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Case Report - August 22, 2014 | 08-22-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2014_1074403.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2014_1074403.pdf | Case Report for August 22, 2014
BOARD DECISIONS
Appellant: Joan Ryan
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 64
MSPB Docket Number: PH-0752-13-0127-I-1
Issuance Date: August 18, 2014
Appeal Type: Adverse Action
Action Type: Indefinite Suspension
Due Process Rights for Suspensions Based on Security Clearance
Employee’s Right to Alternative Penalties In Lieu of Suspension
The appellant was indefinitely suspended based on the suspension of her
security clearance, which was suspended after she was indicted on federal
criminal charges. The appellant appealed her indefinite suspension, and while
the appeal was pending, she was acquitted of all of the criminal charges. The
administrative judge upheld the suspension. In the decision, the
Administrative judge held that the appellant’s due process rights were not
violated, the agency was not required to consider an indefinite demotion
instead of suspension, and that the agency did not have to restore the
appellant to work following her acquittal because her indefinite suspension
was based on her suspension of her security clearance, which had not been
reinstated at the time of the initial decision.
Holding: The Board affirmed the initial decision.
1. The Board rejected the appellant’s contention that the agency was
required to demonstrate it considered lesser forms of discipline before
issuing the indefinite suspension.
Per Griffin v. Defense Mapping Agency,
864 F.2d 1579 (Fed. Cir. 1989), when an agency is issuing discipline in
cases involving a loss of a security clearance, it only needs to consider the
alternative penalty of transferring an employee to a non-sensitive position
when a statute, regulation, or agency policy provides the employee with a
substantive right to reassignment.
2. Board decisions holding that an agency must demonstrate that
reassigning an employee to a non-sensitive position was not possible before
affirming an employee’s indefinite suspension were issued prior to Griffin.
Therefore, to the extent they contradict Griffin, they are overruled.
3. The appellant was not entitled to be placed on administrative leave
following her acquittal. The Board will not impose a condition subsequent
for the termination of the suspension different than the one imposed by the
agency. Additionally, placing the appellant on administrative leave would
be the equivalent of undoing the indefinite suspension, and would
improperly intrude on the agency’s authority to regulate and manage
employees’ access to classified information.
Appellant: Gary S. Blatt
Agency: Department of the Army
Decision Number: 2014 MSPB 65
MSPB Docket Number: AT-0752-13-7245-I-1
Issuance Date: August 19, 2014
Appeal Type: Removal
Action Type: Failure to Maintain Condition of Employment
Good Cause Untimely Filed Petition for Review
Harmful Procedural Error in Security Clearance Revocation
The appellant was removed from his GS-9 Physical Security Compliance
Inspector position based on a charge of failure to maintain a condition of
employment due to the revocation of his security clearance. The appellant
challenged the action based on the contention that the agency had not yet
made a final determination on his security clearance, and that the matter was
still under reconsideration on the effective date of his removal. The
administrative judge affirmed the action, and found that the agency did not
commit harmful procedural error by not allowing him to pursue or complete
additional agency processes to contest his security clearance revocation.
Holding: The Board reversed the initial decision.
1. The agency committed harmful procedural error by failing to comply
with its own procedures requiring a final security clearance decision prior
to the issuance of a removal based on a loss of security clearance.
Appellant: Jorge R. Munoz
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 66
MSPB Docket Number: DA-0752-13-0445-I-1
Issuance Date: August 20, 2014
Appeal Type: Adverse Action
Action Type: Indefinite Suspension
Procedure in Suspensions Based on Security Clearance Revocation
Employee’s Right to Alternative Penalties In Lieu of Suspension
The appellant was indefinitely suspended based on the revocation of his
security clearance. The appellant was informed he would remain suspended
until a final determination was made by the appropriate deciding official
and/or the Security Appeals Board. The administrative judge upheld the
suspension, and held that the agency established that the penalty was
reasonable and that it bore a nexus to the efficiency of the service.
Holding: The Board affirmed the initial decision as modified.
1. The agency’s effectuation of the indefinite suspension prior to the final
determination on his clearance was allowed because the agency’s internal
security clearance procedures do not reference adverse actions.
2. In the absence of a statute or regulation requiring the agency to
consider reassignment to another position, a traditional Douglas factor
analysis is not appropriate in disciplinary actions based on the revocation of
a security clearance because the Board lacks authority to review whether
reassignment would be feasible.
Appellant: Ricky N. Dawson
Agency: Department of Agriculture
Decision Number: 2014 MSPB 67
MSPB Docket Numbers: AT-0752-13-0217-I-1, AT-0752-13-0317-I-1,
AT-0752-13-0589-I-1
Issuance Date: August 21, 2014
Appeal Type: Adverse Action/VERA
Action Type: Indefinite Suspension/Removal/Denial of VERA Request
Multiple Penalties for Same Misconduct
Notice Requirements of Due Process
Jurisdiction in VERA Denial Cases
Retirement Application Procedure
Application of Unclean Hands
The appellant appealed the agency’s decision to indefinitely suspend him,
remove him from his position, and deny his Voluntary Early Retirement
Authority (VERA) application, due to his conviction for embezzling over
$6,000,000 in government funds. The administrative judge upheld the
removal, but reversed the indefinite suspension due to the agency’s failure to
provide proper notice of the charges to the appellant, and also on the grounds
that the suspension occurred simultaneously with the notice of proposed
removal period based on the same charges. The administrative judge also
reversed the denial of the application for voluntary early retirement, finding
that the agency’s improper indefinite suspension caused the appellant’s
untimely filing of his application.
Holding: The Board affirmed the administrative judge’s decision
regarding the removal, and reversed the decisions relating to the
indefinite suspension and VERA application.
1. An agency is allowed to impose both a suspension and removal penalty
for the same misconduct in situations where the misconduct involved
criminal activity. In making this ruling, the Board noted that the
administrative judge relied on Board precedent holding the opposite to be
true, but that this precedent has not been universally applied by the Board
or the Federal Circuit.
2. The agency’s proposal notice, which detailed the agency’s reasonable
cause to believe the appellant committed a criminal offense for which
imprisonment could be imposed, provided sufficient notice to the appellant
to satisfy his due process rights.
3. The administrative judge’s reliance on Gonzalez v. Department of
Homeland Security, 114 M.S.P.R. 318 (2010), was misplaced because in
Gonzalez, the investigation was still ongoing and the agency was still
waiting for an indictment. In this case, the investigation had ceased
because the appellant plead guilty to the charges against him in criminal
court.
4. The Board has jurisdiction over appeals from adverse VERA
determinations for employees under the Civil Service Retirement System.
5. Where OPM has delegated to an agency the authority to make decisions
on retirement applications, but the agency does not issue a final decision
on the application, the Board will deem the agency to have denied the
application.
6. The Board invoked the equitable doctrine of Unclean Hands to deny the
appellant his VERA application. Although the agency’s suspension of the
appellant prevented him from learning about the VERA offer in a timely
fashion, it was the appellant’s criminal activity that caused the suspension.
7. Member Mark Robbins wrote a concurring opinion, and stated that,
under the law, the appellant was not eligible for a VERA payment.
The U.S. Court of Appeals for the Federal
Circuit Issued the Following Nonprecedential
Decisions
Appellant: Arlene Smith
Agency: Office of Personnel Management
Decision Number: 2014-3084
MSPB Docket Number: AT-0831-10-0059-B-2
Issuance Date: August 20, 2014
Appeal Type: Retirement
Action Type: Former Spouse Survivor Annuity
Consideration of Divorce Decree Court Order in Former Spouse
Survivor Annuity
The appellant appealed an Office of Personnel Management (OPM) decision
denying her application for a Federal Employees’ Retirement System (FERS)
former spouse survivor annuity. The appellant was divorced in 1987 and her
marital property was distributed by court order, including the distribution of
the former spouse’s federal retirement annuity. That court order was modified
in a 1999 order. The administrative judge determined that the 1987 order
provided the appellant a former spouse annuity but remanded the case to OPM
to consider what effect the 1999 order had on the 1987 order. The Board
reversed the AJ’s determination that the appellant was entitled to the former
spouse annuity based on the 1987 court order because the pertinent
regulations only require consideration of the first order dividing the marital
property of the retiree and former spouse.
Holding: The Court vacated and remanded the case to the Board
based on a finding that the Board incorrectly determined that it did
not have to address the 1999 order.
1. In determining eligibility for a former spouse survivor annuity pursuant
to 5 C.F.R. § 838.1004(e)(1)(i) and (ii), a court order must be issued on
either a day prior to the date of retirement, or the date of death of the
employee, or the order must be the first order dividing the marital property
of the retiree and the former spouse. Here, because the 1999 order was
issued before the retirement of the appellant’s former spouse, it must be
considered.
Federal Register Notices
Interim Final Rule and Corrections: On August 19, 2014,
the Board issued new rules regarding the removal of
Veterans Administration Senior Executive Service
employees.
Interim Final Rule
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Case Report - August 8, 2014 | 08-08-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2014_1068964.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2014_1068964.pdf | Case Report for August 8, 2014
BOARD DECISIONS
Appellant: Jennifer J. Erlendson
Agency: Department of Justice
Decision Number: 2014 MSPB 61
Docket Number: SF-4324-13-1061-I-1
Issuance Date: August 4, 2014
Appeal Type: USERRA
Action Type: Discrimination
USERRA Agency Exclusions
The appellant is an Intelligence Analyst with the Federal Bureau of
Investigation (FBI). The appellant alleged in her USERRA appeal that she
was denied benefits and subjected to a hostile work environment due to her
military leave usage. The administrative judge dismissed the appeal for lack
of jurisdiction because FBI employees are specifically excluded from filing
USERRA appeals with the Board.
Holding: The Board affirmed the initial decision.
1. The FBI is an agency specifically excluded from USERRA jurisdiction in
appeals before the Board, whether the employee’s claim pertains to
reemployment or discrimination.
Appellant: James E. Carney
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 62
Docket Number: NY-1221-13-1018-W-1
Issuance Date: August 6, 2014
Appeal Type: Individual Right of Action
Action Type: Adverse Action
Jurisdiction in WPEA Cases
Evidence in Jurisdiction Determinations
The appellant filed an Individual Right of Action appeal, claiming that his two
suspensions were reprisal for assisting a coworker in a grievance. The
administrative judge found that the appellant made a nonfrivolous allegation
that he assisted a coworker with a grievance, which counted as protected
activity under the Whistleblower Protection Enhancement Act. The
administrative judge further found that the appellant failed to make a
nonfrivolous allegation that the protected activity was a contributing factor
to his suspensions, based on the proposing and deciding officials’ sworn
statements that they did not know about the appellant’s protected activity.
Accordingly, the administrative judge dismissed the appeal for lack of
jurisdiction.
Holding: The Board granted the petition for review, affirmed a
portion of the initial decision, vacated a separate portion of the
initial decision, and remanded for further adjudication.
1. The Board now has jurisdiction over claims of reprisal for assisting a
coworker in a grievance proceeding. The Board’s prior holdings that it
did not have jurisdiction in such cases, such as in Wooten v. Department
of Health and Human Services, 54 M.S.P.R. 143 (1992), and Rubendall v.
Department of Health and Human Services, 101 M.S.P.R. 599 (2006),
were superseded by the passage of the Whistleblower Protection
Enhancement Act in 2012.
2. In determining jurisdiction, an administrative judge cannot consider an
agency’s submissions containing mere factual contradiction of the
appellant’s alleged facts in support of jurisdiction.
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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Case Report - July 18, 2014 | 07-18-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2014_1059672.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2014_1059672.pdf | Case Report for July 18, 2014
BOARD DECISIONS
Appellant: Ellis A. Archerda
Agency: Department of Defense
Decision Number: 2014 MSPB 49
Docket Number: SF-0752-12-0208-I-1
Issuance Date: July 11, 2014
Appeal Type: Adverse Action
Action Type: Removal
Medical Requirements for Position
Penalty
Analysis of Disability Discrimination Claim
The appellant, a GS-7 Firefighter, was removed based on a charge of failure
to follow instructions relating to his failure to respond to the agency’s earlier
requests for additional medical information pertinent to his diagnosed
condition of post-traumatic stress disorder (PTSD). During an annual medical
examination, the agency learned from the appellant that he had recently
been granted a disability retirement annuity from his Firefighter position
with the U.S. Air Force Reserve. When the appellant did not respond to the
agency’s first request for additional medical information in connection with
his condition, the agency suspended him for 14 days. After the appellant did
not respond to the agency’s second request for additional medical
information, the agency removed him. The administrative judge (AJ)
reversed the action and found that while the appellant failed to follow
instructions in connection with the request for additional medical
information, the agency failed to show that it had authority to require the
appellant to produce the documentation. The AJ further found that the
appellant did not establish his affirmative defense of disability
discrimination.
Holding: The Board reversed the AJ’s findings on the charged
misconduct and affirmed the finding that the appellant failed to
establish his affirmative defense of disability discrimination.
1. The AJ erred in reversing the action because the agency was entitled
to the medical documentation for the purpose of ascertaining the
appellant’s continuing medical ability to perform the duties of Firefighter.
The appellant’s failure to provide the additional medical information
established the charge of failure to follow instructions.
2. The penalty of removal was appropriate given the nature and
seriousness of the offense, the appellant’s position as a Firefighter, the
appellant’s past disciplinary record, the clarity of being on notice, and the
potential for rehabilitation.
3. The AJ erred in applying a disparate treatment analysis to the
appellant’s affirmative defense of disability discrimination. The AJ should
have analyzed the issue on the basis of whether the agency’s medical
inquiry was job-related and consistent with business necessity.
Appellant: Joshua R. Marcantel
Agency: Department of Energy
Decision Number: 2014 MSPB 50
Docket Number: AT-0752-13-0507-I-1
Issuance Date: July 15, 2014
Appeal Type: Adverse Action
Action Type: Removal
Requirement to Provide Agency with Correct Address
Presumption of Receipt
Intentional or Negligent Frustration of Service
Length of Minimal Filing Delay
The appellant, a Nuclear Materials Courier, appealed his removal for failure
to maintain a condition of his employment. The Agency delivered the notice
of removal to the appellant via certified mail at his address of record on
March 16, 2013. The address of record was actually the address of the
appellant’s father in LaFayette, Louisiana. At the time of delivery, his father
received the notice for the appellant, due to the appellant’s job at an off
shore oil rig in the Gulf of Mexico. On March 19, 2013, the appellant
returned to his home in Knoxville, Tennessee, and on March 28, 2013, his
father notified him of the removal. On April 29, 2013, the appellant
appealed his removal to the Board, and the AJ dismissed the appeal for
untimeliness.
Holding: The Board affirmed the initial decision dismissing the
appeal.
1. Board regulations require that an appellant keep an agency informed
of his address for purposes of receiving an agency decision.
2. The appellant was presumed to have received the removal notice on
March 16, 2013, because his father received the notice at the appellant’s
designated address of record for receipt of official correspondence on
that day.
3. The appellant’s failure to communicate with his father for 9 days after
returning home to learn about the removal notice constituted a
frustration of service such that he could not later claim the later date, as
his receipt date.
4. The 14-day delay in filing was not considered minimal for purposes of
establishing good cause for untimeliness.
Appellant: In Re Tinker AFSC/DP
Agency: Department of the Air Force
Decision Number: 2014 MSPB 51
Docket Number: DA-0752-14-0157-I-1
Issuance Date: July 15, 2014
Appeal Type: Interlocutory Appeal
Action Type: Furlough Based on Budgetary Considerations
Interlocutory Appeal
Furlough Based on Budgetary Considerations
Agency Authority to Exempt Employees from Furlough
Agency’s Burden of Proof in Furlough Decision
The appellants were furloughed for six days based on “extraordinary and
serious budgetary challenges facing the Department of Defense.” The
appellants appealed the actions, alleging that the agency did not treat
similar employees with fairness and equity because the agency exempted
employees who were Oklahoma tornado victims whose homes were deemed
uninhabitable, but not those employees whose homes received extensive
damage but were deemed livable. The agency asserted that it exercised
separate “safe haven” continuation of salary authority under 5 U.S.C. § 5522
23 with regard to employees whose homes were destroyed. Following
prehearing discussion of issues with the parties, the AJ issued an
interlocutory order on the issue of whether the agency’s “safe haven”
decision to exempt employees victimized by the Oklahoma tornado should be
analyzed as part of the agency’s burden of proving that it treated employees
in a fair and even manner, or whether the “safe haven” decision should be
considered under a harmful procedural error analysis with the appellants
having the burden of proof. After detailed findings on this issue, the AJ held
that the question of whether “safe haven” employees were properly
excluded from the furlough was appropriate for certification of an
interlocutory appeal because the allocation of the burden of proof
concerning the agency’s “safe haven” decision was an important question of
law about which there was substantial ground for difference of opinion, and
an immediate ruling would materially advance the completion of more than
1,200 Tinker Air Force Base furlough appeals pending in the regional office.
Holding: The Board affirmed the AJ’s findings on the issue of the
agency’s burdens of proof, found that whether a statute or
regulation precluded the agency from furloughing “safe haven”
employees is not determinative as to whether the agency treated
its employees in a fair and even manner, vacated the stay order,
and returned the case to the regional office for further
adjudication.
1. Certification of a ruling for interlocutory review is appropriate when:
(a) the ruling involves an important question of law or policy about which
there is substantial ground for difference of opinion, and (b) an
immediate ruling will materially advance the completion of the
proceeding, or the denial of an immediate ruling will cause undue harm to
a party or the public.
2. The “safe haven” decision authorized under 5 U.S.C. §§ 5523(a) and
5522(a)(2) in the context of a furlough decision should be analyzed as
part of the agency’s burden of proving that it treated employees in a fair
and even manner.
3. The agency’s implementation of the “safe haven” provision should not
be analyzed as an affirmative defense of harmful procedural error by the
agency. Instead, the Board views the appellants’ assertion as an
allegation that the agency did not meet its burden of proving that its
action promoted the efficiency of the service.
4. In an adverse action furlough, the Board’s focus is on the legitimacy of
the reasons for the furlough at the time the furlough decision is made and
not after the fact.
Appellant: Michael Gaydar
Agency: Department of the Navy
Decision Number: 2014 MSPB 52
Docket Number: PH-3443-13-0583-I-1
Issuance Date: July 17, 2014
Appeal Type: Jurisdiction
Action Type: Reduction in Pay
Rate of Basic Pay Under Statutory Pay Cap
In this appeal for future back pay, the appellant asserted that he will be due
back pay from a related appeal challenging the agency’s furlough action. He
asserted that he was due back pay because the furlough’s reduction in his
basic pay should require the agency to pay him locality or premium pay that
was otherwise blocked due to a statutory pay cap for his Executive Schedule
position. The AJ dismissed the appeal for lack of jurisdiction based on a
finding that the appellant’s arguments relating to the proper calculation of
his back pay were premature and that he could make the arguments relating
to the proper calculation of his back pay in a compliance matter if he
prevailed on the merits of the furlough.
Holding: The Board affirmed the AJ’s findings as modified,
dismissed the appeal for lack of jurisdiction, and addressed an
argument that was not addressed below.
1. A reduction in pay is appealable only when the rate of basic pay fixed
by law or administrative action for the position held by the position
decreases. The phrase “rate of basic pay” is given a narrow construction.
2. A failure to increase the appellant’s rate of basic pay in connection
with a furlough does not generally constitute a reduction in the rate of
basic pay.
Appellant: Leslie A. Gallegos
Agency: Department of the Air Force
Decision Number: 2014 MSPB 53
Docket Number: AT-0752-13-0258-I-1
Issuance Date: July 17, 2014
Appeal Type: Adverse Action
Action Type: Removal
Directed Reassignment
Mobility Agreement and Failure to Fulfill Condition of
Employment
Prehearing Procedures
The appellant was removed from her GS-13 Criminal Investigator (Special
Agent) position based on a charge that she failed to fulfill a condition of
employment when she refused to accept a directed reassignment pursuant to
a valid agency mobility requirement. The appellant had been employed in
the agency’s Miami, Florida office and was ordered to Quantico, Virginia
pursuant to a mobility agreement. The AJ sustained the charge of failure to
accept a condition of employment and sustained the penalty of removal.
Holding: The Board denied the appellant’s petition for review
and affirmed the removal action.
1. Where there is no mobility agreement in place and a directed
reassignment addresses an individual’s situation, the individual’s refusal
to relocate does not support a charge of failure to meet a condition of
employment. Instead, it justifies a charge of failure to accept a directed
reassignment or some other charge appropriate under the circumstances.
2. In the absence of a mobility agreement, the agency must establish by
preponderant evidence that the geographic reassignment was properly
ordered due to bona fide management considerations in the interest of
promoting the efficiency of the service.
3. In instances where there is a mobility agreement, the analytical focus
is whether the agency’s policy was supported by a legitimate management
reason.
4. The appellant forfeited her affirmative defense of harmful procedural
error when she did not object to the AJ’s Order and Summary of
Telephone Prehearing Conference within the established time period.
Appellant: Jerry Hodges
Agency: Department of Justice
Decision Number: 2014 MSPB 54
Docket Number: NY-0752-11-0308-I-1
Issuance Date: July 17, 2014
Appeal Type: Adverse Action
Action Type: Removal
Standard for Agency to Engage in Interactive Process
Analysis of Discrimination Claim
Physical Improvement of Injured Appellants Prior to Close of
Hearing
Back Pay in Retroactive Restoration
The appellant, a correctional officer within the Bureau of Prisons, appealed
his removal for failure for medical/physical inability to perform the essential
duties of his position. The appellant suffered a work-related injury in 2000,
and in December 2009, an Office of Workers’ Compensation (OWCP) physician
determined that the appellant could return to work with no restrictions. In
February 2010, the agency directed the appellant to return to work. Upon
the appellant’s return, he supplied the agency with a medical report from his
personal physician that stated he could only perform his job within certain
restrictions, and asked the agency to assign him to a new position that fit the
restrictions. In October 2010, the appellant’s doctor issued another report
restricting the appellant’s ability to work, and stated that the restrictions
were permanent. Based on this report, in November 2010, the agency
proposed to reasonably accommodate the appellant with a new position,
because his restrictions prevented him from meeting an essential duty of his
position, and the appellant agreed. The appellant and agency worked
together to find the appellant a new position, but ultimately could not find
one. On July 20, 2011, the agency removed the appellant for being unable to
perform the full range of his duties, and the appellant appealed the removal
to the Board. At his hearing in December 2011, the appellant’s doctor
testified that the appellant was physically able to perform the duties of his
position. Based on this testimony, the agency offered the appellant a
correctional officer position, contingent upon the appellant’s doctor issuing a
written report stating he could return to work. On January 31, 2012, the
appellant’s doctor issued such a report, which stated he could return to work
effective February 5, 2012. The agency then sent the appellant a letter
stating the appellant could return to work on February 12, 2012, and that the
appellant would be placed on leave without pay from July 20, 2011, through
February 11, 2012. On March 16, 2012, the AJ issued an initial decision
holding that the agency failed to prove its charge, and that the appellant
proved his affirmative defense of disability discrimination. Based on this, the
AJ reversed the removal, and ordered the agency to retroactively restore the
appellant, effective July 20, 2011, with back pay.
Holding: The Board reversed the initial decision with respect to
disability discrimination and affirmed the initial decision on all
other grounds.
1. The Board reversed the AJ’s holding that the agency discriminated
against the appellant based on his disability. The Board found that the
agency engaged in an interactive process and attempted to reasonably
accommodate him, and there was no showing that these efforts were a
pretext for discrimination.
2. In a discrimination case, when the record is complete and a hearing
has been held, the Board will proceed directly to the question of whether
the appellant has proven the agency’s proffered reason was a pretext for
discrimination.
3. When an employee is removed for being physically unable to perform
his duties, if the employee’s physical condition improves prior to the end
of his Board hearing such that he is able to perform his duties, his removal
can no longer serves the efficiency of the service.
4. An employee who has been retroactively restored to duty by the Board
is not entitled to back pay as of the date of retroactive restoration, unless
the employee was ready, willing, and able to fulfill his duties on the
retroactive restoration date.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
cases:
Petitioner: Donald W. Cassidy
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3024
MSPB Docket No. DA-1221-11-0365-B-1
Issuance Date: July 14, 2014
Burdens of Proof in WPA Cases
The appellant appealed two non-selections for immigration judge positions
with the Executive Office for Immigration Review (EOIR), in the Department
of Justice. The first position was in San Antonio, and the second was in
Houston. The official responsible for checking references for applicants for
the San Antonio position was the immigration court’s assistant chief judge.
When checking references, multiple individuals, including one judge that
worked for the San Antonio immigration court, informed the assistant chief
judge that the appellant did not have a favorable temperament. The
assistant chief judge forwarded this information to the selection panel,
which then decided to choose a different candidate due to the information.
For the Houston position, the selection panel ultimately chose a different
candidate due to the weakness of the appellant’s panel interview. On
appeal, the appellant alleged that he was not chosen for either position due
to an e-mail exchange he participated in, which informed the assistant chief
judge that the court was not adhering to the requirements of a prior
settlement agreement. In his hearing, the AJ heard testimony from multiple
officials discussing the appellant’s negative temperament, and held that the
agency proved by clear and convincing evidence that it would not have
selected the appellant for either immigration judge position even if the
appellant had not made any protected disclosures. The Board affirmed the
decision.
Holding: The Court affirmed the Board's holding.
1. To succeed on a WPA claim, an employee must prove by a
preponderance of the evidence that his protected disclosure was a
contributing factor to the adverse personnel action. The appellant can
satisfy this burden by meeting the “knowledge/timing” test. If an
appellant meets his burden, the agency must then prove by clear and
convincing evidence that it would have taken the same personnel action
even if the employee made no protected disclosure.
2. Substantial evidence supported the Board’s finding that the agency
proved it would not have hired the appellant for either immigration judge
position even if he had not participated in the e-mail exchange.
Petitioner: Donna J. Deem
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3037
MSPB Docket No. SF-0752-12-0777-I-1
Issuance Date: July 17, 2014
Standard for Involuntary Resignation
The appellant appealed the Board’s dismissal of her involuntary resignation
claim for lack of jurisdiction. The appellant claimed she was harassed by her
supervisor for 12 years, after which she was transferred to a separate office
and given a new supervisor. 10 months after her transfer, the appellant
retired, and then filed an appeal with the Board claiming her retirement was
involuntary due to the harassment she suffered from her former supervisor.
At the Board, the AJ held that the petitioner failed to make a non-frivolous
allegation in support of jurisdiction and dismissed the appeal. The Board
affirmed.
Holding: The Court affirmed the Board's holding.
1. To establish involuntary resignation, an employee must show: (1) the
agency effectively imposed the terms of the employee’s resignation or
retirement; (2) the employee had no realistic alternative but to resign or
retire; and (3) the employee’s resignation or retirement was the result of
improper acts by the agency.
2. Substantial evidence supported the Board’s finding that the appellant’s
working conditions did not establish an involuntary resignation.
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BOARD DECISIONS
Appellant: Alexander Buelna
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 45
Docket Number: DA-0752-09-0404-B-1
Issuance Date: June 19, 2014
Appeal Type: Adverse Action
Action Type: Indefinite Suspension
Due Process Rights for Federal Employees Whose Security
Clearances Have Been Suspended
The appellant, a Federal Air Marshal with the Transportation Security
Administration, appealed his indefinite suspension, which was based on the
suspension of his security clearance. The appellant was not given an
opportunity to contest the suspension of his security clearance. On appeal,
the AJ initially affirmed the suspension. The Board remanded for
determination of whether the appellant was afforded due process. Upon
remand, the AJ affirmed again, finding that the appellant received due
process, because the decision maker had authority to choose an alternative
penalty over the proposed suspension.
The appellant appealed this decision
to the Board, and while the appeal was pending, the Federal Circuit issued
its decision in Gargiulo v. Department of Homeland Security, holding that
the due process rights afforded to employees disciplined for loss of security
clearance were derived from a statute, not from the constitution. Because
this ruling directly affected the appellant’s case, the Board invited the
parties to brief the issue of how Gargiulo affected their case.
Holding: The Board affirmed, but modified, the initial decision,
pursuant to Gargiulo.
1. A tenured federal employee is entitled to constitutional due process
when an agency takes an adverse action based on a security clearance
determination.
2. In accordance with Gargiulo, constitutional due process does not
require an appellant be given the opportunity to contest the merits of the
clearance suspension. However, this right can be granted via statute or
internal agency regulation.
3. Constitutional due process does not require an appellant be given
notice of the factual basis underlying the security clearance suspension.
Instead, this notice is required by 5 U.S.C. § 7513.
4. Constitutional due process requires that an appellant be given notice
of the facts underlying a clearance suspension to the extent those facts
are considered in the determination of the penalty.
5. Constitutional due process requires the employee be given the ability
to respond to the actual proposed action, not just the clearance
determination.
6. Constitutional due process requires the employee be afforded an
opportunity to invoke the discretion of a deciding official with authority
to select viable alternative penalties, if any exist.
7. The Board’s prior decisions in Hairston v. Dep’t of Defense, Diehl v.
Dep’t of the Army, Gaitan v. Dep’t of Homeland Security, Gargiulo v.
Dep’t of Homeland Security, McGriff v. Dep’t of the Navy, and the first
Buelna are modified to the extent they are inconsistent with the Board’s
decision in this appeal.
8. Vice-Chair Anne Wagner concurred in the decision. She agreed with
the result, but believes that the Board’s legal holdings were inconsistent
with the Federal Circuit’s holding in King v. Alston.
Appellant: Thomas Flores
Agency: Department of Defense
Decision Number: 2014 MSPB 46
Docket Number: DA-0752-10-0743-I-3
Issuance Date: June 19, 2014
Appeal Type: Adverse Action
Action Type: Removal
Denial of Eligibility to Occupy Sensitive Position
No Property Interest in Eligibility to Occupy a Sensitive Position
Waiver of Right to Respond to Deciding Official
The appellant was removed from the position of Military Pay Technician
based on a charge of denial of his eligibility to occupy a sensitive
position. The appellant appealed this determination to the Defense Office of
Hearings and Appeals (DOHA), with the ultimate decision affirming the denial
of his eligibility to occupy a sensitive position. The AJ affirmed the
denial. The appellant asserted in his PFR that he was denied due process
because the ultimate decision to remove him was made not by the deciding
official, but by DOHA.
Holding: The Board denied the appellant's PFR, affirmed the
initial decision as modified, and sustained the removal.
1.
The Board found that because the Federal Circuit overruled its
decisions in Conyers and Northover, in Kaplan v. Conyers, while the PFR
was pending, the AJ incorrectly ruled that the Board had authority to
review the merits of the DOHA determination that a Department of
Defense employee is ineligible to occupy a sensitive position regardless of
whether the position requires access to classified information. Thus, the
Board vacated the part of the initial decision based on Conyers and
Northover, and affirmed the underlying charge without reviewing the
merits of the underlying clearance determination.
2. The Board affirmed the Federal Circuit’s principle from Gargiulo v.
Department of Homeland Security, that like a security clearance, the
appellant has no property interest in eligibility to occupy a sensitive
position.
3. The Board found that in the absence of any indication that the
appellant made a reasonable effort to assert his right to respond, or that
the agency denied him his right to respond through action, negligence, or
design, the appellant waived his due process right to respond to the
deciding official before his removal.
Appellant: Mary Abbott
Agency: United States Postal Service
Decision Number: 2014 MSPB 47
Docket Number: DC-0752-12-0366-I-1
Issuance Date: June 23, 2014
Appeal Type: Adverse Action
Action Type: Enforced Leave
Difference between enforced leave suspension and constructive
suspension
Burden of proof for enforced leave suspension
The appellant, an EAS-17 supervisor for the Postal Service, appealed the
agency’s decision to place her on enforced leave due to the lack of available
work within her medical restrictions. On appeal, the AJ dismissed the matter
for lack of jurisdiction, finding that the appellant failed to establish that the
agency action constituted a constructive suspension.
Holding: The Board remanded the matter for adjudication on the
merits.
1. An agency’s placement of an employee on enforced leave for more
than 14 days constitutes an appealable suspension within the Board’s
jurisdiction. The Board’s past decisions in which enforced leave claims
were treated as constructive suspensions, beginning with Chiders v.
Department of the Air Force, are overruled.
2. To sustain an enforced leave suspension, the agency must prove by
preponderant evidence that the charged conduct occurred, that a nexus
exists between the conduct and efficiency of the service, and that the
penalty is reasonable.
Appellant: John E. Burke
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 48
Docket Number: CH-1221-09-0288-C-2 and CH-1221-09-0288-C-3
Issuance Date: June 23, 2014
Appeal Type: Retaliation IRA
Action Type: Compliance
Material Breach of Settlement Agreement
Remedy for Breach of Settlement Agreement
The parties entered into a settlement agreement resolving the appellant's
individual right of action (IRA) appeal. Among the pertinent provisions
included in this agreement was a provision requiring the agency to remove a
reprimand from the appellant's Official Personnel File (OPF) some three years
following execution of the agreement. The appellant later filed three
separate petitions for enforcement raising a number of issues, including the
agency's failure to remove the reprimand from his OPF. The agency was
found in compliance with the settlement agreement in all three petitions for
enforcement; the second and third petitions are the subject of the instant
decision. The AJ found with respect to the failure to remove the reprimand,
that although the agency delayed removal of the reprimand for three years
following execution of the agreement, there was no breach of the agreement
because the agency ultimately complied with the agreement by removing it.
Holding: The Board denied the appellant's PFR, and affirmed the
initial decision as modified.
1. The Board found that the agency materially breached the settlement
agreement as to its failure to timely remove the reprimand from the
appellant's OPF because this provision went to a matter of vital
importance to the appellant and went to the essence of the contract. The
fact that the agency eventually removed the reprimand does not mean
that there was no breach.
2. Here, because a material breach was established, the appellant was
entitled to either enforcement of the disputed provision, or rescission of
the settlement agreement and reinstatement of the appeal. Because the
appellant indicated that he did not want to risk losing any benefits he
received under the agreement, and there was no further meaningful
relief available regarding the removal of the reprimand from his OPF, the
matter was moot.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
cases:
Petitioners: William Robert Kelly
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3178
MSPB Docket No. DC-0752-12-0131-I-1
Issuance Date: June 24, 2014
Jurisdiction
Involuntary Resignation
The appellant became dissatisfied with an internal agency investigation into
alleged plagiarism of a publication by a colleague and communicated to
agency officials that he wanted to retire. The agency prepared a Resolution
Agreement signed by the appellant that permitted him to work from home
for one year and to resign from his position thereafter. The appellant
attempted to rescind and withdraw the resignation, but the agency denied
his request. The appellant later retired. The appellant then filed an appeal
asserting that his resignation was involuntary, and an Individual Right of
Action appeal alleging that he was the subject of whistleblower
retaliation. The AJ held a hearing on the limited jurisdictional issue of
whether the appellant's resignation was voluntary. The AJ dismissed the
appeal for lack of jurisdiction based on a finding that the appellant's
resignation was voluntary, and dismissed the IRA appeal based on a finding
that the appellant failed to establish a nonfrivolous allegation of Board
jurisdiction over his IRA appeal. The Board affirmed these findings.
Holding: The Court affirmed the Board's order dismissing the
appeal for lack of jurisdiction.
1.
The court affirmed the Board's finding based on Terban v. Department
of Energy, that a resignation is presumed voluntary unless an employee
shows that the resignation was the product of misinformation or
deception, or the product of coercion by the agency. The appellant did
not argue that his resignation was the product of misinformation or
deception, and there was substantial evidence that the appellant's
resignation was not the product of coercion. The court noted that the AJ
correctly pointed out that the appellant initiated discussions with the
agency concerning his resignation, negotiated the terms of the resolution
agreement, and understood the terms of the agreement when he signed
it.
2. The court affirmed the Board's jurisdictional finding on the appellant's
IRA appeal because the resignation was found voluntary and thus did not
constitute a prohibited personnel action within the scope of the WPA.
Petitioner: Hannah Harding
Respondent: United States Naval Academy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3092
Arbitration Decision No. 120516-55631-7
Issuance Date: June 26, 2014
Petition for Review of Arbitrator's Decision
Limited Review of Penalty Determination
While off duty but driving on agency premises, the appellant was stopped by
police and it was determined that she was intoxicated. The appellant told
police that she had used cocaine the night before. The appellant later plead
guilty to the offense of driving or attempting to drive while impaired by
drugs or alcohol. The appellant was then removed from her position as a
Cook at the United States Naval Academy based on a charge that she was
under the influence of illegal drugs and alcohol while off-duty on government
property. The arbitrator upheld the removal, finding: (1) that the agency
established a nexus between her off-duty misconduct and her job duties; (2)
that removal was within the tolerable limits of reasonableness; (3) that
evidence showed that the deciding official showed a careful and reasoned
consideration of the relevant Douglas factors; and (4) that the appellant did
not establish that there was disparate treatment with regard to the removal
penalty.
Holding: The Court affirmed the arbitrator's decision.
1. The Court held that, although the appellant raised numerous due
process arguments in her petition, she did not preserve these issues
before the arbitrator. Thus, the Court did not exercise its discretion to
excuse the failure to raise those claims. The court also noted that even
apart from the appellant's "procedural default," they would have rejected
the appellant's due process claims on the merits.
2. The Court also held that "the various formulations of our reviewing
authority over agency penalty determinations bristle with words of
limitation." Applying that "restrictive standard" to the Court's authority to
review an arbitrator's decision, the Court held that the penalty of removal
was not "outrageously disproportionate" to the offense or totally
unwarranted, notwithstanding the appellant's 24 years of service with no
prior disciplinary record.
The U.S. Supreme Court Issued a Decision in the
Following Case:
Petitioner: National Labor Relations Board
Respondent: Noel Canning
Tribunal: U.S. Supreme Court
Case Number: 12-1281
Decision Below: 705 F.3d 490 (D.C. Cir. 2013)
Issuance Date: June 26, 2014
Appeal Type: Constitutional Law
Action Type: Recess and Appointments Clause in the United States
Constitution
Presidential Power to Make Executive Recess Appointments
Without Senate Approval
This case arose from a dispute between the Noel Canning soft-drink bottling
company and the United Brotherhood of Teamsters over a collective
bargaining contract provision pertaining to how a pay increase would be
apportioned. The NLRB concluded that the employer violated the National
Labor Relations Act (NLRA) by refusing to execute the labor agreement
containing the disputed provision. The employer argued on appeal to the
D.C. Circuit that the NLRB decision was invalid because the five-member
Board voting on the decision did not constitute a quorum, in that three
members appointed to the Board by President Obama were recess
appointments. The D.C. Circuit held that the Board lacked a quorum when it
voted on this case because the recess appointments were constitutionally
invalid, and vacated the NLRB decision. The Court noted that the Recess and
Appointments Clause of the U.S. Constitution is limited to appointments
made during designated intersession recesses and not during pro forma
sessions, during which the Senate, by unanimous agreement meets every
third business day where no business is to be conducted. Because these
appointments occurred between pro forma sessions, and not during an
official break between sessions, the Court found that the NLRB could not
have lawfully acted because it lacked a minimum number of properly
appointed members to enforce the NLRA. The Court also held that the
appointments were invalid because the President's recess appointment
authority only applies to vacancies that have occurred during the officially
designated recess, and not those that were vacant prior to the recess as was
the case with the three NLRB vacancies at issue.
The Supreme Court addressed the following issues: (1) Whether the
President's recess-appointment power may be exercised during a recess that
occurs within a session of the Senate, or is instead limited to recesses that
occur between enumerated sessions of the Senate; (2) Whether the
President's recess-appointment power may be exercised to fill vacancies that
exist during a recess, or is it limited to vacancies that first arose during that
recess; and (3) Whether the President's recess-appointment power may be
exercised when the Senate is convening every three days in pro forma
sessions.
Holding: The Court affirmed as modified the opinion of the D.C.
Circuit.
1. In a 54 page Opinion, the Court (Justice Breyer writing, with a 49 page
concurrence by Justices Scalia, Roberts, Thomas, and Alito) held that the
recess appointments clause empowers the President to fill any existing
vacancy during most intra or inter session recess. Although the
appointments clause does not specify a time limit the Senate must be in
recess in order for the President to exercise recess appointment
authority, a recess of more than three days but less than ten is
presumptively too short to fall within the clause. Thus, the President
cannot exercise his appointment authority during pro forma recesses in
the Senate. The vacancy does not have to occur during the recess in order
for the appointment to be valid but can be an existing vacancy that is
filled. In the present case, since the three NLRB vacancies were filled
during pro forma sessions, they were invalid.
2. A limitation on the President's recess power is that the House and the
Senate can take the Senate out of recess and order a "pro forma" session
that would block any recess appointment.
3. In his concurrence, Justice Scalia would have followed the clear
meaning of the appointments Clause that would limit recess appointments
to between formal sessions. Justice Scalia noted that the majority opinion
engages in "Judicial Adventurism" by making up presumptive standards for
how long of a recess is too short.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Wayne C. Wall
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 57
Docket Number: AT-0831-08-0779-I-1
Issuance Date: April 17, 2009
Action Type: Retirement/Benefit Matter
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that he was not entitled to disability retirement benefits.
Holdings: The Board affirmed the initial decision as modified, affirming OPM’s
denial of disability retirement benefits. The Board found, contrary to the initial
decision, that the appellant did not establish that he was disabled from useful and
efficient service.
(cid:190) Appellant: Johnnie M. Riggsbee
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 58
Docket Number: DC-0731-08-0531-I-1
Issuance Date: April 21, 2009
Appeal Type: Suitability
Miscellaneous Agency Actions
Suitability
Board Procedures/Authorities
- Close of the Record
The appellant petitioned for review of an initial decision that affirmed a negative
suitability determination by OPM. This determination was based on the appellant’s
2
negative answer on a question on Optional Form 306, which asked whether she had
been fired from any job for any reason, quit after being told that she would be fired, or
left any job by mutual agreement because of specific problems during the last 5 years.
OPM found that the appellant was required to answer “yes” because she had resigned
from previous federal employment after being told she would be fired for failing a drug
test. The administrative judge (AJ) decided the case based on the written record
because the appellant withdrew her request for a hearing. The AJ affirmed OPM’s
negative suitability determination, finding that the “no” answer was intentionally false.
Holdings: The Board affirmed the initial decision as modified, still affirming
OPM’s negative suitability determination:
1. The AJ erred in issuing the initial decision before receiving and considering the
appellant’s “Written Statement in Lieu of Oral Argument.”
a. The AJ erred to the extent that she found that the appellant’s attorney was
precluded from filing the pleading by non-electronic means simply because
the appellant had registered as an e-filer. Appellants and their
representatives can make separate determinations whether to register for
e-filing, and e-filers are permitted to file pleadings by non-electronic means.
a. This pleading was timely filed, as it was delivered to the commercial delivery
service prior to the close of the record. It does not matter that the pleading
was not received until after that date.
2. The AJ’s error did not affect the disposition of the case. After considering the
pleading, the Board agreed with the AJ’s determination that the appellant’s
response to the question was intentionally false.
(cid:190) Appellant: Stephen W. Gingery
Agency: Department of the Treasury
Decision Number: 2009 MSPB 59
Docket Number: CH-3330-08-0673-I-1
Issuance Date: April 21, 2009
Appeal Type: Veterans Employment Opportunities Act
Board Procedures/Authorities
- Dismissals Without Prejudice
USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his VEOA
appeal without prejudice to refiling. The appellant alleged that his veterans’ preference
rights were violated in connection with his application for a position as a Contact
Representative with the IRS. The vacancy announcement stated that applicants would
need to complete a Telephone Assessment Program (TAP) to evaluate customer service
competence and that passing the TAP was a requirement for selection. The agency
notified the appellant that he failed to pass the TAP and would not be considered for
selection. It also notified him that the agency would be requesting a passover from
OPM under 5 U.S.C. § 3318. In his appeal to the Board, the appellant argued that the
agency improperly disqualified him from consideration based on his performance on the
3
TAP without asking OPM for permission to pass him over and concurrently notifying
him of the proposed Passover in violation of § 3318(b). Before a passover request was
sent to OPM, the agency received the results of the appellant’s fingerprint check, which
revealed that he had been sentenced to 12 months of probation and ordered to undergo
anger management assessment for numerous violations of law. The agency then
prepared and submitted a passover request to OPM based both on the results of the
fingerprint check and the appellant’s performance on the TAP. Over the appellant’s
objection, the AJ dismissed the appeal without prejudice, ordering the appellant to
refile no later than 30 days after OPM’s determination on the agency’s passover
request, or 3 months after the initial decision became a final decision, whichever was
later.
Holdings: The Board affirmed the initial decision as modified, still dismissing the
appeal without prejudice to its refiling.
1. The AJ did not abuse her discretion in dismissing the appeal without prejudice
over the appellant’s objection.
a. An AJ has wide discretion to control the proceedings before her, and a
dismissal without prejudice is appropriate when it is in the interests of
fairness, due process, and administrative efficiency.
b. The appellant’s arguments are an attempt to reach the merits of the appeal,
which are irrelevant to the issue whether the AJ abused her discretion is
dismissing the appeal.
c. The AJ correctly concluded that dismissing the appeal pending OPM’s action
on the passover request promotes administrative efficiency and avoids a
lengthy continuance.
2. The Board reopened the appeal on its own motion to modify the AJ’s
instructions regarding refiling, adopting the holding in a USERRA case, Milner v.
Department of Justice, 87 M.S.P.R. 660 (2001), that a case will be considered
automatically refilled by the date set forth in the dismissal order, unless there is
evidence that the appellant has abandoned the case. Under the circumstances of
this case, requiring the appellant to refile the appeal at the risk of waiving his
appeal rights places an unnecessary burden on him.
(cid:190) Appellant: Emma Agbenyeke
Agency: Department of Justice
Decision Number: 2009 MSPB 60
Docket Number: DC-0752-06-0196-I-1
Issuance Date: April 21, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness – PFR
The appellant petitioned for review of a 2006 initial decision that dismissed her
appeal of an allegedly involuntary retirement for lack of jurisdiction. Almost 3 years
after the deadline for timely filing, the appellant submitted a petition for review.
4
Holdings: The Board dismissed the petition for review (PFR) as untimely filed
without good cause shown.
(cid:190) Appellant: Eric Smart
Agency: Department of Justice
Decision Number: 2009 MSPB 61
Docket Number: SF-315H-08-0709-I-1
Issuance Date: April 21, 2009
Action Type: Probationary Termination
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his appeal
of a termination during his probationary period for lack of jurisdiction. At issue was
the appellant’s termination from his appointment as a Deputy U.S. Marshall in 1991.
The appellant filed an EEO complaint in 1992 alleging that his termination was the
result of race discrimination, but the EEOC affirmed the agency’s decision in 1994.
The appellant filed his appeal with the Board in 2008. Without addressing timeliness,
the AJ dismissed the appeal for lack of jurisdiction under 5 C.F.R. § 315.806(b), noting
that the appellant did not assert that his probationary termination was based on either
partisan political reasons or marital status.
On PFR, the appellant asserted that the AJ failed to consider his previous federal
employment, noting that he began his federal career in 1979.
Holdings: The Board vacated the initial decision, and remanded the appeal for
further adjudication:
1.
Under McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir.
2002), a competitive service employee serving a probationary period is nevertheless
entitled to appeal to the Board if he “has completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or less.” The
Board was unable to determine from the existing record whether the appellant met
this criterion.
2.
The AJ failed to provide explicit information, as required by Burgess v. Merit
Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985), as to how the appellant
could show that his prior service could be “tacked’ to his probationary period; nor
did he receive explicit information as to how he could meet the definition of an
“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii). A remand was therefore necessary.
(cid:190) Appellant: Aysha Cambridge
Agency: Department of Justice
Decision Number: 2009 MSPB 62
Docket Number: CB-7121-09-0005-V-1
Issuance Date: April 21, 2009
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
5
The appellant requested review of an arbitration decision that sustained her
removal.
Holdings: The Board granted the appellant’s request for review and sustained the
arbitrator’s decision:
1. The Board has jurisdiction over the request, as the subject matter of the
grievance (a removal) is one over which the Board has jurisdiction, the appellant
alleges discrimination under 5 U.S.C. § 2302(b)(1), and the arbitrator has issued a
final decision.
2. The appellant failed to show that the arbitrator erred as a matter of law in
interpreting civil service law, rule, or regulation in sustaining the charges, in
considering the appellant’s affirmative defenses, including sex discrimination, or in
sustaining the removal penalty.
(cid:190) Appellant: James Vena
Agency: Department of Labor
Decision Number: 2009 MSPB 64
Docket Number: CB-7121-08-0024-V-1
Issuance Date: April 23, 2009
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitration decision that sustained his
removal.
Holdings: As in Cambridge, the Board granted the appellant’s review, but found
that the appellant failed to show that arbitrator erred in sustaining the removal.
(cid:190) Petitioner: Special Counsel
Respondent: Robert Wilkinson
Decision Number: 2009 MSPB 63
Docket Number: CB-1216-06-0006-B-1
Issuance Date: April 23, 2009
Appeal Type: Disciplinary Action - Hatch Act
Action Type: All Original Jurisdiction Cases
Special Counsel Actions
- Hatch Act
This case was before the Board to review the administrative law judge’s (ALJ’s)
Recommendation to approve a settlement agreement in which the parties agreed that the
employing agency (Environmental Protection Agency) would suspend the appellant for
30 days without pay for violating the Hatch Act by engaging in political activity while
on duty in a government building and occupied in the discharge of his official duties.
Holdings: The Board adopted the ALJ’s recommendation, finding that the
agreement is lawful on its face, that the parties freely entered into the settlement
6
agreement, understood its terms, and intended to have the agreement entered into
the record for purposes of enforcement by the Board.
(cid:190) Appellant: Dennis J. Leeds
Agency: United States Postal Service
Decision Number: 2009 MSPB 65
Docket Number: CH-0752-07-0155-X-2
Issuance Date: April 23, 2009
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Compliance
The AJ identified 3 issues in the appellant’s petition for enforcement, which
alleged that the agency was not in compliance with the settlement agreement that
resolved his appeal of the agency’s action placing him in enforced leave status for more
than 14 days. The AJ found the agency in compliance with its obligations with respect
to 2 of these issues, but not as to the third, which provided for a lump-sum payment to
the appellant. The AJ found that the agency had not yet made the required payment, but
that it had provided the calculations for the payment it planned to make.
Before the full Board, the agency provided evidence that it had paid the appellant
the lump sum. The appellant disputed the calculation of the lump-sum payment.
Holdings: Finding that the agency had correctly calculated the amount of the
lump-sum payment under the settlement agreement, the Board concluded that the
agency was in compliance and dismissed the petition for enforcement.
(cid:190) Appellant: Willaim B. Groseclose
Agency: Department of the Navy
Decision Number: 2009 MSPB 66
Docket Numbers: SF-1221-08-0524-W-1
SF-1221-08-0635-W-1
Issuance Date: April 24, 2009
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Jurisdiction
- Exhaustion of OSC Remedy
- Protected Disclosure
- Danger to Public Health or Safety
- Contributing Factor
Defenses and Miscellaneous Claims
- Res Judicata
The appellant petitioned for review of two initial decisions in which he alleged that
he made numerous whistleblowing disclosures and that a number of personnel actions
were taken in reprisal. In the first, the AJ dismissed the appeal for lack of jurisdiction,
finding that a number of claims were barred under the doctrine of res judicata because
7
they had been raised in a prior IRA appeal. In the second, the AJ dismissed the appeal
without prejudice because the outcome of the appellant’s petition for review in the first
current IRA appeal could affect the scope of the second current IRA appeal.
Holdings: The Board joined the appeals under 5 C.F.R. § 1201.36, vacated the
initial decisions, and remanded the joined appeal for further adjudication:
1. In cases involving multiple alleged protected disclosures and multiple alleged
personnel actions, an appellant establishes jurisdiction over his IRA appeal if he
makes a nonfrivolous allegation that at least one alleged personnel action was
taken in retaliation for at least one alleged protected disclosure.
2. Under 5 U.S.C. § 1214(a)(3), an IRA appellant is required to seek corrective
action from OSC before seeking corrective action from the Board, and the Board’s
jurisdiction is limited to issues raised before OSC, including subsequent
correspondence with OSC as well as the initial complaint.
3. The appellant has exhausted the OSC process with respect to at least 11 alleged
disclosures and 3 personnel actions. In addition, he raised several additional
disclosures and personnel actions before OSC that do not appear to have been
raised in either IRA appeal. If the appellant wishes to raise these matters in the
joined appeal, he will have the opportunity to do so on remand.
4. The Board determined that the appellant made at least one nonfrivolous
allegation of a protected disclosure—an email in which he expressed his belief that
his immediate supervisor and another employee mishandled a situation in which
there was a potential for workplace violence. This constituted a nonfrivolous
allegation of a disclosure of a substantial and specific danger to public health or
safety under the 3 factors identified in Chambers v. Department of the Interior, 515
F.3d 1362 (Fed. Cir. 2008): (1) the likelihood of harm resulting from the danger;
(2) when the alleged harm may occur (a harm likely to occur in the immediate or
near future is more indicative of a protected disclosure); and (3) the nature and
seriousness of the harm.
5. Under the knowledge/timing test of 5 U.S.C. § 1221(e), the appellant
nonfrivolously alleged that his protected disclosure was a contributing factor in at
least 2 personnel actions.
6. Although some of the alleged protected disclosures in the present joined appeal
were also raised in the prior IRA appeal that has been fully adjudicated, the claims
are not the same, in that the appellant is alleging that new personnel actions were
taken in retaliation for those (and other) disclosures. Accordingly, none of the
appellant’s claims in the present joined appeal are barred by the doctrine of res
judicata.
(cid:190) Appellant: Patricia L. Lemons
Agency: Department of the Army
Decision Number: 2009 MSPB 67
Docket Number: AT-0752-08-0456-I-1
Issuance Date: April 24, 2009
8
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Timeliness – PFR
Miscellaneous Agency Actions
Indefinite Suspensions
Board Procedures/Authorities
Withdrawal of Appeal
The appellant sought review of an initial decision that dismissed her appeal of an
indefinite suspension as withdrawn. In February 2008, the agency indefinitely
suspended the appellant from her position as a Supervisory Logistics Management
Specialist pending the completion of a criminal investigation into her alleged
misconduct. In May 2008, her representative filed a letter stating that the appellant
requested leave to withdraw the appeal with prejudice, and the AJ issued an initial
decision dismissing the appeal as withdrawn. In January 2009, the appellant filed a new
pleading with the regional office in which she alleged, inter alia, that the agency had
improperly continued the indefinite suspension. The regional office forwarded the
pleading to the Clerk of the Board for docketing as a petition for review. Before the
Board, the appellant contended that she withdrew her appeal based on the
representations of the agency that criminal charges were pending, but that no charges
had been filed and it appeared that no action had occurred on the criminal investigation
for more than a year. She asserted that, even if the indefinite suspension was proper at
the time it was imposed, the agency’s continuation of the suspension was now improper.
The agency contends criminal charges are still pending against the appellant, and that it
has no control over when charges will be filed.
Holdings: The Board forwarded the appellant’s pleading to the regional office for
docketing as a separate appeal challenging the continuation of the indefinite
suspension:
1. If Considered as a PFR, the appellant’s January 2009 pleading must be
dismissed as untimely filed without good cause shown for the delay. She did not
explain why her more than 6-month delay in filing while she waited for criminal
charges to be filed reflected due diligence or ordinary prudence.
2. The matter is properly forwarded to the regional office as a new appeal
challenging the continuation of the indefinite suspension.
a. To be valid, an indefinite suspension must have an ascertainable end, that is,
a determinable condition subsequent that will bring the suspension to a
conclusion. To permit the agency to take an unlimited amount of time to
determine what action to take while keeping the appellant on indefinite
suspension would run contrary to the requirement that an indefinite
suspension have an ascertainable end.
b. The parties have raised an issue of fact as to whether the condition
subsequent that would terminate the appellant’s suspension has occurred so
as to trigger the agency’s obligation to end the indefinite suspension. It is
9
therefore appropriate to remand the case to the regional office for further
adjudication.
(cid:190) Appellant: Niexie F. Gray
Agency: Government Printing Office
Decision Number: 2009 MSPB 68
Docket Number: DC-0752-08-0473-I-1
Issuance Date: April 24, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Defenses
- Privileged Conduct
Penalty
The appellant petitioned for review of an initial decision that sustained his removal
on misconduct charges: (1) improper personal conduct, disruption in the workplace,
making statements that caused anxiety in the workplace; (2) using racially inappropriate
language; and (3) using insolent language and behavior. All 3 charges stemmed from
the appellant’s actions and statements on a single day after having a disagreement with
his supervisor about a work task. Following the disagreement, the appellant went to the
medical unit to obtain medical documentation to leave for the day. When he got there,
he told a nurse that he needed to go home because he “might do something bad to my
supervisor.” Shortly thereafter, this nurse and a second nurse overheard the appellant
muttering comments, as “I’m going to kill him; “I’m going to kill... my supervisor, he
keeps harassing me, I’m tired of his shit”; “I am going to kill him with a machete.” The
agency’s Safety Manager and his associate were called, and suggested that they go to a
conference room to talk things over. During this conversation, the appellant made
similar statements: “I’m gonna cut that nigger [his supervisor] into pieces,” that he was
“going to kill your supervisor, and chop him up in pieces,” and “I am going to kill that
nigger.”
After a hearing, the AJ sustained the charges, finding that the appellant had made
the statements attributed to him. The AJ rejected the appellant’s defense that his
statements were privileged because they were made in the course of medical treatment,
finding that, even if the appellant went to the medical unit to receive a medical
diagnosis, he lost the benefit of the privilege by making the same type of comments to
the Safety Manager and his associate, who were third parties not subject to the privilege
protections. The AJ also rejected the defense of retaliation for protected EEO activity,
and found that the removal penalty was within the bounds of reasonableness.
Holdings: The Board affirmed the initial decision as modified, still sustaining the
appellant’s removal:
1. The Board sustained the AJ’s findings that the appellant made the statements
attributed to him to support the first two charges. The AJ correctly found that the
appellant’s statements were disruptive in that they frightened both nurses, and as
to the second charge, there is no doubt that the appellant’s use of the word
“nigger” was racially inappropriate.
10
2. The Board rejected the defense that the appellant’s statements were privileged.
a.
This case could be distinguished from Larry v. Department of Justice, 76
M.S.P.R. 348 (1997), and Powell v. Department of Justice, 73 M.S.P.R. 29
(1997), in which employees were charged with making threats based on
statements made to an Employee Assistance Program psychotherapist or
counselor. Nevertheless, the policy concerns expressed in these decisions are
relevant here, and the Board expressed serious concern as to whether it is
appropriate for an agency to take action against an employee on the basis of
statements made to medical professionals during the course of obtaining
medical treatment when those statements are protected by a legally
recognized privilege. Whether the appellant’s statements in the medical unit
fell within the privilege could not be determined from the present record.
b. The Board need not determine whether the appellant’s statements were
covered by a privilege that precludes their use in the removal action, because
his repetition of similar statements to the Safety Manager and his associate
defeats any privilege, and contrary to his assertions, he was not compelled to
go to the conference room and make any such statements.
3. Because the first two sustained charges warranted the penalty of removal, it was
unnecessary to address the third charge.
(cid:190) Appellant: Paul E. Wright
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 69
Docket Number: SF-0842-08-0642-I-1
Issuance Date: April 24, 2009
Appeal Type: FERS - Regular Retirement Benefits
Action Type: Retirement/Benefit Matter
Retirement
- Annuities
Both parties petitioned for review of an initial decision that affirmed OPM’s
determination that he was ineligible to receive a FERS retirement annuity. After being
removed from the Postal Service, the appellant filed an application for a refund of his
FERS retirement deductions, which OPM granted, issuing a refund of $12,215.03. The
appellant thereafter applied for a Deferred or Postponed Retirement. OPM denied the
application on the ground that the refund of his retirement deductions made him
ineligible to receive a retirement annuity. On appeal to the Board, it was learned that
there was a discrepancy regarding the appellant’s marital status when he applied for and
received the refund. The application for the refund indicated he was single, but other
records indicated he was married. The appellant advised the AJ that the information on
the application was an inadvertent error, and that he was in fact married. During a
telephonic conference, OPM’s representative advised that the appellant’s incorrect
information “would not affect OPM’s decision with regard to the appellant’s
application, and that his wife would need to initiate an action to contest the refund of
the appellant’s retirement deductions in order for the agency to consider the propriety
11
of the refund.” The AJ issued a notice to the wife informing her of her right to
participate in the appeal as an intervenor. When she did not respond, the AJ issued an
initial decision affirming OPM’s determination.
On PFR, OPM states that it erred when it accepted and processed the appellant’s
refund request without verifying his marital status, and that it misadvised the AJ
regarding the spouse’s burden to contest the approval of a refund request. It asked the
Board to vacate the initial decision and remand the matter to OPM to issue a new
decision regarding the validity of the refund application and the effect of that decision
on the appellant’s application for a retirement annuity.
Holdings: The Board granted OPM’s request and remanded the matter to OPM.
It denied the appellant’s PFR, which appeared to ask the Board to reopen his
appeal of his removal from the Postal Service.
(cid:190) Appellant: Juan Pagan
Agency: United States Postal Service
Decision Number: 2009 MSPB 70
Docket Number: NY-0752-09-0037-I-1
Issuance Date: April 24, 2009
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. After serving several years as a craft employee, the appellant, a
preference-eligible veteran, received an appointment as a Postal Police Officer. Before
accepting that appointment, he signed a memorandum acknowledging that his
appointment was subject to a 180-day probationary period, during which the agency
could separate him from service at any time, and that the would have no right to
reinstatement to his former position if he were separated from the Police Officer
position. The agency terminated the appellant’s employment less than 1 year after his
appointment. On appeal to the Board, the AJ found that the appellant was not an
employee entitled to appeal a removal action under 5 U.S.C. chapter 75 because he
lacked 1 year of current continuous service in the same or similar positions.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to vacate the initial decision and remand the appeal to the regional
office for further adjudication:
1. A preference-eligible Postal Service employee has Board appeal rights under
chapter 75 only if he has completed 1 year of current continuous service in the
same or similar positions. The AJ correctly found that the appellant failed to make
a nonfrivolous allegation that he had 1 year of current continuous service as a
Police Officer, or in a similar position.
2. Nevertheless, an employee must receive notice from his employing agency
regarding the effect of a change in position before he can relinquish an agency
appointment with adverse action appeal rights to accept another appointment
within the agency that lacks such appeal rights. An employee who has not
knowingly consented to the loss of appeal rights is deemed not to have accepted the
12
new appointment and to have retained the rights incident to the former
appointment.
3. Although the memorandum the appellant signed advised him that he would
serve a 180-day probationary period, it did not state that he would temporarily lose
his chapter 75 appeal rights as well.
4.
Under Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985),
an appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue. As the appellant was not provided with
appropriate information under the circumstances of this case, a remand is
necessary.
(cid:190) Appellant: Mary L. Miklosz
Agency: United States Postal Service
Decision Number: 2009 MSPB 71
Docket Number: DE-0752-07-0422-X-1
Issuance Date: April 24, 2009
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Compliance
This case was before the Board on the AJ’s Recommendation finding the agency in
partial noncompliance. In the merits proceeding, the Board reversed a suspension.
Before the Board, the only issue still in contention was whether the appellant is entitled
to 5 hours of differential pay for the July 4, 2007 holiday.
Holdings: The Board found the agency in continued noncompliance, concluding
that the appellant was entitled to the differential pay she was seeking:
1. When calculating the amount of overtime pay due as a part of back pay, the
Board has held that it may be calculated either on the basis of the employee’s prior
assignments or the experience of similarly situated employees. An appellant’s
entitlement to holiday pay is computed on the same basis.
2. Both parties relied on the appellant’s prior history of working on holidays. The
Board found that the appellant’s past history indicated a likelihood that she would
have worked the July 4th holiday had she been given the opportunity. Had the
appellant worked on July 4, 2007, she would have been entitled to night differential
premium for this work. Accordingly, the Board found that the appellant is entitled
to the additional pay she sought.
(cid:190) Appellant: Steven L. Frank
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 72
Docket Number: SF-0831-07-0721-I-1
Issuance Date: April 24, 2009
Action Type: Retirement/Benefit Matter
13
Retirement
- Survivor Annuity
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision denying his request for a survivor annuity. The appellant
requested a survivor annuity benefit under 5 U.S.C. § 8341 as an unmarried dependent
child of a deceased federal employee who is incapable of self-support because of a
mental or physical disability incurred before the age of 18. Before OPM, the appellant
stated that he was mentally retarded, and that he had been receiving Social Security
Disability Insurance payments since 1993 (he would have turned 18 about 10 years
earlier). On appeal to the Board, the appellant claimed he was a mentally disabled child
who was incapable of self-support, that he was homeless, that he had no telephone, and
that he had been unable to obtain relevant records to support his claim. The AJ urged
the appellant to make efforts to obtain access to a telephone through a nonprofit
organization or other assistance, and stated that this would make it possible to discuss
the law and facts relevant to his appeal and to discuss whether a dismissal without
prejudice would be appropriate to allow him additional time to obtain supporting
evidence. The appellant did not respond. Based on the written record, the AJ affirmed
OPM’s reconsideration decision, finding that the appellant failed to carry his burden of
proving that he was incapable of self-support because of a mental or physical disability
incurred before age 18.
Holdings: The Board vacated the initial decision and remanded the appeal to the
regional office to determine if French procedures are appropriate:
1. Although the PFR was untimely filed, and includes documents that are dated
well before the record closed below, the Board found good cause for the
untimeliness and considered the additional evidence.
2.
In French v. Office of Personnel Management, 810 F.2d 1118 (Fed. Cir. 1987),
the court instructed the Board to establish procedures for obtaining representation
for appellants in some cases involving entitlement to disability retirement benefits,
finding that, if there is “an apparently nonfrivolous claim of past incompetence by
one presently incompetent,” the Board and OPM must take an “active role” in
ensuring that the apparently incompetent appellant not be charged with the task of
establishing his case alone. Although this is not a disability retirement case, the
same concerns are applicable.
3. The Board concluded that the evidence of record was sufficient to call into
doubt the appellant’s mental competency to prosecute his appeal pro se.
Accordingly, the Board remanded the case to the regional office so that the AJ may
determine whether French procedures should be invoked.
(cid:190) Appellant: Robert A. Nunes
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 73
Docket Number: SF-0831-08-0582-I-1
Issuance Date: April 24, 2009
Action Type: Retirement/Benefit Matter
14
Retirement
- Survivor Annuity
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision that denied his request to increase the amount of his spouse’s
survivor annuity on the ground that the request was untimely filed. When the appellant
retired in 2005, he elected a reduced annuity with a partial survivor annuity for his
spouse. In February 2008, he sought to increase the amount of the survivor annuity,
stating that, when he was completing his original annuity election, he had intended to
provide the maximum possible survivor annuity for his spouse, but that he obtained
misleading advice from an unnamed retirement counselor at his employing agency. He
said he did not realize that his election was not what he intended until he received a
notice from OPM in January 2008. OPM denied the request because the appellant
failed to make a timely change to his survivor annuity election, i.e., within 18 months
of his retirement as required by 5 C.F.R. § 831.622(b)(1).
On appeal to the Board, the appellant contended that he had received nothing from
OPM regarding his ability to change the amount of his survivor annuity election within
the first 18 months after his retirement. OPM, however, adduced evidence showing that
it had met statutory obligations to send the appellant annual notices of survivor annuity
election rights. Without making any finding regarding the appellant’s testimony that he
had not received the statutorily-imposed notice of election rights, the AJ found that the
notice proffered by OPM was sufficient to inform the appellant of his survivor annuity
election rights.
The AJ found that, under Office of Personnel Management v.
Richmond, 496 U.S. 414 (1990), OPM “cannot be estopped from enforcing a statutorily
imposed eligibility requirement.”
On PFR, the appellant argued that the annual statutorily-imposed notice of survivor
annuity election rights sent by OPM to all annuitants was inadequate. While not
admitting that he received the annual notice, he argued that he could not have learned of
his potential election rights from the notice that OPM proffered.
Holdings: The Board vacated the initial decision and remanded the appeal for
further adjudication:
1. Without reaching the issue whether the appellant was advancing a new
argument on review that is based on new and material evidence not previously
available, the Board granted the appellant’s PFR, as he suggested that, if the AJ
had considered his testimony that he did not receive the annual notice, the AJ
would have reached a different result. Because the AJ made no credibility findings
in this regard, a remand is necessary.
2. The Board also clarified the law applicable to the 18-month window in which an
annuitant may elect or increase the amount of a survivor annuity.
a. The AJ based his analysis on the wrong statutory provision, 5 U.S.C.
