UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

HENRY GETER, III,

Appellant,

v.

GOVERNMENT PRINTING OFFICE,

Agency.

DOCKET NUMBER

DC-0752-14-0667-I-1

DATE: July 15, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Henry Geter, III, Temple Hills, Maryland, pro se.

Frederick B. Hay, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained his removal. Generally, we grant petitions such as this one only when: 

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 judge’s rulings 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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, and based on the following points and authorities, 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 by this Final Order regarding the disability discrimination 

claim, we AFFIRM the initial decision. 

BACKGROUND

¶2 Effective April 10, 2014, the agency removed the appellant from his 

position as a Motor Vehicle Operator for failure to possess a valid commercial 

driver’s license (CDL) and failure to perform the essential functions of his 

position. Initial Appeal File (IAF), Tab 4 at 21-24. The appellant filed an appeal 

challenging his removal and asserted affirmative defenses of disability 

discrimination and reprisal for his prior equal employment opportunity (EEO) 

activity. IAF, Tab 1. Specifically, he contended that the agency removed him in 

reprisal for filing an EEO complaint and a Board appeal challenging his prior 

removal and also asserted that the agency denied him a reasonable

accommodation in the form of a reassignment to a light-duty position and 

subjected him to disparate treatment based on his disability. Id. at 21; IAF, 

Tab 13 at 4-7.

¶3 After holding the appellant’s requested hearing, the administrative judge 

issued a decision affirming the appellant’s removal. IAF, Tab 16, Initial Decision 

(ID). The administrative judge sustained the agency’s charge and found that

removal was reasonable and promoted the efficiency of the service because the 
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appellant’s failure to maintain a CDL directly impacted his ability to perform his 

job duties. ID at 6, 18-22. The administrative judge also found that the appellant 

failed to prove his affirmative defenses that the agency denied him a reasonable 

accommodation, treated him differently based on his disability, and retaliated 

against him for his prior EEO activity. ID at 7-18. As to the appellant’s 

disability discrimination claims, the administrative judge found that the appellant 

failed to show that his removal was due to his disability and failed to identify a 

similarly situated comparator who was treated more favorably than him. ID 

at 13-15. In rejecting the appellant’s affirmative defense of retaliation for 

protected EEO activity, the administrative judge found that the proposing and 

deciding officials were not aware of the appellant’s prior EEO complaint or Board 

appeal. 2

 ID at 17-18.

¶4 On review, the appellant challenges the administrative judge’s finding that 

he failed to prove his disability discrimination claim based on a failure to 

accommodate. Petition for Review (PFR) File, Tab 3. He alleges that the 

administrative judge improperly determined that he failed to request a reasonable 

accommodation and that the agency ignored medical documentation he submitted

from his doctor requesting that he be placed on light duty with a lifting restriction 

of thirty pounds or less and instead, improperly returned him to full duty and

required him to lift up to fifty pounds. Id. The appellant also argues for the first 

time on review that the removal penalty was too severe because, under its 

directives, the agency was required to consider a lesser penalty such as a

 2 The appellant does not challenge this finding on review and we discern no error in the 

administrative judge’s finding that the appellant failed to prove his affirmative defense 

of reprisal.
4

permanent reassignment. 3 Id. at 2. The agency has filed a response in opposition

to the appellant’s petition.

4

 PFR File, Tab 9.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the charge.

¶5 When taking an adverse action against an employee, an agency must 

establish that: (1) the charged conduct occurred; (2) a nexus exists between the 

conduct and the efficiency of the service; and (3) the particular penalty imposed 

is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R. 

389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). To prove a charge 

of failure to fulfill a condition of employment, an agency must establish that: 

(1) the requirement at issue is a condition of employment; and (2) the appellant 

failed to meet that condition. See Thompson v. Department of the Air Force, 

104 M.S.P.R. 529, ¶¶ 9-10 (2007). 

¶6 In sustaining the agency’s charge, the administrative judge found that the 

appellant’s position required him to maintain a CDL based on the agency’s 

regulations and the appellant’s own testimony and also that it was undisputed that 

the appellant failed to possess a CDL when he was removed from service. ID 

 3 The Board generally will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not attempted to show that this 

new argument is based on new or material evidence not previously available. 

Accordingly, the appellant’s new argument will not be considered for the first time on 

review. In any event, GPO Directive 670.11B9b(4), which the appellant cites, pertains 

to the loss of an operator’s identification card, not the loss of a CDL, and does not 

require reassignment in lieu of removal. See IAF, Tab 4 at 113.

