Shantella Barge V Department Of Defense

Key Facts

Issues

• The Board assessed whether the agency established the requisite nexus between the excessive absence charge and service efficiency, and whether the removal penalty was reasonable under the Douglas factors. The Board found the nexus requirement was clearly met for an absence-related charge and that the agency's penalty was reasonable given the substantial absences and relevant factors considered.
• The Board examined whether the appellant satisfied her burden of proving disability discrimination, including whether she engaged in the interactive process for reasonable accommodation. The Board found the appellant did not meet her burden because she rejected reasonable alternatives offered by the agency, refused to provide adequate medical documentation, and failed to engage in good faith efforts to negotiate accommodations.
• The Board determined whether the agency could sustain a charge of excessive absence when the leave occurred before the agency warned the employee about potential discipline, considering the Williams v. Department of Commerce and Cook v. Department of the Army precedents. The Board modified the initial decision to apply the correct legal standard and found that while leave prior to the February 9, 2017 warning could not be used, the 480 hours of LWOP after the warning was excessive.

Holdings

Remedies

Legal Principles

• The appellant failed to establish any basis under section 1201.115 for granting the petition for review. To establish disability discrimination, an employee must show that she is an individual with a disability, she is a qualified individual with a disability, and the agency failed to provide a reasonable accommodation. The appellant did not meet her burden of proving disability discrimination because she failed to engage in the interactive process in good faith and refused to provide adequate medical information.
• An agency is required to reasonably accommodate 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. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about her disability and functional limitations. If the employee fails to respond to the employer's reasonable request for medical information or documentation, an agency will not be found to have violated its duty to provide a reasonable accommodation.
• Generally, an agency may not take an adverse action based on an employee's use of approved leave. However, an exception exists when: (1) the employee was absent for compelling reasons beyond her control so that agency approval or disapproval of leave was immaterial; (2) the absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless she became available for duty on a regular, full-time or part-time basis; and (3) the agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis. Absences that predate the warning required under Cook cannot be used to support an excessive absence charge.
• In addition to proving its charge, an agency's burden in an appeal includes establishing a nexus between the charge and the efficiency of the service and demonstrating that the penalty imposed was reasonable. When the agency's charge is sustained, the Board will review the agency-imposed penalty to determine if the agency considered all of the relevant factors and exercised management discretion within the tolerable limits of reasonableness. The Board must give due weight to the agency's primary discretion in maintaining employee discipline and efficiency.

Precedent Name

• Combs v. Social Security Administration
• Cook v. Department of the Army
• Miller v. Department of the Army
• Williams v. Department of Commerce
• Pope v. U.S. Postal Service
• Rosario-Fabregas v. Department of the Army
• Douglas v. Veterans Administration
• Cole v. Department of Veterans Affairs
• Singletary v. Department of the Air Force
• Gartner v. Department of the Army

Cited Statute

• Definition of disability
• Time limits for seeking judicial review
• Final Board decision procedures
• Whistleblower reprisal protection
• Review of Board decisions
• Reasonable accommodation requirements
• EEOC review of discrimination claims

Judge Name

• Henry J. Kerner
• James J. Woodruff II

Passage Text

• However, an exception exists when the following criteria are met: (1) the employee was absent for compelling reasons beyond her control so that agency approval or disapproval of leave was immaterial because she could not be on the job; (2) the absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless she became available for duty on a regular, full-time or part-time basis; and (3) the agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis. In Williams, which was issued after the initial decision in this case, the Board held that absences that predate the warning required under Cook cannot be used to support an excessive absence charge.
• In addition to proving its charge, an agency's burden in an appeal such as this includes establishing a nexus between the charge and the efficiency of the service and demonstrating that the penalty imposed was reasonable. The nexus requirement is clearly met in this case of excessive absences. We also find the agency's penalty to be reasonable. When, as here, the agency's charge is sustained, the Board will review the agency-imposed penalty to determine if the agency considered all of the relevant factors and exercised management discretion within the tolerable limits of reasonableness. Here, the record before us suggests that the deciding official thoughtfully considered the Douglas factors.
• The appellant did not meet her burden of proving disability discrimination. The appellant requested seating by a window, seating with her back against a wall, and telework twice a week. However, the appellant rejected offers of a cubicle near a window and insisted on a cubicle with a window of her own. The appellant refused to consult with Northrop Grumman officials who controlled the facility and wanted to discuss associated options that were structurally feasible. The appellant refused the agency's alternative offer of modified work hours to lessen the traffic and resulting stress. The appellant hindered those efforts, providing no additional medical documentation or access.