had been in her 

home without her consent. IAF-0881, Tab 6, Subtab 4RR. 

¶4 On March 11, 2009, the appellant sent an e-mail to her then-supervisor, 

Resource Manager Latreece Wade, accusing Ms. Wade of harassing her and 

alleging that Ms. Wade had called a transit officer the previous evening and 

provided him with the number of the train car in which the appellant had been 

riding. IAF-0881, Tab 6, Subtab 4PP. The appellant also claimed that, according 

to the “rumor mill,” Ms. Wade was trying to get her fired. Id.

¶5 During a May 22, 2009 meeting with her supervisor, Acting RMD Manager 

Verna Leiner, the appellant accused Ms. Leiner and OIT Deputy Chief 

Information Officer Margaret Hamilton of listening to her conversations and 

stated that she knew about the “ear piece.” IAF-0881, Tab 6, Subtab 4HH. 

Following the meeting, the appellant sent Ms. Leiner an e-mail in which she 

stated, “Hope you presented yourself well before the hidden camera.” Id., 

Subtab 4II. In response, Ms. Leiner sent the appellant an e-mail in which she 

suggested that they meet with Ms. Hamilton to address the appellant’s views and 

notified the appellant that she would send an invitation for a meeting the 

following week. Id. In an e-mail reply, the appellant stated, “Thanks for the 

invite but based on the conversation we just had and your hidden agenda, I will 

not accept.” Id.
4

¶6 By memorandum dated May 28, 2009, Ms. Leiner ordered the appellant to 

undergo an FFD examination with agency medical consultant Neil Hibler, Ph.D., 

on June 4, 2009, based upon “unusual and inappropriate behavior” the appellant 

had exhibited during the past several months. IAF-0881, Tab 6, Subtab 4DD. 

The agency placed the appellant on administrative leave pending the results of the 

examination. Id.

¶7 In a June 4, 2009 report summarizing the results of the appellant’s 

examination, Dr. Hibler stated that the appellant was experiencing a psychotic 

delusional disorder and was unfit to perform her duties. IAF-0881, Tab 6, Subtab 

4Z at 2. He recommended that the appellant “not be considered for potential 

return to the workplace until a treating practitioner advises she is stable and has 

resources sufficient to perform her duties. At that time, she should be returned 

for follow-up [FFD] evaluation to objectively determine her emotional status and 

readiness to perform her duties.” Id. at 9-10. 

¶8 By letter dated June 29, 2009, Ms. Leiner informed the appellant: 

Based on Dr. Hibler's evaluation and conclusions concerning your 

fitness for duty, I am proposing that you be placed on Enforced 

Leave until you submit documentation from your health care 

provider confirming that (1) your condition has stabilized, (2) you 

are no longer a danger to yourself or others in the workplace, and (3) 

you are fit to return to work. 

IAF-0881, Tab 6, Subtab 4W at 2. 

¶9 In her July 16, 2009 reply to the notice of proposed enforced leave, the 

appellant asked to remain on administrative leave for an additional two to three 

months so that she could locate a new primary care physician and make an 

appointment with a psychiatrist. IAF-0881, Tab 6, Subtab 4V. By letter dated 

August 3, 2009, the agency denied the appellant’s request and placed her on 

enforced leave, effective August 4, 2009, until she submitted the documentation 

set forth in Ms. Leiner’s June 29, 2009 letter. IAF-0881, Tab 6, Subtab 4U at 

2-3. 
5

¶10 On September 9, 2009, the appellant submitted an August 28, 2009 medical 

report from Scott T. Schell, M.D., in which he stated: “[The appellant] does not 

have a history of being a threat to others and is not a present danger to herself or 

others. She is able to retur [sic] to work without restriction.” IAF-0881, Tab 6, 

Subtab 4R at 2. Because the appellant had submitted medical documentation 

regarding her fitness for duty from her doctor, the agency removed the appellant 

from enforced leave and placed her on administrative leave, effective September 

9, 2009, pending Dr. Hibler’s review of the medical documentation she provided. 

Id., Subtab 4O at 2. 

¶11 By letter dated September 14, 2009, Dr. Hibler stated that “Dr. Schell's 

report does not contain details and an explanation that would be needed to 

sufficiently understand [the appellant’s] fitness for her to return to work (whether 

with or without accommodation).” Doe v. Pension Benefit Guaranty 

Corporation, MSPB Docket No. DC-0752-10-0223-I-1, Initial Appeal File (IAF0223), Tab 16, Subtab 4P at 2. Dr. Hibler recommended that the appellant “be 

reevaluated by an [Independent Medical Examination] sponsored by [the] agency. 

That assessment should include a psychiatric examination to ensure that 

perspectives offered by Dr. Schell are considered by an evaluator of the same 

professional discipline.” Id.

¶12 By letter dated September 21, 2009, the agency notified the appellant of the 

deficiencies that Dr. Hibler found in Dr. Schell’s report and stated that the 

appellant must either: (1) submit medical documentation that cured those 

deficiencies no later than September 30, 2009; or (2) submit to a follow-up 

evaluation by Dr. Hibler on September 29, 2009, with psychiatric consultation by 

Martin Allen, M.D. IAF-0223, Tab 16, Subtab 4L at 2. 

¶13 The appellant elected the first option and submitted a September 24, 2009 

“progress note” from Dr. Schell. IAF-0223, Tab 16, Subtab 4K. Dr. Hibler 

reviewed the progress note and found that his concerns regarding Dr. Schell’s 

earlier report had not been addressed. Id., Subtab 4H at 1. He recommended a 
6

reexamination of the appellant, including a psychiatric evaluation by Dr. 

Allen. Id.

¶14 By letter dated October 1, 2009, the agency ordered the appellant to 

undergo a follow-up FFD examination with Dr. Hibler on October 8, 2009, and a 

psychiatric evaluation with Dr. Allen on October 9, 2009. IAF-0223, Tab 16, 

Subtab 4F. The appellant attended the appointment with Dr. Hibler but did not 

attend the appointment with Dr. Allen. Id., Subtab 4D. 

