MUSGROVE v. VILSACK
ORDER granting 14 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/25/16 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MICHAEL T. MUSGROVE,
TOM VILSACK, Secretary,
UNITED STATES DEPARTMENT
No. 3:14‐CV‐52 (CAR)
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This action arises from Defendant United States Department of Agriculture’s
termination of Plaintiff Michael T. Musgrove’s employment in December 2012. Plaintiff
contends Defendant failed to accommodate his disability in violation of Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. Plaintiff also challenges the Final Order
of the United States Merit Systems Protection Board upholding his termination under the
Civil Service Reform Act of 1978, 5 U.S.C. §§ 7511 et seq. and 7701 et seq. Currently before
the Court is Defendant’s Motion for Summary Judgment on both claims. Having
considered the parties’ arguments, the record, and applicable law, the Court GRANTS
Defendant’s Motion [Doc. 14].
For the purposes of this Motion, the material facts in the light most favorable to
Plaintiff, the nonmovant, are as follows:
Since 1989, Plaintiff worked for the United States Department of Agriculture
(“USDA”) in various capacities. In 2005, Plaintiff became a Research Food Technologist
in the Egg Safety and Quality Research Unit (“ESQRU”) in the Richard Russell Research
Center, South Atlantic Area, Agricultural Research Service (“ARS”) in Athens, Georgia.
From 2005 to 2012, Plaintiff was employed at the ESQRU as a Category 1 Research
Scientist where he was supervised by Dr. Richard Gast. Dr. Gast is responsible for
managing the ESQRU research scientists, as well as conducting and publishing research
As a research scientist, Plaintiff was responsible for carrying out and reporting the
results of scientific research. Each year, every research scientist was required to meet
with Dr. Gast to have their yearly performance plan approved.2 The performance plan
includes “critical element” requirements that must be satisfied to receive a fully
successful performance rating, the lowest acceptable rating for continued employment in
the ESQRU. Critical Element II (CE II) of Plaintiff’s performance plan required him to
author and submit two manuscripts of original research to journals (or other
publications) with documentation of submission being shown in the Agricultural
1 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 1‐2, 15.
2 Id. at pg 2.
Research Information System (“ARIS”).3 The CE II requirement is “central to the
performance” of the ESQRU because it assures the unit is performing quality research by
making it available to the public. 4 Since 2005, the beginning of Plaintiff’s employment at
the ESQRU, he has been required to author two manuscripts for his CE II requirement
each year, which he satisfied until the fiscal year ending September 30, 2011.5
Plaintiff’s Disability and Request for Accommodation
In January 2009, Plaintiff was diagnosed with having obstructive sleep apnea
syndrome, and on July 27, 2009, Plaintiff submitted a written request to Dr. Gast asking
for reasonable accommodations for his disability. 6 On August 12, 2009, a USDA Medical
Officer reviewed the request and determined Plaintiff was an employee with a disability
under the ADA and eligible for reasonable accommodations. Thereafter, Dr. Gast fully
accommodated Plaintiff’s request by removing the leave restriction he was currently on,
permitting him to have a maxi‐flex work schedule, and allowing him to take FMLA leave
for his disability. 7
3 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 3.
4 Id. at pg 3‐4.
6 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 3‐4.
7 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 4‐5. In September 2011, Plaintiff asked that a member of his
support staff be carbon copied on to all his emails because his ADHD caused him to miss emails. Dr. Gast
did not believe it was the support staffs job to monitor Plaintiff’s emails and denied the request. However,
Dr. Gast then told Plaintiff he “respect[ed] [his] right to seek support through the Agency’s mechanism for
accommodating disabilities.” Plaintiff never followed up with this request and did not notify Defendant of
any additional disabilities he was suffering from. Dr. Gast Depo., [Doc. 21‐14] Ex. 13 at pg 1.
Plaintiff’s Performance Issues and Termination
The following year, Plaintiff began having performance problems at work.
Plaintiff failed to respond to work e‐mails and messages and missed several deadlines,
including his annual report of research progress and documentation of completed
personal research. Based on these issues, Dr. Gast expressed concern over Plaintiff’s
research objectives in his mid‐year review for 2009‐2010.8 Although Plaintiff assured Dr.
