Rosetta Beatrice Davis v. Department of Agriculture

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSETTA BEATRICE DAVIS,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2024-1086
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-21-0127-I-1.
______________________
Decided: October 16, 2024
______________________
ROSETTA BEATRICE DAVIS, Washington, DC, pro se.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, for
respondent. Also represented by BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY, CORINNE ANNE NIOSI.
______________________
Before DYK, HUGHES, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Case: 24-1086 Document: 28 Page: 1 Filed: 10/16/2024

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DAVIS v. DEPARTMENT OF AGRICULTURE 2
Petitioner Rosetta Davis challenges a final decision
from the Merit Systems Protection Board sustaining
Ms. Davis’s removal from her position at the Department
of Agriculture. Because the Board’s decision is supported
by substantial evidence and is otherwise in accordance
with law, we affirm.
I
At the time of her removal, Ms. Davis was employed as
a Program Management Analyst in the agency’s Farm
Production and Conservation Business Center. In that
position, Ms. Davis’s job duties involved the security and
emergency operation of the National Capital Region
Headquarters complex, which required her to be physically
present on site for a substantial portion of her work.
Starting in April 2018, Ms. Davis “failed to regularly report
to duty,” and she submitted several notes from her treating
physicians identifying medical reasons for her absence.
S.A. 2.1 Ms. Davis later requested full-time telework to
accommodate her conditions. In response to her request,
the agency offered Ms. Davis an accommodation of one
telework day per week but concluded that full-time
telework would require removal of essential functions of
her position. Ms. Davis declined the offer. The agency
attempted and failed to find a suitable reassignment for
Ms. Davis to accommodate her medical limitations. On
October 11, 2019, following the failed reassignment search,
the agency proposed to remove Ms. Davis based on her
“inability to report for duty and perform the full scope of
duties of [her] officially assigned position.” S.A. 59. The
notice of proposed removal also stated that “[s]ince, on or
about, April 23, 2018,” Ms. Davis had “been unable to
1 Citations to “S.A.” refer to the [Supplemental]
Appendix submitted by the agency with its briefing. See
ECF No. 22.
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DAVIS v. DEPARTMENT OF AGRICULTURE 3
report for duty on a full-time regular basis due to a medical
condition.” S.A. 59.
Ms. Davis appealed her removal to the Board. In an
initial decision, the administrative judge overseeing
Ms. Davis’s case found that Ms. Davis had failed to prove
any of her affirmative defenses but nevertheless reversed
her removal. The administrative judge interpreted the
agency’s removal letter as an “Excessive Absence” charge
and found that the agency had failed to prove by
preponderant evidence all the elements of the charge. S.A.
30–31. The agency subsequently petitioned for full Board
review, where the Board concluded that the agency had
intended to charge Ms. Davis with medical inability to
perform her duties—not excessive absences—and that the
administrative judge had erroneously taken an overly
narrow interpretation of the agency’s allegations.
Accordingly, the Board (1) affirmed the administrative
judge’s findings that Ms. Davis failed to prove her
affirmative defenses, (2) modified the administrative
judge’s analysis of the affirmative defenses to address new
case law, (3) reversed the initial decision as to the removal
action, and (4) sustained the agency’s removal of Ms. Davis
for medical inability to perform her job duties. Ms. Davis
timely petitioned for review in this court. We have
jurisdiction to review a final decision of the Board under 28
U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision 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); Higgins v. Dep’t of Veterans Affs., 955 F.3d
1347, 1353 (Fed. Cir. 2020).
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DAVIS v. DEPARTMENT OF AGRICULTURE 4
III
Before this court, Ms. Davis alleges that the COVID-19
pandemic and the government’s associated teleworking
policies “conclusively prove[]” that the agency’s reason for
removal—i.e., that Ms. Davis’s position required in-office
attendance—was “without merit.” Pet. Inf. Br. 3.2
Ms. Davis explains that her removal was sustained by the
agency on November 13, 2019, and that “[f]our months
later,” when the federal government moved to a “maximum
telework” system due to the pandemic, “[t]he agency never
reached out to [her] concerning these changing working
conditions, which would have expressly provided [her] with
the opportunity for full-time telework.” Id. at 7–8.
Ms. Davis asserts that this is “new evidence” not
previously considered by the Board. Id. at 8.
As an initial matter, it appears that the administrative
judge’s decision did consider the effects of the pandemic on
her case but found Ms. Davis’s arguments to be
“unconvincing.” S.A. 35 (administrative judge noting that
the COVID-19 working arrangements were likely
temporary and explaining that many in-person duties were
probably temporarily halted during the pandemic).
Further, as Ms. Davis herself points out, the pandemic-era
teleworking policies arose four months after her removal
was sustained by the agency. There is substantial evidence
for the Board’s finding that, at the time of her removal,
Ms. Davis was unable to perform the duties of her position
because of a medical condition. See S.A. 14–15 (Board
discussing Ms. Davis’s admission that she was “unable to
report” to duty in person and the administrative judge’s
finding that “some of her job functions required face-to-face
coordination and the use of agency tools and equipment
2 Ms. Davis’s Informal Brief contained passages with
duplicate pagination. For clarity, we cite to page numbers
in the context of the filing as a whole.
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DAVIS v. DEPARTMENT OF AGRICULTURE 5
that could not be accessed remotely”); see also S.A. 59; 68–
71 (discussion of job responsibilities).
Ms. Davis also argues that neither the Board nor the
agency considered her for medical retirement, and she
asserts that she “was unaware medical retirement was a
remedy” she could have sought. Pet. Inf. Br. 3. Because
Ms. Davis did not raise this issue before the Board, she
may not raise it now. Bosley v. Merit Sys. Prot. Bd., 162 F.3d
665, 668 (Fed. Cir. 1998) (“A party in an MSPB proceeding
must raise an issue before the administrative judge if the
issue is to be preserved for review in this court.”).
IV
We have considered Ms. Davis’s remaining arguments
and found them unpersuasive. Because the Board’s
decision was supported by substantial evidence and
otherwise in accordance with law, we affirm.
AFFIRMED
COSTS
No costs.
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