777 F.Supp. 1393 (1991)
UNITED STATES of America, Plaintiff,
v.
Pasquale MARCY, a/k/a Pat Marcy, and Fred Roti, Defendants.
No. 90 CR 1045.
United States District Court, N.D. Illinois, E.D.
June 20, 1991.
*1394 *1395 Terence Gillespie, Edward Genson, Genson, Steinback & Gillespie, Chicago, Ill., Pasquale Marcy a/k/a Pat Marcy.
Dan Webb, Steve Molo, Winston & Strown, Chicago, Ill., for Fred Roti.
Tom Durkin, Michael Shepard, Chicago, Ill., for U.S.

MEMORANDUM OPINION AND ORDER
ASPEN, District Judge:
Defendants Pasquale Marcy and Fred Roti have filed several motions to dismiss, which we address in the following order: (1) the motion to dismiss Counts I and II; (2) the motion to dismiss racketeering acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII; and (3) the motion to dismiss Count III. For the reasons set forth below, all three motions are denied.

I. Motion to Dismiss Counts I and II
Marcy and Roti offer three main arguments in support of their motion to dismiss Counts I and II. They claim that the government's indictment fails to allege a proper RICO enterprise; that Count I improperly alleges multiple conspiracies in a single count; and that Counts I and II should be dismissed for legal defects under Federal Rule of Criminal Procedure 8(b). Because the second and third arguments are essentially the same, we will address them in the same section.

A. The Indictment Properly Alleges a RICO Enterprise
Defendants contend that the indictment is insufficiently specific with respect to the description of the alleged RICO enterprise. They argue that it "fails to offer any description whatsoever of this purported organization and its structure," and "merely mentions defendants Roti and Pasquale Marcy and describes the alleged racketeering acts." Motion at 2.
An indictment need not set forth evidentiary detail, and should not be dismissed where it contains the elements of the offense charged, informs the defendants of the charges, and enables them to avoid future prosecutions for the same offense(s). United States ex rel. Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir.1983) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962)).
Here, Count I alleges that an "enterprise" existed, "consisting of a group of individuals associated in fact known as `The First Ward,' which included defendants Pasquale Marcy and Fred Roti, and which also included other members known and unknown to the grand jury. The individual members of the enterprise frequently met at Counselor's Row Restaurant in Chicago. Among the purposes of the enterprise were obtaining money, obtaining and maintaining influence over official decisions, and exercising influence over official decisions." The Fifth Circuit upheld less detailed allegations in United States v. Mitchell, 777 F.2d 248, 259 (5th Cir.1985), cert. denied, 475 U.S. 1096, 106 S.Ct. 1493, 89 L.Ed.2d 895, cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). There, the indictment defined the enterprise as "`a group of individuals associated in fact, to promote and facilitate the illegal importation and smuggling of multi-ton quantities of marijuana * * * into the United States from places outside the United States, and the distribution of said marijuana.'" Id. (quoting indictment) (ellipses in original). We find that the indictment here, supplying greater detail (including the name of the organization and the location at which its members frequently met) than the indictment in Mitchell, adequately defines the alleged enterprise. See id.
Defendants' other "enterprise" contention is that the indictment fails to allege an enterprise separate and apart from the defendants themselves and the pattern of racketeering. Motion at 4. The defendants confuse pleading and proof requirements; to the extent that their claim goes to the sufficiency of the indictment, it fails, and to the extent that it depends on proof to be presented at trial, it is premature. The indictment itself survives the motion to *1396 dismiss; neither of the enterprise arguments are compelling.

B. Count I Does Not Improperly Allege Multiple Conspiracies in a Single Count
Marcy and Roti argue that Count I impermissibly alleges multiple conspiracies in a single count, and must be dismissed for that reason. Motion at 6. Similarly, they assert that Counts I and II are improperly joined (under Fed.R.Crim.P. 8(b)) because there is no single conspiratorial agreement. Id. at 13. Both of these contentions fail.
Count I alleges an 18 U.S.C. § 1962(d) (1988) conspiracy. Section 1962(d) "is capable of providing for the linkage in one proceeding of a number of otherwise distinct crimes and/or conspiracies through the concept of enterprise conspiracy." United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371, cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986). We recently reiterated that "`a series of agreements that under pre-RICO law would constitute multiple conspiracies could under RICO be tried as a single "enterprise" conspiracy' in violation of § 1962(d)." United States v. Andrews, 754 F.Supp. 1161, 1169 (N.D.Ill.1990) (quoting United States v. Sutherland, 656 F.2d 1181, 1192 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982); cf. United States v. Walters, 711 F.Supp. 1435, 1447 (N.D.Ill. 1989) (RICO conspiracy charge upheld; "[t]hat the predicate acts may themselves be separate conspiracies does not invalidate the count"), rev'd on other grounds, 913 F.2d 388 (7th Cir.1990).
The fact that the "purported overt acts in furtherance of th[e] conspiracy," Motion at 6-7, were spread out over several years, and that Roti is not alleged to have participated in all of the acts, is irrelevant. The indictment alleges that Roti (and Marcy) agreed to influence official decisionmaking through a pattern of racketeering; that "certain defendants" are charged "with substantially more conspiratorial activity than others" does not justify dismissal or a finding of misjoinder under Fed.R.Crim.P. 8(b). Andrews, 754 F.Supp. at 1169 (citing cases). Mere temporal breadth is similarly insufficient to counsel dismissal or a finding of misjoinder. Id. at 1164 (El Rukn enterprise's alleged acts committed over twenty-four year period, 1966-1989).
We reject Marcy and Roti's three principal arguments. The government's indictment sufficiently alleges an enterprise, and does not impermissibly allege multiple conspiracies. Accordingly, we deny defendants' motion to dismiss Counts I and II.

II. Motion to Dismiss Racketeering Acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII
The government alleges that Marcy and Roti committed extortion in violation of 18 U.S.C. § 1951 (1988). This charge is detailed in racketeering acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII. Marcy argues that insofar as those allegations are made against him and track the language of the statute (money payments "induced ... under color of official right" or by wrongful use of actual and threatened fear of economic harm), they must be dismissed.
The argument is grounded in the fact that Marcy is not a public official, and therefore must be legally incapable of committing extortion "under color of official right." Motion at 2. Marcy appears to recognize case law contrary to his position, but contends the statute's "under color of official right" language does not cover conduct committed by private individuals. Id. at 3.
The simple fact that Marcy is not a public official does not preclude an "official right" extortion prosecution. If Marcy aided, abetted, or conspired with a public official to commit extortion he is guilty of violating § 1951 regardless of his own official or non-official position. United States v. Finley, 705 F.Supp. 1272, 1279-83 (N.D.Ill.1988). Further, if the victim reasonably perceives the defendant as exercising control over official decisionmaking, a § 1951 "official right" charge is also proper. *1397 United States v. Phillips, 586 F.Supp. 1118 (N.D.Ill.1984); accord Finley, 705 F.Supp. at 1279-82. We accept in the context of the motion to dismiss the government's representation that it "expects to be able to establish [that Marcy had the actual or residual or anticipated official power to deliver on his promises]"; this is far more than it needs to do to withstand dismissal of the "official right" allegations. Consolidated Response at 12.
Marcy and Roti also contend that a "public official must affirmatively induce payments [of money] to violate" § 1951; the statute is not violated, they argue, "where, as here, the defendant does not solicit or seek payments, but passively accepts them with knowledge that his office provides the motivation for the payments." Motion at 4. The Seventh Circuit, however, has decided that "`it is extortion if the official knows that the bribe, gift, or other favor is motivated by a hope that it will influence him in the exercise of his office and if, knowing this, he accepts the bribe,'" even if not solicited. United States v. Garner, 837 F.2d 1404, 1421-22 (7th Cir.1987) (rejecting United States v. O'Grady, 742 F.2d 682 (2d Cir.1984) (en banc)), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); see also United States v. O'Connor, 910 F.2d 1466, 1468-69 (7th Cir.1990) (rejecting both O'Grady and United States v. Aguon, 813 F.2d 1413 (9th Cir.1987), modified, 851 F.2d 1158 (1988) (en banc)), cert. denied, ___ U.S. ___, 111 S.Ct. 953, 112 L.Ed.2d 1041 (1991).[1] It is not for us to say, as defendants urge, that "O'Grady and Aguon represent the better approach, and one that should be followed here." Motion at 6.[2]
Defendants' arguments concerning actual and threatened fear are convoluted at best. We cross-apply the above analysis (since, as the government points out, the statute's grammatical structure would lend itself to similar analysis) and accept the government's representation that "the indictment specifically does allege such inducement." Consolidated Response at 14 (emphasis in original).
Finally, Marcy and Roti suggest that § 1951 does not proscribe attempted extortion. Motion at 9. This is contrary to Seventh Circuit case law, notwithstanding defendants' attempts at revisionary interpretation. See United States v. Rindone, 631 F.2d 491, 493 (7th Cir.1980); see also United States v. Davis, 673 F.Supp. 252, 259-60 (N.D.Ill.1987) (construing Rindone).
The motion to dismiss racketeering acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII is denied; defendants' § 1951 arguments are unavailing.

