Richard Luft v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD L. LUFT, DOCKET NUMBER
Appellant, DA-0432-21-0090-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 2, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard L. Luft, Fort Worth, Texas, pro se.
Amber D. Garcia, Esquire, and Karen Denise Haertl, Esquire, Fort Worth,
Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
upheld the removal action for unsatisfactory performance and found that he did
not prove his claims of failure to accommodate and disparate treatment disability
discrimination. On petition for review, the appellant challenges some of the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge’s findings regarding the unsatisfactory performance charge
and his analysis of the disparate treatment disability discrimination claim, and
he raises a claim of administrative judge bias. Generally, we grant 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 f or
review. Therefore, we DENY the petition for review. We MODIFY the initial
decision to supplement the administrative judge’s analysis of the appellant’s
disparate treatment disability discrimination claim, but we still find that the
appellant did not prove this claim. Except as expressly MODIFIED herein, we
AFFIRM the initial decision.
¶2 The appellant claims on review that his supervisor did not allow him to be
trained and that he did not have proper software experience. Petition for Review
(PFR) File, Tab 1 at 9. The administrative judge addressed these claims in the
initial decision. He made numerous demeanor-based credibility determinations in
favor of the appellant’s supervisor. Initial Appeal File, Tab 36, Initial Decision
(ID) at 19. The Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
3
The appellant has not presented such sufficiently sound reasons. In particular,
the appellant asserts that he “recorded more than 20 to 30 acts of perjury” and
that his supervisor committed perjury “12 times.” PFR File, Tab 1 at 9.
However, he failed to identify a specific instance in which his supervisor or
another agency official committed perjury. See, e.g., Hubbard v. Department of
Veterans Affairs, 51 F. App’x 8, 9 (Fed. Cir. 2002) (explaining that
Mr. Hubbard’s arguments did not persuade the court to reverse the Board’s
decision because, among other things, “his allegations of perjury [did] not
identify . . . what was said that was untruthful”). 2 Thus, this argument is not
persuasive. Moreover, the Board will not disturb an administrative judge’s
findings when, as here, he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of
Health and Human Services, 33 M.S.P.R. 357, 359 (1987).
¶3 We have considered the administrative judge’s analysis of the substantive
elements of a chapter 43 unacceptable performance action . We discern no error
with his analysis or his conclusion that the agency proved the charge by
substantial evidence. ID at 5-34; see Lee v. Department of Veterans Affairs,
2022 MSPB 11, ¶ 15.
¶4 Regarding the appellant’s disparate treatment disability discrimination
claim, we modify the initial decision to supplement the administrative judge’s
analysis based on recent case law. In Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 35-42, the Board cited to Southerland v. Department
of Defense, 119 M.S.P.R. 566 (2013), which was relied upon by the
administrative judge, ID at 38-40, and clarified the proper standard for analyzing
a status-based disability discrimination claim. Under both Southerland and
2
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds the court’s reasoning persuasive. Erlendson v.
Department of Justice, 121 M.S.P.R. 441, ¶ 6 n.2 (2014).
4
Pridgen, however, the appellant bears the initial burden to show 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 conclusion that the appellant did not prove that his
disability was a motivating factor in his removal. ID at 39 -40. Because the
appellant did not meet this initial burden, we do not reach the question of whether
his disability was a “but-for” cause of the removal action. 3 See Pridgen,
2022 MSPB 31, ¶¶ 40, 42.
¶5 We have also considered the appellant’s argument that his supervisor
showed general hostility to his health conditions. PFR File, Tab 1 at 9. The
administrative judge evaluated this argument in the initial decision. ID at 39-40.
He considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. See Crosby, 74 M.S.P.R. at 106;
Broughton, 33 M.S.P.R. at 359. We discern no error with his analysis in this
regard.
¶6 The appellant states on review that his doctor told him that he was “in the
beginning stages of Multiple Sclerosis.” PFR File, Tab 1 at 9. However, he does
not provide any corroborating documentation to support this diagnosis or any
evidence that he apprised the agency of this diagnosis or its impact on his
performance at any time before the removal action was effected. Accordingly,
this single statement on review does not warrant a different outcome.
¶7 We have considered, but do not find persuasive, the appellant’s claims of
administrative judge bias. Id. An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudic ation 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
3
It does not appear that the appellant is challenging on review the administrative
judge’s analysis of his failure to accommodate claim. We discern no error with the
administrative judge’s analysis of this claim, ID at 34 -38, and we affirm it herein.
5
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 identified no action or
statement of the administrative judge that evidences such favoritism or
antagonism.
¶8 Having determined that the agency proved the charge, and the appellant did
not prove his disability discrimination claims, we lack the authority to mitigate
the removal penalty. See Lisiecki v. Merit Systems Protection Board, 769 F.2d
1558, 1566-67 (Fed. Cir. 1985) (holding that the Board has no authority to
mitigate a removal action taken under 5 U.S.C. chapter 43 for unacceptable
performance). Accordingly, we affirm the removal action. 4
NOTICE OF APPEAL RIGHTS 5
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
4
The appellant includes a copy of his removal Standard Form 50 on review. PFR File,
Tab 1 at 11. Evidence that is already a part of the record is not new . Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
5
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.
6
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 re view 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.
7
(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
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 secur ity. 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:
8
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. 6 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).
6
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.
9
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.