UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARCELLA MANOCK,

Appellant,

v.

DEPARTMENT OF STATE,

Agency.

DOCKET NUMBER

PH-0432-13-0293-I-1

DATE: July 23, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joel J. Warne, San Francisco, California, for the appellant.

Haley B. Shellito, and Jessee Alexander-Hoeppner, Washington, D.C., for 

the agency.

Svetlana Uimenkova, Esquire, Boston, Massachusetts, for amicus curiae,

The Disability Law Center, Inc.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed her removal for unacceptable performance under chapter 43 and denied 

her affirmative defenses of age and disability discrimination. Generally, we grant 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

petitions such as this one only when: the initial decision contains erroneous 

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

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

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review. Except as expressly MODIFIED by this Final 

Order to: (1) clarify that the appellant’s performance was unacceptable in at least 

one critical element of her position; (2) find that the appellant failed to establish 

that the agency committed harmful error; and (3) change the grounds for finding 

that the appellant failed to establish her affirmative defense of disability 

discrimination, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant was a GS-9 Passport Specialist with the agency. Initial 

Appeal File (IAF), Tab 1 at 1, Tab 13 at 297. In February 2011, the appellant’s 

supervisor issued her a summary rating of “not successful” for the performance 

evaluation period ending December 31, 2010. IAF, Tab 12 at 52, 58. In 

response, the appellant asserted that she had been unable to perform successfully 

due to “medical issues.” Id. at 59. 

¶3 Approximately 4 months later, on June 6, 2011, the agency notified the 

appellant that it would place her on a 45-day performance improvement plan 

(PIP) based upon her unsuccessful performance in two out of three components of 
3

one of the critical elements of her position. Id. at 53-55; IAF Tab 15 at 92-93, 

134-36. Specifically, the agency notified the appellant that her performance was 

unsuccessful in Critical Performance Element 1, Employee Work Commitments 

and Standards, Work Commitment 1a, which required her to apply citizenship 

law, passport regulations, and procedural guidance, and to evaluate the 

sufficiency of evidence submitted in support of passport applications. IAF, 

Tab 15 at 92, 134-35. The agency further notified the appellant that her 

performance was unsuccessful in Critical Performance Element 1, Employee 

Work Commitments and Standards, Work Commitment 1c, which required her to 

meet production quotas in adjudicating passport applications and specify

maximum allowable rates for certain types of errors in adjudicating the 

applications. Id. at 92, 135-36. 

¶4 The agency enclosed a 1-page Reasonable Accommodation Request form

with the PIP letter, and advised that, if the appellant suffered from a medical 

condition and wanted to request reasonable accommodation, she should complete 

and submit the form “as soon as possible but no later than 15 days from the start 

of the PIP.” Id. at 93, 139. On July 6, 2011, 20 days after the PIP began, the 

appellant emailed her supervisor, stating that she was awaiting the results of a 

sleep study and “may need some accommodations.” IAF, Tab 12 at 244, Tab 15

at 84. The appellant’s supervisor responded that requests for accommodation 

should be made through the agency’s Disability Reasonable Accommodation 

Division (DRAD). IAF, Tab 12 at 243. 

¶5 The next day, the appellant called the agency’s Human Resources Office to 

discuss her PIP and her medical issues. IAF, Tab 57 at 19. In response, a

Reasonable Accommodation and Disability Coordinator emailed the appellant 

18 days later to offer the appellant “assistance with reasonable accommodations 

should [she] wish to pursue.” Id. The Coordinator also sent the appellant another 

copy of the Reasonable Accommodation Request form. IAF, Tab 58 at 4. The 

appellant responded that she was awaiting additional information from her doctor. 
4

Id. The appellant did not submit a Reasonable Accommodation Request form and 

has not asserted that she provided the agency with additional information 

regarding her medical condition prior to the conclusion of the PIP. See IAF, 

Tab 61 at 19, 26, Tab 63; see also Petition for Review (PFR) File, Tab 1. 