¶15 In an October 13, 2009 report on his October 8, 2009 evaluation of the 

appellant, Dr. Hibler found that she “[was] still evidencing severe mental illness, 

the consequence of which is that she [was] too fragile to be safely returned to the 

workplace.” IAF-0223, Tab 16, Subtab 4C at 7. He recommended that 

“[p]ending independent psychiatric examination, which would consider her 

stability in terms of potential psychiatric intervention, she should be restricted 

from her duty location.” Id.

¶16 By letter dated October 28, 2009, Ms. Leiner notified the appellant that, in 

order for the agency to adequately determine her ability to return to work, she 

must choose one of the following options: (1) sign an attached Authorization for 

Disclosure of Information form allowing Dr. Hibler to consult directly with Dr. 

Schell to attempt to resolve the deficiencies in the medical documentation and to 

determine her suitability to return to work; or (2) undergo a psychiatric 

evaluation with Dr. Allen. IAF-0223, Tab 7, Subtab 4G at 2. Ms. Leiner directed 

the appellant to inform Human Resources Specialist Gary Birmingham of her 

decision by November 6, 2009, and advised the appellant that failure to comply 

with the instruction would result in her pay status being changed from 

administrative leave to AWOL for each work day beyond November 6, 2009. Id. 

The appellant did not comply with the instruction, and the agency placed her on 

AWOL, effective November 9, 2009. Id., Tab 7, Subtab 4E. 

¶17 The appellant filed two Board appeals. In the first appeal, the appellant 

challenged her placement on enforced leave from August 4, 2009, to September 9, 
7

2009. IAF-0881, Tab 1. The appellant raised affirmative defenses of harmful 

procedural error and disability discrimination. 3 Id. at 7, 10. She initially 

requested a hearing, id. at 4, but subsequently withdrew that request, IAF-0881, 

Tab 27 at 4. Based on the parties’ written submissions, the administrative judge 

issued an initial decision reversing the agency’s action, finding that the agency 

did not have the authority to order the appellant to take an FFD examination. 

IAF-0881, Tab 41, Initial Decision (ID-0881), at 5-9. Specifically, the 

administrative judge found that the agency failed to prove its reason for the 

appellant’s suspension (i.e., Dr. Hibler’s conclusion that the appellant was not fit 

for duty) because it did not have the authority in the first place to order the 

appellant to be examined by Dr. Hibler. Id. at 9. Accordingly, the administrative 

judge ordered the agency to cancel the appellant’s suspension and retroactively 

restore her effective August 4, 2009. Id. at 15. The administrative judge also 

found that the appellant failed to prove her affirmative defenses. Id. at 9-14. In 

addition, the administrative judge denied the appellant’s request to seal the 

record. Id. at 1 n.1. 

¶18 The appellant filed a petition for review challenging the administrative 

judge’s denial of her disability discrimination claim. Petition for Review (PFR) 

File-0881, Tab 1. The appellant also asks to proceed anonymously as “Jane Doe” 

and to seal those portions of the record that contain information from her 

examination by Dr. Hibler and all documents and other evidence from Dr. Schell. 

PFR File-0881, Tab 1 at 4 & n.2, 14 n.5, 21 n.6, 22, n.7.4

 

3

 Initially, the appellant also raised affirmative defenses of whistleblowing reprisal as 

well as retaliation for her prior EEO activity and for filing grievances. IAF-0881, Tab 1 

at 7, 10. She later withdrew those affirmative defenses. Id., Tab 24 at 5. 

4

 The agency submitted a response to the appellant’s petition for review one day after 

the filing deadline had expired. PFR File-0881, Tab 3. Two days later, the agency filed 

a motion to excuse its delay, stating that its response was untimely filed because agency 

counsel miscalculated the filing deadline. Id., Tab 4 at 4. We find that this showing 

does not establish good cause for the agency’s late filing of its response to the 
8

¶19 In the second Board appeal, the appellant challenged her placement on 

AWOL as a suspension and raised affirmative defenses of harmful procedural 

error, perceived disability discrimination, retaliation for her prior EEO activity, 

filing a Board appeal, and filing grievances, and whistleblower reprisal. 

IAF-0223, Tab 1, Tab 11 at 42. She requested a hearing. Id., Tab 1 at 3. 

¶20 On January 4, 2010, the administrative judge issued an Order to Show 

Cause in which she explained the jurisdictional prerequisites for filing a 

constructive suspension appeal and directed the appellant to file evidence and 

argument to prove that this action is within the Board’s jurisdiction. Id., Tab 

3. Both parties filed responses. Id., Tabs 5, 7. On February 2, 2010, the 

administrative judge issued another Order to Show Cause noting that an 

evidentiary hearing on a discrimination or reprisal claim need not be conducted 

when there is no genuine dispute of material fact regarding discrimination. 

IAF-0223, Tab 9. The administrative judge further advised the appellant of her 

burden and elements of proof regarding her affirmative defenses and directed her 

to describe the factual allegations in support of her claims and identify any 

genuine disputes of material facts concerning them. Id. Both parties filed 

responses. Id., Tabs 11, 12, 15. In her response, the appellant also raised claims 

of disparate treatment based on race, perceived disability, and EEO activity, as 

well as claims of harassment and hostile work environment due to perceived 

disability. Id., Tab 11 at 5. 

¶21 Without holding the requested hearing, the administrative judge issued an 

initial decision finding that the agency did not have the authority to order the 

appellant to take an FFD examination, Dr. Hibler’s recommendation that the 

appellant undergo a psychiatric or psychological examination was improper, and 

the action must be reversed because the agency did not give the appellant the 

 

appellant’s petition for review and, therefore, we have not considered it in adjudicating 

this appeal. See Fishback v. U.S. Postal Service, 54 M.S.P.R. 257, 259 n.2 (1992). 
9

procedural protections found at 5 U.S.C. chapter 75. IAF-0223, Tab 17 

(ID-0223) at 4-6. She therefore reversed the agency’s action and ordered the 

agency to cancel the suspension, retroactively restore the appellant effective 

November 9, 2009, and award her back pay and benefits. Id. at 6, 14. Each party 

has filed a petition for review and a response in opposition to the other party’s 

petition for review. Petition for Review (PFR) File-0223, Tabs 4-7. 

