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Federal Employees News Digest : Nov 4, 2013
November 4, 2013 Vol. 63, No. 16 8 Visit us on the Internet at www.FederalDaily.com Was Army nurse denied due process and improperly removed? This week in "You Be The Judge," an Army employee appeals the agency's failure to find her a suitable alternative job after she is removed for being "unable to perform the essential functions of her position." The employee, whom we will call Jane Doe,* was ordered to submit to a "fitness for duty" exam after she became increasingly challenged in her functioning at work. Doe was on the job when she showed signs of increasing disability due to a respiratory dis- order. After the exam showed she was unfit for her job's duties, she was removed from her position. She sought a new position with the agency, but the agency failed to find her anything suitable. She appealed to the Merit Systems Protection Board, claiming the agen- cy "should have tried harder" to find a slot that would not provoke respiratory symptoms. The agency contended that it could not---and an MSPB administrative judge was asked to review procedures that were effected in the case. Should Doe get another chance at an alternative slot? Or did the Army perform an adequate search---and simply found that there was nothing suitable for her? Read the details of the case---and con- sider the law and the precedents. You be the judge. FACTS: Doe was a Nurse-Clinical/Medical-Surgical, GS-0610- 10, at the agency's Blanchfield Army Community Hospital (BACH) in Fort Campbell, Ky. In Nov. 2011, medical documentation showed she had developed "a chronic respiratory disorder triggered by the phenols found in the cleaning solutions and solvents used in the hospital." Doe submitted to fitness for duty testing, the results of which showed she could not continue at her post unless exposure to these chemicals---and other "fumes and fragrances"---could be eliminated. This was determined to be impossible and, on Jan. 10, 2012, the agency removed Doe for "medical inability to perform the duties of her position," according to official documents in the case. The agency stated that it meanwhile was attempting to find her a reasonable alternative posting, but later said it was unable to do so. Doe next appealed her removal to the Merit Systems Protection Board---not to contest her removal, but to argue that the "agency should have tried harder to find her a position at a facility not sub- ject to such stringent sanitation requirements," and therefore not necessitating the use of such strong chemicals. She also argued that her due process rights were violated, because the agency had not permitted her to respond orally to the charges. Specifically, Doe noted that she had obtained an extension of her case into February 2012, and had engaged a union representative who requested a chance for oral reply to the agency's deciding offi- cial. The union official cited the case Alford v. Department of Defense (2013), in which such an extension also included permitting extra time for oral reply. But, in Doe's case, the deciding official did not respond to the request for oral reply---finding that any extension was just for consideration of other materials, and past the deadline for oral reply. Instead, on Feb. 21, the official sustained the decision and ordered Doe's removal---noting there had been no written reply. An administrative judge with the MSPB considered the argu- ments in the case, and found for the agency---rejecting both of Doe's key claims. Doe appealed again, to the full board. Did the agency---and the AJ---improperly interpret the Alford precedent? DECISION: The MSPB reconsidered Doe's case. First, the board found for Doe on the issue of the failure to permit an oral reply. The "updated proposal notice [along with the precedent case Alford] afforded the appellant two weeks from his receipt of the letter in which to file a written response and/or request an oral reply," MSPB wrote. On the agency's failure to permit an extension of oral reply, as required by Alford, the full board found the agency and the AJ had denied Doe her due process rights. In essence, the MSPB found that the human resources specialist at the agency responsible for the case misinterpreted Alford and "created the delays that the agency said barred the appellant from offering an oral reply" --- and the AJ mistakenly had permitted this error. Regarding Doe's claim of disability discrimination, the full board found for the Army. On the one hand, it is unlawful for the agency not to make an accommodation for a disability for an "oth- erwise qualified employee” (29 C.F.R. § 1630.9(a)). But it is also the appellant's burden to prove that alternative positions existed and were requested---furnishing vacancy notices, job applications and requests for accommodation to the MSPB. Here, Doe did not fulfill this requirement, the board ruled. In the end, the board ruled that, based on the denial of due process suffered by Doe, her removal must be canceled. She was restored to paid status, effective back to Feb. 24, 2012---and must be compensated accordingly. (Merit Systems Protection Board, Docket No. CH-0752-12- 0362-I-3, 10/25/13) *The name has been changed but details are from an actual case.
Oct 28, 2013
Nov 11, 2013