¶6 After the PIP concluded, the appellant’s supervisor notified her that her 

performance in components 1a and 1c of the Work Commitment critical element 

remained unacceptable. IAF, Tab 15 at 91. Approximately 6 months later, the 

agency proposed the appellant’s removal, based on her unacceptable performance 

during the PIP. IAF, Tab 14 at 76-85. In response to the notice of proposed 

removal, the appellant stated that her performance had been affected by medical 

conditions, she was unaware that she could request a reasonable accommodation 

during the PIP, and she wanted to request a disability retirement.

2

 Id. at 21-25, 

75. After considering the appellant’s responses, the agency issued a decision to 

remove her, effective June 4, 2012. IAF, Tab 13 at 297, 299-304, Tab 14 at 4-7. 

¶7 The appellant filed an equal employment opportunity (EEO) complaint

regarding her removal, which the agency failed to resolve within 120 days. IAF, 

Tab 4 at 4, Tab 8 at 13; see 5 C.F.R. § 1201.154(b)(2) (if the agency has not 

resolved or issued a final decision on a formal complaint of discrimination within 

120 days, the appellant may appeal the matter directly to the Board any time 

thereafter). Subsequently, the appellant filed a timely Board appeal challenging 

her removal and raising affirmative defenses of discrimination based on age and 

disability (“stress issues,” chronic obstructive pulmonary disease, emphysema, 

and Bird Fancier’s Lung).

3

 IAF, Tab 1 at 1, 3, 5, Tab 57 at 4-7, Tab 63 at 4-12. 

 2 The appellant applied for disability retirement, and the Office of Personnel 

Management approved her disability retirement application. Hearing Transcript (HT) 

at 260-61, 275.

3 Bird Fancier’s Lung is an allergic inflammatory lung condition caused by inhaling 

particulate substances from birds. Stedman’s Medical Dictionary, 1122 (28th ed. 2006). 
5

¶8 Following a hearing, the administrative judge issued an initial decision 

affirming the appellant’s removal and denying her affirmative defenses. IAF, 

Tab 74, Initial Decision (ID). 4

 

¶9 The appellant has filed a timely petition for review. PFR File, Tab 1. The 

agency has responded to the petition for review. PFR File, Tab 10. In addition, 

the Disability Law Center, Inc. (DLC) has filed an amicus curiae brief, and the 

agency filed a timely response to the amicus curiae brief. 5

 PFR File, Tabs 13, 

15; see PFR File, Tab 12 at 2. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶10 In a performance-based action taken under chapter 43, such as this one, an 

agency must prove by substantial evidence that: (1) the Office of Personnel 

Management approved its performance appraisal system; (2) the agency 

communicated to the appellant the performance standards and critical elements of 

her position; (3) the appellant’s performance standards are valid under 5 U.S.C. 

§ 4302(b)(1); (4) the agency warned the appellant of the inadequacies of her 

performance during the appraisal period and gave her a reasonable opportunity to 

improve; and (5) the appellant’s performance remained unacceptable in at least 

one critical element. White v. Department of Veterans Affairs, 120 M.S.P.R. 405, 

¶ 5 (2013). On review, the appellant does not challenge the administrative 

judge’s finding that the agency met its burden of proof in a chapter 43 

 4 On review, the appellant does not challenge the administrative judge’s findings 

regarding her age discrimination claim. PFR File, Tab 1; ID at 18. We see no basis to 

disturb these findings.

5 The appellant has submitted two additional pleadings in reply to the agency’s response 

to the amicus brief. PFR File, Tab 16 at 4, Tab 17 at 4. We did not authorize the 

appellant to reply to the agency’s response to DLC’s amicus brief and, to the extent that 

she is also responding to DLC’s brief, her response is untimely filed without good cause 

shown. See PFR File, Tabs 12, 14, Tab 16 at 4, Tab 17 at 4. We have reviewed these 

submissions, in any event, and find that they either repeat the appellant’s contentions in 

her petition for review or reiterate the arguments that DLC presented in its amicus brief. 
6

performance action here, and we see no basis to disturb those well-reasoned 

findings on review. 6

 PFR File, Tabs 1, 8; ID at 4-13.

The agency did not commit harmful error when it failed to bargain over Standard 

Operating Procedures (SOP).