¶22 On review, the agency alleges that the appellant was not subjected to a 

constructive suspension because her absence became voluntary on November 9, 

2009, when she failed to comply with her supervisor’s instructions to either 

authorize her doctor to speak with Dr. Hibler or undergo a psychiatric evaluation 

with Dr. Allen. PFR File-0223, Tab 4 at 6. The agency certified that, in 

compliance with the administrative judge’s initial decision in the 0223 appeal, it 

placed the appellant on paid administrative leave, effective February 24, 2010, 

because her “return to the workplace would be unduly disruptive to the work 

environment.” Id., Tab 4 at 23. In her petition for review, the appellant appears 

to reiterate her request to keep “documents and other evidence from the Hibler 

examination,” i.e., her medical information, under seal. Id., Tab 5 at 16 n.5, 24 

n.8, 27 n.9. She also reiterates her affirmative defenses of discrimination and 

retaliation. Id., Tab 5 at 31-55. 

ANALYSIS

It is appropriate to join the appeals and grant the appellant John Doe status.

¶23 Joinder of two or more appeals filed by the same appellant is appropriate 

when doing so would expedite processing of the cases and not adversely affect 

the interests of the parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 

216, ¶ 9 (2010) (internal citations omitted); see 5 C.F.R. § 1201.36. Given the 

interrelatedness of the subject matter and the similar procedural posture of both 

appeals, we find that the regulatory criteria have been satisfied and we join the 

appeals on review. In addition, the appellant requests to proceed anonymously 
10

and to have her medical information sealed in both appeals. The Board has not 

adopted a rigid, mechanical test for determining whether to grant anonymity but 

instead applies certain general principles and considers several factors in making 

such determinations. Pinegar v. Federal Election Commission, 105 M.S.P.R. 

677, ¶ 10 (2007). For the reasons we discuss below, we find that the agency 

improperly ordered the appellant to take an FFD examination, and thus all of the 

sensitive medical information obtained in both appeals stems from this initial 

improper order. We therefore find it appropriate to allow the appellant to 

proceed anonymously and grant her John Doe status.5

 

The 0881 appeal

The Agency lacked authority to order the appellant to take a fitness for 

duty examination. 

¶24 This appeal raises the issue of whether the agency had the authority to 

order the appellant to undergo an FFD examination with Dr. Hibler. In 

addressing this issue, we consider three possible sources of such authority: 

(1) Office of Personnel Management (OPM) regulations; (2) Equal Employment 

Opportunity Commission (EEOC) regulations; and (3) the applicable collective 

bargaining agreement (CBA). 

¶25 OPM’s regulations governing an agency’s authority to require a medical 

examination are set forth at 5 C.F.R. Part 339, Subpart C. These regulations, 

which became effective February 10, 1984, amended the then-existing regulations 

in 5 C.F.R. Parts 339, 432, 752, and 831. Collins v. Department of the Navy, 

 

5

 We deny the appellant’s request to seal all or part of the record. The case files from 

these appeals are not available to the public by e-Appeal Online or the Board’s website. 

However, to the extent that the appellant’s medical information could be sought through 

a Freedom of Information Act (FOIA) request, such records are exempt from disclosure 

under FOIA. See 5 U.S.C. § 552(b)(6). Also, pursuant to the Privacy Act, see 5 U.S.C. 

§ 552a, the appellant’s medical records cannot be disclosed by the Board without the 

appellant’s express written consent. Thus, granting the appellant’s request to seal her 

records would not provide her with any additional privacy protection. See Nefcy v. 

Environmental Protection Agency, 94 M.S.P.R. 435, ¶ 7 (2003). 
11

41 M.S.P.R. 256, 258 n.3 (1989). As the Board explained in Collins, “The 

revised regulations were intended to limit significantly the authority of agencies 

to order medical examinations for employees in light of previous abuses, 

particularly in cases involving psychiatric examinations and disability 

retirement.” Id. at 258 (internal citations omitted). In its January 11, 1984 

Federal Register Notice, OPM stated as follows: 

The Part 339 regulations are explicitly intended to substantially 

constrain the number of situations where an agency may order an 

employee to undergo a medical examination. In most circumstances 

where the previous “fitness for duty” process would be initiated, the 

agency no longer has any authority to require an examination. 

. . . Only under the very limited circumstances where medical 

standards or medical surveillance programs exist, or certain other 

limited situations, is the agency authorized to require an 

examination. 

49 Fed. Reg. 1321, 1324 (1984). 

¶26 The Board explained in Harris v. Department of the Air Force, 62 M.S.P.R. 

524, 528, review dismissed, 39 F.3d 1195 (Fed. Cir. 1994) (Table), that OPM 

placed restrictions on agency use of psychiatric examinations in response to the 

concerns of a Congressional subcommittee with oversight responsibility for the 

civil service. The subcommittee had held hearings on the use of psychiatric FFD 

examinations by federal agencies and found that an involuntary psychiatric 

examination “places . . . the employee in a position of being a defendant who may 

lose his or her present and future prospects for employment as well as reputation 

in the community.” Id. (citing Subcommittee on Compensation and Employee 

Benefits of the Committee on Post Office and Civil Service, 95th Cong., 2d Sess., 

Forced Retirement/Psychiatric Fitness for Duty Exams 18 (Comm. Print 1978)). 