§ 8339(k)(2), which applies to situations in which a retiree’s marital status
changes after retirement. The appellant’s marital status had not changed,
and the applicable statute is 5 U.S.C. § 8339(o), which provides, inter alia,
that a retiree “may, during the 18-month period beginning on the date of the
15
retirement of such employee or Member, elect to have a greater portion of
the annuity of such employee or Member so used.” This provision also
requires that OPM, on an annual basis, inform each employee or Member
who is eligible to make an election of their right to do so and the applicable
procedures.
b. There are 3 bases for waiving a statutory or regulatory deadline: (1) The
statute or regulation may itself provide for waiver under certain
circumstances; (2) an agency’s affirmative misconduct may preclude
enforcement of the deadline under the doctrine of equitable estoppel; and
(3) an agency’s failure to provide a notice of rights and the applicable filing
deadline may warrant a waiver of the deadline if a statute or regulation
requires that such notice be given.
c. Here, both the second and third bases for waiver have possible application,
and need to be explored on remand.
(cid:190) Appellant: Wayne Upshaw
Agency: Consumer Product Safety Commission
Decision Number: 2009 MSPB 74
Docket Number: DC-0731-08-0563-I-1
Issuance Date: April 24, 2009
Appeal Type: Suitability
Miscellaneous Agency Actions
- Suitability
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his
suitability appeal for lack of jurisdiction. The appellant accepted the agency’s offer for
the SES position of Chief Financial Officer. Before the appellant completed the
necessary paperwork for the position, the agency received a copy of his Official
Personnel File (OPF) from the Library of Congress, where the appellant was most
recently employed, which documented his 2007 termination during his
probationary/trial period, information which the appellant had not previously provided
the Consumer Product Safety Commission. The agency then rescinded the offer of
employment. In his appeal to the Board, the appellant alleged that the agency made a
negative suitability determination and removed him from the Chief Financial Officer
position. The agency responded that it had made no determination regarding the
appellant’s suitability for federal employment, but instead withdrew the job offer before
the appellant was officially appointed to the position. After considering the parties’
responses to her jurisdictional order, the AJ dismissed the appeal without holding a
hearing. She found that, because the agency’s determination to withdraw the offer was
based on the appellant’s concealment of the fact that he had been terminated from his
last position, the agency made a suitability determination involving a material,
intentional false statement or deception or fraud in examination or appointment, but that
this determination was outside the scope of its delegated authority and beyond the
Board’s jurisdiction. The AJ further found that, to the extent the appellant argued that
16
he was removed from the position, there was no evidence showing that the appellant
was ever appointed by the authorizing authority or that he effectively entered on duty.
Holdings: The Board vacated the initial decision and remanded the case to the
regional office for a jurisdictional hearing:
1. While the Board generally has no jurisdiction over a candidate’s non-selection
for a position in the federal civil service, it does have jurisdiction over certain
matters involving suitability for employment in positions in the competitive service
and career appointments in the SES. A suitability determination is directed
toward whether the “character or conduct” of a candidate is such that employing
him would adversely affect the integrity of efficiency of the service.
2. If the evidence shows that a candidate was actually found qualified for the
position at issue, and the agency later removed him from consideration based on
one of the reasons set forth under OPM’s suitability guidelines involving the
“character or conduct” of the candidate, the Board may conclude that the
candidate was subjected to an appeable “constructive suitability determination.”
3. After considering the Supreme Court’s decisions in Landgraf v. USI Film
Products, 511 U.S. 244 (1994), and Bowen v. Georgetown University Hospital, 488
U.S. 204 (1988), the Board determined that OPM’s revised suitability regulations,
which became effective June 16, 2008, and which would exclude a “denial of
appointment” as an appealable action, cannot be applied retroactively to the
present appeal.
4. When an appellant makes a nonfrivolous allegation that the Board has
jurisdiction over an appeal, the appellant is entitled to a hearing on the
jurisdictional issue. While an AJ may consider the agency’s documentary
submissions, she may not weigh evidence and resolve conflicting assertions without
a hearing.
5. Here, taking the appellant’s allegations as true, he made a nonfrivolous
allegation that the agency made a constructive suitability determination, which
OPM authorized it do within its delegated authority, when it rescinded the offer of
employment after receiving his OPF from the Library of Congress. A
jurisdictional hearing is therefore required.
COURT DECISIONS
(cid:190) Petitioner: Floyd J. Adamsen
Respondent: Department of Agriculture
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3222 (DE-0432-07-0345-I-1)
Issuance Date: April 23, 2009
Performance-Based Actions
- OPM Approval of Performance Appraisal Systems
- Opportunity to Demonstrate Acceptable Performance
17
Mr. Adamsen, who had been a soil research scientist, challenged the Board’s
affirmance of his removal for unacceptable performance under 5 U.S.C. chapter 43.
The issues on appeal were: (1) whether OPM had approved the agency’s performance
appraisal system under which he was removed; (2) whether the agency gave him an
opportunity to demonstrate that his work was acceptable; and (3) whether his job
requirements were feasible.
Holdings: The court affirmed the Board’s ruling on the latter two issues, but held
that the record was inadequate to determine whether OPM had approved the
performance appraisal system under which Adamsen was removed. The court
therefore vacated the Board’s decision in this regard, and remanded the case for
the Board to develop the record and make additional findings and conclusions on
this issue.
1. If an agency makes changes to a previously-OPM-approved performance
appraisal system that significantly alter an employee’s performance standards and
obligations, OPM review of those changes is necessary to achieve compliance with
the basic purpose underlying the OPM-approved requirement.
2. The record shows that OPM approved the agency’s performance appraisal
system that covered the petitioner in 1986, but that changes to this performance
appraisal system were made in 1995, 1998, and 2003. On the present record, the
court could not determine what changes the agency made, how significant those
changes were, and what impact, if any, they had on the agency’s determination that
Adamsen’s performance had been inadequate. Nor could the court determine
whether the agency was required to, or did, submit those changes to OPM for
approval or whether OPM approved them. Accordingly, a remand was necessary
for the Board to develop the record and make findings on these issues.
3. Adamsen had an opportunity to demonstrate acceptable performance on the
specific deficiency relied on by the agency in effecting his removal, even though it
was not referenced in the performance improvement plan (PIP) he underwent.
This requirement was specifically communicated in the performance plan itself,
and again in a memorandum after the completion of the PIP.
4. Adamsen’s contention that acceptable job performance was not feasible was not
supported by the record.
(cid:190) Petitioner: Rickey D. Carrow
Respondent: Merit Systems Protection Board
Intervenor: Department of Veterans Affairs
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3267 (DC-3443-07-0780-I-1)
Issuance Date: May 1, 2009
Jurisdiction
Mr. Carrow petitioned for review of a Board decision dismissing his appeal of his
termination for lack of jurisdiction. After serving 5 years as an orthotist with the
Department of the Army, Carrow applied for and received an appointment to an
18
orthotist-prosthetist position with the Department of Veterans Affairs, with no break in
service. The vacancy announcement specified that the new position was excepted from
the competitive service under Title 38 and was subject to the completion of a
probationary period. In addition, the DVA’s SF-50 stated that the petitioner was
appointed to a temporary, full-time position pursuant to 38 U.S.C. § 7405(a)(1), and
that his employment status would remain “indefinite,” or “temporary,” pending
certification by the Orthotist-Prosthetist Professional Standards Board. Four months
after his appointment, Carrow was terminated for “unacceptable performance issues.”
On appeal to the Board, Carrow argued that he was entitled to the procedural
protections afforted to permanent, full-time employees in the competitive service, and
that he had not knowingly surrendered the civil service rights he had earned in his
previous position with the Army. In the initial decision dismissing the appeal for lack
of jurisdiction, the AJ found that Carrow had voluntarily accepted a temporary
appointment under 38 U.S.C. § 7405(a)(1), and because that provision allows the DVA
to appoint certain health care professionals “without regard to civil service or
classification laws, rule, or regulations,” Carrow had forfeited any appeal rights he had
in his previous position with the Army. In the alternative, the AJ held that Carrow was
ineligible for appellate rights under 5 U.S.C. § 7511 because he was a temporary,
probationary, and nonpreference eligible employee in the excepted service, who could
not satisfy the requirement of two years of current continuous service “in an Executive
agency,” because he had not completed two years of service within the DVA. The full
Board denied Carrow’s petition for review.
Holdings: The court vacated the Board’s decision and remanded for further
proceedings:
1. Carrow voluntarily accepted a temporary appointment under 38 U.S.C.
§ 7405(a)(1).
a. Despite contrary evidence in the record suggesting that Carrow was
“transferred” from his previous competitive service position within the
Army, the court held that the AJ correctly characterized him as a
probationary employee who had been appointed pursuant to 38 U.S.C.
§ 7405(a)(1).
b. The court rejected Carrow’s contention that he was not adequately apprised
of the relevant terms and conditions of his appointment within the DVA.
c. The court agreed with the AJ that Carrow failed to demonstrate any
prejudice from the DVA’s failure to follow its own internal notice
procedures.
2. The AJ erred in ruling that the petitioner’s appointment under § 7405(a)(1)
automatically excluded him from coverage under the civil service laws governing
appeals from adverse employment actions. Although individuals appointed under
§ 7405(a)(1) are generally excluded from civil service protections, there is a limited
exception to this rule for health care professionals appointed to positions listed in
§ 7401(3), which includes orthotist-prosthetists. For these individuals, “all matters
19
relating to adverse actions... shall be resolved under the provisions of Title 5 as
though such individuals had been appointed under that title.”
3. The AJ erred in holding that the petitioner could not qualify as an “employee”
under 5 U.S.C. § 7511(a)(1)(C)(ii) on the ground that this provision requires 2
years of current continuous service in the same Executive agency.
a. OPM, which is entrusted with administering the statutory provisions
governing the rights of federal employees to appeal adverse actions to the
Board, has reasonably construed the statute as not requiring that the 2 years
of current continuous service be performed within the same agency.
b. The Board has similarly ruled in published decisions that the service need
not be performed within the same agency.
4. The DVA and MSPB’s additional argument—that the petitioner had not been
employed for 2 years “under other than a temporary appointment limited to 2
years or less”—must be remanded for further adjudication. The AJ did not
address this issue, which the court found would be best addressed by the Board in
the first instance. Remand was therefore appropriate. | 48,894 | |
Case Report - April 17, 2009 | 04-17-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_17_2009_408290.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_17_2009_408290.pdf | CASE REPORT DATE: April 17, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: John D. Wightman
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 55
Docket Number: DE-0752-07-0485-A-1
DE-0752-08-0090-A-1
Issuance Date: April 15, 2009
Appeal Type: Adverse Action by Agency
Action Type: Attorney Fee Request
Attorney Fees - Reasonableness
The appellant petitioned for review of an initial decision that awarded him attorney
fees and costs in the amount of $82,768.91, arguing that the administrative judge (AJ)
improperly excluded $2,460 (12.3 hours of work) in attorney fees.
Holdings: The Board granted the appellant’s petition for review (PFR) and
affirmed the initial decision as modified, increasing the amount awarded to
$85,228.91. The Board found that the hours in question were not spent on the
appellant’s petition with the EEOC, as the AJ found, but were spent on research
and preparation of the attorney fees motion in these appeals, and are reasonable.
2
(cid:190) Appellant: Stephen Boyd
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 56
Docket Number: CH-0752-08-0732-I-1
Issuance Date: April 16, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed without good cause shown. The agency issued its decision removing
the appellant from his position as an Information Technology Specialist on July 18,
2008, making the removal effective the same date. The agency argued that the
appellant constructively received the decision letter when it was delivered on July 21 by
Federal Express, making the appellant’s appeal, filed August 21, one day late. The
appellant contended, however, that the decision letter was delivered to his daughter’s
address, and that he did not receive it until July 23, and that he calculated the filing
deadline to be August 22. Without conducting a hearing, the AJ found that the appeal
was filed one day late, and that the appellant failed to establish good cause for the one
day delay in filing.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the case for adjudication on the merits. Even assuming that the
appellant should be deemed to have received the decision on July 21, the one-day
delay was minimal, and the appellant’s miscalculation of the filing deadline was
reasonable because he did not receive adequate notice of how to calculate the
deadline. | 2,817 | |
Case Report - April 10, 2009 | 04-10-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_10_2009_406718.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_10_2009_406718.pdf | CASE REPORT DATE: April 10, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Darcy Johnson
Agency: United States Postal Service
Decision Number: 2009 MSPB 50
Docket Number: CH-0752-08-0542-I-1
Issuance Date: April 7, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction - Suspensions
Both parties petitioned for review of an initial decision that reversed one of the
appellant’s allegations of a constructive suspension and dismissed others for lack of
jurisdiction. The appellant, who was suffering from injuries to his back and knee,
requested and was granted light-duty work. His condition later worsened and he was
unable to work in any capacity for a significant period of time, but later requested to
return to light-duty work with restrictions different from those in his former light-duty
position. Although several such requests were denied by the Senior Plant Manager, a
subsequent request was approved by a Labor Relations Specialist for the period from
May 27 to June 27, 2008. She testified that this action was taken on the mistaken belief
that the appellant was entitled to work without regard to the agency’s normal criteria
for awarding light-duty assignments. When the Senior Plant Manager learned of the
action, he determined that the assignment was not properly awarded, and ordered that it
be terminated on the basis that there was a lack of productive work for the appellant.
On the basis of this determination and order, an agency official prevented the appellant
from reporting to duty in his temporary light-duty assignment. On appeal, the
administrative judge (AJ) found that the appellant failed to establish jurisdiction as to
several of his claims of a constructive suspension, but that the early termination of the
May 27 to June 27 assignment constituted a constructive suspension that must be
reversed because the appellant was not afforded notice or an opportunity to respond to
the agency’s action.
2
Holdings: The Board affirmed the initial decision in part and reversed it in part,
dismissing the appeal for lack of jurisdiction:
1. When an employee requests work within his medical restrictions, and the
agency is bound by policy, regulation, or contractual provision to offer available
work to the employee, but fails to do so, his continued absence for over 14 days
constitutes an appealable constructive suspension. Once an employee makes a
nonfrivolous allegation that he was able to work within certain restrictions, that he
communicated his willingness to work, and that the agency prevented him from
returning to work, the burden of production shifts to the agency to show that there
was no work available within the employee’s restrictions, or that it offered such
work to the employee and he declined it.
2. The termination of a light-duty assignment is not, per se, an adverse action
appealable to the Board, and thus does not require notice and an opportunity to
respond.
3. Although the agency terminated the appellant’s light-duty assignment, it did not
prevent him from returning to work in his regular duties, or from returning to
work in his prior light-duty assignment. The appellant was faced with the
unpleasant alternatives of returning to work with duties outside his medical
restrictions, or requesting leave. His decision not to return to his regular duties or
his previous light-duty work, however unpleasant, was voluntary. Accordingly, the
appellant did not suffer an appealable constructive suspension when the agency
terminated his temporary assignment due to the absence of productive work within
his medical restrictions.
(cid:190) Appellant: Melissa A. Adde
Agency: Department of Health and Human Services
Decision Number: 2009 MSPB 51
Docket Number: DC-0752-08-0410-I-1
Issuance Date: April 7, 2009
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Jurisdiction – Reduction in Pay
The appellant petitioned for review of an initial decision that dismissed her appeal
of an alleged reduction in pay for lack of jurisdiction. Employed as a nurse, the
appellant received a special salary under title 38 of the United States Code while
serving at the National Institutes of Health in Bethesda, Maryland. In 2000, her duty
station changed from Bethesda to Brussels, Belgium, but she continued to receive the
special supplementary salary rate. The agency eventually determined that the appellant
should not have received the special salary rate while working in Belgium, and reset her
salary under the provisions of 5 C.F.R. § 530.323(c). In dismissing the appeal for lack
of jurisdiction, the AJ found, inter alia, that: (1) Although a reduction in an employee’s
basic rate of pay is generally appealable to the Board, a reduction in pay from a rate
that is contrary to law or regulation is not appealable; (2) 5 C.F.R. § 530.309(d)
provides that the reduction or termination of an employee’s special salary rate
3
supplement is not an adverse action; and (3) because the agency set the appellant’s pay
rate contrary to law at the time it reassigned her to Belgium, its termination of this
erroneous special rate is not within the Board’s jurisdiction.
Holdings: The Board denied the appellant’s petition for review (PFR), reopened
the appeal on its own motion, vacated the initial decision, and remanded the appeal
for further adjudication. It determined that a remand was necessary to resolve the
conflict between the definitions of “basic rate of pay” under 5 U.S.C. chapters 75
and 53.
(cid:190) Appellant: Moises U. Cabarloc
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 52
Docket Number: SF-0752-08-0684-I-1
Issuance Date: April 7, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed. The appellant, who was removed from his position as a Nursing
Assistant effective May 23, 2008, based on the charge of unauthorized absence, filed
his appeal on August 27, 2008. As was known to the agency, the appellant was
incarcerated from February 15, 2008, until his release on July 31, 2008. On the appeal
form, the appellant asserted that he did not receive the agency’s final decision letter
until August 25, 2008. The agency stated that the letter of removal was sent to the
appellant’s home address by certified mail on May 19, 2008, but was unable to locate
the certified mail delivery verification card. In dismissing the appeal, the AJ found that
the appellant failed to show “that he exercised due diligence in timely filing his appeal
under the particular circumstances of this case.”
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case to the regional office for adjudication:
1. Under 5 C.F.R. § 1201.22(b), an appellant must file his appeal no later than 30
days after the effective date of the action being appealed, or 30 days after the date
he receives the agency’s decision whichever is later.
2. On his appeal form, the contents of which he certified were true, the appellant
alleged that he did not receive the agency’s final decision letter until August 25,
2008. The agency failed to rebut this allegation. Accordingly, the Board found
that the appeal was timely filed.
4
(cid:190) Appellant: Frank Rosato
Agency: Department of the Army
Decision Number: 2009 MSPB 53
Docket Number: SF-0752-08-0579-I-1
Issuance Date: April 7, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Mootness
The appellant petitioned for review of an initial decision that dismissed his
removal appeal as moot. While the appeal was pending, the agency indicated that it
was rescinding the removal action and filed a motion to dismiss the appeal as moot,
which the AJ granted.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal for further adjudication:
1. The Board’s jurisdiction is determined by the nature of an agency’s action at
the time an appeal is filed, and its unilateral action after an appeal has been filed
cannot divest the Board of jurisdiction unless the appellant consents or unless the
agency completely rescinds the action being appealed. For the appeal to be deemed
moot, the employee must have received all of the relief he could have received if the
matter had been adjudicated and he had prevailed.
2. In his PFR, the appellant contends in a sworn statement that had not received
any back pay or interest, and that the agency had not taken other actions to make
him whole. The appellant’s sworn statement constitutes a nonfrivolous allegation
that he has not received all appropriate relief and that his appeal is not moot.
3. While the agency has now submitted evidence that it has provided back pay and
taken other remedial action, there remains a genuine factual dispute as to whether
the appellant has received all of the relief he could have received if the matter had
been adjudicated and he had prevailed. A remand is therefore necessary.
(cid:190) Appellant: Gregg Giannantonio
Agency: United States Postal Service
Decision Number: 2009 MSPB 54
Docket Number: DE-0752-08-0191-I-1
Issuance Date: April 9, 2009
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Pay
Constitutional Issues – Due Process
Both parties petitioned for review of an initial decision that reversed the agency’s
demotion action.
The AJ found that the action must be reversed under Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), on the basis that the
agency had denied the appellant due process because the deciding official engaged in
prohibited ex parte communications. Despite this determination, the AJ made an
5
“alternative finding” in which she determined that the agency proved its charge, but that
the penalty must be mitigated to a letter of warning.
Holding: The Board denied both parties’ requests for review, but reopened the
appeal on its own motion to vacate the AJ’s alternative finding. Under Stone, when
a procedural due process violation has occurred because of ex parte
communications, “the merits of the adverse action are wholly disregarded.” The
AJ should have reversed the agency’s action without making an “alternative”
finding. Moreover, the AJ’s finding was not actually an alternative finding, which
is a finding that would support the same outcome on a different basis. | 10,742 | |
Case Report - April 3, 2009 | 04-03-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_3_2009_405288.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_3_2009_405288.pdf | CASE REPORT DATE: April 3, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Bernard Branch
Agency: Department of the Army
Decision Number: 2009 MSPB 45
Docket Number: DC-0752-09-0004-I-1
Issuance Date: March 27, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed. The appellant was removed from his position effective August 28,
2008, on the ground that he violated the terms of a last chance agreement. The
appellant submitted an appeal of his removal to the Office of the Clerk of the Board on
September 25, 2008, 28 days after the effective date off his removal. This appeal was
forwarded to the Washington Regional Office on October 1, 2008. In dismissing the
appeal, the administrative judge (AJ) found that the appeal was filed on October 1, after
the 30-day filing deadline, and that the appellant failed to show good cause for the
delay.
Holdings: The Board granted the appellant’s petition for review (PFR), reversed
the initial decision, and remanded the case to the regional office:
1. It is well settled that filing a pleading with the wrong Board office does not
render the pleading untimely. Here, the appellant timely filed her appeal on
September 25, 2008.
2. On remand, the AJ must determine whether the appellant has established that
the waiver of appeal rights in the last chance agreement is unenforceable because
(1) He complied with the agreement; (2) the agency breached it; (3) he did not
voluntarily enter into the agreement; or (4) the agreement was the product of fraud
or mutual mistake.
2
(cid:190) Appellant: Linda Galloway
Agency: Social Security Administration
Decision Number: 2009 MSPB 46
Docket Number: CB-7121-09-0001-V-1
Issuance Date: March 27, 2009
Action Type: Arbitration
Arbitration/Collective Bargaining-Related Issues
- Election of Remedy
The appellant requested review of an arbitration decision that found her grievance
of the agency’s removal action not arbitrable. In March 2007, the appellant filed a
formal EEO complaint alleging that certain employment actions were based on her age,
color, race, and reprisal, that that she was subjected to harassment and a hostile work
environment. She amended her complaint in September and October to include further
matters, including the agency’s September 27 notice of proposed removal for
unacceptable performance. The agency effected the appellant’s removal on October 29.
In November, the appellant’s union invoked arbitration on her behalf. In finding that
the matter was not arbitrable, the arbitrator determined that the matters involved in the
appellant’s EEO complaint were not separable from the removal action involved in the
grievance, and that the earlier-filed EEOC complaint constituted a valid and binding
election of forum under 5 U.S.C. § 7121(d).
Holdings: The Board granted the appellant’s request, reversed the arbitrator’s
decision, and remanded the matter to the arbitrator for further consideration:
1. The Board has jurisdiction, as (1) The subject matter of the grievance (removal)
is within the Board’s jurisdiction; (2) the appellant alleges that the action
constitutes discrimination; and (3) the arbitrator has issued a final decision.
2. The appellant made a valid and binding election of the negotiated grievance
procedure (arbitration).
a. Under 5 U.S.C. § 7121(d), an employee who is subject to a collective
bargaining agreement can elect to raise the matter under a statutory
procedure (either the EEOC complaint process or an MSPB appeal) or the
negotiated procedure, but not both. A person is deemed to have exercised
her option when she timely initiates an action under the applicable statutory
procedure or files a grievance, “whichever event occurs first.”
b. The appellant’s first and only action following her receipt of the agency’s
notice of removal was to have the union invoke arbitration of the removal
action on her behalf. This was a valid election under § 7121(d).
(cid:190) Appellant: Patchara Baumgartner
Agency: Department of Housing and Urban Development
Decision Number: 2009 MSPB 47
Docket Number: SF-0752-07-0027-X-1
Issuance Date: March 27, 2009
Compliance
- Dismissal on Proof
3
This case was before the Board on the AJ’s Recommendation finding the agency in
noncompliance with a settlement agreement. The AJ determined that compliance
required that the agency reassign the appellant to a particular position.
Holding: Following the AJ’s Recommendation, the agency took the action that the
AJ determined would constitute compliance. Finding that the agency was now in
compliance, the Board dismissed the appellant’s petition for enforcement as moot.
(cid:190) Appellant: Dorothy Luten
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 48
Docket Number: CH-0831-08-0579-I-1
Issuance Date: March 31, 2009
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
The appellant petitioned for review of an initial decision that affirmed OPM’s
decision denying her request for survivor annuity benefits. When the appellant’s late
husband submitted his retirement application on SF-2801 on May 21, 1987, he placed
his initials in a box indicating his intent to provide maximum survivor benefits to the
appellant. A portion of another box, which was not initialed by Mr. Luten, and which
would reflect a choice of an annuity without survivor benefits, contained a handwritten
notation, “Amended 2801 to come – per MSC 6/5/87... (Wants item 2).” On the same
day Mr. Luten completed the SF-2801, he and the appellant signed an OPM Form 1431,
“Spouse’s Consent to Survivor Election.” An “x” appears in a box indicating Mr.
Luten’s election of an annuity with no survivor benefits, and the appellant signed below
the statement, “I freely consent to the survivor annuity election described in part 1. I
understand that my consent is final (not revocable).” A notary public signed the form
indicating that the appellant signed the form in his presence. On May 29, 1987, Mr.
Luten executed a second SF-2801, which indicated that he elected not to provide a
survivor benefit to the appellant. The appellant did not sign any documents in
connection with the second SF-2801.
In the Board proceeding, the appellant testified that she signed the Form 1431 after
her husband showed her the original retirement application in which he elected to
provide her maximum survivor benefits. She further testified that, when she signed the
consent form at her home, there was no “x” in the box indicating that Mr. Luten was
electing an annuity with no survivor benefits, that she would not have signed the form if
there had been an “x” in this box, and that there was no notary public present when she
signed the form. In affirming OPM’s final decision, the AJ found that the appellant
provided no evidence, beyond her own assertion, that it was her husband’s intention to
provide her maximum survivor benefits, and that the documentation proved that this
was not her husband’s intention.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal to the regional office for further adjudication:
4
1. The AJ misconstrued the governing law and the appellant’s contentions on
appeal. The relevant inquiry in determining whether the appellant met her burden
of proving her entitlement to survivor benefits is whether she waived her right by
consenting to her husband’s election of a self-only annuity. The appellant was not
seeking to void her election, but was contending that she never made an effective
election at all.
2. Although the appellant’s “consent” on Form 1431 to a self-only annuity appears
to meet the requirements of 5 C.F.R. § 831.615(c), OPM’s Handbook requires that
spousal consent be given on an SF-2801-2.
3. The AJ was presented with an issue as to the relative credibility of two
declarants, the appellant who claimed that there was no “x” on Form 1431 when
she signed it and that she did not sign the form in the presence of the notary, and
the notary, who certified that the appellant signed the form in his presence.
Remand is necessary because the AJ failed to resolve these credibility issues.
(cid:190) Appellant: Lemorn B. Jones
Agency: United States Postal Service
Decision Number: 2009 MSPB 49
Docket Number: DA-0752-08-0416-I-1
Issuance Date: April 1, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
New Evidence
Penalty – Prior Record
The appellant petitioned for review of an initial decision that affirmed his removal
for unacceptable attendance. In addition to citing 11 instances of unscheduled absences
during a 3-month period, the agency noted that the appellant had received a 14-day
suspension the previous year for unacceptable attendance. On PFR, the appellant offers
new evidence—that an arbitrator has vacated the 14-day suspension.
Holdings: The Board affirmed the initial decision as modified, still affirming the
appellant’s removal:
1. When the initial decision was issued, the AJ correctly applied the Bolling rule
that the Board’s review of prior disciplinary action is limited to determining
whether that action is clearly erroneous, if the employee was informed of the action
in writing, the action is a matter of record, and that the employee was permitted to
dispute the charge before a higher level of authority than the one that imposed the
discipline. Nevertheless, the Board’s policy is to not consider prior discipline that
has been overturned in grievance proceedings.
2. The Board found that the deciding official considered the relevant Douglas
factors and that the penalty of removal is within the tolerable limits of
reasonableness for charged misconduct, even in the absence of any prior discipline. | 10,123 | |
Case Report - March 27, 2009 | 03-27-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_27_2009_403986.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_27_2009_403986.pdf | CASE REPORT DATE: March 27, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Herbert W. Hayes
Agency: Department of the Army
Decision Number: 2009 MSPB 40
Docket Number: AT-0330-06-0198-B-2
Issuance Date: March 19, 2009
Jurisdiction
USERRA/VEOA
The appellant petitioned for review of a remand initial decision that dismissed his
VEOA appeal. Previously, 109 M.S.P.R. 326 (2008), the Board vacated the initial
decision, which had dismissed the appeal for lack of jurisdiction on the ground that the
complaint with the Department of Labor (DOL) had not been filed within the 60-day
period specified in 5 U.S.C. § 3330a(a)(2)(A), in light of the decision in Kirkendall v.
Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), which held that the
statutory time limit is subject to equitable tolling. On remand, the appellant argued that
a DOL representative had misled him in a telephone conversation into believing that the
60-day deadline would not begin to run until his grievance was resolved. in dismissing
the appeal, the administrative judge (AJ) found that the appellant failed to set forth
circumstances described by the Supreme Court as justifying equitable tolling—where
the complainant actively pursued his remedies by filing a defective pleading during the
statutory period, or where he was “induced or tricked by his adversary’s misconduct
into allowing the filing deadline to pass.”
Holdings: The Board denied the appellant’s petition for review (PFR), but
reopened the appeal on its own motion and affirmed the initial decision as
modified, denying the appellant’s request for corrective action:
1. Equitable tolling does not apply in this case. Because the appellant’s telephone
conversation with the DOL representative occurred more than 6 months after the
statutory deadline for filing a VEOA complaint with DOL had passed, nothing said
2
in that conversation could be said to have induced or tricked the appellant into
missing the deadline.
2. A failure to meet the 60-day time limit is not a failure to exhaust administrative
remedies that deprives the Board of jurisdiction; instead, the request for corrective
action will be denied based on the failure to meet the time limit.
(cid:190) Appellant: Alex Bilbrew
Agency: United States Postal Service
Decision Number: 2009 MSPB 41
Docket Number: SF-0752-08-0522-I-1
Issuance Date: March 19, 2009
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Board Procedures/Authorities
- Withdrawal of Appeal
The appellant filed a request to reopen his appeal of a suspension that had been
dismissed as withdrawn. After the appeal was filed, the agency filed a motion to
dismiss for lack of jurisdiction on the ground that the appellant was not on unpaid leave
for more than 14 days. During a conference call, the appellant’s counsel withdrew the
appeal on the apparent belief that the Board lacked jurisdiction. The AJ later
discovered information showing that the appellant was suspended for more than 14 days
and held another conference call to inform the parties that she would not accept the
appellant’s withdrawal. In response, the appellant’s counsel reaffirmed his desire to
withdraw the appeal and stated his intention to pursue the matter before the EEOC
instead. The AJ then issued an initial decision dismissing the appeal as withdrawn.
More than 3 weeks after the deadline for filing a timely PFR, the appellant filed a
request to reopen his case.
Holdings: The Board dismissed the pleading, whether considered as an untimely
filed appeal or as a request to reopen:
1. The Board treats a PFR of an appellant-initiated dismissal of an appeal as a
late-filed appeal or as a request to reopen and reinstate the prior appeal.
2. Considered as a new appeal, the pleading was 5 months late, and the appellant
failed to establish good cause for the delay.
3. The Board found no basis for granting the request to reopen the appellant’s
previously dismissed appeal. The Board will not reinstate an appeal once it has
been withdrawn absent unusual circumstances, such as misinformation or new and
material evidence. The Board did not find such circumstances here. In particular,
the appellant had not alleged that the withdrawal by his counsel was against his
directions or without his knowledge.
3
(cid:190) Appellant: Gerald D. Wilson, Jr.
Agency: Department of the Army
Decision Number: 2009 MSPB 42
Docket Number: DC-315H-08-0700-I-1
Issuance Date: March 20, 2009
Action Type: Probationary Termination
Jurisdiction – Probationers
USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his appeal
of his termination for lack of jurisdiction. The appellant was terminated during his
probationary period for post-appointment reasons. In his appeal, the appellant asserted
that he was terminated because “agency officials didn’t like the fact that I was an Army
National Guard Solder at the same time I was an Army Civilian Employee.” After
considering the parties’ responses to a show-cause order, the AJ dismissed the appeal
for lack of jurisdiction, whether considered as an adverse action appeal or as a
USERRA appeal.
Holdings: The Board affirmed the initial decision regarding jurisdiction as to the
termination of a probationary employee, but vacated and remanded as to the
USERRA matter:
1. The appellant failed to establish jurisdiction under 5 C.F.R. § 315.806, as the
termination was for a post-appointment reason and the appellant did not allege
marital status or partisan political discrimination.
2. A claim of discrimination under USERRA should be broadly and liberally
construed. A weakness of the assertions in support of a claim is not a basis to
dismiss the appeal for lack of jurisdiction; an appellant’s failure to develop his
contentions is a basis for denying the request for corrective action on the merits.
The appellant’s assertion that he was terminated because “agency officials didn’t
like the fact” of his uniformed service was sufficient to establish jurisdiction.
Accordingly, the appeal must be remanded to the regional office for further
adjudication.
(cid:190) Appellant: Dexter R. Allison
Agency: Department of Transportation
Decision Number: 2009 MSPB 43
Docket Number: CH-0752-06-0703-X-1
Issuance Date: March 24, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
This case was before the Board on the AJ’s Recommendation that the Board grant
the appellant’s petition for enforcement and reinstate the underlying appeal. The
appellant’s removal appeal was resolved by a settlement agreement that strictly limited
4
the nature and content of information that could be provided to a prospective employer
to the dates of his employment, position held, and wage information. The agency
provided information to a prospective employer that included references to the removal
action. The AJ found that the agency breached the agreement, that its breach was
material, and recommended that the Board vacate the initial decision dismissing the
appeal as settled and reinstate the appeal.
Holding: The Board concurred with the AJ that the agency materially breached its
obligations under the settlement agreement. Accordingly, it vacated the initial
decision and forwarded the case to the regional office for reinstatement of the
appellant’s appeal of his removal.
(cid:190) Appellant: Armida G. Chavez
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 44
Docket Number: DE-844E-08-0296-I-1
Issuance Date: March 26, 2009
Appeal Type: FERS - Employee Filed Disability Retirement
Action Type: Retirement/Benefit Matter
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
denial of her application for disability retirement benefits. Although the AJ concluded
that the appellant established that she was disabled, he found that the appellant failed to
establish that she could not be accommodated in her position with the Postal Service as
a City Letter Carrier.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision
and OPM’s final decision, and ordered OPM to award disability retirement
benefits to the appellant:
1. Based on the evidence from both the appellant’s treating physician and her
supervisor, and on her own subjective description of her inability to work, the
Board found that the appellant had shown that she is precluded from useful and
efficient service or retention in her position.
2. The Board reversed the AJ’s determination that the appellant failed to establish
that she could not be accommodated in her position. Where an agency certification
that accommodation is unavailable is unrebutted, and the record supports the
conclusion that accommodation would not be possible, the accommodation
criterion for obtaining disability retirement is satisfied. | 9,183 | |
Case Report - March 20, 2009 | 03-20-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_20_2009_402486.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_20_2009_402486.pdf | CASE REPORT DATE: March 20, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Jeanell M. Brown
Agency: Department of Defense
Decision Number: 2009 MSPB 32
Docket Number: CH-0752-08-0415-I-1
Issuance Date: March 12, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Split-Vote Decisions
The appellant petitioned for review of an initial decision that affirmed her removal.
Holding: Because the two Board members could not agree on a disposition, the
initial decision became the Board’s final decision. The issue in the case was
whether the Egan rule limiting the scope of Board review of a removal decision
based on the revocation of a security clearance also applies to a removal from a
“non-critical sensitive” position due to the employee’s having been “denied
eligibility for access to classified information and/or occupancy to a sensitive
position.” Chairman McPhie issued an opinion explaining why he would answer
that question in the affirmative. Vice Chairman Rose issued an opinion explaining
why she would have found that the Board has the authority to review the merits of
the agency determination on which the appellant’s removal was based.
(cid:190) Appellant: Dom Wadhwa
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 33
Docket Number: PH-1221-08-0019-W-1
Issuance Date: March 13, 2009
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Protected Disclosure
2
- Contributing Factor
- Clear and Convincing Evidence
The appellant petitioned for review of an initial decision that denied his request for
corrective action. The appellant is a physician at a Veterans Administration Medical
Center (VAMC). In his IRA appeal, he claimed that he was reassigned in retaliation for
having disclosed safety violation at the VAMC. Although the administrative judge (AJ)
found that the Board had jurisdiction over the appeal, she denied the appellant’s request
for corrective action on the merits, finding that: he failed to show that he made
protected disclosures; even if he had made protected disclosures, he failed to establish
that they were a contributing factor in his reassignment; and that, even if the disclosures
were a contributing factor, the agency showed by clear and convincing evidence that
would have reassigned the appellant anyway.
Holdings: The Board denied the appellant’s petition for review (PFR), but
reopened on its own motion to affirm the initial decision as modified, still denying
the request for corrective action:
1. The AJ erred in finding that the appellant’s disclosures were not protected.
a.
Although the AJ correctly found that the appellant raised a specific threat to
public health and safety, she erred in concluding that the disclosures were
not protected under Meuwissen v. Department of the Interior, 234 F.3d 9
(Fed. Cir. 2000), on the ground that a disclosure of something that is already
publicly known is not protected under the WPA. An employee’s decision to
go outside the chain of command to correct a problem that local
management has failed to address is protected under the WPA.
b. The AJ also erred on the facts in relying on Meuwissen when she stated that
“many of the safety devices or strategies, or lack thereof, would have been
apparent to anyone would walked into the hospital.” The appellant did more
than merely restate observable facts. As a physician practicing at the
facility, he provided a perspective not discernable to members of the visiting
public by recognizing the potential threat to medical providers’ safety that
the lack of security caused.
c. The AJ erred in interpreting the “publicly known” test too restrictively. In
its decisions in Meuwissen, Huffman, and Horton, the Court of Appeals for
the Federal Circuit examined whether the statutory purpose of affording a
remedy for alleged government wrongdoing would be served in determining
that the subject statements were not “disclosures” within the meaning of the
WPA. In contrast, the remedial purpose of the WPA is furthered by
encouraging employees to bring attention to alleged threats to safety that are
ignored by local management, and based upon facts which, even if known to
the public, do not necessarily indicate a safety threat without also
considering additional information not publicly known.
2. The AJ erred in concluding that the appellant failed to establish that his
protected disclosure was a contributing factor in his reassignment. Under the
“knowledge/timing test,” an appellant can prove the contributing factor element
through evidence that the official taking the personnel action knew of the
3
whistleblowing disclosure and took the action within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor.
Here, the reassignment took place within 6 months of the protected disclosure, well
within the range of time from which an inference of causation arises.
3. After considering the pertinent evidence, the Board agreed with the AJ’s
conclusion that the agency established by clear and convincing evidence that it
would have reassigned the appellant in the absence of his protected disclosures.
(cid:190) Appellant: Dom Wadhwa
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 34
Docket Number: PH-1221-08-0502-W-1
Issuance Date: March 13, 2009
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Personnel Actions
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. In this appeal, the appellant alleged that the agency took
3 personnel actions in retaliation for the same whistleblowing disclosures described in
the appeal described above.
Holdings: The Board granted the appellant’s PFR, but affirmed the initial decision
as modified, still dismissing the appeal for lack of jurisdiction:
1. The AJ erred in finding that the doctrine of collateral estoppel precluded the
appellant from relitigating whether his disclosure was protected. The doctrine
does not apply to a jurisdictional dismissal because the legal issues involved are not
identical. Moreover, there was no final judgment in the earlier-litigated appeal.
2. For the reasons described in the Board’ decision in 2009 MSPB 34, the AJ erred
in finding that the appellant’s disclosure was not protected.
3. The appellant failed to make a non-frivolous allegation of Board jurisdiction
over his IRA appeal because none of the alleged personnel actions—reading him
his Miranda rights and advising him that he was under investigation for alleged
threat; staging an incident in an attempt to arrest him; or subjecting him to an
unreasonable search and seizure—are covered personnel actions under the WPA,
5 U.S.C. § 2302(a)(2)(A).
(cid:190) Appellant: Michael J. Axsom
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 35
Docket Number: DC-0752-08-0669-I-1
Issuance Date: March 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
4
Jurisdiction – Resignation
USERRA/VEOA
The appellant petitioned for review of an initial decision that dismissed his appeal
of an allegedly involuntary resignation for lack of jurisdiction. Although stationed in
Washington, D.C., the appellant was spending much of his time in North Carolina to
care for his father, who suffers from a serious medical condition. Although the agency
allowed the appellant to work a compressed schedule and granted leave under the
Family Medical Leave Act, it instructed the appellant to return to work in Washington
by September 1, unless he provided medical documentation to support a new FMLA
leave request. The appellant did not receive this instruction until August 28, and asked
for an extension the same day. In a follow-up e-mail the next day, he said he would
resign if the extension was denied. On August 30, not having received a response to his
request, the appellant faxed his resignation, effective September 1. After filing a
formal EEO complaint and receiving a final agency decision, the appellant filed an
appeal with the Board alleging that his resignation was involuntary. The AJ dismissed
the appeal for lack of jurisdiction, finding that the appellant failed to present
non-frivolous allegations that his resignation was involuntary.
Holdings: The Board denied the appellant’s PFR, but reopened on its own motion
to affirm the initial decision as modified, still dismissing the appeal for lack of
jurisdiction:
1. An involuntary resignation is equivalent to a forced removal and is a matter
within the Board’s jurisdiction.
2. The appellant clearly and repeatedly asserted that he did not want a hearing.
Accordingly, the issue was not whether he raised a non-frivolous allegation of
jurisdiction, but whether he established jurisdiction by a preponderance of the
evidence.
3. After considering the pertinent evidence, the Board concluded that the
appellant failed to establish that resignation was involuntary. The AJ’s error was
therefore harmless.
(cid:190) Appellant: Edward D. Fry
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 36
Docket Number: AT-0842-08-0453-I-1
Issuance Date: March 13, 2009
Appeal Type: FERS - Regular Retirement Benefits
Action Type: Retirement/Benefit Matter
Split-Vote Decisions
Retirement – Service Credit
OPM petitioned for review of an initial decision that reversed its decision denying
the appellant’s application for immediate retirement. That decision turned on whether
the appellant would receive service credit for service from 1985 to 1989 for which he
had applied for and received a refund for his FERS retirement contributions. Although
that fact would ordinarily preclude an individual from getting service credit, the AJ
5
determined that OPM must give effect to the determination of the Chief Administrative
Officer of the appellant’s former employer that the appellant had been provided with
incomplete and incorrect advice regarding the refund, and that the appellant should be
deemed to have been on leave without pay for the period in question. The employing
agency provided OPM with an amended individual retirement record (IRR) that
reflected the additional period of creditable service. OPM declined to honor the
amended IRR, finding that it constituted “an artifice to circumvent the substantive
requirements of the retirement law.”
Holding: Because the two Board members could not agree on a disposition, the
initial decision became the Board’s final decision. Chairman McPhie issued an
opinion explaining why he would have granted OPM’s petition for review. Vice
Chairman Rose issued a separate opinion explaining why she believed the AJ
reached the correct result.
(cid:190) Appellant: Fernando S. Eagleheart
Agency: United States Postal Service
Decision Number: 2009 MSPB 37
Docket Number: SF-0752-06-0167-C-1
Issuance Date: March 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance - Settlement Related
The appellant petitioned for review of an initial decision that denied his petition
for enforcement of a settlement agreement that resolved his removal appeal. Under the
agreement, the appellant agreed to withdraw his appeal; in exchange, the agency agreed
to rescind the removal and allow the appellant to resign for personal reasons. Six days
after the settlement was reached, the agency issued a PS-50 documenting the appellant’s
separation as a resignation, but the “Remarks” section stated: “Last Day In Pay Status
Pending Inspection Service Case....” More than 3 months later, the agency issued a
corrected PS-50 with a notation stating, “Resignation—Voluntary for Personal
Reasons.” At some point after the settlement was reached, the appellant applied for a
job with and was hired by the Department of Veterans Affairs (VA). The VA proposed
his removal based on his failure to disclose that he had resigned from the agency by
mutual agreement because of specific problems. The appellant and the VA thereafter
entered into a last chance agreement in which the removal was held in abeyance. The
appellant thereafter filed a petition for enforcement with the Board in which he alleged
that the agency breached the agreement by issuing a PS-50 indicating that he resigned
pending an inspection service case, and failing to issue a correct PS-50 for more than 3
months. The AJ denied the PFE, finding that the appellant failed to establish that the
agency materially breached the settlement agreement.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case to the regional office for further adjudication:
1. Although the settlement agreement did not specifically address the agency’s
obligation to issue an updated PS-50 documenting the appellant’s voluntary
resignation, such action was required because the clear intent of the agreement was
6
to eliminate negative information associated with the rescinded removal which
would adversely affect future employment with the government or elsewhere.
2. Under the circumstances, the agency’s delay of more than 3 months in issuing a
corrected PS-50 was unreasonably long, and was a breach of the agency’s
obligations.
3. The AJ erred in finding that the agency’s delay did not constitute a material
breach of the agreement on the basis that the delay did not have a material effect
on the appellant’s ability to secure employment with the DVA. The agency’s
breach was material because it relates to a matter of vital importance and goes to
the essence of the contract. The appellant was not required to establish that the
breach had an effect on his ability to apply for or obtain other employment.
4. Notwithstanding the above finding, there was a preliminary matter not
addressed below that must be considered on remand—the timeliness of the petition
for enforcement. A PFE must be filed within a reasonable time after the petitioner
becomes aware of the breach. It is unclear from the current record when the
appellant became aware of the alleged breach.
5. If the AJ finds that the enforcement petition was timely filed, and that the
agency materially breached the settlement agreement, the appellant must be
permitted to make an informed choice between rescinding and enforcing the
agreement. If the appellant chooses to rescind the agreement, the removal appeal
must be adjudicated on its merits.
(cid:190) Appellant: Sean D. Henson
Agency: United States Postal Service
Decision Number: 2009 MSPB 38
Docket Number: DA-0752-08-0230-I-1
Issuance Date: March 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Discrimination – Disability
USERRA/VEOA
The appellant petitioned for review of an initial decision that affirmed his removal
on a charge of “Failure to Maintain Regular Attendance/Absence Without Permission
(AWOL).” The appellant contended that, because he was hired as a disabled veteran
and his medical problems resulted from his military service, the agency discriminated
against him on the basis of his service-connected disability. The AJ found that the
agency proved its charge, that the appellant failed to establish that the agency
discriminated against him on the basis of disability, and that the removal penalty was
reasonable and promoted the efficiency of the service.
Holdings: The Board granted the appellant’s PFR, affirmed the initial decision in
part, and remanded the case to the regional office for further adjudication:
1. The Board affirmed the AJ’s findings with respect to the affirmative defense of
disability discrimination. The appellant did not establish that he is a “qualified
individual with a disability,” as he never identified or requested any
7
accommodation that would have allowed him to meet the requirements of his
position and maintain regular attendance.
2. Turning to the appellant’s apparent attempt to raise a USERRA claim on PFR,
when an appellant raises a claim of disability discrimination based on an injury
incurred during military service, the fact that the injury was incurred during
military service is incidental to the claim of disability discrimination and does not
make the appellant’s claim a USERRA claim.
3. Regarding the appellant’s other USERRA and VEOA claims, these must be
remanded for further adjudication because the AJ did not provide an adequate
Burgess notice regarding what is required to establish jurisdiction.
(cid:190) Appellant: Lavera Ellison
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 39
Docket Number: DC-831M-08-0479-I-1
Issuance Date: March 13, 2009
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
- Annuity Overpayment - Waiver
OPM petitioned for review of an initial decision that reversed its reconsideration
decision and ordered OPM to refund the $11,207 it had withheld from the appellant’s
survivor annuity payments. In a previous Board proceeding, it was determined that the
appellant was entitled to a survivor annuity even though the decedent had not elected
one for the appellant as a former spouse, because OPM had not provided the decedent
with notices required by law that would have informed him of his right to elect a
reduced annuity to provide for a survivor annuity, and the decedent’s conduct was
consistent with his having made a post-divorce election to provide a survivor annuity to
the appellant. OPM then notified the appellant that the survivor annuity payments to
which she was entitled under the Board’s decision had accrued to $15,908, but that the
cost of the survivor annuity benefit, i.e., the amount by which the decedent’s annuity
should have been reduced to cover the benefit was $11,207, and that it would pay her
only the remaining $4,701. On appeal to the Board, the AJ found that there had been an
overpayment of $11,207, but that the recovery of this overpayment was subject to
waiver under OPM’s regulations, and that the appellant had shown that she was entitled
to such a waiver.
On PFR, OPM contends that the money at issue is not subject to the waiver
provisions on which the AJ relied, and that payment of this amount is necessary to
establish entitlement to the survivor annuity.
Holdings: The Board granted OPM’s PFR and affirmed the initial decision as
modified, still reversing OPM’s reconsideration decision and finding that the
appellant is entitled to the relief ordered by the AJ:
8
1. After reviewing the text and legislative history of both the Civil Service Spouse
Equity Act of 1984, the 1993 amendments to that law, and OPM’s implementing
regulations for both, the Board concluded that a retiree who elects to provide a
survivor annuity for his former spouse is subject to two separate reductions: one is
the actuarial reduction that reflects the cost of providing the survivor annuity up
to the time of the election; the other is the “regular survivor reduction” that
reflects the subsequent cost of providing the annuity. In effect, the AJ found that
the entire amount in controversy was attributable to the “regular survivor
reduction,” and the Board saw no error in that finding.
2. Recovery of an overpayment resulting from a failure to make the “regular
survivor reduction” is subject to waiver provisions of 5 C.F.R. Part 831,
Subpart N. OPM has shown no error in the AJ’s determination that waiver of the
entire amount of the overpayment is warranted. | 19,708 | |
Case Report - March 13, 2009 | 03-13-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_13_2009_400860.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_13_2009_400860.pdf | CASE REPORT DATE: March 13, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Brian A. Miller
Agency: United States Postal Service
Decision Number: 2009 MSPB 22
Docket Number: CH-0752-08-0500-I-1
Issuance Date: March 6, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Harmful Error
Due Process
New Evidence
The appellant petitioned for review of an initial decision that sustained his removal
for failure to maintain regular attendance. The agency attempted to deliver its notice of
proposed removal to the appellant via certified mail, Express Mail, and first-class mail.
The Express Mail letter was returned to the agency as unclaimed, where it was signed
for by “JHARRIS.” About 6 weeks later, the agency issued a final decision effecting
the appellant’s removal. Before the Board, the appellant asserted that the agency
committed harmful error because he never received the notice of proposed removal “in
person” and was not given the proposal notice in time to file a grievance. The AJ found
that the agency proved its charge and rejected the appellant’s defense of harmful error.
She determined that James Harris, the appellant’s representative in the Board
proceeding, had received the notice of proposed removal on his behalf when it was
returned as unclaimed. She also determined that the appellant was not deprived of his
right to file a timely grievance, and that removal was a reasonable penalty.
Holdings: The Board granted the appellant’s PFR, but sustained his removal,
affirming the initial decision as modified:
1. The appellant failed to present evidence that the agency was required to issue
the notice of proposed removal in person. Accordingly, the AJ properly held that
the appellant failed to establish harmful error in this respect.
2
2. The Board concluded that the AJ erred in finding that the appellant’s
representative received the notice of proposed removal on his behalf when the
Express Mail letter was returned to the agency unclaimed.
a. The Board will consider evidence submitted for the first time on PFR when
the party was not put on notice of the nature of a dispositive issue until the
issuance of the initial decision. Here, the appellant could not have
anticipated that the AJ would match the name on the delivery confirmation
for the unclaimed Express Mail letter with the name of the appellant’s
representative and infer that Mr. Harris signed for the unclaimed letter as
the appellant’s representative.
b. The Board credited Mr. Harris’s statement that he signed for the unclaimed
letter as part of his official job duties, not as the appellant’s representative,
and that he placed the letter unopened on the supervisor’s desk.
3. Even if the appellant could prove that he failed to receive both the Express Mail
letter and the certified letter, such failure does not constitute harmful error by the
agency, as the appellant has not cited a law, rule, that required the agency to send
the notice by Express Mail or certified mail. Nor has he demonstrated that any
such error likely would have caused the agency to reach a different decision.
4. There is no denial of minimum due process of law, because the appellant failed
to submit evidence that he did not receive the proposal notice sent via first-class
mail.
5. There is no error in the AJ’s findings with respect to the merits of the charge,
nexus, or the reasonableness of the removal penalty.
(cid:190) Appellant: Scot R. Winlock, Sr.
Agency: Department of Homeland Security
Decision Number: 2009 MSPB 23
Docket Number: DA-0752-08-0261-I-1
Issuance Date: March 6, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Performance-Based Actions
The agency petitioned for review of an initial decision that reversed its removal
action. The appellant was a Transportation Security Manager with the Transportation
Security Administration (TSA). The removal was based on his unsatisfactory
performance in that he failed two Standard Operating Procedure Quizzes (SOPQs),
thereby receiving a “Does Not Meet Standards” performance rating in a critical element
of his performance plan. On appeal to the Board, the AJ found that the agency failed to
prove that the appellant’s performance was unsatisfactory and reversed his removal.
Holdings: The Board granted the agency’s PFR, reversed the initial decision, and
sustained the removal action:
3
1. Because the appellant is a TSA employee, the appeal is governed by the
provisions of Aviation and Transportation Security Act (ATSA) and the personnel
management system of 49 U.S.C. § 40122.
2. Although chapter 75 of title 5, United States Code does not apply to such
appeals, the substance of the standards applicable to TSA employees under ATSA
and the FAA personnel management system are the same as under chapter 75, i.e.,
an employee may be removed “for such cause as will promote the efficiency of the
service,” there must be a nexus between a legitimate government interest and the
matter that forms the basis for the action, the penalty must be appropriate taking
into account the relevant Douglas factors and other relevant considerations, and
the agency must prove its case by a preponderance of the evidence.
3. In reversing the agency’s action, the AJ gave significant weight to the fact that
the appellant failed only one portion of a critical element, and received an
“Achieves Standards” rating on 5 other critical elements and other portions of the
critical element in question. The agency presented evidence that a Security
Manager’s technical knowledge of standard operating procedures as measured by
the SOPQ’s is so important that it is an essential component of the critical element
in question. The managers of federal agencies, not the Board, have the authority to
decide what agency employees must do in order to perform acceptably in their
particular positions.
4. The agency’s decision to discontinue the SOPQs in 2008 is not an indication that
the agency thought the quizzes were not a valid measure of Security Manager’s
technical proficiency. Management expertise resides with the agency, not the
Board.
5. The Board rejected the AJ’s finding that there was no evidence that the SOPQs
were an adequate measure of the appellant’s performance. An agency has
considerable discretion to determine what the performance elements for a position
will be and how they will be measured. The performance standards at issue in this
appeal were not an abuse of the agency’s broad management discretion.
6. Based on the undisputed facts of record, the appellant did not meet his
performance standards.
7. The removal penalty did not constitute an abuse of the agency’s broad
discretionary authority.
4
(cid:190) Appellant: Sahedou Ousman
Agency: Department of Agriculture
Decision Number: 2009 MSPB 24
Docket Number: NY-315H-01-0301-I-1
Issuance Date: March 6, 2009
Timeliness - PFR
The appellant petitioned for review of an initial decision issued in 2001 that
dismissed his appeal for lack of jurisdiction.
Holding: The Board dismissed the appellant’s PFR as untimely filed without good
cause shown for the more than 7-year delay in filing.
(cid:190) Appellant: William H. Armstrong
Agency: Department of the Treasury
Decision Number: 2009 MSPB 25
Docket Numbers: DC-0752-08-0188-C-1
DC-0752-08-0188-I-1
Issuance Date: March 6, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Settlement
- Validity
Timeliness - PFR
Compliance
The appellant petitioned for review of a February 2008 initial decision that
dismissed his removal appeal pursuant to a settlement agreement, and for review of a
July 2008 compliance initial decision that denied his petition for enforcement. The
appellant, a GS-14 Criminal Investigator, applied for a job with the Department of
Agriculture (USDA) and, in August 2007, received a job offer. Soon after, the USDA
received anonymous letters the appellant alleged were written by Treasury employees
accusing him of serious misconduct, which he alleged resulted in a hold on his job
offer. In September, the agency proposed his removal, which it effected in December.
On appeal to the Board, the parties entered into a settlement agreement under which the
agency agreed to substitute a 30-day suspension for the removal. The agreement
generally prohibited the agency from providing USDA with any information regarding
the rescinded penalty, contained specific limitations on responses to employment
inquiries, and negotiated the text of the agency’s response to USDA’s January 2008
request for information regarding the disposition of the appellant’s disciplinary matter,
which remained unanswered at the time of the settlement.
In May 2008, the appellant filed a pleading asking that the settlement agreement be
set aside or, in the alternative, a petition for enforcement including a motion for
sanctions. The appellant alleged that the settlement agreement “was a product of fraud
and misrepresentation” that “vitiated the entire premise and benefit on which [the
appellant] agreed to enter a settlement with the Agency.” Specifically, the appellant
5
claimed that the agency induced him into signing the settlement agreement by
misrepresenting the nature and extent of contacts between agency personnel and the
hiring official for USDA.
Holdings: The Board dismissed the appellant’s PFR of the initial decision that
approved the settlement agreement as untimely filed without good cause shown for
the delay, and denied the appellant’s PFR of the compliance initial decision for
failing to meet the Board’s criteria for review:
1. The appellant’s request to invalidate the settlement agreement was filed 2
months after the deadline for filing a timely PFR. The appellant argued that the
delay should be excused because he did not become aware of the evidence on which
he relies to set aside the agreement until May 20, 2008, just 8 days before filing the
PFR.
2. To establish good cause for an untimely PFR, an appellant must show that he
exercised due diligence once he becomes aware of the evidence he claims
establishes a valid reason to set aside the settlement agreement, but the evidence
must be of sufficient weight to warrant a different outcome. Here, the appellant
acted with due diligence once he became aware of the evidence on which he relies,
but the evidence did not warrant a different outcome.
3. After analyzing the pertinent evidence, the Board concluded that the appellant
did not establish that the agency fraudulently induced him into signing the
settlement agreement by misrepresenting the nature and extent of contacts between
agency personnel and USDA’s hiring official.
4. The appellant’s PFR effectively abandoned the compliance appeal.
Accordingly, the PFR in that appeal is denied for failing meet the requirements of
5 C.F.R. § 1201.115.
(cid:190) Appellant: Ermea J. Russell
Agency: Equal Employment Opportunity Commission
Decision Number: 2009 MSPB 26
Docket Number: AT-3443-04-0915-M-1
Issuance Date: March 9, 2009
USERRA/VEOA Veterans’ Rights
This case was before the Board by order of the U.S. Court of Appeals for the
Federal Circuit, No. 2008-3106 (Nov. 18, 2008) (NP). In its first reported decision, 104
M.S.P.R. 14 (2006), the Board found that it had jurisdiction over the appellant’s
USERRA claim notwithstanding her filing a grievance under a collective bargaining
agreement, and remanded the case to the AJ. After the AJ denied the appellant’s
request for corrective action on the merits, the Board concluded that the Federal
Circuit’s decision in Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007),
required dismissal of the case for lack of jurisdiction. On appeal to the court, the court
determined that the appellant’s statutory right to appeal the matter to the Board is not
governed by Pittman, and not foreclosed by the election requirements of 5 U.S.C.
§ 7121(e)(1).
6
Holdings: The Board affirmed the AJ’s denial of the appellant’s USERRA claim
on the merits. It found that the AJ properly analyzed the facts and the applicable
law both as a reemployment claim and as a discrimination claim under USERRA.
(cid:190) Appellant: Omar E. Rivera
Agency: Department of the Air Force
Decision Number: 2009 MSPB 27
Docket Number: AT-3443-08-0301-R-1
Issuance Date: March 10, 2009
USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
USERRA claim for lack of jurisdiction. Relying on the Board’s decision in Russell v.
Equal Employment Opportunity Commission, 107 M.S.P.R. 171 (2007), the AJ
concluded that the Board lacks jurisdiction over USERRA cases in instances where an
appellant has a right to pursue the matter under a negotiated procedures.
Holding: Pursuant to the Federal Circuit’s decision in Russell, No. 2008-3106
(Nov. 18, 2008) (NP), and the Board’s decision on remand, 2009 MSPB 26, an
employee may bring a USERRA appeal if he is otherwise covered by a collective
bargaining agreement. Accordingly, the Board has jurisdiction and the appeal
must be remanded for adjudication.
(cid:190) Appellant: Johnny Gonzalez
Agency: Department of Homeland Security
Decision Number: 2009 MSPB 28
Docket Number: AT-3443-08-0260-X-1
Issuance Date: March 11, 2009
Compliance
USERRA/VEOA/Veterans’ Rights
This case was before the Board on the AJ’s Recommendation finding the agency in
noncompliance with a final Board order. In the merits proceeding, the AJ determined
that an individual on military duty could not be appointed to a civilian position unless
he or she was on terminal leave from the military. Since the person selected for the
vacancy at issue was not on terminal leave at the time of his selection, the AJ concluded
that the appointment was illegal and ordered the agency to reconstruct the selection
process. The appellant filed a petition for enforcement complaining that the agency’s
reconstruction process resulted in the same individual being selected for the position.
The AJ recommended that the agency be required to reconstruct the selection process
without considering the individual originally selected by the agency.
Before the full Board, the agency presented evidence that, in reconstructing the
selection process, it asked the selecting official about what he would have done under
various circumstances, and the selecting official advised that, if he had known of the
selectee’s nonavailability as of the date of selection, he would have waited for the
selectee’s availability “through January 2008, but not to 1 April 2008.” The appellant
7
argued that delaying the selectee’s start date until he became eligible on January 17,
2008 was not a viable option, in that waiting 6 months after the closing of the job
announcement for the sole purpose of allowing the selectee to become eligible is a
prohibited personnel practice because it would grant a preference or advantage not
authorized by law, rule, or regulation. He also argued that the Board’s final decision
required the agency to reconstruct the selection process by considering the candidates
who were eligible for appointment on the date of the original selection.
Holding: The Board dismissed the petition for enforcement as moot, finding that
the agency was in compliance with its obligations. The Board concluded that the
appellant did not establish that the delay in the start date was contrary to law,
rule, or regulation. The record shows that the agency had already waited months
to fill the position, so it does not strain credulity that the selecting official would
have waited an additional 39 days.
(cid:190) Appellant: Yuri J. Stoyanov
Agency: Department of the Navy
Decision Number: 2009 MSPB 29
Docket Number: DC-0752-08-0466-I-1
Issuance Date: March 11, 2009
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Split-Vote Decisions
This case was before the Board on PFR of an initial decision which affirmed the
agency’s indefinite suspension action.
Holdings: Since the two Board members could not agree on the disposition of the
PFR, the initial decision became the Board’s final decision.
Chairman McPhie
issued a separate decision expressing his belief that this case stands at the
intersection of Department of the Navy v. Egan, 484 U.S. 518 (1988), which
mandates that the Board not review the underlying merits of an agency’s action to
revoke an employee’s security clearance, and Cheney v. Department of Justice, 479
F.3d 1343 (Fed. Cir. 2007), which held that 5 U.S.C. § 7513(b) entitles an employee
to notice of the reasons for placing the employee on enforced leave pending a
decision on the employee’s security clearance. Under the circumstances of this
case, Chairman McPhie would have found that the appellant’s right to notice of the
reasons for the suspension of his access to classified information has been violated.
8
(cid:190) Appellant: Andy Boctor
Agency: United States Postal Service
Decision Number: 2009 MSPB 30
Docket Number: SF-3330-08-0322-I-1
Issuance Date: March 11, 2009
Appeal Type: Veterans Employment Opportunities Act
USERRA/VEOA/Veterans’ Rights
The agency petitioned for review of an initial decision that found that it violated
the appellant’s veterans’ preference rights under VEOA. The agency issued 2 separate
vacancy announcements for the position of sales specialist, one which was restricted to
current employees, and one which was open to external applicants. The appellant, who
was not an agency employee, submitted an application under the external
announcement. After considering internal candidates only, the agency made a selection
and canceled the external announcement. On appeal to the Board, the AJ found that the
agency had violated the appellant’s right to compete for the position under 5 U.S.C.
§ 3304(f)(1).
On PFR, the agency argued that, in Brandt v. Department of the Air Force, 103
M.S.P.R. 671 (2006), the Board made an implicit distinction between when external
applications are solicited and when external applicants are considered, and that
veterans’ preference concepts are applicable “only once any external candidates are
considered.” The agency argued that, because it did not consider any of the external
candidates, it was permitted to hire an internal candidate without considering the
appellant or any other external candidate.
Holdings: The Board affirmed the initial decision as modified, still granting the
appellant’s request for relief and ordering the agency to reconstruct the selection
process:
1. Brandt did not make the distinction urged by the agency. The plain language of
5 U.S.C. § 3304(f)(1) shows that a preference eligible’s right to compete for an
announced vacancy arises whenever “the agency making the announcement will
accept applications from individuals outside its own workforce,” not just when it
considers those applications it indicated a willingness to accept.
2. The Board rejected the agency’s argument that it was not required to consider
the appellant because its own procedures required it to consider qualified internal
candidates before considering external candidates. An agency’s internal
procedures cannot override its statutory obligations.
3. The AJ’s order for relief could be regarded as requiring the agency to consider
not only the appellant, but every other qualified candidate who applied under
either announcement. The agency need not consider all candidates who applied
under the external announcement, only those who are preference eligibles or
qualified veterans.
9
(cid:190) Appellant: Raymond Sanchez, Jr.
Agency: Department of Homeland Security
Decision Number: 2009 MSPB 31
Docket Number: DE-0752-07-0075-X-1
Issuance Date: March 11, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
Settlement - Breach
This case was before the Board pursuant to the AJ’s Recommendation finding the
agency in noncompliance with a settlement agreement, and recommending that the
appellant be afforded the opportunity to have his underlying appeal reinstated or,
alternatively, to have the settlement agreement enforced absent a specific provision.
Under the settlement agreement that resolved the agency’s removal action, the appellant
agreed to voluntarily resign effective May 1, 2008, and submit a retirement application
so that it would be effective the same date. The agency agreed to place him in a leave
without pay status from the date of his removal until May 1, 2008, and to allow the
appellant to retire as a Criminal Investigator.
The appellant filed a petition for enforcement after the agency issued a decision in
April 2008 that removed him from the federal service effective June 8, 2007. The
agency admitted that this action materially breached the settlement agreement, but
asserted that it was required to implement the appellant’s retroactive removal because
the appellant had been convicted of a second degree felony, and 5 U.S.C. § 7371(b)
requires that a law enforcement officer (LEO) convicted of a felony be removed from
employment as a LEO on the first day of the pay period following the conviction.
Holdings: The Board agreed with the AJ’s determination that the agency was in
noncompliance, but ordered that the settlement agreement be enforced as modified
by the Board:
1. Generally, when a party to a settlement agreement materially breaches the
agreement, the non-breaching party may elect to enforce the terms of the
agreement or to rescind the agreement and reinstate the underlying appeal.
In
Lary v. U.S. Postal Service, 472 F.3d 1363 (Fed. Cir. 2006), the court found that,
under certain circumstances, specific performance which does not exactly mirror
the performance contemplated by the settlement agreement is the appropriate
remedy. Such an order “will be drawn as best to effectuate the purposes for which
the contract was made and on such terms as justice requires.”
2. Under 5 U.S.C. § 8336(c)(1), an employee with 20 years of service as a LEO may
retire with an immediate annuity upon reaching 50 years of age, even if he is not
serving in a LEO position at the time of his separation. The appellant obtained 20
years of LEO service in 2004, but did not turn 50 until April 30, 2008. A clear
purpose of the settlement agreement was to allow the appellant to meet the
requirements of § 8336(c)(1) and retire with an immediate annuity.
10
3. Because of the requirements of 5 U.S.C. § 7371(b), the settlement agreement
cannot now be enforced as written. Rescission of the settlement agreement and
reinstatement of the appeal would not be an adequate remedy because it would not
alter the fact that the appellant has lost his immediate retirement eligibility
because of the agency’s breach of the agreement. Accordingly, some form of
specific enforcement of the settlement agreement is appropriate.
4. Under the circumstances, a remedy with accomplishes the purpose of the
settlement agreement is to place the appellant in a non-LEO position for the period
from June 8, 2007, through May 1, 2008. This remedy does not violate the
provision of the settlement agreement that “forever prohibited” the appellant from
applying for any position with the agency.
COURT DECISIONS
(cid:190) Petitioner: John M. Killeen
Respondent: Office of Personnel Management
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3079
Issuance Date: February 27, 2009
Retirement
- Annuities
The petitioner is a retired air traffic controller entitled to annuity retirement
benefits under the Civil Service Retirement System. The issue was the correct method
of calculating the amount of the annuity under 5 U.S.C. § 8339(p)(1), considering that
Mr. Killeen provided both full-time and part-time service after April 6, 1986.
Holding: The court vacated the Board's decision, 2007 MSPB 237, 106 M.S.P.R.