Gast he would finish his work, he did not complete all the assigned objectives for the
2009‐2010 fiscal year. 9 Despite this failure, Plaintiff received a fully successful
performance rating for 2009‐2010.10
In the 2010‐2011 fiscal year, Plaintiff failed to complete his CE II requirement by
the September 30, 2011 deadline. To address this issue, Plaintiff was placed on a
performance improvement plan (“PIP”), which provided him with an additional 90 days
to complete the required two manuscripts and receive a fully satisfactory performance
rating for 2010‐2011. On December 5, 2011, Dr. Gast gave Plaintiff a PIP letter outlining
his performance requirements and notifying him that if he failed to complete the
manuscripts by the end of the 90 days he would be subject to removal. The letter also
specifically informed Plaintiff “if [he had] a medical condition not identified under the
reasonable accommodation process that [he felt] may contribute to [his] unacceptable
8 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 4‐5.
9 Id. at pg 5.
Id. Defendant discussed placing Plaintiff on PIP based on his 2009‐2010 performance, but ultimately
decided against it. Dr. Gast Depo., [Doc. 21] at pg 37‐38.
performance, [he] may submit medical documentation.”11 Plaintiff did not identify any
such conditions or request any new accommodations. After Plaintiff turned in his two
manuscripts and completed the PIP in March 2012, Dr. Gast gave him a fully satisfactory
performance rating for the 2010‐2011 fiscal year. However, Dr. Gast reminded Plaintiff
that if he failed to sustain a fully successful level of performance in CE II for “at least one
year from the date of the PIP, [Plaintiff would] be subject to removal without being given
another opportunity to improve.”12
Though Plaintiff completed the PIP, the Area Director, Dr. Deborah Brennan,
expressed concern to Dr. Gast about the quality of Plaintiff’s manuscripts. Normally, Dr.
Brennan did not review each research scientist’s published work; however, once an
employee is placed on PIP it is her policy to review the employee’s work during the PIP
period. To ensure that the quality of Plaintiff’s work improved after the PIP period, Dr.
Brennan requested to review his next two manuscripts as well. Dr. Gast also required
that Plaintiff obtain two additional peer reviews for his next manuscripts based on these
concerns.13 Plaintiff’s 2011‐2012 CE II requirement was due September 30, 2012, seven (7)
months after he completed the PIP, but his manuscripts and reviews were due to Dr.
Gast by the end of August.14
11 PIP Letter, [Doc. 14‐6].
12 March 2012 PIP Completion Letter, [Doc. 14‐7].
13 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 9‐11.
14 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 7‐8.
Throughout 2012, Dr. Gast continued to communicate with Plaintiff regarding the
approaching deadline for his manuscripts. On April 30, 2012, Dr. Gast held a mid‐year
performance review with Plaintiff to inquire about the status of his research and progress
on the required manuscripts, and Plaintiff did not express any concerns about
completing his work.15 However, during this time period, specifically March and April
of 2012, Plaintiff was absent from work for a lengthy period of time due to illness.
Plaintiff failed to respond to several e‐mails, missed meetings, and was charged with
more than 100 hours of “Absence Without Leave” (“AWOL”).16 Plaintiff also failed to
submit the appropriate FMLA documentation during these absences.17 After Dr. Gast’s
requests, Plaintiff filed the FMLA certificate forms to account for his absences. One of the
FMLA reports stated Plaintiff had “Bipolar Disorder Symptoms” and “Attention Deficit
Symptoms,” while another stated Plaintiff suffered from sleep apnea and depression.18
Dr. Gast reviewed Plaintiff’s FMLA forms and then forwarded the forms to human
resources. 19 Plaintiff believed this should have fixed the amount of AWOL hours he was
currently charged with. 20
In May 2012, Plaintiff e‐mailed Dr. Gast requesting time off for a vacation. Dr.
Gast allowed Plaintiff to take time off, but wrote:
15 Id. at pg 7.
16 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 11‐12.
17 Dr. Gast’s Depo., [Doc. 21] at pg 72‐77.
18 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 12‐13.
