NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3317
HATTIE A. DICKERSON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Hattie A. Dickerson, of Warner Robins, Georgia, pro se.
Scott R. Damelin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for respondent. With him on the
brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Mark A. Melnick., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3317
HATTIE A. DICKERSON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in AT0752070399-I-1.
___________________________
DECIDED: March 5, 2008
___________________________
Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit
Judge.
PER CURIAM.
Petitioner Hattie Dickerson (“Dickerson”) appeals from a final decision of the
Merit Systems Protection Board (“Board”) affirming her removal by the Department of
Veterans Affairs (“the agency”) for a medical inability to perform her duties as a staff
nurse, and dismissing her claims for constructive suspension and
restoration/reinstatement. Dickerson v. Dep’t of Veterans Affairs, No. AT-0752-07-
0399-I-1 (M.S.P.B. Aug. 30, 2007) (“Final Decision”). We affirm.
BACKGROUND
Dickerson was hired as a staff nurse on December 21, 1997, at the Veterans
Affairs Medical Center in Dublin, Georgia. On July 24, 2004, Dickerson suffered a
severe allergic reaction for which she was hospitalized. Dickerson claimed that the floor
stripping and waxing chemicals used to clean and sanitize the floors at the hospital
wards caused that allergic reaction. The agency attempted to accommodate
Dickerson’s condition by moving her to other wards in the medical center. She
continued to have allergic reactions at work since she was unable to completely avoid
exposure to the cleaning agents used throughout the medical center. The agency then
temporarily assigned Dickerson to the nursing education office, where she could work in
a carpeted area as a teaching nurse. She apparently did not have an allergic reaction
when working in carpeted areas. Working in the nursing education office, however,
could not completely insulate Dickerson from uncarpeted areas of the hospital, since
she was required to occasionally visit patients in the hospital wards. As a teaching
nurse, Dickerson was also unable to entirely avoid walking through uncarpeted areas
simply to get to her office or to use the bathroom. On November 2, 2005, Dickerson
failed to report for work and did not return thereafter.
In a letter dated October 23, 2006, Dr. Tanner, Dickerson’s physician, confirmed
that her severe allergic reactions were caused by the chemicals used to clean and
sanitize the hospital wards, and cautioned that she should not come within one foot of
those chemicals. On January 9, 2007, the agency issued to Dickerson a notice of a
proposed action to remove her from her position based on her medical inability to fully
perform the job of a staff nurse. On February 15, 2007, the agency informed Dickerson
of its final decision to remove her from her position effective March 2, 2007. Dickerson
appealed her removal to the Board.
2007-3317 2
The administrative judge (“AJ”) found that, given her medical condition,
Dickerson could not perform the essential duties of any staff nurse position, including
those of a teaching nurse. See generally Dickerson v. Dep’t of Veterans Affairs, No.
AT-0752-07-0399-I-1 (M.S.P.B. May. 24, 2007) (“Initial Decision”). The AJ concluded
that the agency could not accommodate Dickerson’s condition, that it had no alternative
but to remove Dickerson, and that her removal was reasonable. The AJ also found that
the removal was not based on prohibited disability discrimination or disability
harassment, on a reprisal for an earlier filed Equal Employment Opportunity claim, or on
retaliation for whistleblowing. With respect to Dickerson’s constructive suspension
claim, the AJ concluded that it did not have jurisdiction because her absence was
voluntary. Also, with respect to Dickerson’s restoration/reinstatement claim, the AJ
concluded that it lacked jurisdiction because Dickerson did not claim that she had
partially or fully recovered from her alleged compensable injury.
The Board denied Dickerson’s petition for review, and the Initial Decision became
the final decision of the Board. This appeal followed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the decision of the Board unless we find it to be “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence . . . .” 5 U.S.C. § 7703(c); Carr v. Soc. Sec.
Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999).
2007-3317 3
On appeal, Dickerson primarily disputes the Board’s findings of fact. She
contends that the Board’s finding that the agency could not accommodate her disability
and place her in a different position was not supported by substantial evidence. She
also asserts that the Board made erroneous credibility findings. The Board’s conclusion
that Dickerson was unable to perform the essential duties of any nursing position at the
medical center was supported by substantial evidence. The Board’s credibility
determinations are “virtually unreviewable” on appeal. Chambers v. Dep’t of Interior,
No. 2007-3050, slip op. at 11 (Fed. Cir. Feb. 14, 2008). Accordingly, the Board did not
clearly err in concluding that Dickerson’s removal was reasonable and that no
accommodation could be made.
We have considered appellant’s other contentions, including her claim of
procedural error during the hearing and her claim of bias by the AJ, and find those to be
without merit.
No costs.
2007-3317 4