666, with instructions as to the correct method of computing Mr. Killeen's
retirement annuity, raising the amount of the annuity from $28,850.41 to
$29,635.36. | 24,247 | |
Case Report - February 20, 2009 | 02-20-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_20_2009_396761.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_20_2009_396761.pdf | CASE REPORT DATE: February 20, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Kenneth M. Pedeleose
Agency: Department of Defense
Decision Number: 2009 MSPB 16
Docket Number: AT-0752-06-0350-R-1
Issuance Date: February 12, 2009
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Adverse Action Charges
- Insubordination/Failure to Follow Instructions
Whistleblower Protection Act
- Protected Disclosure
The Director of OPM requested that the Board reconsider its previous decision,
2007 MSPB 248, 107 M.S.P.R. 191, which found that the agency did not prove its
charges of misconduct, and that the appellant established that the 30-day suspension
was taken in retaliation for protected whistleblowing disclosures. The suspension was
based on charges of refusal to cooperate in an agency investigation, insubordination,
and failure to follow instructions. There was no dispute that the appellant refused to
meet with and answer the questions of the agency’s investigator concerning rumors that
certain employees were being targeted for termination from federal service. His
justification was that the investigation was improper and would interfere with an
investigation by the agency’s Inspector General (IG) concerning safety problems with
an aircraft and waste in the program developing it. In its previous decision, a majority
of the Board acknowledged the usual rule that an employee may not disregard an order
merely because there is substantial reason to believe the order is not proper, but must
comply with the order and then challenge it through a complaint or grievance. In
addition to previously recognized exceptions where complying would clearly place the
employee in a dangerous situation or would cause him irreparable harm, it determined
that the Board must consider whether an exception is warranted in other circumstances
where the employee doubts the legality of the instruction, taking into account the
2
considerations it found to underlie the rule: the need to avoid harm to the agency and
its mission from the employee’s failure to comply and the fact that the employee may
be mistaken in his belief. Applying these circumstances to the facts of this case, the
Board concluded that an exception to the rule was warranted. Of particular importance
was the Board’s conclusion that the appellant made an effort to comply by seeking the
advice of the IG and providing the IG the information sought, and that the agency’s
“disingenuous” failure to inform him of its coordination with the IG and of the IG’s
approval of its questions was significantly responsible for the appellant’s failure to
cooperate. The Board also found that the appellant established that his suspension was
taken in retaliation for his whistleblowing.
In its petition for reconsideration, OPM contended that the Board erred in
establishing an exception to the obey-now-grieve-later principle that vastly expanded
the previously recognized exceptions, and argued that case law did not support the
Board’s finding that an employee’s disobedience must be shown to have caused tangible
harm to its mission or that legitimate concerns about the lawfulness of the agency’s
order can excuse the employee’s non-cooperation. OPM also disputed the Board’s
finding of reprisal for whistleblowing.
Holdings: The Board granted OPM’s petition for reconsideration, vacated its
previous decision, and upheld the agency’s action suspending the appellant:
1. The general obey-now-grieve-later rule reflects the fundamental management
right to expect that its decisions will be obeyed and its instructions carried out. In
expanding the circumstances in which an exception would be recognized, the Board
broadened the exception in a way that threatened to make the exception the rule.
Reexamining the pertinent facts, the Board concluded that it had erred in finding
that the IG failed to give the appellant clear advice. The IG advised the appellant
to cooperate and to refer any questions he felt would compromise the IG
investigation to the IG. While the appellant was dissatisfied because the IG
declined to address the lawfulness of the agency investigator’s appointment, he
knew that the IG did not tell him that a blanket refusal to answer any of the
investigator’s questions was necessary to protect the integrity of the IG’s
investigation. The Board accordingly concluded that the agency proved its charges
of misconduct.
2. The Board concluded that the appellant did not establish reprisal for
whistleblowing. While a disinterested observer who was aware of the information
asserted could reasonably conclude that the agency official’s threat was an abuse of
authority, the appellant could not reasonably believe in the factual truth of his
report of what occurred at a meeting which neither he nor his informant attended.
3
(cid:190) Appellant: Alvern C. Weed
Agency: Social Security Administration
Decision Number: 2009 MSPB 17
Docket Number: DE-3443-05-0248-X-1
Issuance Date: February 12, 2009
Compliance
USERRA/VEOA/Veterans’ Rights
This case was before the Board on the AJ’s Recommendation finding the agency in
noncompliance with a final Board order, 2007 MSPB 259, 107 M.S.P.R. 142. In that
Opinion and Order, the Board found that the agency violated the appellant’s veterans’
preference rights under VEOA when it filled two positions using the Outstanding
Scholar Program authority instead of competitively filling the positions. The Board
ordered the agency to reconstruct the hiring process for the two positions and make
selections in accordance with law. After holding a hearing on the compliance issue, the
administrative judge (AJ) issued a compliance recommendation finding that the
agency’s reconstruction action was not bona fide, and referred the matter to the Board
for enforcement.
Holdings: The Board found that the agency is not in compliance with its previous
Opinion and Order, and ordered the agency to take corrective action:
1. To reconstruct the selection process consistent with law and regulation, the
appointing authority must consider at least 3 names for appointment to each
vacancy in the competitive service from a certified list obtained from the
appointing authority from the top of the appropriate register, and the appointing
authority must make a selection for each vacancy from the highest 3 names on the
certificate. Reconstructing the selection process also requires removing from the
position any individual improperly appointed to the position at issue.
2. The agency did not actually reconstruct the hiring process, but instead engaged
in a “hypothetical” hiring process in which it did not make real selections for the
two positions in question. In addition, one of the two individuals who had been
improperly appointed remains in the position.
3. The Board rejected the agency’s argument that the Board lacks the authority to
review the merits of the agency’s reconstruction action. While the cases relied on
by the agency express limitations on the Board’s authority under VEOA, including
the authority to order an individual’s appointment, they specifically hold that the
Board has the authority to determine whether an agency has violated a statutory or
regulatory provision relating to veterans’ preference and to order an agency to
comply with applicable laws and regulations when making selections.
4. The Board also rejected the agency’s contention that removing other employees
who were appointed in violation of law and regulation would violate due process
and the provision of 5 U.S.C. § 7513 that an adverse action may only be taken for
“such cause as will promote the efficiency of the service.” The Board has
repeatedly held that, as part of the reconstruction process, an agency must remove
an improperly appointed incumbent from the position. Contrary to the agency’s
4
assertion, the agency need not remove the individual from the federal service; it
need only remove the individual from the position he or she holds as the result of
the improper appointment.
5. The Board again ordered the agency to reconstruct the selection process for the
two positions in question and gave the agency specific instructions for doing so.
(cid:190) Appellant: Sam B. Tawadrous
Agency: Department of the Treasury
Decision Number: 2009 MSPB 18
Docket Number: DA-0752-08-0227-I-1
Issuance Date: February 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
New Evidence
The appellant petitioned for review of an initial decision that affirmed his removal.
The agency removed the appellant from his position as a Tax Specialist with the IRS on
charges that he failed to properly file his 2001 and 2002 personal federal income tax
returns, and that he failed to timely pay his personal income taxes for those years.
After conducting a hearing, the AJ sustained both charges, but not the specification that
the appellant’s failure to properly file his returns was willful, and determined that the
removal penalty was reasonable. On petition for review, the appellant submitted
evidence that, following the issuance of the initial decision, the U.S. Tax Court issued a
decision that casts doubt on both of the sustained charges.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal for further adjudication:
1. The Board will consider new evidence when it was previously unavailable
despite a party’s due diligence and is material, i.e., of sufficient weight to warrant
an outcome different from that of the initial decision.
2. The October 6, 2008 decision of the U.S. Tax Court meets these criteria. It was
not available until after the issuance of the initial decision, and it undercuts the
evidence supporting both charges. That decision reflects that the appellant and the
agency stipulated that he does not have any tax deficiency or penalty due for
taxable year 2001. And while the Tax Court’s decision does indicate a deficiency
for 2002, that deficiency is significantly less than the deficiency charged by the
agency in its removal action.
3. In light of the new and material evidence, the initial decision must be vacated
and the appeal remanded to allow the AJ to consider the additional evidence and
issue a new decision.
5
(cid:190) Appellant: Sergio I. Torres
Agency: Department of Homeland Security
Decision Number: 2009 MSPB 19
Docket Number: DA-0752-07-0066-C-1
Issuance Date: February 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
- Settlement-Related
The appellant petitioned for review of a compliance initial decision that denied his
petition for enforcement (PFE). On appeal from the agency’s action removing the
appellant from his position as a Border Patrol Agent, the parties entered into a
settlement agreement under which the appellant agreed to withdraw his appeal and
submit his resignation, and the agency agreed to replace the SF-50 to reflect the
resignation and to remove all documentation of his removal from his Official Personnel
File. In his PFE, the appellant alleged that, in connection with his application for
employment with a private company, former agency supervisors or co-workers told
company investigators that he had resigned in lieu of removal, which resulted in his not
being cleared for the position. The AJ denied the PFE on the grounds that the
agreement did not contain either a confidentiality clause that would preclude agency
employees from providing any information to an investigator, or a provision to preclude
those the appellant identified as references from providing information.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case for further adjudication:
1. Relying on our reviewing court’s decisions in Pagan v. Department of Veterans
Affairs, 170 F.3d 1368 (Fed. Cir. 1999), and Conant v. Office of Personnel
Management, 255 F.3d 1371 (Fed. Cir. 2001), the Board has held that a settlement
calling for rescission of a removal and issuance of an SF-50 showing resignation
also requires the agency to expunge removal-related documents from the
employee’s personnel file and not to disclose such documents to third parties, even
when the settlement does not explicitly set forth these requirements. The key
concern in such cases is that the Board “see to it that the parties receive that for
which they bargained.”
2. The agreement in this case must be construed as requiring that the agency’s
communications with third parties reflect what the replacement SF-50 shows, i.e.,
that he resigned, and that it not disclose the circumstances of the removal. The
agency is required to act as if the appellant had a clean record.
3. At this time, the record does not establish whether the agency breached the
agreement. The appellant’s allegations are contained in an unsworn statement,
and the agency has not met its obligation to provide relevant evidence responding
to the allegation of breach. Accordingly, the appeal must be remanded to the AJ,
who will provide the parties with an opportunity to provide evidence and argument
as to whether a breach occurred.
6
4. Prior to adjudicating the merits of the petition for enforcement, the AJ should
first address whether the petition was timely filed. Such a petition must be filed
within a reasonable time after the petitioner becomes aware of a breach.
(cid:190) Appellant: Robert O. Jones
Agency: United States Postal Service
Decision Number: 2009 MSPB 21
Docket Number: AT-0752-08-0558-I-1
Issuance Date: February 17, 2009
Appeal Type: Adverse Action by Agency
Arbitration/Collective Bargaining-Related Issues
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed for lack of
Board jurisdiction his appeal alleging that he was constructively suspended. The
appellant was removed from his position in February 2007. He grieved that action, the
arbitrator issued a decision converting the removal to a suspension without pay, and he
was reinstated to employment in March 2008. On May 9, 2008, the agency issued a
new proposal to remove that referenced a long-term suspension, dated December 20,
2006, apparently resulting from the arbitrator’s award. In the initial decision, the AJ
found that, as a preference-eligible postal employee, the appellant was entitled to
pursue both a grievance and a Board appeal with respect to his removal, but that the
appellant stated that he was not interested in relitigating his February 2007 removal, but
was seeking review of the arbitrator’s award. The AJ found, however, that the Board
has no authority to review the arbitrator’s award because 5 U.S.C. § 7121 does not
apply to the Postal Service.
On PFR, the appellant contends that the AJ never addressed his allegation that he
is appealing a new suspension, arguing that the arbitrator did not mitigate the removal
action, but instead imposed a new 15-month suspension.
Holdings: The Board granted the appellant’s PFR, and affirmed the initial
decision as modified, still dismissing the appeal for lack of jurisdiction:
1. A reasonable reading of the arbitration award is that it imposed a mitigated
penalty of a time-served suspension, and that the agency did not take a new action
against the appellant, but merely implemented the arbitration award.
2. Because this cases involves a “time-served” suspension, the Board considered
the impact of Milligan v. U.S. Postal Service, 106 M.S.P.R. 414 (2007), which held
that when an arbitrator imposes a time-served suspension, the proper course is to
apply collateral estoppel to the arbitration decision with respect to the charged
misconduct, and to then apply the Douglas factors to determine the appropriate
penalty. This raises the possibility that the removal action originally imposed by
the agency could be upheld.
3. Apparently aware that he would be taking the risk that the Board could
re-impose the removal penalty if he chose to appeal that action, the appellant
7
specifically chose not to do so. Accordingly, there is no basis for the Board to
exercise jurisdiction.
(cid:190) Appellant: Paul M. Page
Agency: Department of Transportation
Decision Number: 2009 MSPB 20
Docket Number: SF-3443-08-0622-I-1
Issuance Date: February 17, 2009
Board Procedures/Authorities
- Withdrawal of Appeal
The appellant sought review of an initial decision that dismissed his appeal as
withdrawn. The appellant filed two appeal forms with the Board’s regional office: one
on July 28, 2008, in which he appealed a letter of reprimand; and one on July 31, 2008,
in which he filed what appears to be an individual right of action (IRA) appeal
challenging the denial of his grievance of the reprimand letter. Both claims were
docketed as a single appeal, and the AJ notified the appellant that the Board does not
have jurisdiction over the direct appeal of a letter of reprimand and that the Board
would only have jurisdiction over a whistleblower claim after he exhausted his
remedies with the Office of Special Counsel. On August 5, the appellant filed a letter
stating that he “would like to delete, dismiss, or cancel an appeal I filed on July 28,
2008, # 200801987.” On August 12, the AJ issued a decision dismissing the entire
appeal. The next day, the appellant filed a letter with the Board stating that he wanted
to withdraw his July 31 appeal “without prejudice.”
Holdings: The Board granted the appellant’s petition, vacated the initial decision,
affirmed the portion of the initial decision that dismissed the letter of reprimand
claim as withdrawn, and remanded the denial of a grievance claim to the regional
office for further adjudication:
1. An appellant’s withdrawal of an appeal is an act of finality, but a voluntary
withdrawal must be clear, decisive, and unequivocal.
2. Contrary to the implication in the initial decision, the appellant did not clearly
withdraw his entire appeal. He did clearly withdraw his July 28 appeal of the
letter of reprimand, but he did not clearly withdraw his July 31 appeal of the
denial of his grievance. Accordingly, the Board remanded the latter claim to the
regional office for further adjudication.
(cid:190) Appellant: Albert White
Agency: United States Postal Service
Decision Number: 2009 MSPB 15
Docket Number: SF-0353-07-0285-X-1
Issuance Date: February 12, 2009
Compliance
This case was before the Board on the AJ’s Recommendation finding the agency in
noncompliance with the terms of a settlement agreement that resolved an appeal
8
regarding the appellant’s restoration to duty after partial recovery from a compensable
injury. The agreement provided that the agency place the appellant into a temporary
job assignment not to exceed 6 months. It further provided that, if the appellant was
unable to work a full 8-hour workday after job expired, or became unable to complete
the essential functions of the temporary job assignment during the 6-month period, the
appellant agreed to resign or retire and not appeal his separation. While working in the
temporary position, the appellant was diagnosed with a work-related injury for which he
received compensation. At the conclusion of the 6-month period, the agency issued the
appellant a memorandum stating that it was processing his resignation that date
pursuant to the terms of the settlement agreement. On petition for enforcement, the AJ
found that the agency was not in compliance with its obligations and referred the matter
to the full Board for compliance.
Holdings: The agency has provided evidence that it has returned the appellant to
work in accordance with the terms of the settlement agreement, and the appellant
has not responded to the agency’s evidence of compliance. The Board found that
the agency is now in compliance and dismissed the petition for enforcement as
moot. | 20,103 | |
Case Report - February 13, 2009 | 02-13-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2009_395353.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2009_395353.pdf | CASE REPORT DATE: February 13, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Peter J. Lizzio
Agency: Department of the Army
Decision Number: 2009 MSPB 10
Docket Number: SF-0752-06-0546-M-1
Issuance Date: February 10, 2009
Appeal Type: Adverse Action
Action Type: Removal
Jurisdiction
Settlement
- Waiver of Rights
- Last-Chance Settlement Agreement
This case was before the Board pursuant to the decision of the U.S. Court of
Appeals for the Federal Circuit, 534 F.3d 1376, which vacated and remanded the
Board’s previous decision, 2007 MSPB 89, 105 M.S.P.R. 322. At issue was whether
the appellant violated the terms of a last-chance agreement (LCA), which included a
waiver of appeal rights in the event of his breach. The agency alleged that he breached
his agreement to “[a]void any misconduct” when he came to a private facility to
interview a witness in a procurement investigation, and attempted to gain access
without authorization and acted in an unprofessional manner. The agency’s notice of
breach stated that the appellant failed “to maintain the standards of personal conduct
and professionalism required by AR [Army Regulation] 195-3 and CIDR [CID
Regulation] 195-1”. After conducting a hearing, the administrative judge (AJ) found
that the appellant’s conduct was “rude and obnoxious,” but that the agency failed to
prove that his behavior was embarrassing to the government as required by AR 195-3.
The AJ therefore concluded that the appellant did not breach the LCA, and that the
removal must be reversed. On petition for review (PFR), the Board declined to
determine whether the appellant engaged in conduct embarrassing to the agency, but
found that he nevertheless committed misconduct in breach of the LCA, based on the
AJ’s finding that he had been rude and obnoxious, and dismissed the appeal for lack of
2
jurisdiction. The court held that the Board erred in relying on a basis for finding a
breach of LCA different from the one found by the AJ to have been asserted by the
agency in the notice of breach, and vacated the case for the Board to consider the
arguments made in the agency’s PFR that were previously unaddressed by the Board.
Holdings: The Board reversed the initial decision, finding that the appellant
breached the last-chance agreement, and dismissed the appeal for lack of
jurisdiction:
1. The AJ erred in finding that the agency’s sole ground for asserting breach of
the LCA was conduct embarrassing to the agency under AR 195-3. The agency
alleged breach under both AR-195-3 and CIDR 195-1.
2. The appellant breached the LCA by engaging in conduct that violated AR 195-3
and CIDR 195-1.
a. Establishing a violation of AR 195-3 did require consideration of whether the
appellant’s conduct caused embarrassment to the government.
b. That rude and obnoxious behavior toward private citizens by a federal agent
in the course of carrying out his investigative responsibilities was an
embarrassment to his agency and the government is obvious and does not
require detailed explanation.
c. It is also clear that rude and discourteous behavior is not what is expected of
a CID agent and that the appellant’s conduct was thus “substandard” under
CIDR 195-1.
(cid:190) Appellant: Bohdan Senyszyn
Agency: Department of the Treasury
Decision Number: 2009 MSPB 11
Docket Number: PH-0752-05-0403-C-4
Issuance Date: February 10, 2009
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Compliance
Board Procedures/Authorities
- Close of the Record
The appellant petitioned for review of an initial decision that denied his petition
for enforcement.
Holdings: The Board denied the PFR but reopened on its own motion to affirm the
initial decision as modified:
1. It is error for an AJ to issue an order or initial decision prior to the expiration
of the time allowed for a party’s response. Here, the appellant’s response to the
AJ’s order was postmarked one day before the record closed, and therefore should
have been considered. Accordingly, the Board considered the pleading which had
not been considered below.
3
2. The appellant has shown no error in the AJ’s determination that nothing in the
Board’s final order could be construed as a directive to the agency “to provide any
monetary relief, or any other relief for that matter, to the appellant.” Accordingly,
the appellant has failed to establish that the agency is in noncompliance with the
Board’s final decision.
(cid:190) Appellant: William S. Chapman
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 12
Docket Number: SF-844E-08-0431-I-1
Issuance Date: February 10, 2009
Appeal Type: FERS - Employee Filed Disability Retirement
Action Type: Retirement/Benefit Matter
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s final
decision denying his application for disability retirement as untimely filed. The
appellant resigned from his federal position in January 2004, and filed an application
for disability retirement in June 2007. OPM denied the application on the basis that it
was filed more than one year after the appellant’s separation from service, and the
appellant had made no showing that he was mentally incompetent during the one-year
filing period. On appeal to the Board’s regional office, the AJ affirmed on the same
basis.
Holding: The Board affirmed the initial decision as modified. The AJ incorrectly
stated that the appellant’s application was covered by the Federal Employees’
Retirement System (FERS), when it was in fact covered by the Civil Service
Retirement System (CSRS). Nevertheless, the substantive timeliness requirements
are the same under both systems.
(cid:190) Appellant: Debra J. Lubert
Agency: United States Postal Service
Decision Number: 2009 MSPB 13
Docket Number: PH-4324-08-0454-I-1
Issuance Date: February 10, 2009
Appeal Type: Uniformed Services Employment and Reemployment Rights Act
Jurisdiction – USERRA
Board Procedures/Authorities
- Dismissal for Failure to Prosecute
The appellant petitioned for review of an initial decision that dismissed her
USERRA appeal for failure to state a claim upon which relief can be granted. In a
show-cause order, the AJ acknowledged that the appellant might be asserting, in
connection with her service in the Army Reserves, that the agency charged her military
leave on days when she was not scheduled to work. The AJ noted that the appellant had
not identified any specific dates of lost leave, and ordered her to provide such
4
information. When the appellant did not respond to the show-cause order by the
specified deadline, the AJ issued the decision dismissing the appeal.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion, vacating the initial decision and remanding the case to the regional
office for further adjudication:
1. The appellant established jurisdiction by alleging that: (1) She performed duty
in a uniformed service of the United States; (2) the agency denied her a benefit of
employment; and (3) the denial was due to the performance of duty or obligation to
perform duty in the uniformed service.
2. An appellant is entitled to a hearing in a USERRA appeal once she establishes
jurisdiction. The appellant was therefore entitled to the hearing she requested
before the AJ issued a decision adjudicating the appeal.
3. Even in an appeal over which the Board has jurisdiction, an AJ may dismiss an
appeal for failure to prosecute if the appellant fails to respond to his orders. Here,
however, the AJ issued only one order directing the appellant to provide specifics
regarding her claim, and there is no indication that the appellant exhibited bad
faith or intended to abandon her appeal. The appeal must therefore be remanded
for further adjudication.
(cid:190) Appellant: Eric Williams
Agency: Department of the Air Force
Decision Number: 2009 MSPB 14
Docket Number: AT-3443-06-0118-C-1
Issuance Date: February 11, 2009
Compliance
USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that found the agency in
compliance with the Board’s Opinion and Order, 2008 MSPB 91, 108 M.S.P.R. 567,
which concluded that the agency had violated his rights under the Veterans Employment
Opportunities Act of 1998 when it selected non-preference eligibles using the
Outstanding Scholar Program (OSP) instead of him for several GS-7 Contract Specialist
positions, and ordered the agency to reconstruct the selection process. After
reconstructing the selection process, the agency again did not select the appellant for a
Contract Specialist position.
Holdings: The Board granted the appellant’s PFR and reversed the initial
decision, finding that the agency was not in compliance with the Board’s Opinion
and Order:
1. The Board’s previous Opinion and Order was based in part on the agency’s
stipulations that the appellant would have been hired as a GS-7 Contract Specialist
in 2005 but for the agency’s use of the Outstanding Scholar Program, and that he
was entitled to back pay and benefits as a result of the improper hiring process.
5
2. The agency’s reconstructed selection process was incomplete. Based on its
description of the process, the agency stopped considering candidates after the 9th
round of consideration, and it did not in fact fill all 13 positions competitively in
the reconstructed process. In the absence of a complete process, the Board was left
to speculate about how the agency filled the remaining vacancies and whether some
of the original OSP candidates remained in the Contract Specialist positions in
violation of 5 U.S.C. § 3304(b) and the Board’s Opinion and Order.
3. The Board ordered the agency to again reconstruct the selection process, but
this time gave the agency 7 specific instructions so that there would be no
misunderstanding as to what was required. | 10,181 | |
Case Report - February 6, 2009 | 02-06-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2009_394065.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2009_394065.pdf | CASE REPORT DATE: February 6, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Steven A. Deida
Agency: Department of the Navy
Decision Number: 2009 MSPB 8
Docket Number: DC-0752-08-0598-I-1
Issuance Date: January 30, 2009
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Jurisdiction
- Reduction in Pay/Grade
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant, who had been a Firefighter, GS-07, Step 8,
applied for and was selected for the position of Fire Protection Inspector, GS-08.
Under applicable General Schedule rules, he was placed at the GS-08 Step 7 level, and
his basic pay was increased from $39,146 to $42,183. The agency later determined that
the new position was covered by the National Security Personnel System (NSPS), and
that under the NSPS, both the appellant’s new position and the position he previously
occupied were both assigned to the same pay band. The agency concluded that the
appellant’s change in position was not a promotion, and reduced his rate of basic pay to
$41,104. The appellant alleged that the agency improperly cancelled his promotion and
reduced his pay. The agency contended that its action had been a correction of an
administrative error in setting the appellant’s pay at a rate that was contrary to law and
regulation. The administrative judge (AJ) found that the appellant failed to meet his
burden of showing that the agency was not “merely correcting an error” when it
cancelled the promotion, and dismissed the appeal for lack of jurisdiction.
Holdings: The Board granted the appellant’s petition for review (PFR), vacated
the initial decision, and remanded the appeal for further adjudication:
1. To establish Board jurisdiction in an appeal from the cancellation of a
promotion or an appointment, the Board has found that the appellant must show
2
that: (1) the promotion or appointment actually occurred; (2) the appellant took
some action denoting acceptance of the promotion or appointment; and (3) the
promotion or appointment was not revoked before the appellant actually
performed in the position.
2. In addition to the above requirements, the Board has also indicated in some
decisions that an appellant must also show that, in cancelling the promotion or
appointment, the agency was not correcting an error. The Board overruled these
decisions, holding that, once an appellant has made a prima facie case of
jurisdiction by showing that he was appointed to a position by an authorized
official, that he took some action to denote acceptance of the promotion, and that
he actually performed in the position, the burden of production shifts to the agency
to show that the promotion was an error contrary to law or regulation. Here, the
burden was wrongly placed on the appellant, and the case must be remanded to the
regional office for a jurisdictional hearing.
(cid:190) Appellant: Willie L. Lamb
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 9
Docket Number: CH-0831-08-0716-I-1
Issuance Date: February 3, 2009
Action Type: Retirement/Benefit Matter
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed with no good cause shown. OPM issued a decision on June 24, 2008,
recomputing the appellant’s retirement annuity to exclude credit for his post-1956
military service when he became eligible for Social Security benefits at age 62. The
appellant filed an appeal with the Board on August 13, two weeks after the July 30
deadline for timely filing. In response to the AJ’s order on timeliness, the appellant
stated that he thought he had filed an appeal on July 23 using the Board online system,
but when he did not hear anything from the Board in what he considered a reasonable
amount of time, he called “to find out what was going on,” and spoke to a staff member
in the Office of the Clerk of the Board, and that the staff member advised him to refile
his appeal, which he did. The appellant also submitted a copy of an August 20 email
from the same staff member, who advised that the Board’s Appeal Event Log
substantiated that the appellant started an appeal on July 23, which was still in an “in
process” status in the Board’s e-filing system, and that the Log showed that he started
and completed a new appeal on August 13, which was the appeal that was received for
adjudication. The AJ found that the appellant did not show good cause for his
untimeliness because he could have submitted documentation by non-electronic means.
Holding: The Board reversed the initial decision and remanded the appeal for
adjudication on the merits:
1. On July 23, 7 days before the filing deadline, the appellant was assigned an
appeal number and completed all the questions on the on-line form on the Board’s
website. After doing so, one is able to exit the website without a clear warning that
3
one’s appeal has not been filed. As the appellant asserted on appeal, and reiterates
on PFR, he thought he had filed his appeal on July 23.
2.
As in Rodgers v. U.S. Postal Service, 105 M.S.P.R. 297 (2007), the Board found
that the appellant reasonably believed he had filed his appeal in a timely way and
established good cause for the untimely filing. Accordingly the appeal must be
remanded for adjudication.
(cid:190) Appellant: Ernest C. Rawlings
Agency: United States Postal Service
Decision Number: 2009 MSPB 7
Docket Number: DC-0752-08-0449-X-1
Issuance Date: January 29, 2009
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Compliance
This case was before the Board on the AJ’s Recommendation finding that the
agency was not in compliance with its duties under a final Board decision. Specifically,
the AJ found that the agency had not provided evidence that it paid the appellant all the
overtime, night differential, and Sunday premium pay to which he was entitled for a
two-week period. Before the full Board, the agency submitted evidence that it had
reviewed the data from similarly situated employees, determined that the appellant was
owed an additional $1,857.14, and had processed the paperwork to pay the appellant
that amount.
Holding: The Board found that the agency had provided sufficient evidence of
compliance and dismissed the appellant’s petition for enforcement. Although the
appellant objected to the sufficiency of the agency’s evidence, his pleading was
untimely and failed to address or rebut the agency’s explanation of its calculations. | 6,860 | |
Case Report - January 30, 2009 | 01-30-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2009_392591.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2009_392591.pdf | CASE REPORT DATE: January 30, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Appellant: Eric D. Cunningham
Agency: Office of Personnel Management
Decision Number: 2009 MSPB 5
Docket Number: NY-315H-05-0133-X-1
Issuance Date: January 23, 2009
Action Type: Probationary Termination
Compliance
This case was before the Board pursuant to the AJ’s Recommendation, which found
that the agency had breached the settlement agreement provision that required the
agency to keep the terms of the agreement confidential.
Holdings: The Board granted the petition for enforcement, vacated the initial
decision, and forwarded the case to the field office to provide the appellant the
option of rescinding the settlement agreement and reinstating his appeal:
1. The Board did not consider the agency’s argument that the appellant waived the
confidentiality provision of the settlement agreement because this argument was
not raised below.
2. Under the facts of this case, the public interest in allowing OPM to conduct
thorough background and suitability determinations does not outweigh the
appellant’s interest in enforcing the terms of the parties’ settlement agreement.
The Board distinguished this case from the holding in Gizzarelli v. Department of
the Army, 90 M.S.P.R. 269 (2001), which is limited to situations in which an agency
discloses police or criminal information to OPM for purposes of a background
check or suitability determination where OPM and the employing agency
determine that such records are needed to assess an applicant’s suitability for
federal employment.
3. The Board agreed with the AJ’s determination that the agency materially
breached the settlement agreement.
2
4. The Board forwarded the case to the AJ to provide the appellant the option of
rescinding the settlement agreement and reinstating his appeal. If he chooses that
option, he must reimburse the agency for any payments he received in connection
with the settlement agreement.
Appellant: James Galatis
Agency: United States Postal Service
Decision Number: 2009 MSPB 6
Docket Number: PH-0752-07-0298-X-1
Issuance Date: January 27, 2009
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Compliance
This case was before the Board concerning the agency’s compliance with the
settlement agreement that resolved the appellant’s appeal of a demotion. In a previous
decision, the Board resolved an issue about the computation of the appellant’s back pay.
2008 MSPB 201, 109 M.S.P.R. 651.
Holdings: The Board found that the agency is for the most part in compliance with
the agreement, but that in one respect it must take additional action to be in full
compliance:
1. Since the appellant is not a preference eligible employee covered by the Back
Pay Act, the agency’s obligations are governed by the agency’s Employee and
Labor Relations Manual.
2. The appellant was not entitled to additional night differential pay as part of his
back pay.
3. The appellant was not entitled to bonuses as part of his back pay. An agency
may be required to include pay for performance as part of an appellant’s back pay,
but only if some provision of law mandates the payment or the agency clearly
establishes that he would in fact have received such an award. Here, the appellant
has not established entitlement under either criterion.
4. The agency has not disputed the appellant’s claims that he is entitled to
restoration of certain leave he took during the back pay period. Accordingly, the
Board found that he is entitled to restoration of this leave.
5. The Board found that the agency is in compliance with the provision of the
agreement waiving collection of Sunday premium pay.
3
COURT DECISIONS
Petitioner: Mario A. Gonzalez
Respondent: Department of Transportation
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3309
Issuance Date: January 8, 2009
Back Pay
Jurisdiction
At issue was whether the Board has the authority to order back pay awards to
employees of the Federal Aviation Administration (FAA).
Holdings:
1. The Board correctly concluded that 49 U.S.C. § 40122 does not grant
jurisdiction for back pay awards to FAA employees.
a. Section 40122 provides that the “provisions of Title 5 shall not apply to the
new personnel system developed and implemented” by the FAA. While this
section lists 8 exceptions to the FAA’s exemption from Title 5, none includes
the Back Pay Act, 5 U.S.C. § 5596, under which Gonzalez sought relief.
b. Because Gonzalez’s claim invokes the Back Pay Act, which involves a waiver
of the government’s sovereign immunity, the court must strictly construe the
relevant provisions of § 40122 in favor of the government.
c. The Ford Act, which restored the Board’s jurisdiction over appeals by FAA
employees, did not alter the requirement that the provisions of Title 5 do not
apply to the new personnel management system developed for FAA
employees.
d. Section 1204 of Title 5 is not an independent source of authority for the
Board to award back pay where it would otherwise lack it.
2. The Board’s determination that it lacked jurisdiction to award back pay to FAA
employee’s did not constitute an improper collateral attack on its earlier judgment
that it possessed such jurisdiction. In most circumstances, a party may not
collaterally attach a final judgment on the ground that subject matter jurisdiction
was lacking in the original action, even if the issue of subject matter jurisdiction
was not litigated before, but a notable exception to this general rule arises where
the issuing court’s lack of jurisdiction directly implicates issues of sovereign
immunity. That exception applies in this case.
4
Petitioner: James Ramos, Jr.
Respondent: Department of Justice
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3093
Issuance Date: January 12, 2009
Attorney Fees
- Authority to Award
- Equal Access to Justice Act
At issue was whether the Board has the authority to award attorney fees for work
performed before the Federal Circuit prior to the Board’s judgment ordering the agency
to rescind its removal action and restore Ramos to employment.
Holdings:
1. The Board correctly determined that the court’s decision in Phillips v. General
Services Administration, 924 F.2d 1577 (Fed. Cir. 1991), prohibits the Board from
making such an award.
2. If the court were writing on a blank slate, it might make sense for attorney fees
applications for work done on appeal from Board decisions to be authorized only
by the Back Pay Act and not by the Equal Access to Justice Act (EAJA), and to be
filed in the first instance before the Board, but the court is bound by its en banc
decision in Gavette v. Office of Personnel Management, 808 F.2d 1456 (Fed. Cir.
1986), which held that a prevailing party-employee may seek attorney fees before
the court under both the Back Pay Act and EAJA.
3. The court found it appropriate to waive the requirements of its Rule 47.7, which
could require the filing of an application for attorney fees with the court within 30
days after the Board decision creating the possible fee entitlement. | 7,412 | |
Case Report - January 9, 2009 | 01-09-2009 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_9_2009_388432.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_9_2009_388432.pdf | CASE REPORT DATE: January 9, 2009
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Teresa C. Chambers
Agency: Department of the Interior
Decision Number: 2009 MSPB 3
Docket Numbers: DC-1221-04-0616-M-1
DC-0752-04-0642-M-1
Issuance Date: January 8, 2009
Appeal Type: IRA Appeal; Court Remand
Action Type: Removal
Whistleblower Protection Act
- Protected Disclosure
- Danger to Public Health or Safety
- Clear and Convincing Evidence
These appeals were before the Board on remand from a decision of the U.S. Court
of Appeals for the Federal Circuit, 515 F.3d 1362 (Fed. Cir. 2008). Until her removal,
the appellant was employed as Chief of the U.S. Park Police. On December 2, 2003, the
Washington Post published an article quoting and otherwise describing statements the
appellant allegedly had made concerning her organization’s need for additional
resources. Three days later, she was placed on administrative leave, and her removal
was proposed later the same month. The appellant subsequently filed a complaint with
OSC, alleging retaliation for whistleblowing. Six days after she filed an IRA appeal
with the Board’s regional office, the agency issued its decision to remove her. The AJ
sustained 4 of the 6 charges, found that the appellant failed to establish that she had
made any disclosures protected under 5 U.S.C. § 2302(b)(8), and that, even if she had,
the agency established by clear and convincing evidence that it would have removed her
in the absence of her allegedly protected disclosures. The AJ also found the appellant’s
other affirmative defenses unsubstantiated, and that the removal penalty was
reasonable.
2
On petition for review, the Board issued an Opinion and Order sustaining the AJ’s
findings. 2006 MSPB 279, 103 M.S.P.R. 375. On appeal to the Federal Circuit, the
court affirmed the Board’s decision as to the merits of the charges and the
reasonableness of the penalty, but found that the Board had applied an incorrect
standard in evaluating the appellant’s claim of reprisal for her alleged disclosures of
risks to public safety. It therefore affirmed the Board’s decision in part, vacated it in
part, and remanded for application of the correct legal standard. On remand, the
appellant filed a motion asking the Board to reopen and reconsider the merits of the
sustained charges based on evidence developed in a civil action she filed in U.S. district
court under the Privacy Act and the Freedom of Information Act.
Holdings: The two Board members do not agree on the issue of whether the
appellant’s alleged disclosures are in fact protected under 5 U.S.C. § 2302(b)(8).
For reasons described in their separate concurring opinions, they have agreed on
the disposition of these appeals—sustaining the appellant’s removal and denying
her request for corrective action. While Chairman McPhie would find that the
appellant made some protected disclosures, he also would find that the agency
presented clear and convincing evidence that it would have taken the same actions
against the appellant in the absence of those disclosures. Vice Chairman Rose
would find that the appellant made no protected disclosures, and she therefore
would not reach the issue of whether the agency would have taken its actions in the
absence of the appellant’s allegedly protected statements. Both Board members
agreed that the appellant’s motion asking to reopen and reconsider the merits of
the sustained charges must be denied.
(cid:190) Appellant: Adrian H. Garcia
Agency: Department of Agriculture
Decision Number: 2009 MSPB 1
Docket Number: SF-3443-08-0129-I-1
Issuance Date: January 6, 2009
Jurisdiction
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Defenses and Miscellaneous Claims
- Equitable Tolling
The appellant petitioned for review of an initial decision that dismissed his appeal
under the Veterans Employment Opportunities Act of 1998 (VEOA) for lack of
jurisdiction. The basis for dismissal was that the appellant did not file a complaint with
the Secretary of Labor within 60 days of the alleged violation, as required by 5 U.S.C.
§ 3330a(a)(2)(A). The AJ further found that the appellant failed to show a basis for
applying equitable tolling to excuse the untimely filing.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to clarify the jurisdictional requirements for VEOA appeals, denying
the appellant’s request for corrective action:
3
1.
In Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc),
the court ruled that the 60-day time limit for filing a complaint with the Secretary
of Labor is not jurisdictional, and is subject to equitable tolling. Decisions of the
U.S. Court of Appeals for the Federal Circuit are controlling authority for the
Board.
2. While the AJ correctly found that the appellant untimely filed his complaint
with the Secretary of Labor and that he did not satisfy the requirements for
equitable tolling, the case should not be dismissed for lack of jurisdiction on the
appellant’s failure to exhaust his administrative remedy. Instead, his request for
corrective action under VEOA should be denied because he has failed to meet the
time limit of § 3330a(a)(2)(A).
(cid:190) Appellant: Verlyn A. Brown, Jr.
Agency: United States Postal Service
Decision Number: 2009 MSPB 4
Docket Number: CH-3443-08-0260-I-1
Issuance Date: January 8, 2009
Jurisdiction
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Defenses and Miscellaneous Claims
- Equitable Tolling
The appellant petitioned for review of an initial decision that dismissed his appeal
under the VEOA for lack of jurisdiction. The basis for dismissal was that the appellant
did not file a complaint with the Secretary of Labor within 60 days of the alleged
violation, as required by 5 U.S.C. § 3330a(a)(2)(A). The AJ further found that the
appellant failed to show a basis for applying equitable tolling to excuse the untimely
filing.
Holdings: As in Garcia, the Board denied the appellant’s PFR, but reopened on its
own motion to clarify that failure to file a timely complaint with the Secretary of
Labor is not a jurisdictional requirement in a VEOA appeal. The Board concurred
with the AJ’s finding that the requirements for equitable tolling had not been met.
Accordingly, the Board denied the appellant’s request for corrective action.
(cid:190) Appellant: Norman Wright
Agency: Department of Commerce
Decision Number: 2008 MSPB 251
Docket Number: CB-7121-08-0020-V-1
Issuance Date: December 23, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitrator’s decision sustaining his removal
for unacceptable performance.
4
Holding: The Board granted the appellant’s request for review and sustained the
arbitrator’s decision:
1. The Board has jurisdiction over the appellant’s request for review, as the
subject matter of the grievance (a removal) is one over which the Board has
jurisdiction, the appellant alleged discrimination in connection with the underlying
action, and a final decision has been issued.
2. The appellant has not met the Board’s criteria for review of an arbitrator’s
decision under 5 C.F.R. § 1201.154(d), which requires a statement of the grounds
on which review is requested, references to evidence of record or rulings related to
the issues before the Board, and arguments in support of the stated grounds that
refer specifically to relevant documents, and that include relevant citations to
authority. Although the appellant has stated in general terms the ground on which
review is requested, e.g., that the arbitrator’s decision exceeded his authority, he
has not provided references to evidence of record or rulings related to the issues
before the Board, nor provided arguments in support of his stated grounds. In
effect, he is requesting de novo review of the arbitrator’s decision, which is beyond
the scope of the Board’s role in such cases.
(cid:190) Appellant: Jacquen Lee
Agency: Department of Labor
Decision Number: 2008 MSPB 252
Docket Number: CB-7121-08-0022-V-1
Issuance Date: December 23, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitrator’s decision sustaining her removal
for unacceptable performance.
Holding: The Board granted the appellant’s request for review and sustained the
arbitrator’s decision:
1. The Board has jurisdiction over the appellant’s request for review, as the
subject matter of the grievance (a removal) is one over which the Board has
jurisdiction, the appellant alleged discrimination in connection with the underlying
action, and a final decision has been issued.
2. The standard of the Board’s review of an arbitrator’s award is limited; the
award will only be modified or set aside when the arbitrator has erred as a matter
of law in interpreting civil service law, rule, or regulation. Absent legal error, the
Board cannot substitute its conclusions for those of the arbitrator. Here, the
appellant has not established that the arbitrator erred as a matter of law.
3. The appellant did not establish her claims of discrimination in connection with
the underlying action.
5
(cid:190) Appellant: Denise Shannon
Agency: Department of Veterans Affairs
Decision Number: 2009 MSPB 2
Docket Number: CH-0351-05-0233-I-1
Issuance Date: January 7, 2009
Appeal Type: Reduction In Force
Action Type: Demotion
Board Procedures/Authorities
- Withdrawal of Appeal
Timeliness - PFR
The appellant petitioned for review of a February 2005 initial decision that
dismissed her appeal as withdrawn.
Holdings: The Board denied the appellant’s request, whether considered as an
untimely filed PFR, or as a request to reopen the appeal.
COURT DECISIONS
(cid:190) Petitioner: Stephen W. Gingery
Respondent: Department of Defense
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3292
Issuance Date: December 24, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Affairs
The petitioner sought review of the Board’s decision, 2007 MSPB 138, 105
M.S.P.R. 671, which held that the agency did not violate his rights under the Veterans
Employment Opportunities Act of 1998 when it hired two non-preference eligible
individuals under the Federal Career Intern Program (FCIP) and did not hire him. The
Board relied on OPM’s regulation at 5 C.F.R. § 302.401, which provides that, when an
agency passes over a preference eligible and selects a non-preference eligible in the
excepted service, it need only record its reasons for doing so and furnish a copy of
those reasons to the preference eligible on request. These requirements are much less
stringent than the pass-over provisions that apply to the competitive service under
5 U.S.C. § 3318(b)(1).
Holding: The court reversed the Board’s decision and invalidated OPM's
regulation at 5 C.F.R. § 302.401(b). The court held that, when an agency passes
over a preference eligible having a compensable service-connected disability of
30% or more and selects a non-preference eligible for a position in the excepted
service, it must comply with the procedures of 5 U.S.C. § 3318(b)(1). The court
found that the issue was controlled by 5 U.S.C. § 3320, which provides that
selection into the excepted service in the executive branch shall be conducted “in
6
the same manner and under the same conditions required for the competitive
service by [5 U.S.C. §§] 3308-3318.”
In a concurring opinion, Judge Newman explained why she believed the court
should have addressed Mr. Gingery's argument that it was improper to hire GS-0511
auditors in the excepted service under the Federal Career Internship Program, in that
there had been no showing of necessity for hiring outside of the competitive service.
(cid:190) Petitioner: Demetrius W. Palmer
Respondent: Merit Systems Protection Board
Intervenor: United States Postal Service
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3001
Issuance Date: December 31, 2008
Jurisdiction
Miscellaneous Agency Actions
- Restoration to Duty
The petitioner sought review of the Board’s final decision that dismissed his appeal
for lack of jurisdiction. The petitioner, a mail processing clerk with the Postal Service,
suffered an on-the-job injury in 1998 and received workers’ compensation benefits. He
accepted an offer of a modified job assignment and returned to work in 2005. In 2007,
he filed an appeal with the Board claiming he was entitled to, but did not accrue annual
and sick leave during the time he was on leave without pay status.
Holdings: The court affirmed the Board’s decision. Jurisdiction over appeals by
employees who are partially recovered from a compensable injury is governed by
5 C.F.R. § 353.204, which provides for Board review of claims that an agency acted
arbitrarily and capriciously in denying restoration, and claims that an agency
failed to credit time spent on compensation for purposes of rights and benefits
based upon length of service. Palmer was not denied restoration, and he has not
alleged that the Postal Service failed to credit his time for purposes of a right or
benefit based on length of service. | 13,503 | |
Case Report - December 19, 2008 | 12-19-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_19_2008_385399.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_19_2008_385399.pdf | CASE REPORT DATE: December 19, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Jennifer Marshall
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 249
Docket Number: CB-7121-07-0017-B-1
Issuance Date: December 11, 2008
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitrator’s decision finding that the agency
removed her for just cause on grounds that she failed to follow instructions. The
appellant was removed for failing to comply with instructions to return copies of certain
supervisory notes she had obtained while acting as a union representative. She asserted
that there was no just cause for the action because, inter alia, she obtained the
documents in the course of her representational duties and there was no basis for the
agency to order the union to return copies of documents legally obtained in the course
of representation.
Holdings: The Board granted the request for review, reversed the arbitrator’s
decision, and ordered the agency to cancel the removal and reinstate the appellant
to her position:
1. The Board has jurisdiction to review the arbitrator’s decision under 5 U.S.C.
§ 7121(d) because the subject matter of the grievance (removal) is one over which
the Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
§ 2302(b)(1), and a final decision has been issued.
2. The arbitrator did not err as a matter of law with respect to the merits of the
agency’s charge. It was appropriate to employ the “obey now, grieve later”
standard under which an employee is generally required to obey an order, even if
she believes it to be improper, and protest the propriety of the order later.
3. The arbitrator erred in failing to address the appellant’s affirmative defenses of
retaliation for protected EEO activity and for union activity. The Board
determined that it was appropriate to resolve those issues itself rather than remand
them to the arbitrator.
2
4. Where, as here, the agency has already articulated a non-discriminatory reason
for its action, there is no need to determine whether the appellant has established a
prima facie case; the inquiry proceeds directly to the ultimate question of whether,
upon weighing all of the evidence, the appellant has met her overall burden of
proving illegal retaliation.
5. The Board determined that the appellant met her burden of proving that the
removal action was taken in retaliation for protected activity:
a. Since at least 2004, the appellant had engaged in extensive protected activity
by filing and litigating grievances, ULPs, and EEO complaints while serving
as president of the union. The appellant’s conduct in connection with the
notes she obtained was protected activity.
b. The deciding official knew that the appellant was representing an employee
in an active EEO complaint, that she had provided copies of the documents
to the EEO counselor, and that the appellant told the counselor she believed
the documents constituted direct evidence of discrimination. The deciding
official was significantly involved in prior EEO actions concerning the
appellant.
c. The removal was the fourth disciplinary action brought by the agency
against the appellant in less than a year, and each of the preceding actions
had been overturned by neutral arbitrators, two of whom sustained the
union’s grievance on the grounds that the discipline was imposed in reprisal
for the appellant’s protected activities.
d. The agency’s resort to the harsh penalty of removal, rather than some lesser
form of discipline, to resolve what was essentially a disagreement between it
and the union over the right to possess documents, is circumstantial evidence
that the agency was motivated by reprisal. The Board saw no apparent
reason why the agency could not have pursued an order against the union
from an arbitrator, agency, or court with jurisdiction to obtain the copies of
the documents, especially where it was unclear whether the union was
entitled to the documents.
(cid:190) Appellant: David Galloway
Agency: Department of Agriculture
Decision Number: 2008 MSPB 250
Docket Number: AT-0752-06-1173-C-2
Issuance Date: December 17, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
Board Procedures/Authorities
- Bias
The appellant petitioned for review of a compliance initial decision that denied his
petition for enforcement (PFE). The appellant’s appeal of his removal was resolved by
a settlement agreement in which he dismissed his appeal and the agency agreed to assist
3
him in applying for disability retirement, including “promptly providing forms or
information the Appellant is not able to obtain from internet or other ready sources.”
The parties agreed that the agency’s assistance would “cease at the time a decision is
rendered by [OPM] on [the appellant’s] application for disability retirement.” On
September 5, 2007, OPM notified the agency that it had approved the appellant for
disability retirement, and requested the agency to report the appellant’s last day of pay.
On February 25, 2008, the appellant filed his PFE, alleging that the agency failed to
submit his records to OPM, which precluded OPM from making a final decision on his
disability pay and causing him “severe financial problems.” The agency responded that
the appellant had breached the agreement by filing a PFE without notifying it of the
problem and giving it an opportunity to correct any problems. The agency also claimed
that it had submitted the information in question to OPM the same day it was requested,
but it failed to submit any evidence to substantiate this claim.
The AJ determined that the appellant breached the settlement agreement because he
failed to provide the agency with notice of the alleged noncompliance prior to filing his
PFE, and that this was a material breach that discharged the agency from its contractual
duty to perform. The AJ further determined that the agency did not breach the
settlement agreement. In making this determination, the AJ did not resolve the factual
dispute over whether the agency provided the date of the appellant’s last day in pay
status to OPM, because the AJ determined that the agency’s obligation under the
agreement to provide information to OPM ceased when OPM rendered its decision on
the appellant’s application for disability retirement. The AJ acknowledged that the
agency owed a duty to the appellant to provide OPM with the requested information,
but found that this duty did not arise under the settlement agreement and was therefore
beyond the Board’s enforcement authority.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case to the regional office for further adjudication:
1. Although the appellant breached the settlement agreement by filing a PFE
without first providing the agency written notice of noncompliance, this was not a
material breach, because it did not relate to a matter of vital importance or go to
the essence of the agreement. Accordingly, the agency was not excused from
complying with its duties under the agreement.
2. The agency’s duty to provide OPM with the appellant’s last day in pay status
did come within the requirements of the settlement agreement, as this was
information that the appellant was unable to obtain on his own. Since the AJ did
not adjudicate the factual dispute over whether the agency provided this
information to OPM, a remand is necessary.
3. The appellant failed to establish AJ bias.
4
COURT DECISIONS
(cid:190) Petitioner: Victor W. Welshans
Respondent: United States Postal Service
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3088
Issuance Date: December 15, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The petitioner appealed the Board’s final decision that dismissed his request for
corrective action under USERRA. The appellant alleged that the agency improperly
charged him for military leave for non-workdays when he served as a reservist in the
United States Army. In denying the request for corrective action, the Board concluded
that the agency’s Employee and Labor Relations Manual (ELM) in effect in 1999, when
the leave was charged, required that the Postal Service charge non-workdays falling
within a period of absence for active duty against military leave.
Holding: The court affirmed the Board’s decision:
1. The court rejected the petitioner’s argument that a contrary outcome was
required by the court’s decision in Butterbaugh v. Department of Justice, 336 F.3d
1332 (Fed. Cir. 2003). In Butterbaugh, the court concluded that the word “days” in
5 U.S.C. § 6323 should be construed to mean workdays rather than calendar days.
But the Postal Service is specifically excluded from the application of section 6323.
2. The court rejected the petitioner’s argument that a contrary outcome was
required by the provisions of the ELM. During the relevant time period, the ELM
unambiguously required that the Postal Service charge non-workdays falling
within a period of absence for military duty against military leave. The court
refused to consider the petitioner’s argument that the Postal Service intended to
“impliedly integrate” all section 6323 rights into the ELM because he did not raise
this argument below—either before the administrative judge or the Board—and it
would be manifestly unfair for the court to resolve the question without giving the
government the opportunity to present evidence on the issue.
3. The court rejected the petitioner’s contention that charging him military leave
for non-workdays was, on its face, a violation of USERRA, which authorizes Board
review of a government employee’s claim that he has been denied a “benefit of
employment” on the basis of his membership in the uniformed services. The Postal
Service military leave policy did not deny reservists any benefit of employment.
Instead, the ELM in effect in 1999 granted reservists an additional benefit not
available to non-military employees. While non-reservists were entitled to sick and
annual leave, reservists were granted not only sick and annual leave, but military
leave as well. | 10,521 | |
Case Report - December 4, 2008 | 12-04-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_4_2008_382455.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_4_2008_382455.pdf | CASE REPORT DATE: December 4, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Gregory M. Miller
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 243
Docket Number: DE-1221-04-0127-B-2
DE-1221-03-0429-B-2
DE-1221-04-0446-W-3
Issuance Date: November 14, 2008
Appeal Type: Individual Right of Action (IRA)
Timeliness - PFR
In July 2008, the appellant petitioned for review of a June 2006 initial decision that
denied his request for corrective action under the Whistleblower Protection Act.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown.
Under Dunbar v. Department of the Navy, 43 M.S.P.R. 640 (1990), the
Board recognizes an exception to the general rule that a party is responsible for his
attorney’s failure to file a timely petition for review (PFR) when an appellant has
shown that his diligent efforts to prosecute his case were thwarted by his attorney’s
deception and negligence. Although the appellant presented evidence that his
attorney deceived him into believing that a PFR had been filed on his behalf, he did
not make any inquiries at the Board regarding the status of his appeal until more
than 15 months after the filing deadline had passed, and several months after he
began his unsuccessful attempts to obtain a copy of the PFR from his former
attorney, and he waited an additional 6 weeks to file after learning that a PFR had
not been filed.
2
(cid:190) Appellant: Martin Montee
Agency: Department of the Army
Decision Number: 2008 MSPB 244
Docket Number: DE-3443-08-0234-I-1
DE-3443-08-0261-I-1
Issuance Date: December 1, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The agency petitioned for review of an initial decision finding that it violated the
appellant’s VEOA rights and dismissing his USERRA claim as moot. The appellant, a
10-point preference-eligible, applied for and was tentatively selected for appointment to
an intelligence position in the agency’s U.S. Europeon Command, with the duty station
being in the United Kingdom. The agency subsequently notified the appellant that he
was ineligible for the position because, under applicable authorities, he was “considered
an employee recruited from outside the United States.” Specifically, it determined that
he was considered “ordinarily resident” in the United Kingdom. The AJ found that the
agency had violated the appellant’s rights under 5 U.S.C. § 3304(f)(1), and therefore
VEOA. He declined to address the issue of whether the appellant was “ordinarily
resident” in the United Kingdom, concluding that, even if he was, he was entitled, as a
preference-eligible covered by 5 U.S.C. § 3304(f)(1), to compete for the position. The
AJ ordered the agency to place the appellant in the intelligence specialist position.
Since the appellant would be entitled to no additional remedy under USERRA, the AJ
dismissed that claim as moot.
Holdings: The Board vacated the initial decision and remanded the case to the
regional office for further adjudication:
1. The vacancy announcement under which the appellant applied was open to all
U.S. citizens except those “ordinarily resident” in the United Kingdom, where the
position in question was located. In ruling that the agency violated the appellant’s
vterans’ preference rights, the AJ relied on Jolley v. Department of Homeland
Security, 105 M.S.P.R. 104 (2007), for the proposition that an agency is not
permitted to exclude an applicant from competing under 5 U.S.C. § 3304(f)(1) on
the ground that the applicant was outside the “area of consideration” stated in the
vacancy announcement.
2. The “area of consideration” that the Board found in Jolley could not be used to
exclude applicants was not based on qualifications for the position to be filled, but
was a matter of agency discretion to accept applications only from “on-site”
employees. In this case, the requirement that a citizen with “ordinary resident
status” in the United Kingdom may not be appointed to a position in that country
was a qualification requirement. Accordingly, the agency did not violate section
3304(f)(1) by withdrawing its offer if the appellant was in fact “ordinarily
resident” in the United Kingdom. Since this issue has not been adjudicated, a
remand is necessary.
3
3. If the appellant is found on remand to be qualified for the position at issue, the
AJ should consider the agency’s argument that section 3304(f)(1) does not apply to
positions in the Defense Civilian Intelligence Personnel System.
4. If appropriate, the AJ should again determine whether his findings on the
VEOA claim make the appellant’s USERRA claim moot.
(cid:190) Appellant: Raymond Marshall
Agency: Department of Health and Human Services
Decision Number: 2008 MSPB 245
Docket Number: AT-3443-06-0811-X-1
Issuance Date: December 2, 2008
Compliance
USERRA/VEOA/Veterans’ Rights
In a previous decision, 2008 MSPB 215, 110 M.S.P.R. 114, the Board found that
the agency was not in compliance with its obligatons under VEOA with respect to a
vacancy for which the appellant was not selected, and ordered the agency to:
(1) Remove the incumbent from that position; (2) reconstruct the certificate of eligibles;
and (3) obtain OPM’s approval under 5 U.S.C. § 3318(b)(1) in the event the agency
selected a non-preference eligible over the appellant. The agency submitted evidence
of compliance with the first two items, but stated that it was not going to make any
selection for the position at issue in this case.
Holding: The Board found the agency in compliance and dismissed the petition for
enforcement. The fact that the agency decided not to fill the position did not deny
the appellant his opportunity to compete for the position, or otherwise violate his
VEOA rights.
COURT DECISIONS
(cid:190) Petitioner: Ermea J. Russell
Respondent: Merit Systems Protection Board
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3106 (NP)
Issuance Date: November 18, 2008
The petitioner appealed from a Board decision, 107 M.S.P.R. 171 (2007), that
determined that the Board lacked jurisdiction over her USERRA claim. The basis for
the Board’s decision was that it was required by the court’s decision in Pittman v.
Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007), which held that a party who
elects to grieve an adverse action under 5 U.S.C. § 7121(e)(1) cannot later file a
USERRA action concerning a similar matter to the Board. During the court proceeding,
both parties, plus the EEOC and amicus curiae, agreed that Pittman’s jurisdictional
holding does not control this case, which instead concerns a challenge to an alleged
denial of reemployment due to transfer.
4
Holding: As required by the plain language of 38 U.S.C. § 4302(b), the petitioner’s
statutory right to appeal the reemployment matter to the Board is not affected by
the requirement of the collective bargaining agreement that she file a grievance,
because the CBA cannot impose a requirement contrary to statute.
Circuit Judge Dyk filed a separate opinion setting forth the reasons he doubted the
correctness of the majority’s holding. | 7,399 | |
Case Report - November 17, 2008 | 11-17-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_17_2008_379026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_17_2008_379026.pdf | CASE REPORT DATE: November 17, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
(cid:190) Appellant: Mary J. Metallo
Agency: Department of Defense
Decision Number: 2008 MSPB 239
Docket Number: SF-3443-06-0830-I-1
Issuance Date: November 7, 2008
Timeliness – PFR
Defenses and Miscellaneous Claims
- Collateral Estoppel
Board Procedures/Authorities
- Reopening and Reconsideration
The Board considered the appellant’s June 1, 2008 pleading as both a petition for
review (PFR) of a 2006 initial decision regarding a 2004 performance appraisal, and as
a new appeal raising other claims.
Holdings:
1. The Board denied the appellant’s PFR as untimely filed without good cause
shown for the 19 month delay in filing.
2. The appellant’s claim that the agency failed to restore her to duty during the
period from October 2003 until August 2004 is barred under the doctrine of
collateral estoppel (issue preclusion), as the Board litigated that claim in an earlier
proceeding.
3. Because the appellant’s claim of an involuntary retirement has not previously
be considered, it was forwarded to the regional office for docketing as a new
appeal.
4. The Board denied the appellant’s request to reopen her 2004 restoration appeal
and to join it with other Board appeals.
2
(cid:190) Appellant: Katherine J. Harris
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 240
Docket Number: CH-844E-08-0308-I-1
Issuance Date: November 13, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Action Type: Retirement/Benefit Matter
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed an OPM
reconsideration decision denying her application for disability retirement.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion, and affirmed the initial decision as modified, still affirming OPM’s
reconsideration decision:
1.
Under Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir.
1993), an appellant’s removal for physical inability to perform the essential duties
of her position constitutes prima facie evidence that she is entitled to disability
retirement benefits. When an appellant has been removed for inability to perform
the duties of her position, the AJ must inform the parties of their respective
burdens under Bruner. Although the AJ here did not inform the parties of their
respective burdens under Bruner, neither party was prejudiced by the AJ’s error,
and a remand is unnecessary.
2. Here, the appellant was removed for inability to maintain a regular work
schedule, not physical inability to perform the duties of her position. The record is
unclear whether the employing agency perceived the appellant to be unable to
perform the duties of her position because of a medical condition, but the Board
stated that it need not resolve this question because, even if the appellant was
removed for physical inability to perform and was entitled to the Bruner
presumption, she has not met her burden of showing that she is incapable, due to
disease or injury, of providing useful and efficient service in her position. At best,
her medical evidence shows that she has hypertension that is difficult to control,
but none of her evidence explains how this condition prevents her from performing
the duties of her position.
3
(cid:190) Appellant: Pamela C. Edwards
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 241
Docket Number: CH-0432-08-0314-I-1
Issuance Date: November 13, 2008
Appeal Type: Performance
Action Type: Removal
Miscellaneous Topics
- Statutory Construction
The appellant filed a petition for review of an initial decision that affirmed her
removal from her position as an Aviation Security Inspector with the Transportation
Security Administration for unsatisfactory performance. The AJ found that: (1) The
Board has jurisdiction under TSA Management Directive 1100.75-3 and 49 U.S.C.
§ 40122(g)(2); (2) the agency proved both specifications of its charge of unsatisfactory
performance; (3) the appellant failed to demonstrate harmful procedural error in the
application of the agency’s procedures and failed to prove her affirmative defenses of
discrimination; (4) the appellant did not establish that the removal was based on a
prohibited personnel practice under 5 U.S.C. § 2302(b); (5) the appellant failed to prove
that the agency violated 5 U.S.C. § 2301(b)(7), a merit system principle, by failing to
train her; and (6) the removal action was taken “for such cause as promotes the
efficiency of the service,” and the removal penalty was reasonable.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to find that the AJ erred in considering the appellant’s claim under
5 U.S.C. § 2301(b)(7):
1. The TSA, established by Pub. L. No. 107-71 (2001), is governed by the personnel
management system established by the FAA Administrator, which is codified at 49
U.S.C. § 40122(g).
2. Section 40122(g) provides that title 5 of the United States Code does not apply to
TSA’s personnel management system except for 8 specific chapters and sections.
Neither § 2301(b)(7) nor § 2302(b)(12) are among the exceptions. Accordingly,
they do not apply to the TSA personnel management system.
(cid:190) Petitioner: National Treasury Employees Union
Agencies: Office of Personnel Management and Department of Homeland Security
Decision Number: 2008 MSPB 242
Docket Number: CB-1205-08-0013-U-1
Issuance Date: November 13, 2008
Appeal Type: Request for Regulation Review
Miscellaneous Agency Actions
- Employment Practices
The petitioner requested that the Board review the alleged implementation of
5 C.F.R. §§ 300.101 and.103 by the U.S. Customs and Border Protection, regarding the
4
implementation of the agency’s Personal Appearance Standards (PAS) for all of its
uniformed officers. The petitioner filed two grievances. In the first, the NTEU alleged
that the agency violated the parties’ collective bargaining agreement by implementing
the PAS prior to completing bargaining. An arbitrator agreed with the petitioner and
ordered a status quo ante remedy. The agency appealed the decision to the FLRA,
which denied the agency’s exceptions to the arbitrator’s award. The agency did not
comply with the status quo ante remedy, however. In the second grievance, the NTEU
alleged that the PAS are an “employment practice” within the meaning of 5 C.F.R.
§ 300.101 and that the PAS violated regulations governing employment practices issued
by OPM. The arbitrator issued an opinion and award in the petitioner’s favor, finding
that the PAS constitute an “employment practice” under 5 C.F.R. § 300.101 and that the
agency failed to perform a job analysis, demonstrate a rational relationship between the
PAS and successful performance on the job, or professionally develop the PAS as
required by 5 C.F.R. § 300.103(b). The arbitrator issued a cease and desist order
directing the agency to end the use of the PAS. The agency has appealed the
arbitrator’s opinion and award to the FLRA, but has not complied with it. The
petitioner then filed the instant request for regulation review with the Board.
Holdings: The Board denied the petitioner’s request for regulation review:
1. The Board has original jurisdiction under 5 U.S.C. § 1204(f) to review rules and
regulations promulgated by OPM. The Board has the authority to determine that
an OPM regulation has been invalidly implemented by an agency, if the Board
determines that such provision, as implemented, has required any employee to
violate a prohibited personnel practice.
2. In determining whether to exercise its regulation review authority, the Board
considers, among other things, the likelihood that the issue will be timely reached
through ordinary channels of appeal, the availability of other equivalent remedies,
the extent of the regulation’s application, and the strength of the arguments
against the validity of its implementation.
3. Here, there is not merely a likelihood that the issue will be timely reached
through ordinary channels of appeal; the issue has been reached by an arbitrator
and is now pending before the FLRA. Although the petitioner alleges that the
matter is unlikely to be resolved in a timely manner, it has already received an
arbitrator’s award in its favor and it has not shown that any delay it faces before
the FLRA will prevent it from ultimately prevailing on its claim. A request for
regulation review is not a mechanism for enforcing arbitrators’ decisions or orders
of the FLRA.
5
COURT DECISIONS
(cid:190) Petitioner: David Dean
Respondent: Consumer Product Safety Commission
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3142
Issuance Date: October 31, 2008
Miscellaneous Agency Actions
- USERRA/VEOA/Veterans’ Rights
The petitioner sought review of a final MSPB decision denying his request for
corrective action under USERRA and VEOA in connection with his non-selection for
the position of Products Safety Investigator. The vacancy announcement stated that
those who wished to be considered for the position under both merit promotion or
special hiring authorities and competitive procedures must submit two complete
applications, and that if only one application was received, the individual would only be
considered under the special hiring authority or merit promotion procedures. The
petitioner’s cover letter was accompanied by only one application, and he was listed
only on the merit promotion certificate. In denying corrective action, the AJ found that
the agency’s practice of requiring the filing of two complete applications applied
equally to veterans and non-veterans, and that the impact of filing a single application
would fall equally on all applicants regardless of their military status.
Holding: The court affirmed the decision of the Board, stating that substantial
evidence supports the Board’s determination that the agency required both
veterans and non-veterans to submit a separate application under each hiring
authority and that any applicant, veteran or non-veteran, who submitted a single
application would have been considered under only one hiring authority. | 10,499 | |
Case Report - November 3, 2008 | 11-03-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_3_2008_376591.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_3_2008_376591.pdf | CASE REPORT DATE: November 3, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Julius L. Phillips
Agency: Department of the Navy
Decision Number: 2008 MSPB 235
Docket Number: DC-3443-08-0249-I-1
Issuance Date: October 28, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied his request for
corrective action under VEOA. The appellant was a GS-6 police officer, who applied
under a vacancy announcement for GS-7 and GS-8 police officer vacancies. Following
his non-selection under this vacancy announcement, the appellant filed a complaint with
the Department of Labor and then filed an appeal with the Board.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
found the agency in violation of VEOA regarding the selection process for a GS-7
police officer position, and remanded the case for further adjudication with respect
to the appellant’s non-selection for a GS-8 police officer position, and to consider a
possible USERRA claim:
1. The agency stated below that it did not consider the appellant for the GS-7
position because he “did not indicate interest in the GS-0083-07-position.” The
appellant’s résumé specifically indicated, however, that he was applying at both
the GS-7 and GS-8 levels. The Board concluded that the appellant is entitled to
corrective action because the agency’s admission that it did not consider his
application for the GS-7 position is sufficient to establish that the agency denied
him the opportunity to compete for the position as required by 5 U.S.C.
§ 3304(f)(1).
2. Regarding the GS-8 vacancy, the agency appears to have concluded that the
appellant was not qualified solely because of his status as a GS-6 and OPM’s
2
guidance that positions that are GS-6 and above require specialized experience of
“1 year equivalent to at least next lower grade level.” The agency failed to
consider the possibility that the appellant’s prior work experience qualified him
under this standard. Resolving this matter requires further adjudication on
remand.
