Leslie A. Harden v. Department of Veterans Affairs
Background
- Leslie A. Harden (appellant) was removed by the Department of Veterans Affairs for one charge: excessive absence. She appealed to the MSPB and requested a hearing.
- Administrative judge sustained the removal after hearing, finding agency proved excessive-absence charge and that Harden failed to establish an affirmative defense of disability discrimination for lack of participation in the accommodation process and inability to perform essential job functions.
- Agency evidence: Harden was absent due to illness beyond a reasonable time; agency warned that absence could lead to adverse action; position required regular personal interaction, not suitable for full-time telework; proposing official would have considered a modified schedule but Harden did not document a specific accommodation request.
- Appellant contended the agency interfered with her ability to identify a return-to-work date, denied schedule adjustments/telework, and that the judge erred in finding she failed to engage in the interactive accommodation process.
- MSPB on review found no basis to disturb the initial decision: appellant did not prove a date she could resume regular work or that she could perform essential functions with/without accommodation; she failed to participate adequately in the interactive process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency proved charge of excessive absence | Harden: agency prevented her from identifying a return date, so charge is improper | Agency: absences were illness-related, continued beyond reasonable time, position needed filled, warnings given | Sustained: agency proved excessive-absence elements and removal was justified |
| Whether agency failed to accommodate (disability discrimination defense) | Harden: agency denied telework/schedule adjustments and did not accommodate | Agency: position required in-person interaction; Harden did not specify or document needed accommodation | Denied: Harden failed to show she was a qualified individual who could perform essential functions with/without accommodation; failed to participate in interactive process |
| Whether administrative judge erred in finding failure to engage in interactive process | Harden: judge wrongly found nonparticipation | Agency: evidence shows verbal requests without specifics or supporting documentation | Sustained: judge correctly found inadequate participation, which precludes discrimination defense |
| Timeliness/good cause for late petition for review | Harden: provided explanation for delay (e-filing/system issues) | Agency: (implicitly) timeliness issue raised | Board excused delay: found good cause based on due diligence and circumstances |
Key Cases Cited
- Fox v. Department of the Army, 120 M.S.P.R. 529 (2014) (elements of proof for excessive-absence charge)
- Clemens v. Department of the Army, 120 M.S.P.R. 616 (2014) (requirements for qualified individual and essential functions analysis in disability-defense cases)
- White v. Department of Veterans Affairs, 120 M.S.P.R. 405 (2013) (failure to participate in interactive process precludes discrimination defense)
- Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201 (2014) (standard for establishing good cause for untimely filing)
- Salazar v. Department of the Army, 115 M.S.P.R. 296 (2010) (excusing filing delay where e-filing evidence showed attempts and prompt follow-up)
- Avansino v. U.S. Postal Service, 3 M.S.P.R. 211 (1980) (standards for admitting new evidence on petition for review)