¶11 On review, the appellant argues that a new decision by the Federal Labor 

Relations Authority (FLRA) demonstrates that her performance standards were 

implemented “in violation of law” because the agency refused to negotiate with 

her union regarding a proposal that would have “given all passport specialists, 

including [the appellant], additional time to adjudicate applications.” 7

 PFR File, 

 6 However, we modify the administrative judge’s erroneous referral to the appellant’s 

performance as unacceptable in two critical elements. ID at 13. The record reflects 

that Work Commitments 1a and 1c were components of critical element 1, Employee 

Work Commitments and Standards. IAF, Tab 12 at 53-54, 58. Therefore, the 

appellant’s performance was unacceptable in one critical element only. Nonetheless, 

this error was not prejudicial to the appellant’s substantive rights. See 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). Failure to demonstrate acceptable performance under a single critical 

element will support a removal under chapter 43. Towne v. Department of the Air 

Force, 120 M.S.P.R. 239, ¶ 29 n.12 (2013); see Lee v. Environmental Protection 

Agency, 115 M.S.P.R. 533, ¶ 36 (2010) (holding that an agency must prove by 

substantial evidence that failure on some, but not all, of the components of a critical 

element is failure on the entire element by presenting evidence that the appellant knew 

or should have known of the significance of the components and evidence of the 

importance of the components to the critical element as a whole); IAF, Tab 15 at 92-93, 

134-36; HT at 66, 135, 147-48.

7 The appellant has moved for leave to submit this FLRA decision on review. See PFR 

File, Tab 8. We GRANT her motion. See Curtin v. Office of Personnel Management, 

846 F.2d 1373, 1378-79 (Fed. Cir. 1988) (holding that the Board has discretion to make 

evidentiary rulings in the course of proceedings before it); 5 C.F.R. § 1201.115(e) 

(providing that the Board has authority to consider any issue in an appeal before it). 

Because the decision is publicly available on the FLRA website, we have taken official 

notice of it, and it is unnecessary for the appellant to submit a physical copy. See

5 C.F.R. § 1201.64 (allowing the Board to take official notice of matters that can be 

verified); see also United States Department of State Passport Services & National 

Association of Government Employees, Local R4-78, AFL-CIO, Case No. WA-CA-11-

0109, 2014 WL 2917661 (F.L.R.A. June 13, 2014).

 
7

Tab 8 at 4. Because the FLRA decision was issued after the initial decision, it 

appears that the appellant is arguing that her petition for review should be granted 

because of new and material evidence. See 5 C.F.R. § 1201.115(d).

¶12 The Board generally will not consider evidence submitted for the first time 

on review absent a showing that: (1) the documents and the information 

contained in the documents were unavailable before the record closed despite due 

diligence; and (2) the evidence is of sufficient weight to warrant an outcome 

different from that of the initial decision. See Carson v. Department of 

Energy, 109 M.S.P.R. 213, ¶ 21 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009); 

see also 5 C.F.R. § 1201.115(d). Here, the parties presented evidence and 

argument regarding the FLRA complaint at issue during the Board hearing. See

HT at 11-12, 89-91, 96-97. However, the FLRA decision itself post-dates the 

initial decision, and the information that the FLRA found to determine that the 

agency failed to bargain over the SOP is new. We find, though, that the appellant 

has failed to demonstrate that the FLRA decision is of sufficient weight to

warrant an outcome different from that of the initial decision. 8

 See Russo v. 

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a 

petition for review based on new evidence absent a showing that it is of sufficient 

weight to warrant an outcome different from that of the initial decision). 

 

In her motion for leave, the appellant also presents an argument that she did not raise in 

her petition for review. See PFR File, Tab 1, Tab 8 at 4-5 & n.1. She contends that the 

administrative judge erred in finding that a different 2013 arbitration decision regarding 

2012 performance standards for Passport Specialists was not relevant because the 

appellant was evaluated during the PIP under the 2011 standards. Id.; see ID at 6; see

also IAF, Tab 18 at 4-16; HT at 100-01. Because the appellant presented a similar 

argument below, we GRANT her leave to present the argument regarding the 

2013 arbitration decision on review. See IAF, Tab 18 at 3, Tab 63 at 15. However, 

having considered the appellant’s argument, we discern no basis to disturb the 

administrative judge’s conclusion that the 2013 arbitration decision is not relevant to 

the instant appeal. See ID at 6. 