3. Remand is also required to determine whether the appellant’s claim that the
agency discriminated against veterans was a component of his VEOA claim or,
alternatively, was a separate claim that the agency violated USERRA.
► Appellant: Marla W. Hunter
Agency: Department of Justice
Decision Number: 2008 MSPB 236
Docket Number: CB-7121-08-0012-V-1
Issuance Date: October 29, 2008
Appeal Type: Arbitration Appeals/Grievances
Action Type: Arbitration
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitrator’s decision that sustained her
removal on misconduct charges.
Holdings: The Board granted the request for review, as the appellant established
jurisdiction under 5 U.S.C. § 7121(d), but sustained the arbitrator’s decision. The
appellant failed to show that the arbitrator erred as a matter of law in sustaining
the charges and finding that discipline for the sustained misconduct promoted the
efficiency of the service, in finding that the appellant failed to establish retaliation
for protected EEO activity, or in determining that the removal penalty was
reasonable.
► Appellant: Joseph A. Williams
Agency: Department of the Treasury
Decision Number: 2008 MSPB 237
Docket Number: SF-4324-08-0284-I-1
Issuance Date: October 29, 2008
Appeal Type: Uniformed Services Employment and Reemployment Rights Act
(USERRA)
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
USERRA appeal for lack of jurisdiction without conducting a hearing. The appellant
had applied for, but was not selected for various Tax Compliance Officer positions with
the Internal Revenue Service. In dismissing the appeal, the AJ found it undisputed that
the appellant was a veteran with the requisite uniformed service, but that he failed to
make a nonfrivolous allegation that he was discriminated against based on his veteran
status.
3
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal for further adjudication:
1. To establish jurisdiction over a USERRA discrimination appeal, an appellant
must allege that (1) he performed duty or has an obligation to perform duty in a
uniformed service of the United States, (2) the agency denied him initial
employment, reemployment, retention, promotion, or any benefit of employment,
and (3) the denial was due to the performance of duty or obligation to perform
duty in the uniformed service. A claim of discrimination under USERRA should
be broadly and liberally construed, particularly where, as here, the appellant is
representing himself.
2. The first two elements are undisputed. As to the third, contrary to the AJ’s
unsupported statement, evidence that the agency hired a non-veteran instead of the
appellant does constitute a nonfrivolous allegation of discrimination sufficient to
establish USERRA jurisdiction.
3. An appellant who raises a USERRA claim has an unconditional right to a
hearing.
► Appellant: Gaby Markey
Agency: Department of Transportation
Decision Number: 2008 MSPB 238
Docket Number: NY-1221-05-0076-X-2
Issuance Date: October 30, 2008
Appeal Type: Individual Right of Action (IRA)
Compliance
This case was before the Board on the AJ’s Recommendation finding that the
agency breached the non-disclosure provision of the parties’ settlement agreement. The
AJ recommended that the Board grant the appellant’s petition for enforcement (PFE),
rescind the settlement agreement, and reinstate the appellant’s IRA appeal.
Holdings: The Board concurred with the AJ that the agency was in noncompliance
with the settlement agreement. When a party to a settlement agreement materially
breaches the agreement, the non-breaching party usually has the option of
enforcing the agreement, or rescinding the agreement and reinstating the appeal.
In some cases, however, such as this one, there is no effective way to enforce the
agreement, and the only option available to the non-breaching party is rescission.
Here, the appellant has stated that she does not want rescission. In the absence of
a viable enforcement remedy, the Board dismissed the appellant’s PFE. | 6,563 | |
Case Report - October 24, 2008 | 10-24-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_24_2008_374894.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_24_2008_374894.pdf | CASE REPORT DATE: October 24, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: James R. Beeler
Agency: Department of the Air Force
Decision Number: 2008 MSPB 233
Docket Number: DA-3443-05-0090-M-1
Issuance Date: October 21, 2008
Board Procedures/Authorities
- Withdrawal of Appeal
The appellant petitioned for review of an initial decision that dismissed his appeal
as withdrawn. After a hearing date had been set, the appellant’s attorney submitted a
Motion to Withdraw that contained a single sentence: “Appellant hereby withdraws the
above captioned appeal.” This pleading was signed by the attorney but not by the
appellant. On PFR, the appellant states, in a declaration made under penalty of perjury,
that his attorney withdrew his appeal without his consent.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal to the regional office for further adjudication:
1. An appellant’s relinquishment of his right to appeal to the Board must be by
clear, unequivocal, and decisive action. Absent unusual circumstances, the Board
will not reinstate an appeal once it has been withdrawn.
2.
This case is quite similar to Caracciolo v. Office of Personnel Management, 86
M.S.P.R. 601 (2000), in which the Board remanded the case for a determination
whether the withdrawal of the appeal is voluntary. As in Caracciolo, the
appellant’s declaration raises a genuine question of fact whether the appellant
acted in a clear, unequivocal, and decisive way to relinquish his Board appeal
rights.
2
► Appellant: Karyn Thomas
Agency: Department of Transportation
Decision Number: 2008 MSPB 234
Docket Number: SF-0752-07-0403-I-2
Issuance Date: October 22, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
Back Pay
Penalty
The agency petitioned for review of an initial decision that reversed the appellant’s
removal from her position as an Air Traffic Control Specialist. The removal was based
on a charge of “negligent or careless work performance that results in injury or danger
of injury to either the individual involved or others.” There were four specifications,
the last relating to an incident during with the appellant allegedly failed to observe
display data regarding an aircraft’s departure from San Diego, failed to ensure that
aircraft’s separation from adjacent airspace, failed to comply with rules regarding
handoff altitudes with the neighboring Pt. Magu Approach Control, and failed to
recognize an adverse situation and take corrective action.
Following a hearing, the AJ reversed the removal, finding that, under the terms of
the collective bargaining agreement, the agency’s first three specifications were
untimely and could only be considered in relation to a penalty determination. The AJ
found that the agency failed to prove the fourth specification on the basis that the
“minimum acceptable separation was not lost and the agency did not charge the
appellant with an Operational Error reflecting such loss.” The AJ also found that the
appellant failed to prove her affirmative defenses. The AJ ordered the agency to cancel
the removal and restore her retroactively with the appropriate amount of back pay.
Holdings: The Board granted the agency’s PFR, reversed the initial decision’s
finding that the agency failed to prove its charge, affirmed the initial decision’s
findings regarding the appellant’s affirmative defenses, and sustained the removal
action:
1. The Board denied the appellant’s motion to dismiss the agency’s petition based
upon its refusal to provide the ordered back pay. The agency correctly argued that
it is not subject to the Back Pay Act, and that the AJ erred in ordering back pay.
2. The AJ’s analysis erroneously found an Operational Error to be synonymous
with the offense of “negligent or careless work performance that results in injury
or danger of injury to others.” To prove negligence, an agency must show a failure
to exercise the degree of care required under the particular circumstances which a
person of ordinary prudence in the same situation and with equal experience would
not omit. After considering the evidence of record, the Board concluded that the
agency proved such negligence by a preponderance of the evidence.
3. The removal penalty was reasonable under the circumstances. | 4,632 | |
Case Report - October 17, 2008 | 10-17-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_17_2008_373470.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_17_2008_373470.pdf | CASE REPORT DATE: October 17, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Jonathan F. Sink
Agency: Department of Energy
Decision Number: 2008 MSPB 231
Docket Number: DE-0752-07-0333-I-1
Issuance Date: October 9, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Interim Relief
Miscellaneous Topics
- Remedies – Status Quo Ante Relief
The agency petitioned for review of an initial decision that found that the
appellant’s retirement was involuntary, and which ordered interim relief as well as
reinstatement and back pay. Pursuant to a reorganization, the agency directed the
appellant’s reassignment from Colorado to Washington, D.C. After the appellant
declined the reassignment “under duress and protest,” the agency proposed his removal.
Prior to a decision on the removal action, the appellant retired and he filed a timely
appeal to the Board. After a hearing, the AJ found that: The agency’s reorganization
was bona fide and the agency therefore had a valid reason to direct the appellant’s
reassignment; because the directed reassignment was proper, the appellant failed to
prove that the agency’s removal action coerced his retirement decision; the appellant
failed to prove his claim of age discrimination; and the retirement was involuntary
because the agency incorrectly led him to believe that his FEHB health insurance would
be cancelled if he was removed.
Holdings: The Board affirmed the AJ’s finding that the appellant’s retirement was
involuntary because of agency misinformation regarding his health insurance
coverage, but modified the decision as to both interim and final relief:
1. The purpose of interim relief under 5 U.S.C. § 7701(b)(2)(A) is not to make the
appellant whole at the interim relief stage of the proceedings, but rather to protect
2
him from hardship during the pendency of his appeal if he prevails. Here, the
interim relief order required the agency to place the appellant in his former
position, which had been abolished, and the appellant would not have suffered an
undue hardship in waiting for the final order given that he was receiving a
retirement annuity. Ordering the agency to provide interim relief under these
circumstances was inappropriate.
2. When the Board orders an agency to cancel an action, the goal is to, as nearly as
possible, place the appellant in the status quo ante, i.e., in the situation in which he
would have been had the wrongful personnel action not occurred. The appellant is
not entitled to be placed in a better position than he would have enjoyed had the
adverse action not occurred. Here, the Board has determined that the agency’s
action directing the appellant’s reassignment was proper, and it seems likely that
the agency would have decided to remove him had he not retired. In that event,
however, the appellant would have been entitled to a discontinued service
retirement under 5 U.S.C. § 8336. Thus, even in the absence of the misinformation
from the agency regarding his health insurance, the appellant likely would have
been separated and retired shortly after he did so. Under these circumstances, the
appropriate relief is to cancel the appellant’s involuntary retirement, restore him
with appropriate back pay and other benefits from the time of his retirement until
the date he would have otherwise been separated from service, and adjust his
retirement annuity accordingly, taking into account his entitlement to a
discontinued service retirement.
► Appellant: John W. Castellano
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 232
Docket Number: SF-831M-08-0492-I-1
Issuance Date: October 16, 2008
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Jurisdiction
- Final Agency Decision
The appellant petitioned for review of an initial decision that dismissed his appeal
as withdrawn. OPM determined that the appellant had been overpaid $9,425 because
the Social Security offset was not applied at the time of his retirement. In a later,
clarifying letter, OPM explained that its determination applied only to an overpayment
relating to the Social Security offset, noting that there was a separate issue relating to
the appellant’s withdrawals from his Thrift Savings Plan (TSP) account, but there
would be no attempt to collect any overpayment about the TSP matter until OPM
reviewed the matter further and issued a new decision. On appeal to the Board, OPM
informed the AJ that it was terminating collection of the overpayment and moved to
dismiss the appeal. In light of OPM’s action, the appellant withdrew his appeal, and the
initial decision indicated that OPM had terminated collection of the total overpayment
amount of $21,962. In his PFR, the appellant argues that he would not have withdrawn
his appeal had he known that only the $9,245 overpayment amount was being waived.
3
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
dismissed the appeal for lack of jurisdiction:
1. With exceptions not applicable here, the Board has no jurisdiction over a
retirement matter until after OPM has issued a final or reconsideration decision
adjudicating the matter.
2. Since OPM has withdrawn its final determination regarding an overpayment for
the Social Security offset, there is no final OPM decision for the Board to review as
to that matter.
3. Similarly, OPM has not issued a final decision with respect to any overpayment
relating to the appellant’s withdrawals from his TSP account. | 5,813 | |
Case Report - October 10, 2008 | 10-10-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_10_2008_372321.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_10_2008_372321.pdf | CASE REPORT DATE: October 10, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Daniel T. Mapstone
Agency: Department of the Interior
Decision Number: 2008 MSPB 224
Docket Number: AT-3443-07-0076-B-1
Issuance Date: September 26, 2008
Jurisdiction
Miscellaneous Agency Actions
- Employment Practices
The appellant petitioned for review of a remand initial decision that dismissed his
employment practices appeal for lack of jurisdiction.
Holding: The Board granted the appellant’s PFR, reversed the remand initial
decision, and remanded the appeal to the regional office for further adjudication,
finding that the appellant had established both criteria for jurisdiction over an
employment practices appeal under 5 C.F.R. § 300.104(a): (1) The appeal concerns
an employment practice that OPM is involved in administering; and (2) the
employment practice is alleged to have violated one of the “basic requirements” for
employment practices in 5 C.F.R. § 300.103.
► Appellant: Jonathan M. McFarlane
Agency: United States Postal Service
Decision Number: 2008 MSPB 225
Docket Number: NY-0752-08-0078-I-1
Issuance Date: September 29, 2008
Jurisdiction
Restoration
The appellant petitioned for review of the initial decision that dismissed his appeal
for lack of jurisdiction. The appeal concerned the appellant’s proper placement and
2
ability to perform following his recovery from an on-the-job injury, where his previous
position had been abolished during his absence from the workplace.
Holdings: The Board affirmed the initial decision as modified, still dismissing the
appeal for lack of jurisdiction:
1. The AJ properly found that the Board would have no jurisdiction over the
appeal except as a potential restoration rights appeal under 5 U.S.C. § 8151 and
5 C.F.R. Part 353. There was no jurisdiction as an adverse action, as the appellant
was not an “employee” under 5 U.S.C. § 7511.
2. The appellant failed to raise nonfrivolous allegations establishing jurisdiction
over his restoration rights claims.
► Appellant: Patricia K. Zelenka
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 228
Docket Number: PH-831M-07-0316-B-1
Issuance Date: October 3, 2008
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
The appellant petitioned for review of a remand initial decision that found that she
was not entitled to a waiver of the recovery of an annuity overpayment. In a previous
decision, 2007 MSPB 308, 107 M.S.P.R. 522, the Board affirmed OPM’s determination
that the appellant had received an overpayment of $45,341.22, and that she was without
fault in the creation of the overpayment, but remanded because the record was
insufficient to determine whether the appellant was entitled to waiver of the
overpayment on grounds of financial hardship. On remand, the AJ reviewed the
appellant’s updated income and expense documentation, and determined that the
appellant is not eligible for a waiver.
Holdings: The Board affirmed the remand initial decision as modified, still finding
that the appellant is not entitled to a waiver:
1. Financial hardship exists when the annuitant needs substantially all of her
current income and liquid assets to meet current ordinary and necessary living
expenses and liabilities. The Board determined that the appellant’s monthly
income is $6,800 and her total monthly expenses are $6,605. Accordingly, she is
not eligible for a waiver of the overpayment on grounds of financial hardship.
2. Under the circumstances of this case, the Board is without authority to
adjudicate the appellant’s possible entitlement to an adjustment of the recovery
schedule.
3
► Appellant: Rosanne M. Greco
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 227
Docket Number: PH-3330-08-0252-I-1
Issuance Date: October 3, 2008
Appeal Type: Veterans Employment Opportunities Act
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed her VEOA
appeal as untimely filed. On January 30, 2008, the appellant submitted an apparently
untimely Board appeal, as it was submitted more than 15 days after the Department of
Labor’s notice that it was unable to resolve her complaint. The appellant filed a
response to the AJ’s show-cause order indicating that she did not receive DOL’s letter
until after the filing deadline had passed because, at that time, she was not living at the
mailing address she gave to DOL and she had no access to the email address that she
gave DOL. The AJ dismissed the appeal as untimely filed by 6 days, concluding that
equitable tolling was not warranted because the circumstances that the appellant
described were not beyond her control, but rather constituted nothing more than a claim
of excusable neglect.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal for adjudication on the merits:
1. When an appellant timely files a submission that does not satisfy the Board’s
criteria for an appeal, but that nevertheless manifests an intention to file an
appeal, this constitutes compliance with the filing time limit.
2. Here, the appellant faxed the Board’s regional office a submission on
January 17, which was sufficient for the regional office to contact the appellant on
January 30 to inform her that it had received the fax, but not the appeal itself. The
appellant acted diligently when she cured her incomplete filing the same day the
regional office alerted her to the problem.
► Appellant: Jennifer Henry
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 229
Docket Number: NY-0752-03-0330-P-1
NY-0752-03-0330-A-1
Issuance Date: October 3, 2008
Appeal Type: Adverse Action by Agency
Action Type: Compensatory Damages, Attorney Fees
Board Procedures/Authorities
- Dismissals – With/Without Prejudice
The appellant petitioned for review of two initial decisions that dismissed her
appeals requesting compensatory damages and attorney fees without prejudice to
refiling because of an EEOC proceeding.
4
Holding: The Board denied the PFRs, but forwarded the appeals to the regional
office for adjudication as timely refiled appeals. The Board need not reach the
issue whether the AJ abused her discretion in dismissing the appeals because the
EEOC has now issued the decision that was the basis for the dismissals.
► Appellant: Larry M. Dow
Agency: General Services Administration
Decision Number: 2008 MSPB 226
Docket Number: SF-3443-02-0159-X-1
Issuance Date: October 3, 2008
Compliance
This case was before the Board following its previous decision, 2008 MSPB 194,
109 M.S.P.R. 342, which found that the agency was in noncompliance with its
obligations under VEOA, and ordered the agency to do the following: (1) Remove a
named individual and any others selected for the position in question; (2) reconstruct
certificates of eligibles that contain at least 3 names for appointment; and (3) if the
agency wishes to select an applicant who is a non-preference eligible over the appellant
for the position, it must obtain evidence of OPM’s approval under 5 U.S.C.
§ 3318(b)(1).
Holding: The agency has done what was ordered in the Board’s previous decision
and is therefore in compliance with its obligations. The Board rejected the
appellant’s argument that the agency is not in compliance because is has failed to
designate a selectee. Neither VEOA nor OPM’s regulations require the agency to
select an individual for a vacancy. Accordingly, the Board dismissed the
appellant’s petition for enforcement.
► Appellant: Stephen A. Downs
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 330
Docket Number: AT-3330-08-0385-I-1
AT-4324-08-0389-I-1
Issuance Date: October 6, 2008
Appeal Type: Veterans Employment Opportunities Act
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed both his
USERRA and VEOA appeals for lack of jurisdiction. Both appeals related to the
appellant’s non-selection for a vacancy with the agency. In both instances, the AJ
based his ruling on the appellant’s discharge from the military under other than
honorable conditions.
Holdings: The Board affirmed the initial decision in part by dismissing the
appellant’s USERRA appeal for lack of jurisdiction. It vacated the initial decision
5
as to the VEOA appeal, concluding that the Board has jurisdiction, but denying the
appellant’s request for corrective action on the merits:
1. The Board denied the appellant’s request for corrective action under VEOA on
the merits.
a. Under 5 U.S.C. § 3304(f)(1), VEOA rights apply to preference eligibles or
veterans who have been separated from the armed forces under honorable
conditions after 3 years or more of active service. The AJ addressed only the
second of these criteria. The appellant is a preference eligible within the
meaning of 5 U.S.C. § 2108 because he qualifies as a “disabled veteran.”
b. On the merits, preference eligibles are guaranteed the right to compete under
merit promotion procedures whenever the agency accepts applications from
outside its own workforce. But unlike in the competitive examination
process, preference eligible veterans are not entitled to any point preferences
in the merit promotion process. Here, the appellant was allowed to compete
for the position at issue; he was interviewed, and his name was among those
forwarded to the selecting official for consideration. Under these
circumstances, the agency did not violate the appellant’s veterans’
preference rights.
2. The Board lacks jurisdiction over the appellant’s USERRA appeal.
a. Although the appellant meets the Board’s general USERRA jurisdictional
test, the Board lacks jurisdiction over his USERRA claim under 38 U.S.C.
§ 4304, which provides that a person’s entitlement to the benefits of the
statute terminates upon the separation of the claimant “under other than
honorable conditions.”
b. Although it has previously held that an appellant who raises a USERRA
claim has an unconditional right to a hearing, the Board clarified that a
USERRA claimant is entitled to a hearing only upon establishing Board
jurisdiction over his appeal.
COURT DECISIONS
► Petitioner: Lance Greenstreet
Respondent: Social Security Administration
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3312
Issuance Date: September 24, 2008
Arbitration/Collective Bargaining-Related Issues
Penalty
The court reviewed an arbitrator’s decision that found that the employee’s
termination was an excessive penalty and ordered his reinstatement without back pay.
Holding: Relying on MSPB precedent, the court held that the length of the
employee’s suspension was arbitrary when based solely on his “time served.” The
6
court vacated the arbitrator’s decision and remanded for a new determination of
the appropriate length of the suspension.
► Petitioner: Matthew R. Drake
Respondent: Agency for International Development
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3048
Issuance Date: October 7, 2008
Whistleblower Protection Act
- Protected Disclosure
The petitioner appealed the Board’s final decision, 107 M.S.P.R. 251 (2007) (Final
Order, Member Sapin dissenting), which upheld the AJ’s determination that the
petitioner did not make a protected whistleblowing disclosure. After attending two
parties at the U.S. Embassy in Budapest, the appellant sent an email to an Assistant
Inspector General stating that he “witnessed large amounts of alcoholic beverages being
served, extensive toasting, and intoxication of USAID and Dep’t of State Personnel
while on duty, including the Deputy Chief of Mission, Mission Director, Regional Legal
Advisor, Regional Inspector General, and other representatives of the U.S.
government.” Less than a month after sending the email, the appellant’s supervisor
wrote a memorandum recommending that the appellant be transferred to Washington,
D.C.
In a previous decision, 103 M.S.P.R. 524 (2006), the Board held that the appellant
had made nonfrivolous allegations of jurisdiction and remanded the case to the regional
office. On remand, the AJ determined that the appellant had not made a protected
disclosure based on three separate theories: (1) that 3 FAM 4542 (the agency’s table of
penalties) is not a law, rule, or regulation; (2) that, even if 3 FAM 4542 was a law, rule,
or regulation, the violation was of “such a trivial nature” that the petitioner could not
reasonably believe he was reporting a genuine violation; and (3) that, even if 3 FAM
4542 was a law, rule, or regulation, a disinterested observer could not have concluded
that the petitioner’s disclosure evidenced a violation.
Holding: Because the AJ erred in concluding that the petitioner had not made a
whistleblowing disclosure protected under 5 U.S.C. § 2302(b)(8), the court reversed
and remanded the case to the MSPB for further adjudication:
1. The agency concedes that 3 FAM 4542 is a law, rule, or regulation under the
WPA.
2. The AJ misinterpreted the court’s holdings in Langer v. Department of the
Treasury, 265 F.3d 1259 (Fed. Cir. 2001) and Herman v. Department of Justice, 193
F.3d 1375 (Fed. Cir. 1999) in finding that the petitioner’s email was “a disclosure
of a trivial violation [that] does not constitute a protected disclosure.” Based on
the facts in those cases, the court held that the relevant disclosures were not
protected because they disclosed, at most, minor and inadvertent miscues
occurring in the conscientious carrying out of one’s assigned duties, not violations
of laws, rules, or regulations. Here, the alleged intoxication of agency personnel
reported by the petitioner was the result of deliberate and intentional consumption
7
of alcohol during working hours and would result in a violation of a law, rule, or
regulation.
3. The AJ correctly articulated the correct test—that “in order to show that he
reasonably believed 3 FAM had been violated, the appellant would be required to
show that a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by him reasonably could conclude that employees were
intoxicated—in application the AJ required the petitioner to prove that the agency
employees were actually intoxicated. This was error. The petitioner did establish
that a reasonable person in his position could conclude that the employees were
intoxicated. | 14,739 | |
Case Report - September 26, 2008 | 09-26-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2008_369319.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2008_369319.pdf | CASE REPORT DATE: September 26, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Royal L. Booker
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 216
Docket Number: DC-0752-07-0911-I-1
Issuance Date: September 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Sexual Misconduct/Harassment
The appellant petitioned for review of an initial decision that sustained the
agency’s removal action based on a charge of sexual harassment of a co-worker. After
a hearing, the AJ found the co-worker more credible than the appellant, determined that
he created a hostile working environment violating the agency’s policy on sexual
harassment, and that removal was a reasonable penalty. On review, the appellant
argued that his conduct did not create a hostile work environment under the agency
policy, that the agency was required to prove a Title VII violation and that it did not
meet that burden, and that the removal penalty was unreasonable.
Holdings: The Board granted the appellant’s PFR and affirmed the initial decision
as modified, still sustaining the agency’s removal action:
1. The charge of sexual harassment required proof under the Title VII standard.
a. When an agency charges an employee with violating its sexual harassment
policy and that policy explicitly references the Title VII standard, the Title
VII standard must be applied. The agency also bears this burden if its
sexual harassment policy tracks Title VII regulations, even if it does not
explicitly reference them.
2
b. Here, the agency relied on a Memorandum entitled “Prevention of Sexual
Harassment,” which explicitly references Title VII and tracks Title VII
regulations regarding sexual harassment.
2. After examining the evidence of record, the Board concluded that the appellant’s
conduct created a hostile work environment under Title VII.
3. The Board concurred with the AJ’s determination that removal was a reasonable
penalty.
► Appellant: Steven Kravitz
Agency: Department of the Navy
Decision Number: 2008 MSPB 221
Docket Number: SF-0353-04-0204-B-5
Issuance Date: September 19, 2008
Action Type: Restoration to Duty After Recovery from Compensable Injury
Miscellaneous Agency Actions
- Restoration to Duty
The appellant’s counsel (the appellant is deceased) petitioned for review of a
remand initial decision that found that the appellant failed to timely file an appeal of
the agency’s failure to restore him to duty following a compensable injury. This appeal
has been before the Board twice previously, 98 M.S.P.R. 443 (2005), and 104 M.S.P.R.
483 (2007).
Holdings: The Board granted the PFR, denied the agency’s cross-PFR, reversed
the remand initial decision, and remanded the case to the regional office for
adjudication on the merits:
1. The AJ correctly found that the appellant’s applications for certain positions
were pending during the restoration period. If a physically disqualified employee
files an application for a vacant position during the year following the issuance of
his OWCP award, his application will be construed as a timely request for
restoration. Here, the appellant’s applications were pending at the time he became
eligible for an OWCP award, and he continued to inquire about these positions
during the year following the issuance of his OWCP award. Under these
circumstances, the appellant timely requested restoration.
2. The AJ erred when he found that the appellant did not establish good cause for
waiver of the Board’s time limit for filing the appeal. The proper standard is the
one that requires an appellant to be diligent in discovering and exercising his
restoration rights. The Board has rejected the AJ’s determination that the
agency’s notification of appeal rights with respect to the appellant’s removal gave
him adequate notice of his right to appeal the restoration action. Because the
appellant established good cause for his untimely filing, the appeal must be decided
on the merits.
3
► Appellant: Stephen W. Gingery
Agency: Department of the Treasury
Decision Number: 2008 MSPB 217
Docket Number: CH-3443-08-0256-I-1
Issuance Date: September 19, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his VEOA
appeal for lack of jurisdiction. In his appeal, the appellant claimed that his veterans’
preference rights were violated in connection with his application for a position with
the IRS. During the Department of Labor’s investigation, the agency admitted that it
violated the appellant’s rights and that he would be permitted to take the test used to
assess whether candidates possess the requisite skills for the position. The appellant
walked out of the test before completing it and questioned the validity of the test. The
AJ dismissed the appeal for lack of jurisdiction, finding that the appellant failed to
exhaust his remedy with DOL, that he lacks standing to file a Board appeal because
DOL resolved his complaint, and that his appeal was untimely filed.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal to the regional office for further adjudication:
1. The appellant did exhaust his remedy with DOL, and DOL’s “resolution” of his
complaint did not deprive the Board of jurisdiction.
Just as the Federal Circuit
held in Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007), that
Congress did not intend for DOL to have the final word in determining the
timeliness of VEOA complaints, the Board found that Congress did not intend for
DOL to have the final word as to what constitutes an appropriate remedy for a
violation of veterans’ preference rights.
2.
Here, as in Heckman v. Department of the Interior, 2008 MSPB 128, 109 M.S.P.R.
133, the agency violated the appellant’s veterans’ preference rights by denying him
the right to compete for a particular position under a vacancy announcement.
3. The appellant’s VEOA appeal was filed beyond the statutory time limit, but may
be subject to equitable tolling under Kirkendall. The appeal must be remanded for
the AJ to provide the parties an opportunity to address whether equitable tolling is
appropriate. If the time limit is tolled, the appeal must be adjudicated on the
merits.
4
► Appellant: Raymond Marshall
Agency: Department of Health and Human Services
Decision Number: 2008 MSPB 215
Docket Number: AT-3443-06-0811-X-1
Issuance Date: September 19, 2008
Compliance
This case was before the Board based on the AJ’s Recommendation finding the
agency in concompliance with a final Board order, which found that the agency violated
the appellant’s veterans’ preference rights under VEOA, and ordered corrective action.
The AJ found that the agency had failed to reconstruct the selection process as ordered
by the Board.
Holdings: The Board found that the agency remains in noncompliance:
1.
As in Endres v. Department of Veterans Affairs, 2007 MSPB 301, 107 M.S.P.R.
455, a proper reconstruction of the selection process required the agency to:
(1) remove the non-preference eligible selectee from the position in question;
(2) reconstruct the certificate of eligibles; and (3) if the agency wished to select an
applicant who was a non-preference eligible over the appellant, submit evidence
that the agency obtained OPM’s approval for a passover under 5 U.S.C.
§ 3318(b)(1).
2. Here, the agency has provided no evidence that it removed the selected
individual, nor that it has reconstructed the selection process in accordance with
the law.
► Appellant: Patrick D. Easterling
Agency: United States Postal Service
Decision Number: 2008 MSPB 214
Docket Number: AT-0752-08-0292-I-1
Issuance Date: September 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
Settlement
- Last-Chance Agreement
The appellant petitioned for review of an initial decision that dismissed his
removal appeal, which was based on the appellant’s alleged violation of a last-chance
settlement agreement (LCA), for lack of a nonfrivolous allegation of jurisdiction.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal to the regional office for further adjudication:
1. An appellant must receive explicit information on what is required to establish
an appealable jurisdictional issue. Here, the AJ failed to provide the appellant
with a proper jurisdictional notice.
5
2. To establish that a waiver of appeal rights in a LCA should not be enforced, an
appellant must show one of the following: (1) He complied with the LCA; (2) the
agency materially breached the LCA or acted in bad faith; (3) he did not
voluntarily enter into the LCA; or (4) the LCA resulted from fraud or mutual
mistake. Here, the appellant made a nonfrivolous allegation that he did not violate
the LCA.
► Appellant: Agnes C. Smith
Agency: Department of the Army
Decision Number: 2008 MSPB 220
Docket Number: DC-0752-06-0775-I-1
Issuance Date: September 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFR
The appellant petitioned for review of an initial decision that dismissed her appeal
as untimely filed. She filed her FPR 15 months after the deadline for timely fililng.
Holding: The Board dismissed the PFR as untimely filed without good cause for
the delay, rejecting the appellant’s arguments that the delay was caused by her
attorney’s negligence or by medical impairments.
► Appellant: Valerie L. Scott
Agency: Social Security Administration
Decision Number: 2008 MSPB 219
Docket Number: PH-0752-07-0506-I-2
Issuance Date: September 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness – PFR
Discrimination
- Mixed Case Procedures
The appellant petitioned for review of an initial decision that affirmed the agency’s
removal action.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown. It reopened the appeal on its own motion for the limited purpose of
providing the appellant with mixed-case appeal rights.
6
► Appellant: Caulton D. Allen
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 218
Docket Number: DC-0752-07-0694-X-1
Issuance Date: September 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
Mootness
This case was before the Board following a previous Opinion and Order, 2008
MSPB 173, which found the appellant in breach of the parties’ settlement agreement for
not dismissing EEOC and federal court proceedings.
Holdings: Because the EEOC has dismissed the appellant’s discrimination
complaint, and the U.S. District Court has dismissed the appellant’s pending civil
action, the agency’s petition for enforcement is now moot.
► Appellant: Omar E. Rivera
Agency: Department of the Air Force
Decision Number: 2008 MSPB 223
Docket Number: AT-3443-08-0301-I-1
Issuance Date: September 23, 2008
Board Procedures/Authorities
- Dismissals – With/Without Prejudice
The appellant petitioned for review of an initial decision that dismissed his
USERRA appeal for lack of jurisdiction. The AJ’s determination was based on the
Board’s decision in Russell v. Equal Employment Opportunity Commission, 107
M.S.P.R. 171 (2007), which is currently on appeal to the Court of Appeals for the
Federal Circuit.
Holdings: The Board has requested the Federal Circuit to remand the case for
reconsideration and a new decision. Because the outcome of the Russell appeal will
directly impact the outcome of the present appeal, the Board found it appropriate
to dismiss the appeal without prejudice to its automatic refiling when the Federal
Circuit remands Russell back to the Board.
7
► Appellant: Mark H. Brigham
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 222
Docket Number: NY-0845-07-0337-I-1
Issuance Date: September 19, 2008
Appeal Type: FERS - Collection of Overpayment
Action Type: Retirement/Benefit Matter
Board Procedures/Authorities
- Dismissals – With/Without Prejudice
OPM petitioned for review of an initial decision that reduced the amount of the
overpayment it had determined was due. The appellant died during the processing of
the appeal, and the Clerk of the Board informed his sister that a representative of the
appellant’s estate has the right to be substituted as a party to the appeal. The sister has
informed the Board that the appellant’s estate is in litigation and that a personal
representative for the estate has not yet been determined.
Holding: Under these circumstances, the Board determined that the appropriate
action was to dismiss the appeal without prejudice, subject to refilling within 60
days.
► Appellant: William J. Parks
Agency: United States Postal Service
Decision Number: 2008 MSPB 213
Docket Number: AT-0752-06-0167-E-1; AT-0752-06-0166-E-1
Issuance Date: September 18, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Discrimination
- Mixed Case Procedures
The EEOC referred this case to the Board for further consideration under 5 U.S.C.
§ 7702(b)(5)(B) because it disagreed with the Board’s final orders in these appeals.
Holding: The Board concurred in and adopted the EEOC’s finding that the agency
engaged in disability discrimination against the appellant, and ordered the agency
to provide appropriate relief. The Board must defer to the EEOC on a
discrimination issue unless the EEOC decision depends upon civil service law for
its support or is so unreasonable that it amounts to a violation of civil service law.
Here, the EEOC decision rests solely upon an interpretation of discrimination law,
and there is no basis to conclude that the EEOC decision is so unreasonable that it
amounts to a violation of civil service law. | 14,030 | |
Case Report - September 19, 2008 | 09-19-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2008_368048.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2008_368048.pdf | CASE REPORT DATE: September 19, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Gregory E. Shapley
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 212
Docket Number: AT-3443-07-0829-I-1
Issuance Date: September 17, 2008
Miscellaneous Agency Actions
USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his request
for corrective action under VEOA for failure to state a claim upon which relief can be
granted. The appellant applied, but was not selected, for the position of Bridge
Program Administrator, GS-14/15. Previous to this vacancy announcement and
selection, the agency advertised and filled the position of Bridge Management
Specialist, GS-13/15. Because the agency improperly selected a person for the earlier
vacancy before the closing date of the vacancy announcement, and therefore did not
consider the applications of two other persons who applied before the deadline, the
agency gave them priority consideration for the Bridge Program Administrator position.
The selecting official for the latter position was told that he had to make a yes or no
decision on hiring one of the two priority candidates, that he had to justify a decision
not to hire one of priority candidates, and that as a result, he did not consider the
appellant for the position.
In his VEOA appeal, the appellant alleged that the agency violated 5 U.S.C.
§ 3304(f)(1) by filling the Bridge Program Administrator position through priority
consideration without allowing him to compete for the position. The AJ found that the
agency had discretion to fill the vacancy by any authorized method, that the agency
properly granted priority consideration to the two candidates other than the appellant,
and dismissed the appeal for failure to state a claim upon which relief can be granted.
2
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered the agency to reconstruct the selection process for the position for
which he had applied:
1. The appellant satisfied the jurisdictional elements for a VEOA claim: he
exhausted his remedy with the Department of Labor; he is a preference eligible and
the events took place after enactment of VEOA; and he alleged that the agency
violated 5 U.S.C. § 3304(f)(1), a law relating to veterans’ preference.
2. Under the plain language of § 3304(f)(1), all covered individuals must be
permitted to compete where, as here, applications will be accepted from persons
outside the hiring agency’s work force.
3. At issue is whether the appellant was provided a bona fide opportunity to
compete for the position. Under the circumstances of this case, the Board
answered that question in the negative. The mere fact that the appellant’s name
was on the certificate of eligibles does not suffice. The selecting official conceded
that the appellant’s application was not actually considered.
4. The proper remedy for a VEOA violation is reconstruction of the selection
process in compliance with applicable statutes and regulations relating to veterans’
preference.
► Appellant: Tracy L. Beverly
Agency: Department of Justice
Decision Number: 2008 MSPB 211
Docket Number: DA-3443-07-0572-I-1
Issuance Date: September 15, 2008
Timeliness - PFR
The appellant petitioned for review of an initial decision that dismissed her appeal
for lack of jurisdiction. The AJ informed the appellant that the initial decision would
become final on January 25, 2008, unless a petition for review was filed by that date.
The appellant’s PFR was not filed until April 14.
Holding: The Board dismissed the PFR as untimely filed with no showing of good
cause for the delay. | 3,974 | |
Case Report - September 12, 2008 | 09-12-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2008_366735.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2008_366735.pdf | CASE REPORT DATE: September 12, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Balsam Y. Sabbagh
Agency: Department of the Army
Decision Number: 2008 MSPB 208
Docket Number: DC-1221-08-0184-W-1
Issuance Date: September 9, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Exhaustion of Remedy
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed her IRA
appeal as untimely filed. She alleged that the agency retaliated against her for making
protected disclosures to the Inspector General at the Department of Defense and the
Secretary of the Army. After finding that the appellant sought corrective action from
OSC, the AJ dismissed the IRA appeal as untimely filed by 33 months and not subject
to waiver or equitable tolling.
Holdings: The Board affirmed the initial decision as modified, dismissing the
appeal for lack of jurisdiction:
1. Before filing an IRA appeal with the Board of an action that is not an “otherwise
appealable action,” the individual must first seek corrective action from OSC as
required by 5 U.S.C. § 1214(a)(3). To satisfy this exhaustion requirement, an
appellant must inform OSC of the precise ground of her charge of whistleblowing,
giving OSC a sufficient basis to pursue an investigation which might lead to
corrective action.
2. Sections 1213 and 1214 of Title 5, United States Code, give OSC different
responsibilities with respect to whistleblowing disclosures. Under section 1213,
whenever OSC receives a disclosure of this nature, it reviews the information to
determine whether there is a substantial likelihood that the information discloses
2
such wrongdoing. If OSC makes a positive determination, it transmits the
information to the appropriate agency head and requires the agency head to
conduct an investigation and submit a written report. Under section 1214, OSC
investigates complaints that an agency has committed prohibited personnel
practices, including retaliation for whistleblowing under 5 U.S.C. § 2302(b)(8), and
may seek corrective action on behalf of the complainant. An IRA appeal under
5 U.S.C. § 1221 only arises with respect to matters under section 1214.
3. The appellant did not file a complaint (Form OSC-11) under section 1214. She
filed a disclosure (Form OSC-12) under section 1213. There is no indication that
the appellant ever sought corrective action from OSC for a prohibited personnel
practice described in 5 U.S.C. § 2302(b)(8). Accordingly, she did not exhaust her
remedy with OSC as required by 5 U.S.C. § 1214(a)(3), and the appeal must be
dismissed for lack of jurisdiction.
► Appellant: Judy Lynne Aldridge
Agency: Department of Agriculture
Decision Number: 2008 MSPB 209
Docket Number: DC-0752-07-0821-I-1
Issuance Date: September 10, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement
The appellant petitioned for review of an initial decision that affirmed her removal.
The agency proposed the appellant’s removal from her position as a GS-13 Management
Analyst based on 3 charges of misconduct. Prior to the issuance of a decision letter,
she retired under a voluntary early retirement program. In a declaration made under
penalty of perjury, the appellant alleged that she was called into a meeting with the
deciding official, and informed that she was being terminated as of that day. She said
she asked if that meant she would lose her retirement benefits, and both the deciding
official and a Human Resources specialist replied in the affirmative. After telling
management officials that she had no intention of retiring, the deciding official told the
appellant that she would hold her decision in abeyance until the following Monday for
the appellant to sign retirement papers, and if this was not done, the termination
decision would be issued.
The AJ determined that, notwithstanding the lack of a written decision, the
appellant had been removed based on the charges set forth in the notice of proposed
removal. Following a hearing on the merits, the AJ sustained 2 of the 3 charges in their
entirety and the other charge in part. He further found that the appellant failed to
establish her affirmative defenses, and that the removal penalty was reasonable.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal to the regional office for a hearing on whether the appellant’s
retirement was the result of agency misinformation, and therefore an involuntary
act within the Board’s jurisdiction:
3
1. It is true that, once a decision to remove has been issued, the appellant retains
appeals rights under 5 U.S.C. § 7701(j) even if she separates from the service
through retirement. In this case, however, the agency neither issued a decision nor
effected the appellant’s removal. It was therefore error for the AJ to address the
merits of the proposed action.
2. The appellant made a nonfrivolous allegation that her retirement was
involuntary, and is therefore entitled to a jurisdictional hearing.
a. A decision to retire is presumed to be a voluntary act outside the Board’s
jurisdiction. Once an appellant makes a nonfrivolous allegation casting
doubt on the presumption of voluntariness, she has the right to a hearing on
the issue of Board jurisdiction.
b. One means by which an appellant may overcome the presumption of
voluntariness is by showing that the retirement was obtained by agency
misinformation or deception. In her declaration, the appellant stated that
she was informed by her second-line supervisor and a Human Resources
specialist that her removal would result in the loss of her retirement
benefits, and that the fear of losing retirement benefits after more than 28
years of federal service induced her to retire. The agency officials’
statements were incorrect; had the agency proceeded with the proposed
removal, the appellant would have remained eligible for deferred retirement
upon reaching the age of 62.
► Appellant: Robert W. Minor
Agency: Department of the Air Force
Decision Number: 2008 MSPB 206
Docket Number: AT-0432-07-0965-I-1
Issuance Date: September 8, 2008
Appeal Type: Performance
Action Type: Removal
Timeliness - PFR
The appellant petitioned for review of an initial decision that affirmed his removal.
The PFR was filed more than two months after the deadline for timely filing.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown. The appellant’s explanations did not contain a showing of how his personal
difficulties affected his ability to timely file his petition or request an extension of
time.
► Appellant: Frances A. Raleigh
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 207
Docket Number: DA-0752-08-0108-I-1
Issuance Date: September 9, 2008
Appeal Type: Adverse Action by Agency
4
Action Type: Removal
Timeliness - PFR
The appellant petitioned for review of an initial decision that dismissed her appeal
as untimely filed. The PFR was filed more than a month and a half after the deadline
for timely filing.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown. The appellant’s primary argument was that she was medicated for her
medical condition to the extent that she was unable to function, but her evidence
only shows that she was on medication in 2005 and 2007, outside of the relevant
period in 2008.
► Appellant: Stephan D. Evans
Agency: United States Postal Service
Decision Number: 2008 MSPB 210
Docket Number: SF-0752-06-0193-X-1
Issuance Date: September 10, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
This case was before the Board based on a finding that the agency was in
noncompliance with a final Board Order that required the agency to cancel the
appellant’s removal and place him in a lower-graded nonsupervisory position with the
least reduction in grade and pay. At issue was the proper rate at which the appellant
should have been paid during the back pay period, correction of the appellant’s leave
record, the number of holidays for which the appellant should have been paid, and the
proper rate of interest.
Holdings: The Board found that the agency correctly determined the proper rate
and amount of back pay, and had properly corrected the appellant’s leave record
and holiday pay. It found, however, that the agency incorrectly determined the
applicable interest rate for back pay, and ordered the agency to recalculate the
amount of interest owed using the rate of 5.07%.
COURT DECISIONS
► Petitioner: Andy L. Smith
Respondent: United States Postal Service
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3238
Issuance Date: September 4, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
5
The petitioner appealed from a final Board decision denying his request for
compensation under USERRA. He sought an award of compensation for working
irregular hours in a part-time position upon his return from military service when he
should have been in a full-time position with regular hours. The AJ found that Smith
was not entitled to compensation because he would not have had an irregular work
schedule if he had been timely appointed to the full-time position to which he was
entitled and therefore would not have earned premium pay.
Holding: Smith is entitled to compensation because he was denied a benefit of the
full-time position, i.e., a regular schedule of work. The court vacated the Board’s
decision and remanded for a determination of the amount of compensation owed. | 9,885 | |
Case Report - August 29, 2008 | 08-29-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_29_2008_363986.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_29_2008_363986.pdf | CASE REPORT DATE: August 29, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Henry W. Humme
Agency: Department of the Interior
Decision Number: 2008 MSPB 205
Docket Number: DE-3443-05-0111-I-1
Issuance Date: August 21, 2008
Board Procedures/Authorities
- Reopening and Reconsideration
Jurisdiction
- Probationers
The appellant requested that the Board reopen his appeal, which was dismissed for
lack of jurisdiction in January 2005. The appellant received an appointment with the
agency’s Southwestern Indian Polytechnic Institute (SIPI) in March 2003, subject to a
probationary period of 3 years, under a demonstration project authorized by Public Law
No. 105-337. The agency terminated his employment effective December 10, 2004.
The administrative judge (AJ) based the dismissal on her finding that the appellant
failed to prove he was an “employee” under 5 U.S.C. § 7511(a)(1)(C)(i) or (ii), and
explicitly stated that she made no determination as to the effect of the demonstration
project on the appellant’s Board appeal rights. The appellant attaches a memorandum
dated August 10, 2007, from the President of SIPI, which states that the demonstration
project under which the appellant was hired had been terminated retroactive to
October 2000. The appellant asserted that he did not become aware of this
memorandum until February 2008. He argues that, because the demonstration project
was not properly implemented and was retroactively terminated, his employment was
subject to OPM regulations, his probationary period would have been 1 year, not 3
years, and that he had successfully completed his probationary period prior to his
termination.
Holdings: The Board granted the appellant’s request to reopen and remanded the
appeal to the regional office for further adjudication:
2
1. In deciding whether to exercise its authority to reopen under 5 U.S.C.
§ 7701(e)(1)(B) and 5 C.F.R. § 1201.118, the Board balances the desirability for
finality against the public interest in reaching the right result, and has the
discretion to reopen an appeal to prevent a “manifest injustice” when an error
implicates a party’s “basic procedural rights.”
2. Civil service positions in the executive branch are in the competitive service
unless one of three exceptions applies, one of which is “positions which are
specifically excepted from the competitive service by or under statute.” The
statute authorizing SIPI to conduct a demonstration project excepted that
demonstration project from the requirements of Title 5 of the United States Code,
and had the effect of exempting SIPI from conditioning its appointments on the
passage of a competitive examination. Accordingly, the appellant would have been
properly placed in the excepted service if the demonstration project had been
validly implemented.
3. In the absence of the demonstration project, however, it is unclear whether the
appellant’s position was specifically excepted from the competitive service.
Because the resolution of that issue has a direct impact on the Board’s jurisdiction
over the appellant’s appeal of his termination, a remand is required.
► Appellant: Lori E. Heath
Agency: Department of Agriculture
Decision Number: 2008 MSPB 204
Docket Number: CH-0752-07-0675-I-1
Issuance Date: August 21, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFR
The agency filed a petition for review (PFR) of an initial decision that found that
the agency failed to prove its charge of improper conduct, and sustained the appellant’s
defense of disability discrimination. The original deadline for filing a timely PFR was
March 13, 2008, but the agency asked for and received an extension to April 4.
According to the agency representative, she was on work-related travel that day and
only realized after 6 p.m. that she had lost the thumb drive on which the petition was
stored. She chose not to file a further request for an extension until the following
Monday, April 7, which was denied. She explained that her workload and a weekend of
Army Reserve commitments prevented her from recreating and submitting the PFR until
April 27.
Holding: The PFR was dismissed as untimely filed without good cause shown. The
agency representative has not shown that she exercised due diligence or ordinary
prudence under the circumstances, in that she did not take the simple step of
requesting a further extension based upon her unusual circumstances. | 4,735 | |
Case Report - August 22, 2008 | 08-22-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2008_362743.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2008_362743.pdf | CASE REPORT DATE: August 22, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Dennis T. Mangano
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 202
Docket Number: SF-1221-04-0234-B-3
Issuance Date: August 21, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
Board Procedures/Authorities
- Authority of Administrative Judges/Board
- Remands
The appellant filed a petition for review (PFR) of a remand initial decision that
denied his request for corrective action. The appellant served as a part-time staff
physician at an agency medical center. His duties included supervising and evaluating
resident trainees and medical students from a state university, and he maintained a
faculty appointment at the university. In 1997, the appellant informed the medical
center’s director that he had learned that his supervisor, Dr. Cason, had used medical
equipment in animal experiments and then reintroduced the equipment to the human
operating room, and that this improper use increased infection rates in veterans
undergoing heart surgery at the medical center. The appellant believed that his
supervisor and other agency officials then began a series of retaliatory acts to
undermine his career, including a 1999 performance evaluation, placement on
administrative leave in 2000, a requirement to receive permission to enter the medical
center, initiating an Administrative Investigative Board (AIB), and a quality
improvement review (QIR). The alleged retaliatory acts ultimately culminated in two
notices of removal in 2001, the first based on alleged improper conduct with peers and
colleagues, and the second, effected in May 2001, stating that it was instead removing
him for the reason stated in the first notice and because he had ceased to be an active
faculty member of the state university, which was necessary for him to perform his
duties of supervising and managing university residents. The appellant filed a
2
complaint with OSC asserting that various actions, including both removal notices,
constituted retaliation for whistleblowing. During OSC’s investigation into the matter,
the agency acquiesced to OSC’s request for it to rescind the appellant’s 1999
performance evaluation, his placement on administrative leave, its requirement that he
receive permission before entering the medical center, and its first separation decision.
OSC nevertheless terminated its investigation into his removal without ordering
corrective action.
In his original initial decision, the administrative judge (AJ) determined that the
most efficient way to resolve the appeal was to first determine whether the agency
could show by clear and convincing evidence that it would have removed the appellant
absent his whistleblowing because his position required him to maintain a faculty
appointment with the state university, and that the suspension of his faculty
appointment required his termination. The AJ answered this question in the affirmative.
On review, the Board vacated and remanded the appeal for further adjudication. 2006
MSPB 363, 104 M.S.P.R. 316. In doing so, the Board specifically noted that the agency
did not remove the appellant for failing to maintain a condition of employment, and
instead removed him primarily because he had ceased to be an active faculty member
and faculty membership was necessary for him to perform his duties. The Board found
that, while the AJ emphasized throughout discovery and the hearing that the relevant
inquiry was whether maintaining a faculty appointment was a condition of employment,
and did not allow evidence regarding whether it was practical or efficient to require the
faculty appointment, the AJ injected the practicality issue into the proceeding by
finding that the agency proved it would have removed the appellant absent his
whistleblowing by showing that it was impractical to retain him without his faculty
appointment. The Board concluded that denying the appellant the opportunity to
develop evidence on the practicality issue, and then relying on the lack of evidence to
rule against the appellant, was an abuse of discretion. The Board found that the AJ
similarly erred in restricting the appellant’s attempts to show the strength of the agency
officials’ motive to retaliate against him, and failing to address all of the appellant’s
requests for relief. The remand order specifically instructed the AJ to conduct further
adjudication regarding whether it was practical to allow an anesthesiologist in the
appellant’s circumstances to remain employed, and of the motive to retaliate by the
agency officials involved in the decision to remove the appellant, and then to reassess
whether the agency met it burden of proof by clear and convincing evidence.
On remand, the AJ found, inter alia, that: the practicality of retaining the appellant
in his position after his faculty appointment suspension had never been an issue and was
irrelevant, the real issue being whether the appellant’s loss of his faculty appointment
mandated his termination; the prior initial decision definitively found that the
appellant’s position required that he possess a university affiliation without regard to
whether that requirement was practical; and the remand adjudication would therefore be
limited to the motive to retaliate by the agency officials involved in the decision to
terminate the appellant’s employment. Following a hearing, the AJ found that the
agency proved by clear and convincing evidence that possessing a faculty appointment
was a condition of employment, the agency official solely responsible for the appellant’
termination did not have a motive to retaliate against the appellant for his alleged
3
whistleblowing, and that the appellant did not establish that either the AIB or the QIR
were personnel actions within the Board’s jurisdiction.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal for further adjudication:
1. The AJ’s ruling that practicality was not at issue and that faculty membership
was a condition of employment was error.
a. First, an AJ is required to follow the Board’ remand instructions; here, the
AJ ignored these instructions and repeated his prior errors.
b. The AJ’s insistence that the relevant inquiry is whether maintaining a faculty
appointment was a condition of employment violates the law-of-the-case
doctrine, which is intended to maintain consistency and avoid
reconsideration of matters once decided during the course of a single
continuing lawsuit.
c. The AJ’s reasoning that practicality is irrelevant because, “if it were merely
practical or impractical to retain appellant as an anesthesiologist without a
university affiliation, the agency could not establish by clear and convincing
evidence that appellant would have been removed in any event,” is wrong.
Whether it may have been practical to retain the appellant without his
faculty affiliation goes to the strength of the agency’s evidence supporting it
removal decision, which is not dispositive of the broader issue of whether the
agency could show that it would have terminated the appellant absent his
whistleblowing.
d. The AJ’s conclusion that a faculty affiliation was a “de facto” condition of
employment cannot stand on the basis of the current record. One cannot
ascertain whether a matter is de facto, i.e., actual, existing in fact, without
knowing the relevant facts, and the appellant must be afforded the
opportunity to develop and present evidence on the matter.
2. The AJ erred in considering only whether the hospital director, who was the
deciding official, had a motive to retaliate. In examining retaliatory motive for an
agency action, “involved” officials may encompass more than just the proposing or
deciding officials, and may include other officials upon whom the proposing or
deciding official relief for information. The record establishes that Dr. Cason was
involved in the decision to terminate the appellant’s employment.
3. The AJ erred in ruling that the AIB and QIR were not relevant. If the AJ finds
on remand that the agency did not prove by clear and convincing evidence that it
would have removed the appellant for the faculty membership charge regardless of
the appellant’s whistleblowing, and the AJ then examines the intimidating conduct
charge, the question arises whether either the AIR or QIR is so closely related to
that charge that those investigations could have been a pretext for gathering
evidence to use against the appellant in effecting his removal. After considering
the evidence of record, the Board answered this question in the affirmative.
4
► Appellant: Kevin F. Coradeschi
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 199
Docket Number: NY-0752-04-0163-A-1
Issuance Date: August 14, 2008
Appeal Type: Adverse Action by Agency
Action Type: Attorney Fee Request
Attorney Fees
- Reasonableness
The agency petitioned for review if an initial decision that awarded attorney fees
and expenses in the amount of $99,322.48. On review, the agency did not contest the
AJ’s findings that the appellant was the prevailing party, that he incurred attorney fees
pursuant to an existing attorney-client relationship, and that an award of fees is
warranted in the interest of justice. At issue was the amount of attorney fees and
expenses awarded.
Holdings: The Board affirmed the initial decision as modified, reducing the
amount of the award to $72,302.41:
1. The Board lacks the authority to award attorney fees incurred in connection
with an appeal of a Board decision to the Federal Circuit. The AJ erred in
awarding such fees.
2. Photocopying expenses are not recoverable in cases of this sort.
► Appellant: Arthur Vitello
Agency: United States Postal Service
Decision Number: 2008 MSPB 200
Docket Number: PH-0752-08-0384-I-1
Issuance Date: August 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures/Authorities
- Withdrawal of Appeal/PFR
- Reopening and Reconsideration
The appellant petitioned for review of an initial decision that dismissed his appeal
as withdrawn.
Holding: Where a Postal Service employee withdraws an appeal to pursue a
negotiated grievance-arbitration procedure and subsequently files a PFR
challenging the dismissal of his appeal as withdrawn, the Board considers the PFR
as a new appeal and as a request to reopen the previously dismissed appeal. The
Board found that the appellant failed to establish good cause for the untimely filing
of a new appeal or to reopen the original appeal.
5
► Appellant: James Galatis
Agency: United States Postal Service
Decision Number: 2008 MSPB 201
Docket Number: PH-0752-07-0298-X-1
Issuance Date: August 21, 2008
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Compliance
This case was before the Board on the AJ’s Recommendation finding that the
agency was not in compliance with the settlement agreement that resolved the
underlying appeal. The appellant had been demoted from EAS-19 to PS-05. The
settlement agreement provided, among other matters, that the appellant would be placed
in a permanent EAS-17 position and be provided back pay from the effective date of the
agency action. The appellant contended, among other matters, that he had not received
the correct amount of back pay. The AJ found that the agency was not in compliance
with all its obligations. The agency then submitted evidence of its intention to comply
with the AJ’s Recommendation, including back pay at the EAS-17 level retroactive to
March 17, 2007. The appellant contended, however, that his back pay should be
calculated as the difference between the pay of his former EAS-19 position and the pay
he received in the PS-05 position.
Holdings: The Board held that, although the agency correctly determined that the
appellant was only entitled to back pay at the EAS-17 level, it has not yet
established that it is in full compliance with the settlement agreement:
1. The settlement agreement is unambiguous, providing that the appellant would be
“afforded back pay from the effective date of the agency action, which was
March 17, 2007,” and the EAS-17 level is the only pay level mentioned in the
agreement. The agreement is naturally read to provide for calculation of back pay
using that level.
2. Although the agency has provided the gross and net amounts of the back pay, it
has submitted no documentation that provides a detailed explanation of how these
amounts were determined. The Board ordered the agency to submit evidence of
payment, including calculations on which the payment was based.
► Petitioner: Special Counsel
Respondent: David Briggs
Decision Number: 2008 MSPB 203
Docket Number: CB-1216-08-0006-T-1
Issuance Date: August 21, 2008
Appeal Type: Disciplinary Action - Hatch Act
Special Counsel Actions
- Hatch Act
The respondent filed a PFR of the ALJ’s initial decision ordering the respondent’s
removal for violating the Hatch Act. After winning a primary to become the
6
Democratic candidate for the position of Schuylkill (Pennsylvania) County Township
Supervisor, the respondent became an employee of the Mine Safety and Health
Administration. Despite warnings from the Office of Special Counsel that his
continued candidacy would place him in violation of the Hatch Act, the respondent
failed to withdraw his candidacy and OSC filed a disciplinary complaint with the
Board.
Holdings: The Board affirmed the ALJ’s initial decision as modified, and ordered
the respondent’s employing agency to remove him from his federal position:
1. The respondent’s contention that he was not in violation because he was a
candidate for office before he became a federal employee is without merit. The
plain language of 5 U.S.C. § 7323(a)(3) prohibits an employee from being a
candidate for partisan political office at any time while he is covered by the Hatch
Act, and not just from becoming one while he is an employee.
2. A respondent who has been found to have violated the Hatch Act has the burden
of presenting evidence showing that the Act’s presumptive penalty of removal
should not be imposed. The respondent in this case has failed to make this
showing.
► Appellant: Robert Rorick
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 198
Docket Number: DC-0845-08-0130-I-1
Issuance Date: August 14, 2008
Appeal Type: FERS - Collection of Overpayment
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
Jurisdiction
The appellant petitioned for review of an initial decision that affirmed OPM’s
denial of his request for a waiver of recovery of an overpayment. OPM granted the
appellant a retirement annuity in 2006, but later notified the appellant that it had
overpaid him $1,109.27 in interim annuity benefits, and indicated it would recover the
overpayment in seven installments. OPM denied the appellant’s request for a waiver,
finding that, even though he was without fault in the creation of the overpayment,
recovery of the overpayment would not be against equity and good conscience. On
appeal to the Board, the AJ concurred that recovery of the debt was not against equity
and good conscience, but found that the scheduled monthly repayment would cause
financial hardship and reduced the amount of the monthly repayment. After the
appellant filed his PFR, OPM asked the Board to vacate the initial decision and remand
the appeal to OPM for the issuance of a new final decision, stating that it “discovered a
substantive error in the adjudication of the appellant’s annuity” that “could impact the
total amount overpaid.”
7
Holding: The Board dismissed the appeal for the issuance of a new reconsideration
decision by OPM, without prejudice to the appellant’s right to file a new appeal of
that decision. | 16,130 | |
Case Report - August 8, 2008 | 08-08-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2008_360278.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2008_360278.pdf | CASE REPORT DATE: August 8, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellants: Kent Mitchell, Steve Palmer, Kenneth Miller
Agency: Department of Transportation
Decision Numbers: 2008 MSPB 187, 2008 MSPB 172, 2008 MSPB 180
Docket Numbers: NY-0752-07-0171-I-1, DE-0752-07-0370-I-1, NY-0752-07-0195-I-1
Issuance Date: August 1, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Jurisdiction
- Suspensions/Furloughs
These cases involve facts and issues similar to those in Hart v. Department of
Transportation, 2008 MSPB 149, in that the appellants are Air Traffic Controllers
(ATCs) with the FAA who were temporarily medically disqualified from performing
their ATC duties, and who were denied requests for assignment to administrative duties,
resulting in their having to use annual or sick leave, or be in a leave without pay status,
for periods exceeding 14 days. Unlike the appellant in Hart, however, they were not
“suspended” for more than 14 consecutive days. In each case, the administrative judge
(AJ) determined that the appellant was subjected to an appealable suspension.
Holding: The Board dismissed each appeal for lack of jurisdiction:
1. There exists no precedent for combining non-consecutive suspensions of 14 days
or less for purposes of finding Board jurisdiction. The precedents relied upon by
the AJ establish, at most, that consecutive suspensions of 14 days or less may be
combined when they are based on the same reason, and there is evidence that the
agency attempted to circumvent Board regulations by imposing multiple
suspensions of 14 days or less. There is no evidence that the agency attempted to
circumvent Board regulations in this manner.
2. The appellants were not subjected to a furlough within the Board’s jurisdiction,
i.e., the temporary placement of an employee in a non-duty, non-pay status because
2
of lack of work or funds, or other non-disciplinary reasons. Here, the agency’s
action was a disciplinary action in the broad sense of this term.
► Appellants: John Giannetto, Ronald Stanton
Agency: Department of Transportation
Decision Number: 2008 MSPB 182, 2008 MSPB 186
Docket NumberS: AT-0752-07-0661-I-1, DC-0752-07-0525-I-1
Issuance Date: August 1, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension – More than 14 Days
Jurisdiction
- Suspensions/Furloughs
These cases involve facts and issues similar to those in Hart v. Department of
Transportation, 2008 MSPB 149, in that the appellants are Air Traffic Controllers with
the FAA who were temporarily medically disqualified from performing their ATC
duties, and who were denied requests for assignment to administrative duties, resulting
in their having to use annual or sick leave, or be in a leave without pay status, for
periods exceeding 14 days.
Holdings:
1. As in Hart, the Board held that the appellants were subjected to appealable
suspensions, but that the agency was not required to follow the procedures of
5 U.S.C. § 7513(b) because the FAA is not covered by chapter 5 of the United States
Code, and remand was necessary to determine whether the agency committed
harmful procedural error under its own rules. Also as in Hart, the Board found
that the Back Pay Act does not apply to the FAA.
2. As in Mitchell, 2008 MSPB 187, et al., the Board held that there is no basis for
combining non-consecutive “suspensions” of 14 days or less for purposes of finding
Board jurisdiction. Nor were the appellants subjected to an appealable furlough.
► Appellant: Thomas M. Burch
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 185
Docket Number: DE-0752-06-0538-A-1
Issuance Date: August 1, 2008
Action Type: Attorney Fee Request
Attorney Fees
- Authority to Award
Holdings: The Board affirmed the initial decision as modified, granting the
appellant’s motion for attorney fees:
3
1. Attorney fees can be awarded in the interest of justice under 5 U.S.C.
§ 7701(g)(1) when the appellant is the prevailing party and the agency is found to
have retaliated against him for filing an age discrimination claim.
a. The agency based its argument that such claims of retaliation cannot support
an award of attorney fees on a First Circuit decision that held that the Age
Discrimination in Employment Act (ADEA) does not cover claims of
retaliation filed by federal employees. The Supreme Court reversed the
First Circuit’s ruling in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008).
b. More importantly, the Board has a separate statutory basis than the ADEA
for awarding attorney fees for reprisal claims of this sort. Under
§ 7701(g)(1), an award is warranted in the interest of justice in “any case in
which a prohibited personnel practice was engaged in by the agency.”
Retaliation for filing an age discrimination claim is a prohibited personnel
practice under 5 U.S.C. § 2302(b)(9), which prohibits any personnel action
taken against an employee because of the exercise of any complaint right
granted by any law, rule, or regulation. A federal employee’s filing of a
complaint of employee discrimination based on age clearly constitutes the
exercise of a complaint right granted by law and regulation.
2. The Board agreed with the AJ’s determination that an award of attorney fees is
appropriate in the interest of justice in this case.
3. The Board declined to determine whether it was appropriate to calculate the
amount of the award under 5 U.S.C. § 7701(g)(1), or under the more expansive
provisions of § 7701(g)(2), as the appellant did not seek to recover any expenses
that would be recoverable under (g)(2), but not under (g)(1).
4. The Board affirmed the reasonableness of the amount of fees awarded, $72,585.
► Appellant: Lynn M. Vaughn
Agency: United States Postal Service
Decision Number: 2008 MSPB 178
Docket Number: AT-0752-07-0971-I-1
Issuance Date: August 1, 2008
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Evidence
- Hearsay
The agency petitioned for review of an initial decision that reversed the appellant’s
reduction in grade and pay. The agency demoted the appellant from the position of
EAS-20 Manager, to the position of EAS-17 Supervisor, based on a charge of failure to
perform her duties in an effective manner. The appeal was decided based on the written
record. The AJ found that the findings in the arbitration decisions that were the
agency’s primary evidence were conclusory in nature and did not set forth specific
factual findings to support the charge. He therefore ordered the agency to cancel the
personnel action.
4
Holdings: The Board granted the agency’ petition for review (PFR), reversed the
initial decision, and sustained the appellant’s reduction in grade and pay:
1.
After analyzing the hearsay statements upon which the agency relied under the
factors set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77 (1981), the
Board concluded that the agency’s evidence was sufficient to establish the charge
by preponderant evidence. Moreover, it concluded that the appellant “basically
did not refute the charge; rather, she responded that the penalty was unreasonable
or that her failures were justified.”
2. The penalty was within the bounds of reasonableness.
► Appellant: Gary A. Hunter
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 183
Docket Number: DE-0845-08-0073-I-1
Issuance Date: August 1, 2008
Appeal Type: FERS - Collection of Overpayment
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that he received an overpayment in the amount of $11,969.96 and was not
entitled to a waiver of recovery of the overpayment. The overpayment resulted from
the appellant being placed in the wrong retirement system when he retired in 2005. The
AJ found that the existence and amount of the overpayment was correct and that the
appellant was without fault in causing the overpayment. She further found, however,
that the appellant failed to prove that recovery of the overpayment would be against
equity and good conscience.
Holdings: The Board granted the appellant’s PFR, affirmed the initial decision as
to the existence and amount of the overpayment, but reversed it as to the
appellant’s entitlement to a waiver, and ordered OPM to refund the appellant’s
payment for the overpayment amount:
1. Recovery of an overpayment is against equity and good conscience when the
recipient can show that, due to the notice that such payment would be made, or
because of the incorrect payment, he either has relinquished a valuable right or has
changed positions for the worse.
2. The appellant met these criteria in this case. Had the appellant been enrolled in
the correct system (CSRS Offset), he would have known that he was not yet eligible
to retire in July 2005. His decision to apply for immediate retirement was directly
caused by the erroneous notice that he was eligible to receive a FERS retirement
annuity. This decision was detrimental to him because he would have earned him
additional salary and retirement benefits, and it was material.
5
► Appellant: Tiffany J. Levy
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 174
Docket Number: AT-0752-08-0048-I-1
Issuance Date: August 1, 2008
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement/Separation
The appellant petitioned for review of an initial decision that dismissed her appeal
of an allegedly involuntary resignation for lack of a nonfrivolous allegation of
jurisdiction. The appellant and her husband were both employed in law enforcement
positions in Houston, Texas. They asked for a joint transfer to Mobile, Alabama. The
husband was transferred to Mobile, but not the appellant. The appellant was given the
option of remaining in Houston or resigning, and she chose the latter.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case to the regional office for a jurisdictional hearing:
1. An employee-initiated action such as a resignation is presumed to be voluntary,
and thus outside the Board’s jurisdiction as an adverse action, but this
presumption can be overcome. The touchstone of the voluntariness analysis is
whether, considering the totality of the circumstances, factors operated on the
employee’s decision-making process that deprived her of freedom of choice. When
an appellant raises allegations of discrimination in connection with an
involuntariness claim, evidence of discrimination may be considered only in terms
of the standard for voluntariness, not whether such evidence meets the test for
proof of discrimination or reprisal under Title VII.
2. The appellant made a nonfrivolous allegation of jurisdiction when she asserted
that: (1) The agency told her she could remain at Houston or resign from the
agency to move with her husband; (2) the agency assured her that, if she elected to
resign, it would assign her to any vacancies that arose in Mobile before her
resignation became effective; and (3) her resignation was involuntary because the
agency deliberately failed to inform her of, and assign her to, a vacancy which
arose in Mobile prior to the effective date of her resignation.
