Sherlena Davis v. Department of the Air Force

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERLENA E. DAVIS, DOCKET NUMBER
Appellant, DA-0752-21-0227-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 2, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sherlena E. Davis, Oklahoma City, Oklahoma, pro se.
Michael J. Taber and Michele S. McNaughton, Tinker Air Force Base,
Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt dissents without an opinion.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for attendance reasons. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 nonprecedentia l 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 th e Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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 supplement the administrative judge’s findings on the appellant’s
claim of religious discrimination, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS-06 Pharmacy Technician stationed at the Medical
Treatment Center (MTC) in Tinker Air Force Base, Oklahoma. Initial Appeal
File (IAF), Tab 1 at 1, 7. Her primary duties included filling and refi lling
prescriptions, entering orders into a medical database, checking medication stock,
inspecting the pharmacy, and consulting with patients and physicians. IAF,
Tab 29, Hearing Transcript (HT) at 14 (testimony of the appellant’s supervisor),
141-42 (testimony of the appellant). The appellant worked an 8 -hour per day
schedule, Monday through Friday. IAF, Tab 7 at 56.
¶3 Beginning in March 2020, in response to the COVID-19 pandemic, the
agency made a series of changes to its operations in the pharmacy and in the
MTC as a whole. HT at 14-22 (testimony of the appellant’s supervisor). As
relevant here, one of the changes was that the agency began requiring people to
wear masks when entering the MTC. The agency stationed personnel at the MTC
entryway both to screen individuals for fever and to enforce its masking policy.
3
HT at 20-21 (testimony of the appellant’s supervisor). Nevertheless, employees
were able to remove their masks once inside the facility, as long as they kept
physically distanced from other people. HT at 22, 28 (testimony of the
appellant’s supervisor).
¶4 In September 2020, the appellant was stopped twice at the entryway for not
wearing a mask. HT at 23, 28 (testimony of the appellant’s supervisor), 135-36
(testimony of the appellant). The appellant had several meetings with agency
officials, including her supervisor, the Officer in Charge of the pharmacy, and the
Noncommissioned Officer in Charge, and informed them that she had a sincerely
held religious belief that precluded her from wearing a mask or other face
covering. HT at 23-25, 54-55 (testimony of the appellant’s supervisor), 135-37
(testimony of the appellant).
¶5 In November 2020, the agency made its masking policy more stringent,
requiring individuals in the MTC to be masked at all times unless they were alone
in a room, behind closed doors. HT at 22-23, 28-29 (testimony of the appellant’s
supervisor). Things came to a head on November 2, 2020, when the appellant
met with her first- and second-level supervisors and the Noncommissioned
Officer in Charge and was informed that, if she did not wear a face covering, she
would not be able to enter the MTC and report for duty. IAF, Tab 14 at 109; HT
at 52 (testimony of the appellant’s supervisor), 154 (testimony of the appellant).
The appellant notified these officials that she intended to pursue her remedies
through the equal employment opportunity (EEO) process. IAF, Tab 14 at 109.
The appellant filed an informal EEO complaint on November 4, 2020, and
subsequently filed a formal complaint of discrimination. HT at 140 (testimony of
the appellant).
¶6 In early November, the appellant began to absent herself from work in order
to avoid the mask requirement. IAF, Tab 14 at 68, 70, 86; HT at 29 (testimony of
the appellant’s supervisor). The appellant took annual leave from Wednesday,
November 4 through Friday, November 6, 2020. IAF, Tab 20 at 9. The
4
following week, the appellant took annual leave on November 9, 10, and 12,
2020, with November 11 being the Veterans Day Holiday. IAF, Tab 14 at 74. It
is not clear from the record what the appellant’s status was for Friday,
November 13, 2020. It appears that, at this point, her annual leave balance was
exhausted. IAF, Tab 14 at 82, Tab 24 at 4-5; HT at 29 (testimony of the
appellant’s supervisor). Nevertheless, the appellant remained absent from work.
On each day of the following workweek, beginning November 16, 2020, the
appellant informed her supervisor that she would not be coming into work due to
her religious objection to the mask requirement. IAF, Tab 14 at 68, 70, 86, 94. It
appears that the next time the appellant communicated with her supervisor wa s
December 2, 2020, when she retroactively requested 6 hours of annual leave ,
3 hours each on the days before and after Thanksgiving. Id. at 91.