The subcommittee recommended the adoption of statutory or regulatory reforms 

to eliminate the potential for agency abuse of psychiatric FFD examinations and 

ensure procedural protections for employees who may be having performance 

difficulties due to mental conditions. Id.
12

¶27 Under 5 C.F.R. § 339.301(b)-(d), an agency may order a medical 

examination only in the following limited circumstances: (1) An individual has 

applied for or occupies a position which has medical standards or physical 

requirements or which is part of an established medical evaluation program, 

5 C.F.R. § 339.301(b); (2) an employee has applied for or is receiving 

continuation of pay or compensation as a result of an on-the-job injury or disease, 

5 C.F.R. § 339.301(c); or (3) an employee is released from his or her competitive 

level in a reduction in force and the position to which the employee has 

reassignment rights has medical standards or specific physical requirements 

which are different from those required in the employee’s current position, 5 

C.F.R. § 339.301(d). An agency may offer, rather than order, a medical 

examination (including a psychiatric evaluation) in any situation where the 

agency needs additional medical documentation to make an informed 

management decision, including situations where an individual has a performance 

or conduct problem which may require agency action. 5 C.F.R. § 339.302. 

¶28 Here, it is undisputed that the appellant’s position did not have medical 

standards or physical requirements, and she was not in an established medical 

evaluation program. Moreover, neither of the circumstances set forth in 5 C.F.R. 

§ 339.301(c) and (d) applies here. If agency officials believed that they needed 

additional medical documentation in order to make an informed decision about 

the appellant’s conduct problem, the agency could have offered the appellant a 

psychiatric evaluation pursuant to 5 C.F.R. § 339.302. The agency did not have 

the authority, however, to order her to undergo such an examination. See L’Bert 

v. Department of Veterans Affairs, 88 M.S.P.R. 513, ¶¶ 8-10 (2001); Harris, 62 

M.S.P.R. at 527-29. 

¶29 We next turn to the issue of whether the agency had the authority to order 

the appellant to take an FFD examination under the EEOC regulations 
13

implementing the Americans with Disabilities Act (ADA), as amended.6

 Under 

29 C.F.R. § 1630.14(c), an agency may require that an employee have a medical 

examination if it is job-related and consistent with business necessity. Further, 

29 C.F.R. § 1630.15(f) provides: “It may be a defense to a charge of 

discrimination under this part that the alleged discriminatory action is specifically 

permitted by § 1630.14 . . . .”7

¶30 Thus, if an individual alleges that an agency violated the ADA by ordering 

her to take a medical examination, the agency may claim as a defense that the 

examination is job-related and consistent with business necessity. Title 29 C.F.R. 

§ 1630.14(c) only provides that an agency does not violate the ADA by requiring 

an appellant to undergo an FFD examination if the examination is job-related and 

consistent with business necessity. It does not give an agency independent 

authority to order an examination that is prohibited under the OPM regulations 

governing medical examinations.8

 

 

6

 The ADA Amendments Act of 2008 (ADAAA), P.L. 110-325, 122 Stat. 3553 (2008), 

codified at 42 U.S.C. § 12101 et seq., apply to this appeal because the incidents in 

question occurred after the January 1, 2009 effective date of the ADAAA. The EEOC 

issued amended regulations implementing the ADAAA, but these regulations did not 

become effective until May 24, 2011. See Regulations To Implement the Equal 

Employment Provisions of the Americans With Disabilities Act, as Amended, 76 Fed. 

Reg. 16,978, 16,978 (Mar. 25, 2011) (codified at 29 C.F.R. Part 1630). We note that 

the EEOC did not change 29 C.F.R. § 1630.14 as a result of the amendments. Any 

subsequent reference to the ADA in this Opinion and Order, unless specifically stated 

otherwise, should be interpreted to also include the amendments. 

7 Under the new EEOC regulations, this provision was redesignated as 29 C.F.R. 

§ 1630.15(g). See 76 Fed. Reg. at 17,003. Regardless of whether we consider 

subsection (f) in the former regulation or subsection (g) in the current regulation, the 

outcome is the same. 

8 The ADAAA and its implementing regulations identify their purposes as the 

elimination of discrimination against, and to provide equal employment opportunities 

for, individuals with disabilities, respectively. 42 U.S.C. § 12101(b); 29 C.F.R. 

§ 1630.1(a). Both the ADAAA and the regulations also provide that they do not 

invalidate any remedies, rights and procedures granted by any other federal, state or 

local law that provides greater protection. To the extent that OPM’s regulations 
14

¶31 Regarding whether the agency had the authority under the applicable CBA 

to order the appellant to undergo an FFD examination, Article 18, Section 8, Item 

4(B) of the CBA provides: 

A fitness-for-duty examination may also be ordered before 

management takes disciplinary and/or adverse action against an 

employee for unacceptable conduct or behavior if it appears that a 

medical condition may be at the root of the problem. 

IAF-0881, Tab 6, Subtab 2A at 14. 

¶32 This provision of the CBA is inconsistent with 5 C.F.R. Part 339 insofar as 

it allows the agency to order an employee to undergo an FFD examination in 

situations where such an examination clearly would not be authorized under Part 

339. ID-0881 at 8. In rejecting the agency’s argument that the CBA provided it 

with the requisite authority to order the appellant to take an FFD examination, the 

administrative judge noted that, “under 5 U.S.C. § 7117(a)(1)[,] the parties to a 

negotiated agreement may not have been authorized to bargain for a term of the 

CBA that was inconsistent [with] part 339 because part 339 is a Governmentwide regulation.” Id. (citing American Federation of Government Employees v. 

Federal Labor Relations Authority, 794 F.2d 1013, 1014-15 (5th Cir. 1986)). The 

administrative judge reasoned that, because the agency is covered by Part 339 and 

Part 339 is a government-wide regulation, the CBA does not provide the agency 

authority that would be lacking under Part 339. ID-0881 at 8. 

¶33 We agree with the administrative judge. The Federal Service LaborManagement Relations Statute precludes collective bargaining with regard to 

matters that conflict with government-wide rules and regulations. 5 U.S.C. 