3. The appellant made an additional nonfrivolous allegation of involuntariness in
that she asserted that the agency denied her request to revoke her resignation
letter before its effective date and that the agency actively discouraged her from
pursuing alternatives to resigning.
6
► Appellant: Benzena M. Brown
Agency: Department of Defense
Decision Number: 2008 MSPB 177
Docket Number: SF-0752-07-0771-I-1
Issuance Date: August 1, 2008
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement/Separation
The appellant petitioned for review of an initial decision that dismissed her appeal
of an allegedly involuntary retirement for lack of a nonfrivolous allegation of
jurisdiction. She had applied for and received a disability retirement annuity. In her
appeal, she contended that her disability retirement was involuntary due to “non
accommodation” by her agency. The AJ dismissed the appeal without conducting a
hearing.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion, vacated the initial decision, and remanded the appeal to the regional office
for further adjudication:
1. To invoke the Board’s jurisdiction over an involuntary disability retirement
appeal, the appellant must raise nonfrivolous allegations that, if proven, would
show that an accommodation was available between the time the appellant’ medical
condition arose and the date of her separation that would have allowed her to
continue her employment, that the appellant communicated to the agency her
desire to continue working but that her medical limitations required a modification
of her working conditions or duties, and that the agency failed to provide the
appellant that accommodation.
2. Although the AJ’s jurisdictional order provided the appellant with accurate
information concerning the Board’s jurisdiction over involuntary retirement
appeals generally, it did not provide the appellant with notice concerning the
specific jurisdictional requirements applicable to allegedly involuntary disability
retirement appeals. A remand for further adjudication is therefore necessary.
► Appellant: Dennis Belmont
Agency: United States Postal Service
Decision Number: 2008 MSPB 184
Docket Number: PH-0752-07-0265-X-1
Issuance Date: August 1, 2008
Compliance
This case was before the Board on the AJ’s Recommendation finding that the
agency was in noncompliance with the parties’ settlement agreement.
Holdings: The agency has now provided evidence that it has provided attorney
fees and other relief in question. The Board found that the agency is now in
compliance and dismissed the petition for enforcement as moot.
7
► Appellant: Thomas Tubesing
Agency: Department of Health and Human Services
Decision Number: 2008 MSPB 179
Docket Number: DA-315H-08-0168-I-1
Issuance Date: August 1, 2008
Action Type: Probationary Termination
Jurisdiction
- Probationers
The appellant petitioned for review of an initial decision that dismissed his appeal
as premature. The agency notified the appellant that it was terminating his employment
as a GS-13 Public Health Advisor before the completion of his one-year probationary
period. On appeal to the Board, the appellant claimed that he had completed his
probationary period. He also asserted that his termination constituted reprisal for
whistleblowing. In the initial decision, the AJ found that the appellant had established
that he had completed his probationary period prior to his termination and therefore was
an “employee” under 5 U.S.C. § 7511, and that the Board had jurisdiction over the
appeal as a removal under 5 U.S.C. §§ 7511-7513. The AJ dismissed the appeal as
premature to allow the appellant the opportunity to seek corrective action from OSC.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal to the regional office for further adjudication:
1. When an employee raises a claim of reprisal based on whistleblowing and the
personnel action giving rise to the claim is an otherwise appealable action, the
employee may elect to seek corrective action from OSC before appealing to the
Board or he may file the appeal directly with the Board. If an appellant indicates
during a Board proceeding that he filed a complaint with OSC on the same matter
prior to filing his Board appeal, it is proper for the AJ to dismiss the appeal if the
appellant has not yet exhausted his remedy before OSC.
2. Here, the appellant’s submissions do not indicate that he filed a complaint with
OSC prior to filing his Board appeal or that he requested that his Board appeal be
dismissed so that he could seek corrective action before OSC. He unambiguously
requested that the AJ adjudicate on the record the issue of whether the Board has
jurisdiction over his appeal as a removal and, if so, whether the agency failed to
provide him with his procedural rights in effecting his removal. Accordingly, a
remand for such adjudication is appropriate.
► Appellant: Louis A. Lodge
Agency: Department of the Treasury
Decision Number: 2008 MSPB 175
Docket Number: AT-0330-07-0116-X-1
Issuance Date: August 1, 2008
Compliance
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
8
This case was before the Board pursuant to the AJ’s Recommendation finding the
agency to be in violation of a final Board order. In a previous Opinion and Order, 2007
MSPB 223, the Board found that the agency violated the appellant’s veterans’
preference rights in connection with his application for a revenue officer position with
the IRS, and ordered the agency to reconstruct the hiring position for that position.
That decision noted that OPM had twice turned down the agency’s request to pass over
the appellant and select another individual under 5 U.S.C. § 3318(b). Subsequent to
this earlier decision, OPM granted the agency’s third request to pass over the appellant
in favor of a non-preference-eligible applicant. In her Recommendation, the AJ found
that the agency could not consider OPM’s pass-over decision.
Holding: The Board found that the agency was in compliance with its final order,
and dismissed the matter as moot.
Consistent with Endres v. Department of
Veterans Affairs, 2007 MSPB 301, 107 M.S.P.R. 455, an agency that has been
ordered to reconstruct its hiring process may seek pass-over authority to avoid
selecting a preference eligible candidate. While the appellant attacks OPM’s pass
over decision, he cites nothing establishing Board jurisdiction to review such a
determination, and the Board found no basis on which to do so.
► Appellant: Denise M. Prioleau
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 181
Docket Number: PH-0752-07-0054-X-1
Issuance Date: August 1, 2008
Compliance
This case was before the Board on the AJ’s Recommendation finding that the
agency materially breached a negotiated settlement agreement. Specifically, the AJ
found that the agency compromised the intent of the agreement, which was to facilitate
a successful application for disability retirement, by failing to change the appellant’s
SF-50 to change the reason for the appellant’s removal to read “Physical inability to
perform the essential functions of her position.”
Holding: The agency has submitted evidence that it corrected the SF-50, and has
made numerous unsuccessful attempts to notify the appellant of its intention to
assist her in filing a petition for reconsideration with OPM. As the appellant has
not responded to those attempts, or to the Board’s order on the matter, the Board
found that the agency is now in compliance and dismissed the petition for
enforcement as moot.
► Appellant: Caulton D. Allen
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 173
Docket Number: DC-0752-07-0694-X-1
Issuance Date: August 1, 2008
Compliance
9
This case was before the Board on the AJ’s Recommendation finding the appellant
to be in violation of the parties’ settlement agreement. The agreement provided, inter
alia, that the appellant would waive and withdraw any civil actions and EEO
complaints. In this compliance proceeding initiated by the agency, the AJ found that
the appellant was in violation because he continued to maintain actions in a U.S.
District Court and before the EEOC that he was required by the agreement to withdraw.
Holding: The appellant is violating the settlement agreement by maintaining his
actions in court and before the EEOC. The Board ordered the appellant to comply
with the terms of the agreement.
► Appellant: Travis Davis
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 176
Docket Number: SF-0843-07-0835-I-1
Issuance Date: August 1, 2008
Appeal Type: FERS - Death & Survivor Benefits
Action Type: Retirement/Benefit Matter
Retirement
- Lump Sums
OPM petitioned for review of an initial decision that reversed its decision denying
the appellant’s application for a lump-sum death benefit under FERS in connection with
the death of his mother, who was a Postal employee at the time of her death. OPM
based its denial on its determination that the decedent’s estranged husband was her
widower and, as such, entitled to a survivor annuity in precedence to any lump-sum
payment to the decedent’s surviving children.
Holdings: The Board granted OPM’s PFR, reversed the initial decision, and
affirmed as modified OPM’s reconsideration decision denying the appellant a
lump-sum benefit:
1. Under FERS, 5 U.S.C. § 8424(d), lump-sum benefits will be paid if an employee
dies “(1) without a survivor, or (2) with a survivor or survivors and the right of all
survivors under subchapter IV terminates before a claim for survivor annuity
under such subchapter is filed.” As a separated but not divorced spouse, the
estranged husband falls within the definition of a current spouse under FERS, and
is considered the decedent’s widower and survivor under Subchapter IV, and is
entitled to a one-time payment and a survivor annuity based upon his wife’s
federal service. Unless his right as a survivor has terminated, no lump-sum credit
can be paid to the appellant.
2. Although the decedent and her husband entered into a Marital Settlement
Agreement in which both parties waived all of their rights to any survivor benefits,
this agreement did not qualify as an effective waiver because it does not state that
it is irrevocable and because it was not filed with OPM.
3. Even if the husband had irrevocably waived his right to a survivor annuity, the
appellant would still not be entitled to the lump-sum benefit he seeks. Under
10
FERS, when an employee dies without a survivor, a lump-sum benefit will be paid
in accordance with the statutory order of precedence, in which the widower has
precedence over any children.
► Appellant: Dan C. Boechler
Agency: Department of the Interior
Decision Number: 2008 MSPB 188
Docket Number: DE-1221-04-0394-W-4
Issuance Date: August 4, 2008
Appeal Type: Individual Right of Action (IRA)
Action Type: IRA "1221" Non-appealable Action
Whistleblower Protection Act
- Exhaustion of Remedy
- Protected Disclosure
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The appellant was a full-time seasonal employee with
the agency’s Bureau of Land Management. In his IRA appeal, he contended that he was
prematurely put in a non-pay, non-duty status in October 2003, before the end of the
fire season, and then not returned to a pay and duty status in March 2004, in reprisal for
alleged whistleblowing disclosures. In dismissing the appeal, the AJ found that:
(1) The appellant had failed to exhaust his administrative remedy with OSC with
respect to his claim that the agency failed to return him to duty status in March 2004;
(2) with respect to the other personnel action, the appellant failed to make a
nonfrivolous allegation that he made a protected disclosure and failed to show that his
alleged disclosures were a contributing factor in the decision to place him in a seasonal
non-duty status.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion, and affirmed the initial decision as modified, still dismissing the appeal for
lack of jurisdiction:
1. The AJ’s determination that the appellant failed to exhaust his OSC remedy
with respect to the March 2004 personnel action was correct based on the record
before the AJ. Although the appellant has now produced evidence that he did
bring this matter to OSC’s attention, this evidence is not properly before the Board
because he has made no showing that this evidence was previously unavailable
despite his due diligence.
2. With respect to 3 of the 4 alleged disclosures, the AJ correctly determined that
the appellant failed to make a nonfrivolous allegation of a protected disclosure.
With respect to the fourth disclosure, the Board found that the AJ erred in finding
that this matter was barred under the doctrine of collateral estoppel, because the
issue in the prior Board appeal was not identical to the issue in the present appeal.
Nevertheless, the Board found that the appellant had not made a nonfrivolous
allegation of a protected disclosure because he did not explain what violations of
law and regulation, gross mismanagement, abuse of authority, or substantial and
specific dangers to public health or safety were involved.
11
3. The appellant failed to establish his allegations of procedural error and bias on
the AJ’s part.
► Appellant: Dan C. Boechler
Agency: Department of the Interior
Decision Number: 2008 MSPB 189
Docket Number: DE-1221-08-0048-W-1
Issuance Date: August 4, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Exhaustion of Remedy
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The appellant alleged that the agency refused to put him
on a list of individuals eligible for post-retirement administratively determined work in
reprisal for his whistleblowing. The AJ dismissed the appeal on several grounds: lack
of exhaustion of the OSC administrative remedy; failure to make a nonfrivolous
allegation of a protected disclosure; and failure to make a nonfrivolous allegation that
the agency managers responsible for the alleged personnel action had actual or
constructive knowledge of his alleged whistleblowing.
Holdings: The Board reopened the appeal because it found it more appropriate to
dismiss the appeal for lack of jurisdiction on the ground that he failed to show that
he exhausted his administrative remedies before OSC. The Board also addressed
the appellant’s contention that the AJ should have granted his motion to recuse
herself from the appeal, finding this contention to be without merit.
► Appellant: Dan C. Boechler
Agency: Department of the Interior
Decision Number: 2008 MSPB 190
Docket Number: DE-1221-05-0283-W-4
Issuance Date: August 4, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
In this IRA appeal, the appellant contended that the agency terminated his health
and life insurance in reprisal for his alleged whistleblowing. The AJ dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous
allegation that he made a protected disclosure, and that he failed to show that his
disclosures were a contributing factor in the decision to terminate his health and life
insurance benefits.
Holdings: The AJ correctly found that the appellant failed to make a nonfrivolous
allegation that his disclosures were protected. The Board also found that the
appellant failed to establish his allegations of procedural error and bias on the
AJ’s part.
12
► Appellant: Donald L. Anderson
Agency: United States Postal Service
Decision Number: 2008 MSPB 193
Docket Number: CB-7121-08-0011-V-1
Issuance Date: August 4, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration/Collective Bargaining-Related Issues
The appellant filed an appeal contesting his removal. This case was docketed as a
request to review an arbitration decision referenced in the appeal.
Holdings: Although the Board typically has jurisdiction to review an arbitration
decision where the subject matter of the grievance is within the Board’s
jurisdiction, the appellant has alleged discrimination in connection with the
matter, and a final decision has been issued, Postal employees do not have a right
of Board review of an arbitration decision because 5 U.S.C. § 7121 does not apply
to the Postal Service. The case was forwarded to the regional office for docketing
as an adverse action appeal.
► Appellant: Ronel C. Tacujan
Agency: United States Postal Service
Decision Number: 2008 MSPB 192
Docket Number: SF-0752-08-0241-I-1
Issuance Date: August 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures
- Withdrawal of Appeal/PFR
The appellant filed a PFR of an initial decision that dismissed his appeal as
withdrawn. The initial decision notified the appellant that it become the Board’s final
decision unless a PFR was filed by April 3, 2008. The appellant filed his PFR on
May 16.
Holding: The Board treats a PFR of an appellant-initiated dismissal of a petition
for appeal (PFA) as a late-filed PFA or as a request to reopen and reinstate the
prior appeal. The Board dismissed the PFA as untimely filed without good cause
shown and denied the request to reopen.
13
► Appellant: Tony Henderson
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 191
Docket Number: AT-844E-08-0071-I-1
Issuance Date: August 4, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Action Type: Retirement/Benefit Matter
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that he was not entitled to disability retirement. The appellant was a
Border Patrol Agent. In June 2006, he was arrested in the workplace and charged with
distribution of marijuana. In July, he was placed on indefinite suspension; he was
ultimately convicted via a guilty plea and removed from federal service effective
January 5, 2008. The appellant filed an application for disability retirement during his
suspension, alleging that he was unable to perform his job duties due to a back injury
and psychological problems. Following a hearing in which the appellant, his physician,
and his former supervisor testified, the AJ affirmed OPM’s determination that the
appellant failed to prove his entitlement to disability retirement.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered OPM to award the appellant disability retirement:
1. Removal for misconduct does not preclude an individual’s receipt of disability
retirement benefits if he can show that he was disabled from performing useful and
efficient service in his position prior to the effective date of his removal. An
appellant’s application for disability retirement in the face of an impending
removal may cast doubt upon the veracity of his application.
2. The AJ erred in relying heavily on the testimony of the appellant’s former
supervisor, who testified that the appellant never exhibited any performance,
attendance, or conduct deficiencies prior to his arrest, and that the appellant’s
arrest was unlikely to have caused his alleged disability. The appellant claimed
that his disability began after his arrest, while he was still employed but was no
longer in duty status. The relevant question, therefore, is whether the appellant’s
medical condition is incompatible with either useful and efficient service or
retention in his former position. The testimony of the appellant’s former
supervisor is largely immaterial to resolving that question.
3. After considering the evidence of record, the Board concluded that the
appellant’s medical condition is incompatible with either useful and efficient
service or retention in his former position.
14
► Appellant: Larry M. Dow
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 194
Docket Number: NY-3443-08-0027-I-1
Issuance Date: August 4, 2008
Timeliness - PFR
The initial decision informed the appellant that it would become final on March 26,
2008, unless a PFR was filed. The appellant filed a PFR more than 5 weeks later, on
May 5.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown. Although the appellant asserted that he had obtained new evidence, neither
the evidence (a statement) nor the appellant’s pleading was in the form of an
affidavit or declaration made under penalty of perjury. Moreover, there was no
showing that this statement could not have been obtained before the deadline for
filing a timely PFR.
► Appellant: David Q. Tat
Agency: United States Postal Service
Decision Number: 2008 MSPB 195
Docket Number: DA-0353-08-0174-I-1
Issuance Date: August 5, 2008
Appeal Type: Restoration to Duty
Miscellaneous Agency Actions
- Restoration to Duty
The appellant petitioned for review of an initial decision that dismissed his
restoration appeal for lack of jurisdiction. In September 2004, the appellant filed a
Notice of Traumatic Injury that alleged that he injured his lower back while on the job.
He has not worked since December 2004. The agency removed the appellant, effective
January 2008, for inability to perform the duties of his position. In his appeal to the
Board, the appellant asserted that he was partially recovered and that the agency denied
his request to restore him to a position within his medical restrictions. After
considering the parties’ responses to a show-cause order, the AJ dismissed the appeal
for lack of jurisdiction without holding the hearing requested by the appellant. He
found that, because OWCP disallowed the appellant’s requests for compensation
benefits for his alleged work injuries, he is not entitled to restoration rights.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal to the regional office for further adjudication:
1. The AJ erred in finding that the appellant did not suffer a compensable injury.
a. To be entitled to any restoration rights under 5 C.F.R. part 353, an employee
must have been separated or furloughed from an appointment without time
limitation as a result of a compensable injury. A compensable injury is a
medical condition accepted by OWCP to be job-related and for which
15
medical or monetary benefits are payable from the Employees’
Compensation Fund.
b. The record indicates that OWCP accepted and paid medical benefits for the
appellant’s September 2004 back injury.
2. The appellant has made sufficient nonfrivolous allegations of fact to establish
Board jurisdiction over his restoration appeal as a partially recovered employee, in
that he alleged that: (1) He was absent from his position due to a compensable
injury; (2) he recovered sufficiently to return to duty on a part-time basis, or to
return to work in a position with less demanding requirements; (3) the agency
denied his request for restoration; and (4) the denial was “arbitrary and
capricious.”
► Appellant: Linda D. Edwards
Agency: Department of Transportation
Decision Number: 2008 MSPB 197
Docket Number: SF-0752-08-0062-I-1
Issuance Date: August 6, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Absence Related
- Physical Inability to Perform
The appellant petitioned for review of an initial decision that sustained her removal
based on a charge of being unavailable for duty. After being appointed as an air traffic
control specialist on October 2, 2005, the appellant injured herself at work 4 days later.
She was able to perform administrative duties for about 4 months, but from
February 2006 through her removal in late 2007, she was unable to work as a result of
medical problems. Following a hearing, the AJ found that the agency proved its charge,
and that the appellant failed to substantiate her claims of disability discrimination,
disparate treatment, and harmful procedural error.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered the agency to restore the appellant to employment:
1.
The AJ erred in relying on Cook v. Department of the Army, 18 M.S.P.R. 610
(1984), in finding that this case falls within an exception to the general rule that
adverse actions cannot be based on an employee’s use of approved leave. The Cook
exception applies only to “unscheduled” absences, and applies only to absences on
leave without pay, and not to absence on sick leave.
2. The Board concluded that the actual basis for the appellant’s removal was its
determination that the appellant was not physically able to perform the duties of
her regular position. In finding removal warranted based on employees’
unavailability for duty to their incapacitation, the Board has relied on there being
no foreseeable end to the employees’ unavailability.
16
3. Although it was undisputed that the appellant remained incapacitated at the
time her removal was proposed, before that action was effected her physician
stated that the appellant was expected to recover sufficiently to perform the duties
of her regular position as of January 2, 2008, just over 2½ months after the
scheduled date of her removal. Under these circumstances, it cannot be said that
there was no foreseeable end to her absence from work, and the agency did not
establish that it could not have waited an additional 2½ months for her to recover.
► Appellant: Robert M. Baggan
Agency: Department of State
Decision Number: 2008 MSPB 196
Docket Number: DC-315H-08-0275-I-1
Issuance Date: August 6, 2008
Appeal Type: Termination of Probationers
Jurisdiction
- Probationers
Whistleblower Protection Act
- Exhaustion of Remedy
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant was appointed to his position as a Program
Analyst on April 15, 2007, and was terminated in January 2008 due to unacceptable
conduct. On appeal to the Board, the appellant asserted various affirmative defenses,
including retaliation for whistleblowing. The AJ dismissed the appeal for lack of
jurisdiction, finding that the appellant was a probationer at the time of his termination.
The AJ further found that the Board lacked jurisdiction to review the appellant’s
whistleblowing allegations because he had not yet exhausted his remedies with OSC.
On PFR, the appellant asserts that he is an “employee” with adverse action appeal
rights, not a probationer.
Holdings: The Board affirmed the initial decision regarding the appealability of
the appellant’s termination, but vacated it regarding the appellant’s IRA appeal,
which was now ripe for adjudication:
1. The appellant’ appointment was subject to a 1-year probationary period. A
probationer only has appeal rights if he alleges that he was terminated for partisan
political reasons or because of his marital status, and the appellant made no such
allegation.
2. The appellant cannot tack on his prior service with another agency. His reliance
on 5 C.F.R. § 315.802(c) is misplaced; it applies only enable an employee who had
begun a probationary period, and who was subsequently absent from his position
for specified reasons, to have part or all of the period of absence counted towards
the probationary period already begun at the time of the absence.
3. The appellant cannot count his time as a disability retiree toward the completion
of his probationary period.
17
4. While the Board did not have jurisdiction over the appellant’s IRA appeal at the
time the initial decision was issued, because 120 days had not yet elapsed after he
filed a complain with OSC, that appeal is now ripe for adjudication. | 39,345 | |
Case Report - August 1, 2008 | 08-01-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2008_352620.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2008_352620.pdf | CASE REPORT DATE: August 1, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Merrick Dixon
Agency: Department of Commerce
Decision Number: 2008 MSPB 153
Docket Number: CB-7121-08-0003-V-1
Issuance Date: July 22, 2008
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitrator’s decision that sustained the
agency’s removal action.
Holding: The Board upheld all aspects of the arbitrator’s decision: that the
charged conduct occurred; that a nexus existed between the conduct and the
efficiency of the service; and that the penalty imposed was reasonable. In so
ruling, the Board noted the deference due an arbitrator’s decision; the Board will
modify or set aside an arbitration decision only where the arbitrator has erred as a
matter of law in interpreting civil service law, rule, or regulation. In addition, the
Board found that the appellant failed to establish his claim of reprisal for
protected EEO activity.
► Appellant: Herbert W. Hayes
Agency: Department of the Army
Decision Number: 2008 MSPB 154
Docket Number: AT-0330-06-0198-B-1
Issuance Date: July 28, 2008
Appeal Type: Reemployment Priority
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
2
The appellant petitioned for review of a remand initial decision that dismissed his
VEOA complaint as untimely filed. In its previous decision, 2007 MSPB 157, 106
M.S.P.R. 132, the Board remanded the appeal to the regional office to make a
determination whether equitable tolling was appropriate under Kirkendall v.
Department of the Army, 479 F.3d 830 (Fed. Cir. 2007). On remand, the administrative
judge (AJ) ordered the appellant to file evidence and argument showing why the
deadline should be equitably tolled, but dismissed the appeal on the basis that the
appellant did not respond to her order.
Holdings: Contrary to the AJ’s finding, the appellant did respond to the AJ’s
order. Accordingly, the Board remanded the appeal for further adjudication.
► Appellant: Larry M. Dow
Agency: General Services Administration
Decision Number: 2008 MSPB 155
Docket Number: SF-3443-02-0159-X-1
Issuance Date: July 29, 2008
Appeal Type: Compliance
Compliance
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
This case was before the Board on the AJ’s Recommendation finding the agency in
noncompliance with the final order in the underlying appeal, which found that the
agency had violated the appellant’s rights under VEOA in connection with filling a job
vacancy, and ordered the agency to restructure its selection process in order to afford
the appellant his right to compete consistent with law. In his petition for enforcement,
the appellant alleged that the agency had not reconstructed the hiring process for the
position in question. The agency conceded that it had not fully reconstructed the hiring
process, but argued that it complied by offering the appellant priority consideration for
the next such position.
Holdings: The Board found the agency was not in compliance with its final order,
and ordered it to take specific actions to reconstruct the selection process:
1.
As the Board held in Endres v. Department of Veterans Affairs, 2007 MSPB 301,
107 M.S.P.R. 455, once an agency decides to select an applicant for a vacancy, it
must comply with veterans’ preference requirements, and compliance with VEOA
requires the removal of the non-preference eligible selectee from the position in
question, the reconstruction of the certificate of eligibles so that it contains at least
3 names for the selecting official, and if the agency wishes to select a non
preference eligible over the appellant, evidence that the agency obtained OPM’s
approval for a passover under 5 U.S.C. § 3318(b)(1). Here, the agency has
provided no evidence that it has removed selected individuals from the position, or
that it fully reconstructed the hiring process.
2. The Board rejected the agency’s argument that it could not reconstruct the
hiring process because of the lapse of time involved, and the fact that it had
destroyed a Certificate of Eligibles. The destruction of the particular certificate
3
“is of no great consequence” in remedying the appellant’s VEOA rights, as non
preference eligibles on this list would have to be placed behind any preferend
elgible candidates on any list.
3. The Board disagreed with the appellant’s contention that the agency’s attempt to
pass him over was in violation of 5 U.S.C. § 3318(b). It also disagreed with his
contention that it is appropriate to “reinstate” him to the position in question.
► Appellants: Calvin Phillips, et. al
Agency: Department of Transportation (Federal Aviation Administration)
Decision Numbers: 2008 MSPB 156; 2008 MSPB 157; 2008 MSPB 158;
2008 MSPB 159; 2008 MSPB 161; 2008 MSPB 162;
2008 MSPB 163; 2008 MSPB 164; 2008 MSPB 165;
2008 MSPB 166; 2008 MSPB 168; 2008 MSPB 170;
2008 MSPB 171
Docket Numbers: AT-0752-07-0603-I-1, et al.
Issuance Date: July 29-31, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Suspensions
All of these cases involve facts and issues of law similar to those in Hart v.
Department of Transportation, 2008 MSPB 149. The appellants are Air Traffic
Controllers (ATCs) with the Federal Aviation Administration (FAA), who were
temporarily medically disqualified from performing their ATC duties for significant
periods of time, and whose requests for assignment to administrative duties were denied
by the agency, resulting in their having to use annual or sick leave, or be in a leave
without pay status, for periods exceeding 14 days.
Holdings: In each appeal, the Board found, as it did in Hart, that the appellant has
sustained an appealable suspension, but remanded the case for further
adjudication:
1. The appellants had not presented a persuasive reason for modifying prior Board
precedent holding that the Back Pay Act does not apply to the FAA.
2. The appellants had sustained suspensions that were appealable to the Board, as
they were involuntarily placed in a non-pay non-duty status for more than 14 days.
3. Because the FAA is not covered by chapter 75 of Title 5 of the United States
Code, it is not required to follow the procedures of 5 U.S.C. § 7513(b).
4. A remand is necessary to determine whether the agency followed its internal
procedures before it suspended the appellants and, if not, whether the agency
committed harmful procedural error under its own rules.
4
► Appellant: Timothy A. Moore
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 160
Docket Number: AT-0752-05-0396-M-1
Issuance Date: July 30, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Mootness
The appellant petitioned for review of a remand initial decision that dismissed his
appeal as moot. In its previous decision, 2006 MSPB 248, 102 M.S.P.R. 689, the Board
found that the appeal of this removal action was moot on the basis of a settlement
agreement between the parties under which the appellant voluntarily accepted a
demotion. On appeal to the Federal Circuit, the court agreed with some aspects of the
Board’s ruling, but found that there still existed a live controversy as to whether the
agency’s back pay computation was correct as it pertained to health insurance
deductions, retirement credits, and sick and annual leave. 245 F. App’x. 961 (Fed. Cir.
2007). On remand to the regional office, the agency agreed to take certain actions, but
stated that OPM would not allow repayment of the retirement contributions that the
appellant withdrew while he was separated. The AJ found that the agency’s back pay
computation was correct and dismissed the appeal as moot.
Holdings: The Board granted the petition for review (PFR), reversed the remand
initial decision, and remanded the appeal to the regional office for adjudication on
the merits:
1. For an appeal to be deemed moot, the appellant must have received all of the
relief he could have received if the matter had been adjudicated and he had
prevailed.
2. The agency’s explanation that it could not restore the appellant’s retirement was
consistent with statute, regulation, and OPM guidance, which makes clear that
payment of a refund of FERS deductions permanently voids and retirement rights
based on the period of FERS service that the refund covers. Nevertheless, if the
appellant had prevailed on the merits of his removal appeal, a refund of retirement
contributions could have been rescinded.
3. Where, as here, an appeal is not truly moot despite cancellation of the action
under appeal, the proper remedy is for the Board to retain jurisdiction and to
adjudicate the appeal on the merits.
5
► Appellant: Anthony D. Cunningham
Agency: U.S. Postal Service
Decision Number: 2008 MSPB 167
Docket Number: CH-0752-07-0532-I-1
Issuance Date: July 30, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Defenses
- Self-Defense
The agency petitioned for review of an initial decision that mitigated its removal
penalty to a 30-day suspension. The appellant was removed from his Mail Handler
position on a charge of Improper Conduct/Violation of Zero Tolerance Policy after the
appellant engaged in a physical altercation with a co-worker on Postal property.
Following a hearing the AJ sustained the charge, but found that the appellant had acted
in self-defense. She further determined that the deciding official believed the agency’s
zero tolerance policy required removal and that he abused his discretion in imposing the
removal penalty without weighing or considering the relevant mitigating factors under
Douglas.
Holdings: The Board granted the agency’s PFR, reversed the initial decision, and
sustained the appellant’s removal:
1. The Board found that the AJ erred in accepting the appellant’s claim of self
defense.
a. The doctrine of self-defense requires proof that the individual used only so
much force as was reasonably necessary to free himself from another’s
unwanted grasp, and the defense may not be successfully invoked if the
person raising it was not free from fault in bringing on the difficulty, unless
that person retreats in good faith, intending to abandon the difficulty that
eventually led to the aggression.
b. It was true that, prior to the physical altercation, the co-worker several
times challenged the appellant to a fight and that the appellant declined on
each occasion, that the co-worker was waiting for him after the appellant
clocked out, that the co-worker twice pushed him when the appellant
attempted to descend the stairs, that the co-worker struck the appellant
first, and that during each of the ensuing 3 fights over the next 4 minutes,
the co-worker attached the appellant first.
c. Despite the above facts, the appellant did not establish the elements of self
defense. First, he was not free from fault in bringing on the difficulty.
Second, the appellant did not take all reasonable steps to avoid the physical
altercation. In particular, the Board found that, after the co-worker twice
pushed the appellant as he attempted to descend the stairs, the appellant did
not retreat in good faith before the fight began.
6
2. The penalty of removal is within the tolerable limits of reasonableness. The
evidence indicates that the deciding official did give bona fide consideration to the
relevant Douglas factors, and the Board saw no basis on which to conclude that the
removal penalty was clearly excessive under the circumstances.
► Appellant: Bryan D. Baldwin
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 169
Docket Number: CH-0752-08-0238-I-1
Issuance Date: July 30, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement/Separation
New Evidence
The appellant petitioned for review of an initial decision that dismissed his appeal
of an allegedly involuntary resignation for lack of a nonfrivolous allegation of
jurisdiction. Following the issuance of a decision notice informing the appellant that he
would be removed on misconduct charges, the appellant resigned from his position as a
Maintenance Mechanic. Without conducting a hearing, the AJ dismissed the appeal on
the basis that the appellant failed to make a nonfrivolous allegation that his resignation
was the result of agency coercion. She further found that the Board lacks jurisdiction to
review the appeal as an involuntary retirement.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion and remanded the case to the regional office for further adjudication:
1. The AJ correctly determined that the Board lacks jurisdiction over the appeal as
an involuntary retirement under 5 U.S.C. § 7701(j) and Mays v. Department of
Transportation, 27 F.3d 1577 (Fed. Cir. 1994), because the appellant was not
eligible to retire at the time of his separation from service.
2. The appellant failed to make a nonfrivolous allegation of an involuntary
resignation based on coercion, either on the basis that the agency knew it would
not prevail on its removal action, or on the basis that the agency made his working
conditions so intolerable that a reasonable person in his position would have felt
compelled to resign.
3. The appellant has made a nonfrivolous allegation of an involuntary resignation
based on agency-supplied misinformation.
a. For the first time on review, the appellant contends that the agency misled
him concerning his choices regarding resignation/retirement and his appeal
rights. This contention is not properly before the Board because the
appellant made no showing that it is based on new and material evidence not
previously available despite his due diligence.
b. Nevertheless, the Board reopened the appeal on its own motion because the
appellant has made a nonfrivolous allegation that the agency led him to
7
believe his separation was being processed as a retirement. After receiving
notice of the agency’s decision to remove him, he went to the personnel office
and notified the official of his intent to retire, and signed an SF-52 that
listed “Retirement” in the box titled “Nature of Action.” Other than the
agency’s disputed version of events, there is no indication in the record that
the appellant became aware that his separation was being processed as a
resignation rather than as a retirement until after the resignation became
effective. | 14,697 | |
Case Report - July 18, 2008 | 07-18-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2008_344572.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2008_344572.pdf | CASE REPORT DATE: July 18, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Deborah A. Fearon
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 152
Docket Number: PH-831M-07-0022-B-1
Issuance Date: July 15, 2008
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Retirement
- Overpayment of Annuity
The appellant petitioned for review of the initial decision on remand that granted
her a partial waiver of her overpayment, reducing the amount to be recovered from
$10,366 to $7866. In its earlier decision, the Board found the appellant was without
fault in causing the overpayment and might be entitled to at least a partial waiver based
on financial hardship, and remanded the case in order to obtain updated financial
information.
Holding: Where the appellant is without fault and recovery of some portion, but
not all, of the overpayment would be against equity and good conscience, a partial
waiver is warranted. In the absence of a specific challenge by OPM, an appellant
seeking a waiver of an annuity overpayment should not be required to substantiate
her expenses and income unless the information submitted appears incomplete or
unreasonable on its face. In determining whether an expense is ordinary and
necessary, the Board gives the annuitant in an overpayment case the benefit of the
doubt unless the expense constitutes an extravagance or a luxury. Here, the AJ
disallowed charges in the appellant’s Comcast bill. The Board found it could not
say with certainty that digital cable service without premium channels is an
extravagance and that it will not disallow a charge for high speed internet access
given the importance of the internet in ordinary business affairs. Moreover, as a
combined cable and internet bill of $120.76 was not unreasonable on its face, the
2
AJ should have accepted this figure at the outset without further inquiry. The
appellant was left with a positive income/expense margin of $81.18 but because the
liquidation of the debt of $10,366 would require 127 monthly installments, the
Board found, after acknowledging OPM no longer imposes a mandatory cap on
length of recovery, that recovery of the entire debt would be against equity and
good conscience and that the appellant had established by substantial evidence her
entitlement to a partial waiver of 50 percent of the full overpayment.
COURT DECISIONS
► Petitioner: Peter J. Lizzio
Respondent: Department of the Army
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3224
Issuance Date: July 16, 2008
Constitutional Issues
- Due Process
Settlement
- Breach
The agency removed Lizzio from the position of special agent with the agency’s
Criminal Investigation Command because it found he had breached a last chance
agreement pertaining to a previous removal action. The last chance agreement provided
that any misconduct by Lizzio would constitute a breach of the agreement and would
permit the agency to immediately execute its original decision to remove him. It also
contained a waiver of appeal rights. Following a hearing, the AJ held that the waiver of
appeal rights in the last chance agreement was unenforceable because Lizzio had
established he had not committed the breach of the last chance agreement asserted by
the agency in its Notice of Intention to Invoke the last chance agreement. She therefore
reversed the removal action. The Board reversed the initial decision and dismissed the
appeal for lack of jurisdiction, finding that the AJ had erred in limiting the issue of the
appellant’s compliance to the grounds relied upon by the deciding official in his
determination that Lizzio had engaged in misconduct.
Holding: The court vacated and remanded the Board’s final decision, finding the
Board had erred in its analysis by relying on a ground for breach of the last chance
agreement different from the one found by the AJ to have been asserted by the
agency in the notice of breach. The AJ determined the agency relied solely on AR
195-3 in deciding Lizzio had committed misconduct in violation of the last chance
agreement (AR 195-3 provides that employees must maintain the highest standards
of personal conduct and professionalism to avoid embarrassment to the Army and
the Government). After considering the evidence, the AJ found that, although
Lizzio’s conduct was rude and obnoxious, it was not embarrassing to the
government. The Board concluded that it need not decide whether Lizzio violated
AR 195-3 because Lizzio’s conduct was rude and discourteous towards members of
the public and this constituted misconduct. The court held that in order for an
3
appellant to establish he did not breach the agreement, he must be told in what
way he allegedly breached the agreement. Otherwise the appellant will not know
what he has to prove was not done. By relying on a ground for breach different
from the ground found by the AJ to have been asserted by the agency in the notice
of breach - a finding not disturbed by the Board – the Board deprived Lizzio of due
process. | 5,365 | |
Case Report - July 10, 2008 | 07-10-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_10_2008_343781.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_10_2008_343781.pdf | CASE REPORT DATE: July 10, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Charles W. Heckman
Agency: Department of the Interior
Decision Number: 2008 MSPB 128
Docket Number: SF-3443-05-0484-I-4
Issuance Date: June 19, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision (ID) that denied his
requests for corrective action under VEOA and USERRA. At issue was the agency’s
failure to select him for numerous vacancies. With respect to the USERRA claim, the
administrative judge (AJ) found that the appellant failed to prove that his military
service was at least a motivating or substantial factor in the agency’s failure to select
him. With respect to VEOA, the AJ found that the appellant failed to prove a violation
of his rights under any statute or regulation relating to veterans’ preference.
Holdings: The Board affirmed the ID insofar as it denied the appellant’s request
for corrective action under USERRA, but vacated the portion of the ID that denied
his request under VEOA. The Board grated that request in part, denied it in part,
and dismissed it in part for lack of jurisdiction:
1. The appellant established Board jurisdiction with respect to 4 vacancy
announcements, in that he exhausted his remedy with the Department of Labor
(DOL), made nonfrivolous allegations that he is a preference eligible, the actions at
issue took place after the enactment of VEOA, and that the agency violated his
rights under a statute or regulation relating to veterans’ preference.
2. With respect to 3 of these vacancies, the appellant failed to establish entitlement
to corrective action on the merits.
a. Regarding one of these vacancy announcements, the agency selected someone
other than the appellant under a merit promotion process, in which
2
preference eligibles are not entitled to any point preferences. Since the
appellant clearly had the opportunity to compete under this vacancy
announcement, he failed to establish that the agency violated his rights
under a statute or regulation relating to veterans’ preference.
b. Regarding two of these vacancy announcements, the agency did not violate
the appellant’s veterans’ rights in that it cancelled or did not make a
selection under these announcements.
2. The appellant is entitled to corrective action under VEOA with respect to
vacancy announcement ER-2005-0093. The AJ erred in finding that the Board
lacked jurisdiction on the basis that this complaint was resolved by the DOL. DOL
requested that the agency review the appellant’s application and provide him
consideration under the vacancy announcement. Instead, the agency told him that,
to compensate for its error, it would provide the appellant with priority
consideration for the next available equivalent position. DOL then agreed with the
agency’s determination and informed the appellant and the agency that it both
found the remedy would be appropriate redress and considered the case closed.
But the proper remedy for a VEOA violation is to reconstruct the selection process
in compliance with applicable statutes and regulations relating to veterans’
preference, and the Board ordered the agency to do so.
3. The appellant failed to establish Board jurisdiction over his remaining VEOA
claims due to his failure to establish that he exhausted his DOL remedy.
4. The AJ correctly denied the appellant’s request for corrective action under
USERRA on the basis that the appellant failed to prove that his military service
was at least a motivating or substantial factor in the agency’s failure to select him.
► Appellant: Oscar M. Gonzalez
Agency: Department of Transportation
Decision Number: 2008 MSPB 143
Docket Number: SF-0432-07-0397-I-2
Issuance Date: June 30, 2008
Appeal Type: Performance
Action Type: Removal
Performance-Based Actions
Board Procedures/Authorities
- Authority of AJs
Defenses and Miscellaneous Claims
- Collateral Estoppel
Whistleblower Protection Act
- Protected Disclosure
- Contributing Factor
- Clear and Convincing Evidence
The appellant petitioned for review of an ID that affirmed his removal for
unacceptable performance under chapter 43. After holding a hearing, the AJ
determined that the agency proved that the appellant’s performance was unacceptable
3
under one critical element, that the appellant had been afforded a reasonable
opportunity to demonstrate acceptable performance, and that none of the issues raised
by the appellant excused his failure to demonstrate acceptable performance. She further
found that the appellant failed to prove any of his affirmative defenses.
In his petition for review (PFR), the appellant contends that: (1) the agency failed
to establish that his performance standards were valid and were adequately
communicated to him; (2) the agency retaliated against him for various protected
activities; and (3) the AJ erred by denying him a number of requested witnesses.
Holdings: The Board affirmed the ID in part, vacated it in part, and remanded the
appeal to the regional office for further adjudication:
1. The AJ properly applied collateral estoppel to the issue of the validity of the
appellant’s performance standards and the communication of those standards to
the appellant. Collateral estoppel (issue preclusion) is appropriate when the issue
is identical to that involved in a previous adjudication, the issue was actually
litigated in the prior action, the determination on the issue was necessary to the
resulting judgment, and the party against whom issue preclusion is sought had a
full and fair opportunity to litigate the issue in the prior action. All of these
criteria have been met with respect to a prior Board appeal in which the appellant
challenged the agency’s denial of a within-grade increase.
2. The appellant waived any objections to the AJ’s rulings with respect to his
requested witnesses because he did not object to those rulings below.
3. The appellant has not shown any error in the AJ’s findings with respect to his
non-whistleblower retaliation claims. His arguments on PFR amount to mere
disagreement with the findings below.
4. The appeal must be remanded for further adjudication of the appellant’s claim
of retaliation for whistleblowing:
a. In an otherwise appealable action where the agency has proven its case, the
appellant must show by preponderant evidence that he made a protected
disclosure and that the disclosure was a contributing factor in the agency’s
personnel action. If the appellant makes this prima facie showing, the
burden shifts to the agency to show by clear and convincing evidence that it
would have taken the same personnel action absent the protected disclosure.
b. The appellant established that he disclosed a violation of law (18 U.S.C.
§ 701) by giving testimony to the agency’s Office of Inspector General
concerning agency employees involved in obtaining fake identification
badges.
c. The appellant established the contributing factor element under the
knowledge/timing test, in that his supervisor was aware of his testimony,
including his testimony that the supervisor possessed a fake identification
badge, and the removal action occurred slightly more than a year after his
protected disclosure.
4
d. Because the AJ incorrectly found that the appellant failed to establish that
his whistleblowing was a contributing factor in his removal, she did not
adjudicate whether the agency established by clear and convincing evidence
that it would have taken the same personnel action absent the appellant’s
protected disclosure. A remand to the regional office for further
adjudication is therefore required.
► Appellant: Winifred W. Walker
Agency: Department of the Air Force
Decision Number: 2008 MSPB 144
Docket Number: DA-0752-07-0228-I-2
Issuance Date: July 1, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Timeliness - PFR
The appellant petitioned for review of a November 19, 2007 ID that dismissed his
appeal of an alleged constructive suspension for lack of jurisdiction. The decision
notified the appellant that it would become the Board’s final decision unless a PFR was
filed on or before December 24, 2007. The appellant filed a PFR 46 days late, on
February 8, 2008. Because both the appellant and her attorney were e-filers, they were
notified by email that the ID had been issued and could be accessed at e-Appeal Online.
In a motion and affidavit asking the Board to excuse the late filing of the PFR, the
appellant’s attorney asserted that she did not discover that the decision had been issued
until January 8, 2008. She further asserted that notification of the ID was sent to an
outdated email address.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown for the delay:
1. The record shows that, throughout the appeal process below, all notices and
orders were sent to the attorney’s “outdated” email address, and she apparently
received those documents since the record shows that she continued to respond to
them, even after she allegedly switched to another email address in August 2007.
2. There is no evidence in the record that the attorney ever advised the AJ that her
email address had changed, as she was required to do.
3. Even taking the attorney’s assertions as true, she failed to contact the Board
until 30 days after she learned that the ID had been issued and the PFR filing
deadline had passed. This does not evidence due diligence or ordinary prudence.
4. Notice of the issuance of the ID was sent via email to the appellant as well as his
attorney, and the appellant has not submitted an affidavit or statement signed
under penalty of perjury stating that he did not receive the ID when the AJ
transmitted it to him.
5
► Petitioner: Adrian H. Garcia
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 145
Docket Number: CB-1205-08-0007-U-1
Issuance Date: July 2, 2008
Appeal Type: Request for Regulation Review
Miscellaneous Topics
- Regulation Review
The petitioner requested the Board to review OPM’s regulations at 5 C.F.R.
§ 315.806(a)-(b), which provide that a probationary employee can appeal a termination
not required by statute which he or she alleges was based on partisan political reasons
or marital status. The petitioner alleges that § 315.806 is inconsistent with OPM’s
regulation at 5 C.F.R. § 720.901, which provides that an agency may not effect the
termination of a probationer for “political reasons.” He asserts that the difference
between “political reasons” and “partisan political reasons” requires agencies to commit
prohibited personnel practices in violation of 5 U.S.C. §§ 2301 and 2302 and 5 C.F.R.
§ 720.901.
Holding: The Board denied the petitioner’s request for regulation review. In
exercising its jurisdiction under 5 U.S.C. § 1204(f)(1), the Board is authorized to
declare an OPM rule or regulation invalid if the Board determines that such
provision would, either on its face or as implemented, require the commission of a
prohibited personnel practice as defined by 5 U.S.C. § 2302(b). The Board’s
regulation at 5 C.F.R. § 1201.11 requires the petitioner to identify the prohibited
personnel practice that the regulation purportedly requires to be committed, and
to explain “in detail” why the challenged regulation, or its implementation,
requires the commission of a prohibited personnel practice. The petitioner does
not specifically identify the prohibited personnel practice that the regulation
purportedly requires to be committed, nor has he explained why this would occur.
► Appellant: Robert P. Isabella
Agency: Department of State
Petitioner: Office of Personnel Management
Decision Number: 2008 MSPB 146
Docket Numbers: AT-3443-05-0550-R-1
AT-0330-05-0409-R-1
Issuance Date: July 2, 2008
Board Procedures/Authorities
- Reopening and Reconsideration
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Pursuant to 5 U.S.C. § 7703(d), the Director of OPM requested review of the
Board’s final decision, 2007 MSPB 186, 106 M.S.P.R. 333, in which the Board held
that the agency violated the appellant’s veterans’ preference rights when it did not
6
waive the age requirement for the Diplomatic Security Service Special Agent position
for which he had applied.
Holdings: The Board denied the Director’s petition for reconsideration and
affirmed its final decision:
1. The Board rejected the Director’s contention that the statutory authority to set
maximum entry ages “takes precedence over” the waiver provision of the Veterans
Preference Act, 5 U.S.C. § 3312. The starting point for interpreting a statute is the
language of the statute itself, which governs absent a clearly expressed legislative
intent to the contrary. Section 3312 clearly provides that OPM or other examining
agency “shall waive... requirements as to age, height, and weight, unless the
requirement is essential to the performance of the duties of the position....”
There is no conflict between this provision and the authority to set minimum and
maximum entry age restrictions, as provided in 22 U.S.C. § 4823 or 5 U.S.C.
§ 3307(d)-(e).
2. The Board rejected the Director’s argument that the Board must defer, under
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
to OPM’s interpretation of the statutory terms. Chevron describes a two-step
process. First, a court must consider whether the intent of Congress is clear; if it
is, then the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress and “that is the end of the matter.” Deference to an
agency’s interpretation of the statute is only appropriate if the statute is silent or
ambiguous with respect to the specific issue. Here, the pertinent statutes are clear
and their application is straightforward; therefore, there is no cause to proceed to
the second step of Chevron.
3. For the reasons given in its previous decision, the Board rejected the Director’s
contention that the maximum entry age is essential to the performance of the
position.
► Appellant: John T. Cardinal
Agency: Office of Personnel Management
Intervenors: Office of Personnel Management and Rose Cespedes Cardinal
Decision Number: 2008 MSPB 147
Docket Number: CH-0831-07-0683-I-1
Issuance Date: July 3, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
Because the Board members could not agree on the disposition of the PFR, the ID,
which ordered OPM to accept a partial waiver of Intervenor Rosa Cardinal’s survivor
annuity, and to adjust the reduction in the appellant’s retirement annuity consistent with
the waiver, became the Board’s final decision. Chairman McPhie issued a separate
opinion explaining why he would have granted OPM’s PFR to find that Intervenor Rosa
Cardinal is not entitled to waive her right to any part of her survivor annuity because
she is not an annuitant.
7
► Appellant: Saffareene Gray
Agency: General Services Administration
Decision Number: 2008 MSPB 148
Docket Number: CB-7121-08-0009-V-1
Issuance Date: July 3, 2008
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitration decision that sustained her
removal under chapter 75 for performance and conduct reasons.
Holdings: The Board sustained the arbitrator’s decision affirming the removal:
1. The Board has jurisdiction, as the subject matter of the grievance (a removal) is
within its jurisdiction, the appellant alleges that the action at issue constitutes
discrimination under 5 U.S.C. § 2302(b)(1), and the arbitrator has issued a final
decision.
2. The appellant failed to show that the arbitrator erred as a matter of law in
interpreting civil service law, rule, or regulation in sustaining the agency’s
charges.
3. The appellant failed to show that the agency discriminated against her. She
raised a bare claim of color discrimination, but did not present any evidence
supporting an inference of discrimination.
4. The appellant failed to show that the arbitrator erred as a matter of law in
sustaining the removal penalty.
► Appellant: Russell Hart
Agency: Department of Transportation
Decision Number: 2008 MSPB 149
Docket Number: AT-0752-07-0660-I-1
Issuance Date: July 3, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Jurisdiction
Miscellaneous Topics
- Statutory Construction
Both parties petitioned for review of an ID that found that the appellant had been
constructively suspended and ordered cancellation of that action. The appellant is an
Air Traffic Controller (ATC) with the Federal Aviation Administration (FAA). He was
temporarily medically disqualified from performing his ATC duties for several months.
He requested, but was denied, administrative duties during this time. On appeal to the
Board, the AJ determined that the appellant had been constructively suspended. The AJ
reversed the action, without addressing the merits, on the ground that the agency failed
to follow the procedures required by 5 U.S.C. § 7513(b). The AJ did not, however,
order restoration of leave.
8
Holdings: The Board denied the appellant’s PFR, granted the agency’s cross-PFR,
vacated the ID, and remanded the appeal to the regional office for further
adjudication:
1. The appellant has not presented a persuasive reason for modifying prior Board
precedent holding that the Back Pay Act does not apply to the FAA, or that the
collective bargaining agreement or any other source provides authority for the
Board to order restoration of leave.
2. The Board agreed with the AJ’s determination that the appellant had sustained
a suspension that was appealable to the Board, as he was involuntarily placed in a
non-pay, non-duty status for more than 14 days.
3. The Board held that the FAA is not covered by chapter 75 of Title 5 of the
United States Code.
a. In 1996, Congress eliminated the right of FAA employees to appeal certain
actions to the MSPB. Four years later, the Ford Act reinstated Board appeal
rights for FAA employees, including a suspension exceeding 14 days.
b. The Ford Act, 49 U.S.C. § 40122, provides that, except for 8 named
exceptions, the “provisions of title 5 shall not apply” to the FAA’s personnel
management system. Chapter 75 is not included under any of the 8
exceptions. Accordingly, the FAA is not required to follow chapter 75
procedures.
4. A remand is necessary to determine whether the agency followed its internal
procedures before it suspended the appellant and if not, whether the agency
committed harmful procedural error under its own rules, and for adjudication of
other issues as appropriate.
► Appellant: George Bruton
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 150
Docket Number: CH-0752-06-0580-I-1
Issuance Date: July 3, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Absence-Related
New Evidence
The appellant petitioned for review of an ID that affirmed his removal from the
federal service on a charge of absence without leave (AWOL). The appellant was a
Housekeeping Aid at an agency hospital. After suffering a knee injury in 2002, he
began receiving workers’ compensation benefits from the Office of Workers’
Compensation Programs (OWCP). Thereafter, he worked light-duty assignments
restricted to 4 hours per day. In 2005, the appellant’s physician further restricted the
appellant to working 3 hours per day. Later the same year, OWCP determined that the
appellant could work 8 hours per day with certain physical restrictions, and terminated
9
his compensation benefits. The agency directed the appellant to return to work, 8 hours
per day, but the appellant only worked 3 hours each day. The agency removed the
appellant on charges of being AWOL 5 hours each day. After a hearing, the AJ found
that the agency proved its charge, that the appellant failed to prove his affirmative
defense of disability discrimination, and that the penalty of removal was within the
bounds of reasonableness.
The appellant filed his PFR more than 14 months after the deadline for timely
filing. With his PFR, he included a new decision from the Employees’ Compensation
Appeals Board (ECAB) that reversed the earlier OWCP decision and reinstated his
workers’ compensation benefits.
Holdings: The Board granted the appellant’s PFR, reversed the ID, and ordered
the agency to restore the appellant to employment:
1. The discovery of new evidence may establish good cause for the untimely filing
of a PFR if the evidence was not readily available before the close of the record
below, and if it is of sufficient weight to warrant an outcome different from that of
the ID. The ECAB ruling met these requirements, and the appellant filed his PFR
within 3 weeks of the ruling, demonstrated that he acted promptly and with due
diligence.
2. An adverse action based on a charge of AWOL cannot be sustained if OWCP
determines that the employee was entitled to compensation benefits as a result of a
work-related injury for the entire period charged as AWOL. Here, ECAB’s
decision reverses an earlier OWCP decision that terminated the appellant’s
benefits, and it covers the entire period of the agency’s AWOL charge.
► Appellant: Thomas D. Gaudin
Agency: Department of the Treasury
Decision Number: 2008 MSPB 151
Docket Number: AT-0752-07-0539-I-1
Issuance Date: July 9, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
The agency petitioned for review, and the appellant filed a cross-PFR, of an ID that
mitigated the appellant’s removal to a demotion. The agency (IRS) removed the
appellant from the position of GS-9 Lead Contact Representative on charges of
(1) failing to properly file Federal income tax returns for 2001 and 2002, (2) failing to
timely pay his income tax liability for tax years 2001 through 2004, and (3) failing to
complete Form 7995 (Outside Employment or Business Activity Request Form) for
approval of an outside business activity for tax years 2001 and 2002. The agency
alternatively charged that the appellant’s alleged misconduct under the first charge was
willful under section 1201(b)(9) of the Restructuring and Reform Act of 1998 (RRA).
The deciding official determined that the appellant willfully understated his Federal tax
liability under the RRA, and followed agency procedures for such cases, forwarding the
matter to the Commissioner’s § 1203 Review Board (CRB) for mitigation consideration.
10
The CRB did not mitigate the removal penalty, and the deciding official effected the
appellant’s removal.
On appeal to the Board, the AJ sustained 4 of the 6 specifications under the first
charge, and both of the other charges. The AJ found that none of the misconduct under
the first charge was willful, however, and therefore found no violation of the RRA. The
AJ found that the removal penalty was not within the bounds of reasonableness for
several reasons: his outstanding performance evaluations; the appellant’s promotion
from GS-7 to GS-9 after the audit that resulted in the charges against him; there was no
evidence that the appellant’s position provided him with any more than average
knowledge regarding his income tax returns for 2001 and 2002; the appellant had been
nominated for the Careers & the Disabled magazine’s employee of the year award; and
there was no basis for imposing a penalty with regard to the second and third charges
because the appellant paid the tax liability immediately after the audit, before it was
assessed, and he would have been allowed to operate the outside business. The AJ
mitigated the penalty to a demotion to a GS-7 position.
Holdings: The Board affirmed the ID as modified, still mitigating the removal
penalty to a demotion:
1. The Board denied the appellant’s cross-PFR because it did not meet the criteria
of 5 C.F.R. § 1201.115.
2. The Board agreed with the AJ’s determination that the agency failed to prove
that the appellant’s misconduct was willful, and that the appellant provided a
reasonable cause or explanation for his actions. Thus, the agency failed to prove
its charge of misconduct under the RRA.
3. The AJ failed to perform a legally sufficient review of the penalty under the
circumstances of the case. In particular, the AJ erred by independently weighing
the relevant mitigating factors without specifically determining first that the
agency-imposed penalty was too severe or that the deciding official failed to
demonstrate that he considered any specific, relevant mitigating factors before
deciding upon the penalty, or otherwise abused his discretion.
4. After reviewing the deciding official’s testimony, the Board concluded that,
although he said he considered the Douglas factors, he nevertheless believed that
he had no discretion to act on any consideration of them. Underlying his selection
of the removal penalty was his belief that the appellant’s misconduct was a
violation of the RRA and that, because the Commissioner did not mitigate the
penalty under the RRA procedures, he had no option but to effect the appellant’s
removal. The Board therefore found that the agency failed to demonstrate that the
deciding official considered any specific, relevant, mitigating factors before
deciding upon a penalty.
5.
After considering the relevant factors, and comparing the facts of this case to
those in Jenkins v. Department of the Treasury, 2007 MSPB 4, 104 M.S.P.R. 345, the
Board concluded that the AJ did not err in finding that, under the circumstances of
this case, the removal penalty exceeded the bounds of reasonableness and that the
maximum reasonable penalty was a demotion. | 25,930 | |
Case Report - June 27, 2008 | 06-27-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_27_2008_340941.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_27_2008_340941.pdf | CASE REPORT DATE: June 27, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Edwin Joseph Tress, Jr.
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 125
Docket Number: PH-0831-07-0644-I-1
Issuance Date: June 17, 2008
Action Type: Retirement/Benefit Matter
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed. On July 24, 2007, the appellant received OPM’s final decision
reducing his retirement annuity. Three days later, he completed the MSPB appeal form
contesting OPM’s final decisions, but instead of sending to the MSPB, he mailed it to
OPM. OPM did not forward it to the MSPB until September 14. The administrative
judge (AJ) dismissed the appeal as untimely filed without good cause shown for the
delay.
Holding: The Board reversed the initial decision and remanded the case for
adjudication on the merits. Although the Board generally holds that an appellant’s
failure to follow explicit filing instructions does not constitute good cause for any
ensuing delay, it has recognized an exception where appellants have timely but
mistakenly sent appeals of OPM final decisions to OPM rather than to the MSPB,
when: (1) The delay was caused in part by OPM’s failure to redirect an otherwise
timely appeal to the Board; (2) the appellant clearly intended to seek further
review of OPM’s decision; (3) the appellant was pro se (representing himself); and
(4) there was no showing of prejudice to the agency. Those conditions have been
met here.
2
► Appellant: Joyce A. Brum
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 126
Docket Number: PH-0752-07-0593-I-1
Issuance Date: June 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFR
The appellant petitioned for review of an initial decision that affirmed the agency’s
action removing her from her position as a nursing assistant. The initial decision
informed the appellant that this decision would become the Board’s final decision
unless a petition for review (PFR) was filed by January 24, 2008. The appellant mailed
her PFR on February 9, 2008, more than two weeks late. The appellant did not respond
to the show-cause issued by the Clerk of the Board.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown.
► Appellant: Cecily A. Blount
Agency: Department of the Treasury
Decision Number: 2008 MSPB 127
Docket Number: PH-315H-07-0634-I-1
Issuance Date: June 19, 2008
Appeal Type: Termination of Probationers
Jurisdiction
- Probationers
Defenses and Miscellaneous Claims
- Harmful Error
The appellant petitioned for review of an initial decision that dismissed her appeal
for lack of jurisdiction. It was undisputed that the agency terminated the appellant’s
employment during her probationary period in part for pre-appointment reasons. It was
also undisputed that the agency did not follow the procedures required by 5 C.F.R.
§ 315.805, which include notice and an opportunity to respond. In dismissing the
appeal for lack of jurisdiction, the AJ found that the agency’s failure to comply with the
procedural requirements of § 315.805 did not constitute harmful error.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal for further adjudication:
1. An appellant must receive explicit information on what is required to establish
an appealable jurisdictional issue. The AJ did not provide any notice to the
appellant of a jurisdictional requirement relating to harmful error. Moreover, the
AJ rejected the appellant’s submissions filed subsequent to the agency’s pleading
on the jurisdictional issue, thereby preventing the appellant from addressing the
issue of harmful error.
3
2. Based on the appellant’s pleadings on PFR, the Board found that the appellant
established jurisdiction over her appeal, and remanded the case to the regional
office for further adjudication.
► Appellant: Leonard P. Machulas
Agency: Department of the Air Force
Decision Number: 2008 MSPB 129
Docket Number: PH-3443-07-0282-I-2
Issuance Date: June 19, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied his request for
corrective action regarding the agency’s handling of his requests for leave for
participating in active military duty summer camp in 1993. The AJ construed the
appellant’s appeal as a USERRA claim arising under Butterbaugh v. Department of
Justice, 336 F.3d 1332 (Fed. Cir. 2003), and denied corrective action because the
appellant “has not provided any evidence to show that he was forced to take military
leave during a non-working time period, and that as a result was forced to use other
types of approved leave.”
Holdings: The Board vacated the initial decision and remanded it to the regional
office for further adjudication under the substantive provisions of the Vietnam Era
Veterans’ Readjustment Assistance Act of 1974 (VEVRA):
1. The appellant’s claim that he is entitled to military leave from October 23 to
November 6, 1993, concerns a time period that predates the enactment of USERRA
in 1994. Although the substantive provisions of USERRA do not apply
retroactively, where a governmental action violated a veterans’ protection statute
in effect at the time the conduct occurred, the Board has jurisdiction under
USERRA to adjudicate the claims.
2. The AJ erred in applying the substantive provisions of USERRA. The
appellant’s claims are governed by VEVRA, the predecessor statute to USERRA.
3. The AJ erred in construing the appeal as a Butterbaugh claim. The appellant
was not contending that he was improperly charged military leave, but that the
agency improperly denied his request for military leave. This claim may be
cognizable under VEVRA. In adjudicating the VEVRA claim, the USERRA
burdens of proof set forth at 38 U.S.C. § 4311(c) apply.
4. The AJ’s failure to inform the parties of their respective burdens of proof may
have prejudiced the parties’ substantive rights, and requires a remand.
4
► Appellant: Richard H. Walker
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 130
Docket Number: DC-0752-06-0871-I-1
Issuance Date: June 19, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness – PFA and PFR
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed. The appeal of this removal action was filed about 6 months after the
deadline for timely filing. The appellant did not respond to the AJ’s order advising him
of the timeliness issue, which afforded him to opportunity to provide additional
evidence and argument on the issue. In the initial decision dismissing the appeal as
untimely filed, the AJ found that it appeared that the appellant could have been
mentally incapacitated during some of the time prior to his untimely filing, but that the
existing documentation did not account for the entire period of time. The appellant
filed a pro se PFR in January 2008, almost a year after the deadline for timely filing.
Holdings:
1. Based on the evidence submitted on review, the Board found that the appellant
has shown good cause for both his untimely filed appeal and his untimely filed
PFR, and that he was incapacitated by mental illness during the relevant time
periods.
2. On remand, the AJ should inquire into whether the agency met any obligation it
may have had to the appellant under 5 C.F.R. § 844.202 to file a disability
retirement application on his behalf. If the agency does not on its own accord file
an application for the appellant, then the use of French procedures would be
appropriate.
► Appellant: Yvonne Fannette Howerton
Agency: Department of the Army
Decision Number: 2008 MSPB 131
Docket Number: DC-0752-07-0913-I-1
Issuance Date: June 20, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Timeliness - PFR
The appellant filed her PFR 35 days after the deadline for timely filing. Although
she filed a motion to accept her late-filed petition, she did not provide any explanation
for the delay in filing.
5
Holding: The Board dismissed the PFR as untimely filed without good cause
shown.
► Appellant: Michael W. Harlston, Sr.
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 132
Docket Number: CH-831E-08-0043-I-1
Issuance Date: June 20, 2008
Appeal Type: CSRA - Employee Filed Disability Retirement
Mootness
The appellant petitioned for review of an initial decision that dismissed his appeal
of OPM’s denial of his application for disability retirement as moot. The appellant
applied for and received immediate retirement under CSRS in 2006. In 2007, he
applied for disability retirement. OPM determined that the appellant’s retirement
annuity was equal to the annuity he would receive with a disability retirement and
issued a final decision constructively denying his application on the ground that it was
moot. On appeal to the MSPB, the appellant did not respond to the AJ’s show-cause
order, and the AJ issued a decision finding the appeal moot on the same ground as had
OPM. On PFR, the appellant implies that he believes he would be entitled to greater
monetary benefits as a disabled annuitant. He also asserts for the first time that OPM’s
decision was discriminatory on the basis of his race and disability.
Holdings:
1. A case is moot when the appellant has obtained all the relief he could have
obtained had he prevailed before the Board or where it is impossible for the Board
to grant further relief. Here, the appellant implies that he will receive greater
monetary benefits under disability retirement, but has offered no evidence to rebut
OPM’s contrary determination. Even though OPM’s determination appears to be
correct, it has not provided its calculations that led to its conclusion that the two
annuities would be the same. Under these circumstances, the record lacks any
evidence from OPM to support its determination. Accordingly, the initial decision
must be vacated and the appeal remanded to the regional office for further
adjudication.
2. The appellant has not explained in his PFR how and when he learned of the
alleged discrimination and why he did not raise the issue below. In the absence of
evidence that he was previously unaware of the basis for this allegation of
discrimination, the matter is unreviewable.
6
► Appellant: Roy L. Hendricks
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 133
Docket Number: AT-0831-07-0995-I-1
Issuance Date: June 20, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Deposit for Post-1956 Military Service
- Administrative Error
The appellant petitioned for review of an initial decision that affirmed OPM’s
action reducing his CSRS annuity to eliminate credit for his post-1956 military service.
The appellant retired in 2001 at the age of 55. Because he had post-1956 military
service, he was informed that he must make a deposit to continue receiving credit for
military service upon becoming eligible for Social Security benefits, and that his
annuity might be reduced after age 62 if he did not make such a deposit. The appellant
elected not to make the deposit. When he turned 62, OPM recomputed his annuity to
eliminate credit for his post-1956 military service, reducing his monthly annuity by
more than a thousand dollars. In his appeal, the appellant contended (including in
sworn testimony) that he had relied on the advice of a retirement counselor with his
employing agency, who mistakenly informed him that he did not have to make the
deposit if he did not apply for Social Security benefits. The appellant further stated
that, based on that representation, he calculated that the investment value of the money
required for the deposit would outweigh the value of the Social Security benefits, and
for this reason elected not to make the deposit. The AJ found it “inherently
improbable” that the retirement counselor misled the appellant, and that he had been
“elaborately and unequivocally” informed of the consequences of not making the
deposit.
Holdings: The Board granted the appellant’s PFR and reversed the initial
decision, ordering OPM to provide the appellant with an opportunity to make a
post-retirement deposit for his post-1956 military service:
1. OPM will permit a post-separation deposit for post-1956 military service only if
the employee’s failure to make the deposit prior to retirement was the product of
administrative error under 5 C.F.R. § 831.2107(a)(1).
Under McCrary v. Office of
Personnel Management, 459 F.3d 1344, 1349 (Fed. Cir. 2006), when an employee, at
the time of election, asks for information regarding the amount of the military
deposit or the consequences of failing to make a deposit, the government commits
administrative error if its response either misrepresents the dollar amounts in
question, or is so indirect, inaccurate, or incomplete as to confuse the employee as
to the amount of the deposit or the effect of any failure to make the deposit.
2. The appellant provided sworn testimony that the retirement counselor informed
him that he did not have to make a deposit for his post-1956 military service if he
did not apply for Social Security benefits, and that he would have made the deposit
had he not received this erroneous advice. The agency adduced no evidence to
7
rebut the appellant’s claim. Contrary to the finding of the AJ, the Board did not
find the appellant’s version of events to be inherently unlikely. The Board has
found on several occasions that an employing agency’s retirement counselor
misinformed the employee regarding the effect that failure to make a deposit for
post-1956 military service would have on his annuity. While it is true that the
appellant had access to correct information on this subject, the misleading advice
of his employing agency constitutes administrative error.