¶7 After that, the appellant did not communicate with her supervisor again
until January 2021, when her supervisor proposed her removal. IAF, Tab 7
at 56-58; HT at 40 (testimony of the appellant’s supervisor). The proposal was
based on two charges—unauthorized absence and failure to comply with
established leave procedures. IAF, Tab 7 at 56. Under the u nauthorized absence
charge, the agency alleged that the appellant failed to report for duty as scheduled
on November 17 and 18, 2020, and from November 30, 2020, to January 4, 2021.
Id. Under the failure to comply with established leave procedures charge , the
agency alleged that the appellant failed to follow leave requesting procedures on
those same dates. Id. After the appellant responded, the agency issued a decision
sustaining the charges and removing her effective April 5, 2021. IAF, Tab 1 at 7,
Tab 7 at 16-18, 29-34.
¶8 The appellant filed a Board appeal, raising affirmative defenses of harmful
procedural error, retaliation for EEO activity, and discrimination based on
religion. IAF, Tab 1 at 3, 5, Tab 4 at 2, Tab 21 at 3. After a hearing, the
administrative judge issued an initial decision affirming the appellant’s removal.
IAF, Tab 27, Initial Decision (ID). The administrative judge sustained both
5
charges and upheld the removal penalty. ID at 6-10, 19-21. She further found
that the appellant failed to prove any of her affirmative defenses. ID at 10-18.
¶9 The appellant has filed a petition for review, contesting the administrative
judge’s findings on her claims of religious discrimination and EEO reprisal.
Petition for Review (PFR) File, Tab 1. The agency has responded to the petition
for review, and the appellant has filed a reply to the agency’s response. 2 PFR
File, Tabs 4-5.
ANALYSIS
¶10 The Board generally will consider only issues raised in a timely filed
petition or cross petition for review. 5 C.F.R. § 1201.115. The appellant does
not contest the administrative judge’s findings on the charges, nexus, or penalty,
or her findings on the appellant’s affirmative defense of ha rmful procedural error.
PFR File, Tab 1 at 63. Indeed, the appellant appears to concede that her removal
would promote the efficiency of the service but for the issues of religious
discrimination and retaliation for EEO activity. Id. We have reviewed the
administrative judge’s findings on the uncontested issues of charge, nexus,
penalty, and harmful procedural error, and we discern no basis to disturb them.
ID at 6-10, 17-21. Arguably, the two charges should have been merged to the
extent that they cover the same dates and are otherwise based on the same facts.
See McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014).
Nevertheless, even if the administrative judge erred in considering these charges
separately, we find no indication that this had any effect on the outcome of the
initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis to reverse an initial decision). This is
2
The appellant also filed a supplement to her petition for review, but this consists only
of two identical copies of the pleading that she submitted in her original petition for
review filing. PFR File, Tab 1 at 63, Tab 2.
6
particularly so considering that the deciding official credibly testified that he
would have removed the appellant based on either of the two charges alone. ID
at 14 n.10; HT at 92-93 (testimony of the deciding official).
¶11 However, even if an agency proves its charges, the Board may not sustain
an adverse action if the appellant proves by preponderant evidence that the
agency’s decision was based on a prohibited personnel practice under 5 U.S.C.
§ 2302(b). 5 U.S.C. § 7701(c)(2)(B); 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(2). In
this case, the appellant claims that the agency’s decision was based on two
different prohibited personnel practices under 5 U.S.C. § 2302(b)(1)(A)—
discrimination based on religion and retaliation for EEO activity. IAF, Tab 21
at 3; see 42 U.S.C. § 2000e-16(a). The administrative judge considered the
appellant’s religious discrimination claim under both disp arate treatment and
reasonable accommodation theories. ID at 10-16.
¶12 An appellant who asserts an affirmative defense of disparate treatment
discrimination based on religion, in violation of 42 U.S.C. § 2000e-16, must
prove by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Pridgen v. Office of
Management & Budget, 2022 MSPB 31, ¶¶ 20-21. However, to obtain the full
measure of relief available under the statute, the appellant must show that
religion was a but-for cause of the action. Id., ¶ 22. In determining whether the
appellant has met her burden, the Board must consider all of the evidence
together as a whole. See id. ¶ 24.
