Pardo v. Nielsen

Background

Raymond J. Pardo worked as a Customs and Border Protection officer. In November 2011, he injured his shoulder in a fall while searching a ship. After surgery in January 2012, he never returned to work. He remained on leave for approximately five years while receiving workers’ compensation benefits through the Department of Labor’s Office of Workers’ Compensation program.

Pardo sought to return with restrictions, including no firearm use, no defensive tactics, limited lifting, and limited use of his right hand. Medical evaluations concluded that he could not perform the regular duties of a CBP officer and was unlikely to return to full duty. CBP later told him that he could not perform the essential duties of that position and asked him to identify possible vacant positions, resign, or retire. Pardo did not choose one of those options or submit the requested employment form.

CBP identified possible Import Specialist positions, but the Department of Labor required updated medical information before approving a position. CBP ultimately removed Pardo in February 2017 for non-disciplinary reasons, stating that he was unavailable for duty and could not perform the full range of duties as a CBP officer or work in another capacity with CBP.

Pardo challenged the removal before the Merit Systems Protection Board. He alleged disability discrimination, failure to accommodate, retaliation for equal-employment complaints, and harmful procedural error. The Board upheld the removal. In this federal case, Pardo also brought additional claims under the Rehabilitation Act, the Age Discrimination in Employment Act, and Title VII based on events other than his removal, including alleged problems involving leave, medical examinations, awards, health coverage, job placement, reassignment, and his badge and credentials.

Rulings on the Removal Claims

The court granted the defendant’s motion for summary judgment on Pardo’s claims that his removal was discriminatory or retaliatory. Summary judgment is judgment without a trial when the evidence shows no genuine dispute about a material fact and the moving party is entitled to judgment under the law.

The court concluded that Pardo did not present enough evidence to support discrimination or retaliation based on his beard, the medical condition that made shaving irritating, or his request for a beard-policy exemption. The court also concluded that CBP had identified legitimate, nondiscriminatory reasons for the removal: Pardo could not return to his former job after more than five years of leave, and CBP had not found a suitable alternative position for which he was qualified.

The court rejected Pardo’s failure-to-accommodate theory. It reasoned that carrying a firearm was an essential function of his former officer position, so his restrictions would have required eliminating an essential job function. The court also found that Pardo had not shown that a suitable vacant position existed and had not fully participated in CBP’s efforts to assess his medical restrictions and identify other work. In particular, he did not provide requested medical information or submit the requested employment form.

The court further held that Pardo had not shown that CBP’s stated reasons were pretext—meaning a false explanation masking unlawful discrimination or retaliation. The court found that Pardo’s evidence, including an email referring to his lack of cooperation and another email mentioning his equal-employment complaints, was insufficient to create a genuine factual dispute. It also noted that the official who authorized the removal testified that he did not know about Pardo’s prior equal-employment activity.

Review of the Merit Systems Protection Board Decision

Pardo cross-moved for summary judgment seeking reversal of the Board’s ruling that CBP had not committed harmful procedural error. The court denied Pardo’s cross-motion and granted summary judgment to the defendant on this claim.

The court explained that review of the Board’s non-discrimination findings was limited to the administrative record. It could set aside the decision only if it lacked substantial evidence or was arbitrary, capricious, an abuse of discretion, or otherwise unlawful. The court found no basis to disturb the Board’s conclusion that CBP had made adequate efforts to find Pardo suitable work and was not required to wait until he reached maximum medical improvement before attempting reassignment or removing him.

Additional Claims

The court granted the defendant’s motion for summary judgment on Pardo’s additional discrimination, retaliation, and hostile-work-environment claims. The court found that many alleged actions were not legally adverse employment actions, including restoration of annual leave, medical evaluations, delayed awards, letters seeking information, and proposed job placement. It also found that Pardo did not provide sufficient evidence that other actions, such as the canceled award ceremony, reassignment while he was on leave, health-coverage problems, or denial of his badge and credentials, were motivated by discrimination or retaliation rather than the explanations and policies offered by CBP.

The court also rejected the hostile-work-environment claim. It found that Pardo’s allegations involved discrete events rather than a work environment permeated by severe discriminatory intimidation, ridicule, or insults. In addition, the alleged events occurred while Pardo was on leave.

The opinion noted that there were very few allegations or arguments concerning age discrimination and that the Board had not discussed an Age Discrimination in Employment Act claim. The court nevertheless stated that the defendant was entitled to judgment as a matter of law on the age-discrimination claims because the complaint and record did not support them, and it did not address those claims further.

Disposition

The court granted the defendant’s motion for summary judgment, denied Pardo’s cross-motion, granted judgment to the defendant on all claims in the Third Amended Complaint, and directed the Clerk of Court to close the case.