Case: 21-1694 Document: 49 Page: 1 Filed: 02/01/2022 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ DONALD EDLER, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________ 2021-1694 ______________________ Petition for review of the Merit Systems Protection Board in No. CH-0714-20-0448-I-1. ______________________ Decided: February 1, 2022 ______________________ DAVID DUWEL, Duwel Law, Dayton, OH, for petitioner. Also represented by JEFFREY M. SILVERSTEIN, Freking My- ers & Reul LLC, Dayton, OH. DAVID MICHAEL KERR, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., TARA K. HOGAN. ______________________ Case: 21-1694 Document: 49 Page: 2 Filed: 02/01/2022 2 EDLER v. DVA Before MOORE, Chief Judge, PLAGER and O’MALLEY, Circuit Judges. PER CURIAM. Donald Edler (“Edler”) seeks review of the Merit Sys- tems Protection Board (“the Board”) decision affirming the Department of Veterans Affairs (“VA”) decision to remove him from the position of housekeeping supervisor for two charges: (1) privacy violation; and (2) conduct unbecoming a federal employee. Edler v. Dep’t of Veterans Affairs, No. CH-0714-20-0448-I-1, 2020 MSPB LEXIS 4618 (M.S.P.B. Nov. 17, 2020) (“Decision on Appeal”). For the reasons explained below, we affirm. I. BACKGROUND In November 2009, Edler began working for the VA as a housekeeper at the Veterans Health Administration Fa- cility in Chillicothe, Ohio. In October 2010, the VA pro- moted Edler to the position of housekeeping supervisor. In that capacity, Edler supervised approximately 13 employ- ees on third shift. On March 29, 2020, Edler conducted a team meeting, referred to as a “team huddle.” Decision on Appeal, 2020 MSPB LEXIS 4618, at *1–2. During this team huddle, Edler made three comments that are relevant to this ap- peal. First, Edler informed the team that several employ- ees were unable “to work in rooms used to treat COVID-19 patients.” Id. at *2. In doing so, Edler “identified each af- fected employee and announced the specific medical condi- tion that precluded him or her from doing the work.” Id. Second, Edler made several comments about an employee, B.L., “who needed to be fit-tested for a mask but had not yet shaved his beard, which was necessary for the proper fit.” Id. Edler told B.L. that if he failed to shave his beard to be fitted for an N95 mask he risked bringing COVID-19 home to his family. Id. at *10. Edler also told B.L. that if he failed to comply, he would likely be terminated and Case: 21-1694 Document: 49 Page: 3 Filed: 02/01/2022 EDLER v. DVA 3 walked out to Route 104, which is the highway that runs outside the Chillicothe, VA facility. Id. at *11. Third, while explaining the COVID-19 situation that his team faced, Edler made comments about Somali refugees in Michigan. Specifically, Edler stated that “these refugees had mingled with Chinese nationals who had COVID-19 and were spreading the disease in Dearborn and Detroit, Michigan.” Id. at *2. Edler explained that “ventilators were diverted from the …
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