III. Motion to Dismiss Count III
The government charges in Count III of the indictment that Marcy and Roti violated 18 U.S.C. § 666 (1988), which provides, in pertinent part, that:
(a) Whoever, if the circumstance described in subsection (b) of this section exists
*   *   *   *   *   *
(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of *1398 value of $5,000 or more; shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666. Defendants contend that the government manufactured federal jurisdiction by unilaterally assigning a value of $100,000 to the undercover case upon which this count is based. Motion at 2-4.
As the government points out, however, the dollar value of the undercover case was critical to the operation's credibility. Consolidated Response at 28. Therefore, the $100,000 value, more than sufficient to create jurisdiction, was not a "labored pretense" that "`served no purpose'" other than to create jurisdiction. United States v. Anderson, 809 F.2d 1281, 1288 (7th Cir. 1987). The value of the undercover operation fit within the overall undercover scenario, and does not approach the outrageous government conduct that might warrant dismissal of the indictment. United States v. Archer, 486 F.2d 670, 681-82 (2d Cir.1973) does not go nearly as far as Marcy and Roti argue. See United States v. Podolsky, 625 F.Supp. 188, 193 (N.D.Ill. 1985) (Archer "read narrowly" by later courts), aff'd, 798 F.2d 177, 180-81 (7th Cir.1986) (absent outrageous government conduct, claim that federal jurisdiction manufactured not reviewable; remedy, if any, a political one).
Marcy and Roti's motion to dismiss Count III is denied.

IV. Overall Conclusion
Defendants filed three motions: (1) a motion to dismiss Counts I and II; (2) a motion to dismiss racketeering acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII; and (3) a motion to dismiss Count III. Each of defendants' motions to dismiss are denied for the reasons set forth above. It is so ordered.
NOTES
[1]  The Supreme Court did not resolve the split among the various Circuits in its recent opinion in McCormick v. United States, ___ U.S. ___, ___ n. 5, 111 S.Ct. 1807, 1813 n. 5, 114 L.Ed.2d 307 (1991).
[2]  We must say, however, that we find defendants' analysis a bit thin. Marcy and Roti argue that we should decline to follow Seventh Circuit precedent because a "better approach" is available. The Seventh Circuit test, they maintain, "represents an overbroad construction" of § 1951; indeed, "[s]uch a position gives a federal prosecutor too much latitude in setting standards of good government and deprives the individual of fair notice of proscribed conduct." Motion at 6. We would hazard a guess that most Americans  and not just most Chicagoans or Illinoisans  would not consider the prosecution of those who knowingly accept bribes an affront to any notions of notice or fair play.


UNITED sTATES DISTRICT coURT
FoR THE DISTRICT oF CoLUMBIA F I |_ E D

JUL 2 8 2017

C|srk, U.S. D|str|ct & Bank
ru
Courts fortna D|str|ct of Co|u?nt:¥a

D.C. HEALTHCARE SYSTEMS, INC.,

Plaintiff,

v. Civil Case No. 16-1644 (RJL)

DISTRICT OF COLUMBIA, et al.,

71

MEMoRANI)UM oPINIoN & oRDER
(Juiy 112 , 2017) [Dkrs. ##45, 46]

Defendants.

On December 27, 2016, plaintiff filed an amended complaint. Among the
amendments to the complaint Was the removal of AmeriHealth Caritas Health Partnership
(“the Partnership”) as a defendant, and the addition of language designed to meet the
pleading requirements for a derivative action. On January 9, 2017, plaintiff filed a Notice
of Voluntary Dismissal “to remove any perceived ambiguity regarding [the] Partnership’s
status as a party” and confirm “that [the] Partnership is voluntarily dismissed.” [Dkt. #44].
Later that day, the Partnership moved for dismissal With prejudice, arguing that plaintiff’s
Notice Was ineffective because plaintiff “cannot voluntarily dismiss its claims against the
Partnership Without leave of court.” Def. AmeriHealth Caritas P’ship’s Mem. in Supp. of
its Mot. to Dismiss With Prejudice l (“P’ship’s Mem.”)[Dkt. #45-1]. The Partnership also
moved, by separate motion, for attorney’s fees. Def. AmeriHealth Caritas P’ship’s Mot.
for Attorney’s Fees [Dkt. #46]. Upon consideration of the pleadings, relevant law, and the

entire record herein, the Court Will DENY the Partnership’s motions.

Federal Rule of Civil Procedure 4l(a)(l)(A)(i) permits a plaintiff to “dismiss an
action without a court order by filing . . . a notice of dismissal before the opposing party
serves either an answer or a motion for summary judginent.” Such notice takes immediate
and final effect. “[O]nce the plaintiff has filed a notice of voluntary dismissal pursuant to
Rule 4l(a)(l)(A)(i), ‘there is nothing the defendant can do to fan the ashes of that action
into life and the court has no role to play.”’ Mz`m'ter v. Sun Myung Moon, 736 F. Supp. 2d
4l, 45 n.7 (D.D.C. 201()) (quoting Am. Cyanamid Co. v. McGhee, 3l7 F.2d 295, 297 (5th
Cir. 1963) (alteration omitted)); see also 9 Charles Alan Wright & Arthur R. Miller,
Federal Pmctz`ce and Procedure § 2363 (3d ed. 2008) (“[T]he notice is effective at the
moment it is filed with the clerk.”). ln this case, plaintiff filed an amended complaint
omitting the Partnership as a defendant, and later a notice of dismissal clarifying its intent
to dismiss the Partnership through the amended complaint. The Partnership has not filed
an answer or a motion for summary judgment Thus, unless an exception applies, plaintiff
has properly dismissed the Partnership and the Partnership’s motions must be denied.