4 The agency’s response to the appellant’s petition was initially due on March 2, 2015. 

See PFR File, Tab 4 at 1. By order dated February 13, 2015, the Board granted the 

appellant until March 6, 2015, to file a supplement in support of his petition and 

provided the agency an opportunity to file a response within 25 days after the date of 

service of the appellant’s supplement. PFR File, Tab 6. Although the appellant did not 

file a supplement to his petition, the agency filed a response to the appellant’s petition 

within 25 days of the appellant’s March 6, 2015 deadline. PFR File, Tab 9. 

Accordingly, we deem the agency’s response to be timely filed.
5

at 4-6; see IAF, Tab 4 at 110, 116-18. The appellant does not dispute these 

findings on review, and we discern no reason to disturb the administrative judge’s 

finding that the agency proved its charge by preponderant evidence.

The appellant failed to prove his disability discrimination affirmative defense.

¶7 An appellant may establish a disability discrimination claim based on 

disparate treatment by showing that: (1) he is a member of a protected group; 

(2) he was situated similarly to an individual who was not a member of the 

protected group; and (3) he was treated more harshly than the individual who was 

not a member of his protected group. Hardy v. U.S. Postal Service, 104 M.S.P.R. 

387, ¶ 33, aff’d, 250 F. App’x 332 (Fed. Cir. 2007). For other employees to be 

deemed similarly situated, the Board has held that all relevant aspects of the 

appellant’s employment situation must be “nearly identical” to those of the 

comparative employees. Id. To state a disability discrimination claim based 

upon a failure to accommodate, the appellant must prove that: (1) he is a disabled 

person; (2) the action appealed was based on his disability; and (3) to the extent 

possible, he must articulate a reasonable accommodation under which he believes 

he could perform the essential duties of his position or of a vacant funded 

position to which he could be reassigned. Sanders v. Social Security 

Administration, 114 M.S.P.R. 487, ¶ 16 (2010); see Henson v. U.S. Postal 

Service, 110 M.S.P.R. 624, ¶ 6 (2009). 

¶8 To maintain either a failure to accommodate claim or a disability-based 

disparate treatment claim, an appellant must show that he was a qualified 

individual with a disability at the time of the alleged unlawful discriminatory 

conduct. See Wilson v. Department of the Air Force, EEOC Appeal No. 

01A14669, 2003 WL 660615, at *3 (E.E.O.C. Feb. 21, 2003); see also Combs v. 

Social Security Administration, 91 M.S.P.R. 148, ¶ 23 (2002). A qualified 

individual with a disability is an individual with a disability “who satisfies the 

requisite skill, experience, education and other job-related requirements of the 

employment position such individual holds or desires, and who, with or without 
6

reasonable accommodation, can perform the essential functions of such position.” 

29 C.F.R. § 1630.2(m); see Henson, 110 M.S.P.R. 624, ¶ 7. 

¶9 As stated, it is undisputed that a valid CDL was required for the 

performance of the appellant’s job duties as a Motor Vehicle Operator. See ID 

at 6. Thus, by losing his CDL, the appellant failed to maintain a requirement of 

his position that was necessary to perform his essential duties. Because he was 

no longer technically qualified for his position, we find that, at the time of the 

agency’s removal action, the appellant was not a qualified individual with a 

disability. See, e.g., Malbouf v. Department of the Army, 43 M.S.P.R. 588, 

591-92 (1990) (the agency was not obligated to accommodate the appellant 

because he was not a qualified individual with a disability due to his failure to 

maintain a driver’s license, a condition of employment necessary to perform his 

job duties). Accordingly, we modify the initial decision to find that the appellant 

was not a qualified individual with a disability who could assert either a denial of 

reasonable accommodation claim or a disability-based disparate treatment claim. 

¶10 Even assuming arguendo that the appellant was a qualified individual with a 

disability, the record contains no evidence that that the appellant’s removal was 

based on his disability or that the agency treated similarly situated nondisabled 

employees differently. The administrative judge found that the appellant failed to 

identify another Motor Vehicle Operator who was not removed for failure to 

possess a required CDL and that the comparators identified by the appellant were 

not similarly situated because, among other things, they had both maintained a 

valid CDL. ID at 15. The administrative judge further found that there was no 

connection between the appellant’s disability and his removal because his failure 

to maintain a valid CDL was due to unresolved tickets and fines, not his medical 

condition and, in any event, the denial of a CDL was not a decision over which 

the agency had any control. ID at 13-14. The appellant does not dispute these 

findings on review and we discern no reason to disturb the administrative judge’s 

well-reasoned findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 
7

(1997) (finding no reason to disturb the administrative judge’s findings where she

