# David Pete v. Department of Justice

> Merit Systems Protection Board · June 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9399997

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 6, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DAVID R. PETE, DOCKET NUMBER
Appellant, DA-0752-17-0086-I-1

v.

DEPARTMENT OF JUSTICE, DATE: June 6, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stanley Smith, San Antonio, Texas, for the appellant.

Timothy F. Maughan, Grand Prairie, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal for physical/medical inability to perform the duties of his
position. On petition for review, the appellant argues that the administrative
judge erred in sustaining the charge and in finding that he failed to prove his
affirmative defenses of race discrimination and retaliation for filing equal

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

employment opportunity complaints. 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 for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify (1) the legal standard applicable to the agency’s charge and
(2) the legal standard applicable to the appellant’s claim of disparate treatment
disability discrimination, we AFFIRM the initial decision.
¶2 In his initial decision, the administrative judge stated that, to prove its
charge, the agency was required to show the following: (1) the appellant’s
disabling condition itself was disqualifying; (2) its recurrence could not be ruled
out; and (3) the duties of the appellant’s position we re such that a recurrence
would pose a reasonable probability of substantial harm. Initial Appeal File
(IAF), Tab 40, Initial Decision (ID) at 11 (citing Sanders v. Department of
Homeland Security, 122 M.S.P.R. 144, ¶ 11, aff’d, 625 F. App’x 549 (Fed. Cir.
2015)); see 5 C.F.R. § 339.206. 2 Following the issuance of the initial decision,

2
Subsequent to the appellant’s removal, the Office of Personnel Management amen ded
5 C.F.R. § 339.206 as to the degree of risk required. Medical Qualification
Determinations, 82 Fed. Reg. 5340-01, 5346-47, 5352 (Jan. 18, 2017) (Final Rule).
However, given our findings herein, this amendment is not material to the outcome of
this appeal; thus, we need not address whether the regulatory changes apply
retroactively. See Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 11 n.2.
3

however, the Board determined that this standard applies only when an employee
who occupies a position with medical standards is removed based solely on
medical history, i.e., when the only basis for concluding that the employee was
medically unable to perform the core duties of his position was the fact that his
medical records reflected that, at some time in the past, he was classified as
having, was examined for, and/or was treated for the medical condition or
impairment in question. Haas v. Department of Homeland Security, 2022 MSPB
36, ¶¶ 10-15. The Board explained that in cases, as here, involving a current
medical condition, the agency must prove either a nexus between the employee’s
medical condition and observed deficiencies in his performance or conduct, or a
high probability, given the nature of the work involved, that his condition may
result in injury to himself or others. Id., ¶ 15. The Board has otherwise described
this standard as requiring that the agency establish that the appellant’s medical
condition prevents him from being able to safely and efficiently perform the core
duties of his position. Id.
¶3 Here, although the administrative judge both enumerated and applied the
standard set forth in 5 C.F.R. § 339.206, remand is unnecessary because the
record is fully developed on the relevant issues. See id., ¶ 20. To this end, the
administrative judge concluded, after weighing the relevant medical opinions,
that the appellant’s back, neck, and spine conditions rendered him medically and
physically unable to perform the essential functions of his position at the time of
his removal. ID at 11-17; see Haas, 2022 MSPB 36, ¶ 15. We agree with this
finding. Indeed, as set forth in the initial decision, the appellant’s Correctional
Officer (Senior Officer) position contained several physical requirements,
including lifting objects weighing 25 pounds, carrying a stretcher with one other
person, and dragging a body an extended distance. ID at 11-12; IAF, Tab 11
at 54-55, Tab 27 at 4-7. The administrative judge found persuasive the medical
opinion of a physician who opined that the appellant was medically unable to
4

perform many of these physical requirements. ID at 15. Thus, a different
outcome is not warranted.
¶4 The appellant does not challenge the administrative judge’s conclusion that
he failed to prove his affirmative defense of disparate treatment disability
discrimination. We discern no error with the administrative judge’s motivating
factor analysis and we thus need not reach whether the appellant’s disability was
a but-for cause of the removal action. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶40.
¶5 Accordingly, we affirm the initial decision as modified. 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 an d
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 r equirements. Failure to file

3
In analyzing the appellant’s claims of race discrimination and reprisal using the
framework set forth in Savage, the administrative judge referenced direct evidence and
types of circumstantial evidence. ID at 20-21. However, insofar as we find no
indication that he disregarded any evidence because of its direct or circumstantial
nature, a different outcome is not warranted. See Gardner v. Department of Veterans
Affairs, 123 M.S.P.R. 647, ¶ 30 (2016), clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24.
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.
5

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:
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.
6

(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:
7

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 Appea ls
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.
8

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 b y 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9399997. Public record. Not legal advice.