The Partnership counters that plaintiff’s suit is a derivative action that “may be . . .
voluntarily dismissed . . . only with the court’s approval.” Fed. R. Civ. P. 23.l(c). But this
suit was not a derivative action at the time the Partnership was voluntarily dismissed;

plaintiff added the derivative aspect through its amended complaintl Compare Am.

l The Partnership now asserts that the original complaint was, under a “walks-like-a-ducl<” test ofits
own design, the functional equivalent ofa derivative Suit. Def. AmeriHealth Caritas P’ship’s Reply 2 [Dkt.
#50]. As even school children know, however, not everything that at first appears to move like a duck is,
in fact, a duck. See Hans Christian Andersen, The Ugly Duckll'ng, in Hans Andersen’s Fairy Tales 42 (Eric
Vredenburg ed., 1898) (“‘Oh,’ said the mother [duck], ‘that is not a turkey; how well he uses his legs, and
how upright he holds himself! He is my own child[.]”’). Here, although the original complaint does assert
claims on behalf of an entity in which the plaintiff owns shares, it is clear on the face of the complaint that

2

Compl., at 53 [Dkt. #41] with Compl., at 45 [Dkt. #1]. That document also omitted the
Partnership as a defendant, and as the Partnership acknowledges, “[c]ourts have treated
dropping a defendant from an amended complaint as a voluntary dismissal pursuant to Rule
41.” P’ship’s Mem. 2; see also, e.g., Webb v. Green Tree Servicing, LLC, No. 11-2105,
2011 WL 6141464,at*12(D.1\/1d.Dec. 9, 2011) (“[T]o be effective, withdrawal ofa claim
need not take the particular form of a document captioned ‘Notice of Voluntary
Dismissal.”’). This sequencing_dropping the Partnership when the derivative action was
brought#means that no derivative action was ever brought against the Partnership. Thus,
Rule 23.1(c) does not require plaintiff to obtain the Court’s permission to dismiss the
Partnership from this suit.

Nor does Rule 66 require plaintiff to obtain an order from the Court. That Rule
applies to “[a]n action in which a receiver has been appointed.” Fed. R. Civ. P. 66.
Although the Partnership claims that Rule 66 is triggered by plaintiff’ s naming as a
defendant a receiver appointed by Superior Court of the District of Columbia, federal
courts have long understood that this Rule is “not at all appropriate to an appointment by a
state court.” Bicknell v. Lloya’-Smith, 109 F.2d 527, 528-29 (2d Cir. 1940) (Hand, J.); See
also 12 Charles Alan Wright & Arthur R. l\/liller, Fecleral Practice ana’ Procedure § 2982
(2d ed. 1997) (“Rule 66 applies exclusively to equity receivers and only to those that are

appointed by federal courts.”). No receiver has been appointed by this Court or any other

the plaintiff sought to join that entity as an involuntary plaintiff under Rule 19, and not as a nominal
defendant in a derivative action under Rule 23.1. l\/loreover, as the Partnership itself previously argued
when it seemed advantageous, the original complaint failed to comply with the pleading requirements of
Rule 23.l(b) in that it was not a verified complaint See l\/lem. in Supp. of Defs. AmeriHealth Caritas D.C.,
Inc., AmeriHealth Caritas P’ship, and AmeriHealth Caritas Health Plan’s l\/lot. to Dismiss 37 [Dkt. #35].

3

federal court. Thus, Rule 66 does not require plaintiff to obtain the Court’s permission to
dismiss the Partnership from this suit.

Because plaintiff properly dismissed the Partnership, the Partnership’s motion to
recover attorney’s fees pursuant to 42 U.S.C. § 1988(b) must also be denied. Section
l988(b) allows only a “prevailing party” to obtain attorney’s fees. Because plaintiff
voluntarily dismissed the Partnership, the Partnership is not a prevailing party. See, e.g.,
Gutz‘enberg v. Emery, 68 F. Supp. 3d 184, 191 (D.D.C. 2014) (holding voluntarily
dismissed party not a prevailing party entitled to attorney’s fees). The dismissal “leaves
the parties as if the action had never been brought.” Estate of Grant v. Armour Pharm.
Co., No. 04-1680, 2007 WL 172316, at *3 (D.D.C. Jan. 23, 2007); accord 9 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2367 (3d ed. 2008). Thus,
the Partnership cannot obtain attorney’s fees, and counsel, frankly, should have known
better than to try and shoehorn this case into Rule 23.1(c) or Rule 66 in order to do so.

Acoordingly, it is hereby

ORDERED that Defendant AmeriHealth Caritas Partnership’s Motion to Dismiss
with Prejudice [Dkt. #45] is DENIED; and it is further

ORDERED that Defendant AmeriHealth Caritas Partnership’s Motion for
Attorney’s Fees [Dkt. #46] is DENIED.

SO ORDERED. v _ _, A

l U Uml lt.twt_h

Rl`CHARD Jz LEoN
United States District Judge


                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD

     TRISHA L. GORDON,                               DOCKET NUMBER
                   Appellant,                        DA-0752-13-0291-I-1

                  v.

     NATIONAL AERONAUTICS AND                        DATE: August 21, 2014
       SPACE ADMINISTRATION,
                  Agency.

                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Trisha L. Gordon, Friendswood, Texas, pro se.

           Harry J. Gruchala, Houston, Texas, for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained the agency’s removal based on the charge of inability to perform the
     duties of her position and inability to maintain regular attendance for medical
     reasons. Generally, we grant petitions such as this one only when: the initial

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.       See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. We AFFIRM the initial decision,
     except as MODIFIED by adjudicating the agency’s allegations of inability to
     perform the duties of her position and inability to maintain regular attendance for
     medical reasons as separate charges and by concluding that the agency met its
     burden of proving both charges by preponderant evidence.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was employed as an Accounting Technician, GS-7, in the
     agency’s Office of the Chief Financial Officer at the Johnson Space Center in
     Houston, Texas.     Initial Appeal File (IAF), Tab 3, Subtab 4c.       The agency
     proposed to remove the appellant based on her inability to perform the duties of
     her position and her inability to maintain regular attendance for medical reasons.
     IAF, Tab 3, Subtab 4e at 1. The appellant did not respond to the proposal. IAF,
     Tab 3, Subtab 4d at 1. The deciding official sustained the charge and concluded
     that the appellant’s removal was warranted. Id.
¶3        The appellant initiated a timely Board appeal challenging her removal.
     IAF, Tab 1. She claimed that the agency’s action was the result of disability
     discrimination.   IAF, Tab 8 at 1.    The administrative judge issued an initial
                                                                               3

     decision that found the agency proved the appellant could not perform the duties
     of her position for medical reasons and affirmed her removal.           IAF, Tab 12,
     Initial Decision (ID) at 10, 15.        The administrative judge also found that the
     appellant did not prove her affirmative defense of disability discrimination. ID at
     14-15.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition to the petition for
     review, to which the appellant has replied. PFR File, Tabs 6-8.