¶13 In her initial decision, the administrative judge found that the appellant
failed to meet her initial burden of showing that her religious beliefs were a
motivating factor in her removal. ID at 12. She found that the appellant
presented no evidence to support her claim and that both the appellant’s
supervisor and the deciding official credibly testified that the removal action was
not motivated by any animus toward the appellant for her religious convictions.
7
ID at 12; HT at 68-69 (testimony of the appellant’s supervisor); HT at 91
(testimony of the deciding official).
¶14 On petition for review, the appellant argues that a Human Resources
Specialist testified at the hearing that the appellant’s religious beliefs were the
root cause of her removal. PFR File, Tab 1 at 63. We find that the appellant has
mischaracterized this testimony. The Human Resources Specialist conceded that
the appellant’s religious objection to wearing a mask led to the absences
underlying her removal, a fact which is not in dispute. HT at 123 (testimony of
the Human Resources Specialist). However, this testimony does not suggest that
the religious convictions themselves, either alone or in conjunction with the
unauthorized absences, were a motivating factor in the removal.
¶15 The appellant also argues that a Pharmacy Technician testified that her
removal was based on religious discrimination. PFR File, Tab 1 at 63. We
disagree with the appellant’s characterization of this testimony as well. When
asked whether “the root of the appellant’s termination was because of her
religious beliefs and not wearing a mask,” this witness responded that he believed
that her removal “was due to not wearing the mask.” HT at 130-31 (testimony of
the Pharmacy Technician). The record shows that this nonmanager ial,
nonsupervisory employee was not involved in the removal process and that he
misunderstood the nature of the charges underlying the removal. HT at 131
(testimony of the Pharmacy Technician). We find no basis to conclude that he
had any knowledge of the motives of the responsible agency officials. In any
event, although the appellant’s religious beliefs, her refusal to wear a mask, and
the absences underlying her removal are linked, a finding that the appellant was
removed for either unauthorized absences or failure to follow masking policy
does not entail a finding that the removal was motivated by the appellant’s
religious beliefs.
¶16 The appellant further argues that the proposing official initially included in
the proposal notice information about the appellant refusing to wear a mask due
8
to her religious beliefs, but the Human Resources office deleted that language
from the final copy of the proposal. PFR File, Tab 1 at 63. The appellant’s
argument is supported by the record. HT at 48-49 (testimony of the appellant’s
supervisor), 122-23 (testimony of the Human Resources Specialist). The
supervisor’s initial draft of the proposal is not included in the record, however,
and the record does not otherwise reflect her words in substance, meaning, or
context. In any event, the record shows that the Human Resources office deleted
this language because it determined that the masking requirement and the
appellant’s religious objections to it were not directly relevant to the
absence-related charges. HT at 122-23 (testimony of the Human Resources
Specialist). We find no basis to infer from this that religious discrimination was
a motivating factor in the appellant’s removal.
¶17 To prove an affirmative defense of discrimination based on a failure to
accommodate an employee’s religious beliefs, an appellant must show that she
holds a bona fide religious belief that conflicts with an employment requirement;
has informed her employer of the conflict; and was discharged or disciplined for
failing to comply with the conflicting requirement. See Reed v. Department of
Transportation, 76 M.S.P.R. 126, 131 (1997); Miller v. U.S. Postal Service,
EEOC Appeal No. 01930003, 1993 WL 1505208, at *3 (Sept. 23, 1993). If the
appellant meets this burden, the Board will consider whether the agency has
shown that it could not reasonably accommodate the appellant without undue
hardship or that the appellant has been accommodated. 3 Miller, 1993 WL
3Both Title VII and the Americans with Disabilities Act (ADA) require employers to
make “reasonable accommodations” for their employees absent “undue hardship.”
42 U.S.C. §§ 2000e(j), 12112(b)(5). However, the standard for undue hardship in a
religious accommodation case under Title VII is far lower than the standard for undue
hardship in a disability accommodation case under the ADA. Petitioner v. Department
of Energy, EEOC Petition No. 0320130027, 2014 WL 4802110, at *6 n.2. (Sept. 19
2014). Under Title VII, the threshold for undue hardship is “ more than a de minimis
cost,” 29 C.F.R. § 1605.2(e)(1), whereas under the ADA, the threshold for undue
hardship is “significant difficulty or expense,” 42 U.S.C. § 12111(10).