19 Id.; Dr. Gast’s Depo., [Doc. 21] at pg 80‐82.
20 See Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 12‐13; Dr. Gast Depo., [Doc. 21‐31] Ex. 30 at pg 1‐2.
My only concern would be for any potential effect on an absence from work
on your ability to finish your required manuscripts for this year in time to
allow the necessary peer, Unit and Area reviews before submission. I don’t
know what Dr. Brennan’s exact deadline will be but I think at this point that
it would be prudent to plan to have the papers ready to submit to her no
later than August 15 … I just want to make sure that you are cognizant of
these deadlines before planning to use leave.21
On May 27, 2012, Plaintiff assured Dr. Gast:
I am in good shape for meeting my required manuscripts for the year. I
anticipate no concern over completing the writing or necessary lab work
before the end of my rating period …. I am cognizant of all my deadlines and
of the importance on satisfying or exceeding every performance element.22
Again, at a staff meeting on June 29, 2012, Dr. Gast reminded all research scientists,
including Plaintiff, of the approaching deadlines.23
In the beginning of July, Plaintiff still had large amounts of AWOL hours charged
against him, even though the appropriate FMLA paperwork was submitted to Dr. Gast
and human resources. 24 Based on this issue, Plaintiff sent Dr. Gast a memo explaining his
frustration and concerns about his FMLA eligibility and AWOL hours. Plaintiff felt his
AWOL hours were still incorrect and that his requests to correct the hours were being
ignored. Plaintiff specifically reminded Dr. Gast that he was provided reasonable
accommodations for his disability, which included taking FMLA leave as needed.
Plaintiff ended the letter by stating the “USDA Medical Officer has agreed with my local
21 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 7.
23 Defs. Stmt. of Material Facts, [Doc. 14‐1] at pg 8.
24 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 13‐14; Dr. Gast Depo., [Doc. 21‐31] Ex. 30 at pg 1‐2.
physicians and doctors in classifying me as a disabled employee and I am asking to be
treated as such.”25
Throughout this time, Dr. Gast notified human resources of all communications
with Plaintiff and sought advice on how to best handle the situation. 26 On July 30, 2012,
Dr. Gast sent Plaintiff an e‐mail following up on a discussion they had regarding
Plaintiff’s 2011‐2012 CE II requirement. Dr. Gast stated “[i]n order to meet the needs of
review and ARIS entry, I will need to receive all manuscripts (plus two reviews for each
paper) by August 31st …. I hope your manuscript process is going well. Please let me
know if you have any questions.”27 Three days later, on August 2, 2012, Dr. Gast sent an
email to all research scientists reminding them of their upcoming deadlines.28 At no
point did Plaintiff inform Dr. Gast he would be unable to meet the deadlines for either
On September 30, 2012, at about 9:45 p.m., Plaintiff sent Dr. Gast an email
requesting that he review the attached manuscript. The manuscript only had one peer
review (instead of the required two), was never submitted to Dr. Brennan, and was
submitted a month after the August deadlines. Assuming no additional edits were
needed, this left only a few short hours for Dr. Gast to review the manuscript, and for
25 Dr. Gast Depo., [Doc. 21‐31] Ex. 30 at pg 1‐2.
26 Dr. Gast Depo., [Doc. 21] at pg 88‐89.
27 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 7‐8.
29 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 15.
Plaintiff to enter the information into the ARIS tracking system and submit a final version
of the manuscript to a journal.30 Plaintiff’s email did not address why the manuscript
was late, and he never submitted a second manuscript.31
Following Plaintiff’s failure to complete his CE II requirement for the second
consecutive year, Dr. Gast notified human resources that Plaintiff did not complete his
performance plan for the 2011‐2012 period. Human resources decided to terminate
Plaintiff’s employment. On October 19, 2012, Dr. Gast issued a formal proposal to
remove Plaintiff based on his failure to complete his CE II requirement one year after
finishing the PIP.32 The final decision to remove Plaintiff was made by Dr. Paul Sebesta,
the Acting Associate Area Director.33
United States Merits Systems Protection Board Decisions
On December 21, 2012, Plaintiff filed an appeal to the United States Merit Systems
Protection Board (“MSPB”), challenging the agency’s decision to remove him from his
position as an ESQRU research scientist. The administrative judge determined Plaintiff
“facially satisfied” his CE II requirement by submitting two manuscripts between
30 Def.’s Mtn. for Summary Judgment, [Doc. 14‐14] at pg 6.
31 Pl.’s Stmt. of Add. Material Facts, [Doc. 22‐3] at pg 15.
32 Dr. Gast Depo., [Doc 21‐36] Ex. 35 at pg 1‐2 (ARS Performance Appraisal System Number 418.3 allows for
termination of an employee who, after completion of a PIP, reverts back to unacceptable performance of any
of the elements included in the PIP at any time up to one year from the date the PIP began.).