§ 7117(a)(1); see National Association of Government Employees Local R1-109 

and U.S. Department of Veterans Affairs Veterans Administration Medical Center 

 

provide greater protection for employees regarding medical and psychiatric 

examinations, the regulations are consistent with the ADAAA and its implementing 

regulations. 
15

Newington, Connecticut, 37 F.L.R.A. 500, 501 (1990). OPM’s regulations set 

forth in 5 C.F.R. Part 339 are patently government-wide. Because the contractual 

provision relied upon by the agency as authority for ordering the FFD at issue 

here directly conflicts with 5 C.F.R. Part 339, a government-wide regulation 

limiting the agency’s authority to order employees to take medical examinations, 

the Board cannot enforce it in this proceeding.9

 

¶34 Therefore, we affirm the initial decision insofar as it held that the agency 

did not have the authority to order the appellant to take an FFD examination and 

reversed the agency’s action placing the appellant on enforced leave. 10

 

9

 The Board treats provisions of a collective bargaining agreement in the same manner 

as agency regulations. See Giesler v. Department of Transportation, 3 M.S.P.R. 277, 

280 (1980), aff’d sub nom. Giesler v. Merit Systems Protection Board, 686 F.2d 844

(10th Cir. 1982). While this long-standing rule typically results in the enforcement of a 

contractual obligation assumed by the agency, see id., where, as here, the collective 

bargaining provision conflicts with a government-wide regulation, the Board will not 

give it effect. Cf. Dodson v. Department of the Navy, 111 M.S.P.R. 504, 508 (2009) 

(declining to give effect to agency regulations under the National Security Personnel 

System that appeared to be in conflict with government-wide regulations and statute). 

10 We note that an agency has the authority and responsibility to maintain a safe 

workplace; an agency has several options when addressing troubling situations. An 

agency can immediately place an employee on administrative leave and order an 

employee to leave the workplace if necessary for workplace safety. An agency can 

initiate disciplinary action under 5 U.S.C. chapter 75 for acts of misconduct committed 

by the employee; neither the Rehabilitation Act nor the ADA immunizes disabled 

employees from being disciplined for misconduct in the workplace, provided the agency 

would impose the same discipline on an employee without a disability. Fitzgerald v. 

Department of Defense, 85 M.S.P.R. 463, ¶ 12 (2000) (citing Laniewicz v. Department 

of Veterans Affairs, 83 M.S.P.R. 477, ¶¶ 5-8 (1999)). An agency can also utilize a 

shortened notice period for an adverse action if it reasonably believes a serious crime 

has been committed. See 5 U.S.C. § 7513(b)(1). Further, as we noted above an agency 

can offer an employee a psychiatric examination pursuant to 5 C.F.R. § 339.302 if it 

needs the information to make an informed management decision. In addition, both the 

Board and the Federal Circuit have long-recognized that an agency can indefinitely 

suspend an employee, pending inquiry, for psychological or other medical reasons if the 

agency has a sufficient objective basis for doing so. See Gonzalez v. Department of 

Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010); see also Pittman v. Merit Systems 

Protection Board, 832 F.2d 598, 599-600 (Fed. Cir. 1997); Mercer v. Department of 

Health & Human Services, 772 F.2d 856, 858 (Fed. Cir. 1995). 
16

The appellant’s disability discrimination claim must be remanded. 

¶35 The appellant argues on review that the administrative judge erred in 

denying her affirmative defense of disability discrimination by failing to first 

determine whether the agency had acted against her by regarding her as disabled, 

and that the administrative judge improperly found that the agency had met its 

burden of proving an affirmative defense of “direct threat.” PFR File-0881, 

Tab 1 at 21-28. The appellant further contends that the agency’s action 

demonstrated “direct evidence” of discriminatory intent because it was explicitly 

based on her perceived disability, citing to Ellshoff v. Department of the Interior,

76 M.S.P.R. 54, 79-81 (1997). Although we agree with the appellant that the 

administrative judge erred in not determining whether the appellant was a 

qualified individual with a disability under the ADA, we disagree that the 

agency’s action demonstrated direct evidence of discrimination. 

¶36 The administrative judge noted in the initial decision that the ADAAA and 

the EEOC’s then proposed regulations had made a significant change in the law, 

but she did not make a determination whether the appellant met the definition for 

being regarded as disabled. Instead, the administrative judge found that the 

agency had proved the appellant’s placement on enforced leave was not 

discriminatory because the agency had objective evidence and a current medical 

report showing that the appellant’s continued assignment in the workplace posed 

a significant risk of substantial harm to the health and safety of the individual or 

others that cannot be eliminated or reduced by reasonable accommodation. 

ID-0881 at 13-14, see 29 C.F.R. §§ 1630.2(r), 1630.14(c) 1630.15(g). 

¶37 As a federal employee, the appellant's disability discrimination claim arises 

under the Rehabilitation Act of 1973. Simpson v. U.S. Postal Service, 

113 M.S.P.R. 346, ¶ 8 (2010). However, the regulatory standards for the ADA 

have been incorporated by reference into the Rehabilitation Act, and they are 

applied to determine whether there has been a Rehabilitation Act violation. Id.

(citing 29 U.S.C. § 791(g)); Pinegar, 105 M.S.P.R. 677, ¶ 36 n.3; 29 C.F.R.
17

§ 1614.203(b). Further, the ADA regulations superseded the EEOC’s regulations 

under the Rehabilitation Act. Simpson, 113 M.S.P.R. 346, ¶ 8; see 29 C.F.R. 

§ 1614.203(b). 

¶38 An appellant who raises a claim of disability discrimination must first 

establish that she is a disabled person entitled to the protection of the disability 

discrimination laws. Davis v. Department of Veterans Affairs, 106 M.S.P.R. 654, 

¶ 8 (2007). The ADAAA, which liberalized the definition of disability, became 

effective on January 1, 2009. See P.L. 110-325, 122 Stat. 3553 (2008), codified 

at 42 U.S.C. § 12101 et seq. Because the appellant was placed on enforced leave, 

effective August 4, 2009, the ADAAA definition and standards are applicable to 

this appeal. While the ADAAA became effective on January 1, 2009, the 

EEOC’s new regulations implementing the ADAAA did not become effective 

until May 24, 2011, see supra at n.4, after issuance of the initial decision under 

review here. See 76 Fed. Reg. 16,978, 16,978-17,003 (codified at 29 C.F.R. Part 

1630); see also Appendix to Part 1630—Interpretive Guidance on Title I of the 

Americans with Disabilities Act, 76 Fed. Reg. 16,978, 17,003-17,017 (Mar. 25, 

2011); Southerland v. Department of Defense, 117 M.S.P.R. 56, ¶¶ 25-28 (2011) 

(discussing the EEOC’s new regulations and guidance for a “regarded as” claim 

of disability discrimination under the ADAAA). 

