In Davis v Department of Agriculture (CAFC No. 2024-1086 (nonprecedential), 10/16/2024), an Agriculture Program Analyst began to experience medical issues. Her doctor provided notes explaining the medical conditions that prevented Ms Davis from coming into the office. (Opinion pp. 2-3)

However, her position at the Farm Production and Conservation Business Center required her physical presence due to her role in security and emergency operation of the National Capital Region Headquarters Complex. Ms. Davis requested full-time remote work but because of the face-to-face requirements of her duties, the agency would only approve one day a week working from home. The agency explained that full-time remote work would lead to having to remove functions that were essential to her position. (pp. 2-3)

Ms. Davis refused the one day per week offer, and the agency tried to find another position for her that would allow the full-time remote work. When this effort to accommodate her failed, the agency proposed to remove Ms. Davis for “inability to report for duty and perform the full scope of duties of [her] officially assigned position,” citing the fact she had for almost four months not reported for work on a full-time basis because of her medical condition. (pp. 2-3)

On appeal to the Merit Systems Protection Board, the administrative judge interpreted the agency removal letter as charging Davis with excessive absence and held the agency had failed to prove that charge. However, on the agency’s appeal to the full Board, that initial decision was reversed, finding the administrative judge had erred in his narrow interpretation of the charge letter. The Board did affirm the judge’s finding that Davis had not proved her affirmative defenses, and sustained Agriculture’s removal of Ms. Davis for medical inability to do her job. (p. 3) 

Ms. Davis appealed to the court. Among other things, she argued that the COVID-19 pandemic that occurred some four months after she was removed proved that the agency could have accommodated her with full-time remote work. She argued that once this happened the agency should have brought her back to work since the federal government had adopted a maximum telework policy with the onset of the pandemic. (pp. 4-5)

The administrative judge had not found this argument convincing since pandemic work policy changes were temporary and many in-office duties that were stopped were also likely temporary. Further, he found that Davis’ job required “face-to-face coordination and the use of agency tools and equipment that could not be accessed remotely.” (pp. 4-5) 

The court agreed with the MSPB finding that Ms. Davis was trying improperly to use facts that followed her removal several months later in order to contest the removal. Finally, the appeals court held that there was substantial evidence that when she was removed, Ms. Davis was in fact unable to perform her job duties because of her medical condition at the time of her removal (pp. 4-5). 

In short, the appeals court has affirmed the MSPB’s decision as being supported by substantial evidence which in turn affirmed the agency’s removal of Ms. Davis.