     We consider the agency’s allegations of inability to perform the duties of her
     position and inability to maintain regular attendance for medical reasons as
     separate charges.
¶5         The agency removed the appellant based on conduct that it described as
     “inability to perform the duties of [her] position and . . . inability to maintain
     regular attendance for medical reasons.”         IAF, Tab 3, Subtab 4d at 1.        The
     agency’s allegations that the appellant was unable to maintain regular attendance
     refer to her absences from work throughout 2011 and during the months of
     January, February, and October 2012.           IAF, Tab 3, Subtab 4e at 1-2.        The
     agency’s allegations that the appellant was unable to perform the duties of her
     position refer to the appellant’s work performance and behavior since she was
     diagnosed with numerous serious medical conditions. Id. at 2-3.
¶6         The administrative judge construed this language as a single charge of
     inability to perform for medical reasons. ID at 2, 10; IAF, Tab 8 at 1. Where, as
     here, a single stated charge contains two separate acts of conduct that are not
     dependent on each other and do not comprise a single, inseparable event, each act
     constitutes   a   separate    charge.      Alvarado   v.   Department   of    the   Air
     Force, 103 M.S.P.R. 1, ¶ 12 (2006).         The Board has identified the charges of
     inability to perform duties and inability to maintain regular attendance as separate
     charges   with    unique     elements.      Compare    Combs    v.   Social   Security
     Administration, 91 M.S.P.R. 148, ¶ 13 (2002) (elements to establish charge of
                                                                               4

     inability to maintain regular attendance), with Marshall-Carter v. Department of
     Veterans Affairs, 94 M.S.P.R. 518, ¶ 10 (2003) (elements to establish charge of
     inability to perform due to medical reasons), aff’d, 122 F. App’x 513 (Fed. Cir.
     2005).
¶7        Therefore, we consider below whether the agency met its burden of proving
     each of these charges separately by preponderant evidence.

     The agency proved that the appellant was unable to maintain regular attendance
     for medical reasons.
¶8        As the administrative judge recognized, the agency’s charge that the
     appellant was unable to maintain regular attendance for medical reasons
     concerned both unscheduled absences and absences that had been scheduled and
     approved. ID at 9. It is undisputed that the appellant was approved for advance
     sick leave and the voluntary leave program and that the agency had
     accommodated the appellant’s leave requests and that she had taken 363 hours of
     leave, excluding holiday and excused leave, between June 19, 2011, and February
     17, 2012. IAF Tab 3, Subtab 4b at 3-9, 15-34.
¶9        As a general rule, an adverse action cannot be based on an employee’s use
     of approved leave. Bair v. Department of Defense, 117 M.S.P.R. 374, ¶ 5 (2012).
     However, the Board has held that an agency may bring an adverse action against
     an employee for excessive approved absences if the following criteria have been
     met: (1) the employee was absent for compelling reasons beyond her control so
     that the agency’s approval or disapproval was immaterial because the employee
     could not be on the job; (2) the absences continued beyond a reasonable time, and
     the agency warned the employee that an adverse action could be taken unless the
     employee became available for duty; and (3) the position needed to be filled by
     an employee available for duty on a regular, full-time or part-time basis.    Id.
     (citing Cook v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984)).
     Furthermore, in determining that removal based on an employee’s incapacitation
     from duty promotes the efficiency of the service, the Board has found that an
                                                                               5

      absence for which no foreseeable end is in sight constitutes a burden which no
      employer can efficiently endure. Bair, 117 M.S.P.R. 374, ¶ 5.
¶10         Here, the agency does not dispute the appellant’s contention that she was
      absent for compelling reasons beyond her control. Thus, the agency has proven
      the first element of the charge.      Further, as discussed below, the agency
      established that the appellant’s absences continued beyond a reasonable time. In
      proposing the appellant’s removal, the agency reviewed her attendance for the
      years 2011 and 2012. It alleged that the appellant was absent for illness, medical
      treatments, and doctors’ appointments approximately 20 percent of her working
      time in 2011. IAF, Tab 3, Subtab 4e at 1. The agency also alleged, and the
      appellant does not dispute, that on 16 of the 33 working days from January 1,
      2012, until February 17, 2012, she was absent for all or part of the day due to
      illness or medical appointments.      Id.   The agency further referenced the
      appellant’s denial of access to the facility beginning on February 17, 2012, after
      she made threatening comments in the workplace, and her submissions in October
      2012, indicating that she was unable to return to work due to medical conditions
      until the second week of November 2012. Id. at 2.
¶11         In her petition for review, the appellant argues that some of her
      absences-those occurring from July 26, through November 16, 2011—were
      covered under the Family and Medical Leave Act (FMLA). PFR File, Tab 1 at
      11.   An agency bears the burden of proving that, in taking a leave-related
      disciplinary action, it properly denied an eligible employee leave under the
      FMLA. Burge v. Department of the Air Force, 82 M.S.P.R. 75, ¶ 13 (1999).
¶12         The agency included in its evidence a “Certification of Health Care
      Provider for Employee’s Serious Health Condition (Family and Medical Leave
      Act)” form from the appellant’s neurologist. IAF, Tab 3, Subtab 4b at 225-28.
      The form stated the appellant was incapacitated as of July 19, 2011, and would
      have follow-up treatment appointments. Id. at 227. Nonetheless, the appellant’s
      attendance records indicate that she reported for duty for approximately 450
                                                                               6

      hours from July 26, through November 16, 2011, thus indicating that she was not
      completely incapacitated during this period. Id. at 19-25. Further, the record
      contains no specific request for FMLA leave in conjunction with that
      certification, and the agency also did not submit any evidence as to whether it
      approved or denied the appellant’s FMLA leave request based on the medical
      certification completed by her neurologist.        The agency, moreover, did not
      address the appellant’s FMLA argument in its response to her petition for review.
      PFR File, Tab 6. Based on the record evidence, we find that the agency has not
      met its burden of demonstrating that it properly denied the appellant’s requests
      for FMLA leave regarding those absences occurring between July 26, and
      November 16, 2011.
¶13         Nonetheless, even excluding those absences, we conclude that the agency
      has established that her absences extended beyond a reasonable time. As stated
      above, there is no dispute that on 16 of the 33 working days from January 1,
      2012, until February 17, 2012, the appellant was absent for all or part of the day
      due to illness or medical appointments.        Further, on February 17, 2012, the
      agency revoked the appellant’s access to her work location because she reportedly
      made a threat of workplace violence. IAF, Tab 3, Subtab 4o. The agency advised
      the appellant that she could return to work when she submitted medical
      documentation verifying that she was not a threat to herself or others. Id. The
      appellant did not submit medical documentation meeting this requirement and she
      never attempted to return to work prior to November 14, 2012, when the agency
      proposed her removal.     IAF, Tab 3, Subtab 4d at 1. Based on the foregoing, we
      conclude that the appellant’s absence from duty in 2012, which included a
      continuous span of nearly 9 months, continued beyond a reasonable time. 2

      2
        The Clerk of the Board issued a show cause order directing the agency to submit
      evidence detailing the appellant’s pay status for the period of February 17, 2012,
      through March 4, 2013. PFR File, Tab 9 at 3. The agency responded to the order with
      evidence that the appellant was in a paid administrative leave status from February 21,
      2012 (the Tuesday following a 3-day holiday weekend beginning on February 18,
                                                                               7

¶14         The agency also established that it warned the appellant that an adverse
      action could be taken unless she became available for duty. Thus, for example,
      the agency cautioned the appellant about the potential consequences of her poor
      attendance in its November 7, 2012 letter of “Concern Regarding Absence.” IAF,
      Tab 3, Subtab 4f. The letter stated that the appellant’s supervisor was concerned
      about the appellant’s inability to be regular in attendance and “the effect [her]
      absence has had on the efficiency of the organization.” Id. The letter added that
      the appellant had been “previously warned that unless [she became] available for
      duty on a regular, full[-] time basis, a ‘fitness for duty’ determination would be
      made and action may be initiated to remove [her] from [her] position and the
      federal service.” Id.; see Combs, 91 M.S.P.R. 148, ¶¶ 15-16 (finding testimony
      and documents of multiple conversations with the appellant regarding attendance
      were sufficient evidence to show she was on notice of potential adverse action).
      The agency repeated this conclusion in its proposed removal. IAF, Tab 3, Subtab
      4e at 3. As stated above, the appellant did not reply to the notice of proposed
      removal and so she did not rebut the statement in the agency’s November 7, 2012
      letter that she had been cautioned that she could be disciplined if her absences
      continued.