33 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 10.
October 1, 2011, and September 30, 2012, and reversed Plaintiff’s removal.34 Plaintiff was
issued a return to duty letter on December 2, 2013, and began working in a different
Defendant then petitioned for review of the MSPB’s initial decision to reinstate
Plaintiff’s employment. Ultimately, Defendant’s petition was granted and the decision to
reinstate Plaintiff was reversed. On May 6, 2014, the MSPB upheld Plaintiff’s
termination, finding the manuscripts he completed were for the 2010‐2011 fiscal year
only and to permit otherwise would mean Plaintiff “could have done nothing under CE
 II during the remaining seven months of 2012 and still achieved [a fully successful
rating].”36 Additionally, the MSPB found that allowing the manuscripts to “facially
satisfy” the 2011‐2012 requirement would undermine Congress’s purpose for PIP.37
Plaintiff now requests judicial review of the MSPB’s decision and brings a failure to
accommodate claim against Defendant.
Plaintiff may seek judicial review of the Merit System Protection Board’s decision
pursuant to 5 U.S.C. § 7703.38 When, as here, Plaintiff brings both a discriminatory and
34 Pl.’s Complaint, Ex. A [Doc. 1‐1] at pg 1, 5. The administrative judge also held Plaintiff failed to prove his
discrimination claim. Id. at 14.
35 Def.’s Stmt. of Material Facts, [Doc. 14‐1] at pg 10.
36 Pl.’s Complaint, Ex. B [Doc. 1‐2] at pg 1, 5‐6. The MSPB also upheld the initial determination that Plaintiff
failed to prove his discrimination claim. Id.
37 Id. at 5‐6.
38 See Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002), reh’g denied, 57 F. App’x 416 (11th Cir. 2003).
non‐discriminatory claim, it is known as a “mixed” case, and the district court has
jurisdiction to review both claims.39 However, only discrimination claims are subject to
de novo review.40 The Court will first address Plaintiff’s failure to accommodate claim
under the Rehabilitation Act, applying the standards set forth under Federal Rule of Civil
Procedure 56(c) and the applicable substantive law. Next, the Court will review the
MSPB’s decision only to “ensure that the determination was (1) not arbitrary or
capricious, (2) made without regard to law, or (3) not based on substantial evidence.”41
REHABILITATION ACT CLAIM
Plaintiff contends Defendant failed to accommodate his disabilities and
discriminated against him in violation of Section 504 of the Rehabilitation Act (“Rehab
Act”). Defendant argues Plaintiff did not request any accommodations and was
terminated after two consecutive years of failing to complete his performance plan
A. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if the
movant “shows that there is no genuine issue as to any material fact and the movant is
entitled to a judgment as a matter of law.”42 Not all factual disputes render summary
40 Id. at 1274‐75.
41 Kelliher, 313 F.3d at 1276.
42 Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
judgment inappropriate; only a genuine issue of material fact will defeat a properly
supported motion for summary judgment.43 This means that summary judgment may be
granted if there is insufficient evidence for a reasonable jury to return a verdict for the
nonmoving party or, in other words, if reasonable minds could not differ as to the
On summary judgment, the Court must view the evidence and all justifiable
inferences in the light most favorable to the nonmoving party; the Court may not make
credibility determinations or weigh the evidence.45 The moving party “always bears the
initial responsibility of informing the court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact” and that entitle it to a judgment as a matter of law.46 If the
moving party discharges this burden, the burden then shifts to the nonmoving party to
respond by setting forth specific evidence in the record and articulating the precise
manner in which that evidence creates a genuine issue of material fact or that the moving
party is not entitled to a judgment as a matter of law.47 This evidence must consist of
43 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐48 (1986).
44 See id. at 249‐52.
45 See id. at 254‐55; Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
46 Celotex, 477 U.S. at 323 (internal quotation marks omitted).
47 See Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324‐26.
more than mere conclusory allegations or legal conclusions.48
Plaintiff alleges Defendant violated the Rehab Act by failing to preemptively offer
deadline extensions or a reduction in work requirements, imposing more strenuous
performance standards on him, and eventually terminating him. Defendant contends it
provided Plaintiff with the reasonable accommodations he requested for his sleep apnea;
however, Plaintiff failed to notify Defendant of any additional accommodations needed
for his CE II requirement.