8 Because we find that the FLRA decision is not material to the outcome of her appeal, 

we do not address the agency’s argument that the appellant did not act with due 

diligence to discover its existence. See PFR File, Tab 11 at 4-5.
8

¶13 The FLRA decision did not make any findings regarding the validity of the 

performance standards for Passport Specialists. See United States Department of 

State Passport Services & National Association of Government Employees, Local 

R4-78, AFL-CIO, Case No. WA-CA-11-0109, 2014 WL 2917661. Instead, an 

FLRA administrative law judge found that the agency committed an unfair labor 

practice when, in July 2010, it implemented certain changes to an SOP that 

Passport Specialists use in adjudicating passport applications without engaging in

union negotiations. Id. at 1-4, 6-10. The administrative law judge ordered the 

agency to bargain with the union upon request regarding the impact and 

implementation of the July 2010 changes to the SOP. Id. at 10-11. 

¶14 We interpret the appellant’s argument that the performance standards were 

in violation of law as an allegation of harmful procedural error.

9

 See Slavich v. 

Social Security Administration, 102 M.S.P.R. 171, ¶ 8 (2006) (applying a harmful 

error standard to an appellant’s claim that her performance standards were invalid 

because the agency did not comply with the terms of a collective bargaining 

agreement in creating the standards); see also DeSousa v. Agency for 

International Development, 38 M.S.P.R. 522, 526 (1988) (applying a harmful 

error standard to an appellant’s claim that an agency violated a collective 

bargaining agreement in establishing his performance standards). To establish

harmful error, the appellant must demonstrate that it is likely that the error 

affected the outcome of the action before the agency. See Jimenez-Howe v. 

Department of Labor, 35 M.S.P.R. 202, 205-06 (1987); see also 5 C.F.R. 

§ 1201.56(c)(1) (an appellant bears the burden of proving harmful error). 

¶15 Here, the appellant has not asserted that she was unaware that she was 

expected to apply the SOP, as modified in July 2010, in adjudicating passport 

 9 PFR File, Tab 8 at 1; 5 U.S.C. § 7701(c)(2)(A)-(C); see Stephen v. Department of the 

Air Force, 47 M.S.P.R. 672, 683-84 (1991) (an appealable action should be reversed as 

being “not in accordance with law” if the agency’s action is unlawful in its entirety, 

i.e., if there is no legal authority for the action).
9

applications when her performance was evaluated under the PIP. See PFR File, 

Tabs 1, 8. Furthermore, she has not presented any evidence that her performance 

would have been acceptable if she had adjudicated passport applications under the 

former version of the SOP. Id. Accordingly, we find that the appellant has failed 

to establish harmful error regarding the failure to bargain at issue in the new 

FLRA decision. 

The appellant did not establish that the agency discriminated against her by 

failing to accommodate her disability. 

¶16 On review, the appellant and DLC argue that the administrative judge erred 

in finding that the appellant failed to request a reasonable accommodation. PFR 

File, Tab 1 at 4-8, Tab 13 at 3-15. Both DLC and the appellant contend that the 

appellant’s July 2011 emails to her supervisor and the agency’s Reasonable 

Accommodation and Disability Coordinator constituted a request for reasonable 

accommodation. 10 PFR File, Tab 1 at 7-8, Tab 13 at 12-13. DLC also argues that 

the agency knew that the appellant suffered from a disability prior to placing her 

on the PIP and should have engaged in an interactive process to determine an 

appropriate accommodation. PFR File, Tab 13 at 6-7, 9-10, 13-14. In addition, 

the appellant contends that her response to the notice of proposed removal 

 10 Alternatively, the appellant and DLC argue that the statement in the PIP letter that 

the appellant could request a reasonable accommodation “no later than 15 days from the 

start of the PIP” caused her to believe that she could not request an accommodation 

later in the PIP process. PFR File, Tab 1 at 5, 8, Tab 13 at 10-11. During her hearing 

and deposition testimony, the appellant testified that she did not recall reading the 

information regarding reasonable accommodation in the PIP letter. See HT at 269-70; 

see also IAF, Tab 61 at 18-19. Moreover, the appellant’s July 2011 correspondence 

with her supervisor and the Reasonable Accommodation and Disability Coordinator 

appear to indicate that the agency would have considered a request for reasonable 

accommodation that was submitted later than 15 days after the start of the PIP. See