9
1505208, at *3. The reasonableness of an employer’s accommodation must be
determined on a case-by-case basis, taking into account the unique circumstances
of each situation. Id. Accommodations for religious practices include, but are
not limited to, voluntary substitutions or swaps, flexible scheduling, or lateral
transfers and changes of job assignments. 29 C.F.R. § 1605.2(d)(1). Any
reasonable accommodation proffered by the employer that removes the conflict
between the employee’s religious beliefs and the requir ements of the workplace
is sufficient to meet its accommodation obligation. Miller, 1993 WL 1505208,
at *4. To show undue hardship, an agency must demonstrate that an
accommodation would require more than a de minimis cost. Trans World
Airlines v. Hardison, 432 U.S. 63, 74 (1977). Relevant factors may include the
type of workplace, the nature of the employee’s duties, the identifiable cost of the
accommodation in relation to the size and operating costs of the employer, and
the number of employees who will in fact need a particular accommodation.
Frances A. v. Department of Justice, EEOC Appeal No. 2019004187, 2020 WL
7241814, at * 4 (Nov. 30, 2020).
¶18 In her initial decision, the administrative judge found that the appellant
proved her prima facie case. Specifically, she found that the appellant had a bona
fide religious belief that conflicted with the agency’s masking requirement, the
appellant communicated this fact to the agency, and the appellant’s removal was
based on absences related to her religious objections to the mask mandate . ID
at 15-17. However, she also found that the agency met its burden of showing
that accommodating the appellant’s beliefs would have caused an undue hardship.
ID at 17-19. The administrative judge found that the appellant suggested and the
agency considered various forms of accommodation, including spending the day
in a closed office typing prescriptions and working alone at the pharmacy at
night, but the agency reasonably rejected those proposals due to unfeasibility and
10
safety and security concerns. 4 Id. As set forth below, we modify the initial
decision to supplement these findings.
¶19 On petition for review, the appellant argues that it would not have been an
undue hardship for the agency to allow her to work from home. PFR File, Tab 1
at 63. She argues that she previously worked at a Coumadin clinic, telephoned
patients to schedule their appointments, and never had to go into the pharmacy to
fill a prescription. Id. However, during the time period at issue, the appellant
was not working at the Coumadin clinic; she was working at a pharmacy as a
Pharmacy Technician, and filling prescriptions was a major part of her job.
Moreover, the record shows that during the early stages of the pandemic, the
pharmacy reduced staffing by having half of the staff work in the pharmacy and
the other half “telework.” HT at 15 (testimony of the supervisor). However,
even though these employees’ hours were recorded as telework and they were
technically in duty status, there is no work that a Pharmacy Technician can
perform from home, so these “teleworking” employees were, in real ity, not
performing any duties whatsoever. HT at 16, 18 (testimony of the appellant’s
supervisor). If there was any arrangement at any cost that the agency could have
made for the appellant to perform some sort of work from home, there is no
evidence of it in the record. An accommodation that would have essentially
4
To the extent the administrative judge found that the agency offered reasonable
accommodations in the form of wearing a scarf or face shield, such measures fell within
the heart of the appellant’s religious objections, and thus would not have removed the
conflict between the appellant’s religious beliefs and the requirements of the workplace.
Moreover, the administrative judge’s finding that the appellant’s proposed
accommodations needed to have enabled her to perform the “essential functions” of her
position also appears to be incorrect. As set forth above, an accommodation for
religious practices may include a change in job assignments. For the reasons set forth
below, however, these errors do not warrant a different result. See Panter v.
Department of the Air Force, 22 M.S.P.R. at 282 (holding that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
11
required the agency to pay the appellant for not working would result in more
than a de minimis cost, and therefore impose an undue hardship.
The appellant also argues that she could have stayed behind closed doors and
typed all day, and that there are already several Pharmacy Technicia ns who do
that. PFR File, Tab 1 at 63. However, there is no evidence in the record that this
is the case. In any event, as the administrative judge correctly found, the
appellant’s proposal would essentially require that she remain in a closed office
all day every day without leaving to use the restroom or for any other urgent
reason that might come up, which is not realistic. ID at 15. Such an
accommodation would thereby bring the appellant into contact with coworkers
and/or patients when she would leave the closed office unmasked during the work
day, thereby exposing those individuals to a heightened risk of contracting
COVID-19. This would constitute an undue hardship to the agency. See
Aukamp-Corcoran v. Lancaster General Hospital, No. 19-5734, 2022 WL
507479, at *6-8 (E.D. Pa. 2022) (finding that granting a nurse’s request for a
religious exemption from an influenza vaccination requirement would result in an
undue hardship due to the potential for increased hospitalization and death to
patients); Barrington v. United Airlines, Inc., 566 F. Supp. 3d 1102 (D. Colo.