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); see also Broughton v. Department of Health & Human 

Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶11 On review, the appellant asserts that the administrative judge erred in 

finding that he did not request a reasonable accommodation and asserts that, 

despite his requests, the agency failed to accommodate him by reassigning him to 

a light-duty position upon his return to work in November 2013, based on an 

independent medical evaluation, which indicated that he had a 30-pound lifting 

restriction as of September 2012. PFR File, Tab 3. The record, however,

supports the administrative judge’s finding that the appellant did not prove that 

he was denied a reasonable accommodation because he failed to respond to the 

agency’s request that he specify any accommodation he was seeking and provide 

supporting medical documentation. ID at 14; See Simpson v. U.S. Postal Service, 

113 M.S.P.R. 346, ¶¶ 17-18 (2010) (finding that the appellant did not prove that 

he was denied a reasonable accommodation in part because he was not responsive 

to the agency’s requests for medical information). Via letter dated December 16, 

2013, the agency acknowledged that the appellant may have been requesting a 

reasonable accommodation when he verbally requested a transfer during a return 

to work meeting on November 25, 2013. IAF, Tab 4 at 65. In its letter, the 

agency outlined the procedures for requesting a reasonable accommodation and 

asked that the appellant identify any specific accommodation he was requesting

as well as submit medical documentation in support of his request by 

December 27, 2013.

5

 IAF, Tab 4 at 65-75. The appellant did not respond to the 

letter or submit any medical documentation. ID at 14. 

 5 Although the appellant testified that he had not seen a copy of the letter, the record 

contains a United Parcel Service computerized tracking report showing that the letter 

was delivered to his address on December 17, 2013. IAF, Tab 12 at 114-15; Hearing 

Compact Diskette (testimony of the appellant).
8

¶12 Moreover, even if the appellant established that he requested an 

accommodation under which he could successfully perform the essential duties of 

his position, it would not change the outcome of this appeal because he has not 

shown that his removal for failure to maintain a CDL was based upon his 

disability. See Sublette v. Department of the Army, 68 M.S.P.R. 82, 88-89 (1995) 

(the appellant did not establish that the misconduct for which he was removed 

was due to his purported disability and thus he was not entitled to a reasonable 

accommodation). Accordingly, we agree with the administrative judge that the 

appellant failed to meet his burden of establishing his affirmative defense of 

disability discrimination.

The administrative judge properly found that the penalty of removal is 

reasonable. 

¶13 Where, as here, all of the agency’s charges have been sustained, the Board 

will review an agency-imposed penalty only to determine if the agency 

considered all of the relevant factors and exercised management discretion within 

the tolerable limits of reasonableness. See Davis v. U.S. Postal Service, 

120 M.S.P.R. 457, ¶ 6 (2013). In determining whether the selected penalty is 

reasonable, the Board gives due deference to the agency’s discretion in exercising 

its managerial function of maintaining employee discipline and efficiency. Id. 

The Board recognizes that its function is not to displace management’s 

responsibility or to decide what penalty it would impose but to assure that 

management judgment has been properly exercised and that the penalty selected 

by the agency does not exceed the maximum limits of reasonableness. Id. Thus, 

the Board will modify a penalty only when it finds that the agency failed to weigh 

the relevant factors or that the penalty the agency imposed clearly exceeded the 

bounds of reasonableness. Id. However, if the deciding official failed to 

appropriately consider the relevant factors, the Board need not defer to the 

agency’s penalty determination. Id.
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¶14 The record reflects that the deciding official considered the appellant’s past 

work record and over 11 years of federal service as mitigating factors but found 

that they were outweighed by the seriousness of the offense because the appellant 

could not perform his job duties without a CDL. ID at 20; IAF, Tab 4 at 22-25, 

27-31. The administrative judge found that the penalty of removal was 

reasonable and promoted the efficiency of the service because the appellant’s 

failure to possess a CDL, a requirement of his position, had a direct impact upon 

his ability to perform his job duties. ID at 21. The Board has found removal to 

be an appropriate remedy for an appellant’s failure to meet the requirements of 

his position. See Benally v. Department of the Interior, 71 M.S.P.R. 537, 539-40, 

542 (1996). Accordingly, we agree with the administrative judge that removal 

was within the tolerable limits of reasonableness and promotes the efficiency of 

the service.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right 

to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request 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 your request via commercial delivery or by a method 

requiring a signature, it must be addressed to:
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Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board