UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONA ELHELBAWY, DOCKET NUMBER
Appellant, DE-0752-13-0130-I-2
v.
DEPARTMENT OF COMMERCE, DATE: June 16, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Mona ElHelbawy, Boulder, Colorado, pro se.
Christiann M. Colpoys, and John K. Guenther, Esquire, Washington, D.C.,
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 her removal for absence without leave (AWOL) and failure to follow
leave-requesting procedures. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b). However, we FORWARD the appellant’s individual right of
action (IRA) appeal to the field office for adjudication.
BACKGROUND
¶2 The agency removed the appellant from her Electronics Engineer position
on charges of being AWOL and failing to follow leave-requesting procedures on
April 11-13, May 3-4, 7; and from May 9, to October 12, 2012. ElHelbawy v.
Department of Commerce, MSPB Docket No. DE-0752-13-0130-I-1, Initial
Appeal File (IAF-1), Tabs 21-22. Following a hearing, the administrative judge
issued an initial decision finding that the agency proved its charges, the appellant
failed to prove her affirmative defenses, and the chosen penalty was reasonable
and promoted the efficiency of the service. ElHelbawy v. Department of
Commerce, MSPB Docket No. DE-0752-13-0130-I-2, Initial Appeal File (IAF-2),
Tab 92, Initial Decision (ID). The appellant filed a petition for review,
challenging the administrative judge’s findings. See Petition for Review (PFR)
3
File, Tab 1. 2 The agency has filed responses and many other pleadings thereafter
to the petition for review, PFR File, Tabs 4-5, 9, 14, 18-19, 22, 24, to which the
appellant has replied, PFR, Tabs 3, 6-8, 10, 12-13, 15-17, 20, 23, 25.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge’s findings were correct.
¶3 The appellant argues on review that the administrative judge’s findings
below were erroneous. PFR File, Tabs 1, 13. We disagree. We find that the
administrative judge correctly determined that the agency proved its two charges.
The administrative judge correctly found the agency established that the medical
documentation produced by the appellant was insufficient to justify her absences
from the workplace, the agency appropriately denied her full-time telework
request, and she was AWOL on the dates charged. ID at 3-9. The administrative
judge also properly determined that the agency demonstrated that the appellant
failed to follow leave procedures by not producing adequate medical
certifications to support her absences. Id.
¶4 Further, we find that the administrative judge correctly determined that the
appellant failed to prove her affirmative defenses of harmful procedural error and
reprisal for protected equal employment opportunity and whistleblowing activities
by the requisite preponderant evidence. ID at 11-15. We also agree with the
administrative judge that the appellant failed to prove her allegations of race,
color, sex, religion, and national origin discrimination. ID at 10-11.
¶5 We find, moreover, that the administrative judge properly held that the
appellant did not prove her disability discrimination claim because, based on the
medical reports in the record from the appellant’s various medical providers, she
2
The appellant’s petition for review was filed 1 day after the dead line set forth in the
in itial decision, but she asserts that problems with the Board’s e-Appeal Online system
prevented her from filing in a timely fashion. PFR File, Tab 1 at 3-4. Because
e-Appeal Online was unavailable, as asserted by the appellant, we find that there was
good cause for the untimely filing of the petition for review. See 5 C.F.R.
§ 1201.114(g).
4
failed to show that she was suffering from a physical impairment and thus she
did not establish that she was an individual with a disability under 29 C.F.R.
§ 1630.2(g). ID at 9-11.
¶6 In addition to the findings made by the administrative judge on this
affirmative defense, we also note that the agency acted appropriately in directing
the appellant to provide medical documentation to substantiate her absences,
considering that she had been absent for a significant period of time. She told her
supervisor that she could not inform the agency how long she would remain
absent, and she said she would be unable to secure an appointment at a particular
hospital to see a specialist about her medical conditions until 3 months later.
