Jeff Shelton v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFF S. SHELTON, DOCKET NUMBER
Appellant, SF-0752-22-0114-I-1
v.
DEPARTMENT OF HOMELAND DATE: March 18, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jay Shore , Lubbock, Texas, for the appellant.
John Yap , Esquire, Chula Vista, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the removal based on a sustained charge of willful and intentional
refusal to obey an order. On petition for review, the appellant argues that the
administrative judge improperly analyzed his disability discrimination and
retaliation claims. Petition for Review (PFR) File, Tab 1. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petitions such as this one only in the following circumstances: the initial 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 administrative 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. 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, 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. Except as
expressly MODIFIED to clarify the proper framework for analyzing the
appellant’s disability discrimination and retaliation claims, to reevaluate the
agency’s undue hardship burden related to the religious discrimination failure to
accommodate claim in light of recent case law, and to independently analyze the
penalty factors, we AFFIRM the initial decision.
The appellant does not challenge the following findings made by the
administrative judge: (1) the agency proved the charge of willful and intentional
refusal to obey an order; (2) the appellant did not prove his disparate treatment
religious discrimination claim; and (3) there was a nexus between the sustained
misconduct and the efficiency of the service. PFR File, Tab 1; Initial Appeal
File, Tab 32, Initial Decision (ID). We affirm the administrative judge’s findings
in this regard.
The appellant makes two primary arguments on review related to his
disability discrimination claim. He asserts that he was improperly regarded as
disabled, and the agency was required to conduct an economic assessment under
29 C.F.R. § 1630.2(p)(2) to support its claim of undue hardship, and it failed to
do so. PFR File, Tab 1. Neither argument is persuasive.
3
The first argument appears to relate to his disparate treatment claim. We
agree with the administrative judge that there is no evidence that the agency
regarded the appellant as having a disability or a contagious condition, ID at 43,
and thus, this argument is without merit. 2 In his analysis of this claim, the
administrative judge identified the motivating factor standard, and he briefly
discussed the Board’s decision in Southerland v. Department of Defense,
119 M.S.P.R. 566 (2013), and the mixed-motive analysis. ID at 42. After the
administrative judge issued the initial decision, the Board issued Pridgen v.
Office of Management and Budget, 2022 MSPB 31, which clarified the proper
analytical framework for a disparate treatment disability discrimination claim.
Nevertheless, under both Southerland and Pridgen, the appellant bears the burden
of proving by preponderant evidence that his disability was a motivating factor in
the removal action. Pridgen, 2022 MSPB 31, ¶ 40; Southerland, 119 M.S.P.R.
566, ¶¶ 18, 23. We discern no error with the administrative judge’s implicit
conclusion that the appellant did not prove motivating factor. Any arguments on
review relating to the administrative judge’s analysis of this disparate treatment
claim do not persuade us that a different outcome is warranted.
The second argument relates to the appellant’s failure to accommodate
claim. A Federal agency may not discriminate against a qualified individual on
the basis of disability and is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that reasonable accommodation would
cause an undue hardship. 29 C.F.R. § 1630.2(o), (p). Even if we assumed for the
purposes of our analysis that the appellant was a qualified individual with a
disability, the burden shifts to the agency to show that the requested
2
It is unclear if the appellant’s argument on review in this regard is also related to his
failure to accommodate claim. Even if we somehow found, for the purposes of our
analysis, that the agency regarded him as having an impairment pursuant to 42 U.S.C.
§ 12102(1)(C) and 29 C.F.R. § 1630.2(g)(1)(iii), an employee who is disabled solely
under the “regarded as” prong is not entitled to a reasonable accommodation. Alford v.
Department of Defense, 118 M.S.P.R. 556, ¶ 10 n.6 (2012).