¶39 In light of the changes in the ADAAA and the EEOC regulations with 

respect to the type of disability discrimination claim made by the appellant, and 

the administrative judge’s failure to determine if the appellant is disabled under 

these new standards, it is appropriate to remand this claim for the administrative 

judge to fully adjudicate the material issues.11 The parties can, if they choose, 

 

11 For instance, an individual meets the requirement of “being regarded as having such 

an impairment” if the individual establishes that she has been subjected to a prohibited 

action because of an actual or perceived physical or mental impairment that is not both 

“transitory and minor.” See Southerland, 117 M.S.P.R. 56, ¶ 26 (citing 42 U.S.C. 

§ 12102(3), 29 C.F.R. §§ 1630.2(g)(1)(iii), 1630.(l)(2)); see also 29 C.F.R. 

§ 1630.2(j)(2) (“Whether an individual's impairment ‘substantially limits’ a major life 
18

present additional evidence and argument in order to meet their respective 

burdens, consistent with these new standards.12

 

activity is not relevant to coverage under paragraph (g)(1)(iii) (the ‘regarded as’ prong) 

of this section.”). The Appendix to Part 1630 notes that “[c]overage under the 

‘regarded as’ prong of the definition of disability should not be difficult to establish.” 

Appendix to Part 1630, 76 Fed. Reg. at 17,014. 

In Southerland, we noted that the amended regulations further explain that 

“[e]stablishing that an individual is ‘regarded as having such an impairment’ does not, 

by itself, establish liability. Liability is established under Title I of the ADA only when 

an individual proves that a covered entity discriminated on the basis of disability within 

the meaning of section 102 of the ADA, 42 U.S.C. § 12112.” 117 M.S.P.R. 56, ¶ 28, 

(citing 29 C.F.R. § 1630.2(l)(3)); see Appendix to Part 1630, 76 Fed. Reg. at 17,015 

(“[E]vidence that a covered entity took a prohibited action because of an impairment 

will establish coverage and will be relevant in establishing liability, although liability 

may ultimately turn on whether the covered entity can establish a defense.”). 

Moreover, even if the appellant demonstrates on remand that the agency 

perceived or regarded her as having an impairment, the direct threat affirmative 

defense, discussed at 29 C.F.R. § 1630.2(r), is still available to the agency with the 

same standards as under the ADA, before it was amended. See 76 Fed. Reg. at 16,979 

(explaining that the EEOC “decline[d] to make changes requested by some commenters 

to portions of the regulations and the appendix that we consider to be unaffected by the 

ADA Amendments Act of 2008, such as to . . . 29 C.F.R. § 1630.2(r) (concerning the 

“direct threat” defense) . . . .”). In vacating the initial decision, we have not made a 

determination regarding this defense. 

12 In this regard, the record suggests that some facts and issues related to the appellant’s 

disability discrimination claim were neither acknowledged nor discussed by the 

administrative judge in the initial decision, yet may nonetheless be critical to a proper 

resolution of this issue on remand. For instance, Dr. Schell wrote a report indicating 

that the appellant had an anxiety disorder and a personality disorder, but concluding 

that she was not a present danger to herself or others and she was able to return to work 

without restriction. See IAF-0881, Tab 6, Subtab 4R. Dr. Schell testified at his 

deposition, though, that had he seen some of the e-mails that the appellant had sent to 

her supervisors and other materials that were only shown to him during the deposition – 

which he said showed that the appellant was not able to appropriately respond to her 

supervisors’ requests – he “[p]robably [would] not” have made the assessment that it 

was safe for the appellant to return to work. See IAF-0881, Tab 33, Exhibit 5. 

Unfortunately, the agency only included excerpts from this deposition, so we are unable 

to review Dr. Schell’s full testimony. The appellant’s representative included a 

declaration stating that he participated by telephone in Dr. Schell’s deposition, and that 

Dr. Schell testified the appellant was not and had not been a threat, and he did not see 

that the appellant had any such intent. See Id., Tab 35. The parties are advised to 
19

¶40 We do not find persuasive the appellant’s argument that the agency’s 

actions constituted direct evidence of discrimination. Direct evidence may be any 

statement made by an employer that: (1) reflects directly the alleged 

discriminatory attitude; and (2) bears directly on the contested employment 

discrimination. Arredondo v. U.S. Postal Service, 85 M.S.P.R. 113, ¶ 13 (2000). 

However, such evidence is composed of “only the most blatant remarks, whose 

intent could be nothing other than to discriminate” on the basis of some 

impermissible factor. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 

1999) (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). If 

an alleged discriminatory statement merely suggests a discriminatory motive, 

then it is only circumstantial evidence. Id. 

¶41 The Board has addressed the question of direct evidence in certain 

disability discrimination cases, for example, where the agency clearly 

acknowledged that the appellant was disabled and the disability was the basis for 

its action. See Clark v. U.S. Postal Service, 74 M.S.P.R. 552, 559-60 (1997). 

Similarly, in Ellshoff, the Board deemed the agency’s charges of inability to work 

and AWOL to be direct evidence of discrimination because the charges were 

solely and explicitly based on the appellant’s disability of depression and did not 

involve any independent acts of misconduct. Ellshoff, 76 M.S.P.R. at 79. 