Based on our review of the record, we also find that: (1) the appellant’s medical
conditions were primarily subjective in nature; (2) medical evidence was
required to establish the existence of a disability because the scope of the
appellant’s physical limitations was not obvious; (3) none of the appellant’s
medical providers were able to provide a definitive diagnosis; (4) the agency
tested the air quality of the building where the appellant worked and determined
that the air quality was fine; (5) absent a few exceptions, it would be impossible
for a federal agency to provide the appellant with what she was demanding here—
a completely dust-free workplace; and (6) the appellant’s doctor’s determination
that there was an outside chance that the appellant’s medical condition might
have been caused by occupational asthma or “sick building syndrome” was
merely a guess, not a medical opinion, and this speculation was contradicted by
the air quality testing report. We further find that the record reflects that the
agency engaged in the required interactive process. Thus, we believe that the
agency should not be forced, under the circumstances presented here, to
relinquish its policy limiting the number of hours in a pay period for approved
telework, and, even if we were to find that the appellant was a qualified
individual with a disability, that would not mean that she would be allowed to
dictate to the agency what her reasonable accommodation must be. See Clemens
5
v. Department of the Army, 120 M.S.P.R. 616, ¶¶ 12-17 (2014) (the appellant
failed to show that the accommodation he allegedly sought was reasonable); see
also Massey v. Department of the Army, 120 M.S.P.R. 226, ¶ 12 (2013) (the
agency’s failure to fulfill its obligation to search for a position as a reasonable
accommodation does not relieve the appellant of her burden of ultimately
showing that such positions existed and were available).
¶7 Lastly, we find that the administrative judge correctly determined that the
agency proved that the penalty of removal was reasonable and promoted the
efficiency of the service. ID at 15-17. In sum, despite the appellant’s
disagreement with the initial decision, we discern no basis for disturbing the
administrative judge’s well-reasoned findings on review. See Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980) (mere disagreement with
the administrative judge’s findings and credibility determinations does not
warrant full review of the record by the Board).
We have reviewed the appellant’s numerous pleadings filed on petition for
review, but find that they do not change our determination.
¶8 The appellant filed numerous pleadings after the agency filed its response to
the petition for review regarding her submission of a reply to the agency’s
response to her petition for review. PFR File, Tabs 6-8, 10, 12. In a
September 10, 2014 order, the Clerk of the Board denied the appellant’s request
to file a reply to the agency’s response exceeding the Board’s page limit but ruled
that she could file a 15-page pleading, exclusive of attachments, no later than
September 17, 2014. Id., Tab 11. The appellant’s reply was filed using the
Board’s e-Appeal system and bears a filing time and date of 1:31 a.m. on
September 18, 2014. PFR File, Tab 13. Because the appellant filed from the
Mountain Time Zone, and the Board’s e-Appeal system establishes the filing time
based on Eastern Time, her reply to the agency’s response to the petition for
review was timely filed on September 17. See 5 C.F.R. § 1201.14(m). However,
the pleading, together with substantive attachments setting forth the facts and
6
asserting errors in the administrative judge’s factual findings and rulings during
the course of the appeal, exceeded 15 pages. PFR File, Tab 13. The agency
objected to the appellant’s reply and she has responded to the objection. Id.,
Tabs 14-15. We agree with the agency that the appellant’s pleadings, with their
many substantive attachments, far exceed the 15-page limit. In the September 10
order, the Clerk of the Board noted that the Board would consider at a later date
the appellant’s September 5 and 7 motions to waive the time limit for filing a
reply. Id., Tab 11 at 2; see id., Tabs 6-7. However, because the appellant was
afforded an opportunity to reply to the agency’s response, we find her motions are
moot. 3
¶9 Regarding the documentary evidence the appellant submitted with her reply,
to the extent that the evidence is not already part of the record, the Board
generally will not consider evidence submitted for the first time on petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (to constitute new and material
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record
closed). The appellant has made no such showing here. In any event, we
reviewed the appellant’s substantive submissions on review and determined that
the documentation and arguments contained therein would not change the
outcome of our decision that the administrative judge’s findings were correct,
3
To the extent that the appellant is asking that we overturn the administrative judge’s
ruling below on her request for interlocutory appeal, that request is DENIED. Also, on
April 27 and 29, 2015, the appellant filed motions for leave to submit additional
pleadings, alleging in her second motion for leave that “over the course of litigation of
Petitioner’s civil action before the Un ited States District Court for the District of
Colorado, new and material evidence and legal argument have become available . . . .”
PFR File, Tabs 20, 23. Because the appellant has not shown how any evidence and
argument contained in a pending civil action before the United States District Court for
the District of Colorado relates to th is appeal, the Board denies her April 27 and 29,
2015 motions for leave to submit additional plead ings.
7
with the exception of one issue, discussed immediately below. See ID; see
also 5 C.F.R. § 1201.114(h).
The appellant attempted to file an individual right of action appeal below, which
was not addressed by the administrative judge.
