UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JESSE WORTHEN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

SF-0432-14-0539-I-1

DATE: June 26, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Justin Prato, Esquire, San Diego, California, for the appellant.

Eric LaZare, Esquire, San Diego, California, for the agency.

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 

sustained his removal. Generally, we grant 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The agency removed the appellant from the GS-11 position of Program 

Analyst based on unacceptable performance. Initial Appeal File (IAF), Tab 5, 

Subtabs 4a-4b. Specifically, the agency charged that the appellant’s performance 

was unacceptable in the critical elements of Program Administration Management 

and Planning, and Communication. Id., Subtabs 4b, 4m. Regarding the critical 

element Program Administration Management and Planning, the agency charged 

that the appellant failed to: (1) input Methicillin-resistant Staphylococcus Aureus 

(MRSA) and Clostridium Difficile Infection (CDI) data into the Inpatient 

Evaluation Center by the submission deadline each month with no more than two 

errors per year; (2) analyze MRSA data for swab completion rates, prevalence 

rates and transmission rates by unit, and share information with unit leadership; 

(3) consistently complete assigned work within identified timeframes; and 

(4) assure that monthly Hand Hygiene/Transmission Based Precaution 

observations were entered monthly, and prepare graphs and monthly reports for 

the Infection and Environmental Control Committee use. Id., Subtab 4m. 

Regarding the Communication critical element, the agency charged that the 

appellant failed to timely and accurately complete written communication. Id.
3

¶3 The appellant appealed the agency’s action, alleging that he did not “under 

perform,” and that any performance issues were caused by the agency’s failure to 

accommodate him or to provide assistance. IAF, Tab 1. He also asserted that the 

agency discriminated against him on the basis of his disabilities of: (1) back and 

neck injuries suffered in a parachuting accident while he was in the Army that 

limited his ability to sit for long periods, walk long distances, and lift; and 

(2) a work-related repetitive stress injury for which he needed surgery to remove 

a nerve, leaving him with pain in his arm and loss of some fine motor skills. Id.; 

IAF, Tab 9. Additionally, the appellant alleged that the agency committed 

harmful procedural error in considering the Douglas factors. IAF, Tab 12. The 

appellant requested a hearing that the administrative judge held on July 30, 2014. 

IAF, Tabs 1, 17.

¶4 The administrative judge noted that, when the agency charged the appellant 

with unacceptable performance, he was working under approved accommodations

that indicated that the agency would: (1) provide him with an ergonomic chair 

and a sit-and-stand desk; (2) restructure his daily activities to require data entry 

in no more than 30-minute intervals; (3) recommend a desk audit to determine if 

the job duties of the position description were accurate; and (4) provide assistance 

on a temporary basis to clean up his backlog of past assignments while he

performed his daily duties. IAF, Tab 19, Initial Decision (ID) at 4-5, Tab 12, 

Exhibit A. It was with these accommodations in mind that the administrative 

judge determined that the agency proved that the appellant’s performance was 

unacceptable as charged. 

¶5 The administrative judge found that the agency established that the Office 

of Personnel Management (OPM) had approved the agency’s performance 

appraisal system, ID at 11, and that the agency communicated to the appellant the 

critical elements and performance standards of his position, ID at 11-15, warned 

him of the inadequacies of his performance during the appraisal period, and gave 

him a reasonable opportunity to improve during a performance improvement plan
4

(PIP) period, ID at 15-22. She found that, during the PIP period, the appellant’s 

performance remained unacceptable in the critical elements for which he was 

provided an opportunity to demonstrate acceptable performance. ID at 22-25.

¶6 The administrative judge also found that the appellant failed to prove his 

affirmative defenses. ID at 25-33. She found that, although the factors 

enumerated in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981),

are not applicable in a removal for unacceptable performance taken under 

chapter 43, the appellant failed to show that he was harmed by the deciding 

official’s consideration of the Douglas factors in deciding to remove him. ID 

at 27-28. Thus, she found that the appellant failed to prove harmful procedural 

error. She also found that the appellant presented no evidence to show that 

agency officials were motivated by discriminatory animus in their efforts to 

identify hindrances to the appellant’s successful performance, provide 

accommodations designed to assist him in improving his performance, and 

evaluate his performance during the PIP period. ID at 32-33. Thus, she found 

that the appellant failed to prove his disability discrimination claim.