► Appellant: Teresa M. Bonk
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 134
Docket Number: DC-0752-05-0397-I-1
Issuance Date: June 23, 2008
Action Type: Constructive Adverse Action
Timeliness - PFR
The appellant petitioned for review of an initial decision that dismissed for lack of
jurisdiction her claim of an involuntary disability retirement. The PFR was filed
approximately 2½ years after the deadline specified in the initial decision. In her
response to the Clerk’s notice on timeliness, the appellant said she was unable to find a
lawyer and was confused about whether her appeal was properly an MSPB matter or an
EEOC matter, and that, after the AJ dismissed her case, she pursued her claim with the
EEOC before filing her PFR with the Board.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown. The initial decision clearly notified the appellant of the deadline for filing
a PFR and the correct means of doing so.
► Appellant: Timothy L. Vores
Agency: Department of the Army
Decision Number: 2008 MSPB 135
Docket Number: CH-3443-07-0552-I-1
Issuance Date: June 23, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. After exhausting his remedy with the Department of Labor, the
appellant filed an appeal with the Board asserting that the agency violated his veterans’
preference rights under VEOA in connection with his application for a position as a
resident in the Internal Medicine Residency Program (IMRP) at the William Beaumont
Army Medical Center in El Paso, Texas. The agency filed a motion to dismiss on the
grounds that veterans’ preference rights do not apply to placement in the IMRP.
The
AJ found that, under Scarnati v. Department of Veterans Affairs, 344 F.3d 1246 (Fed.
Cir. 2003), the appointment of medical professionals made pursuant to 38 U.S.C.
§§ 7401 and 7403 can be made without regard to civil service appointments, and that
8
the appellant therefore failed to make a non-frivolous allegation that the agency
violated his rights under a statute or regulation related to veterans’ preference.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion, and affirmed the initial decision as modified, still dismissing the appeal for
lack of jurisdiction:
1. The Board reopened the appeal on its own motion because the record shows that
the AJ based his legal conclusion on an incorrect finding of fact and application of
law. The AJ’s finding that residents at Beaumont are hired under the authority of
38 U.S.C. §§ 7401 and 7403 is incorrect. Residents in Beaumont’s IMRP are
selected under the authority of 38 U.S.C. § 7406. It was therefore necessary to
determine whether the reasoning of the Scarnati decision nonetheless applies.
2.
The Board found the reasoning of the court in Vores v. Department of Veterans
Affairs, 113 F. App’x. 916 (Fed. Cir. 2004), to be persuasive. That case involved
the appellant’s nonselection for a residency in the IMRP at a Veterans
Administration Medical Center. The court rejected the appellant’s attempt to
distinguish his VEOA case from Scarnati, finding that the pertinent language in 38
U.S.C. § 7406(a)(1) authorizing the appointment of qualified persons to residencies
and internships “without regard to civil service or classification law, rules, or
regulations” to be “identical in substance” to the language in 38 U.S.C.
§ 7403(a)(1).
► Appellant: James J. Spinella
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 136
Docket Number: NY-0845-07-0295-I-1
Issuance Date: June 23, 2008
Appeal Type: FERS - Collection of Overpayment
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
OPM petitioned for review of an initial decision that reversed its final
determination regarding an annuity overpayment received by the appellant. The
appellant retired under FERS in 1999. In 2006, OPM conducted an audit and
determined that an incorrect high-3 average salary had been used to compute his
annuity. This resulted in his monthly annuity being reduced by $183 per month. In
addition, OPM determined that the appellant had received an overpayment of $13,477.
The appellant did not dispute the existence or amount of the overpayment, but requested
reconsideration and/or waiver. OPM found that the appellant was without fault in the
creation of the overpayment, but found that the appellant had failed to show that
recovery of the debt would be against equity and good conscience. OPM did, however,
adjust the repayment schedule from 34 to 80 installments. On appeal to the MSPB, the
AJ determined that recovery of the debt would be against equity and good conscience,
finding that OPM’s 79-month delay in adjusting the appellant’s annuity was
unconscionable under the totality of the circumstances.
9
Holdings: The Board remanded the appeal to the regional office for further
adjudication:
1. Under 5 U.S.C. § 8470(b) and 5 C.F.R. § 845.301, a waiver of recovery of an
overpayment may be granted when the annuitant is without fault and recovery
would be against equity and good conscience. Generally, recovery is against equity
and good conscience when it would cause financial hardship, the annuitant can
show that because of the overpayment he relinquished a valuable right or changed
positions for the worse, or recovery could be unconscionable under the
circumstances. The unconscionability standard is a high one, which will be
granted only under exceptional circumstances. Such circumstances include, but
are not limited to, cases where there has been an exceptionally lengthy delay by
OPM in adjusting an annuity, or where OPM is otherwise grossly negligent in
handling the case.
2. OPM acted promptly and decisively upon discovering the overpayment. While
this does not absolve OPM of its unexplained failure to conduct a timely audit, this
delay does not rise to the level of gross negligence. In the absence of other
“exceptional circumstances,” the Board found that recovery of the debt would not
be unconscionable.
3. The AJ did not reach the question of whether the appellant is entitled to waiver
on the grounds of financial hardship. The appellant’s Financial Resources
Questionnaire indicates that he and his spouse have a combined average monthly
income of $9,000, average monthly expenses of $9,430, and liquid assets under
$5,000, suggesting that he may be entitled to a waiver based on financial hardship.
The case was remanded for further adjudication on this issue, including the
opportunity for the appellant to submit updated financial information.
► Appellant: David C. Stoddard
Agency: Department of the Army
Decision Number: 2008 MSPB 137
Docket Number: DA-0752-07-0550-I-1
Issuance Date: June 23, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Absence-Related
Penalty
The appellant petitioned for review of an initial decision that affirmed his removal
for creating a disturbance and for absence without leave (AWOL). The first charge was
based on an incident the day after the Virginia Tech shootings, in which the appellant
told two co-workers that they were number 34 and 35, and that when he was done with
them, he would go upstairs and “take out” two other agency employees. The second
charge alleged that the appellant was AWOL on four days in March and April 2007.
Following a hearing, the AJ found that the agency met its burden of proof on both
10
charges, that the appellant failed to establish his affirmative defenses, and that the
removal penalty is reasonable and promotes the efficiency of the service.
Holdings: The Board affirmed the initial decision as modified, still affirming the
agency’s removal action:
1. The agency failed to establish its AWOL charge, which was based on the
appellant’s alleged failure to comply with a leave restriction letter that required a
letter from a medical provider to justify any sick leave absences. The appellant
provided certificates from a licensed nurse to cover his absences, and the agency
did not object to these certificates until it proposed the appellant’s removal. The
Board found that the appellant made a “good faith effort to comply with
instructions that were at best ambiguous.” Under these circumstances, it found
that the AWOL charge should not have been sustained.
2. The Board found that the removal penalty was within the bounds of
reasonableness for the sustained charge, finding that, “[e]ven if the appellant
intended his remarks as a joke, at a minimum he displayed profound bad judgment
in making such statements the day after the Virginia Tech shootings, and the effect
on the workplace was clearly disruptive to the agency’s mission.”
► Appellant: Bernard A. Williams, Jr.
Agency: Department of the Army
Decision Number: 2008 MSPB 138
Docket Number: AT-0752-07-0992-I-1
Issuance Date: June 23, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied his request for
corrective action in this USERRA appeal. The appellant alleged that he was treated
differently from non-veterans, in that the agency extended the appointments of non
veterans serving in term appointments but did not extend his appointment. The AJ
found that the appellant established jurisdiction, but based on the written record, found
that the appellant failed to prove by preponderant evidence his assertion that the agency
treated him differently from others based on his military status.
Holding: The AJ erred in failing to hold a hearing on the appellant’s claim as he
had requested. The Board’s reviewing court has held that USERRA requires that
“any veteran who requests a hearing shall receive one.” The case was remanded to
the regional office for further adjudication.
11
► Appellant: Joseph P. Carson
Agency: Department of Energy
Decision Number: 2008 MSPB 139
Docket Number: AT-1221-98-0250-C-7
AT-1221-96-0948-C-1
AT-1221-98-0623-C-7
Issuance Date: June 23, 2008
Appeal Type: Individual Right of Action (IRA)
Compliance
Defenses and Miscellaneous Claims
- Res Judicata
Whistleblower Protection Act
The appellant petitioned for review of a compliance initial decision that dismissed
his petition for enforcement (PFE) of the Board’s final decision in Carson v.
Department of Energy, 85 M.S.P.R. 171 (Carson I), dismissed per curiam, 243 F.3d 567
(Fed. Cir. 2000) (Table), as barred by res judicata, and that denied his motion to have
his whistleblower reprisal claim docketed as an IRA appeal. In Carson I, the Board
ordered the agency, inter alia, to cancel a directed reassignment from Oak Ridge,
Tennessee to Germantown, Maryland, and to return the appellant to the full range of
duties and work assignments consistent with his position description and past
assignments as a GS-14 General Engineer. The Board ordered the agency to complete
this action no later than 20 days after the date of the decision. In a later enforcement
proceeding, the Board found that the agency did not violate Carson I when it placed the
appellant in the position of GS-14 Technical Facility Representative in the Oak Ridge
Operations Office.
Carson v. Department of Energy, 88 M.S.P.R. 260 (2001) (Carson
II). In this proceeding, the appellant alleged that the agency failed to take the
corrective action that the Board ordered in Carson I within 20 days of the decision, and
in reprisal for his whistleblowing activity that was the subject of Carson I. The AJ
treated the filing as a PFE of the Board’s final decision in Carson I rather than as an
IRA appeal, on the basis that the appellant had not exhausted his administrative
remedies before OSC. The agency then moved to dismiss the PFE as barred by the
doctrine of res judicata. In response, the appellant stated that he agreed with the agency
that res judicata precludes a PFE, and asserted that he was filing a new IRA appeal.
Without holding the hearing requested by the appellant, the AJ dismissed the
appellant’s PFE as barred by res judicata, and denied the appellant’s request to have his
reprisal claim docketed as a separate appeal under the Whistleblower Protection Act.
Holdings: The Board affirmed the initial decision regarding the dismissal of the
appellant’s PFE, and dismissed the appellant’s IRA appeal as barred by the
doctrine of res judicata.
1. The AJ correctly found that the appellant’s allegations of agency noncompliance
with the Board’s final decision in Carson I are barred by the doctrine of res
judicata.
12
a. Res judicata (claim preclusion) precludes parties from relitigating issues that
were, or could have been, raised in the prior action if: (1) The prior
judgment was rendered by a forum with competent jurisdiction; (2) the
prior judgment was a final judgment on the merits; and (3) the same cause
of action and the same parties or their privies were involved in both cases.
b. These criteria have been met. The appellant’s claim of noncompliance based
on the agency’s failure to take corrective action no later than 20 days after
the Board’s final order in Carson I could have been raised in the earlier PFE
in Carson II.
2. The AJ erred by declining to docket the appellant’s whistleblower reprisal claim
as an IRA appeal.
a. Contrary to the AJ’s finding, the appellant did present evidence that he
exhausted his administrative remedy with OSC. He presented evidence that
he filed a complaint with OSC on April 11, 2007, and more than 120 days
had elapsed when he initiated a new proceeding with the MSPB.
b. The AJ erred in refusing to docket the appeal as an IRA appeal on the
grounds that the appellant would be unable to set forth a personnel action,
reasoning that the action he would be raising is the agency’s noncompliance
with the Board’s final decision in Carson I and the Board and the Federal
Circuit have repeatedly found the agency in compliance with Carson I.
However, the appellant alleged not only that the agency failed to comply
within 20 days, but also that the agency delayed taking corrective action
until November 2000 in reprisal for his whistleblowing activity. The Board
has held that a corrective action is a “personnel action” under 5 U.S.C.
§ 2302(a)(2)(A)(iii) and that a lengthy delay in taking a corrective action can
constitute a “failure to take” a personnel action under 5 U.S.C. § 2302(b).
The appellant thus raised a cognizable IRA claim.
3.
In Carson v. Department of Energy, 398 F.3d 1369, 1378 (Fed. Cir. 2005), the
court determined that the appellant’s transfer in November 2000 rather than
September 1999 was “self-inflicted,” rather than the product of retaliatory animus.
This new IRA appeal alleging that the agency delayed the appellant’s transfer in
reprisal for his whistleblowing activity is barred under the doctrine of res judicata.
► Appellant: Bruce L. Williams
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 140
Docket Number: AT-844E-04-0902-I-2
Issuance Date: June 24, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Timeliness - PFR
Holding: The Board dismissed the appellant’s PFR as untimely filed by more than
2½ years with no showing of good cause for the delay.
13
► Appellant: Merrie J. Leite
Agency: Department of the Army
Decision Number: 2008 MSPB 141
Docket Number: SF-3443-07-0070-I-1
Issuance Date: June 24, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Mootness
The appellant petitioned for review of an initial decision that dismissed her
USERRA appeal as moot. When the appellant was called to military duty in
January 2003, she was serving as Chief, Resource Management, GS-13. During her
absence, the agency abolished her position and created the position of Financial
Manager, GS-14. Although the appellant competed for this position, another candidate
was selected. When she returned to civilian duty in October 2006, the appellant was
assigned to a GM-13 position, but for the next 4 months, was detailed to unclassified
duties. In February 2007, she was assigned to the position of Supervisory Executive
Assistant, YC-0301-2/0. The appellant filed a USERRA appeal after first seeking relief
from the Department of Labor. After holding a hearing, the AJ found that: (1) the
GS-14 position to which the appellant claimed reemployment rights was a new position
and that its higher grade was not due to the accretion of duties; (2) this position was
filled competitively and the evidence showed that the appellant would not have been
assigned to the position even if she had not been absent for military duty; (3) she was
entitled to be reemployed in a position of like status to her former position; (4) the
status of the GS-13 position to which the appellant was initially reassigned upon her
return to civilian employment was not like her former position and violated the
appellant’s reemployment rights; (5) the Supervisory Executive Assistant position to
which the appellant was assigned was like her former position; and (6) because the
appellant lost no wages or benefits as a result of the improper initial assignment, she
had received all the relief she would have received if she had prevailed in her appeal,
and the appeal was therefore moot.
Holdings: The Board affirmed the initial decision as modified, denying the
appellant’s request for corrective action on the merits of her USERRA claim:
1. If the appellant were to prevail on her claim that she was entitled to be
reemployed in the GS-14 Financial Manager position, or another position of like
status, she would be entitled to further relief. Because the appellant has never
withdrawn this claim, her appeal is not moot.
2. Because the record does not show with reasonable certainty that the appellant
would have been promoted to the GS-14 position but for her military service, the
Board denied her USERRA claim on the merits.
a. Under 38 U.S.C. § 4313(a)(2)(A), the appellant was entitled to be restored on
her return to civilian duty to “the position of employment in which the
person would have been employed if the continuous employment of such
person with the employer had not been interrupted by such service, or a
position of like seniority, status and pay, the duties of which the person is
14
qualified to perform.” Courts have interpreted this provision under the
“escalator principle,” i.e., an employee returning from military service steps
back on the seniority escalator not at the point she stepped off, but as the
precise point she would have occupied had she kept her position
continuously.
b. Under this principle, the Supreme Court has rejected the argument that a
returning employee is required to show the “absolute foreseeability” of his
advancement in order to establish his entitlement to it, but the courts have
drawn a distinction between “perquisites of seniority,” where the
advancement or other benefit was dependent on continuing employment, and
situations in which the advancement or other benefit was dependent on
fitness and ability and the exercise of discriminating managerial choice.
They have also held that the benefits to be granted under the escalator
principle must have been reasonably certain to have accrued in the
employee’s absence, and that a showing that advancement was based on
fitness and ability was inconsistent with a finding that the “reasonable
certainty” test was satisfied.
c. Applying these principles to the facts of this case, the record does not show
with reasonable certainty that the appellant would have been promoted to
the GS-14 Financial Manager position but for her military service.
► Appellant: John-Pierre Baney
Agency: Department of Justice
Decision Number: 2008 MSPB 142
Docket Number: DA-3443-08-0012-I-1
Issuance Date: June 25, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Defenses and Miscellaneous Claims
- Res Judicata/Collateral Estoppel
Whistleblower Protection Act
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant raised several matters in this appeal: matters
relating to military leave during the period from 1987 to 2000; alleged violations of the
No Fear Act; alleged racial discrimination and USERRA violations in connections with
agency actions that took place in 2002 and 2003; alleged retaliation for whistleblowing;
and that the agency improperly charged him annual leave for his military service in July
and August 2007. The AJ ruled that: (1) The appellant’s claims concerning military
leave from 1987 to 2000 were barred by res judicata because they have been addressed
in a prior Board appeal; (2) the No Fear Act was not an independent basis for Board
jurisdiction; (3) the appellant’s claims concerning agency actions in 2002 and 2003
were barred by collateral estoppel because the Board had determined in a prior appeal
that it lacked jurisdiction over these claims; and (4) the appellant had failed to provide
15
additional information concerning his claim that he was improperly charged annual
leave in 2007, despite the AJ’s order to do so.
Holdings: The Board affirmed the initial decision in part, vacated it in part, and
remanded the appeal for further adjudication:
1. The appellant’s USERRA claims concerning both his military leave between
1987 and 2000 and agency actions in 2002 and 2003 are barred by collateral
estoppel, as they were litigated in a prior Board appeal. The Board declined to
rule definitively whether some of these claims were also barred under the doctrine
of res judicata.
2. Although the appellant did not provide additional details concerning his 2007
USERRA claim in response to the AJ’s order, he did allege facts sufficient to
establish Board jurisdiction over this claim. An appellant who raises a USERRA
claim has an unconditional right to a hearing. As the appellant requested a
hearing, the appeal must be remanded to the regional office.
3. Although the appellant raised whistleblower reprisal, the AJ failed to provide
notice of what the appellant needed to prove in order to establish Board
jurisdiction. This matter must therefore also be remanded for further
adjudication.
COURT DECISIONS
► Petitioner: Clifford B. Meacham, et al.
Respondent: Knolls Atomic Power Laboratory
Court: United States Supreme Court
Docket Number: 06-1505
Issuance Date: June 19, 2008
Discrimination
- Age Discrimination
Holding: An employer defending a disparate-impact claim under the ADEA bears
both the burden of production and the burden of persuasion for the “reasonable
factors other than age” affirmative defense under 29 U.S.C. § 623(f)(1).
► Petitioner: Mark S. Leighton
Respondent: Office of Personnel Management
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2008-3144
Issuance Date: June 17, 2008
Retirement
- Annuities
This case involved the proper calculation of a disability retirement annuity under
5 U.S.C. § 8452(a)(2)(B) as to the amount that such an annuity should be reduced when
16
the individual receive disability insurance benefits from the Social Security
Administration.
Holding: The court held that OPM properly computed Leighton’s disability
retirement annuity under FERS, affirming the Board’s final decision. | 37,515 | |
Case Report - June 13, 2008 | 06-13-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_13_2008_338265.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_13_2008_338265.pdf | CASE REPORT DATE: June 13, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: John Luzi
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 121
Docket Number: AT-831E-06-0901-B-1
Issuance Date: June 5, 2008
Appeal Type: CSRA - Employee Filed Disability Retirement
Retirement
- Disability Retirement
The appellant petitioned for review of a remand initial decision that affirmed
OPM’s determination that he is not entitled to disability retirement benefits. OPM
issued a final decision denying the appellant’s first application for disability retirement
benefits in November 2004, and the Board affirmed that determination in March 2005.
In July 2005, the appellant filed a second application, claiming that he was disabled by
chronic Post-Traumatic Stress Disorder. OPM dismissed the appellant’s second
disability retirement application on the ground that he was basing his entitlement on the
same medical conditions claimed in the first application for disability retirement. On
appeal to the MSPB, the administrative judge (AJ) affirmed OPM’s determination on
the basis of res judicata (claim preclusion). On review, the Board vacated and
remanded, finding that the appellant’s claims were not completely barred by res
judicata. 2007 MSPB 158, 106 M.S.P.R. 160. Specifically, the Board found that the
appellant was entitled to a decision on the merits of his claim that, after the AJ’s first
decision in March 2005, his PTSD worsened while he was still employed in a covered
position by the Postal Service. After considering the parties’ additional evidence on
remand, the AJ found that the appellant was entitled to a presumption of entitlement to
disability retirement under Bruner v. Office of Personnel Management, 996 F.2d 290,
294 (Fed. Cir. 1993), but that he was not entitled to disability retirement because his
medical condition was “situational.”
2
Holdings: The Board denied the appellant’s petition for review (PFR), and
affirmed the initial decision as modified:
1. The Board disagreed with the AJ’s determination that the appellant’s condition
was situational. The Board has rejected disability claims based exclusively on an
employee’s reaction to a particular workplace, but this was not the case here. The
appellant’s doctor testified that the appellant “is sensitized to contact with [the
Postal Service] and has high level of phobic avoidance of anything related to [the
Postal Service].”
2. Nevertheless, the Board found that the appellant failed to establish he
entitlement to disability retirement. All of his new evidence post-dates his
February 2006 separation from the Postal Service, and does not address his
condition between the first MSPB decision and that separation. He thus failed to
establish that his condition worsened during that period of time.
► Appellant: Robert S. Pasley
Agency: Department of the Treasury
Decision Number: 2008 MSPB 122
Docket Number: DC-1221-07-0810-W-1
Issuance Date: June 5, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Abuse of Authority
- Contributing Factor
- Exhaustion of Remedy
- Personnel Actions – Covered Agency
- Protected Disclosure
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. In May 2005, the appellant retired from his position as
an Assistant Director in the agency’s Office of the Comptroller of the Currency. He
was later hired as a Senior Vice President at the Bank of America, but was informed in
February 2007 that he was being laid off. Later the same month, he filed a complaint
with OSC alleging reprisal for whistleblowing. After OSC notified him that it was
terminating its investigation, he filed an IRA appeal with the MSPB. The AJ divided
the appellant’s allegations of retaliation for whistleblowing into 2 categories: pre
retirement allegations and his “private sector termination.” Regarding the former, the
appellant alleged that he disclosed to his second-level supervisor that his first-level
supervisor abused his authority by arranging for a female peer of the appellant, with
whom the first-level supervisor appeared to have a close personal and romantic
relationship, to take over the appellant’s role in cases he was supposed to be
supervising and thus to diminish his responsibilities to a significant degree. He further
alleged that, when his first-level supervisor found out that he had disclosed the situation
to the second-level supervisor, the first-level supervisor told him he had made a serious
mistake and that he would regret it, and later gave him the worst performance
evaluation that he had received in 28 years, which adversely affected his receipt of
3
monetary awards. The AJ found that the appellant failed to show that he had exhausted
his administrative remedies with OSC with respect to these allegations, as required by
5 U.S.C. § 1214(a)(3). She found that “there is no allegation in the complaint to OSC
that prior to his retirement, as a result of whistleblowing he received a lower
performance evaluation and an insufficient bonus.” Rather, she found that “all
pertinent evidence submitted by the appellant established that all the appellant ever
reported to OSC was that he received a lower performance evaluation because he voiced
his dissatisfaction about the work he and another employee were assigned by [the first
level supervisor].” She found that “such claim is fundamentally different from the one
he made to the Board in his IRA appeal and as such is a recharacterization of his
allegations.”
With respect to the “private sector termination,” the appellant alleged that his
being laid off by the Bank of America was the result of his whistleblowing, as the
agency told the bank that it would not deal with the appellant as the bank’s liaison with
the agency. The AJ found that the loss of his private sector job was not a personnel
action covered under the Whistleblower Protection Act.
Holdings: The Board affirmed the initial decision in part, reversed it in part, and
remanded the case to the regional office for further adjudication:
1. The appellant’s termination from the Bank of America was not covered by the
WPA, because it does not meet the definition of “personnel action” since it was not
taken with respect to an employee in a covered position in an agency or a
governmental corporation, as required by 5 U.S.C. § 2302(a)(2)(B).
2. The Board found that the appellant did exhaust his administrative remedies
before OSC with respect to his “pre-retirement allegations.” The key to
determining whether an appellant has satisfied the exhaustion requirement in an
IRA appeal is whether he provided OSC with a sufficient basis to pursue and
investigation, not whether he correctly labeled the category of wrongdoing. The
AJ appears to have focused on the appellant’s initial OSC complaint to determine
whether he exhausted his administrative remedies. But the appellant amended that
complaint to include the allegations raised in his IRA appeal, and again in his
response to OSC’s preliminary close-out letter, which OSC acknowledged in its
final close-out letter.
3. The appellant made a non-frivolous allegation that he made a protected
disclosure, i.e., that he had a reasonable belief that his disclosures revealed an
abuse of authority, which occurs when there is an arbitrary or capricious exercise
of power by a federal official that adversely affects the rights of any person or
results in personal gain or advantage to himself or preferred other persons. In
addition, a supervisor’s use of his influence to denigrate other staff members in an
abusive manner and to threaten the careers of staff members with whom he
disagrees constitutes an abuse of authority. The appellant’s disclosures relating to
his first-level supervisor meet these requirements.
4. The appellant made a non-frivolous allegation that his protected disclosure was
a contributing factor in the agency’s decision to take or fail to take covered
4
personnel actions, in this case his performance evaluation and his failure to obtain
monetary awards.
► Appellant: Bradford Mc Donald
Agency: United States Postal Service
Decision Number: 2008 MSPB 123
Docket Number: CH-3443-07-0312-I-1
Issuance Date: June 6, 2008
Timeliness – PFR
Board Procedures
- Withdrawal of Appeal
- Reopening and Reconsideration
The appellant petitioned for review of an initial decision that dismissed his appeal
as withdrawn. The appellant filed an appeal with the Board’s regional office in
March 2007, and withdrew the appeal later that month. The AJ issued an initial
decision dismissing the appeal as withdrawn on April 5, 2007. The decision informed
the appellant that a petition for review of that decision must be filed by May 10, 2007.
The appellant filed a PFR in January 2008, more than 8 months after the deadline.
Holding: The Board dismissed the appeal as untimely filed without good cause
shown. It also found that the appellant failed to establish a basis for reopening the
appeal.
► Appellant: Joseph S. Fanelli
Agency: Department of Agriculture
Decision Number: 2008 MSPB 124
Docket Number: CB-7121-07-0028-V-1
Issuance Date: June 10, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration/Collective Bargaining-Related Issues
- Interpretation of Contract
- Review Authority of MSPB
The appellant requested review of an arbitration decision that found his grievance
of the agency’s removal action to have been untimely filed. The agency removed the
appellant from his position as a GS-11 Microbiologist, effective April 24, 2004. The
appellant elected to grieve his removal through the agency’s negotiated grievance
procedure. Instead of proceeding with a Step 1 grievance, the appellant sought to
initiate the grievance at the Step 3 level by submitting a May 13, 2004 letter to the
deciding official and Center Director, which he supplemented in a May 23, 2004 letter.
The deciding official issued a written decision finding that the appellant’s grievance
was untimely filed. The matter was submitted to arbitration, and the arbitrator issued a
decision finding that the appellant’s Step 3 grievance was untimely filed.
Holdings: The Board granted the appellant’s request for review, but sustained the
arbitrator’s decision:
5
1. The Board has jurisdiction to review the arbitration decision under 5 U.S.C.
§ 7121(d), as the subject matter of the grievance (a removal) is one over which the
Board has jurisdiction, the appellant has alleged discrimination in connection with
that action, and a final decision has been issued.
2. The Board noted that, where the determinative issue results from an arbitrator’s
interpretation of a collective bargaining agreement (CBA) provision involving a
purely procedural issue, some cases, e.g., Hackerman v. Social Security
Administration, 72 M.S.P.R. 23 (1996), and Sweeney v. Department of the Army, 69
M.S.P.R. 392 (1996), have deferred to the arbitrator’s interpretation without
discussion, but that in Morales v. Social Security Administration, 2007 MSPB 287,
107 M.S.P.R. 360, the Board gave greater scrutiny to the arbitrator’s
interpretation. The Board therefore found it appropriate to clarify the
appropriate standard of review.
3. An arbitrator’s interpretation of the CBA should only be vacated when it fails to
draw its essence from the CBA, and any doubts concerning the propriety of the
merits of an arbitrator’s decision must be resolved in favor of the decision.
a. Federal common law has created a principle of judicial deference to arbitral
decisions under a functional standard which recognizes arbitration’s unique
role in labor-management relations.
b. The Board found the holdings of the Federal Labor Relations Authority to be
persuasive guidance in this area. The FLRA has consistently held that an
arbitration award is deficient only when it fails to draw its essence from the
CBA, i.e., when the appealing party establishes that the award: (1) cannot
in any rational way be derived from the agreement; (2) is so unfounded in
reason and fact and so unconnected with the wording and purposes of the
CBA as to manifest an infidelity to the obligation of the arbitrator; (3) does
not represent a plausible interpretation of the agreement; or (4) evidences a
manifest disregard of the agreement.
4. Under this standard, the Board found no basis for finding that the arbitrator’s
interpretation failed to draw its essence from the Negotiated Agreement, that his
interpretation manifested an infidelity to this obligation, or that he erred as a
matter of law in interpreting civil service law, rule, or regulation. Accordingly, the
appellant had not overcome the greater degree of deference afforded to arbitration
decisions.
6
COURT DECISIONS
► Petitioner: Douglas Kahn
Respondent: Department of Justice
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3216
Issuance Date: June 11, 2008
Whistleblower Protection Act
- Protected Disclosure
The petitioner appealed from an initial decision, which became the Board’s final
decision, that dismissed his IRA appeal for lack of jurisdiction on the ground that his
disclosures were made as part of his normal job duties. Kahn is a Special Agent with
the Drug Enforcement Administration. He was a member of a Task Force operating out
of the DEA’s Beaufort, Georgia Office investigating drug crimes. The Task Force was
comprised of DEA agents and local law enforcement officers who were designated as
Task Force Agents (TFAs). One of the local officers was Donald Annis. The Beaufort
Office reported to Steven Mitchell, the Resident Agent in Charge (RAC) of the DEA’s
Charleston Resident Office. During the Task Force’s investigation, an individual who
had recently been released from prison and who had an extensive criminal record
contacted the Task Force and expressed an interest in becoming a confidential source.
Eventually, Annis proceeded to utilize the individual as a confidential source. Kahn
had a series of communications with RAC Mitchell relating to what Kahn stated was
improper conduct of TFA Annis regarding the confidential source. Specifically, Kahn
reported to his superiors that Annis had used the confidential source without having him
documented and registered as a DEA source and that Annis had been involved with the
confidential source in a drug transaction without following required procedures. Kahn
also raised the issue of Annis’s conduct with Annis’s superiors at the Beaufort Country
Sheriff’s Office, and the Sheriff removed Annis from the Task Force. Thereafter, an
Assistant United States Attorney who had worked with Annis complained of “integrity
problems” in Kahn’s investigative work for DEA. As a consequence, DEA’s Office of
Professional Responsibility conducted an investigation of Kahn, and ultimately cleared
him of all charges of misconduct. Even though the DEA’s OPR found no wrongdoing
on Kahn’s part, the United States Attorney’s Office conducted its own investigation. It
too determined that Kahn had not engaged in any wrongdoing, but recommended that
Kahn be transferred to a post outside the State of South Carolina. The DEA transferred
him to Atlanta, Georgia, and Kahn filed a complaint with OSC, followed by his IRA
appeal with the MSPB.
Although he acknowledged that Kahn’s position description confirmed that
investigating the professional misconduct of Task Force agents such as TFA Annis did
not form part of his normal duties, the AJ reasoned that, in discussing Annis’s use of
the confidential source with his superiors, Kahn was engaged in the core purpose of his
position as a Criminal Investigator, and that his reports represented “disclosures made
as part of normal duties through normal channels,” and were therefore not protected
under 5 U.S.C. § 2302(b)(8).
7
Holding: The court held that the petitioner made non-frivolous allegations that his
disclosures were made outside of his normal duties, and remanded the case to the
MSPB for a hearing on the merits:
1. To establish jurisdiction over an IRA appeal, an appellant must make non
frivolous allegations that he engaged in whistleblowing activity by making a
protected disclosure under 5 U.S.C. § 2302(b)(8), and that the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action under 5 U.S.C. § 2302(a).
2. The standard for determining whether a disclosure is non-frivolous is analogous
to that for summary judgment, i.e., the petitioner must show the existence of a
material fact issue to support Board jurisdiction. The determination of whether an
allegation of jurisdiction is non-frivolous is made based entirely on the written
record, and a hearing with respect to the existence of jurisdiction is unnecessary.
3. Whether a disclosure is unprotected because it was made as part of an
employee’s normal job duties is governed by the framework set forth in Huffman v.
Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), in which the court
described 3 categories into which a disclosure may fall, only the latter 2 of which
are protected under the WPA: (1) disclosures made as part of normal duties
through normal channels; (2) disclosures as part of normal duties outside of
normal channels; and (3) disclosures outside of normal duties. The third category
involves the situation “in which the employee is obligated to report the
wrongdoing, but such report is not part of the employee’s normal duties or the
employee has not been assigned those duties.”
4. The petitioner’s contention that his disclosures fell within category 3 were
supported by the fact that investigating the professional misconduct of Task Force
agents such as Annis did not fall within his job description, and his affidavit, in
which he stated that he, like all DEA Special Agents, is obligated to report
misconduct if he is aware of it, but that this is not part of his normal duties with
DEA. The government’s contrary assertion is based on the Resident Agent in
Charge’s declaration, in which he stated that he designated Kahn to report to him
daily regarding administrative matters and law enforcement operations, and that
such reporting would have included Kahn’s communications concerning Annis.
The court concluded that, although this is a close case, the combination of Kahn’s
job description and the competing sworn statements of Kath and the RAC places
the evidence on the question of Kahn’s normal duties in equipose, which means
there is a genuine issue of material fact. Accordingly, the petitioner has presented
non-frivolous allegations that his reports concerning Annis were not part of his
normal duties, and a hearing on the merits is required.
8
► Petitioner: Richland Security Service Co.
Respondent: Chertoff
Court: United States Supreme Court
Docket Number: 06-1717
Decision Below: 472 F.3d 1370 ((Fed. Cir. 2006)
Issuance Date: June 2, 2008
Attorney Fees
Holding: Under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1) and
28 U.S.C. § 2412(d)(1)(A), a prevailing party in a case brought by or against the
Government may recover fees for paralegal services at the market rate for such
services. | 19,468 | |
Case Report - June 6, 2008 | 06-06-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_6_2008_590497.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_6_2008_590497.pdf | CASE REPORT DATE: June 6, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Carolyn G. Davis
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 114
Docket Number: DC-831M-07-0811-I-1
Issuance Date: June 2, 2008
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
Both parties petitioned for review of an initial decision that affirmed in part OPM’s
reconsideration decision finding that the appellant had received overpayments of
$5,329.98 and $8,877.42, and was not entitled to a waiver of recovery. Under the terms
of the divorce between the appellant and her husband (Mr. Davis), the appellant was to
receive 27.12% of his gross annuity, and Mr. Davis was to provide a former spouse
annuity of either the maximum amount or 27.12%, at the appellant’s option, with the
deposit to be deducted from her share of Mr. Davis’s gross annuity. After Mr. Davis
retired in 2000, OPM awarded the appellant 27.12% of Mr. Davis’s gross annuity, and
proceeded to reduce her apportionment in order to provide for a survivor annuity. The
appellant objected to the reduction, arguing that she had not been provided the
opportunity to choose between the maximum survivor annuity and the lesser amount.
Three years later, OPM responded, finding that the appellant should have been provided
with an election, and the appellant thereafter elected the maximum former spouse
survivor annuity. OPM determined that the appellant had received two overpayments
during the 3-year interim before the correct amounts were finally established, $5,329.98
for her share of Mr. Davis’s annuity, and $8,877.42 for an underpayment of survivor
annuity deposits.
On appeal to the MSPB, the administrative judge (AJ) found that OPM had
established the existence and amount of the overpayment. The AJ further determined
2
that the appellant was without fault in the creation of the overpayment, but that she was
not entitled to a waiver as she had failed to establish that recovery would be against
equity and good conscience. The AJ nevertheless ordered OPM to reduce the
repayment schedule to monthly installments of $50.
Holdings: The Board found that OPM has failed to establish the existence of the
$5,329.98 overpayment and that the appellant is entitled to a waiver of the
remaining $8,877.42:
1. OPM incorrectly calculated the appellant’s apportionment of Mr. Davis’s
annuity. Under a correct calculation, the appellant did not receive an overpayment
of $5,329.98.
2. The Board affirmed OPM’s determination that the appellant received an
overpayment of $8,877.42, because insufficient deductions were taken for her
former spouse survivor annuity.
3. The appellant is entitled to a waiver of the $8,877.12 overpayment.
a. The Board disagreed with OPM’s contention that, because the debt was the
result of a deposit for the provision of a survivor annuity, it is not subject to
the waiver provisions of 5 U.S.C. § 8346(b), relying on its regulation at
5 C.F.R. § 831.661(a). The Board agreed with the appellant’s contention
that this regulation did not apply to this case, as the election to provide her
with a survivor annuity was not made pursuant to any of the regulations
cited therein.
b. The Board concurred with the AJ’s finding that the appellant was without
fault in causing the overpayment. The Board further determined that
recovery would be against equity and good conscience on the grounds of
financial hardship, as the appellant’s Financial Resources Questionnaire
shows a negative income/expense margin of $3,800 per month.
► Appellant: Richard H. Tate
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 115
Docket Number: SF-0831-07-0705-I-1
Issuance Date: June 4, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Deposits
OPM petitioned for review of an initial decision that reversed its determination
that the appellant was not entitled to make a deposit for his service as a national guard
technician. The appellant was employed as a national guard technician from 1954 to
1965. He later was employed by, and retired from, the Department of the Navy in 2003.
The appellant filed an application to make a deposit for his technician service in 1992,
and was informed that of the amount of the deposit that would have to be made, but he
did not submit a check for this purpose until 2005, more than 2 years after his
retirement. OPM determined that the deposit could not be accepted because it was
3
received more than 30 days after the date on which the appellant received his first
regular monthly annuity payment. On appeal to the Board, the AJ agreed with OPM
that the appellant’s deposit was untimely, but found that the failure to make a timely
deposit had been caused by the failure of OPM and the appellant’s employing agency to
respond to the appellant’s requests for information about how to do so, and that this
failure estopped OPM from enforcing the deadline.
Holdings: The Board granted OPM’s petition, vacated the initial decision, and
remanded the case to OPM for a new determination:
1. The initial decision seems to indicate that 5 U.S.C. § 8339(i) and 5 C.F.R.
§ 831.303(a) apply to the service period at issue here, and that the period is
creditable, even in the absence of a timely deposit, for purposes of determining the
length of the appellant’s creditable federal service. In fact, however, the
appellant’s service as a national guard technician is not creditable at all in the
absence of a deposit.
2. Because of its error in computing the appellant’s annuity by giving the appellant
credit for his national guard technician service in the absence of a deposit, OPM
has asked the Board to vacate the initial decision and remand the case to it for a
new decision consistent with applicable laws. The Board did so. OPM’s new
determination will be appealable to the Board.
► Appellant: Randall L. Wilson
Agency: United States Postal Service
Decision Number: 2008 MSPB 116
Docket Number: AT-0752-08-0100-I-1
Issuance Date: June 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The agency removed the appellant from his position as EAS-16
Health and Resource Management Specialist based on charges of misconduct, and he
filed an appeal with the MSPB. The agency moved to dismiss the appeal for lack of
jurisdiction based on its assertion that the appellant was not preference eligible and his
position was not one that would afford him a right to appeal to the Board under 39
U.S.C. § 1005(a). Without affording the appellant a hearing, the AJ dismissed the
appeal for lack of jurisdiction. On review, the appellant argues that his position is a
supervisory, non-bargaining position over which the Board has jurisdiction.
Holdings: The Board granted the appellant’s petition for review (PFR), vacated
the initial decision, and remanded the appeal for further adjudication:
1. A Postal Service employee may file an adverse action appeal only if he is covered
by 5 U.S.C. § 7511(b)(8) or 39 U.S.C. § 1005(a), i.e., he must be a preference
eligible, a management or supervisory employee, or an employee engaged in
personnel work in other than a purely non-confidential capacity.
4
2. An appellant must receive explicit information on what is required to establish
an appealable jurisdictional issue. The AJ failed to provide such information.
Such a failure can be cured if the agency’s pleadings fully inform the appellant of
the jurisdictional issues. Here, the agency’s motion to dismiss informed the
appellant generally about the jurisdictional issue of whether his position entitled
him to appeal rights, but it provided no specific information of what he must
allege. A remand to the regional office is therefore necessary.
► Appellant: Sandra R. Garside
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 117
Docket Number: DC-0831-07-0658-I-1
Issuance Date: June 4, 2008
Action Type: Retirement/Benefit Matter
Timeliness - PFR
The appellant filed a petition for review of an initial decision that affirmed OPM’s
determination that she was not entitled to a civil service survivor annuity based on the
federal service of her late spouse. The PFR was filed almost 3 months after the
deadline for timely filing, and the appellant did not respond to the notice from the Clerk
of the Board on the timeliness issue.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown.
► Appellant: Miroslaw G. Stanaszek
Agency: United States Postal Service
Decision Number: 2008 MSPB 118
Docket Number: CH-0752-08-0125-I-1
Issuance Date: June 5, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
- Last-Chance Settlement Agreement
The appellant petitioned for review of an initial decision that dismissed his appeal
of a removal action for lack of jurisdiction. The agency proposed the appellant’s
removal in July 2006. The appellant filed a grievance, which was resolved by a
last-chance settlement agreement that reduced the proposed removal to a long-term
suspension, but also provided that the appellant’s failure to comply with the terms and
conditions of the agreement, which included a requirement to maintain satisfactory
attendance, would result in removal based on his violation of the agreement. The
agreement further provided that, in that event, “the only issue to be litigated” was
whether the appellant violated the terms and conditions of the agreement. In November
2007, the agency removed the appellant for violating the agreement, alleging that he
had incurred 11 unscheduled absences during a period of less than 6-months. On appeal
to the Board, the appellant argued that he had not violated the agreement, as his
5
absences were on days he was not properly scheduled to work. Without holding the
hearing requested by the appellant, the AJ dismissed the appeal for lack of jurisdiction,
finding that he had waived his appeal rights in the last-chance agreement.
Holding: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case to the regional office for adjudication. The appellant did not
completely waive his appeal rights in the last-chance settlement agreement. The
agreement specifically provided for a retention of appeal rights, but limited the
scope of a Board appeal to the issue of whether the appellant violated the terms of
the agreement.
► Appellant: John Doe
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 119
Docket Number: DE-844E-07-0435-I-1
Issuance Date: June 5, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that she was not entitled to disability retirement benefits. The appellant
is a Window Clerk with the U.S. Postal Service. She claimed that she was subjected to
a hostile working environment over the last several years of her employment, which led
to mental disorders that, despite treatment and medical supervision, became chronic and
severe. She stopped reporting for work in February 2006, and is in an absent-without
leave status. She applied for disability retirement in June 2006, claiming that she
suffered from post-traumatic stress disorder, anxiety, panic attacks, depression, trouble
sleeping, nightmares, and trouble concentrating and staying awake. In denying the
application, OPM found that there was insufficient documentation to show a disabling
medical condition. OPM also found a lack of evidence showing that the appellant’s
conditions were not amenable to ongoing treatment and therapy. On appeal to the
Board, the AJ affirmed OPM’s reconsideration decision, finding that the medical
evidence failed to establish that the appellant could not perform the essential functions
of her position in general, but instead indicated that her disability was “situational.”
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered OPM to award the appellant disability retirement benefits:
1. After reviewing the extensive medical evidence, the Board concluded that OPM
improperly discounted the probative value of the medical evidence, which
demonstrates that, while employed in a covered position, the appellant became
disabled due to her psychiatric condition, which resulted in a deficiency in her
attendance and is incompatible with useful and efficient service and retention in
her position, and which precludes her from working in any capacity for the Postal
Service.
2. The Board disagreed with the AJ’s determination that the appellant is not
entitled to disability retirement because her medical condition was merely
6
“situational.” The record establishes that job-related stress precipitated and
exacerbated the appellant’s psychiatric condition, which was itself disabling. The
cause of the condition is not relevant in determining an employee’s entitlement to
disability retirement; the relevant issue is whether the condition prevents the
employee from rendering useful and efficient service in her position.
3. The appellant established that her disability cannot be controlled or
accommodated.
4. The Board noted that the Social Security Administration and Office of Workers’
Compensation Programs have denied her applications for benefits. The Board
considered these determinations, but they are not binding on the Board and they
do not outweigh the evidence supporting a finding that the appellant is entitled to a
disability retirement annuity.
► Appellant: Danial M. Farooq
Agency: Corporation for National and Community Service
Decision Number: 2008 MSPB 120
Docket Number: CH-0752-07-0617-I-1
Issuance Date: June 5, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
Timeliness - PFA
The appellant petitioned for review of an initial decision dismissing his appeal for
lack of jurisdiction. The appellant was a GS-12 Grants Management Specialist. The
agency issued a reduction in force (RIF) notification informing him that he would be
separated 60 days later, but that he was eligible to retire in lieu of separation. The
agency also informed him that he could grieve the separation under the collective
bargaining agreement (CBA). The appellant retired “in lieu of involuntary action.”
Two months later, he filed a Board appeal in which he alleged that the agency used an
improper RIF procedure to coerce his retirement. Specifically, he alleged that the
agency considered the retirement eligibility status of its employees in deciding to
consolidate five of its service centers, and that this was tantamount to age
discrimination. The agency moved to dismiss the appeal, arguing that the CBA
provided the exclusive forum for grieving such actions, and that the appellant was
therefore precluded from bringing his appeal to the Board under 5 U.S.C. § 7121 and
5 C.F.R. § 1201.3(c)(1). The AJ issued a show-cause order, informing the appellant
that his CBA may preclude the Board from taking jurisdiction over his appeal in the
absence of a discrimination claim, and directing the appellant to file evidence and
argument to show that the appeal is within the Board’s jurisdiction. The appellant
stated in a later pleading that “this is not a plea [regarding] Age discrimination,”
although the appellant indicated that he was pleading “the issue of [the agency’s]
decision making process and specifically the factors they used to force involuntary
retirement.” This pleading quoted an e-mail exchange between the appellant and his
former supervisor, in which the former supervisor stated that “I believe that the
7
[agency] may have used age as a basis of determining the decision to move staff and
close Service Center Offices.” The AJ found that, because the appellant was attempting
to appeal a RIF action that was covered by the CBA and the appellant specifically
stated that he was not pleading age discrimination, the Board lacks jurisdiction over the
appeal.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the case for further adjudication:
1. Although a separation by RIF is ordinarily appealable to the Board, when an
employee is covered by a CBA that does not specifically exclude RIF actions, the
negotiated grievance procedures are generally the exclusive procedures for
resolving RIF actions. However, an aggrieved employee who alleges that he has
been affected by discrimination prohibited under 5 U.S.C. § 2302(b)(1) may elect to
file an appeal with the Board concerning an action otherwise exclusively covered
by the negotiated grievance procedures.
2. Despite the fact that the appellant stated that he was not pleading age
discrimination, his actions, including those within the submission in which he made
this statement, were inconsistent with this statement and indicate that he may have
been confused regarding the jurisdictional implications of his age discrimination
claim. Construing the appellant’s claims liberally, as the Board is required to do
when an appellant represents himself, the Board found that the appellant made an
allegation of age discrimination that he did not intend to abandon. Accordingly,
the Board has jurisdiction over the appeal.
3. When, as here, an agency has subjected an appellant to an appealable action
without notifying him of his appeal rights, the appellant must demonstrate that he
was diligent in exercising his appeal rights once he learned of them, regardless of
whether he was diligent in discovering his appeal rights. As the AJ did not inform
the appellant of this timeliness standard, evidence on this issue must be taken on
remand.
COURT DECISIONS
► Petitioner: Gomez-Perez
Respondent: Potter
Court: United States Supreme Court
Docket Number: 06-1321
Issuance Date: May 27, 2008
Discrimination
Holding: The Age Discrimination in Employment Act, 29 U.S.C. § 633a, prohibits
retaliation against a federal employee who complains of age discrimination.
8
► Petitioner: Wilfredo Romero
Agency: Department of Defense
Court: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2007-3322
Issuance Date: June 2, 2008
Adverse Action Charges
- Security Clearance Determinations
The petitioner was removed from his position as an auditor for the Office of
Inspector General for failing to maintain his security clearance. The Board affirmed the
action, holding that it could not review the merits underlying a security clearance
revocation.
Holding: Because the Board did not address whether the agency complied with its
own procedures when revoking Mr. Romero’s security clearance, the Court
vacated the Board’s decision and remanded the case for the Board to determine
whether Mr. Romero can show harmful error resulting from any failure by the
agency to follow its own procedures. | 19,265 | |
Case Report - May 30, 2008 | 05-30-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_30_2008_335529.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_30_2008_335529.pdf | CASE REPORT DATE: May 30, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Lisa S. Rapp
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 107
Docket Number: AT-844E-05-0056-M-1
Issuance Date: May 19, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
- Disability Retirement
- Mental Competence
The appellant petitioned for review of an initial decision that reaffirmed an earlier
decision affirming OPM’s determination to terminate her disability retirement benefits.
The case was on remand from a decision by the Federal Circuit that vacated an earlier
affirmance of OPM’s determination, and which remanded the case for a determination
whether the appellant was competent when she represented herself in the proceedings
before OPM and the MSPB.
Rapp v. Office of Personnel Management, 483 F.3d 1339
(Fed. Cir. 2007). After conducting a hearing, the administrative judge (AJ) determined
that the appellant was competent during the period in question, and reaffirmed OPM’s
reconsideration decision terminating her disability retirement benefits.
Holdings: The Board vacated the initial decision, finding that the evidence
indicates that the appellant was suffering from a psychiatric disorder that was
likely to have affected her ability to adequately represent herself, and remanded
the case to the regional office for a new adjudication on the merits of OPM’s
reconsideration decision:
1. The Board rejected the appellant’s argument that the AJ erred by failing to
follow the procedures described in French v. Office of Personnel Management, 37
M.S.P.R. 496 (1988). The Federal Circuit declined to invoke French because there
had been no showing that the appellant was ever incompetent.
2
2. The evidence shows that the appellant was suffering from a psychiatric disorder
during her initial appeal that was likely to have affected her ability to adequately
represent herself.
a. Both of the appellant’s treating medical providers, a clinical psychologist
and a board-certified psychiatrist, testified that the appellant was
significantly impaired during the period in question, which was consistent
with the appellant’s own testimony. There is no evidence suggesting that the
testimony of either medical provider was not credible, and there is no
countervailing expert or other professional medical testimony refuting their
testimony.
b. While OPM and the MSPB may give only limited weight to seemingly strong
medical evidence, it typically does so only in the face of factors such as
doubts about professional competence, contrary medical evidence, failure of
the professional to consider relevant factors, or lack of particularity in
relating the diagnosis to the nature and extent of the disability. These
factors were absent in this case, and the AJ incorrectly substituted his views
for those of the medical providers as to what pattern of behavior could or
could not result from the appellant’s mental condition.
► Appellant: Danette H. Groesbeck
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 108
Docket Number: DE-0831-07-0041-I-1
Issuance Date: May 28, 2008
Action Type: Retirement/Benefit Matter
Timeliness- PFR
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that she was not entitled to a former spouse annuity. After issuance of
the initial decision, the appellant sought and received an extension of the time for filing
a petition for review (PFR), until April 30, 2007. She did not file her petition until
November, more than 6 months after the deadline. The appellant did not respond to a
notice from the Clerk of the Board that informed her that her PFR appeared to be
untimely filed and ordered her to file evidence and argument on the timeliness issue.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown for the delay in filing.
3
► Appellant: Linda L. Hayward
Intervenor: Jack N. Hayward
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 109
Docket Number: PH-0831-07-0512-I-1
Issuance Date: May 28, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
OPM and the intervenor petitioned for review of an initial decision that reversed
OPM’s reconsideration decision, which denied the appellant’s request for a former
spouse survivor annuity. Following the parties’ divorce in 1986, the state court issued
an order dividing their marital property in 1990. At issue was whether this court order
“expressly provided for” a former spouse annuity within the meaning of 5 U.S.C.
§ 8341(h)(1) and 5 C.F.R. part 838. The court order stated that it was dividing property
under state statute and under 10 U.S.C. § 1408, “which authorizes military retired or
retainer pay to be distributed to former spouses.” The order stated that it applied to the
Civil Service Retirement System Pension Plan in which the intervenor is a participant,
that that it was intended that the order “shall qualify as a Qualified Domestic Relations
Order under the Retirement Equity Act of 1984 and Title 10 USC Section 1408.” The
AJ found that the state court order awarded the appellant a former spouse survivor
annuity, despite its erroneous citations to statutes that apply only to military retired pay
benefits.
Holdings: The Board reversed the initial decision and sustained OPM’s
reconsideration decision, finding that the state court order did not expressly
provide for a former spouse annuity:
1. Under 5 U.S.C. § 8341(h)(1), a survivor annuity shall be paid to the former
spouse of a Federal retiree “if and to the extent expressly provided for” in the
terms of a court-approved property settlement agreement incident to the divorce
decree. Although the “expressly provided for” provision does not require “magic
words,” it does require that the intent to provide the survivor annuity be clear,
definite, explicit, plain, direct, and unmistakable, not dubious or ambiguous.
2. The state court order in this case was ambiguous. The state court may have
intended to award the appellant a former spouse survivor annuity under CSRS
while citing to incorrect statutes and mistakenly failing to refer to 5 C.F.R. part
838, or it may have intended to award the appellant survivor benefits under the
intervenor’s military retired pay while mistakenly referring to CSRS. Because the
order is ambiguous, it does not meet the “expressly provided for” requirement.
3. The state court order also fails to award a former spouse annuity because it does
not state that it is governed by part 838, as required by 5 C.F.R. § 838.803(a).
4
► Appellant: Edmond R. Rivera
Agency: Social Security Administration
Decision Number: 2008 MSPB 110
Docket Number: CH-315H-08-0062-I-1
Issuance Date: May 28, 2008
Jurisdiction
- Status Quo Ante
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The agency, apparently erroneously believing that the appellant
was a probationary employee, notified him on October 18, 1997, that it was terminating
his employment that day. On appeal to the MSPB, the agency acknowledged that the
appellant was an “employee” under 5 U.S.C. § 7511(a)(1) with adverse action appeal
rights, and stated that it had rescinded the appellant’s separation completely. In a
subsequent phone conversation, the appellant stated that he had no objection to
dismissing the appeal for the reasons given by the agency, and the AJ dismissed the
appeal for lack of jurisdiction.
On PFR, the appellant asserts that the agency did not purge his file as he was led to
believe, that it had proposed his suspension based on the same charges on which his
separation had been based, that its rescission of his separation was incomplete, and that
it had treated him improperly since his return to work.
Holdings: The Board granted the PFR, vacated the initial decision, and remanded
the appeal for further adjudication:
1. An agency’s rescission of the action underlying an appeal does not divest the
Board of jurisdiction over the appeal unless he has received all the relief he could
have received if the appeal had been adjudicated and he had prevailed.
2. If the appellant had prevailed, the agency would have ordered the agency to
cancel the action, restore the appellant to his position retroactively, and pay him
back pay and other benefits. There is no general requirement that an agency
destroy all records relating to the alleged misconduct underlying the action. In
fact, the agency may take a new disciplinary action against the appellant based on
the same incidents underlying the original action. Accordingly, the agency’s
issuance of a suspension proposal based on incidents underlying the appellant’s
separation is not inconsistent with a finding that the separation was completely
rescinded.
3. The appellant has asserted that his enrollment status in the Thrift Saving Plan
has not been corrected to reflect that he is currently employed, and that the agency
failed, after his return to work, to make appropriate deductions from his salary in
payment for a loan he had received from his TSP account, causing him to be
considered in default on that loan. In the absence of any agency response to these
allegations, the Board was unable to determine whether the agency has taken
appropriate steps to ensure compliance, necessitating a remand.
5
4. The appellant alleges that he has not been returned to his former duties, and
that the agency has instead required him “to stand in the lobby, read books, and
not answer questions.” An agency’s assignment of an employee to his former
position, without allowing the employee to perform the full range of his former
duties, does not constitute returning the employee to the status quo ante, unless the
agency establishes that it has a “strong overriding interest” or “compelling” reason
for placing the employee in a different position. Remand is necessary to determine
the agency’s compliance as to this matter.
► Appellant: Richard Russell
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 111
Docket Number: CB-7121-08-0002-V-1
Issuance Date: May 28, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitrator’s decision denying his request for
attorney fees. The appellant grieved his removal from his position as a prosthetics
clerk. The arbitrator issued an award determining that the appellant engaged in
misconduct but that the agency’s penalty was too severe, and mitigated the penalty to a
14-day suspension. In a supplementary award, the arbitrator denied the appellant’s
request for attorney fees, finding that such an award was not warranted “in the interest
of justice.”
Holdings: The Board dismissed the request for review for lack of jurisdiction:
1. The Board has jurisdiction to review an arbitration decision under 5 U.S.C.
§ 7121(d) only when the subject matter of the grievance is one over which the
Board has jurisdiction, the employee alleges discrimination as stated in 5 U.S.C.
§ 2302(b)(1), and a final decision has been issued by the arbitrator.
2. The record lacks any indication that the appellant alleged discrimination, either
before the arbitrator or in his request for review. The Board therefore lacks
jurisdiction over his request for review.
► Appellant: Michael J. Lutz
Agency: United States Postal Service
Decision Number: 2008 MSPB 112
Docket Number: CH-0752-03-0220-M-1
Issuance Date: May 28, 2008
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Pay
Compliance
The appellant petitioned for review of a compliance decision issued after a remand
from the Federal Circuit in Lutz v. U.S. Postal Service, 485 F.3d 1377 (Fed. Cir. 2007).
The court reversed and remanded the Board’s decision denying the appellant’s petition
6
for enforcement (PFE) of the settlement agreement that resolved his appeal of the
agency’s demotion action. The agreement provided that the agency would take all
necessary steps to cooperate and facilitate the acceptance of the appellant’s application
for disability retirement, and that it would not place negative statements in the
supervisor’s statement portion of that application. The agency breached this provision
by placing negative statement in the supervisor’s certification. In the original
compliance proceeding, the Board found that this breach was not material. During that
proceeding, the agency provided evidence that it proceeded with an attempt to cure the
alleged breach by issuing a new supervisor’s statement that did not contain negative
information. The court reversed, finding that the breach was material, and remanded
the case to the Board “to allow the Board to decide how to proceed, after giving the
parties the opportunity to express their views, including their views on a remand to
OPM should Mr. Lutz request that.”
On remand, the appellant initially responded that, in his view, rescission “appears
to be the only workable remedy in this case,” and expressed his intent “to fully rescind
the breached settlement agreement, enabling [him] to pursue his appeal of the agency’s
adverse demotion action.” He later indicated, however, that he would also consider an
enforcement remedy. The AJ found that the agency’s issuance of the revised
supervisor’s statement amounted to specific performance of the settlement agreement,
and denied the appellant’s PFE.
Holdings: The Board reversed the initial decision, found the agency in
noncompliance, rescinded the settlement agreement, and reinstated the underlying
demotion appeal:
1. The AJ’s finding of compliance was inconsistent the court’s order. The revised
supervisor’s statement was part of the record before the court, which found that
the agency was in material breach of the settlement agreement. The Board is
bound by that finding.
2. The AJ failed to honor the appellant’s right to elect rescission of the settlement
agreement. When a party to a settlement agreement materially breaches the
agreement, the non-breaching party may elect either to enforce the agreement or to
rescind it and reinstate the appeal.
2. There is no available enforcement remedy that would cure the agency’s breach.
Accordingly, the appropriate action is to rescind the settlement agreement and
reinstate the underlying appeal.
7
► Appellant: David T. Group
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 113
Docket Number: PH-844E-07-0414-I-1
Issuance Date: May 28, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
- Recovery from Disability
The appellant petitioned for review of an initial decision that affirmed OPM’s
action discontinuing his disability retirement annuity on the basis that he had recovered
from his disabling condition. In January 2003, OPM granted the appellant’s application
for disability retirement from his position as a Rural Letter Carrier on the basis that
eczema caused by contact with the mail left him unable to render useful and efficient
service. In 2006, OPM requested that the appellant submit current employment and
medical condition so that OPM could assess his entitlement to continue receiving
disability retirement benefits. The appellant responded that he was unable to return to
work, and enclosed a letter from his treating physician, who stated that the appellant
was currently free of his eczema, but that the “prognosis is that if [the appellant] were
to return to work he would have a recurrence of his severe, disabling eczema.
Therefore he cannot return to the work or similar work that he previously was involved
in.” Based on the physician’s statement that the appellant was currently free of eczema,
OPM determined that the appellant’s condition was no longer disabling and terminated
his disability retirement annuity. On appeal to the MSPB, the AJ affirmed, finding that
“the appellant’s eczema is not continuous in that he is not currently suffering from this
condition,” and that “the appellant has not shown that his condition will last for one
year, and that he continues to be disabled.”
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered OPM to reinstate the appellant’s disability retirement annuity:
1. In the absence of fraud, misstatement of fact, or new medical evidence relating
to the appellant’s 2002 application for disability retirement, it was improper for
the AJ to consider whether the appellant’s basis would continue for a year. Once
the application was approved, the only issue is whether the appellant has shown
that he is currently disabled from rendering useful and efficient service in his
former position.
2. The medical and other evidence establishes that the appellant’s eczema
continues to render him unable to perform the duties of a Rural Letter Carrier, as
they establish that, if he were to return to work, the recurrence of his disabling
symptoms would not be a mere possibility but rather would be a virtual certainty. | 17,316 | |
Case Report - May 19, 2008 | 05-19-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_19_2008_333421.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_19_2008_333421.pdf | CASE REPORT DATE: May 19, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Jerome Deas
Agency: Department of Transportation
Decision Number: 2008 MSPB 101
Docket Number: AT-0752-07-0563-I-1
Issuance Date: May 12, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
Discrimination
Mootness
The appellant petitioned for review of an initial decision that dismissed his appeal
as moot. While the appellant was under investigation for allegations of misconduct, the
agency issued a “notice of proposed enforced leave” in which it alleged that he made
intimidating remarks in the hearing of his fellow workers while he was a respondent in
the agency investigation, and placed him on administrative leave. The agency never
issued a written decision on the suspension proposal, but it later changed the status of
the appellant’s absence from administrative leave to sick leave, without telling the
appellant that it was making this change. After the appellant learned of the agency’s
action, he filed a Board appeal requesting compensatory damages and alleging that the
agency action was motivated by race discrimination. After the appeal was filed, the
agency issued a letter in which it stated that “this change [in the appellant’s leave
status] was regretfully made in error.” The agency stated that it had changed the
appellant’s leave status back to administrative leave, restored the appellant’s sick leave,
and corrected its records, and it moved to dismiss the appeal as moot. The AJ ordered
the appellant to submit evidence and argument as to whether the agency had completely
rescinded its action, and also ordered the appellant to set forth a nonfrivolous allegation
of race discrimination. The appellant sought discovery as to the latter matter, and filed
motions to compel, which the AJ denied in part. In dismissing the appeal as moot, the
AJ ruled that there was no genuine issue that the agency had returned the appellant to
2
administrative leave, restored the appellant’s sick leave, and removed all documents
pertaining to the action from his personnel file, thus completely rescinding the merits of
the action. The AJ further found that the appellant failed to make a nonfrivolous
allegation of discrimination.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case to the regional office for further adjudication:
1. The agency failed to establish that it completely rescinded the appellant’s
constructive suspension.
a. The Board’s jurisdiction is determined by the nature of an agency’s action at
the time an appeal is filed with the Board, and an agency’s unilateral
modification of its adverse action after an appeal has been filed cannot
divest the Board of jurisdiction unless the appellant consents to such
forfeiture, or unless the agency completely rescinds the action being
appealed. When an appellant has an outstanding claim of discrimination
and has raised what appears to be a further claim for compensatory
damages, the agency’s complete rescission of the adverse action does not
make the matter moot because it does not afford the appellant all the relief
he could receive if the matter had been adjudicated and he had prevailed.
b. The agency had subjected the appellant to an appealable suspension at the
time the appellant filed his appeal because he had been in an enforced sick
leave status for more than 14 days.
c. The current record is insufficient to support the AJ’s finding that the agency
took all steps necessary to completely rescind the appellant’s suspension, as
it has neither alleged nor offered evidence to indicate that it purged the
notice of proposed suspension from any of the appellant’s personnel files.
d. If the appeal had been adjudicated and the appellant had prevailed, a Board
order to cancel the suspension would have required the agency to place the
appellant in a duty status, unless the agency could establish a strong
overriding interest in keeping the appellant in an administrative leave
status. The agency did not return the appellant to a duty status or establish
a strong overriding interest in keeping the appellant in an administrative
leave status.
e. This case is distinguishable from others in which the Board has found an
appeal moot despite an agency’s failure to return the appellant to a duty
status because those cases, unlike the present one, involved appellants who
were in a non-duty status prior to the rescinded action for reasons unrelated
to the action being appealed.
2. While the appellant’s allegations are insufficient on the current record to allege
a prima facie case of race discrimination on the basis of disparate treatment, the
AJ abused her discretion in denying the appellant the opportunity to complete
discovery regarding the suspension proposal.
3
► Appellant: James Fitzgerald
Agency: Department of the Air Force
Decision Number: 2008 MSPB 102
Docket Number: SF-315H-08-0119-I-1
Issuance Date: May 12, 2008
Appeal Type: Termination of Probationers
Jurisdiction
- Covered “Employee”
Board Procedures/Authorities
- Interlocutory Appeals
This case was before the Board on interlocutory appeal from the AJ’s ruling
staying the proceedings and certifying for review her ruling that the Board has
jurisdiction over this appeal. Effective August 7, 2005, the appellant was appointed to
the excepted service position of WG-10 Aircraft Mechanic as a National Guard
Technician (NGT) with the Adjutant General at Andrews Air Force Base, Maryland.
This appointment was subject to the completion of a 1-year trial period and required the
appellant to remain an active member of the Air National Guard. The appellant
successfully completed his trial period, at which time he received a career-conditional
appointment to a WG-10 Aircraft Mechanic position in the competitive service at March
Air Reserve Base in California. This position was subject to the completion of a 1-year
probationary period. The agency terminated the appellant in November, prior to the
completion of the 1-year probationary period. At issue in this appeal was whether the
appellant is an employee with appeal rights to the Board. The AJ ruled that the
appellant is an employee under 5 U.S.C. § 7511(a)(1)(A)(i) and (ii), in that his time in
the NGT position counted toward the 1-year “current continuous service” requirement
in the statute.
Holdings: The Board affirmed the AJ’s ruling as modified, vacated the stay order,
and returned the case to the AJ for adjudication on the merits:
1. The requirements for an interlocutory appeal under 5 C.F.R. §§ 1201.91 to
1201.93 are satisfied, in that the record shows that the ruling involves an important
question of law or policy about which there is substantial ground for difference of
opinion, and an immediate ruling will materially advance the completion of the
proceeding, or that the denial of an immediate ruling will cause undue harm to a
party or the public.
2. Prior service in the excepted service can count toward the 1-year current
continuous service requirement for individuals in the competitive service under
5 U.S.C. § 7711(a)(1)(A)(ii). Throughout section 7511, the phrase “current
continuous service” is used without specifying that such “service” must be in the
competitive or excepted service. This interpretation is consistent with OPM’s
regulation at 5 C.F.R. § 752.402(b), which does not define current continuous
employment as a period of service confined to either the competitive or excepted
service.
4
3. The appellant’s NGT service, along with his service as an Aircraft Mechanic at
March Air Reserve Base, provided him with 1 year of current continuous service
under 5 U.S.C. § 7711(a)(1)(A)(ii).
► Appellant: Anne Haefele
Agency: Department of the Air Force
Decision Number: 2008 MSPB 103
Docket Number: AT-0752-07-0446-X-1
Issuance Date: May 12, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
Settlement
This case was before the Board pursuant to the AJ’s Recommendation finding that
the agency breached the terms of a settlement agreement. The parties entered into an
oral settlement agreement, which the AJ accepted into the record for enforcement,
which resolved an appeal of the agency’s removal action. The settlement provided that
the agency would substitute a 1-day suspension for the removal action, and that the
appellant would resign. It is undisputed that the agency failed to process the personnel
actions required by the oral settlement agreement. The agency asserted that the
agreement was not intended to be binding until it was reduced to writing and signed by
the parties, that the appellant and her representative did not sign and return a
transcription of the settlement agreement provided by the agency, and that it could not
process the agreed upon personnel actions absent a signed agreement. The AJ found the
agency to be in noncompliance with its obligations under the oral settlement agreement,
and gave the appellant the choice between enforcement of the settlement agreement and
rescission of the agreement and reinstatement of her appeal. She chose the latter.
Holdings: The Board adopted the Recommendation, vacated the initial decision in
the merits proceeding, and forwarded the case to the regional office for
reinstatement of the underlying appeal:
1. An oral settlement agreement is valid and binding on the parties. Even where
there is language suggesting that the oral agreement will be reduced to writing,
that alone is insufficient to invalidate an otherwise valid oral agreement. Only
where the record shows that the parties did not intend to be bound until the
settlement agreement was reduced to writing and signed is an oral settlement
agreement not binding on the parties.
