Opinion

Shayne Boutte v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jun 3, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.8%

finding that an appellant’s speculation did not rise to the level of preponderant evidence

How later courts described this case

finding that an appellant’s speculation did not rise to the level of preponderant evidence

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHAYNE BOUTTE, DOCKET NUMBER

Appellant, DE-0752-24-0366-I-1

DEPARTMENT OF THE ARMY, DATE: June 3, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy Harold John , Esquire, Junction City, Kansas, for the appellant.

John B. Baker , Esquire, Fort Riley, Kansas, for the appellant.

Mark Sydenham , Esquire, Joint Base Lewis-McChord, Washington, for the

agency.

Eric L. Carter , Esquire, Fort Riley, Kansas, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed his removal for failure to follow instructions. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. 2 Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

The administrative judge correctly found that the appellant was given

proper instructions regarding his use of unscheduled leave and the requirements

for medical documentation to support that leave and that the appellant failed to

follow those instructions. Initial Appeal File, Tab 32, Initial Decision (ID)

at 11-13; see Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). The

appellant’s arguments on petition for review regarding, among other things, a

collective bargaining agreement and other documentation previously accepted by

agency officials do not provide a basis to disturb those conclusions. Petition for

Review (PFR) File, Tab 1 at 4-5.

The administrative judge also correctly found that the penalty of removal

promotes the efficiency of the service and is reasonable. ID at 13-14, 19-21. The

Although the Office of the Clerk of the Board informed the appellant that his petition

for review may have been untimely filed, Petition for Review File, Tab 2, we have

determined that his petition for review was, in fact, timely filed, see 5 C.F.R.

§ 1201.14(l)(1) (stating that all pleadings filed via the Board’s e-Appeal system are

stamped with Eastern Time, but the timeliness of a pleading is assessed based on the

time zone from which the pleading was submitted).

appellant’s argument on review that the deciding official was not an impartial

decision maker and that the penalty of removal is, therefore, unreasonable,

similarly does not provide a basis to disturb the initial decision. PFR File, Tab 1

at 6. To the extent the appellant is raising a due process claim with respect to the

deciding official, see Lange v. Department of Justice, 119 M.S.P.R. 625, ¶¶ 3,

7-11 (2013) (construing a claim that a deciding official is not an impartial

decision maker as one alleging a due process violation), we find nothing improper

about the deciding official’s prior knowledge of the appellant’s conduct and his

concurrence with the decision to propose the appellant’s removal, id., ¶ 9

(explaining that a deciding official’s awareness of background information

concerning the appellant, his concurrence in the desirability to take an adverse

action, or his predisposition to impose a certain penalty does not disqualify him

from serving as a deciding official on due process grounds).

We also agree with the administrative judge that the appellant failed to

establish his affirmative defenses. ID at 14-19. The appellant challenges the

findings on review that he failed to establish a disparate treatment disability

discrimination claim, reiterating that the relevant agency officials had knowledge

of his disability. PFR File, Tab 1 at 4-5. However, beyond knowledge of his

status as a disabled person, the appellant has provided no evidence that such

status was a motivating factor or a but-for cause in the agency’s decision to

remove him. See Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶¶ 40, 42. His arguments on review are speculative, and thus, insufficient to meet

his burden of proof on a discrimination claim. See Duncan v. Department of the

Air Force, 115 M.S.P.R. 275, ¶ 9 (2010) (finding that an appellant’s speculation

did not rise to the level of preponderant evidence), aff’d, 674 F.3d 1359 (Fed. Cir.

2012).

Accordingly, the initial decision is affirmed.

NOTICE OF APPEAL RIGHTS 3

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.

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:

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.

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. 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:

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. 4 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