Furthermore, the Board specifically noted in Ellshoff that the appellant had never 

received less than a “fully successful” performance rating and that, although she 

had been incapacitated for several months prior to her proposed removal, the 

 

include a full copy of Dr. Schell’s deposition transcript, so that the administrative judge 

and, if necessary, the Board, can evaluate the context in which such statements were 

made. The appellant alternatively argued below that the agency acted due to mixedmotives based on actual or perceived disability discrimination, see Id., Tab 34 at 43; 

however, we recently held in Southerland, 117 M.S.P.R. 56, ¶¶ 29-38, that a mixedmotive analysis is not appropriate in disability discrimination claims arising under the 

ADAAA. 
20

medical evidence showed that she was not incapacitated when the agency 

proposed her removal for inability to work. Id. at 65, 69. 

¶42 However, under longstanding Board precedent, an agency may bring a 

charge against an employee for physical inability to perform job duties. See 

Alvara v. Department of Homeland Security, 116 M.S.P.R. 627, ¶¶ 1, 2, 14 

(2011); Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 15 

(2008); Bullock v. Department of the Air Force, 88 M.S.P.R. 531, ¶ 7 (2001), 

review dismissed, 32 F. App’x 538 (Fed. Cir. 2002); Ellshoff, 76 M.S.P.R. at 

68-69; Sebald v. Department of the Air Force, 32 M.S.P.R. 164, 165 (1987); see 

also Jones v. Department of Transportation, 295 F.3d 1298 (Fed. Cir. 2002) 

(affirming Board decision sustaining employee’s removal for physical inability to 

perform functions of his position.) 

¶43 Consequently, the mere fact that an agency brings a charge based on an 

employee’s troubling conduct—even where that conduct is ultimately found to be 

symptomatic of a disabling condition—is not direct evidence of discrimination. 

Here, the agency placed the appellant on enforced leave because she had 

exhibited unusual and inappropriate behavior in the workplace, and it apparently 

believed she posed a threat to workplace safety. IAF-0881, Tab 6, Subtab 4W. 

Unlike in Ellshoff, there is no evidence in the record before us to indicate that the 

agency’s decision to take this action was motivated by an intent to discriminate 

against the appellant based on an actual or perceived disability. Accordingly, we 

find that the record does not establish direct evidence of discrimination here. 

¶44 In the absence of direct evidence of discrimination, an employee may rely 

on the evidentiary framework set forth in McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802-04 (1973), in order to prove a claim of unlawful disparate 

treatment. Under this framework, an employee must produce sufficient evidence 

to show that she (1) is a member of a protected group; (2) suffered an appealable 

adverse employment action; and (3) that the unfavorable action gives rise to the 

inference of discrimination. 411 U.S. at 802. As to the third element, an 
21

employee may rely on any evidence giving rise to an inference that the 

unfavorable treatment at issue was due to illegal discrimination. See, e.g., 

Chappell-Johnson v. Powell, 440 F.3d 484, 488-89 (D.C. Cir. 2006); Stella v. 

Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (no requirement in a failure to hire 

case that the plaintiff show that the employer filled the position with a person 

outside the protected class); Davis v. Department of the Interior, 114 M.S.P.R. 

527, ¶¶ 7-10 (2010). This burden can be met by any proof of actions taken by the 

employer that shows a “discriminatory animus,” where “in the absence of any 

other explanation it is more likely than not that those actions were bottomed on 

impermissible considerations.” Schoenfeld, 168 F.3d at 1268. 

¶45 If an appellant makes the requisite prima facie showing as set forth above, 

the burden of production shifts to the employer to “articulate some legitimate 

nondiscriminatory reason” for its action. McDonnell Douglas, 411 U.S. at 802. 

If the employer does so, the appellant must then be given an opportunity to 

demonstrate that, based on all of the evidence, the stated reason is a pretext and 

that the action was taken for a discriminatory reason. Id.; see also Holcomb v. 

Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). With regard to this ultimate burden, 

an appellant can rely on “any combination of (1) evidence establishing the 

plaintiff's prima facie case; (2) evidence the plaintiff presents to attack the 

employer's proffered explanation for its action; and (3) any further evidence of 

discrimination that may be available to the plaintiff, such as independent 

evidence of discriminatory statements or attitudes on the part of the employer.” 

Holcomb, 433 F.3d at 897 (citing Aka v. Washington Hospital Center, 156 F.3d 

1284, 1289 (D.C. Cir. 1998) (en banc)). While such evidence may include proof 

that the employer treated similarly situated employees differently, an appellant 

may also prevail by introducing evidence (1) that the employer lied about its 

reason for taking the action; (2) of inconsistency in the employer's explanation; 

(3) of failure to follow established procedures; (4) of general treatment of 

disabled employees or those who engage in protected activities; or (5) of 
22

incriminating statements by the employer. See Brady v. Office of the Sergeant at 

Arms, U.S. House of Representatives, 520 F.3d 490, 495 (D.C. Cir. 2008). The 

focus of this inquiry is not “the correctness or desirability of [the] reasons offered 

... [but] whether the employer honestly believes in the reasons it offers.” McCoy 

v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992); see 

also Pignato v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994) (“It is 

not enough for the plaintiff to show that a reason given for a job action is not 

just, or fair, or sensible. He must show that the explanation given is a phony 

reason.”). 

¶46 In this case, as with most appeals of adverse actions taken under 5 U.S.C. 

chapter 75, the agency has already articulated a nondiscriminatory reason for its 

action. Accordingly, the inquiry proceeds directly to the ultimate question of 

whether, upon weighing all of the evidence, the appellant has met her burden of 

proving that the agency intentionally discriminated against her based on 

disability. See Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 

(2008). Because the record in this case has not been sufficiently developed to 

determine whether the appellant has met this burden, it is appropriate to remand 

this appeal for further adjudication of the appellant’s claims of disability 

discrimination. 

The administrative judge’s decision to issue sanctions against the appellant 

is vacated. 

¶47 In the initial decision, the administrative judge granted the agency’s motion 

for sanctions, finding that “the appellant’s several failures to comply with Board 

orders have been flagrant and repeated” and “[h]er explanation [was] 

unconvincing.” ID-0881 at 2. The administrative judge further determined that 

the most appropriate sanctions were to draw an inference in favor of the agency 

with regard to the information sought and to prohibit the appellant from 

introducing evidence concerning the information sought (including her own 

statements and/or testimony in any later stage of the litigation of this appeal). Id. 
23

However, the initial decision does not reflect what, if any, inferences were made 

in the agency’s favor or what specific evidence was prohibited. See ID-0881. 