IAF, Tab 12 at 243, Tab 57 at 19, Tab 58 at 4. However, the appellant’s response 

implied that she was waiting for more medical information. IAF, Tab 58 at 4 (“I see my 

lung doctor tomorrow, so I will know a little more then. I am really not sure . . . if 

there is something I need to ask for. . . . I should find out what is going on with my 

breathing issues now at this appointment.”). Accordingly, we find that the appellant 

failed to establish that she was confused or misled regarding her ability to request a 

reasonable accommodation during the PIP. 
10

constituted a request for reasonable accommodation, which the agency was 

obligated to consider, because she was still an employee when she responded. 

PFR File, Tab 1 at 7-8. 

¶17 We find that we need not resolve the issue of whether the appellant 

requested a reasonable accommodation because we disagree with the 

administrative judge’s conclusion that the appellant established that she was a 

qualified individual with a disability. 11 See ID at 21. An agency is required to 

provide reasonable accommodation to the known physical or mental limitations of 

an otherwise qualified individual with a disability unless the agency can show 

that accommodation would cause an undue hardship on its business operations. 

Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). With 

exceptions not applicable here, the term “qualified” means that the individual 

satisfies the requisite skill, experience, education and other job-related 

requirements of the employment position the 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). Reasonable accommodation includes 

modifications to the manner in which a position is customarily performed in order

to enable a qualified individual with a disability to perform the essential job 

functions, or reassignment to a vacant position whose duties the employee can 

perform. Clemens, 120 M.S.P.R. 616, ¶ 10. 

¶18 The appellant bears the burden of proving that she is a qualified individual 

with a disability i.e., a disabled individual who can perform the essential 

functions of her position, with or without reasonable accommodation. See Paris 

v. Department of the Treasury, 104 M.S.P.R. 331, ¶ 24 (2006); see also 29 C.F.R. 

§ 1630.2(m). We agree with the administrative judge’s finding, for the reasons 

set forth in the initial decision, that the appellant established that she is an 

individual with a disability because her medical conditions substantially limit her 

 11 In the initial decision, the administrative judge did not explain the basis for this 

finding. See ID at 21. 
11

major life activities. See ID at 21; see also IAF Tab 12 at 132, 134, 

141; 29 C.F.R. § 1630.2(g)(1) (defining “disability”). However, we disagree with 

the administrative judge’s finding that the appellant established that she could 

perform the essential functions of her position, either with or without 

accommodation. 

¶19 We find that Critical Element 1, Employee Work Commitments and 

Standards, was an essential function of the appellant’s position. See IAF, Tab 12 

at 53-54 (setting forth Critical Element 1). The term “essential function” means 

the fundamental job duties of the position the individual with a disability holds, 

not including marginal functions. 29 C.F.R. § 1630.2(n)(1). It includes those 

duties that are the reasons for which a position exists. See 29 C.F.R. 

§ 1630.2(n)(2)(i); see also Clemens, 120 M.S.P.R. 616, ¶ 6. Here, the agency 

presented evidence that the purpose of the Passport Specialist position is to 

determine the entitlement of applicants for U.S. passports and to facilitate 

legitimate travel to and from the United States. See IAF, Tab 12 at 52; HT at 66. 

Thus, the purpose of the position is to perform the function of Critical Element 1, 

which required the appellant to apply law, regulations, and guidance to determine

if applicants were entitled to passports, and efficiently and accurately adjudicate

passport applications. 12 See IAF, Tab 12 at 53-54, Tab 15 at 134-35. 