      2012), to October 16, 2012. She was charged 20 days of sick leave for the period of
      October 17, through November 14, 2012, excluding the November 12, 2012 holiday for
      which she received holiday pay. From November 15, 2012, until March 4, 2013, the
      appellant was again in a paid administrative leave status. PFR File, Tab 10, Subtab 1 at
      40, 42, 44. The appellant did not respond to the agency’s submission. The Board in
      Abbott v. U.S. Postal Service, 120 M.S.P.R. 294, ¶ 10 (2014), recently clarified that an
      agency’s placement of an employee on enforced leave for more than 14 days constitutes
      an appealable suspension within the Board’s jurisdiction, and overruled prior Board
      decisions adjudicating appeals of such actions using the jurisdictional framework for
      constructive suspensions. Nonetheless, the appellant did not attempt to appeal her
      placement on paid sick leave from October 17, through November 14, 2012, as a
      suspension or a constructive suspension, nor does she attempt to do so here. Thus, we
      need not address this issue on review.
                                                                               8

¶15           In any event, we find that, even assuming that the agency did not notify the
      appellant, she was a seasoned employee with almost 25 years of service with the
      federal government when she was removed, and so she clearly knew that her poor
      attendance could result in discipline.         In Stevens v. Department of the
      Army, 73 M.S.P.R. 619, 624-25 (1997), we stated one of the essential functions of
      almost every government job is coming to work regularly and adhering to a
      regular work schedule.        Likewise, the U.S. Court of Appeals for the Federal
      Circuit has held that maintaining a regular work schedule, which involves
      consistently appearing for duty as scheduled, is such a fundamental obligation of
      employment that an employee’s failure to maintain a regular schedule is a valid
      basis     for   serious   disciplinary    action.     See    Davis     v.   Veterans
      Administration, 792 F.2d 1111, 1113 (Fed. Cir. 1986); see also D’Leo v.
      Department of the Navy, 53 M.S.P.R. 44, 51 (1992) (finding that removal for
      failure to maintain a regular and predictable work schedule promotes the
      efficiency of the service).
¶16           Here, the agency showed that the appellant’s absences continued beyond a
      reasonable time and that the position needed to be filled by an employee available
      for duty on a regular, full-time or part-time basis. See Carr v. Reno, 23 F.3d 525,
      530 (D.C. Cir. 1994) (“an essential function of any government job is an ability to
      appear for work” and it is unreasonable to ask an agency to countenance an
      employee’s poor attendance); Jackson v. Veterans Administration, 22 F.3d 277,
      279 (11th Cir. 1994) (an essential function of a job requires work attendance that
      is “reasonably regular and predictable” and not “unreliable and sporadic”);
      Walders v. Garrett, 765 F. Supp. 303, 310 (E.D. Va. 1991) (some degree of
      regular, predictable attendance is fundamental to most jobs), aff’d, 956 F.2d 1163
      (4th Cir. 1992) (Table). Based on the foregoing, we find that the agency has
      proven that the appellant was unable to maintain regular attendance.
                                                                               9

      The agency proved that the appellant was unable to perform the duties of her
      position due to medical reasons.
¶17        To establish a charge of physical inability to perform in a position that does
      not have medical standards or physical requirements, and is not subject to
      medical evaluation programs, an agency is required to prove a nexus between the
      employee’s medical condition and observed deficiencies in her performance or
      conduct, or a high probability, given the nature of the work involved, that her
      condition may result in injury to herself or others. Fox v. Department of the
      Army, 120 M.S.P.R. 529, ¶ 25 (2014); Marshall-Carter, 94 M.S.P.R. 518, ¶ 10.
      In other words, the agency must establish that the appellant’s medical condition
      prevents her from being able to safely and efficiently perform the core duties of
      her position. See Fox, 120 M.S.P.R. 529, ¶ 25.
¶18        In determining if the agency has met its burden, the Board will consider
      whether a reasonable accommodation exists that would enable the appellant to
      safely and efficiently perform those core duties. See id. However, for the limited
      purposes of proving the charge, the agency is not required to show that it was
      unable to reasonably accommodate the appellant by assigning her to a vacant
      position for which she was qualified; whether it could do so goes to the
      affirmative defense of disability discrimination and/or reasonableness of the
      penalty. Id. The administrative judge found that the agency proved that, due to
      her medical restrictions, the appellant was unable to perform the required duties
      of her position. ID at 10.
¶19        The appellant argues in her petition for review that the medical
      documentation reviewed by the agency’s Medical Director was not current and
      did not reflect her current medical treatment.    PFR File, Tab 8 at 3-4.      The
      medical documentation relied on by the agency’s Medical Director in his
      determination was dated from July through September 2011. Id. The appellant
      alleges that the Medical Director was not aware of how she was responding to
                                                                               10

      treatment that began in July 2011.      Id.   However, she provided no medical
      documentation in 2012 or 2013 to reflect that her restrictions had changed.
¶20        The agency’s Medical Director provided an affidavit regarding his
      determination, in July 2012, that the appellant could not perform the essential
      functions of her position, and that no reasonable accommodations were available.
      IAF, Tab 3, Subtab 4a at 1-2. The Medical Director based his determination on
      the appellant’s position description requirements, and the medical documentation
      the appellant provided when making a work accommodation request through the
      agency’s Equal Employment Opportunity (EEO) Office. Id. at 1. The appellant
      was diagnosed with multiple autoimmune and hereditary disorders that result in
      weakness and fatigue, muscle spasms, and falls due to weakness in her
      extremities, requiring absences from work when her conditions flare up. IAF,
      Tab 3, Subtab 4b at 218, 226. Of particular focus by the Medical Director was
      the form dated August 17, 2011, completed by the appellant’s treating physician.
      IAF, Tab 3, Subtab 4a at 2. The appellant’s doctor noted a number of symptoms
      and diagnoses regarding the appellant’s condition, that the appellant was
      incapacitated beginning on July 19, 2011, and that the doctor did not provide an
      end date for the condition. Id.
¶21        The core duties of a position are synonymous with its essential functions,
      i.e., the fundamental job duties of the position, not including marginal functions.
      Fox, 120 M.S.P.R. 529, ¶ 26 (citing 29 C.F.R. § 1630.2(n)(1)). A job duty may
      be considered essential for any of several reasons, e.g., because the reason the
      position exists is to perform that function, because of the limited number of
      employees available among whom the performance of that job function can be
      distributed, or because the function is highly specialized so that the incumbent is
      hired for his or her expertise or ability to perform the particular function.
      Fox, 120 M.S.P.R. 529, ¶ 26 (citing 29 C.F.R. § 1630.2(n)(2)).        Evidence of
      whether a particular function is essential includes, inter alia, the employer’s
      judgment as to which functions are essential, written job descriptions, the amount
                                                                               11