While we agree that the appellant’s refusal to comply with Board orders is 

unacceptable, and indeed, merits sanctions pursuant to 5 C.F.R. § 1201.43, in 

light of our decisions herein we vacate the administrative judge’s issuance of 

sanctions. However, should the appellant continue to fail to comply with Board 

orders on remand, the agency may renew its motion for sanctions. The 

administrative judge should consider such a motion and decide whether any 

sanctions against the appellant are appropriate in light of the entire record of the 

appeals. 

The 0223 appeal 

The agency’s petition for review lacks merit. 

¶48 As we discussed above, the agency did not have the authority to order the 

appellant to take a psychological examination. Consequently, it may not 

discipline the appellant for avoiding that examination or otherwise failing to 

cooperate in connection with the order. See L’Bert, 88 M.S.P.R. 513, ¶ 14; 

Harris, 62 M.S.P.R. at 526-28. Accordingly, we DENY the agency’s petition for 

review. 

The appellant’s disability discrimination claim must be remanded. 

¶49 In her petition for review, the appellant argues that she made nonfrivolous 

allegations of disability discrimination and retaliation for protected activity and, 

therefore, she is entitled to a hearing on those claims.13 PFR File-0223, Tab 5 

at 7. With respect to her disability discrimination claim, she appears to have 

alleged below that she was indefinitely suspended because the agency perceived 

 

13 The appellant does not challenge the administrative judge’s finding that she failed to 

make a nonfrivolous allegation that the agency did not retaliate against her for alleged 

protected whistleblowing activity, ID-0223 at 11-13. In the absence of any such 

challenge, we affirm the administrative judge’s decision in this regard. 
24

her as mentally disabled. See IAF-0223, Tab 11 at 33-40. For the reasons 

discussed above, see supra at ¶¶ 35-46, we vacate the portion of the initial 

decision regarding the appellant’s disability discrimination claim and remand that 

claim for further adjudication consistent with this Opinion and Order. 

The administrative judge correctly denied the appellant’s retaliation 

claims. 

¶50 As for her affirmative defense that the agency placed her on AWOL in 

retaliation for initiating EEO counseling, the appellant alleges that the 

administrative judge erred by dismissing this claim on the grounds that she did 

not allege facts that would show that the officials who took the action at issue 

here, Ms. Leiner and Mr. Birmingham, knew of the activity when they took the 

suspension action. PFR File-0223, Tab 5 at 53-54. The appellant contends that 

Ms. Leiner’s decisions “were directed by higher officials” who were aware of her 

protected activity and participated in the decision to suspend her. Id. at 34, 54. 

Even if we assume that agency officials who knew that the appellant had initiated 

EEO counseling were involved in the decision to place her on AWOL, she does 

not offer any evidence that those officials had a motive to retaliate against her. 

Thus, the appellant has not made a nonfrivolous allegation of a nexus between her 

protected EEO activity and her placement on AWOL. 

¶51 With respect to the appellant’s claim that the agency retaliated against her 

for filing a Board appeal, the appellant alleges that, in finding that the appellant 

failed to allege facts that would establish a nexus between her protected activity 

and the adverse employment action, the administrative judge improperly 

disregarded the law that “relatively close timing of an adverse action following 

protected activity may be sufficient to satisfy this element of retaliation.” PFR 

File-0223, Tab 5 at 54. The record reflects, however, that on September 21, 

2009, two days before the appellant filed her first Board appeal, the agency 

informed her that it viewed her doctor’s report as insufficient and that it would 

take action against her if she did not comply with its requests to submit additional 
25

medical documentation or take another FFD examination. IAF-0223, Tab 16, 

Subtab 4L at 2. In light of these circumstances, the relatively short time between 

the appellant’s Board appeal in the 0881 matter and the agency’s adverse action 

does not give rise to an inference of retaliation. Accordingly, we affirm the 

initial decision insofar as it found that the appellant failed to make a nonfrivolous 

allegation of retaliation so as to be entitled to an evidentiary hearing on her 

retaliation claims. 

The appellant’s additional affirmative defenses must be considered on 

remand. 

¶52 The appellant also alleges on review that the administrative judge erred by 

refusing to consider the claims that she initially raised in her response to the 

February 2, 2010 show-cause order. PFR File-0223, Tab 5 at 8. Under 5 C.F.R. 

§ 1201.24(b), an appellant may raise a claim or defense not included in the appeal 

at any time before the end of the conference(s) held to define the issues in the 

case. The record reflects that the appellant raised claims of disparate treatment, 

harassment, and hostile work environment in her February 12, 2010 response to 

the administrative judge’s February 2, 2010 show cause order, and the 

administrative judge never held a conference to define the issues in the case. 

Therefore, the administrative judge erred by refusing to consider these claims. 

Accordingly, we remand these claims to the Washington Regional Office for 

further adjudication.14

 

14 The appellant also makes several additional allegations of error by the administrative 

judge relating to the Board’s jurisdiction. PFR File-0223, Tab 6 at 4-5, 18-20. Because 

the administrative judge found that the Board has jurisdiction over the appeal, these 

alleged adjudicatory errors are harmless and do not provide any basis for disturbing the 

initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) 

(an adjudicatory error that is not prejudicial to a party's substantive rights provides no 

basis for reversal of an initial decision). 
26

ORDER

¶53 We remand these appeals to the Washington Regional Office for 

proceedings consistent with this Opinion and Order. On remand, and based upon 

a fully developed record, the administrative judge shall issue a new initial 

decision that addresses the appellant’s disability discrimination claims in the 

0881 and 0223 appeals and her affirmative defenses of disparate treatment, 

harassment and hostile work environment in the 0223 appeal. In addition, the 

administrative judge should also include notice of mixed-case appeal rights in the 

new initial decision. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.