UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICHARD L. LUFT,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DA-0432-21-0090-I-1

DATE: February 2, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

 

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 RIGHTS5

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 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. 
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 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: 
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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board