4
accommodation imposes an undue hardship, i.e., an action requiring “significant
difficulty or expense.” 42 U.S.C. § 12111(10)(A); 29 C.F.R. § 1630.2(p)(1). The
regulation at 29 C.F.R. § 1630.2(p)(2) sets forth several factors to consider in
evaluating undue hardship. It is true that several of these factors involve an
assessment of the agency’s financial resources and/or the financial cost of the
accommodation. However, the last factor is not explicitly financial or economic
in nature. Rather, it requires consideration of the “impact of the accommodation
upon the operation of the facility, including the impact on the ability of other
employees to perform their duties and the impact on the facility’s ability to
conduct business.” 29 C.F.R. § 1630.2(p)(2)(v). This factor is critical to the
outcome of this matter. Indeed, the agency persuasively explained that, if it
granted the appellant’s reasonable accommodation request, it would face a
significant difficulty in terms of the potentially catastrophic risk to other agency
employees, detainees, and other members of the public of contracting—and
possibly dying from—COVID-19. Accordingly, we agree with the administrative
judge that the agency satisfied its burden to show undue hardship, and the
appellant cannot prevail on this claim.
Although not explicitly raised by the appellant, we further modify the
initial decision to discuss his retaliation claim related to his disability. In
Pridgen, 2022 MSPB 31, ¶¶ 44, 46-47, the Board clarified that a “but-for”
causation standard applies to retaliation claims involving requesting a reasonable
accommodation and opposing disability discrimination because they are activities
protected by the Rehabilitation Act. Because we agree with the administrative
judge that the appellant failed to meet the lesser burden of proving that his
protected activity was a motivating factor in his removal, ID at 46, he necessarily
failed to meet the more stringent “but-for” standard. Accordingly, a different
outcome is not warranted.
Similarly, although not raised by the appellant on review, we modify the
initial decision to reevaluate the agency’s burden to prove undue hardship as part
5
of the failure to accommodate religious discrimination claim. The U.S. Supreme
Court recently clarified that the agency’s burden to prove undue hardship in the
context of a failure to accommodate religious discrimination claim was not met
by a showing of a “more than de minimis” cost, which was the standard
articulated by the administrative judge in the initial decision. Groff v. DeJoy,
600 U.S. __, 143 S.Ct. 2279, 2294 (2023); ID at 36-38. Instead, the Court
clarified that the undue hardship standard was satisfied “when a burden is
substantial in the overall context of an employer’s business.” Groff, 600 U.S.
at __, 143 S.Ct. at 2294. Even under this clarified standard, a different outcome
is not warranted. We find that the agency’s reasons for denying the appellant’s
religious accommodation request in March 2021, as set forth in the initial
decision, satisfies the Groff substantial burden test. Thus, the agency has proven
that granting the appellant’s requested accommodation constitutes an undue
burden.
Having found that the appellant did not prove any of his affirmative
defenses, we now turn to the penalty. In his penalty analysis, the administrative
judge noted that when some, but not all, of an agency’s charges and specifications
are sustained, the Board will accord proper deference to the agency’s penalty
selection and modify the agency-imposed penalty only when it finds that it clearly
exceeded the bounds of reasonableness. ID at 48. The administrative judge then
briefly discussed the relevant penalty factors and concluded that removal was a
reasonable penalty for the sustained misconduct. ID at 49. The U.S. Court of
Appeals for the Federal Circuit recently held that, in a situation in which fewer
than all charges are sustained, the penalty factors should be independently
analyzed. Williams v. Bureau of Prisons, 72 F.4th 1281, 1284 (Fed. Cir. 2023).
Because the administrative judge only sustained the willful and intentional refusal
to obey charge, and not the other charges, ID at 25-33, a decision which we have
affirmed herein, we modify the initial decision to emphasize that we are not
deferring to the agency’s penalty selection. Instead, we have independently
6
evaluated the penalty factors based on evidence relating to the single sustained
charge and specifications, and we find that removal is a reasonable penalty for the
sustained misconduct. 3
NOTICE OF APPEAL RIGHTS 4
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
3
We have considered the appellant’s remaining arguments on review, but none warrant
a different outcome. For example, the appellant argues that the administrative judge
has a conflict of interest because he was “guilty of the same discriminatory imaginings
as the agency.” PFR File, Tab 1 at 10. In making a claim of bias or prejudice against
an administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during
the course of a Board proceeding warrants a new adjudication only if the administrative
judge’s comments or actions evidence “a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). The appellant has not proven that there was any such favoritism or
antagonism.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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 prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.