      of time spent on the job performing the function, and the consequences of not
      requiring the incumbent to perform the function. Fox, 120 M.S.P.R. 529, ¶ 26
      (citing 29 C.F.R. § 1630.2(n)(3)).
¶22         In charging the appellant with inability to perform, the Deputy Chief
      Financial Officer indicated that the Accounting Technician in the Travel
      Accounting Group possessed the following essential functions:
            [T]o process the authorizations and expense reports through the
            Funds Certifier queue (the first queue in the travel system) and to
            serve as back up to the funding queue (the last queue in the travel
            system). These travel queues must be worked proactively throughout
            the day to ensure there is not a work stoppage in travel processing.
            The Travel Accounting Group is a highly visible customer service
            organization, so the work required by your position is important to
            the success of our mission.
      IAF, Tab 3, Subtab 4e at 1.         In his affidavit, the agency’s Medical Director
      defined the appellant’s job duties as “being responsible for examining, verifying,
      and maintaining a variety of time-critical travel documents, authorizations, and
      expense   reports.        Her   position   also   required   extensive   interface   and
      communication with customers and other team members during normal work
      hours.”   IAF, Tab 3, Subtab 4a at 1.         Neither party submitted a copy of the
      appellant’s position description. The appellant has not challenged the agency’s
      description of her job duties, therefore, we consider those duties to be the core
      duties of her position.
¶23         The agency has established a nexus between the appellant’s medical
      condition and observed deficiencies in performance.              The appellant’s last
      performance appraisal completed by the agency covered the period of May 1,
      2010, to April 30, 2011. IAF, Tab 3, Subtab 4b at 127. Although the agency has
      not provided a more recent performance evaluation, the agency did submit
      evidence describing the consequences of the appellant’s absences.           Id. at 1-4;
      IAF, Tab 3, Subtab 4e at 2-3.         The Chief of the Financial Services Branch
      submitted an affidavit regarding the adverse impact the appellant’s absences have
                                                                               12

      had on the organization. IAF, Tab 3, Subtab 4b at 1-2. The Chief’s affidavit
      references the additional time she was required to spend addressing the
      appellant’s inquiries that could have been spent on other issues, along with the
      need for others in the unit having to do the appellant’s duties when she was
      absent.   Id.   The agency also submitted the Chief’s letter to human resources
      regarding the appellant. Id. at 3-9. In that letter, the Chief addressed how the
      appellant’s absences have made it difficult to manage the work of the office and
      have affected other employees who were required to back her up in her absence.
      Id. at 3. The Chief also addressed the appellant’s communication skills and need
      for improvement. Id. at 3-4. The Chief stated that the appellant had difficulty
      communicating with her management, team lead, coworkers, and customers,
      resulting in errors and additional work to resolve. Id. at 3. The agency’s removal
      proposal contained similar information regarding the difficulty the appellant had
      in performing tasks and communicating with her management and team. IAF,
      Tab 3, Subtab 4e at 2-3. The proposal also referenced that her position required
      extensive interaction with customers and coworkers and that her inability to
      perform her position placed a severe burden on the remaining employees who had
      to cover her work. Id. at 3. We find the agency’s evidence sufficient to establish
      that the appellant’s absences had a negative effect not only on her performance,
      but also on the work group as a whole.
¶24        In October 2012, the attorney representing the appellant in her EEO
      complaint submitted two emails to the agency regarding the appellant and her
      potential to return to work. IAF, Tab 3, Subtabs 4h, 4i. In the first email, the
      attorney stated the appellant would not be able to return to work the next day due
      to her medical conditions. IAF, Tab 3, Subtab 4i at 1. The attorney stated that
      the appellant would return to work when she was able to do so.          Id.   The
      following day, the appellant’s attorney sent a second email, which stated that the
      appellant would not be able to work for a period of time and that the appellant
      would provide medical documentation for the absence. IAF, Tab 3, Subtab 4h
                                                                               13

      at 1.   There is no evidence in the record that the appellant ever provided the
      promised medical documentation for this absence.
¶25           For approximately 1 year prior to her removal, the appellant had the
      opportunity to provide the agency with medical documentation that she could
      return to work and perform the duties of her position with accommodation.
      However, she failed to provide any medical documentation even when notified of
      her potential removal. IAF, Tab 3, Subtab 4f. The record contains no evidence to
      suggest there was any foreseeable end to the appellant’s absence. The Board has
      previously held that when the appellant is unavailable for duty due to her
      incapacitation and the unavailability has no foreseeable end, then removal of the
      employee is warranted. Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 4
      (2013) (citing Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 15
      (2008)). Here, the record did not suggest a foreseeable end to the appellant’s
      inability to return to work. Therefore, we find that the agency proved the charge
      of inability to perform by preponderant evidence, and also proved the nexus of
      the charge to the efficiency of the service.

      The penalty of removal was reasonable and promotes the efficiency of the
      service.
¶26           Generally, removal for physical inability to perform the essential functions
      of a position promotes the efficiency of the service. D’Leo v. Department of the
      Navy, 53 M.S.P.R. 44, 51 (1992). At the time of her removal, the appellant had
      over 20 years of service. IAF, Tab 3, Subtab 4c. For approximately a 1-year
      period up to her removal, the appellant did not provide evidence demonstrating
      her ability to return to work as required by the agency. The appellant did not
      provide medical evidence in response to the proposal to remove her despite the
      3½ month period between the issuance of the proposal notice and notice of the
      decision to remove.      IAF, Tab 3, Subtabs 4d, 4e.      Nor did she provide any
      evidence of her ability to perform her duties in the context of the instant appeal.
                                                                               14

¶27          In determining if removal is an appropriate penalty, the Board will consider
      whether the appellant could have been assigned to a vacant position within her
      medical restrictions.   Marshall-Carter, 94 M.S.P.R. 518, ¶ 14.       However, as
      discussed above, the record demonstrates that reassignment was not feasible.
      IAF, Tab 4, Subtab 4a at 2, Subtab 4e at 3. Based on the appellant’s inability to
      perform the essential functions of the position and the lack of a foreseeable end to
      her inability to return to work, her removal will promote the efficiency of the
      service, and the penalty is sustained.

      The appellant did not prove her affirmative defense that the agency engaged in
      disability discrimination.
¶28          The administrative judge found that the appellant was an individual with a
      disability, but concluded that she was not “qualified,” and that the agency did not
      remove her based on her disability. ID at 12, 15. The appellant alleged disability
      discrimination based on denial of a reasonable accommodation. IAF, Tab 9 at
      1-2.    The Rehabilitation Act requires an agency to provide reasonable
      accommodation to the known physical or mental limitations of an otherwise
      qualified individual with a disability unless the agency can show that
      accommodation would cause an undue hardship on its business operations.
      Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014).              With
      exceptions not applicable here, the term “qualified” means that the individual
      satisfies the requisite skill, experience, education, and other job-related
      requirements of the position the individual holds or desires and, with or without
      reasonable accommodation, can perform the essential duties of such position.
      Id.; 29 C.F.R. § 1630.2(m). Reasonable accommodation includes modifications
      to the manner in which a position is customarily performed to enable a qualified
      individual with a disability to perform the essential job functions, or reassignment
      of the employee to a vacant position whose duties the employee can perform.
      Clemens, 120 M.S.P.R. 616, ¶ 10.
                                                                               15