¶20 It is undisputed that the appellant was unable to demonstrate successful 

performance in both qualitative and quantitative performance standards of Work 

Commitments 1a and 1c of Critical Element 1 during the PIP. To demonstrate 

successful performance in Work Commitment 1a, the appellant could make no 

 12 In addition, an employer’s judgment is relevant evidence to be considered in 

determining whether a function is essential. 29 C.F.R. § 1630.2(n)(3)(i). Here, the fact 

that the agency designated Critical Element 1 as a critical element demonstrates that the 

agency considered it to be an essential function. See 5 C.F.R. § 430.203 (defining a 

critical element as a work assignment or responsibility of such importance that 

unacceptable performance on the element would result in a determination that an 

employee’s overall performance is unacceptable).
12

more than six significant knowledge errors when adjudicating passport 

applications during the PIP. 13 IAF, Tab 15 at 134-35. The agency demonstrated

that the appellant made forty-seven significant knowledge errors. IAF, Tab 14 

at 78-82, 99-111, Tab 15 at 4-13. Work Commitment 1c specified that, among 

other things, the appellant was required to adjudicate an average of sixteen to 

eighteen new passport applications 14 per hour, and an average of thirty-four to 

thirty-eight renewal passport applications 15 per hour, and set forth maximum rates 

of certain other types of errors that she could not exceed. IAF, Tab 15 at 135-36. 

The agency established that the appellant adjudicated only an average of 8.78 new 

passport applications, and 18.41 renewal passport applications, per hour during 

the PIP, and exceeded the maximum rate of each of the error types addressed 

under Work Commitment 1c. IAF, Tab 14 at 83, Tab 15 at 33-34, 37-60. 

¶21 As a result, we find that the appellant failed to establish that a reasonable 

accommodation would have enabled her to satisfy the performance standards in 

Work Commitments 1a and 1c. The appellant asserts that the agency could have 

accommodated her by moving batches of passport applications that she was 

required to adjudicate closer to her desk. See PFR File, Tab 1 at 8; see also HT 

at 242. However, as discussed above, the appellant’s performance was 

significantly deficient in qualitative, as well as quantitative, aspects of a critical 

element of her position, and she has not adequately explained how an 

accommodation would have resolved these deficiencies. To prevail on a claim of 

disability discrimination, the appellant cannot merely articulate an 

 13 A significant knowledge error is an error that violates one of the components of Work 

Commitment 1a, and is equivalent to issuing a passport where one should not be issued, 

or in the absence of sufficient information to determine whether it should have been 

issued. HT at 72-73. 

14 The performance standard referenced “DS-11 passport applications,” which are 

submitted by first-time applicants or applicants who have not held a passport in 

15 years. IAF, Tab 14 at 135 of 157; HT at 87. 

15 The performance standard referenced “DS-82 passport applications,” which are 

passport renewal applications. IAF, Tab 14 at 135 of 157; HT at 87.
13

accommodation, but instead, must prove that the accommodation would enable 

her to perform the essential duties of her position. See Paris, 104 M.S.P.R. 331

at ¶ 24. Based upon the evidence that the appellant elected to present on this 

issue below, we find that she failed to prove that her articulated accommodation 

would enable her to meet her performance standards. 

¶22 However, this does not end the inquiry of whether the appellant is entitled 

to an accommodation. She also would be entitled to be considered for 

reassignment to a vacant funded position for which she was otherwise qualified as 

a form of reasonable accommodation. See Gonzalez-Acosta v. Department of 

Veterans Affairs, 113 M.S.P.R. 277, ¶ 14 (2010); see also 29 C.F.R.

§ 1630.2(o)(2)(ii), (q). At hearing, the appellant testified that after her 

unsuccessful performance appraisal in 2010, she asked her supervisor if she could 

reduce her pay grade to assist her in meeting her production quotas. HT at 256. 

Yet, the appellant has not established that any vacant, funded positions at a lower 

pay grade were available. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 46, 

53-54 (1998) (in a disability discrimination claim, the appellant bears the ultimate 

burden of proving that vacant, funded positions for which she was otherwise 

qualified were available). Furthermore, she has not presented any evidence 

regarding the essential duties of a Passport Specialist at a lower pay grade, or that 

she would have been able to perform those duties, either with or without 

accommodation. Accordingly, we find that the administrative judge correctly 

determined that the appellant failed to meet her burden of proof on her 

affirmative defense of disability discrimination. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to 

request further review of this final decision. 
14

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

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

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 
15

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.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board