Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—7th Cir.: USCIS employee, twice fired, failed to exhaust bias, hostile work environment claims, (May 6, 2026)

By Todd Harrison, J.D.

“We struggle to see how events that occurred during a years-long absence from the workplace can support a hostile-workplace claim…”

Affirming a district court’s grant of summary judgment against the disability discrimination and hostile work environment claims asserted by a former USCIS employee, the Seventh Circuit agreed that the claims were largely unexhausted because the employee had failed to timely pursue his administrative remedies. In addition, the court found that the claims also failed on the merits, as the employee had made contradictory statements concerning his disability and ability to perform his job, and there was no evidence his workplace was permeated with discriminatory behavior. An OIG investigation into his freelance activities while representing himself as a USCIS agent was not only permissible, it was warranted, said the court, and a supervisor’s criticisms of his medical complaints were not severe or pervasive (Shiba v. Mullin, No. 24-2514 (7th Cir. May 5, 2026)).

The plaintiff’s tenure as a federal employee began in 1998 when he was hired as a legal assistant at the Social Security Administration. In late 2002, he slipped and fell in a bathroom at work, hitting his head on a sink. He resigned from his position and sought Social Security disability benefits. He also sought, and was approved for, disability retirement.

USCIS position. About four-and-a-half years later, the employee reentered the federal workforce, taking a position as an immigration officer in April 2007. In June 2007, just two months after taking this job, he again slipped and injured his head and back in a workplace bathroom fall.

Medical leave part one. Following this accident, the employee took medical leave and filed a claim for workers’ compensation benefits. The Department of Labor concluded that his injuries left him “incapable of suitable employment” and approved his claim for benefits.

Termination part one. This leave of absence continued for the next three years. Because his injuries were still unresolved and his return to work was not foreseeable, the USCIS deemed him unavailable for duty and terminated his employment effective June 9, 2010.

Appeal. Challenging the termination decision before the Merit Systems Protection Board, the employee presented new opinions from his physicians clearing him to return to work with restrictions. The administrative judge ordered the agency to return the employee to work, while noting that the employee had “repeatedly stated” that he was unable to work.

Rough reentry. After his reinstatement took effect on November 21, 2010, the employee took medical leave on November 23. This was the first of 17 days of medical leave he would take between November 22, 2010, and January 11, 2011. When asked if he could take frequent breaks, one of his supervisors told him that she expected him to work eight hours a day without complaining of headaches or back pain.

Medical leave part two. Following his physician’s subsequent recommendation that he remain out of work, the USCIS placed the employee on unpaid leave effective January 17, 2011. The employee sought restoration of his workers’ compensation benefits. When pressed for further information, he stated that his condition had never changed from his original injury, and he had pressured his physicians into releasing him to work. His workers’ compensation payments resumed soon after and he remained on leave for another three-and-a-half years.

Investigation. In July 2011, the State Department received notice that the employee had recently contacted the United Nations Refugee Agency on behalf of several Iraqi refugees. Although the employee stated he was doing so in his personal capacity, his email on behalf of the refugees mentioned that he was “an Immigration Officer with Homeland Security.” A two-year OIG investigation followed.

Termination part two. About six months after the OIG completed its investigation, the USCIS fired the employee.

After his employment ended, the employee complained to an EEO counselor on October 8, 2014, and filed a formal EEOC charge on January 14, 2015, accusing the agency of subjecting him to disability discrimination, retaliation, and a hostile workplace. An administrative judge ruled against him on each of his claims.

Subsequently, the employee applied for and accepted a tentative job offer with ICE. However, after a background investigation stretched out for over a year, ICE rescinded its offer. The employee responded with yet another EEOC charge, alleging disability discrimination and retaliation.

Lawsuit. After six months passed without a decision, the employee sued the Secretary of Homeland Security, alleging the Department failed to accommodate his disability during his failed return to work, subjected him to a hostile work environment, and retaliated against him. A district court granted summary judgment against all claims for failure to exhaust. Alternatively, the court found the claims failed on their merits.

On appeal, the employee dropped his retaliation claims, focusing solely on his claims that the agency failed to accommodate his disability during his brief return to work in late November 2010 and subjected him to a hostile work environment.

Accommodation. First, the court addressed the employee’s failure to accommodate claim, noting that this claim was premised on the actions of one of the employee’s supervisors during his failed return to work from late November 2010 to mid-January 2011. With respect to this claim, a complaint made by the employee to an EEO counselor in October 2014 was “unquestionably untimely,” said the court. Accordingly, the accommodation claim was barred as unexhausted.

HWE. Turning to the employee’s claim for a hostile work environment, he contended that he had been subjected to a hostile workplace by virtue of: (1) his supervisor’s antagonistic treatment of him during his failed return to work; (2) a manager’s OIG referral on September 27, 2011; (3) certain actions of OIG investigators throughout 2012 and 2013; and (4) another manager’s ultimate decision to terminate his employment in 2014.

Here, the court noted that all but the first of these actions took place during a multiyear period when the employee was on leave and not working at all. “We struggle to see how events that occurred during a years-long absence from the workplace can support a hostile-workplace claim,” said the court, finding everything that happened to the employee while on leave was irrelevant to this claim.

Continuing violation? Setting the problem of actions occurring while the employee was on leave aside, the court observed that only the last of these events—the termination of the employee’s USCIS employment—occurred with the 45-day period before his complaint to the EEO counselor. The employee invoked the continuing violation doctrine to argue that his hostile workplace claim was properly exhausted. The court disagreed.

Explaining that the continuing violation doctrine applies only to the extent that the allegedly hostile actions are part of the same claim, the court found no connection between the episodes the employee relied on to assert his hostile work environment claim. Each separate episode was not similar in kind and the gap between them was as large as two years, said the court.

In short, continued the court, the hostile work environment claim rested on several discrete acts or episodes, each of which triggered its own exhaustion clock. Only the last of these acts took place within the 45-day period preceding the EEOC complaint. Because that event was a single discrete act and not part of a single unlawful employment practice, the continuing violation doctrine did not apply. Thus, this claim too was barred as unexhausted.

Merits. Exhaustion issues aside, the court also found the employee’s claims to be meritless. The employee could not show that he was a “qualified individual” for disability discrimination claim purposes. According to his deposition testimony, the employee claimed in 2010 that he “was better” and could work with accommodations, but he “got worse again” because of “the issues that occurred” when he returned to work. However, to restart his workers’ compensation benefits, he informed the DOL that his condition was unchanged and he had never gotten better. The doctrine of judicial estoppel precludes the employee from having it both ways, explained the court.

As to the hostile work environment claim, the court found the evidence also fell far short. Even indulging the assumption that the agency’s actions during the employee’s years-long leave of absence were relevant to this claim, the evidence did not come close to satisfying the liability standard, said the court.

The referral to the OIG was not just permissible, it was warranted, as the investigation ultimately concluded. As to the employee’s complaints about the actions of certain OIG investigators, such as surveilling his home and scrutinizing his emails, the court noted that “that is just the stuff of which a typical misconduct investigation is made,” and such actions could not be characterized as hostile or abusive.

With regard to the supervisor’s conduct during the employee’s failed return to work, the court found no reasonable factfinder could deem her criticism of his breaks and medical complaints so severe or pervasive as to create a hostile work environment. The supervisor did not threaten or impose any consequences on the employee for taking breaks and made no other comments about his disability.

The case is No. 24-2514.

Judge: Sykes, D.

Attorneys: John M. O'Toole (O'Toole Law Firm) for Dored Shiba. Kathleen M. Flannery, Office of the U.S. Attorney, for Markwayne Mullin.

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