¶29        The appellant has the burden to show that she is a qualified individual with
      a disability. Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶ 7 (2009). We
      agree with the administrative judge that she has not done so.            The appellant
      submitted a request for reasonable accommodation to the agency and provided
      medical information in support of her request. IAF, Tab 3, Subtab 4b at 218-96.
      The appellant requested to be absent for infusions four times a month for a period
      of 6 days per occurrence, not to have to return to work on the days of the
      infusions, to be absent when flare-ups occurred, and to be able to make up those
      missed hours.    IAF, Tab 3, Subtab 4b at 218.           The agency responded to the
      appellant’s accommodation request, approving some requests for a 6-month trial
      period, and also requested that the Medical Director review the documentation to
      determine if additional accommodations were necessary.             Id. at 220-22.   The
      agency’s    Medical    Director    determined     that   there   were   no    reasonable
      accommodations available to allow the appellant to perform the essential
      functions of her position. IAF, Tab 3, Subtab 4a at 2.
¶30        The appellant does not articulate how she would be able to perform the
      duties of her position that require extensive interaction with coworkers and
      customers based upon her request for a minimum of 24 days of absence per month
      to accommodate her disability. The appellant bears the burden of proving that an
      accommodation she seeks is reasonable.           Clemens, 120 M.S.P.R. 616, ¶ 17.
      Based upon the evidence submitted, we find that the appellant’s requested
      accommodation was not reasonable, and that she has not established that she
      could perform the       duties    of   her   position    with or   without    reasonable
      accommodation.
¶31        As part of its obligation to reasonably accommodate the appellant’s
      disability, the agency must consider whether it could reassign the appellant to a
      vacant     position.       Gonzalez-Acosta         v.     Department     of    Veterans
      Affairs, 113 M.S.P.R. 277, ¶ 14 (2010). The proposing official determined there
      were no available positions in the Office of the Chief Financial Officer that did
                                                                               16

not require a predictable work schedule and involve extensive interaction with
customers or coworkers. IAF, Tab 3, Subtab 4e at 3. The proposing official also
stated that an agency human resource staff member had reviewed open positions
at the agency to ascertain whether another position met her experience, education,
and work restrictions, but determined that there was no such available position at
the time. Id. The appellant has not identified any open positions for which she is
qualified and of which she can perform the essential functions; therefore she has
not met her burden to show that vacant funded positions existed to prove her
claim of disability discrimination.     See Gonzalez-Acosta, 113 M.S.P.R. 277,
¶¶ 16-17 (the appellant bears the ultimate burden of proof in a claim of disability
discrimination and must show the accommodation sought is reasonable). Based
upon the record evidence, we affirm the administrative judge’s finding that the
appellant did not prove her affirmative defense of disability discrimination.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

     If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                                                                               17

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                      18

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.

FOR THE BOARD:                      ______________________________
                                    William D. Spencer
                                    Clerk of the Board
Washington, D.C.


     19-91; 19-96
     Barnett; Barnett, Jr. v. Nat’l R.R. Passenger Corp.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
     (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
     SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 31st day of March, two thousand twenty.
 4
 5           PRESENT: BARRINGTON D. PARKER,
 6                            RAYMOND J. LOHIER, JR.,
 7                            STEVEN J. MENASHI,
 8                                    Circuit Judges.
 9           ------------------------------------------------------------------
10           ANTHONY BARNETT,
11
12                                     Plaintiff-Appellant,
13
14                      v.                                                        No. 19-91
15
16           NATIONAL RAILROAD PASSENGER
17           CORPORATION (AMTRAK),
18
19                            Defendant-Appellee.
20
21           ------------------------------------------------------------------
22
 1            ANTHONY J. BARNETT, JR.
 2
 3                          Plaintiff-Appellant,
 4
 5                     v.                                                    No. 19-96
 6
 7            NATIONAL RAILROAD PASSENGER
 8            CORPORATION (AMTRAK),
 9
10                          Defendant-Appellee. ∗
11
12            ------------------------------------------------------------------
13            FOR PLAINTIFF-APPELLANT
14            ANTHONY BARNETT:                                          ANTHONY BARNETT, pro se,
15                                                                      Maplewood, NJ.
16
17            FOR PLAINTIFF-APPELLANT
18            ANTHONY J. BARNETT, JR.:                           ANTHONY J. BARNETT, Jr., pro
19                                                               se, Belleville, NJ.
20
21            FOR DEFENDANT-APPELLEE:                            LISA M. GRIFFITH (William H.
22                                                               Ng, on the brief), Littler
23                                                               Mendelson, P.C., Melville, NY.

24            Appeal from judgments of the United States District Court for the

25   Southern District of New York (Katherine Polk Failla, Judge).

26            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

27   AND DECREED that the judgments of the District Court are AFFIRMED.

     ∗
         The Clerk of Court is directed to amend the official caption as shown above.

                                                     2
 1         Plaintiffs-Appellants Anthony Barnett (hereinafter, “Barnett”) and his son

 2   Anthony J. Barnett, Jr. (hereinafter, “Barnett, Jr.”), both pro se, sued the National

 3   Railroad Passenger Corporation (Amtrak) under Title VII of the Civil Rights Act

 4   of 1964, 42 U.S.C. §§ 2000e to 2000e-17. They alleged that Amtrak refused to hire

 5   either of them in retaliation for Barnett’s protected activity in a prior position

 6   with a different transit employer. We assume the parties’ familiarity with the

 7   underlying facts and prior record of proceedings, to which we refer only as

 8   necessary to explain our decision to affirm.

 9         We review the District Court’s grant of summary judgment de novo,

10   viewing the evidence in the light most favorable to Barnett and Barnett, Jr., the

11   non-moving parties. See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 69 (2d

12   Cir. 2015). “[T]he judge must ask . . . not whether . . . the evidence unmistakably

13   favors one side or the other but whether a fair-minded jury could return a verdict

14   for the [non-moving party] on the evidence presented.” Jeffreys v. City of New

15   York, 426 F.3d 549, 553 (2d Cir. 2005).

16         We analyze Title VII retaliation claims under the familiar burden-shifting

17   framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04

                                               3
 1   (1973). At the first stage of the McDonnell Douglas framework, the plaintiff must

 2   establish a prima facie case of retaliation by demonstrating: “1) participation in a

 3   protected activity; 2) the defendant’s knowledge of the protected activity; 3) an

 4   adverse employment action; and 4) a causal connection between the protected

 5   activity and the adverse employment action.” Zann Kwan v. Andalex Group

 6   LLC, 737 F.3d 834, 844 (2d Cir. 2013) (quotation marks omitted).

 7         Here the District Court concluded that there was no genuine dispute of

 8   material fact that Amtrak was unaware of Barnett’s protected activity. Although

 9   we have carefully considered the Barnetts’ views to the contrary, we agree with

10   the District Court that Amtrak produced admissible evidence that it was

11   unaware of Barnett’s protected activity, that the Barnetts in this case did not

12   sufficiently controvert that evidence, and that they therefore failed to establish a

13   prima facie case of retaliation.

14         We have considered the Barnetts’ remaining arguments and conclude that

15   they are without merit. For the foregoing reasons, the judgments of the District

16   Court are AFFIRMED.

17                                          FOR THE COURT:
18                                          Catherine O=Hagan Wolfe, Clerk of Court

                                               4


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 10-5024

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LIONEL HOLLOWAY,

                Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:09-cr-00363-WDQ-1)

Submitted:   May 4, 2011                      Decided:   May 25, 2011

Before NIEMEYER, KING, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Joanna Silver, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, John W. Sippel, Jr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Lionel     Holloway       appeals    the     fifteen    year        sentence

imposed by the district court upon his plea of guilty to one

count of felon in possession of a firearm in violation of 18

U.S.C.   § 922(g)(1)        (2006).      The     Armed    Career     Criminal       Act

mandated a sentence of at least fifteen years because Holloway

had three previous convictions for serious drug offenses.                            18

U.S.C. § 924(e)(1) (2006).         We affirm.