2021) (holding that the increased risk of employees contracting COVID-19, if
they were required to come into contact with unvaccinated coworkers , alone
constituted an undue hardship).
¶20 In support of this determination, the Equal Employment Opportunity
Commission’s Compliance Manual on Religious Discrimination, Section 12
(Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-
discrimination#_ftnref256, describes what constitutes more than a de minimis
cost for purposes of determining undue hardship:
Costs to be considered include not only direct monetary costs but
also the burden on the conduct of the employer’s business. For
example, courts have found undue hardship where the
accommodation diminishes efficiency in other jobs, infringes on
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other employees’ job rights or benefits, impairs workplace safety, or
causes coworkers to carry the accommodated employee’s share of
potentially hazardous or burdensome work. Whether the proposed
accommodation conflicts with another law will also be considered.
Example 37 of the Compliance Manual explains that a steel mill laborer’s
requested religious accommodation, to be permitted to wear a skirt because her
faith prohibited her from wearing pants, would pose an undue hardship because
the evidence established that wearing pants was necessary for safety reasons
around the machinery operated by the laborer. Similarly, we find that the
appellant’s requested accommodation would impose an undue hardship because it
would impair workplace safety during the COVID-19 pandemic. See Barrington,
566 F. Supp. 3d 1102; see also Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382,
1383-84 (9th Cir. 1984) (holding that the employer did not have to accommodate
the employee’s request that he be permitted to maintain a beard when the
company had a legitimate safety concern that the beard would prevent an airtight
seal of a mask in the event of exposure to toxic gas and expose the company to
liability); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 521 (6th Cir. 1976)
(“safety considerations are highly relevant in determining whether a proposed
[religious] accommodation would produce an undue hardship on an employer’s
business”). This is particularly so given the wide segment of the population at
increased risk for getting severely ill from COVID-19, including those with a
weakened immune system, see Press Release, Centers for Disease Control and
Prevention (CDC), CDC updates, expands list of people at risk of severe
COVID-19 illness (June 25, 2020), https://www.cdc.gov/media/releases/2020/
p0625-update-expands-covid-19.html, and the fact that the appellant worked in a
medical setting, i.e., a pharmacy within the 300-400 employee MTC that also
housed a family practice clinic, an optometry clinic, a flight medicine clinic, a
physical therapy clinic, an x-ray area, a chiropractor, a pediatric clinic, and an
OB/GYN clinic, HT at 19 (testimony of the appellant’s supervisor). The
appellant agreed that her clinic sees patients with compromised immune systems.
13
HT at 154 (testimony of the appellant). On July 14, 2020, before the events at
issue in this appeal, the CDC indicated that it had “reviewed the latest science
and affirms that cloth face coverings are a critical tool in the fight against
COVID-19 that could reduce the spread of the disease,” and that “[t]here is
increasing evidence that cloth face coverings help prevent people who have
COVID-19 from spreading the virus to others.” Press Release, CDC, CDC calls
on Americans to wear masks to prevent COVID-19 spread (July 14, 2020),
https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html.
The press release quoted the CDC Director as saying that “[c]loth face coverings
are one of the most powerful weapons we have to slow and stop the spread of the
virus – particularly when used universally within a community setting.” Id.Under the particular circumstances of this case, we find that accommodation of
the appellant’s religious beliefs would have required more than a de minimis cost,
and thereby imposed an undue hardship upon the agency.
¶21 The appellant further argues that the agency should have allowed her to
work in the pharmacy alone, at night, when no other employees were present.
PFR File, Tab 1 at 63. In her initial decision, the administrative judge found that
the agency reasonably rejected this proposal “due to safety and security concerns,
both because the appellant would be alone in the clinic after hours and because
the pharmacy contains narcotics and other controlled drugs. ” ID at 15. The
appellant disputes this finding, arguing that she would not have been in the
building alone because housekeeping staff was nearby. In addition, there are
cameras at the narcotics vaults, and she was the vault custodian for 2 years. PFR
File, Tab 1 at 63. We are not persuaded that the presence of housekeeping staff
somewhere in the building provides adequate security for a pharmacy during
hours that it would otherwise be shut down and secured. Nor do we find that the
appellant’s religious accommodation needs should require the agency to remove
any layers of security from the measures that it takes to protect the controlled
substances and other valuable property contained within the pharmacy. As with
14
the accommodation addressed above, workplace safety concerns establish that
this requested accommodation would involve more than a de minimis cost to the
agency. For these reasons, we find that the appellant has not provided a
sufficient basis for us to disturb the administrative judge’s finding that the
agency could not reasonably accommodate the appellant without undue hardship.