¶7 The appellant has petitioned for review, alleging that the administrative 

judge erred in finding that the agency provided him a meaningful improvement 

period despite issues with his computer and work programs. He also contends 

that the agency did not give him the assistance he was promised. The appellant 

further alleges that the administrative judge erred in finding that that the agency 

accommodated his disability when it failed to provide him with agreed-upon 

accommodations. Petition for Review (PFR) File, Tab 1. 

¶8 In a performance-based action under chapter 43, an agency must establish 

by substantial evidence that: (1) OPM approved its performance appraisal 

system; (2) the agency communicated to the appellant the performance standards 

and critical elements of his 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 his performance during the appraisal period and gave him a 
5

reasonable opportunity to improve; and (5) the appellant’s performance remained 

unacceptable in at least one critical element. Henderson v. National Aeronautics 

& Space Administration, 116 M.S.P.R. 96, ¶ 9 (2011); Lee v. Environmental 

Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). Substantial evidence is the 

“degree of relevant evidence that a reasonable person, considering the record as a 

whole, might accept as adequate to support a conclusion, even though other 

reasonable persons might disagree.” 5 C.F.R. § 1201.56(c)(1). 

¶9 As noted, the administrative judge found, and the appellant does not dispute 

on review, that the agency met the first three elements of its burdens of proof. 

The appellant’s contention is that, although the agency warned him of the 

inadequacies of his performance in the critical elements of Program 

Administration Management and Planning, and Communications, he was not 

given a meaningful opportunity to improve. 

¶10 The appellant’s assertions on review that issues with the MRSA software 

prevented him from being able to complete his duties in a timely manner are the 

same as those he advanced below. The administrative judge addressed the 

appellant’s assertions. She noted that the appellant claimed that the MRSA 

software was flawed and required adjustments to enter the data accurately. ID 

at 17-19. He claimed that the “work around” that his supervisor told him to use 

would not address the programming problem. ID at 18. As a result, he did not 

complete the data entry or complete a report concerning MRSA for any month of 

the 60-day PIP period. ID at 18. The administrative judge found that the agency 

did not dispute that the nationally distributed program that the appellant had to 

use during the PIP period did not interface seamlessly with the operations at his

locality. ID at 18. However, she found that the appellant’s supervisor testified 

credibly that the “work around” she suggested to the appellant would have met 

his needs. ID at 18. The administrative judge also found that, on the other hand, 

the appellant’s testimony that the “work around” would not work was 
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unsupported, as he admitted that he refused to try the “work around.” ID 

at 18-19. 

¶11 In his petition for review, the appellant argues that the Board should credit 

his testimony that the “work around” would not be effective over that of his 

supervisor in light of his familiarity with computers. PFR File, Tab 1 at 2-3. We 

find the appellant’s assertion unavailing. As the administrative judge correctly 

noted, the appellant failed to support his assertion that the “work around” would 

be ineffective for him to perform his duties and he refused to even try to use it. 

Under these circumstances, the appellant’s assertion based on his alleged 

expertise with computer programs amounts to mere disagreement with his 

supervisor’s credible testimony that the “work around” would have been effective 

and provides no basis to overturn the administrative judge’s finding in this 

regard. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 

2002) (the Board must defer to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on the observation of 

the demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so).