            Holloway asserts a conflict between mandatory minimum

sentences     and     the    general     sentencing        statute,        18     U.S.C.

§ 3553(a) (2006).       Section 3553(a) requires a court to “impose a

sentence sufficient, but not greater than necessary” to achieve

the enumerated purposes of sentencing.                   Holloway argues that a

fifteen year sentence is greater than necessary to accomplish

those purposes in his case, and thus the district court violated

§ 3553(a) in imposing the minimum sentence required by 18 U.S.C.

§ 924(e)(1).

            The Sentencing Reform Act, of which § 3553(a) is a

part,    dictates     that     a   defendant         should    be    sentenced       in

accordance     with    its    provisions        to   achieve   the    purposes       of

§ 3553(a)(2) “[e]xcept as otherwise specifically provided.”                          18

U.S.C.   § 3551(a)     (2006).         Courts    have    opined     that    mandatory

minimum sentences are “otherwise specifically provided” and thus

do not conflict with § 3553(a)’s parsimony clause.                         See United

                                          2
States v. Sutton, 625 F.3d 526, 529 (8th Cir. 2010); United

States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004).                                Other

courts, while not directly ruling on the alleged tension, have

similarly rejected arguments that § 3553(a) authorizes deviation

from statutorily-mandated sentences.                   United States v. Cirilo-

Muñoz,    582    F.3d    54,   55    (1st    Cir.    2009)    (per   curiam),      cert.

denied, 130 S. Ct. 1103 (2010); United States v. Franklin, 499

F.3d 578, 585-86 (6th Cir. 2007); United States v. Roberson, 474

F.3d   432,     436-37     (7th     Cir.    2007).     In    addressing      a    related

issue, we have stated that “a district court has no discretion

to impose a sentence outside of the statutory range established

by Congress for the offense of conviction.”                        United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005).                      We see little need

to expound further on this concept.

              Holloway      also      claims      procedural       and      substantive

unreasonableness with his sentence.                  We review a sentence under

a   deferential     abuse      of   discretion       standard.       Gall    v.   United

States, 552 U.S. 38, 51 (2007).                  The first step in this review

requires us to inspect for procedural reasonableness by ensuring

that   the      district    court     committed      no     significant     procedural

errors,    such    as    improperly        calculating      the   Guidelines       range,

failing to consider the 18 U.S.C. § 3553(a) factors, or failing

to adequately explain the sentence.                   United States v. Boulware,

604 F.3d 832, 837-38 (4th Cir. 2010).                        We then consider the

                                             3
substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances.                           Gall, 552 U.S. at

51.     On     appellate         review,       a    sentence      within      a     properly-

calculated Guidelines range is presumptively reasonable.                              United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

              Holloway     complains       that       the    district       court    did    not

explain its rationale for the sentence in adequate depth.                                 After

properly      calculating        the    Guidelines          sentence,    the      sentencing

court   recounted       specific       aspects       of     Holloway’s      circumstances,

including      his    employment        history,          witness    testimony       in    his

support, and the length of time since his last conviction.                                  The

court set forth a sufficiently developed rationale to support

Holloway’s sentence.             Moreover, a sentence at the minimum term

prescribed     by    law    is    per     se       reasonable.        United      States    v.

Farrior, 535 F.3d 210, 224 (4th Cir. 2008).                             Thus, Holloway’s

unreasonableness arguments fail.

              Accordingly,        we    affirm       the    sentence     imposed      by    the

district     court.        We    dispense      with       oral   argument      because     the

facts   and    legal     contentions        are      adequately       presented       in   the

materials      before      the    court    and       argument       would    not     aid   the

decisional process.

                                                                                AFFIRMED

                                               4


COURT OF APPEALS

COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS

                                                                              )
                                                                              )
                                                                              )
                                                                              )
No.  08-03-00449-CV
IN RE:  FRANCISCO LIMON, ROSENDA        )
LIMON, PEDRO TORRES, and
SIERRA            )                   AN ORIGINAL
WELDING SUPPLY, INC. d/b/a
AIRMIX          )
                                                                              )     PROCEEDING IN MANDAMUS
                                                                              )
                                                                              )
                                                                              )

OPINION  ON
PETITION  FOR  WRIT
OF  MANDAMUS

This is an
original proceeding in mandamus.
Francisco Limon, Rosenda Limon, Pedro Torres, and Sierra Welding Supply,
Inc. d/b/a Airmix, Relators, seek a writ of mandamus requiring the Honorable
Javier Alvarez, Judge, County Court at Law No. Three of El Paso County, Texas,
to vacate or rescind his order dated March 11, 2003, which found that certain
documents were privileged but fell within the crime-fraud exception.  Relators also ask that the trial court be directed
to grant their motion to seal the documents and prohibit their use by the Real
Party in Interest, to disqualify counsel, and dismiss the underlying
action.  For the reasons stated below, we
deny relief.
STANDARD OF REVIEW

Mandamus will lie
only to correct a clear abuse of discretion.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)(orig.
proceeding).  Moreover, there must be no
other adequate remedy at law.  Walker,
827 S.W.2d at 840.
Clear
abuse of discretion
An appellate court
rarely interferes with a trial court=s
exercise of discretion.  A clear abuse of
discretion warranting correction by mandamus occurs when a court issues a
decision which is without basis or guiding principles of law.  See Johnson v. Fourth Court of Appeals,
700 S.W.2d 916, 917 (Tex. 1985)(orig. proceeding).  With respect to resolution of factual issues
or matters committed to the trial court=s
discretion, the reviewing court may not substitute its judgment for that of the
trial court.  Walker, 827 S.W.2d
at 839-40.  The relator must therefore
establish that the trial court could reasonably have reached only one decision.  Id. at 840.  Even if the reviewing court would have
decided the issue differently, it cannot disturb the trial court=s decision unless it is shown to be
arbitrary and unreasonable.  Id.  With respect to a trial court=s determination of the legal principles
controlling its ruling, the standard is much less deferential.  A trial court has no Adiscretion@ in determining what the law is or
applying the law to the facts.  Thus, a
clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion, and may result in appellate reversal by
extraordinary writ.  Walker, 827
S.W.2d at 840.
No
adequate remedy by appeal

An appellate court
will deny mandamus relief if another remedy, usually appeal, is available and
adequate.  Street v. Second Court of
Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986) (orig. proceeding).  Mandamus will not issue where there is Aa clear and adequate remedy at law,
such as a normal appeal.@  Walker, 827 S.W.2d at 840, quoting
State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984).  Mandamus is intended to be an extraordinary
remedy, available only in limited circumstances.  The writ will issue Aonly
in situations involving manifest and urgent necessity and not for grievances
that may be addressed by other remedies.@  Holloway v. Fifth Court of Appeals,
767 S.W.2d 680, 684 (Tex. 1989), quoting James Sales, Original Jurisdiction of the Supreme Court and
the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas,
Sec. 1.4(1)(b) at 47 (2d Ed. 1979).
APPLICATION OF THE LAW TO THE FACTS BEFORE THE
COURT
Relators have
failed to establish that Respondent clearly abused his discretion by entering
the March 11, 2003 order.  Accordingly,
we deny the relief requested in the petition for mandamus.
It is further
ordered that the sealed original exhibits which were transmitted to this Court
pursuant to an order of the trial court for our review in connection with the
mandamus petition shall be returned to the official court reporter of the
County Court at Law No. 3.

December 4, 2003
DAVID WELLINGTON CHEW, Justice

Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.