¶10 The appellant argues on review that she attempted to file an IRA appeal
below. See PFR File, Tab 13, Exhibit 10. She states that, with her January 8,
2014 prehearing submission, she furnished a copy of a close out letter she
received from the Office of Special Counsel (OSC), which notified her that OSC
was closing its investigation into her November 14, 2012 complaint and that she
had a right to file an IRA appeal with the Board. She asserts that during the
January 10, 2014 prehearing conference in this case, she asked the administrative
judge about the OSC close out letter. She also states that she explained to the
administrative judge that she “had filed her November 12, 2012 complaint as part
of her initial appeal to the Board.” Id. She contends that the administrative judge
then reviewed the initial appeal and confirmed that she “filed her OSC complaint
as part of her appeal.” Id. According to the appellant, the administrative judge
advised the parties that she would need some time to consider how to proceed
with this whistleblower claim, including the possibility that she might “break [the
appellant’s] appeal into two separate appeals,” or that she might “combine or split
the issues” in the appeals. Id. The appellant argues that, although the
administrative judge promised to advise the parties what she would do with the
IRA appeal, she did not address the matter in her January 15, 2014 order and
summary of prehearing conference or in the initial decision. The appellant argues
that she “remains clueless until this day” regarding what the administrative judge
decided to do about the whistleblower claims she raised in her IRA appeal. Id.
¶11 Based on our review of the record, we agree with the appellant that she
previously attempted to file an IRA appeal with the Board and that her claim was
never adjudicated. In her initial appeal, the appellant indicated that on June 25,
2012, she disclosed to the agency’s Office of Inspector General and “to several
8
individuals and agencies” that the agency committed safety violations in
contravention of Occupational Safety and Health Administration laws. IAF-1,
Tab 2 (MSPB Form 185-5 at 1-2) (“Whistleblower Claims or Individual Right of
Action (IRA) Appeal”). She alleged that, as a result of her disclosure, the agency
“prosecuted and harassed” her. Id. In addition, she reported that she filed a
complaint with the OSC on August 8, 2012, concerning these allegations but that,
at that juncture, she had not yet received written notice from OSC regarding her
right to file an IRA appeal with the Board. See id. at 3.
¶12 With her appeal, the appellant attached copies of two complaints she filed
with OSC, one of which is dated August 6, 2012, and the other of which is dated
November 14, 2012. See IAF-1, Tab 2 (Attachments). In the August 2012
complaint, the appellant raised a number of potential protected disclosures,
including her description of safety hazards that she believed existed at the agency
and the agency’s failure to correct these reported health issues. In addition, she
alleged that the agency falsified her time and attendance records when it charged
her as AWOL, unlocked and searched her office without her permission “and for
no proper justification,” and then left her office unlocked, thereby compromising
the confidentiality of certain records. 4 She asserted that, as a result of these
disclosures, the agency took various personnel actions against her, such as
reporting her as AWOL, denying her requests for telework and reasonable
accommodation, prohibiting her from filing Office of Workers’ Compensation
Programs (OWCP) claims, and providing her with an “[u]nfair performance
review evaluation” in November 2011. Id. (Attachments).
¶13 In the November 2012 OSC complaint, the appellant reiterated many of the
same alleged disclosures and personnel actions that she raised in her earlier
complaint. Additionally, as to other possible disclosures, she indicated that the
agency engaged in acts that were “criminal in nature under many statues [sic] and
4
Admittedly, it is not always clear from these documents the distinction the appellant is
making between some of her alleged protected disclosures and personnel actions.
9
laws,” made false statements about the medical documentation she furnished to
the agency, and provided the Department of Labor with false time and attendance
records to thwart her efforts at obtaining OWCP benefits. She stated that because
of these alleged disclosures, the agency engaged in a series of “harsh and cruel
reprisal actions,” such as giving her “unjustified performance reviews and
ratings,” changing her position description while she was out on leave under the
Family and Medical Leave Act of 1993, and eventually removing her.
Id. (Attachments).
¶14 Moreover, as the appellant asserted, she produced a copy of OSC’s May 29,
2013 close out letter, which she filed as an exhibit with her prehearin g
submissions. See IAF-2, Tab 27, Exhibit L.
¶15 Given the above, we find that the appellant has established that she
attempted to raise her whistleblower claims as a separate IRA appeal, which
was not adjudicated. We therefore are forwarding this IRA appeal to the field
office for adjudication. The administrative judge is to provide the appellant with
proper notice of any jurisdictional and timeliness issues related to this IRA
appeal. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44
(Fed. Cir. 1985) (an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue).
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:
10
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,
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
11
repayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.