Opinion

Timothy Goodrich v. Department of the Army

Court: Merit Systems Protection Board
Filed: Mar 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY GOODRICH, DOCKET NUMBER

Appellant, PH-0752-21-0270-I-1

DEPARTMENT OF THE ARMY, DATE: March 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy Goodrich , Yelm, Washington, pro se.

Brandon Gatto , Esquire, and David P. Tomaszewski , Esquire, Tobyhanna,

Pennsylvania, 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

(1) sustained four charges of misconduct, (2) found that the appellant did not

prove his affirmative defenses of failure to accommodate and status-based

disability discrimination and retaliation for disability-based equal employment

opportunity (EEO) activity, and (3) affirmed the appellant’s removal. On petition

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

for review, the appellant asserts that his supervisors committed perjury, but does

not identify any allegedly false statements or challenge any of the administrative

judge’s findings. 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

supplement the initial decision’s analysis of the appellant’s discrimination and

retaliation claims, we AFFIRM the initial decision.

After the administrative judge issued the initial decision, the Board

clarified the proper analytical framework for adjudicating status-based disability

discrimination 2 claims under the Rehabilitation Act. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 40. Under Pridgen, the appellant

bears the initial burden of proving by preponderant evidence that his disability

was a motivating factor in his removal. Pridgen, 2022 MSPB 31, ¶¶ 21, 40.

Here, the administrative judge found that the appellant proved that his disability

was a motivating factor in the agency’s decision to remove him because the

agency learned of the appellant’s disability only a month before proposing his

removal and 3 months before the removal decision. Initial Appeal File (IAF),

The appellant does not challenge the administrative judge’s finding that he did not

show that the agency failed to provide him with a reasonable accommodation, and we

see no error in that finding.

Tab 32, Initial Decision (ID) at 21. We find that the timing alone is insufficient

by itself to show motivating factor under the circumstances of this case. The

record shows that the sustained misconduct occurred between August 31, 2020,

and October 21, 2020, and the agency proposed the appellant’s removal on

October 29, 2020, and effected the removal on December 7, 2020. IAF, Tab 5

at 65, Tab 6 at 19-22. Nothing in the agency’s decision to act expeditiously

suggests an improper motive. Moreover, the administrative judge noted the “very

credible” testimony of the proposing and deciding officials denying being

influenced during the removal process by their knowledge of the appellant’s

disabilities and remarked that their testimony was corroborated by other evidence

in the record. ID at 22; Hearing Transcript at 42-43 (testimony of the proposing

official), 102-103, 112-120 (testimony of the deciding official). We see no

reason to set aside the administrative judge’s credibility findings. See Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must

defer to an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on observing the demeanor of witnesses testifying at a

hearing; the Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so). Based on a careful review of the

record, we find that the appellant did not show that his disability was a

motivating factor in his removal. 3

The Board has also clarified the proper analytical framework for

adjudicating claims of retaliation for engaging in EEO activity protected under

the Rehabilitation Act. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33; see

Pridgen, 2022 MSPB 31, ¶¶ 44, 47. Such claims are subject to a “but-for”

causation standard. Desjardin, 2023 MSPB 6, ¶ 33; Pridgen, 2022 MSPB 31,

¶¶ 44, 47. In addition, the burden of proof does not shift to the agency but

Because we discern no error with the administrative judge’s motivating factor analysis

or conclusions regarding the appellant’s discrimination claim, it is unnecessary for us to

address whether discrimination was a “but-for” cause of the removal action. See

Pridgen, 2022 MSPB 31, ¶¶ 20-25.

remains with the appellant. Pridgen, 2022 MSPB 31, ¶¶ 46-47. The

administrative judge here incorrectly required the agency to show that it would

have removed the appellant absent his protected activity and found that the

agency met that burden. ID at 21-22. If prior EEO activity is a “but-for” cause

of retaliation, there is, by definition, no other proper reason for that action.

Pridgen, 2022 MSPB 31, ¶ 47. Because the administrative judge found that the

agency proved that it would have removed the appellant in the absence of his

EEO activity, it has been established that there was a proper reason for the

removal action. Therefore, even after properly allocating the burden of proof to

the appellant, we find that he cannot show that retaliation was a “but-for” cause

of his removal.

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.

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