The Rehab Act prohibits federal agencies from discriminating against employees
with disabilities and is governed by the same standards as the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). 49 “[T]hus, cases involving the ADA
are precedent for those involving the Rehabilitation Act.”50 To establish a prima facie
case for disability discrimination, a plaintiff must specifically demonstrate that (1) he has
a disability; (2) he was a “qualified individual” for the position; and (3) he was subject to
unlawful discrimination as a result of his disability. 51 It is well settled that “an
employer’s failure to reasonably accommodate a disabled individual itself constitutes
discrimination under the [Rehab Act], so long as that individual is ‘otherwise qualified,’
48 Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
49 Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam); see also 29 U.S.C. § 794(a); 42 U.S.C. §
50 Ellis, 432 F.3d at 1326 (citing Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000)).
51 Sutton v. Lader, 185 F.3d 1203, 1207‐08 (11th Cir. 1999).
and unless the employer can show undue hardship.”52 A reasonable accommodation is
one that would allow the employee to perform the essential functions of the job.53
However, “a plaintiff cannot establish a claim under the Rehabilitation Act alleging that
the defendant discriminated against him by failing to provide a reasonable
accommodation unless he demanded such an accommodation.”54 Though the Eleventh
Circuit has not yet “determined precisely what forms the request [for reasonable
accommodation] must take,”55 it still holds that “failure to make that specific demand is
fatal to [a plaintiff’s] claim.56
Here, Plaintiff admits he never demanded any accommodations to help him
complete the two manuscripts or even notified Defendant that he would not be able to
complete his work in accordance with the set deadlines.57 Instead, Plaintiff suggests the
52 Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007) (emphasis omitted); see also Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).
53 Lucas, 257 F.3d at 1255.
54 Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999) (citing Wood v. President and
Trustees of Spring Hill College in the City of Mobile, 978 F.2d 1214, 1222 (11th Cir. 1992)).
55 Holly, 492 F.3d at 1261 n.14.
56 Roddy v. City of Villa Rica, Ga., 536 F. App’x 995, 1000‐1001 (11th Cir. 2013) (per curiam) (“We need not
address Roddyʹs claim that the City failed to provide him a reasonable accommodation by transferring him
to an investigator position because Roddy did not establish that he made a specific demand for that
accommodation, and the failure to make that specific demand is fatal to his claim.”); see also Cazeau v. Wells
Fargo Bank, NA, 614 F. App’x 972, 982 (11th Cir. 2015) (finding no genuine issue for trial where Plaintiff never
requested a specific accommodation); McCarroll v. Somerby of Mobile, LLC, 595 F. App’x 897, 899 (11th Cir.
2014) (per curiam) (“[Plaintiff] did not establish any facts to show that he made a specific demand for an
accommodation before his supervisors decided to fire him.”).
57 Additionally, Plaintiff did not formally notify Defendant of any additional disabilities after his 2009 sleep‐
apnea request. Defendant had no reason to know Plaintiff was unable to make such a request as Plaintiff
had already requested and received accommodations for his sleep apnea. Plaintiff clearly understood how
to make a request for his disabilities and what the proper channels were to receive reasonable
accommodations. Defendant is not responsible for Plaintiff’s failure to properly notify his employer of any
EEOC guidelines58 create a duty for Defendant to preemptively investigate and offer a
reasonable accommodation without any request from Plaintiff. However, “the [Rehab
Act] provides no cause of action for ‘failure to investigate’ possible accommodations.”59
The Eleventh Circuit has continuously held the employer’s “duty to provide a reasonable
accommodation is not triggered unless a specific demand for an accommodation has
been made.”60 Plaintiff is responsible for initiating this process, which he failed to do
Plaintiff points to Salser v. Clarke County School District, arguing Plaintiff had no
duty to make a specific request for a reasonable accommodation because he so obviously
required one.61 In Salser, the court noted that “for a demand to be specific enough to
trigger the duty to provide a reasonable accommodation, the defendant must have
enough information to know of both the disability and desire for an accommodation, or
circumstances must at least be sufficient to cause a reasonable [employer] to make
additional disabilities he was suffering from at the time. See Williamson v. Clarke Cnty. Dept. of Human
Resources, 834 F.Supp.2d 1310, 1321 n.16 (S.D. Ala. 2011) (“Alternatively, Plaintiff’s failure to abide by [the
employer’s] standard procedure for requesting accommodations may, in and of itself, bar his claim.” (citing
Edwards v. U.S. E.P.A., 456 F.Supp.2d 72, 103 (D.D.C. 2006) (“[A]n employee’s oral request cannot trump an
employer’s established procedure for requesting and approving disability accommodations.”)).