¶12 Next, we find the appellant’s assertion on review, that the agency did not 

give him the assistance he was promised to clear up the backlog, is not 

persuasive. As the administrative judge noted, during the PIP period and 

consistent with the accommodation request, the agency did provide the appellant 

temporary assistants to help him clear up his backlog. ID at 20-21 n.8. Further, 

the administrative judge found that, although the appellant claimed during the 

litigation of his appeal that the assistants were incompetent, he made no 

complaints about these employees during the PIP period. ID at 20. Under these 

circumstances, we agree with the administrative judge that any alleged 

deficiencies in the assistance that the agency provided the appellant did not leave 

him without a meaningful opportunity to improve his performance. ID at 22. 
7

¶13 The appellant also contends that he was not provided the desk audit that was 

identified in his reasonable accommodation memorandum. PFR File, Tab 1. The 

memorandum approving the appellant’s accommodation request included a 

notation that he and his supervisor had described additional duties that had been 

given to the appellant over time. IAF, Tab 12, Exhibit A. The accommodation 

agreement provided that a request would be made for a desk audit to determine if 

the job duties of the appellant’s position description were accurate and current. 

Id. As the administrative judge noted, the appellant’s supervisor testified that she 

inquired about providing a desk audit to the appellant as was mentioned in the 

Approval of Accommodation Request, but she was advised that a desk audit was 

unnecessary and that instead it was appropriate to update the appellant’s position 

description to include that he was to prepare reports of CDI data each month. ID 

at 7. However, during the PIP period, the appellant’s supervisor temporarily 

removed the appellant’s CDI reporting responsibilities, and, therefore, those 

responsibilities were not considered in the assessment of his performance during 

the PIP period. ID at 9. Under these circumstances, the appellant’s assertion that 

he was harmed in his ability to perform successfully during the PIP period 

because the agency did not provide a recommended desk audit is unavailing. 

¶14 The appellant further contends that he proved his affirmative defense of 

disability discrimination because the agency failed to provide him the assistance 

to clear up the backlog and failed to provide him a desk audit. An agency is 

required to make a reasonable accommodation to the known physical and 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. 29 C.F.R. § 1630.9(a). Reasonable accommodation includes 

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

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

functions. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). To 
8

establish disability discrimination, 2 an employee must show that: (1) he is an 

individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a 

qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and 

(3) the agency failed to provide a reasonable accommodation. Id.

¶15 We agree with the administrative judge’s determination that the appellant is 

an individual with a disability as defined by 29 C.F.R. § 1630.2(g), i.e., an 

individual with a physical or mental impairment that substantially limits one or 

more of his major life activities. Assuming without deciding that the appellant 

also established that he is a qualified individual with a disability under 29 C.F.R. 

§ 1630.2(m), i.e., that he can perform the essential functions of his position with 

or without reasonable accommodation, we conclude, for the reasons discussed 

above, that the appellant failed to establish that the agency violated its duty of 

reasonable accommodation when it allegedly failed to provide him assistance 

with the backlog and failed to provide the desk audit. As noted, the agency did 

provide the appellant with assistance in clearing up his work backlog pursuant to 

the reasonable accommodation memorandum. Additionally, as noted, the agency 

did not require that, during the PIP period, the appellant perform the additional 

duty of CDI reporting that a desk audit might have shown required further

accommodation. Under the circumstances here, we find that the agency provided 

the accommodation of assistance with the backlog, and did not require that the 

appellant perform the duties during the PIP period that appear to have 

precipitated the requested accommodation of the desk audit. Accordingly, we 

 2 As a federal employee, the appellant’s claim of disability discrimination arises under 

the Rehabilitation Act. However, the standards under the Americans with Disabilities 

Act (ADA) have been incorporated by reference into the Rehabilitation Act. 29 U.S.C. 

§ 791(g). Further, the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 

122 Stat. 3553 (2008) (codified at 42 U.S.C. §§ 12101 et seq.), applies to this appeal 

because the incidents in question occurred after the January 1, 2009 effective date of 

the ADAAA. Although the ADAAA changed the interpretation of the law concerning

the existence of a disability, it did not affect the legal requirements as to reasonable 

accommodation. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11 n. 4 (2012).
9

find that the administrative judge properly found that the appellant failed to prove 

his affirmative defense of disability discrimination based on a failure to 

accommodate.

3

 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

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.

 3 The appellant has not challenged, and we discern no basis to disturb, the 

administrative judge’s finding that the appellant failed to prove his disability 

discrimination claim based on disparate treatment. 
10

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, 

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