2. The oral settlement agreement did not indicate that the agreement was
conditioned in any way upon it being reduced to writing and signed by the parties.
3. In construing the terms of a settlement agreement the words of the agreement
itself are of paramount importance, and parol evidence will be considered only if
the agreement is ambiguous. (Parol evidence is evidence other than the terms of
the agreement itself.) Because there is no ambiguity in the settlement agreement,
the Board rejected consideration of a statement by an agency technical advisor as
to what was “intended” and “understood.”
5
► Appellant: Carolyn A. Miller
Agency: Department of the Army
Decision Number: 2008 MSPB 104
Docket Number: AT-0752-05-0990-X-1
Issuance Date: May 12, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
This case was before the Board on the AJ’s Recommendation finding that the
agency was not in compliance with its obligations under the Board’s final order. In the
merits proceeding, the Board mitigated the agency’s penalty of removal from a General
Investigative Specialist position to a 60-day suspension. In her petition for
enforcement, the appellant complained that she was not placed in her former position,
but was instead placed into a Support Specialist position. She further alleged that the
agency had not adequately explained its calculations of back pay and interest and the
restoration of her leave. The agency contended that the nature of the appellant’s
misconduct disqualified her from working in her former position in the Office of
Inspector General (OIG), and that it was in compliance with its obligations as pay,
interest, and leave. The AJ found that the agency was not in compliance with its
obligations as to either matter.
Holdings:
1. The Board rejected the agency’s argument that, because it detailed the appellant
to a non-OIG position prior to her removal, the status quo ante would be to place
her in a similar non-OIG position. The appellant’s position of record at the time of
her removal was the one she had held in OIG.
2. The agency has not established that it has reinstated the appellant to her former
position or that it has reassigned her to a substantially similar position.
a. If an agency does not return and employee to her former position, it must
show that: (1) It has a strong overriding interest or compelling reason
requiring reassignment to a different position; and (2) it has reassigned the
employee to a position which is substantially similar to the former position.
b. The agency has articulated an overriding interest or compelling reason for
not returning the appellant to her OIG position. The AJ found in the
original proceeding that the appellant’s conduct was unsuitable, tended to
detract from her character, and reflected a betrayal of trust.
c. The responsibilities of the appellant’s new position as a Support Specialist
are not substantially similar to those of her former position.
d. The Board ordered the agency to reinstate the appellant to her former
position or reassign her to a position which is substantially similar to that
position.
3. The agency has submitted credible evidence that is paid the appellant the correct
amount of back pay, interest on back pay, and provided other benefits as required.
6
► Appellant: Mary Rose Diefenderfer
Agency: Department of Transportation
Decision Number: 2008 MSPB 105
Docket Number: SE-1221-03-0298-W-3
Issuance Date: May 13, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Covered Personnel Actions
- Exhaustion of Remedy
Both parties petitioned for review of an initial decision that denied the appellant’s
request for corrective action in this IRA appeal and found that the appellant failed to
show that her resignation was involuntary. The appellant worked for the Federal
Aviation Administration in various positions from 1988 until her resignation in
November 1999. She alleged that she was subjected to a number of personnel actions in
retaliation for making whistleblowing disclosures. In a prehearing order, the AJ found
that the appellant had made nonfrivolous allegations that she made at least one
protected disclosure, that the agency had taken several covered personnel actions
against her, and that her disclosure was a contributing factor in at least one of the
personnel actions. He further found that the appellant exhausted her OSC remedy.
After holding a hearing, he issued an initial decision finding that the agency had
presented clear and convincing evidence that it would have taken its personnel actions
in the absence of any protected disclosures. He further found that the appellant’s
resignation was voluntary.
Holdings: The Board affirmed the initial decision in part, vacated it in part, and
remanded the appeal to the regional office for further adjudication:
1. The AJ correctly determined that the appellant failed to make a nonfrivolous
allegation that her exclusion from a particular office, or the revocations of her
medical certifications, constituted personnel actions.
a. The appellant failed to establish that her exclusion from the Flight Standards
District Office constituted a “significant change in duties, responsibilities, or
working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi), as the appellant did
not identify any effect the exclusion had on her duties, responsibilities, or
working conditions.
b. The AJ did not err in determining that the agency’s revocation of her
medical certification was not a covered personnel action as a decision
concerning pay or benefits under 5 U.S.C. § 2302(a)(2)(A)(ix). The appellant
did not allege that her failure to hold a medical certificate caused, or was
even a factor in, any nonselection of which she complained.
2. The Board vacated the AJ’s findings as to several matters, including the
voluntariness of her resignation, and remanded these matters to the regional office
for further adjudication.
a. The AJ excluded from consideration as allegedly retaliatory personnel
actions the appellant’s nonselection for the positions of assistant air crew
7
program manager and assistant principal operations inspector. While the
appellant did raise these matters prior to the AJ’s prehearing order defining
the scope of the hearing, the record does not establish whether these matters
were raised before OSC, as required by 5 U.S.C. § 1214(a)(3). OSC’s failure
to mention these nonselections does not preclude a finding that the appellant
exhausted her OSC remedy with respect to them.
b. In excluding the appellant’s claim that she was ordered to undergo a
psychiatric examination in reprisal for protected disclosures, the AJ
appeared to assume that 5 U.S.C. § 2302(a)(2)(A)(x) covers only direct
orders. An action may be covered under this provision even if the
instructions at issue include language sometimes associated with offers or
recommendations.
c. The AJ based his conclusion that the appellant’s resignation was voluntary in
part on findings that the agency did not engage in any acts of reprisal
against the appellant due to her protected disclosures. Because the appeal is
being remanded for further consideration of some of the appellant’s claims
of reprisal, and because these claims are intertwined with the appellant’s
claim that her resignation was involuntary, further consideration of the
latter claim is appropriate.
► Appellant: Kenneth K. Kamahele
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 106
Docket Number: SF-0752-06-0866-I-1
Issuance Date: May 15, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Both parties petitioned for review of an initial decision that sustained the agency’s
charges of misconduct against the appellant, but which mitigated the agency’s removal
penalty to a 90-day suspension. The appellant was Assistant Federal Security Director
Screening of the Honolulu International Airport. The agency removed him on two
charges: inappropriate conduct towards Transportation Security Administration
employees; and lack of candor during a management inquiry. Following a hearing, the
AJ found that the agency proved 2 of its 5 specifications of the first charge: that he
suggested to Screening Managers that they offer employment applications for Jack-in
the-Box (a fast-food restaurant) to screeners who complained or raised issues; and that
he used derogatory terms such as “punk,” “bully,” and “scum,” while counseling a
particular screener, that he told this screener that he would put the screener in prison if
he had the chance, and that he played an air violin and cut the screener off when the
screener tried to explain his conduct. The AJ found that the agency proved 1 of its 2
specifications under the second charge, finding that the appellant exhibited a lack of
candor when he failed to admit possessing and joking about Jack-in-the-Box
applications. As to the reasonableness of the penalty, the AJ found that the deciding
8
official did not consider all of the relevant Douglas factors, i.e., whether the appellant
acted for financial gain, the appellant’s dependability during 4 years of service, and the
fact that the appellant’s supervisors at the Airport still had confidence in his work. The
AJ therefore found that the agency’s penalty determination was not entitled to deference
and he independently weighed the relevant factors, concluding that a 90-day suspension
was the maximum reasonable penalty.
Holdings: The Board affirmed the initial decision’s findings on the charges, but
reversed the initial decision’s holding on the penalty, and sustained the appellant’s
removal:
1. Because the agency failed to identify any internal inconsistencies or inherent
improbability in the AJ’s fact finding or other basis sufficient to overcome the
special deference which reviewing bodies must necessarily accord the factual
determinations of the original trier of fact, the Board sustained the AJ’s findings
with respect the merits of the charges.
2. The Board found that the AJ improperly weighed the Douglas factors and
substituted his own judgment for that of the deciding official.
a. Based on the misconduct with which the appellant was charged, “financial
gain” was not a relevant factor in this case and the AJ erred by considering
it.
b. The deciding official stated that he considered the appellant’s length of
service and his lack of any prior discipline. The deciding official thus did in
essence consider the appellant’s dependability during his service with the
agency. | 20,643 | |
Case Report - May 9, 2008 | 05-09-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_9_2008_331821.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_9_2008_331821.pdf | CASE REPORT DATE: May 9, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Theresa Faye Kohler
Agency: Department of the Navy
Decision Number: 2008 MSPB 84
Docket Number: AT-0752-07-0272-I-1
Issuance Date: April 9, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Discrimination
Penalty
The appellant petitioned for review of an initial decision that affirmed her removal
for excessive absences. The appellant was absent from the workplace from October 5,
2004, until her removal, effective April 23, 2005. In a February 23, 2005 letter to the
agency, her physician reported that the appellant was “unable to work in any capacity at
the present time,” and that “it is not possible for me to establish a time frame in which
she could return to work, or to what capacity level.” On appeal to the Board, the
administrative judge (AJ) found that the agency had proven its charge and that the
appellant had not proven her affirmative defenses.
Holdings: The Board granted the appellant’s petition for review (PFR), but
affirmed the initial decision as modified, still sustaining the appellant’s removal:
1. The AJ erred by not addressing the appellant’s affirmative defense of retaliation
for protected EEO activity. After examining the record evidence, the Board
concluded that the appellant failed to establish this affirmative defense.
2. The AJ failed to evaluate the applicable Douglas factors in the initial decision or
assess the reasonableness of the penalty. After considering the pertinent factors,
the Board concluded that the removal penalty was within the bounds of
reasonableness.
2
► Appellant: Gilberto M. Rodriguez
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 85
Docket Number: DA-0752-07-0177-I-1
Issuance Date: April 10, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Falsification/Fraud
The appellant petitioned for review of an initial decision that sustained his removal
for falsifying an official government document and making false statements. The
appellant was a senior criminal investigator in the agency’s Immigration and Customs
Enforcement branch. The agency charged that he falsified an agency form with respect
to his handling of an undocumented alien by indicating on a form that Assistant United
States Attorney (AUSA) Dan Mills had declined the alien’s prosecution. The agency
secondly charged that the appellant made 2 false statements that Mills had declined
Rangel’s prosecution, first to his acting supervisor, and later to an agency investigator.
The appellant testified that he called the AUSA duty phone number in order to get
declination or approval of the alien’s prosecution and left a voicemail message asking
the AUSA to call him back. At this time, the appellant said he did not know which of
the 7 or 8 AUSAs was on duty that day. He said he received a return call later that day,
that he explained the alien’s criminal history to the AUSA who returned his call, who
then declined the alien’s prosecution. The appellant then assembled a temporary file on
the alien and handed it to his supervisor, who questioned why the alien was not being
prosecuted. The supervisor testified that the declination to prosecute surprised him, and
he called the U.S. Attorney’s Office to speak to the AUSA on duty about the matter.
The supervisor was told that Mills was the duty AUSA that day, but that Mills was
unavailable because he was at the hospital with his wife, and that Brown, the office
chief, was covering for Mills. The supervisor testified that he then asked the appellant
who the AUSA was that he had spoken with and the appellant indicated it was Mills.
The appellant testified that he did not pay particular attention to which AUSA had
returned his call and declined the alien’s prosecution, and that, to comply with his
supervisor’s demand that he write the AUSA’s name on the form, he looked at the
AUSA duty roster, noted that Mills was the duty AUSA that day, and put Mills name on
the form.
The AJ found that the record established that Mills did not decline the alien’s
prosecution and that the appellant’s assertion that he honestly but mistakenly identified
Mills as the declining AUSA was not plausible, and evidenced “at best, a reckless
disregard for the truth.”
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered the agency to reinstate the appellant to his position:
1. To sustain a falsification charge, the agency must prove by preponderant
evidence that the employee knowingly supplied incorrect information with the
intention of defrauding the agency.
3
2. Throughout the proceedings before both the agency and the Board, the appellant
has maintained that he received a return call from the U.S. Attorney’s office and
that the person with whom he spoke informed the appellant that the office declined
to prosecute the alien. If an AUSA other than Mills returned the appellant’s call
and declined to prosecute the alien, the agency has offered no evidence that would
justify a finding that the appellant misidentified Mills as the AUSA with the intent
to defraud or deceive the agency. If the appellant received such a call, the
appellant’s misidentification of the caller would appear to be nothing more than an
honest mistake. To sustain the charge under these circumstances, it was incumbent
on the agency to prove that the appellant did not receive such a call.
3. The agency failed to meet its burden. Other than verifying that Mills did not
decline prosecution, the record is devoid of evidence that would suggest that the
agency made any effort to determine whether another AUSA may have spoken with
the appellant and declined prosecution. The record does not even indicate that the
agency questioned Brown, who was acting for Mills that day.
4. The agency did adduce indirect evidence that might support the proposition that
the appellant did not receive a call from an AUSA declining prosecution. Mills
testified that, if his office had been made aware that an alien had a prior felony
conviction, no one his office would have declined prosecution because that would
have been contrary to office policy. The agency failed to establish, however, that
the alien in question had a prior felony prosecution.
► Appellant: Raymon L. Crook
Agency: United States Postal Service
Decision Number: 2008 MSPB 86
Docket Number: AT-0752-07-1004-I-1
Issuance Date: April 10, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Timeliness - PFR
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The PFR was filed about one month after the deadline for
timely filing.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown. The appellant said he thought he had 60 days in which to file his petition,
having been confused about the language referring to the 60-day deadline for filing
a petition with the U.S. Court of Appeals for the Federal Circuit. The Board
found, however, that the initial decision clearly informed the appellant of the 35
day deadline for filing a PFR, as opposed to the 60-day deadline for filing a
petition for judicial review.
4
► Appellant: Mark G. Zysk
Agency: United States Postal Service
Decision Number: 2008 MSPB 87
Docket Number: CH-0353-07-0439-I-1
Issuance Date: April 10, 2008
Appeal Type: Restoration to Duty
Action Type: After Recovery from Compensable Injury
Miscellaneous Agency Actions
- Restoration to Duty
Jurisdiction
- Furlough
- Constructive Suspension
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant, a preference-eligible full-time city letter carrier,
submitted workers’ compensation claims for injuries suffered in 2001 and 2002, which
were approved by OWCP. He worked on limited duty from April 2002 through
March 14, 2007. When the appellant reached the limit of his medical restrictions, i.e.,
2 hours of walking, the agency would assign other carriers to complete the appellant’s
route and provide him with alternate work. On March 14, 2007, OWCP terminated the
appellant’s benefits on the basis that his work-related conditions had resolved. The
agency informed the appellant that, thereafter, he would be expected to carry his entire
route, but that if he continued to have medical conditions that limited his ability to
deliver all of his route he could apply for light duty. The agency no longer assigned the
appellant alternative work, and he no longer received 8 hours of work each day. In his
appeal to the MSPB, the appellant alleged that the agency constructively suspended him
by ordering him to clock out when he reached the limits of the work restriction imposed
by his doctor. The AJ dismissed the appeal for lack of jurisdiction, finding that the
appellant did not meet the requirements of 5 C.F.R. Part 353, either as a fully recovered
individual or as a partially recovered individual. Regarding the appellant’s enforced
leave claim, the AJ determined that, because the appellant was not suffering from a
work-related injury, the agency was not obligated to guarantee the appellant a light
duty assignment of 8 hours per workday or 40 hours per week. For the same reason, the
AJ also determined that the appellant’s daily part-day absence was not a “furlough”
under the Board’s jurisdiction.
After filing his PFR, the appellant submitted a copy of an OWCP decision dated
November 2, 2007, which set aside its March 14, 2007 decision to terminate the
appellant’s compensation, retroactively reinstated his benefits, and remanded his case
for a new decision addressing whether the appellant still suffers from his work-related
injury.
Holdings: The Board reopened the appeal on its own motion, vacated the initial
decision, and remanded the appeal to the regional office for further adjudication:
1. Much of the initial decision was based on OWCP’s March 14, 2007 decision that
terminated the appellant’s compensation benefits because his work-related medical
5
conditions had resolved. That OWCP has rescinded its March 14, 2007 decision,
and reinstated the appellant’s compensation benefits, calls the basis of the initial
decision into question and warrants reopening the appeal. A remand is therefore
appropriate to reconsider the appellant’s furlough and constructive suspension
claims.
2. The new information does not change the jurisdictional status of the appellant’s
restoration claims. OWCP’s reinstatement of the appellant’s benefits precludes
the appellant from meeting OPM’s definition of “fully recovered,” and partially
recovered employees may not appeal an allegedly improper restoration.
► Appellant: Terese A. Durden
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 88
Docket Number: DC-0752-07-0231-I-1
Issuance Date: April 10, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Discrimination
- Sex Discrimination
The appellant petitioned for review of an initial decision that sustained her removal
for physical inability to perform the duties of her position as an Aircraft Mechanic with
the U.S. Coast Guard. In January 2005, the appellant’s physician supplied a letter to
the agency recommending that she “avoid any cramped, awkward, strained positions,”
and that she “limit her carrying to approximately 25 lbs....” The appellant underwent
significant neck surgery in November 2005, and she requested accommodation of her
medical condition in January 2006. Her doctor submitted a letter outlining restrictions
very similar to the ones under which the appellant worked before the surgery. The
agency proposed her removal in July 2006, which was effected in November. The
decision stated that the appellant’s “physical inability to perform [her] duties place[d]
an administrative burden on the agency,” because she held “a full time position and the
[agency’s] need is to have a person performing the full duties [of the aircraft mechanic
position] in a full time capacity.” In her appeal to the Board, the appellant alleged,
inter alia, that she was the victim of sex discrimination. She alleged that she received
worse treatment than a similarly situated male aircraft mechanic, Tom Doshen, who,
like her, was unable to perform some of the essential functions of the aircraft mechanic
position, but whom the agency accommodated by giving him unofficial light duty
assignments within his perceived restrictions. The AJ found, however, that the
appellant and Doshen were not similarly situated.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered the agency to cancel the appellant’s removal and restore her to
employment, finding that the agency had engaged in sex discrimination:
1. The appellant’s PFR fails to establish her contentions regarding harmful
procedural error, disability discrimination, and the conduct of the hearing below.
6
2. The Board found that the appellant established by preponderant evidence that
the agency treated the appellant disparately from Doshen, a similarly situated
employee outside the appellant’s protected group, thereby committing sex
discrimination.
a. In a case like this, where the record is complete and a hearing has been
held, it unnecessary to follow the burden-shifting framework of McDonnell
Douglas; the inquiry proceeds directly to whether the appellant has
demonstrated by a preponderance of the evidence that the agency’s reason
for its action was a pretext for discrimination. The agency, under the
circumstances presented, may have properly removed the appellant for her
physical inability to perform the duties of her position, but only if the same
criteria are applied to men and women alike.
b. Potential comparators’ respective situations do not have to be perfectly
identical to be considered similar and comparable for discrimination
purposes.
c. While the AJ correctly noted several differences between the appellant and
Doshen, those differences obscure the basic similarity of their situations.
Both were physically incapable of performing some of the essential
functions of the aircraft mechanic position. Yet the agency allowed Doshen
to work light-duty for an indefinite period of time, until he eventually
found a position with less demanding physical requirements, and the
appellant was removed for her physical inability to perform the essential
functions of her position.
► Appellant: Vincent E. May
Agency: United States Postal Service
Decision Number: 2008 MSPB 89
Docket Number: SF-0752-00-0046-I-1
Issuance Date: April 11, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFR
The appellant petitioned for review of an initial decision issued in 2000 that
dismissed his appeal without prejudice to refiling.
Holdings:
1. The Board dismissed the PFR as untimely filed without good cause shown. The
appellant explained that the “mailing address was not correct on the address that
was given to the MSPB in 1999/2000,” and that he did not receive the initial
decision “because of the wrong address.” The 8-year length of the delay in filing
militates against waiving the filing deadline, and the appellant does not claim that
he acted with due diligence by forwarding his mail through the Postal Service or by
contacting the Board to update his mailing address.
2. The Board also declined to exercise its discretion to reopen the appeal.
7
► Appellant: Kendra L. Drain
Agency: Department of Justice
Decision Number: 2008 MSPB 90
Docket Number: AT-0752-07-0820-I-1
Issuance Date: April 11, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Miscellaneous Agency Actions
- Indefinite Suspension
The agency petitioned for review, and the appellant filed a cross-PFR, of an initial
decision that reversed the continuation of the appellant’s indefinite suspension. In July
2006, the agency indefinitely suspended the appellant from her position as a
Correctional Treatment Specialist pending investigation into allegations that the
appellant committed a crime by introducing contraband into the prison complex where
she was employed. The indefinite suspension was to remain in effect pending
disposition of any criminal charges against the appellant, or until there was sufficient
evidence either to return her to duty or to support subsequent administrative action that
may be warranted. About 10 months later, the appellant requested that the agency end
her suspension and return her to work. When the agency denied the request, she filed a
Board appeal. The AJ found that the continuation of the suspension was improper on
the ground that suspending an employee for a period in excess of 1 year is not
temporary because it has no ascertainable end.
Holdings: The Board granted the agency’s PFR, denied the appellant’s cross-PFR,
reversed the initial decision, and sustained the continuation of the indefinite
suspension:
1. An indefinite suspension must have an ascertainable end, which is a
determinable condition subsequent that will bring the suspension to a conclusion.
An indefinite suspension may extend through the completion of both a pending
investigation and any subsequent administrative action.
2. Here, the indefinite suspension was proper when effected because it had an
ascertainable end—the disposition of any criminal charges, or a determination
whether to return the appellant to duty or to take a subsequent administrative
action. The Board found no support that the passage of 1 year, by itself, renders
an otherwise properly effected indefinite suspension improper.
3. The Board considered new evidence submitted by the agency that shows that a
grand jury indicted the appellant on November 28, 2007, for 2 counts of violating
federal law by introducing contraband into the prison facility, and that, as of
January 24, 2008, these criminal matters had not been finally resolved. Because
the condition subsequent that would end the appellant’s indefinite suspension has
not yet occurred, the continuation of the suspension is proper.
8
► Appellant: Eric Williams
Agency: Department of the Air Force
Decision Number: 2008 MSPB 91
Docket Number: AT-3443-06-0118-I-2
Issuance Date: April 15, 2008
Miscellaneous Agency Actions
- VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that ordered corrective
action in this VEOA appeal. The appellant applied for a GS-07 Contract Specialist
position under vacancy announcement WR383583 in July 2005. OPM forwarded 2
certificates of eligible candidates to fill 13 positions. The appellant’s name appeared
on one list as a 10-point preference eligible veteran; his name did not appear on the
second certificate, which was for Outstanding Scholars. The appellant was interviewed,
but not selected. After filing a complaint with the Department of Labor, the appellant
filed a VEOA appeal with the Board. While that appeal was pending, the agency stated
that it had become aware of the Board’s decision in Dean v. Department of Agriculture,
99 M.S.P.R. 533 (Aug. 5, 2005), which held that the Outstanding Scholar Program
cannot be used as a hiring method to avoid the competitive examination process when
veterans’ preference rights are at issue. The agency stipulated that the appellant would
have been hired as a GS-07 Contract Specialist in 2005 but for the agency’s use of the
Outstanding Scholar Program, and offered to place him in a GS-07 Contract Specialist
position with back pay and benefits. The appellant argued that he should be placed at
the GS-11 level because most people hired as a result of the 2005 vacancy
announcement have been promoted to GS-09 or GS-11 by this time. He also argued that
the agency’s VEOA violation was willful and that he is therefore entitled to damages.
The AJ found that the appellant violated the appellant’s veterans’ preference rights and
ordered the agency to place the appellant in a GS-07 Contract Specialist position with
appropriate back pay and benefits.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion, affirmed the initial decision as modified, and forwarded the appellant’s
request for lost wages, benefits, and liquidated damages to the regional office for
adjudication:
1. The Board denied the appellant’s request for interim relief. Even assuming that
a VEOA appeal is subject to the interim relief provisions of 5 U.S.C. § 7701, it was
not an abuse of discretion for the AJ to decline to order interim relief.
2. The agency violated 5 U.S.C. § 3304(b), a statute related to veterans’ preference,
when it improperly selected non-preference eligibles instead of the appellant by
using the Outstanding Scholar Program to fill vacancies under the 2005
announcement.
3. The appropriate remedy is not an automatic and retroactive appointment to the
GS-07 Contract Specialist position. Rather, the agency must reconstruct the
selection process and comply with the applicable veterans’ preference laws. If,
after the agency reconstructs the hiring process, the appellant is placed at a grade
9
level with which he disagrees, he may file a petition for enforcement with the office
that issued the initial decision.
3. Regarding the appellant’s request for damages, the law provides that, “If the
Board... determines that such violation was willful, it shall award an amount
equal to backpay as liquidated damages.” 5 U.S.C. § 3330c(a). The Board has
interpreted the term “willful” as meaning that the employer knew or showed
reckless disregard for the matter of whether its conduct was prohibited by VEOA.
There is a question whether the agency’s violation was willful, as the relevant
selections in this case took place approximately 5 weeks after the Board issued
Dean. Since the appellant has already filed a request for lost wages, benefits, and
liquidated damages, the Board found it appropriate to forward that request to the
regional office for adjudication.
► Appellant: Eric Williams
Agency: Department of the Air Force
Decision Number: 2008 MSPB 92
Docket Number: AT-3443-07-0858-I-1
Issuance Date: April 15, 2008
Miscellaneous Agency Actions
- USERRA/ Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
URERRA appeal for lack of jurisdiction. As in the previously reported decision, this
appeal involves the appellant’s non-selection for a GS-07 Contract Specialist position
with the agency under vacancy announcement WR383583. While the VEOA appeal was
pending before the Board on PFR, the AJ dismissed the USERRA appeal, finding that
the appellant failed to make a nonfrivolous allegation of jurisdiction.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal to the regional office for adjudication:
1. Although the Board ordinarily lacks jurisdiction over an agency’s failure to hire
an applicant, USERRA (38 U.S.C. § 4311(a)) provides that a person who performs
or has performed uniformed military service “shall not be denied initial
employment, reemployment, retention in employment, promotion, or any benefit of
employment” because of his military service.
2. To establish Board jurisdiction over a USERRA appeal, the appellant must
nonfrivolously allege that he: (1) performed uniformed military service; (2) was
denied initial employment; and (3) the denial of initial employment was due to the
performance of uniformed military service. A claim under USERRA should be
broadly and liberally construed in determining whether it is nonfrivolous.
3. Here, the first two elements are undisputed, and the appellant claimed that the
agency denied him the Contract Specialist position due to his veteran status and
that his military service was a substantial or motivating factor in his nonselection.
These allegations are sufficient to establish jurisdiction.
10
4. On remand, the appellant should be afforded a hearing. In addition, the AJ
shall also address the appellant’s reemployment claims.
► Appellant: Susan L. Holland
Agency: Department of Labor
Decision Number: 2008 MSPB 93
Docket Number: DA-0752-07-0564-I-1
Issuance Date: April 29, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Board Procedures/Authorities
- Sanctions
The appellant petitioned for review of an initial decision that dismissed her appeal
of a 30-day suspension for failure to prosecute. Following the issuance of the
acknowledgment order, the agency served the appellant with discovery request. When
the appellant failed to respond, the agency file a motion to compel discovery. During a
conference call 2 days later, the appellant explained that she had not responded because
she had been ill and was attempting to retain an attorney. The AJ granted the agency’s
motion to compel and ordered the appellant to respond to the discovery requests no later
than October 29, 2007, and advised the appellant that failure to comply would result in
sanctions under 5 C.F.R. § 1201.43. On November 8, the agency filed a second motion
to compel, asserting that the appellant failed to respond to its discovery by the deadline,
and that she had failed to file a prehearing submission. Also on November 8, the
appellant failed to participate in a scheduled prehearing telephonic conference. The AJ
ordered the appellant to contact her no later than November 13 as to how she wished to
proceed, and advised the appellant that failure to comply may result in the imposition of
sanctions, possibly including dismissal of the appeal for failure to prosecute. The
appellant did not respond by the deadline, and the AJ issued an initial decision on
November 15 dismissing the appeal for failure to prosecute.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to vacate the initial decision and remand the appeal for further
adjudication:
1. Sanctions, including dismissal for failure to prosecute an appeal may be imposed
as necessary to serve the ends of justice. 5 C.F.R. § 1201.43. The severe sanction
of dismissal with prejudice for failure to prosecute should not be imposed against a
pro se appellant who has made incomplete responses to the Board’s orders, but has
not exhibited bad faith or evidenced any intent to abandon her appeal.
2. Although the appellant has not been diligent in pursuing her appeal and did not
comply with the AJ’s October 24 order regarding discovery, her actions do not
exhibit bad faith or evidence an intent to abandon her appeal. She participated in
the October 24 conference call, appeared for her scheduled deposition the same
day, and stated that she had given responses to interrogatories.
3. The appellant’s failure to respond to the AJ’s November 8 order within the
5-day time limit does not show a lack of diligence or negligence. The 5-day
11
deadline included 3 consecutive days that the Board was closed for business. The
AJ’s order thus allowed only 2 days for the order to reach the appellant and for
her response to be received. The appellant’s hand-delivered November 19 letter to
the AJ, which was forwarded to the Clerk of the Board as a PFR, may have been
the appellant’s response to the AJ’s November 8 order.
4. Under all the circumstances, the extreme sanction of dismissal for failure to
prosecute does not serve the ends of justice, and the appeal was remanded for
further adjudication.
► Appellant: Robert J. Johnson
Agency: Department of the Treasury
Decision Number: 2008 MSPB 95
Docket Number: CH-3443-07-0517-I-1
Issuance Date: April 29, 2008
Board Procedures/Authorities
- Sanctions
The appellant petitioned for review of an initial decision that dismissed his appeal
for failure to prosecute. In this USERRA appeal, the appellant alleged that the agency
improperly charged him with military leave on non-work days, causing him to use
annual leave, sick leave, or leave without pay (LWOP)to perform military service. In
his acknowledgment order and several subsequent orders, the AJ directed the appellant
to identify the dates on which he was charged military leave for non-work days, and the
dates on which he performed military duty and was forced to use annual leave or LWOP
because the agency charged him military leave on non-work days. After many
pleadings, orders, and telephone conferences, the AJ dismissed the appeal for failure to
prosecute on the ground that the appellant had failed to comply with this directive.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal for further adjudication:
1. Sanctions, including dismissal for failure to prosecute an appeal may be imposed
as necessary to serve the ends of justice. 5 C.F.R. § 1201.43. In the absence of bad
faith or evidence that an appellant intends to abandon his appeal, however, a
timely-filed appeal should not be dismissed for failure to prosecute. Once an AJ
imposes a sanction, the Board will not disturb such a determination unless it is
shown that the AJ abused her discretion or that her erroneous ruling adversely
affected a party’s substantive rights.
2. Although the appellant’s response to the orders that he produce the specific
dates in question was late, his exhibits did directly reference each date that the
appellant was allegedly mischarged military leave and identifies the dates that he
was forced to use annual leave or LWOP to perform military service. Accordingly,
he had fully complied with the AJ’s orders and the agency’s discovery requests
prior to the decision dismissing the appeal for failure to prosecute.
12
► Appellant: David V. Hawley
Agency: Social Security Administration
Decision Number: 2008 MSPB 96
Docket Number: NY-3443-07-0101-I-1
Issuance Date: April 29, 2008
Timeliness - PFR
The appellant petitioned for review of an initial decision that dismissed his appeal
as settled. The initial decision became the Board’s final decision on March 29, 2007.
On November 6, 2007, the appellant filed a pleading in which he alleged that the
agency committed fraud by altering the settlement agreement before submitting it to the
AJ. In response to a notice on timeliness, the appellant asserted that he did not become
aware of the change in the settlement agreement until he received a copy of it on July
12, 2007, and that he thereafter attempted, unsuccessfully, to resolve the discrepancy
with the agency before filing his pleading with the Board.
Holdings:
1. The Board dismissed the appellant’s PFR as untimely filed (by more than 7
months) without good cause shown. Even if the appellant’s assertions as to the
reasons he delayed are accepted as true, he waited nearly 4 months after learning
of the alleged alteration of the settlement agreement before filing, and more than 2
months after his attempts to resolve the discrepancy with the agency had ended.
These delays demonstrate that the appellant failed to exercise due diligence and
ordinary prudence in pursuing this petition for review.
2. The Board forwarded the appellant’s allegations of agency noncompliance with
the settlement agreement to the New York Field Office for docketing and
consideration as a petition for enforcement.
► Appellant: Sandra H. Morales
Agency: Social Security Administration
Decision Number: 2008 MSPB 97
Docket Number: SF-3443-08-0076-I-1
Issuance Date: April 29, 2008
Jurisdiction
- Discrimination Complaints/Mixed Cases
Whistleblower Protection Act
- Exhaustion of Remedy
The appellant petitioned for review of an initial decision that dismissed her appeal
for lack of jurisdiction. The action complained of was the appellant’s non-selection for
a promotion, which she alleged resulted from retaliation for protected whistleblowing
activity and unlawful discrimination. The appellant noted that she had filed a complaint
with the Office of Special Counsel approximately a week before filing her Board
appeal. The AJ dismissed the appeal for lack of jurisdiction, finding that the Board
lacked jurisdiction of the non-selction as an otherwise appealable matter, and that the
13
appeal was prematurely filed as an IRA appeal, because OSC had not completed its
investigation and 120 days had not elapsed.
Holdings:
1. The Board lacks jurisdiction over a direct appeal of the appellant’s non
selection. It is well-settled that the Board lacks jurisdiction under 5 U.S.C. § 7512
over an individual’s non-selection for a position, and a discrimination claim under
5 U.S.C. § 2302(b)(1) is not an independent source of Board jurisdiction.
2. A non-selection for a promotion is appealable to the Board as an IRA appeal
under 5 U.S.C. § 1221, subject to the requirement that the appellant first seek
corrective action from OSC as required by 5 U.S.C. § 1214(a)(3), which requires
that OSC have terminated its investigation, or that 120 days have elapsed since
filing the OSC complaint. The AJ correctly found that the Board lacked IRA
jurisdiction over her non-selection when the appeal was filed. It is the Board’s
practice, however, to adjudicate an appeal that was premature when it was filed
but becomes ripe while pending before the Board. The appellant is now ripe for
adjudication, and the appeal was remanded to the regional office.
► Appellant: Marianna Mohammed
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 98
Docket Number: CH-0831-08-0135-I-1
Issuance Date: May 6, 2008
Action Type: Retirement/Benefit Matter
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed her appeal
of OPM’s reconsideration decision as untimely filed. OPM’s reconsideration decision,
issued on February 21, 2007, informed the appellant that she had the right to file an
appeal with the Board within 30 days after receipt of the decision. The appellant’s pro
se appeal was received in the Board’s regional office on November 15, 2007. With the
appeal, the appellant submitted a copy of OPM’s reconsideration decision bearing a
handwritten notation that it was received on March 7, 2007, and a copy of a Postal
Service customer receipt documenting that she had mailed something to OPM on
April 3, 2007. The AJ issued an acknowledgment order directing the appellant to
submit evidence and argument on timeliness, but the appellant did not respond. The AJ
issued an initial decision dismissing the appeal as untimely filed without good cause
shown. In so ruling, the AJ found that the appellant had received the reconsideration
decision on March 7, 2007, that the date for timely filing was April 6, 2007, and that
the appellant was filed on November 10, 2007, more than 7 months after the deadline.
In her PFR, the appellant asserted for the first time that she mailed a letter of
appeal of OPM’s reconsideration decision to OPM on April 3, 2007, and that she put
her request to OPM in letter form instead of using the MSPB appeal form provided by
OPM “because she did not understand the forms” due to her limited education. She
submitted a copy of the letter she submitted to OPM on April 3.
14
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion; it reversed the initial decision, found good cause for the delay in
filing, and remanded the appeal to the regional office for adjudication on the
merits:
1. The acknowledgment order did not inform the appellant of the dates on which
the AJ intended to rely in making the timeliness determination. This was error.
For that reason, the Board considered the appellant’s late-filed evidence and
argument regarding the timeliness of her appeal.
2. Although OPM’s reconsideration decision instructed the appellant that she
should file her appeal with the Board’s regional office, and the Board generally
holds that an appellant’s failure to follow explicit instructions does not constitute
good cause for a delay, it has recognized an exception in cases where appellants
have timely but mistakenly sent appeals of OPM reconsideration decisions to OPM
rather than to the Board, where the following conditions have been met: The delay
was caused in part by the appellant’s failure to follow the directions in the
reconsideration decision and in part by OPM’s failure to direct an otherwise timely
appeal to the Board; the appellant clearly intended to seek further review of the
reconsideration decision; the appellant was pro se; and there was no showing of
prejudice to OPM by granting the waiver. Because these conditions were met in
this case, the Board found good cause for the delay in filing, and remanded the case
to the regional office for adjudication.
► Appellant: Ernest Hooper
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 99
Docket Number: AT-0831-07-0933-I-1
Issuance Date: May 7, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Service Credit
- Post-1956 Military Service
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision reducing his CSRS annuity benefits by eliminating service
credit for his post-1956 military service. The appellant retired in 1995 at age 50.
Because he had more than 9 years of post-1956 military service, he was given
information about making a deposit in order to continue receiving credit for his military
service if and when he became eligible to receive Social Security benefits. After
receiving notice that his CSRS annuity might be reduced at age 62 if he failed to make
such a deposit, the appellant elected not to make a deposit. When he turned 62, OPM
notified him that his monthly annuity was being reduced by over 40% because he had
not make the deposit. On appeal to the Board, the appellant asserted, in a declaration
made under the penalty of perjury, that the retirement counselor at his employing
agency incorrectly told him that the amount of the reduction in his CSRS benefits at age
62 would be made up by the amount of Social Security benefits he would receive at that
15
time. The AJ affirmed OPM’s reconsideration decision, finding that the appellant
received adequate notice of the requirement that he make a deposit for his post-1956
military service to avoid a reduction in his annuity at age 62, and that the appellant
failed to prove that his failure to pay the deposit was the result of administrative error.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion, reversed the initial decision, and directed OPM to allow the appellant
an opportunity to make a deposit for his post-1956 military service:
1. Under circumstances like those in this case, OPM is required by law to
recompute annuity payments when the retiree becomes eligible for Social Security
benefits at age 62 to exclude credit for the post-1956 military service. An
individual will be allowed to make a post-separation deposit for such service only if
he shows that OPM or his employing agency made an administrative error that
caused his failure to timely make the deposit.
2.
Under McCrary v. Office of Personnel Management, 459 F.3d 1344, 1349 (Fed.
Cir. 2006), an employing agency commits administrative error if its response to an
employee’s questions misrepresents the dollar amounts in question, or is so
indirect, inaccurate, or incomplete as to confuse or mislead the employee as to the
amount of the deposit or the effect of any failure to make the deposit.
3. Here, the appellant’s unrebutted assertions regarding his conversation with his
employing agency’s retirement counselor establish that the agency committed
administrative error by failing to fully inform him regarding the consequences of
not paying the deposit when he turned 62.
► Appellant: Salvador I. Guerrero, Jr.
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 100
Docket Number: AT-0752-06-0144-A-1
Issuance Date: May 7, 2008
Action Type: Attorney Fee Request
Attorney Fees
- Prevailing Party
- Reasonableness
The agency petitioned for review of an addendum initial decision that ordered the
agency to pay attorney fees fees in the total amount of $10,155.50. In the merits
proceeding, the Board reversed the agency’s removal action.
Guerrero v. Department
of Veterans Affairs, 2007 MSPB 132, 105 M.S.P.R. 617. Thereafter, the appellant filed
a petition for enforcement, in which the agency was ordered to pay the appellant $1,100
for job search expenses.
Holdings:
1. The reasonableness of the fees awarded in the compliance proceeding must be
remanded for further adjudication.
16
a. The AJ found that the agency was not in compliance with the Board’s final
order until it paid $1,100 to the appellant for job search expenses. In light
of this, the AJ found that the appellant clearly prevailed on the
enforcement issue and awarded fees. The agency argues, however, that the
AJ should have limited the award of fees to those related to the appellant’s
success on this issue.
b. In addition to the job search expenses, the appellant argued that the agency
should reimburse him for family medical expenses, and he requested that
the agency add performance evaluations to his employment file showing
satisfactory performance. These claims were resolved without an
enforceable order from the AJ or the Board. But the mere absence of such
an order does not necessarily bar a claim for attorney fees.
c. Even where an appellant is the “prevailing party” as to a particular claim,
the Board will not award attorney fees for hours spent on unsuccessful
claims that are distinct and unrelated to his successful claim. Because the
AJ failed to make any explicit findings on these matters, and the existing
record is insufficiently developed to decide the issue, remand is necessary.
2. The reasonableness of the fees awarded in the merits proceeding must be
remanded for further adjudication.
a. The agency does not dispute that the attorney rendered legal services in the
merits proceeding, that the appellant was a prevailing party in that
proceeding, and that an award of attorney fees is warranted in the interests
of justice. It disputes the reasonableness of those fees, especially
considering the absence of an affidavit from the attorney.
b. Even in the absence of a specific challenge from the agency, the Board must
ensure that only reasonable fees are awarded. Proper consideration of the
reasonableness of an attorney fees request begins with an analysis of 2
objective variables: the attorney’s customary billing rate; and the number
of hours reasonably devoted to the case. In order to establish the
appropriate hourly rate, the record must contain evidence of any fee
agreement, as well as evidence of the attorney’s customary billing rate for
similar work.
c. Here, the record does not contain evidence of the fee agreement between the
appellant and the attorney or evidence or her customary billing rate for
similar work. Nor is there any evidence regarding the attorney’s
qualifications and relevant experience. Under these circumstances, a
remand for further adjudication is necessary. | 43,281 | |
Case Report - May 6, 2008 | 05-06-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_6_2008_330952.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_6_2008_330952.pdf | CASE REPORT DATE: May 6, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: William L. McKenna
Agency: Department of the Navy
Decision Number: 2008 MSPB 69
Docket Number: PH-0351-03-0399-A-2
Issuance Date: March 26, 2008
Action Type: Attorney Fee Request
Attorney Fees
- Interest of Justice
- Gross Procedural Error
- Reasonableness
Both parties petitioned for review of an addendum initial decision that awarded
attorney fees and expenses in the amount of $161,213.17. This case has an extensive
history, including the merits proceeding in which the agency was found to have violated
the appellant’s rights in conducting a reduction in force, a compliance proceeding that
resulted in a remand proceeding, and a previous motion for attorney fees, which was
rejected as prematurely filed.
Holdings: The Board denied the agency’s petition for review (PFR), granted the
appellant’s cross-PFR, affirmed the addendum initial decision as modified, and
remanded the matter to the regional office for adjudication of one remaining
matter:
1. An award of attorney fees was warranted in the interest of justice under Allen
category 4, that the agency committed a gross procedural error. As the
administrative judge (AJ) found, the appellant submitted his résumé and other
information to a member of the agency’s RIF team, but that member did not
forward it to the other members of the team. Because the RIF Team was not in
possession of the complete set of materials, the process was “patently unfair” to the
appellant, and the agency proffered no excuse for its error.
2
2. The Board found no basis for disturbing the AJ’s findings regarding the
reasonableness of the fee award. The AJ is in the best position to determine
whether the number of hours expended is reasonable and, absent a specific
showing that the AJ’s evaluation was incorrect, the Board will not second-guess it.
3. In his cross-PFR, the appellant requested that he be awarded additional attorney
fees incurred for the production of 3 Board pleadings. The Board found no error
in the AJ’s handling of 2 of those matters, but with respect to the appellant’s claim
for 9 hours spent relating to his May 29, 2007 petition for enforcement, the Board
found it appropriate to remand the matter to the regional office for further
adjudication.
► Appellant: Mark A. Deems
Agency: Department of the Treasury
Decision Number: 2008 MSPB 82
Docket Number: PH-3443-03-0115-A-1
Issuance Date: April 4, 2008
Action Type: Attorney Fee Request
Attorney Fees
- Prevailing Party
The agency petitioned for review of an initial decision that awarded the appellant
$44,156.50 in attorney fees and expenses in this VEOA appeal. Because the two Board
members could not agree on the appropriate disposition of the PFR, the initial decision
became the final decision.
Vice Chairman Rose issued a separate opinion stating that, although she agreed that an
award of attorney fees was warranted, she would have reopened the appeal to clarify the
standards for awarding attorney fees in VEOA appeals:
1. The AJ stated that he was awarding attorney fees under 5 U.S.C. § 7701(g),
finding that the appellant was the “prevailing party” and that the award was
“warranted in the interest of justice.” Attorney fees in VEOA appeals are
awarded under the authority of 5 U.S.C. § 3330c, which does not include a
requirement that fees are “warranted in the interest of justice.”
2. The appellant was a prevailing party because he achieved the only relief the
Board can provide in a VEOA appeal—an order requiring the agency to comply
with the law by reconstructing the selection process. A VEOA appellant need
not have received an appointment to be considered a prevailing party.
3
► Appellant: Stephan D. Evans
Agency: United States Postal Service
Decision Number: 2008 MSPB 72
Docket Number: SF-0752-06-0193-X-1
Issuance Date: March 28, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
This case was before the Board on the AJ’s Recommendation finding the agency in
noncompliance with a final Board order, which directed the agency to cancel its
removal action and place the appellant in the next lower-graded non-supervisory
position with the least reduction in grade and pay. The agency initially placed the
appellant in a part-time flexible carrier position. It placed him in an EAS-16 Safety
Specialist position after the appellant filed a petition for enforcement. At issue was the
appellant’s entitlement to back pay and other benefits during the period from the
issuance of the March 17, 2006 initial decision, and the June 11, 2007 date of his
assignment to the EAS-16 position. The AJ rejected the agency’s argument that making
the appellant’s appointment retroactive to the date of the initial decision would interfere
with a reduction in force (RIF) it was conducting, and be tantamount to giving an
employee who has been demoted for misconduct priority consideration over employees
who may lose their jobs through a RIF.
Holdings: The Board rejected the agency’s arguments, found it to be in continued
noncompliance, and ordered the agency to provide back pay and holiday pay with
interest for the disputed period:
1. Even if the agency was engaged in a proper reorganization, it has not shown that
it could not place the appellant in the EAS-16 Safety Specialist position due to the
RIF.
2. The agency’s claim of possible liability due to a RIF challenge by one or more of
the employees who would have been bumped by the appellant’s employment is
speculative, and thus distinguishes the situation from that in Lester v. Department
of Education, 18 M.S.P.R. 63 (1983).
3. The Board rejected the agency’s argument that an agency undergoing a RIF may
ignore a Board order to assign an employee to a lower-graded position until after it
has completed the RIF because otherwise the agency would have to give an
employee who was demoted for misconduct priority over individuals about to lose
their jobs through no fault of their own. Such an argument suggests that the
appellant should be subject to an additional penalty beyond that found reasonable
by the Board.
4
► Appellant: Jennifer Henry
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 77
Docket Number: NY-0752-03-0330-X-2
Issuance Date: March 31, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
The case was before the Board pursuant to the AJ’s Recommendation finding the
agency in noncompliance with a final Board order. In the merits proceeding, the AJ
found that the appellant was an individual with a disability and that her disability was
the reason for her removal. The initial decision, which became the Board’s final
decision, ordered that the appellant be reasonably accommodated in her program
support clerk position or that she be reassigned to a position with duties within her
medical restrictions. In her first Recommendation, the AJ found that the agency failed
to show that the program support clerk position could not be modified to accommodate
the appellant. She further found that placement in a veterans service representative
(VSR) position was also possible as a reasonable accommodation. In a published
decision, the Board found that the proposed accommodations—having other employees
perform the appellant’s filing, hiring interns or temporary workers to file for her, or
having other workers assist her by lifting files exceeding her limitations and by opening
and closing file drawers—were not reasonable. Regarding another proposed
accommodation—the installation of automatic door openers—the Board found that the
record regarding the existence of undue hardship was not well developed, requiring a
remand. The Board further found that it was unable to assess the correctness of the
AJ’s finding that reassignment to a VSR position was a possible reasonable
accommodation.
Henry v. Department of Veterans Affairs, 100 M.S.P.R. 124 (2005).
On remand, the AJ found that installation of automatic drawer openers would
impose an undue hardship on the agency. Because the AJ also found that reassigning
the appellant to a VSR position would not impose an undue hardship, she found the
agency in continued noncompliance. Subsequent to the second Recommendation, the
agency stated that it had accommodated the appellant by permanently placing her in a
program support clerk position in a different division than the one in which she was
originally employed. The appellant objected to that placement.
Holdings: The Board found that the agency is now in compliance and dismissed
the matter as moot:
1. A reassignment is an appropriate accommodation only after it has been
determined that there are no effective accommodations that will enable the
employee to perform the essential functions of her current position, or all other
reasonable accommodations would impose an undue hardship on the agency.
2. The record does not show that the appellant can be accommodated in a program
support clerk position in the division where she was originally employed.
5
a. The appellant has not contested the AJ’s finding that the installation of
automatic drawer openers would impose an undue hardship on the agency.
b. The appellant’s proposed accommodation of an adjustable cart and the use
of open shelving units, which the appellant said would eliminate the need to
open heavy file drawers, would impose an undue hardship on the agency.
The cost of this proposed accommodation would be approximately $50,000,
more than 8% of the nonsalary budget for the entire New York Regional
Office, and more than the appellant’s entire salary for a year.
3. The reassignment to the program support clerk position in the Support Services
Division is an appropriate accommodation, and demonstrates compliance with the
Board’s final order.
4. Because the agency is now in compliance, there is no reason to address the
appellant’s allegations of other possible accommodations, including a VSR
position. An employee is not entitled to the accommodation of her choice.
► Appellant: Colister Slater
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 73
Docket Number: SF-0752-06-0805-I-2
Issuance Date: March 28, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Physical Inability to Perform
The agency petitioned for review of an initial decision that reversed its action
removing the appellant from his position as a Police Officer in the Federal Protective
Service for “inability to perform the essential duties of [his] position.” This action was
based on the medical determination of the agency’s Medical Review Officer that the
appellant “is not currently able to perform the full range of duties and responsibilities in
a safe and efficient manner or without an undue risk of injury to him or others.” After a
hearing, the AJ found that the agency failed to prove the required nexus between the
charge and the efficiency of the service. In so finding, the AJ stated that “the agency
must establish a nexus between his medical condition and observed deficiencies in his
performance or conduct, or a high probability of hazard when his condition may result
in injury to him or others because of the kind of work he does,” citing Yates v. U.S.
Postal Service, 70 M.S.P.R. 172, 176 (1996).
Holdings: The Board granted the agency’s PFR and affirmed the initial decision as
modified, still reversing the agency’s removal action:
1. The AJ erred in applying the “high probability of hazard” standard.
a. The proper standard for evaluating an employee’s fitness to perform the
duties of his position, for positions with medical standards or physical
requirements, or positions subject to medical evaluation programs, is
5 C.F.R. § 339.206, i.e., a history of a particular medical problem may be
6
the basis of a medical disqualification only if “the condition at issue is itself
disqualifying, recurrence cannot be medically ruled out, and the duties of
the position are such that a recurrence would pose a reasonable probability
of substantial harm.”
b. The “high probability of hazard” standard derives from the 1972 edition of
the former Federal Personnel Manual. In 1989, however, OPM issued new
regulations amending 5 C.F.R. Part 339, and issued a comprehensive
revision of chapter 339 of the FPM.
Although the Board applied the new
standard in Lassiter v. Department of Justice, 60 M.S.P.R. 138, 141-42
(1993), it has applied the earlier standard in 5 subsequent decisions,
including Yates. Those 5 decisions were overruled.
2. Applying the correct standard to the facts of this case, the Board concluded that
the agency failed to meet its burden of proof.
► Appellant: Stephan A. Myles
Agency: Social Security Administration
Decision Number: 2008 MSPB 74
Docket Number: PH-0752-07-0154-I-1
Issuance Date: March 31, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
Constitutional Issues/Due Process
The agency petitioned for review of an initial decision that reversed the agency’s
action terminating the appellant’s employment. Because the two Board members could
not agree on the disposition of the agency’s PFR, the initial decision became the
Board’s final decision. The appellant was appointed to this position on September 22,
2003, under the Federal Career Intern Program (FCIP). On September 22, 2005, the
agency gave him a letter stating that his appointment would expire that date because the
agency had determined that his continued employment was not in its best interest. The
AJ found that, because the agency did not terminate the appellant’s appointment before
he completed his 2 years of service, he was an “employee” within the meaning of
5 U.S.C. § 7511(a)(C).
Chairman McPhie issued a separate decision explaining why he believed the initial
decision was incorrect. The FCIP was established by Executive Order 13,162, 65 Fed.
Reg. 43,211 (2000). FCIP appointments are to positions in Schedule B of the excepted
service and are not to exceed 2 years, unless extended by the Federal department or
agency, with the concurrence of OPM, for up to 1 additional year. The Executive Order
states that “service as a Career Intern confers no rights to further Federal employment
in either the competitive or excepted service upon the expiration of the internship
period.” Regulations promulgated by OPM are in accord. 5 C.F.R. § 213.3202(o)(6)
(7). Because the agency took no action to convert the appellant’s employment or to
extend it, it expired by operation of law after 2 years, and his termination was not
appealable to the Board.
7
► Appellant: Christine E. Speck
Agency: Department of State
Decision Number: 2008 MSPB 75
Docket Number: DC-0842-08-0005-I-1
Issuance Date: March 31, 2008
Appeal Type: FERS - Regular Retirement Benefits
Retirement
- Service Credit
The appellant petitioned for review of an initial decision that affirmed the agency’s
denial of her application to make a deposit for service credit under FERS. Between
June 1, 1989, and June 4, 1997, the appellant was employed in the Foreign Service
under a series of temporary appointments. These appointments were not covered by
FERS; indeed, it is undisputed that she has never been enrolled in FERS. The appellant
applied to obtain service credit based on her temporary appointments pursuant to
section 321 of the Foreign Relations Authorization Act (FRAA), Pub. L. No. 107-228,
116 Stat. 1350, 1380-83 (2002). In ruling that the appellant was not entitled to make a
deposit under section 321, the AJ relied on 5 C.F.R. § 842.305(j), which provides that
an individual is not entitled to participate in the program unless she is a retiree or
“current or former employee,” and “employee” is defined in 5 U.S.C. § 8401(11) as an
individual who is subject to FERS retirement coverage.
Holding: After the issuance of the initial decision, the Board issued Flannery v.
Department of State, 2007 MSPB 298, 107 M.S.P.R. 441, which held that section 321
of the FRAA reflects the intent of Congress to permit qualified individuals to
obtain FERS credit regardless of whether they have had FERS-covered service.
The Board ordered the agency to approve the deposit if the appellant still wishes to
make it.
► Appellant: Jaime Nazario
Agency: Department of Justice
Decision Number: 2008 MSPB 76
Docket Number: DC-0752-08-0002-I-1
Issuance Date: March 31, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Board Procedures/Authorities
- Withdrawal of Appeal
The appellant petitioned for review of an initial decision that dismissed his appeal
as withdrawn. His appeal challenged his indefinite suspension pending a final decision
concerning the revocation of his security clearance.
Holding: The Board granted the appellant’s PFR, vacated the initial decision,
reinstated the appeal, and remanded the appeal for adjudication:
8
1. An appellant’s withdrawal of an appeal is an act of finality and, in the absence
of unusual circumstances such as misinformation or new and material evidence, the
Board will not reinstate an appeal once it has been withdrawn.
2. In a declaration made under penalty of perjury, the appellant stated that he
withdrew the appeal because of misinformation by the AJ during an ex parte
communication, viz., that the AJ advised that the case would result in a certain loss
for the appellant, with his name being posted on the MSPB’s public website, which
was considered a derogatory issue and would make it harder for him to find
employment. Since this declaration is unrebutted, the Board found it appropriate
to remand the appeal to the regional office for additional supplementation of the
record and the issuance of an initial decision on the merits.
► Appellant: William D. DeLoach
Agency: Department of the Air Force
Decision Number: 2008 MSPB 78
Docket Number: AT-0752-07-0675-I-1
Issuance Date: April 3, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Settlement
- Validity
The appellant petitioned for review of an initial decision that sustained the
agency’s removal action. With his PFR, the appellant submitted a copy of the
settlement agreement that had been the subject of negotiations. The only mention of
this document or any settlement negotiations in the record is the AJ’s statement that the
appellant had “rejected the oral agreement that was reached on August 29, 2007.”
Holdings: The Board denied the appellant’s PFR, but reopened the case on its own
motion to consider whether a binding settlement agreement was reached during the
regional office proceeding. The case was remanded for further adjudication.
1. The submitted settlement and the AJ’s statement raise the question whether the
parties reached a binding oral settlement agreement. If so, and if the parties did
not require that the agreement be memorialized in writing, the appellant’s post
settlement dissatisfaction with the agreement would not be sufficient to set the
settlement aside.
2. The submitted settlement, which was signed by both the agency’s representative
and the appellant’s representative, also raises the issue whether the written
settlement agreement itself is a valid and binding settlement.
a. While a representative may not settle his client’s case without express
authority to do so, a representative of record is presumed to have this
authority. Here, the appellant’s designation of representative form signed
by the appellant states specifically that the representative had the authority
to settle the appeal on the appellant’s behalf.
9
b. The terms of the settlement agreement also indicate that the appellant’s
signature was not necessary for the agreement to be valid.
3. Despite the above, a remand is necessary to determine whether a valid settlement
was reached, whether written or oral. That neither party objected to the AJ’s
statement that the appellant rejected the agreement raises the possibility that the
parties did not intend any agreement to be effective until the appellant signed the
written agreement, or that the appellant indicated during negotiations that he
would not agree to the settlement before the representatives executed the
agreement.
4. It is appropriate for the Board to raise the matter of whether a binding
settlement was reached on its own motion. The written settlement agreement
required the appellant to withdraw his appeal. The withdrawal of an appeal
removes the appeal from the Board’s jurisdiction, and the issue of Board
jurisdiction may be raised at any time during a proceeding.
► Appellant: Phyllis Ann Cirella
Agency: Department of the Treasury
Decision Number: 2008 MSPB 79
Docket Number: PH-0752-07-0579-I-1
Issuance Date: April 3, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Arbitration/Collective Bargaining-Related Issues
The appellant filed two pleadings: a PFR of an initial decision that dismissed her
appeal of a removal action for lack of jurisdiction; and a request for review of an
arbitrator’s decision that sustained her removal. The appellant was a GS-9 Bankruptcy
Specialist with the Internal Revenue Service. The agency removed her, effective
May 26, 2005, based on a charge that she willfully threatened to audit a taxpayer for the
purpose of extracting personal gain or benefit in violation of section 1203(b)(10) of the
Restructuring and Reform Act (RRA) of 1998, 26 U.S.C. § 7804. On January 19, 2007,
an arbitrator issued a decision upholding the removal. In August 2007, the appellant
filed a Board appeal. In response to the AJ’s orders on jurisdiction and timeliness, the
appellant stated that she was asking for a de novo review of her removal as well as a
review of the arbitrator’s decision. The AJ found that, by filing the grievance, the
appellant had made a binding election that precluded a Board appeal. The AJ further
stated that any request for review of an arbitrator’s decision should be submitted to the
Board.
Holdings: The Board denied the appellant’s PFR, granted the request for review
of the arbitrator’s decision, and sustained the arbitration decision:
1. The appellant’s PFR does not provide a basis for Board review of the initial
decision.
2. The Board has jurisdiction over the appellant’s request for review of the
arbitrator’s decision because: (1) The Board has jurisdiction over the subject
10
matter of the grievance (a removal); (2) she has alleged that the action at issue
constitutes discrimination under 5 U.S.C. § 2302(b)(1) (retaliation for filing
previous or current EEO complaints); and (3) the arbitrator has issued a final
decision.
3. The appellant has not shown that the arbitrator erred as a matter of law in
sustaining the charge, and a nexus exists between the conduct and the efficiency of
the service.
4. The appellant failed to show that the agency discriminated against her.
5. The appellant has not shown that the arbitrator erred as a matter of law in
determining the penalty.
► Appellant: Mai C. Alford
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 70
Docket Number: DC-844E-07-0920-I-1
Issuance Date: March 28, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed her appeal
as untimely filed. In 2003, OPM issued a reconsideration decision denying the
appellant’s application for disability retirement. The appellant appealed that decision
to the MSPB more than 3 years after the deadline for timely filing. The AJ issued an
order directing the appellant to file evidence and argument concerning the untimeliness
of the appeal, but she did not respond.
Holding: Because the appellant indicated in her PFR that the delay in filing
resulted from illness, the Clerk of the Board provided the notice outlined in Lacy v.
Department of the Navy, 78 M.S.P.R. 434, 438 (1998). After considering the
appellant’s response, the Board affirmed the initial decision as modified, still
dismissing the appeal as untimely filed without good cause shown.
► Appellant: Abdel A. Innocent
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 71
Docket Number: NY-0731-07-0274-I-1
Issuance Date: March 28, 2008
Appeal Type: Suitability
Timeliness – PFR
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed.
Holdings: The Board dismissed the appellant’s PFR as untimely filed (by 23 days)
without good cause shown.
11
► Appellant: James N. Brockman
Agency: Department of Defense
Decision Number: 2008 MSPB 80
Docket Number: SF-0752-98-0473-I-1
Issuance Date: April 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness - PFR
The appellant petitioned for review of an initial decision that affirmed his removal
from Federal service. The initial decision was issued on September 8, 1998.
Holding: The Board dismissed the appellant’s PFR as untimely without good cause
shown.
► Appellant: Richard Erickson
Agency: United States Postal Service
Decision Number: 2008 MSPB 81
Docket Number: AT-3443-07-0016-I-2
Issuance Date: April 4, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied him relief
under USERRA. The agency filed a cross-PFR. The appellant was removed from his
position as a Distribution Clerk in April 2000, based on a charge of being absent from
his civilian position on military leave for more than 5 years, with no intention to return
to his civilian position. He filed this USERRA appeal in February 2007. The AJ found
that the agency violated USERRA by removing the appellant from his position, but
denied the appellant any relief based on a determination that the appellant subsequently
waived his reemployment rights under USERRA by abandoning his civilian
employment in favor of a military career.
Holdings: The Board denied the appellant’s PFR, granted the agency’s cross-PFR,
and affirmed the initial decision as modified:
1. The appellant failed to establish his discrimination complaint under 38 U.S.C.
§ 4311(c)(1).
a. An agency violates USERRA if an employee’s military service is a
motivating factor in the agency’s action. An appellant bears the initial
burden of showing that his military service was a substantial or motivating
factor in the agency’s adverse action; the agency then has the opportunity
to produce evidence that it would have taken the adverse action for a valid
reason anyway.
b. The appellant failed to carry his initial burden. The agency’s removal
notice makes clear that the real reason for the removal was the appellant’s
continued absence, regardless of its cause. Even if the appellant had met
12
his initial burden, the agency showed that it had a valid reason to take the
adverse action. At the time of his removal, the appellant was serving his
5th consecutive voluntary re-enlistment. When an agency official talked to
him by telephone about his intentions in early 2000, the appellant said he
would be on full-time active duty until at least the end of 2000, and said
that he did not like working for the agency and liked working for the
military better. The Board has long held that a prolonged absence with no
foreseeable end constitutes just cause for removal.
2. The appellant failed to establish his reemployment claim.
a. An employee whose absence from his civilian position is necessitated by
military service is entitled to reemployment rights and benefits under
USERRA if: (1) The employee or the military provided the employer with
advance notice; (2) the cumulative absence does not exceed 5 years; and
(3) the employee requests reemployment in the prescribed manner and
timeframe, in this case no later than 90 days after the completion of his
military service.
b. There is no evidence that the appellant submitted an application for
reemployment within 90 days after the completion of his military service on
December 31, 2005. Indeed, there is no evidence that he has ever submitted
a reemployment application. Even if the appellant were to request
reemployment, he is no longer entitled to reemployment rights because his
cumulative absence from his civilian position has far exceeded the 5-year
limit of 38 U.S.C. § 4312(a)(2).
► Appellant: Logan Johnson
Agency: United States Postal Service
Decision Number: 2008 MSPB 83
Docket Number: CH-0752-06-0177-B-1
Issuance Date: April 7, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
- Arbitration/CBA-Related issues
The agency petitioned for review of a remand initial decision that reversed the
appellant’s removal. The agency proposed the appellant’s removal in 1998 for medical
unfitness. The appellant’s union filed a grievance on his behalf and requested
arbitration. On June 14, 1999, the parties entered into a pre-arbitration settlement
agreement, which provided that the appellant would be allowed 10 days to “clear
through the medical unit” and be found fit for full duty without restrictions. If he did
not meet this requirement, the requirement provided that “the grievance will be
considered closed.” The agency subsequently removed the appellant, effective
October 24, 2000. The appellant filed a Board appeal almost 6 years later, which was
dismissed by the AJ as untimely filed. The Board vacated and remanded on the ground
13
that the agency had not provided the appellant with notice of appeal rights.
Johnson v.
U.S. Postal Service, 2007 MSPB 135, 105 M.S.P.R. 654.
On remand, the AJ acknowledged a presumption that Board appeal rights are
waived when the other procedural avenue is a grievance, and settlement of that
grievance does not specifically reserve the right to file a Board appeal, citing Hanna v.
U.S. Postal Service, 101 M.S.P.R. 461 (2006). She found, however, that the appellant
overcame this presumption because the agency did not remove him until 2000, and it
removed him for reasons not set forth in the original proposal, i.e., “medical unfitness,”
but instead based on a new charge of being “not fit for duty.” The AJ further found that
the removal action must be reversed because the agency denied the appellant minimum
due process in effecting his removal. Finally, she rejected as unproven the appellant’s
affirmative defense of disability discrimination.
Holdings: The Board granted the agency’s PFR, vacated the remand initial
decision, and dismissed the appeal for lack of jurisdiction:
1. Under Hanna, the settlement agreement resolving the appellant’s grievance
divested the Board of jurisdiction over a removal appeal if it provided for the
appellant’s removal if he was not cleared by the medical unit and found fit for
duty, and if the appellant was removed based on the charge that was the subject of
the settlement agreement.
2. The Board rejected the agency’s argument that the settlement agreement
unambiguously provided that the appellant would be removed if he did not meet
the specified condition. The settlement agreement does not refer to the appellant’s
“removal.”
3. Because the settlement agreement was ambiguous, it was appropriate to look at
parol (extrinsic) evidence to determine whether the settlement agreement should be
construed to provide for the appellant’s removal if he did not meet the conditions
set forth in the agreement, and whether the appellant was removed based on the
charge that was the subject of the settlement agreement. After considering the
surrounding circumstances, the Board resolved both of these questions in the
affirmative. The routing slip in 2000 requesting a PS Form 50 Notice of Removal
identified the removal infraction as “attendance/awol,” and cited the authority for
the action as the “notice of proposed removed – dated October 20, 1998 (not fit for
duty).” Under “remarks,” it stated that “per pre-arbitration settlement dated June
14, 1999, if not found fit-for-duty as a mailhandler, grievance is considered
closed.” | 32,193 | |
Case Report - May 2, 2008 | 05-02-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_2_2008_330348.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_2_2008_330348.pdf | CASE REPORT DATE: May 2, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Larry F. Fisher
Agency: Environmental Protection Agency
Decision Number: 2008 MSPB 51
Docket Number: DC-1221-07-0640-W-1
Issuance Date: March 6, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Protected Disclosure
- Contributing Factor
- Clear and Convincing Evidence
The appellant, a GM-14 Accountant, petitioned for review of an initial decision
that dismissed his IRA appeal for lack of jurisdiction. He alleged that a 4-day
suspension without pay was taken in reprisal for various disclosures that he alleged
evidenced his reasonable belief that the top managers in his agency, as well as those in
other agencies, had engaged in a gross waste of funds, abuses of authority, and
violations of laws, rules, or regulations. Based on the written record, the administrative
judge (AJ) dismissed the appeal on the basis that the appellant failed to make a non
frivolous allegation that he made any protected disclosures.
Holdings: The Board denied the appellant’s petition for review (PFR), but
reopened the appeal on its own motion, finding that the appellant established
jurisdiction, but denied his request for corrective action on the merits:
1. The Board concluded that many of the appellant’s alleged disclosures—
concerning expenditures and hiring decisions—were not disclosures of gross
mismanagement or a gross waste of funds. They amounted to nothing more than a
questioning of management decisions and expenditures that are merely debatable.
2. The appellant’s alleged disclosures concerning the agency’s purported knowing
and willful violations of various accountability laws over a period of at least 8
2
years, including the intentional deception of Congress during that time, are
sufficient to satisfy the non-frivolous standard for disclosing violations of law,
rules, or regulations. The appellant also made a non-frivolous allegation that these
disclosures were a contributing factor in his 4-day suspension under the
knowledge/timing test established by Congress in 5 U.S.C. § 1221(e)(1)(A)-(B).
Since it was undisputed that the appellant exhausted his administrative remedies
before OSC, he established Board jurisdiction.