58 See ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP, EEOC Notice No.
915.002 (Oct. 17, 2002).
59 Willis v. Conopco, Inc., 108 F.3d 282, 185 (11th Cir. 1997).
60 Gaston, 167 F.3d at 1363; see also Spears v. Creel, 607 F. App’x 943 (11th Cir. 2015) (per curiam) (citing Earl v.
Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000)); McCarroll, 595 F. App’x at 899‐900; Warren v. Volusia Cnty.,
Fla., 188 F. App’x 859, 862‐63 (11th Cir. 2006) (per curiam) (“An employee’s failure to request a reasonable
accommodation is fatal to the prima facie case.”); but see Holly, 492 F.3d at 1261 n.14 (“We have not
determined whether a plaintiff must ask for an accommodation prior to litigation.”).
61 802 F.Supp.2d 1339 (M.D. Ga. 2011).
appropriate inquiries about the possible need for an accommodation.”62 However, the
court found the plaintiff’s “vague complaints” were not the type of specific demand
required to trigger an employer’s duty and “there [was] no indication [the job
assignment] so obviously required accommodation that there was no need for [the
plaintiff] to make a request.”63 The same is true here. Plaintiff never complained about
the CE II requirements or even hinted at a need for an extension or other
accommodation.64 Instead, Plaintiff continuously affirmed he would complete the
manuscripts on time and then failed to meet the deadlines. The Court cannot find an
employer is required to provide reasonable accommodations when an employee
continues to indicate there is no problem.65
Moreover, Dr. Gast inquired several times in to Plaintiff’s manuscripts deadline.
In March 2012, after Plaintiff completed the PIP and his 2010‐2011 CE II requirement, Dr.
Gast reminded Plaintiff that he still had two manuscripts to complete by August.
Plaintiff acknowledged both the deadlines and the need for additional peer and Area
62 Id. at 1356 (quoting United States v. Hialeah Hous. Auth., 418 F.App’x 872, 876 (11th Cir. 2011) (per curiam)
(internal quotation marks and citations omitted) (discussing requirements for ADA reasonable
accommodation demand in Fair Housing Act case)).
63 Id. The court relied on Hialeah Housing Authority for this proposition. In Hialeah Housing Authority, the
plaintiff made several complaints to the Housing Authority about a specific need for a downstairs bathroom
in his apartment; thus, putting the defendant on notice. 418 F. App’x at 876‐77.
64 In his memo to Dr. Gast, Plaintiff did complain about his FMLA leave and AWOL hours issues. However,
this had nothing to do with his manuscripts and would not have helped Plaintiff complete his CE II
requirements by September 30, 2012.
65 See ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP, EEOC Notice No.
915.002 (Oct. 17, 2002) (“If an individual with a disability states that s/he does not need a reasonable
accommodation, the employer will have fulfilled its obligation.”).
Director reviews. Plaintiff continued to tell Dr. Gast he was on track to complete his CE
II requirement. Indeed, in May 2012, after Dr. Gast expressed concern over Plaintiff
requesting time off for a vacation, Plaintiff said he was in “good shape” and was
planning on submitting a draft to Dr. Gast before he left for his vacation.66 Dr. Gast
checked in with Plaintiff several times after this, reminding him of his deadlines, yet
Plaintiff never once mentioned any delays or need for extensions. It was not until after
Plaintiff’s termination that he finally claimed his failure to complete the CE II
requirement on time was due to his disabilities and suggested some reasonable
The Court finds no reasonable jury could conclude that Plaintiff requested any
reasonable accommodation for his disabilities regarding his Critical Element II
requirements. Therefore, the Court finds Defendant cannot be liable for failure to
provide a reasonable accommodation under the Rehab Act, and Defendant is entitled to
summary judgment on this claim.
PETITION FOR JUDICIAL REVIEW
The Court now turns to Plaintiff’s request for judicial review of the MSPB’s
decision to uphold Plaintiff’s termination. Plaintiff contends the Court should overturn
the MSPB’s decision because he turned in two manuscripts during the 2011‐2012 fiscal
year as required, and thus should not have been terminated. Defendant argues the
66 Dr. Gast Depo., Ex. 29, [Doc. 21‐30] at pg 2.
termination should be upheld because the MSPB’s decision is not arbitrary, capricious, or
unsupported by substantial evidence.
