Opinion

Jeff Shelton v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Mar 18, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFF S. SHELTON, DOCKET NUMBER

Appellant, SF-0752-22-0114-I-1

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.

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

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).

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

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

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.

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.

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.

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

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. 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).

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.

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