ID at 14-16.
¶22 Although we hold that the appellant in this case has not shown that the
agency could accommodate her religious belief without undue hardship, our
holding is limited to the facts of this particular case. This is especially so
considering the unique time period at issue in this appeal, which was at the
height of the COVID-19 pandemic and prior to the widespread availability of
vaccines. The Board will analyze a religious accommodation claim based on the
facts in existence at the time in which the operative events occurred. See Prach
v. Hollywood Supermarket, Inc., No. 09-13756, 2010 WL 4608781, at *1 (E.D.
Mich. 2010) (holding that the reasonableness of a religious accommodation is
generally determined on a case-by-case basis according to the facts as they
existed at the time of employment). We do not intend to foreclose the possibility
that an employee’s religious objection to masking could be accommodated in
other situations, including situations in which telework is a viable option, the
duty station and employment type lend themselves more readily to physical
distancing, or there is another position in which the employee ’s beliefs can be
accommodated and to which she could be reassigned or transferred in accordance
with 29 C.F.R. § 1605.2(d)(1)(iii). To the contrary, we take this occasion to
remind agencies that religious liberty is integral to the Federal Merit System, see
5 U.S.C. §§ 2301(b)(2), 2302(b)(1), and any denial of a request for religious
accommodation will be closely scrutinized by the Board.
¶23 As with a claim of status-based discrimination under Title VII, to prove a
claim of retaliation for EEO activity, an appellant must prove by preponderant
evidence that the prohibited consideration was a motivating factor in the
15
contested personnel action. Pridgen, 2022 MSPB 31, ¶ 30. Likewise, to obtain
the full measure of relief available under the statute, she must prove that
retaliation was a but-for cause of the action. Id., ¶¶ 22, 30.
¶24 In her initial decision, the administrative judge found that the appellant
failed to make her initial showing that EEO reprisal was a motivating factor in
her removal. ID at 17. Although the appellant engaged in protected EEO activity
and both the proposing and deciding officials were aware of it, she found no
credible evidence to show that it was a motivating factor in the removal. Id. On
petition for review, the appellant argues that the deciding official was aware of
her EEO complaint. 5 PFR File, Tab 1 at 63. Based on the appellant’s argument,
it appears that she misunderstands the initial decision. As stated previously, the
administrative judge found that the deciding official was aware of the appellant’s
EEO complaint; she simply did not find that this fact alone was enough to prove
the appellant’s claim. ID at 17. We decline to reweigh the evidence on review.
See Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 33-34
(2016), clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24. For these reasons, we
find that the appellant has not provided the Board a sufficient basis to disturb the
administrative judge’s finding that her EEO activity was not a motivating factor
in her removal. 6 Accordingly, we affirm the initial decision.
5
To the extent the appellant may be alleging that the agency’s decision to place her in
an absence without leave (AWOL) status, rather than grant her leave without pay, was
based on disparate treatment religious discrimination or EEO reprisal, an agency’s
decision to place an appellant in an AWOL status is not itself an action appealable to
the Board. See, e.g., Rose v. Department of Defense, 118 M.S.P.R. 302, ¶ 14 (2012).
6
Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding the appellant’s discrimination and retaliation claims, we do not
reach the question of whether the appellant’s religion or EEO activity was a “but-for”
cause of the removal action. See Pridgen, 2022 MSPB 31, ¶ 22 (holding that, while an
appellant who proves motivating factor and nothing more may be entitled to some
prospective relief, to obtain the full measure of relief available under the statute, she
must prove but-for causation.)
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NOTICE OF APPEAL RIGHTS 7
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 appropria te
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.
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).
7
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.
17
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
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. ____ , 137 S. Ct. 1975 (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
18
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:
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
19
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. 8 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).
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
8
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.
20
Board neither endorses the services provided by any attorney nor war rants 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.