A. LEGAL STANDARD
This claim is subject to review on the record and may only be set aside if the Court
finds that the agency action, finding, or conclusion is found to be “(1) arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with the law; (2)
obtained without procedures required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.”67 The Court must give deference to the
MSPB’s decision regarding non‐discriminatory claims.68
Plaintiff argues the MSPB’s decision to uphold his termination is both arbitrary
and capricious and unsupported by substantial evidence because he technically
completed his CE II requirement for the 2011‐2012 fiscal year and should not have been
terminated. The CE II requirement states Plaintiff must submit at least two original
manuscripts for publication between October 1, 2011, and September 30, 2012. Plaintiff
claims the two manuscripts he completed for the 2010‐2011 period should satisfy the
2011‐2012 CE II requirement because they were turned in on March 4, 2012. Plaintiff
acknowledges the manuscripts were submitted in March because he missed the original
67 Keel v. U.S. Dept. of Air Force, 256 F.Supp.2d 1269, 1272 (M.D. Ala. 2003) (citing Kelliher, 313 F.3d at 1274‐75;
5 U.S.C. § 7703(c)).
68 Kelliher, 313 F.3d at 1275.
deadlines and was placed on a PIP. However, Plaintiff argues because there is tension
between the PIP process and the performance plan requirements, “the Court should
enforce the performance standards as written and construe all ambiguity against the
Agency.”69 The Court disagrees. After reviewing the record and MSPB’s two decisions,
the Court finds the MSPB’s final decision to uphold Plaintiff’s termination must be
First, “[i]n determining whether the outcome in an adjudication before an
administrative agency such as the MSPB is arbitrary and capricious [a reviewing court
does] not substitute [its] judgment for that of the agency but rather only seek[s] to ensure
that the decision was reasonable and rational.”70 “Along the standard of review
continuum, the arbitrary and capricious standard gives [a reviewing court] the least
latitude in finding grounds for reversal. We must only consider whether the decision
was based on a consideration of the relevant factors and whether there has been a clear
error in judgment.”71 Here, in deciding to remove Plaintiff, the MSPB considered the
relevant factors and relied on several previous decisions with similar facts. The MSPB
made no clear error in judgment and its final decision was reasonable and rational. The
Court finds there is no evidence that the decision was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.
69 Pl.’s Response Brief, [Doc. 22‐1] at pg 13.
70 Kelliher, 313 F.3d at 1276 (citing Zukas v. Hinson, 124 F.3d 1407, 1409 (11th Cir.1997)).
71 Id. (quoting North Buckhead Civic Assʹn v. Skinner, 903 F.2d 1533, 1538 (11th Cir.1990) (citations and internal
Second, there is no basis for finding the decision to uphold Plaintiff’s termination
was obtained without procedures required by law, rule, or regulations having been
followed. Plaintiff challenged his termination and received a full and fair hearing under
the applicable MSPB procedures. Plaintiff was reinstated in a different department.
However, Defendant appealed this decision, and the MSPB reversed the reinstatement
order and upheld Plaintiff’s termination. At each step the proper procedures and rules
were followed by the MSPB, and the Court concludes there is no basis for disturbing the
decision of the MSPB based on this matter.
Finally, “[w]hen reviewing administrative decisions to determine if they are
supported by substantial evidence [the reviewing court] examines the entire record but
defers to the agencyʹs factual determinations as long as there is relevant evidence that
supports the findings as reasonable. This deferential standard of review means that as
long as the conclusion is reasonable, we defer to the agencyʹs findings of fact even if we
could have justifiably found differently. We do not re‐weigh or re‐examine the credibility
choices made by the fact‐finder.”72 Here, there was relevant evidence before the Board to
support its determination. Accordingly, the Court must affirm the decision of the MSPB.
72 Id. at 1277 (internal citations omitted) (citing Fort Valley State Coll. v. Bennett, 853 F.2d 862, 863, 864, 866
(11th Cir.1988); City of Pompano Beach v. FAA, 774 F.2d 1529, 1539–40 (11th Cir.1985)).
For the foregoing reasons, Defendant’s Motion for Summary Judgment [Doc. 14] is
SO ORDERED, this 25th day of March, 2016.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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