Cebula v. Dept. Of Veterans Affairs

• Court: Court of Appeals for the Federal Circuit
• Decided: March 9, 2007
• Docket: 2006-3312
• Status: Unpublished

Opinion

Note: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2006-3312

NORBERT J. CEBULA,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Norbert J. Cebula, of Hull, Massachusetts, pro se.

David F. D’Alessandris, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director.

Appealed From: United States Merit Systems Protection Board NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 2006-3312

__________________________

DECIDED: March 9, 2007 __________________________

Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and ROBINSON, * Chief Judge.

PER CURIAM.

Norbert J. Cebula petitions for review of the final decision of the Merit Systems

Protection Board ("MSPB"), Docket No. PH-0752-05-0531-I-1 (May 12, 2006),

sustaining the decision of the Department of Veterans Affairs ("VA") to remove Cebula

from his position due to his physical inability to perform the duties of his position. For

the reasons set forth in this opinion, we affirm.

I. BACKGROUND

* Honorable Sue L. Robinson, Chief District Judge, United States District Court for the District of Delaware, sitting by designation. Cebula was employed at a VA office in Boston, Massachusetts as a Contract

Specialist involved in the solicitation and processing of construction and services

contracts. From October 19, 2004 until the end of his employment by the VA on June

17, 2005, Cebula was unable to work due to his medical conditions. His treating

physician, Dr. Mark Schlickman, initially diagnosed him with major depression and

related symptoms, recommending that he not work from October 19, 2004 until

November 19, 2004. Dr. Schlickman revised his diagnosis and extended the date of

Cebula's expected return to work several times in the ensuing months, eventually

diagnosing Cebula with bipolar disorder on April 29, 2005, and pushing back the date

on which he could return to work to July 1, 2005. Dr. Schlickman indicated multiple

times in letters to the VA that Cebula's condition precluded his performing any of his

duties—or any employment at all—and that his disability could be permanent.

On May 3, 2005, the VA sent Cebula a letter informing him of the agency's

proposal to remove him from his position due to physical inability to perform its essential

duties. After considering Cebula's response, the agency notified Cebula that it had

decided to remove him effective June 17, 2005. Cebula filed an appeal to the MSPB on

July 19, 2005. The administrative judge ("AJ") sustained the agency's decision on

February 3, 2006, finding that (1) a nexus existed between Cebula's medical condition

and his inability to perform his duties, (2) his removal promoted the efficiency of the

service, and (3) his removal was reasonable. The MSPB denied Cebula's petition for

review, making final the AJ's decision, on May 12, 2006. Cebula then filed this appeal.

We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II. DISCUSSION

2006-3312 2 We must affirm a decision of the MSPB unless it is "(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); Hayes v. Dep't of the Navy, 727 F.2d

1535, 1537 (Fed. Cir. 1984).

The AJ applied the proper analysis for reviewing an agency's removal action.

The agency must show (1) the charged conduct occurred or condition exists, (2) a

nexus between the condition and the deficiencies in performance, (3) the removal

promotes the efficiency of the service, and (4) the removal is a reasonable penalty. See

James v. Dale, 355 F.3d 1375, 1378 (Fed. Cir. 2004).

Here, the MSPB's decision is amply supported by the record. Cebula had been

on sick leave for over six months by the time the agency proposed to remove him from

his position. His own physician indicated that the disability prevented his performing

any of the duties of his employment and also indicated that the condition could be

permanent. Further, Cebula admitted during the proceedings before the AJ that he

remained unable to work. A nexus clearly existed between his medical condition and

the deficiencies of his performance, namely not being able to do the work his position

requires.

The record also supports the finding that Cebula's removal promoted the

efficiency of the service. Cebula could not perform any of the duties of his position for a

substantial length of time, and the likelihood of his being able to resume his duties was

questionable. The agency and its function would clearly benefit by replacing Cebula

with an employee who is able to perform the duties of the position.

2006-3312 3 Finally, "the choice of penalty is committed to the sound discretion of the

employing agency and will not be overturned unless the agency's choice of penalty is

wholly unwarranted in light of all the relevant factors." Guise v. Dep't of Justice, 330

F.3d 1376, 1382 (Fed. Cir. 2003). The relevant factors are those enumerated in

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981). While the MSPB gave

only a cursory examination of the Douglas factors in its initial decision, any error was

harmless as the record substantially supports the MSPB's finding that the penalty was

reasonable. Given the nature and duration of Cebula's condition, his physician's

consistent recommendation that he not engage in any employment, and the unlikelihood

of significant improvement in his condition, the agency's decision to remove Cebula was

reasonable.

2006-3312 4