3. On the merits, the Board did not determine whether the appellant established by
preponderant evidence that he made a protected disclosure, or that such
whistleblowing activity was a contributing factor in the personnel action. It
instead proceeded to the issue of whether the agency showed by clear and
convincing evidence that it would have taken the same action absent the purported
whistleblowing activity. Given the strength of the evidence in support of the
appellant’s 4-day suspension, the lack of evidence of a motive to retaliate, and the
absence of any similarly situated non-whistleblowers, the Board concluded that the
agency met its burden.
► Appellant: Janet R. Nichol
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 52
Docket Number: AT-0842-06-0480-R-1
AT-0842-06-0480-N-1
Issuance Date: March 6, 2008
Appeal Type: FERS - Regular Retirement Benefits
Retirement
- Service Credit
Holding: In a lengthy opinion, the Board denied the request for reconsideration
filed by the Director of OPM to its earlier decision in this matter, 105 M.S.P.R. 201
(2007), which held that the appellant’s annuity should be calculated using a single
average salary amount for all her years of creditable service, prorated to account
for her part-time service performed after April 6, 1985. The Board reaffirmed that
decision as modified.
► Appellant: Walter Youngblood, Jr.
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 53
Docket Number: AT-831E-07-0804-I-1
Issuance Date: March 6, 2008
Appeal Type: CSRA - Employee Filed Disability Retirement
Retirement
- Annuities
- Disability Retirement
3
The appellant petitioned for review of an initial decision that affirmed an OPM
reconsideration decision that dismissed his application for disability retirement benefits
as untimely filed.
Holdings:
1. The Board affirmed the initial decision as the untimeliness of the appellant’s
request for reconsideration of his application for disability retirement. The
application was filed 15 years following his separation from federal service, with
no showing that he was mentally incompetent at the time of separation or within
one year of separation.
2. The appellant’s primary concern on PFR was his contention that he should have
been eligible for regular retirement benefits. Although this matter was not
addressed in OPM’s reconsideration decision, it was addressed in a November 17,
2005 letter from OPM to the appellant. Because it appears that OPM does not
intend to issue any further decision on this matter, the Board found it appropriate
to address it. The Board affirmed OPM’s determination that the appellant was not
eligible for retirement benefits because he requested and received a refund of his
retirement deductions in 1992, and the law does not allow him to make a redeposit
of those contributions for the purpose of being allowed credit for his prior service.
► Appellant: Linda L. Allen
Agency: Department of Defense
Decision Number: 2008 MSPB 54
Docket Number: DC-0752-06-0761-X-1
Issuance Date: March 6, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
- Dismissal on Proof
This case was before the Board on the AJ’s Recommendation, finding the agency
in noncompliance with a final Board decision in which the appeal was resolved by a
settlement agreement that was entered into the record. The AJ found that the agency
had in two instances failed to remove from its records all references to matters required
to be removed per the settlement agreement.
Holding: The agency has now deleted the improper materials from its records.
Because the appellant was given an opportunity to respond, but has not done so,
the Board assumes that she is satisfied with the agency’s compliance. Accordingly,
the Board dismissed the appellant’s petition for enforcement as moot.
4
► Appellant: Sylvester Grandberry
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 55
Docket Number: DE-3443-07-0165-I-1
DE-3443-06-0300-R-1
Issuance Date: March 7, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The agency petitioned for review of an initial decision that found that it had
violated the appellant’s rights as a preference eligible under VEOA. While employed
as an immigration information officer in Lincoln, Nebraska, the appellant was called to
active military duty with the Army National Guard, where he served from December
2003 to July 6, 2005. He returned to civilian duty in Lincoln in August. In April 2005,
during the appellant’s absence on military duty, the agency issued vacancy
announcement FS236771 for adjudication officer positions, including in Lincoln,
Nebraska. The appellant was not informed of this announcement, however, and did not
become aware of it until well after he had returned to civilian duty. The appellant filed
an application with an agency human resources office on July 18, 2005 in which he
expressed an interest in adjudication officer positions in Lincoln. He also sent a
mailgram to the agency in December 2005 inquiring about the status of his application.
He sent another mailgram on January 9, 2006, in which he referred to the April 2005
announcement and requested an opportunity to file an application under that
announcement. In August through December 2005, the agency issued certificates
listing persons eligible for adjudication officer positions in Lincoln. The appellant’s
name was not included on any of these certificates, and the agency has acknowledged
that he was not considered for any positions filled under announcement FS236771.
After filing a complaint with the Department of Labor, the appellant filed an
appeal with the MSPB, alleging that the agency had violated his rights as a preference
eligible and returning service member by excluding him from consideration for
vacancies under the April 2005 announcement. The AJ construed the appeal as raising
claims under both VEOA and USERRA. In her decision, the AJ found that the agency
violated the appellant’s preference-eligible rights under VEOA. Specifically, she found
that the agency violated 5 C.F.R. § 332.312 by failing to permit the appellant to file a
late application for an adjudication officer position. The AJ found, however, that the
agency had not violated the appellant’s rights under USERRA.
Holdings: A majority of the Board, Chairman McPhie dissenting, reversed the
initial decision regarding the appellant’s rights under VEOA, vacated the initial
decision regarding the appellant’s rights under USERRA, and remanded the case
to the regional office for further adjudication:
1. The AJ erred in finding that the agency violated VEOA. The law (5 U.S.C.
§ 3330c) gives the Board the authority to order relief when it determines that an
agency has violated a right described in 5 U.S.C. § 3330a, i.e., rights granted to a
preference eligible “under any statute or regulation relating to veterans’
5
preference.” While 5 C.F.R. § 332.312 grants rights to persons based on their
military service, it makes no distinction between persons with preference eligibility
and those without it. It is not, therefore, a regulation relating to veterans’
preference.
2. The Board found it necessary to remand the appellant’s USERRA claim for
further adjudication because the AJ erred in addressing it solely as a possible
violation of the statute’s anti-discrimination provision, 38 U.S.C. § 4311, without
considering a possible violation of § 4313, which provides that an employee who
has been absent from his civilian employment to perform military service generally
is entitled to be employed, on his return, in the position in which he would have
been employed had his civilian service not be interrupted by his military service.
Although this provision does not expressly require that an agency consider the
absent employee for promotions and other assignment opportunities that become
available during his absence, the Board found that it was appropriate to so
construe this provision.
3. 5 C.F.R. § 332.312 is relevant to the appellant’s rights under § 4313, as it
provides that individuals who could not file an application during the filing period
because of military service are entitled to file applications for open competitive
examinations after the closing date for receipt of applications. OPM’s Delegated
Examining Operations Handbook has expanded the scope of 5 C.F.R. § 332.312 to
include positions filled by agencies under their delegated examining authority.
4. Taken together, 38 U.S.C. § 4313, 5 C.F.R. § 332.312, and OPM’s guidance
entitle employees to be considered for positions that are advertised in the
employees’ absence for military duty, even when they are not actually filled until
after the employees return to civilian employment. The appellant’s reemployment
claim under USERRA must be remanded for further adjudication.
In his separate opinion, Chairman McPhie concurred insofar as the majority found
no VEOA violation, but dissented from the USERRA analysis. He stated that the
UERRA claim was not properly before the Board because the appellant had not
petitioned for review of this issue. He also disagreed with the substance of the
majority’s USERRA analysis. In his opinion, the majority extended § 4313 beyond
protecting civilians from losing their own positions while on military duty, to an
affirmative duty to consider the absent employee for competitive promotions in and
other reassignment opportunities to other positions which become available during the
employee’s absence. He finds such an interpretation not only incorrect as a matter of
law, but that it would place an unworkable burden on federal employers.
6
► Appellant: Ettie R. Lawrence
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 56
Docket Number: DA-0831-07-0429-I-1
Issuance Date: March 12, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Former Spouse Annuity
The appellant petitioned for review of an initial decision that affirmed an OPM
final decision that determined that she is not entitled to a continuation of former spouse
annuity benefits based on the service of her deceased former spouse. At issue in a
previous appeal was the appellant’s entitlement to a former spouse annuity. While the
Board’s final decision was on appeal to the U.S. Court of Appeals for the Federal
Circuit, the parties entered into a settlement agreement that was accepted by the court.
The agreement provided, inter alia, that the appellant would receive a former spouse
annuity retroactive to June 11, 1998, and which would terminate on May 31, 2003. In
accordance with the agreement, OPM retroactively awarded the appellant former spouse
annuity benefits for the stated period. The appellant then contested the termination of
the annuity. The AJ affirmed OPM’s final decision denying a continued annuity,
finding that the terms of the settlement agreement precluded the appellant from seeking
a continuation of former spouse annuity benefits.
Holding: Neither the AJ nor the parties addressed a provision of the settlement
agreement in which the appellant warranted and represented that “no other action
or suit with respect to the claims advanced in this appeal is pending or will be filed
in or submitted to any court, administrative body, or legislative body....” A
waiver of appeal rights in a settlement agreement is enforceable and not against
public policy if the terms of the waiver are comprehensive, freely made, and fair,
and such a waiver divests the Board of jurisdiction over an appeal. Accordingly,
the Board vacated the initial decision to dismiss the appeal for lack of jurisdiction.
► Appellant: Samuel S. Lee
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 57
Docket Number: AT-0842-07-0967-I-1
Issuance Date: March 12, 2008
Appeal Type: FERS - Regular Retirement Benefits
Retirement
- Service Credit
OPM petitioned for review of an initial decision that reversed its reconsideration
decision and ordered it to change the appellant’s retirement records to give him service
credit for the period from September 1977 through May 1999. The appellant, who has
been employed by the District of Columbia Government and the Federal Government in
various civilian capacity since the 1970s, retired in 2006. At issue was whether he
7
should receive service credit for the period from September 10, 1977, through May 2,
1979. OPM advised the appellant that it was unable establish his entitlement to credit
for that position. The appellant maintained that his employment with the District of
Columbia Government was involuntarily terminated on September 9, 1977, that he had
challenged the termination, and that the matter had been resolved through an agreement
providing for back pay for the period in question. In its final decision, OPM affirmed
its determination that it could not substantiate the appellant’s entitlement to service
credit for this period.
On appeal to the Board, the AJ reversed OPM’s reconsideration decision, reasoning
that: The appellant had had retirement deductions taken from his pay up to the time of
his separation on September 9, 1977, and was therefore a federal employee through that
date; he had received back pay for the same position for the period in question; and he
was therefore entitled to service credit for the disputed period.
Holdings: The Board affirmed OPM’s reconsideration decision as modified by the
Board’s Opinion and Order, denying the appellant’s request for service credit.
The basic record for action on all CSRS annuity claims is the standard form 2806,
or Individual Retirement Record (IRR). When determining whether OPM
properly calculated a retirement annuity, the Board’s review is limited to
determining whether OPM properly relied on the IRR. Clearly, OPM did so here.
If the appellant wishes to pursue his claim for service credit, he should seek
amendment of this IRR by the District of Columbia Government. If he obtains
such an amendment, he may request a new determination of his annuity
entitlement from OPM.
► Appellant: Joyce E. Kwartler
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 58
Docket Number: NY-0752-07-0048-P-1
NY-0752-07-0048-I-1
NY-0752-07-0048-C-1
NY-0752-07-0048-A-1
Issuance Date: March 13, 2008
The appellant petitioned for review of an initial decision denying her motion for
compensatory damages. The original appeal (I-1) concerned the appellant’s removal
from a GS-11, step 9 position effective September 29, 2006. That appeal was resolved
pursuant to a settlement agreement, accepted into the record for enforcement, which
provided that the agency would retroactively promote the appellant to a Grade 12, step
5 position, and the official personnel records would reflect that the appellant voluntarily
retired from this position on September 29, 2006. Since that time, the appellant has
filed a petition for enforcement (C-1), a motion for attorney fees (A-1), and a motion
for compensatory damages (P-1). The AJ issued initial decisions in each of these
matters, finding against the appellant on the merits.
Holding: In addition to denying the appellant’s PFR in the compensatory damages
appeal, the Board reopened the other appeals on its own motion and affirmed each
8
of the initial decisions involved, finding the settlement agreement valid and
rejecting the appellant’s contentions of error as without merit.
► Appellant: Ivan Petric
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 59
Docket Number: DC-0752-07-0642-I-1
Issuance Date: March 14, 2008
Action Type: Constructive Adverse Action
Timeliness – PFA
Jurisdiction
- Alleged Involuntary Retirement
The appellant petitioned for review of an initial decision that dismissed his appeal
as untimely filed. The appellant asserted that his disability retirement was involuntary
and that he was constructively removed. He claimed that he retired in order to receive
workers’ compensation benefits, and that OPM officials misled him about this by telling
him that he would go onto the Office of Workers’ Compensation Programs (OWCP)
rolls, and off disability retirement. The agency moved to dismiss the appeal as
untimely filed and for lack of jurisdiction. After considering the parties’ submissions
on both issues, the AJ dismissed the appeal as untimely filed, without ruling on the
jurisdictional issue.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion, vacating the initial decision and dismissing the appeal for lack of
jurisdiction:
1. In an appropriate case, an AJ may assume that an appellant was subjected to an
appealable action and dismiss the appeal as untimely filed. Such an approach is
inappropriate, however, if the jurisdictional and timeliness issues are “inextricably
intertwined,” i.e., if resolution of the timeliness issue depends on whether the
appellant was subjected to an appealable action. That is generally the case in a
constructive removal appeal based on an alleged involuntary retirement, as the
agency will not have provided the appellant with notice of his right to appeal. It
was therefore error for the AJ to dismiss the appeal on timeliness grounds without
first addressing jurisdiction.
2. The appellant failed to make a non-frivolous allegation that his disability
retirement was involuntary:
a. A retirement is involuntary if an agency has made misleading statements
upon which the employee reasonably relied to his detriment. The appellant
failed to do this because he did not make his assertions in the form of an
affidavit, sworn statement, or declaration made under penalty of perjury,
even though the AJ notified him of this requirement.
b. Moreover, the appellant’s unsworn statements failed to make a non
frivolous allegation that he reasonably relied on agency misinformation to
his detriment. The record shows that the appellant should have
9
understood, prior to his retirement becoming effective, that he had not
been approved to receive OWCP benefits.
c. Even though the appellant argued that his retirement was involuntary based
on agency misinformation, an argument can be made that his claim should
be analyzed under the specific standard applied to alleged involuntary
disability retirements—that there was an accommodation available on the
date of his separation that would have allowed him to continue working,
and that the agency did not provide him with that accommodation. The
appellant’s submissions show that he did not allege that he could have
continued to work with accommodations.
► Appellant: Anthony J. Haasz, Sr.
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 60
Docket Number: PH-3443-07-0469-I-1
Issuance Date: March 14, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his VEOA
appeal. The appellant, a 5-point preference eligible who is employed as Maintenance
Mechanic Supervisor, applied for a merit promotion under announcement 07-45 for the
position of Engineering Technician. Of the 4 applicants, only the appellant was found
qualified. Although he was referred to the selecting official for consideration and
interviewed, his was not selected. After announcement 07-45 had closed, the agency
posted a new vacancy announcement (V117-LY-7) for the Engineering Technician
position, but the appellant did not apply for this position. The appellant asserted that he
was denied the right to apply for the second vacancy because the agency failed to list it
with the state employment service office, which the appellant alleged was in violation
of an unspecified law. After considering the parties submissions on both the merits of
the appeal and the issue of Board jurisdiction, the AJ dismissed the appeal based on the
parties’ written submissions.
Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own
motion, reversed the initial decision, and denied the appellant’s claim on the
merits:
1. The precise grounds for the dismissal were unclear; while the initial decision
concludes by stating that the appeal was dismissed “for failure to state a claim,”
the first paragraph indicates that a hearing was not held because the appellant
failed to allege a non-frivolous basis for the Board having jurisdiction over the
matter.
2. The appellant established jurisdiction over his appeal by: (1) showing that he
exhausted his remedy with the Department of Labor; and (2) making non-frivolous
allegations that he is a preference eligible, the action complained of occurred on or
after October 30, 1998, and that the agency violated his rights under a statute or
regulation relating to veterans’ preference. Regarding this last element, an
10
appellant’s allegation, in general terms, that his veterans’ preference rights were
violated is sufficient to meet the non-frivolous allegation requirement.
3. Dismissal for failure to state a claim is appropriate only if, taking the appellant’s
allegations as true and drawing all reasonable inferences in his favor, he cannot
prevail as a matter of law. Because the AJ relied on documentary evidence, it was
inappropriate to dismiss the appeal for failure to state a claim upon which relief
can be grated.
4. The Board has the authority to decide a VEOA appeal on the merits, without a
hearing, when there is no genuine dispute of material fact and one party must
prevail as a matter of law.
5. With regard to the appellant’s non-selection under the first vacancy
announcement, the AJ correctly observed that veterans’ preference does not apply
to in-service placement actions such as promotions.
6. With regard to the second vacancy announcement, the appellant is not entitled to
relief, even if the agency failed to provide a required notice, as none of the
pertinent statutes and regulations (5 U.S.C. §§ 3327, 3300, 5 C.F.R. §§ 330.102,
.107) relates to veterans’ preference.
► Appellant: Robert O. White, Sr.
Agency: Government Printing Office
Decision Number: 2008 MSPB 61
Docket Number: DC-0752-07-0729-I-1
Issuance Date: March 14, 2008
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Pay
Board Procedures/Authorities
- Discovery
The appellant petitioned for review of an initial decision that affirmed his 14-day
suspension and demotion. The agency demoted the appellant from Lead Police Officer
PQ-06 to Police Officer, PQ-05, on a charge of failing to follow Post Orders by
permitting two women to enter and remain in the lobby of a secure agency building
without verifying that they had the required identity badges and without examining the
bag carried by one of them. After a hearing, the AJ found that the agency proved its
charge, that the appellant had failed to prove his affirmative defenses of harmful error,
race discrimination, and retaliation for union activity, and that the agency’s penalty was
reasonable and promoted the efficiency of the service.
Holdings: The Board granted the appellant’s PFR, affirmed the initial decision
with respect to the charge and with respect to the appellant’s affirmative defenses
of harmful error and reprisal for union activity, but vacated the initial decision
with respect to the appellant’s affirmative defense of race discrimination and the
penalty, and remanded the appeal for further adjudication:
1. The Board concurred with the AJ that the agency proved its charge by
preponderant evidence, and noted that the appellant did not raise any objection to
11
the AJ’s findings regarding his affirmative defenses of harmful error and reprisal
for union activity.
2. The AJ abused her discretion by denying the appellant’s motion to compel
discovery, which prejudiced the appellant’s ability to present his affirmative
defense of race discrimination:
a. The Board will not reverse an AJ’s rulings on discovery matters absent an
abuse of discretion. Although the appellant’s motion to compel discovery
was filed after the date set by the AJ, it was filed within the time limit set
by the Board’s regulation, 5 C.F.R. § 1201.73(d)(4), i.e., within 10 days of
either the date of service of the objections of the responding party or the
date of the expiration of the time to respond. As the agency’s response to
the appellant’s discovery request was not served until the last day it was
due, which was the deadline set by the AJ for the completion of discovery,
the AJ effectively denied the appellant any opportunity to contest any of
the agency’s objections, file a motion to compel, or follow up with requests
for further discoverable material based upon the agency’s initial response.
b. The discovery request in question—for disciplinary records of other agency
Police Officers to determine whether other officers of a different race
received lesser discipline for similar offenses—was reasonably calculated to
lead to the discovery of admissible evidence, and the AJ’s ruling therefore
prejudiced the appellant’s ability to present his affirmative defense of race
discrimination.
► Appellant: Sylvia M. Reilly
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 62
Docket Number: DE-831E-07-0359-I-1
Issuance Date: March 14, 2008
Appeal Type: CSRA - Employee Filed Disability Retirement
Retirement
- Disability Retirement
OPM petitioned for review of an initial decision that reversed its reconsideration
decision denying the appellant’s application for a disability retirement annuity. The
appellant resigned from her position as a letter carrier with the U.S. Postal Service
effective March 15, 2006. She subsequently applied for disability retirement based on
chronic asthma. The AJ found that she became disabled, while still employed in her
CSRS-covered position, as a result of her chronic asthma and the dust and other
impurities she would come into contact with, and that her asthma resulted in
deficiencies in her conduct, performance, and attendance. He further found that the
appellant’s asthma could not be effectively controlled and that the agency was unable to
accommodate her.
Holdings: The Board granted the PFR, reversed the initial decision, and sustained
OPM’s reconsideration decision:
12
1. In order to show entitlement to a disability annuity under the CSRS, an
appellant must have become disabled while employed in a position subject to the
CSRS. It is error for an AJ to cite and rely on medical evidence dated after the
applicant was separated from employment, without making a finding of whether
the appellant was disabled at the time of her separation. Here, all of the evidence
cited by the AJ post-dates the appellant’s resignation, and does not address her
condition at the time of her resignation.
2. The record does contain medical evidence from the period before the appellant’s
resignation, but this evidence does not indicate that the appellant’s asthma was of
disabling severity.
3. It is well settled that a disability annuitant claimant must establish the extent to
which her disability can or cannot be controlled, and the appellant did not submit
any evidence on this issue.
4. Although it appears that the appellant may have had an attendance deficiency,
the medical and other evidence of record fails to show persuasively that this
deficiency resulted from her asthma.
► Appellant: Stephen R. Erkins
Agency: United States Postal Service
Decision Number: 2008 MSPB 63
Docket Number: CH-0752-07-0449-I-1
Issuance Date: March 14, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Discrimination
The appellant petitioned for review of an initial decision that affirmed the agency’s
removal action. The removal action was based on a single charge of improper conduct,
in which the agency alleged that the appellant requested and used sick leave for times
he was obligated to a appear as a party in court proceedings. Following a hearing, the
AJ found that the agency proved 7 of the 8 specifications, and that the removal penalty
was reasonable and would promote the efficiency of the service.
Holdings: The Board affirmed the initial decision insofar as it sustained the
agency’s charge of misconduct, vacated the decision as to the penalty, and
remanded the case for adjudication of the appellant’s affirmative defenses of
retaliation for protected EEO activity and discrimination:
1. The Board summarily affirmed the initial decision insofar as it sustained the
agency’s charge of misconduct, finding that the appellant’s allegations on PFR
were without merit.
2. Even if an agency proves its charges by a preponderance of the evidence, the
Board cannot sustain the agency’s action if the appellant shows that the decision
was based on any prohibited personnel practice (PPPs) described in 5 U.S.C.
§ 2302(b). The appellant asserted two PPPs in his appeal and in a prehearing
13
submission: discrimination; and retaliation for participating in protected EEO
activity. Neither issue was addressed in the initial decision.
3. An AJ must apprise an appellant of the applicable burdens of going forward
with the evidence and of proving a particular affirmative defense, as well as the
kind of evidence the appellant is required to produce to meet his burden. The AJ
never did this with respect to the discrimination claim, and only did so at the start
of the hearing with respect to the retaliation claim, but this was insufficient
because the appellant had no real opportunity to obtain the necessary evidence or
prepare relevant arguments prior to the start of the hearing.
► Appellant: Joseph V. Arrieta
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 64
Docket Number: DC-0752-07-0665-I-1
Issuance Date: March 17, 2008
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Timeliness - PFR
Miscellaneous Agency Actions
- Indefinite Suspensions
The appellant petitioned for review of an initial decision that dismissed his appeal
of an indefinite suspension as withdrawn. The appellant indefinitely suspended the
appellant from his position as a Deportation Officer pending the outcome of an
investigation by the agency’s Office of Inspector General (OIG). The agency stated
that the suspension would be terminated, and the appellant returned to a paid duty
status, upon the completion of the investigation, but added that the suspension would
continue through the notice period if an adverse action was proposed against him. The
appellant filed a Board appeal challenging his indefinite suspension, but later moved to
withdraw the appeal, stating that the OIG investigation had been completed. The AJ
dismissed the appeal as withdrawn on August 7, 2007. About 3½ months later, the
appellant sought to reopen his appeal, stating that he had not been returned to paid
status upon receiving the OIG final investigation. He provided the Board with a notice
of proposed removal dated October 29, 2007.
Holdings: The Board denied the appellant’s PFR as untimely filed without good
cause shown, but forwarded the pleading to the regional office for docketing and
processing as a separate appeal challenging the continuation of the appellant’s
indefinite suspension:
1. The appellant failed to establish good cause for the 2½ delay in filing his PFR.
2. The appellant’s submission could be considered as a separate appeal challenging
the continuation of his indefinite suspension.
In Rhodes v. Merit Systems Protection
Board, 487 F.3d 1377, 1381 (Fed. Cir. 2007), the Federal Circuit recently held that
the imposition of an indefinite suspension and the failure to terminate that
suspension after the condition subsequent has occurred are separately reviewable
agency actions.
14
► Appellant: Susan K. McDonnell
Agency: Department of Agriculture
Decision Number: 2008 MSPB 65
Docket Number: DE-1221-07-0427-W-1
Issuance Date: March 17, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protect Act
- Protected Disclosure
The appellant petitioned for review of an initial decision that dismissed her IRA
appeal for lack of jurisdiction. In her complaint to OSC, and in her subsequent appeal
to the Board, the appellant alleged that her supervisor took personnel actions against
her in retaliation for whistleblowing disclosures. Without holding a hearing, the AJ
dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a
non-frivolous allegation that she made a disclosure protected by 5 U.S.C. § 2302(b)(8).
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the case to the regional office for further adjudication:
1. The appellant’s disclosure that her supervisor canceled a vacancy announcement
that he had previously approved in order to laterally assign a different employee
who was unqualified for the position, as a favor to another management official,
was a protected disclosure under the WPA. The Board has held that disclosures
about hiring and selection improprieties, including giving preferential treatment to
friends, may constitute non-frivolous allegation of protected disclosures that
statutory provisions have been violated.
2. The appellant’s other 3 purported whistleblowing disclosures were not
protected.
3. The appellant made a non-frivolous allegation that her protected disclosure was
a contributing factor in a covered personnel action—her supervisor preventing her
from supervising her subordinate.
► Appellant: Orie E. Scriffiny
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 66
Docket Number: DE-0831-07-0307-I-1
Issuance Date: March 20, 2008
Action Type: Retirement/Benefit Matter
Defenses and Miscellaneous Claims
- Equitable Estoppel
OPM petitioned for review of an initial decision that review of an initial decision
that reversed its reconsideration decision denying as untimely the appellant’s request to
elect a maximum survivor annuity for her spouse. When she retired in 2004, the
appellant elected a partial survivor annuity for her spouse. In 2007, she requested that
this be changed to a maximum survivor annuity. OPM denied the request as untimely,
as it was not filed within 18 months of the appellant’s retirement, as required by law
15
and regulation. On appeal to the Board, the AJ reversed OPM’s determination, and
ordered OPM to grant the appellant’s request, on the basis that the appellant’s
employing agency had committed affirmative misconduct by providing misinformation
to the appellant concerning her survivor annuity election. Specifically, the AJ found
that the appellant expressed that she wanted to provide for the maximum possible
benefits and continuing health insurance for her husband, who is disabled, and the
human resources employee instructed her to select a partial survivor annuity rather than
a maximum survivor annuity.
Holdings: The Board granted the PFR, vacated the initial decision, and affirmed
OPM’s reconsideration decision:
1. The Board has recognized 3 bases for waiving a filing deadline prescribed by
statute or regulation: (1) the statute or regulation provides for a waiver; (2) an
agency’s affirmative misconduct may preclude enforcement of the deadline under
the doctrine of equitable estoppel; and (3) an agency’s failure to provide a notice of
rights and the applicable filing deadline may warrant a waiver. Neither the first or
third bases have any applicability here.
2. The Board need not reach OPM’s argument that the Supreme Court’s decision
in Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990),
precludes the application of equitable estoppel.
3. The facts of this case do not warrant the application of equitable estoppel. a.
Neither the Board nor the federal courts has established a clear test for when the
government has engaged in affirmative misconduct that would justify the
application of equitable estoppel. But certain principles have emerged, including
that the negligent provision of misinformation does not constitute affirmative
misconduct. The Board adopted that principle, and found it sufficient to resolve
this case. Although the record supports the conclusion that the human resources
employee provided misinformation on which the appellant relied to her detriment,
there is no evidence that the employee knew that the advice she gave was incorrect.
► Appellant: Kimberly K. Lopez
Agency: Department of the Navy
Decision Number: 2008 MSPB 67
Docket Number: SF-0752-07-0352-I-1
Issuance Date: March 20, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Both parties petitioned for review of an initial decision that sustained the agency’s
charge but mitigated the appellant’s removal to reinstatement to a specified position.
Holding: After considering the extremely complicated procedural history of this
employment controversy, the Board held that the only issue before it was the
reasonableness of the penalty, and found that removal was within the bounds of
reasonableness.
16
► Appellant: Elizabeth A. Sage
Agency: Department of the Army
Decision Number: 2008 MSPB 68
Docket Number: CH-3443-07-0588-I-1
Issuance Date: March 20, 2008
Jurisdiction
Miscellaneous Agency Actions
- Indefinite Suspensions
The appellant petitioned for review of an initial decision that dismissed her appeal
for lack of jurisdiction. The appellant is the Clinical Director of the substance abuse
program at the agency’s Ireland Army Community Hopital in Fort Knox, Kentucky.
The agency proposed to suspend the appellant for 45 days for disciplinary reasons, and
placed her clinical privileges in abeyance pending action by a credentials committee.
The agency thereafter set aside the proposed suspension, and subsequently dismissed
the privileging action, ordering the full restoration of the appellant’s clinical privileges
and the removal from her record of all adverse documentation. In her Board appeal, the
appellant alleged that she had been subjected to a constructive suspension. She alleged,
inter alia, that, she had been “locked out of her job for the past nine months (relegated
to licking stamps)”, and that her supervisor “verbally and mentally abused [her] by
yelling at her, belittling her, silencing her, and ostracizing her,” which placed her under
such extreme stress that she was forced to take a total of 158.50 hours of sick leave and
approximately 350 hours of annual leave.” Without holding a hearing, the AJ found
that “no appealable action has been shown to have occurred,” concluding that the
appellant had not been suspended because she had not been placed in a temporary status
without duties and pay, and because she had remained a paid employee of the agency at
all times pertinent to the appeal.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion, vacated the initial decision, and remanded the case for further
adjudication:
1. An employee who has been forced to use sick leave, annual leave, or leave
without pay for a period exceeding 14 days has been subjected to a constructive
suspension appealable to the Board under 5 U.S.C. §§ 7512(2) and 7513(d).
Ordinarily, the key question for jurisdictional purposes is whether the employee or
the agency initiated the absence. Proof of intolerable working conditions
compelling an employee to be absent may support a finding of a constructive
suspension in certain circumstances where the employee also shows that she put the
agency on notice of the objectionable working conditions and requested assistance
or remediation from the agency.
2. An appellant must receive explicit information on what is required to establish
an appealable jurisdictional issue. The appellant’s allegations and supporting
documentation were sufficient to require the AJ to issue a notice of the elements of
a constructive suspension claim as described above. Because the AJ did not do so,
a remand is necessary to afford the appellant an opportunity to submit evidence
17
and argument to show that the Board has jurisdiction over her appeal as a
constructive suspension. | 42,496 | |
Case Report - April 28, 2008 | 04-28-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_28_2008_329367.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_28_2008_329367.pdf | CASE REPORT DATE: April 28, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Jimmie R. Tryon, Sr.
Agency: United States Postal Service
Decision Number: 2008 MSPB 35
Docket Number: DA-0752-07-0331-I-1
Issuance Date: February 20, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
- Prior Record
The appellant filed a petition for review (PFR) of an initial decision that sustained
his removal from his City Letter Carrier position for unacceptable conduct. The agency
alleged that the appellant behaved inappropriately towards a customer, in that he
hugged her and kissed her on the check and made inappropriate comments, some of
which contained sexual innuendos. Following a hearing, the administrative judge (AJ)
found that the customer’s account was not credible, instead believing the appellant’s
testimony that he did not kiss the customer, and that she had initiated hugs with him on
some occasions. The AJ also believed the appellant’s testimony that he was friendly
with his customers and frequently gave them hugs and handshakes. The AJ
nevertheless sustained the charge of unacceptable conduct because the appellant
admitted hugging this customer and others, finding that hugging any customer is
inappropriate behavior for a mail carrier. In determining that the removal penalty was
within the bounds of reasonableness, the AJ relied on the fact that the agency had
proposed the appellant’s removal sometime in the past for similar misconduct.
Holding: Although the Board agreed with the AJ’s finding that the agency
supported its charge of unacceptable conduct by preponderant evidence, it found
that the removal penalty exceeded the bounds of reasonableness, and mitigated the
penalty to a 60-day suspension. First, the more serious allegations of misconduct—
kissing and inappropriate comments—were not sustained. Second, it was clear
2
error for the AJ and the deciding official to consider the appellant’s alleged prior
proposed removal for similar misconduct as a basis for finding the appellant
incapable of rehabilitation. A proposed action that was either withdrawn or never
finalized cannot be relied upon, as it does not constitute “prior discipline,” and it is
improper for an agency to enhance a penalty based on misconduct that was not
cited in the notice of proposed removal.
► Appellant: Christine M. Wonsock
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 36
Docket Number: AT-0831-07-0802-I-1
Issuance Date: February 20, 2008
Action Type: Retirement/Benefit Matter
Jurisdiction
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision, which dismissed as untimely filed the appellant’s request for
reconsideration of its initial decision denying her a waiver of the requirements for
enrolling in the Federal Employees Health Benefits Program (FEHBP) as a retiree.
OPM filed a cross-PFR asking the Board to dismiss the appeal for lack of jurisdiction.
While a federal employee in 1982, the appellant cancelled her enrollment in the FEHBP
with no right to reenroll. She retired on disability in 1988. She later sought to enroll in
the FEHBP as a retiree. OPM denied this request in an initial decision dated April 7,
2005, on the ground that she was not enrolled in FEHBP when she retired, she did not
meet the requirement for continuous coverage into retirement, and she was not eligible
for a waiver. The initial decision informed the appellant of her right to request
reconsideration within 30 days. The appellant sought reconsideration in letters to OPM
in December 2006 and March 2007. OPM denied her reconsideration request because it
was untimely filed and she failed to provide evidence or argument justifying an
extension of time for filing. On appeal to the Board, the AJ determined that the Board
had jurisdiction over the appeal under 5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110, and
affirmed OPM’s reconsideration decision because it was not unreasonable or an abuse
of discretion.
Holdings: The Board granted the agency cross-PFR, vacated the initial decision,
and dismissed the appeal and the appellant’s PFR for lack of jurisdiction:
1. The Board’s jurisdiction is limited to the matters over which it has been given
jurisdiction by law, rule, or regulation. The issue of jurisdiction is always before
the Board and may be raised by either party or by the Board itself at any time
during a Board proceeding.
2. The AJ’s reliance on 5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110 as the basis for
jurisdiction was in error. Section 8347(d) gives the Board jurisdiction over an
administrative order or action affecting the rights or interests of and individual
under 5 U.S.C. chapter 83, subchapter III. This appeal, concerning the appellant’s
post-retirement eligibility for health coverage, implicates 5 U.S.C. chapter 89 and
5 C.F.R. part 890.
3
3. Under section 8905(b) and 5 C.F.R. § 890.301(a)(1), the appellant was not
eligible to elect health coverage under FEHBP after she became an annuitant
unless OPM granted her a waiver. The statute gives OPM sole discretion to make
this waiver determination, and its determination is not reviewable by the Board.
► Appellant: Charles R. McCoy
Agency: United States Postal Service
Decision Number: 2008 MSPB 37
Docket Number: DA-0752-07-0263-I-1
Issuance Date: February 28, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
Discrimination
- Mixed Case Procedures
Jurisdiction
Arbitration/Collective Bargaining-Related Issues
- Election of Remedy
The appellant petitioned for review of an initial decision that dismissed his appeal
of a removal action as untimely filed. The appellant, a preference-eligible postal
employee, was removed from his Custodian position effective November 15, 2005. He
filed a timely MSPB appeal in December 2005 (Doc. No. DA-0752-06-0137-I-1). That
appeal was dismissed as withdrawn in February 2006 after the appellant’s
representative indicated that the appellant would be pursuing a grievance. The
appellant filed the present appeal in March 2007, asserting that the removal action was
based on discrimination. The AJ dismissed the second-filed appeal as untimely filed
without good cause shown.
Holdings: The Board granted the PFR, reversed the initial decision, and remanded
the appeal for adjudication on the merits:
1. The second-filed appeal was timely filed as a mixed-case appeal under 5 C.F.R.
§ 1201.154(b).
a. It is generally appropriate to consider a second petition for appeal as a new,
late-filed appeal and to determine whether good cause exists for the filing
delay under 5 C.F.R. § 1201.22(b). Under this regulation, the second-filed
appeal would be untimely filed.
b. Under 5 C.F.R. § 1201.154(b), if an appellant has filed a timely formal
complaint of discrimination with his agency, an appeal must be filed within
30 days after he receives the agency’s final decision on the discrimination
issue or, if the agency has not issued a final decision within 120 days, at any
time thereafter. Here, the record shows that the appellant filed a formal
discrimination complaint on October 10, 2006, and there is no indication
the agency has issued a final decision regarding that complaint.
Accordingly, the appeal is timely filed under 5 C.F.R. § 1201.154(b).
4
c. The Board noted that an agency may dismiss a discrimination complaint
that fails to comply with applicable time limits under 29 C.F.R.
§ 1614.107(a)(2), and that the Board defers to a final agency decision that a
complaint was untimely filed when that decision is not appealed to the
EEOC, and to a final EEOC decision finding a complaint untimely filed.
Here, however, there is no indication that the agency dismissed the
appellant’s complaint as untimely filed, and the Board noted that the
appellant alleged that he did not become aware of the underlying events
that caused him to believe the agency had discriminated against him until
June 2006, and he sought counseling in July 2006.
2. The election requirement set forth at 29 C.F.R. § 1614.302(b) does not bar the
appeal. When an appellant has been subjected to an action that is appealable to
the Board, and alleges that the action was effected because of prohibited
discrimination, he may initially filed a mixed-case complaint with his employing
agency, or a mixed-case appeal with the Board, but not both, and whichever is filed
first is deemed to be an election to proceed in that forum. Even though the
appellant filed a Board appeal before filing a mixed-case complaint with his
agency, the appellant did not allege discrimination in his first Board appeal, and he
has alleged that the facts underlying his discrimination claim did not come into
existence until after he withdrew his Board appeal. Under these circumstances, the
election requirement of § 1614.302 does not apply.
3. The election requirement set forth at 5 U.S.C. § 7121(d) does not bar the appeal.
Generally, an individual affected by a personnel action that is both appealable to
the Board and covered by a negotiated grievance procedure may contest the action
before the Board or via a grievance, but not both. Section 7121(d) does not apply
to postal employees, however, who have the right to grieve and to appeal actions
directly to the Board.
4. Although the Board has jurisdiction over the appeal as a mixed case, some of the
issues might be precluded under the doctrine of collateral estoppel. The Board
noted that this doctrine has long been applied to arbitration decisions involving
postal employees, and that the arbitrator’s decision found that the appellant’s
termination was fully warranted.
► Appellant: Louis R. Garofalo
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 38
Docket Number: AT-0351-07-0401-I-1
Issuance Date: February 29, 2008
Appeal Type: Reduction In Force
Reduction in Force
The appellant petitioned for review of an initial decision that affirmed his
separation by reduction in force (RIF). The appellant was a Screening Manager
employed by the Transportation Security Administration (TSA). He was separated
pursuant to the agency’s Human Capital Management (HCM) Policy No. 351-3, which
5
contains the agency’s procedures for separations by RIF. Under that policy,
determining which employees within a particular job group will be identified for
separation requires that employees with a job group be ranked. The ranking is based on
a competency assessment process consisting of a structured interview and/or the review
of documentation. Pursuant to HCM Policy No. 351-3, the appellant was selected to
separation, and he filed an appeal with the MSPB. After holding a hearing, the AJ
issued an initial decision affirming the appellant’s separation.
Holdings: A majority of the Board, Chairman McPhie dissenting, granted the
appellant’s PFR, vacated the initial decision, and remanded the appeal for further
adjudication:
1.
As it recently held in Wilke v. Department of Homeland Security, 2007 MSPB 45,
104 M.S.P.R. 662, the Board has jurisdiction over an appeal challenging the RIF
separation of an excepted service employee of TSA.
2. The appellant objected that the agency failed to use any of the available
alternatives set forth in HCM Policy No. 351-3: implementing hiring freezes,
encouraging resignations or retirements, and offering employees the opportunity to
volunteer for involuntary workforce reductions separations. Because these options
were not mandatory under HCM Policy No. 351-3, however, the agency’s failure to
use them was not a violation. The same reasoning applies to the appellant’s claim
that he should have been offered reassignment to a vacant position in lieu of
separation.
3. A majority of the Board agreed with the appellant’s contention that the AJ
improperly denied him the opportunity to challenge the scoring of the structured
interviews that led to his separation. An agency is accorded wide discretion in
conducting a RIF, and the Board will not upset an agency’s RIF decision absent a
clear abuse of that discretion. To show a clear abuse of discretion, an appellant
must show that the agency’s decision was arbitrary or irrational. The requested
testimony of the members of the interview panel was relevant to the question of
whether the scoring of the structured interviews was arbitrary or irrational, and
the AJ abused his discretion by denying the appellant’s request to call the panel
members as witnesses.
4. On the basis of the evidence before the AJ, the Board agreed that the appellant
failed to prove either of his affirmative defenses (age discrimination and
retaliation). If the interview panel members are unable to articulate a rational
basis for the scores given to the appellant and his colleague, the AJ should
determine whether that fact alters his analysis of the appellant’s affirmative
defenses.
In his dissenting opinion, Chairman McPhie expressed his agreement with the AJ
that allowing the appellant to delve into the thought processes of the panel members,
and requiring them to explain their reasoning, goes beyond the scope of the Board’s
review and turns this RIF appeal into something it is not—a failure to hire situation.
The Chairman expressed the view that the Board’s authority is limited to considering
whether the agency underwent a valid reorganization and whether it properly applied its
6
own workforce reduction regulations to the appellant. He agreed with the AJ that the
agency did both, and the RIF separation should therefore be sustained.
► Appellant: Claire Gabriel
Agency: Department of Labor
Decision Number: 2008 MSPB 39
Docket Number: CB-7121-07-0029-V-1
Issuance Date: March 4, 2008
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
Reduction in Force
The appellant requested review of an arbitrator’s decision that dismissed her
grievance of her separation via reduction in force. Through her union, the appellant
grieved her separation, contending, inter alia, that the agency invoked RIF procedures
to abolisher her position for reasons personal to her, i.e., because of retaliation for prior
union activity and discrimination based on national origin, race, and color. The
arbitrator found that the appellant’s separation was a RIF, and that the grievance was
procedurally defective in that it followed the procedures for adverse actions instead of
the procedures for RIFs. The arbitrator conclued that he lacked the authority to hear the
grievance and dismissed it.
Holdings: The Board granted the request for review under 5 U.S.C. § 7121(d),
affirmed the arbitrator’s decision to the extent that it found that the appellant’s
RIF grievance was not arbitrable, and remanded the matter to the arbitrator for
further adjudication:
1. The Board has jurisdiction under § 7121(d), as the subject matter of the
grievance is one over which the Board has jurisdiction, the grievant alleged
discrimination under 5 U.S.C. § 2302(b)(1), and a final decision has been issued.
2. The Board will modify or set aside an arbitration decision only where the
arbitrator has erred as a matter of law in interpreting civil service law, rule, or
regulation. As a matter of civil service law, a RIF taken for reasons personal to an
employee is an adverse action. If the appellant is able to show that the RIF was
taken for reasons personal to her, then her election of the grievance procedure
applicable to adverse actions was correct and the grievance was arbitrable.
7
► Appellant: Jack Neuman
Agency: United States Postal Service
Decision Number: 2008 MSPB 40
Docket Number: DE-0752-05-0291-I-3
Issuance Date: March 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Interim Relief
The agency petitioned for review of an initial decision that mitigated the
appellant’s removal to a demotion. After holding a hearing, the AJ found that the
agency had proved only one of its four charges—failure to follow proper procedures—
and mitigated the penalty to a demotion.
Holdings: A majority of the Board, Member Sapin dissenting, granted the
agency’s PFR, reversed the initial decision with respect to Charge 3 and as to the
penalty, and sustained the appellant’s removal:
1. The Board exercised its discretion not to dismiss the agency’s PFR on the basis
that it had failed to provide the appellant all of pay he was due for the interim
period, as the agency had presented evidence that it had paid the contested portion
of the interim relief period.
2. The Board reversed the AJ’s finding that the agency failed to prove Charge 3,
Appearance of Impropriety.
3. Based on the two sustained charges, the Board found that the removal penalty
was within the bounds of reasonableness.
Member Sapin issued a dissenting opinion explaining why she believed the AJ was
correct in not sustaining Charge 3, and in mitigating the penalty to a demotion.
► Appellant: Valerie K. Scott
Agency: Department of Agriculture
Decision Number: 2008 MSPB 41
Docket Number: DE-0752-07-0128-X-1
Issuance Date: March 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
This case was before the Board on the AJ’s Recommendation, which found that the
agency had not fully complied with the parties’ settlement agreement. There were three
outstanding issues: (1) whether the appellant is entitled to Denver locality pay;
(2) whether her annual and sick leave balances have been properly restored; and
(3) whether her TSP account has been properly restored. Regarding the first issue, the
8
parties had agreed that the appellant’s duty station would be in Denver, but that she
would perform her duties from her home in Kentucky.
Holdings:
1. The agency has provided evidence that it restored the appellant’s leave balances
and made the proper contributions to her TSP account. The agency is therefore in
compliance as to those matters.
2. The Board determined that the appellant’s official worksite is in Kentucky, and
that she is therefore not entitled to Denver locality pay. Locality pay is governed
by 5 U.S.C. § 5304 and 5 C.F.R. Part 531. The first step in ascertaining an
employee’s locality rate is to determine her “official worksite,” which means the
official location of an employee’s position of record under 5 U.S.C. § 531.605. The
general rule is that an employee’s position of record is “where the employee
regularly performs his or her duties.” Here, it is undisputed that the appellant
performs her duties at her home in Kentucky.
► Appellant: Darriel K. Caston
Agency: Department of the Interior
Decision Number: 2008 MSPB 42
Docket Number: SF-0752-04-0058-X-1
Issuance Date: March 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
This case was before the Board based on the AJ’s Recommendation, which found
that the agency had breached the confidentiality provision of the parties’ settlement
agreement, and recommended that the Board grant the appellant’s petition for
enforcement (PFE), rescind the settlement agreement, and reinstate the appellant’s
initial appeal. In so finding, the AJ found that both parties had breached the settlement
agreement, but that the agency’s failure to file a PFE regarding the appellant’s breach
precluded it from arguing that the appellant’s own actions caused the agency’s breach,
or that the agency’s breach was immaterial.
Holding: The Board agreed that both parties had violated the confidentiality
provisions of the settlement agreement. It concluded that the AJ erred in finding
that the agency’s failure to file a petition for enforcement precluded consideration
of the appellant’s breaches. It is well established that a material breach of a
contractual promise by one party discharges the other party from its contractual
duty to perform what was exchanged for the promise. Here, the appellant’s breach
of the settlement agreement was a material one that discharged the agency from its
obligation to perform. The petition for enforcement was dismissed.
9
► Appellant: Matthew Evensen
Agency: Department of the Treasury
Decision Number: 2008 MSPB 43
Docket Number: PH-315H-07-0237-I-1
Issuance Date: March 4, 2008
Action Type: Probationary Termination
Jurisdiction
- Probationers
Miscellaneous Agency Actions
- Suitability
A majority of the Board denied the appellant’s PFR of an initial decision that
sustained the agency’s action terminating his employment during his probationary
period. The basis for the termination was that the appellant had allegedly omitted
pertinent information from his Declaration for Federal Employment (OF 306), a form
used to determine an applicant’s acceptability for federal employment. Specifically, the
agency alleged that the appellant failed to disclose that he had left a job with a company
by mutual agreement because of specific problems.
Chairman McPhie issued a dissent in which he argued that the agency was required
by 5 C.F.R. § 731.103(a) to obtain OPM’s approval before terminating the appellant’s
employment, that it did not do so, and that the Board therefore lacks jurisdiction over
the appeal.
The Chairman expressed the view that the Board has issued inconsistent
guidance on this issue in Saunders v. Department of Justice, 95 M.S.P.R. 38 (2003), and
Harris v. Department of the Navy, 99 M.S.P.R. 355 (2005), concluding that the
reasoning in Saunders was preferable to the reasoning in Harris, and that Harris should
be overruled to the extent that it is inconsistent with Saunders.
► Appellant: Robert S. Brodsky
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 44
Docket Number: DC-0831-07-0583-I-1
Issuance Date: March 4, 2008
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
OPM petitioned for review of an initial decision that reversed its reconsideration
decision and ordered OPM to grant the appellant’s request that he be permitted to elect
a survivor annuity for his former spouse. When the appellant retired from the federal
service in 1979, he elected to have his retirement annuity reduced in order to provide a
survivor benefit to his wife. The appellant and his wife divorced in 1991. He remarried
in 1995 and subsequently elected to provide a survivor annuity to his second wife. He
and his second wife divorced in April 2006, and the court that issued the divorce decree
subsequently issued an order purportedly awarding the second wife a former spouse
survivor annuity under the CSRS.” OPM determined that the second wife was
10
ineligible for survivor benefits either under a court order or by voluntary election. In
his appeal to MSPB, the appellant indicated that he was contesting only OPM’s refusal
to permit him to elect a survivor annuity for his second wife, and not its finding that the
court order could not be approved. Relying on his interpretation of 5 C.F.R.
§ 831.631(b)(5), the AJ ruled that the appellant was entitled to elect a survivor annuity
for his second wife.
Holdings: The Board granted OPM’s PFR and reversed the initial decision. The
appellant’s request that he be permitted to provide a survivor annuity for his
former spouse was denied.
1. This case is governed by the provisions of the Civil Service Spouse Equity Act
(CSRSEA) of 1984. Section 2(3)(A) of the CSRSEA provided that an employee
could elect a reduced retirement annuity in order to provide a survivor annuity for
a former spouse, but that any such election was to “be made at the time or
retirement or, if later, within 2 years after the date on which the marriage
... dissolved.”
2. The provisions of the CSRSEA do not have universal application. Section 4(a)(1)
provides that the amendments in section 2 apply only to two categories of
individuals: (A) any individual who, on or after May 7, 1985, is married to an
employee who, on or after that date, retires, dies, or applies for a refund of CSRS
contributions; and (B) any individual who, as of such date, is married to a retired
employee. Because the second wife did not marry the appellant until 1995, she
does not fall within category (B); she does not fall within category (A) because the
appellant did not retire on or after May 7, 1985.
3. The Board rejected the appellant’s argument that he is entitled to elect a
survivor annuity for his second wife under section 4(b)(1) of the CSRSEA, which
provides that notwithstanding the provisions of section 4(a)(1), a former spouse of
an employee who retired before May 7, 1985, is entitled to a survivor annuity if the
employee has made a written election and met other requirements specified in
section 4(b)(1). The election described in section 4(b)(1) is one that must be made
within 18 months after the enactment of CSRSEA, i.e., within 18 months after
November 8, 1984.
4. The Board rejected the AJ’s reliance on a “plain language” reading of OPM’s
regulation as being entitled to Chevron deference. First of all, when Congress has
directly spoken to the precise question at issue, and Congressional intent is clear,
that is the end of the matter, since an agency must give effect to the unambigously
expressed intent of Congress. As discussed above, the Board found the statute
unambigous. Second, the Board concluded that, properly construed, OPM’s
regulation was consistent with the statute.
11
► Appellant: Gabriel R. Vega
Agency: United States Postal Service
Decision Number: 2008 MSPB 45
Docket Number: SF-0752-07-0385-I-1
Issuance Date: March 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Jurisdiction
- Reduction in Grade/Pay
The appellant petitioned for review of an initial decision that dismissed his
reduction-in-pay appeal for lack of jurisdiction. The appellant suffered an on-the-job
compensable injury in 2004. On December 21, 2006, the appellant accepted the
agency’s offer to return to limited duty. The modified duty offer stated that the
appellant’s position title would remain the same and his salary would be “current.” In
his appeal to the MSPB, the appellant alleged that the agency had retroactively reduced
his pay from grade/step 00/04, with a base salary of $51,123, to grade/step 00/03, with
a base salary of $44,088. The agency conceded that the appellant’s base salary was
$51,123 per year on December 21, 2006, and that it reduced the appellant’s salary to
$44,088. It asserted, however, that it was required to take this action pursuant to a
memorandum of understanding (MOU) under the applicable collective bargaining
agreement, and the agency’s Complement Management System (CMS), a “system for
managing the payroll and salary history of Agency employees.” The agency explained
that the higher salary was based on an evaluation of the appellant’s route at 44 hours
per week, but it was re-evaluated at 40 hours per week. Based on the written record,
the AJ dismissed the appeal for lack of jurisdiction, concluding that the appellant failed
to establish that his base salary had been reduced.
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the appeal for adjudication on the merits:
1. Although the Board generally has jurisdiction over appeals of reductions in pay
under 5 U.S.C. §§ 7512(4) and 7513(d), a reduction in pay “from a rate contrary to
law or regulation” is not an appealable adverse action. 5 C.F.R. § 752.401(b)(15).
If an agency reduces an appellant’s pay to correct what it believes was a pay
setting error, the agency bears the burden of proving that it set the employee’s pay
at a rate contrary to law or regulation.
2. The appellant made a prima facie showing of jurisdiction by establishing that his
rate of basic pay was reduced.
3. The agency failed to establish that it reduced the appellant’s pay to correct a pay
rate that was contrary to law or regulation. There is nothing in the record that
shows that CMS Update 96:102, upon which the agency relied, is a “law or
regulation” of any kind. Although the Board does sometimes treat provisions of a
collective bargaining agreement in the same manner as agency regulations, the
MOU does not specify the correct base pay for an employee working limited duty
while awaiting a permanent modified job assignment.
12
► Appellant: Anthony J. Adams
Agency: United States Postal Service
Decision Number: 2008 MSPB 46
Docket Number: AT-0752-07-0473-I-1
Issuance Date: March 5, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement
The agency petitioned for review of an initial decision finding that the appellant’s
resignation was involuntary due to mental incapacity. After postal inspectors observed
the appellant, a rural carrier, discarding mail, the agency placed him in an off-duty
status without pay pending further investigation. The appellant then submitted his
resignation for personal reasons. Shortly thereafter, he was diagnosed with a benign
brain tumor. He also sought to rescind his resignation. Dr. Levitt, the neurosurgeon
who treated the appellant, opined that the tumor caused the appellant’s misconduct in
discarding the mail. Based on Dr. Levitt’s opinion, the AJ found that the appellant had
established that his brain tumor “seriously impaired” his ability to make a rational
decision to resign, and that his resignation was involuntary.
Holdings: A majority of the Board, Member Sapin dissenting, granted the
agency’s PFR, vacated the initial decision, and dismissed the appeal for lack of
jurisdiction:
1. An employee-initiated action such as a resignation is presumed to be voluntary,
but an involuntary resignation is tantamount to a removal, which is within the
Board’s jurisdiction. When an appellant claims that his resignation was
involuntary due to mental incapacity, the test is whether, at the time he submitted
his resignation, he was capable of making a rational decision to resign.
2. The majority stated that none of the documents authored by Dr. Levitt
addressed the critical question in this appeal—whether the appellant was capable
of making a rational decision to resign on March 31, 2006. Dr. Levitt supported
the conclusion that the appellant’s brain tumor caused him to discard mail on
March 7, but because he did not explain how the appellant’s tumor could have
affected his ability to make a rational decision to resign, his evidence was not
particularly persuasive on that issue.
3. The majority found the sworn declaration from Dr. Butler, an agency employee,
more persuasive than Dr. Levitt, even though he did not examine the appellant.
Dr. Butler analyzed the available medical evidence, and reasoned that the
appellant’s act of discarding only advertising mail, as opposed to first class mail,
was an indication that he was thinking rationally at that time because the absence
of such mail would be less likely to be reported by customers.
In her dissent, Member Sapin expressed her opinion that the AJ correctly gave
more weight to Dr. Levitt’s opinion under the four-prong test of Lassiter v. Department
of Justice, 60 M.S.P.R. 138, 143 (1993).
13
► Appellant: Michael P. Randazzo
Agency: United States Postal Service
Decision Number: 2008 MSPB 47
Docket Number: PH-0752-07-0460-I-1
Issuance Date: March 5, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness – PFR
Board Procedures/Authorities
- Reopening and Reconsideration
The appellant petitioned for review of an initial decision that dismissed his appeal
as moot. The appellant appealed his removal to the Board as well as grieving the
matter. During the processing of the MSPB appeal, the appellant prevailed in his
grievance, with the agency directed to restore the appellant to duty and make him whole
for all losses incurred due to the removal. The AJ ordered the parties to show cause
why the appeal should not be dismissed as moot. Neither party responded, and the AJ
issued an initial decision dismissing the appeal as moot. The decision informed the
parties that it would become final on October 22, 2007, unless a party filed a PFR. The
appellant filed an untimely PFR on November 9, 2007. The appellant explained that he
did not file his petition by the deadline because he was acting in good faith to afford the
agency additional time to provide him with his back pay.
Holding: A majority of the Board, Member Sapin dissenting, dismissed the PFR as
untimely filed without good cause shown, stating that waiting for an agency to
complete the actions required to make him whole does not constitute a reasonable
excuse for an untimely filed PFR.
In her dissenting opinion, Member Sapin argued that the Board should have
exercised its authority to reopen the case on its own motion. She pointed out that a
request to reopen must be filed with a reasonable period of time, measured in weeks,
which was the case here, and that reopening may be warranted where the initial decision
contains clear and material errors that prejudice the appellant’s substantive rights, or
where there is an intervening change in controlling law.
She pointed out that, after the
AJ issued the initial decision, the Board overruled the line of precedent upon which the
AJ had relied, ruling that it is error to dismiss an appeal as moot without first
determining whether the agency has actually completed the actions required to provide
the appellant with all of the relief to which he is entitled, citing Slocum v. U.S. Postal
Service, 107 M.S.P.R. 129, ¶ 12 (2007), and Haskings v. Department of the Navy, 106
M.S.P.R. 616, ¶¶ 15-20 (2007). Member Sapin also pointed out that the agency’s
alleged failure to provide back pay cannot be cured in a compliance proceeding because
the Board lacks jurisdiction over a petition for enforcement concerning an initial
decision that dismissed as appeal as moot.
14
► Appellant: Sharon Douglas
Agency: Department of Defense
Decision Number: 2008 MSPB 48
Docket Number: DC-0752-07-0416-I-1
Issuance Date: March 5, 2008
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement
The appellant petitioned for review of an initial decision that dismissed her
involuntary retirement claim for lack of jurisdiction. The appellant was employed as an
Accounting Technician at the agency’s Defense Finance and Accounting Service
(DFAS) in Norfolk, Virginia. The agency notified DFAS employees at this location
that the site was scheduled for closure, and informed them of various options, including
registering for placement with the agency’s Priority Placement Program, relocating to
another DFAS location and, for those who qualified, taking a separation incentive under
the terms of the Voluntary Separation Incentive Program (VSIP). The appellant elected
this last option, signing a VSIP Agreement and retiring effective January 31, 2007. She
filed an appeal with the MSPB claiming that her retirement was involuntary. She
asserted that, just 3 days after the deadline for electing a VSIP separation, the agency
announced that it would retain 15 positions at the Norfolk DFAS that would be filled
through RIF procedures. She contended that, had she been aware that 15 positions
would be retained at Norfolk DFAS, she “would not have elected to retire and would
have had sufficient seniority to have obtained a position through the RIF.” She also
contended that, shortly before her retirement became effective, she met with Captain
Gunther, who “implied that the management had known for months that some of these
jobs were going to remain in Norfolk and that they would be filled through RIF
procedures.” Without conducting a hearing, the AJ determined that the appellant had
failed to make a non-frivolous allegation that her retirement was involuntary, and
dismissed the appeal for lack of jurisdiction.
Holdings: A majority of the Board, Chairman McPhie dissenting, granted the
appellant’s PFR, vacated the initial decision, and remanded the appeal for further
adjudication:
1. An employee-initiated action such as a retirement is presumed to be voluntary,
and not within the Board’s jurisdiction, unless an appellant shows that her
retirement was obtained through duress or coercion, or that a reasonable person
would have been misled by the agency. The majority found that the appellant
made a non-frivolous allegation of jurisdiction when she asserted that the agency
misled her into believing there were to be no positions remaining at the Norfolk
DFAS and no opportunity to be placed there through RIF procedures, even though
the agency was aware that a number of positions would be retained and filled via
RIF procedures, but postponed announcing this until 3 days after the closure date
for VSIP elections.
15
2. When an employee withdraws a commitment to retire prior to its effective date,
even if previously agreed to through a valid VSIP agreement, the burden is on the
agency to demonstrate a valid reason for refusing to permit the withdrawal. On
remand, the AJ should determine whether the appellant’s meeting with Captain
Gunther, and her immediate subsequent appeal to Senator Warner prior to the
effective date of her retirement, were attempts to withdraw her commitment to
retire and, if so, whether the agency had a valid reason for refusing to permit the
withdrawal.
In his dissent, Chairman McPhie argued that the AJ properly concluded that the
appellant was aware, at the time she submitted her retirement papers, that the agency
might retain some individuals, but she chose to retire, and that she failed to show that
the agency had already formulated final plans to reestablish the 15 positions in Norfolk
prior to her buyout request.
Chairman McPhie secondly argued that, in directing the AJ
to consider whether the appellant attempted to withdraw her commitment to retire, the
majority was ignoring binding Federal Circuit precedent in Green v. General Services
Administration, 220 F.3d 1313, 1317 (Fed. Cir. 2000), which held that a formal
agreement to separate from the government on a specified date, supported by
consideration, is a valid reason for an agency to deny an employee’s request to
withdraw his resignation.
► Appellant: Philip Uresti
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 49
Docket Number: CH-831M-07-0427-I-1
Issuance Date: March 5, 2008
Appeal Type: CSRA - Overpayment of Annuity
Retirement
- Annuity Overpayment
The appellant petitioned for review of an initial decision that affirmed an OPM
reconsideration decision that determined that the appellant had received an annuity
overpayment of $75,642.25, that he was not entitled to a waiver of the overpayment,
and that he was not entitled to readjustment of the overpayment schedule. The
appellant received a discontinued service annuity when the position was abolished in a
RIF in 1988. In 1990, he was appointed to a new position in the Department of Justice.
His application for that position incorrectly stated that he had never applied for a
received a pension or retirement pay based upon his Federal service. When the
appellant applied for immediate retirement in 2001, OPM discovered that the appellant
had improperly received his discontinued service annuity while employed with DOJ
from 1990 through 2001, resulting in an annuity overpayment of $75,642.25, which was
to be repaid in 101 installments. On appeal to the Board, the AJ affirmed the existence
and amount of the overpayment, and found that the appellant was not entitled to waiver
because he did not show that he was without fault in creating the overpayment. As to
the repayment schedule, the AJ noted various discrepancies in the appellant’s Financial
Resources Questionnaire (FRQ), and afforded the appellant the opportunity to
supplement the record. The appellant did not respond, and the AJ issued an initial
16
decision finding that the appellant was not entitled to an adjustment based upon
financial hardship.
Holdings:
1. The Board affirmed the AJ’s findings as to the existence and amount of the
overpayment, and that waiving the overpayment was not warranted because the
appellant was not without fault in its creation.
2. Although the Board generally does not consider evidence submitted for the first
time on review, the Board considered the appellant’s updated financial information
because he submitted evidence showing that his failure to provide the information
below resulted from his hospitalization following an automobile accident. Because
the updated financial information shows that the appellant’s gross monthly income
exceeds his expenses by $625.53, the Board adjusted the repayment scheduled to
include 121 monthly payments.
► Appellant: Margaret Ann Fouchia
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 50
Docket Number: PH-831E-07-0493-I-1
Issuance Date: March 5, 2008
Appeal Type: CSRA - Employee Filed Disability Retirement
Timeliness - PFA
The appellant petitioned for review of an initial decision that dismissed her appeal
as untimely filed. OPM issued its reconsideration decision denying the appellant’s
application for a disability retirement annuity on May 24, 2007, and informed the
appellant that she had 30 days in which to filed an appeal with the MSPB. The
appellant filed an appeal via U.S. mail, which the regional office received on July 9,
2007, in an envelope without a postmark. The appeal form stated that the appellant
received OPM’s final decision on June 3, 2007, and the appellant’s signature on the
form was dated July 3, 2007. The AJ issued an order stating that the appeal was
presumed to have been filed on July 2, which was outside the 30-day time limit for
specified in OPM’s reconsideration decision. After considering the appellant’s
response, the AJ issued a decision finding that the appeal was untimely without good
cause shown.
Holding: The Board found that the appeal was timely filed. When an appellant
submits an appeal form that includes a certification that the statements therein are
true, the allegations in the form may serve as evidence to rebut any presumption
regarding the date that the appellant received a mailing from the agency. In this
case, the appellant stated that she did not receive OPM’s final decision until June
3, and this assertion is unrebutted. The filing deadline was therefore July 3, 2007,
the 30th day after June 3, 2007. The Board found that the appeal was filed on July
3, 2007, the date of the appellant’s signature. | 42,627 | |
Case Report - March 11, 2008 | 03-11-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_11_2008_320866.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_11_2008_320866.pdf | CASE REPORT DATE: March 11, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: William Luther
Agency: Department of Commerce
Decision Number: 2008 MSPB 7
Docket Number: CB-7121-07-0023-V-1
Issuance Date: January 17, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration
The appellant filed a request for review of an arbitration decision that affirmed his
removal for misconduct.
Holdings: The Board sustained the arbitrator’s decision:
1. The matter is within the Board’s jurisdiction because the subject matter of the
grievance (a removal action) is one over which the Board has jurisdiction, and the
appellant alleged that the action at issue constitutes discrimination on a basis
covered by 5 U.S.C. § 2302(b)(1).
2. The scope of the Board’s review of arbitrators’ decision is limited; the Board
will modify or set aside an arbitration decision only where the arbitrator has erred
as a matter of law in interpreting civil service law, rule, or regulation. The
appellant has shown no such error in this case.
► Appellant: Susan FitzGerald
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 17
Docket Number: CB-7121-07-0014-V-1
Issuance Date: January 29, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration
The appellant requested review of an arbitrator’s decision that found that the
agency removed her for just cause on grounds that she falsified applications for federal
2
employment. The agency alleged that the appellant falsified 14 applications for
promotion based on her answers to two questions on Optional Form 612, which asked
applicants to list the highest level of education attained. In response to the first
question, the appellant indicated that she completed a Bachelor’s degree and wrote, “I
completed my degree and received a Bachelor of Science in Criminal Justice from
Hamilton University. April 2002.” In response to the second question, she wrote, “B.S.
in Criminal Justice Hamilton University April 2002.” The agency charged that these
responses were false, in that “you knew Hamilton University was not accredited by an
accrediting institution recognized by the U.S. Department of Education and that your
degree was not legitimate.” While the appellant’s grievance of the removal action was
pending, an EEOC AJ issued a decision finding that the agency had discriminated
against the appellant in regard to several applications for promotion.
The arbitrator found that the appellant was guilty of the falsification charge, and
that removal penalty was reasonable. The arbitrator also rejected the appellant’s
affirmative defense that the agency retaliated against her for protected EEO activity.
Holdings: A majority of the Board, Chairman McPhie dissenting, granted the
appellant’s request for review, reversed the arbitration decision, and ordered the
agency to reinstate the appellant with back pay and other benefits:
1. The appellant satisfied the requirements for Board jurisdiction: (1) the subject
matter of the grievance (a removal) is one over which the Board has jurisdiction;
(2) the grievant alleges discrimination under 5 U.S.C. § 2302(b)(1) in connection
with the underlying action; and (3) a final decision has been issued in the
grievance. The Board rejected the agency’s argument that the Federal Labor
Relations Authority was the appropriate avenue for review.
2. The arbitrator erred in finding that the agency had just cause to remove the
appellant for falsifying applications for federal employment. To sustain a
falsification charge, the agency must prove by preponderant evidence that the
employee knowingly supplied incorrect information with the intention of
defrauding the agency. The appellant argued that she did not supply incorrect
information at all as she did, in fact, earn a bachelor’s degree in criminal justice
from Hamilton University in April 2002, and that the arbitrator had improperly
focused on the value of that degree.
The Board found the facts in the instant case
similar to those in Guerrero v. Department of Veterans Affairs, 2007 MSPB 132, 105
M.S.P.R. 617. Based on its holding in Guerrero, the Board found that the appellant
established that the arbitrator erred in interpreting civil service law when
considering the merits of the charge.
3. The arbitrator erred in finding that the agency did not retaliate against the
appellant for protected EEO activity.
The majority observed that the arbitrator
did not cite any legal standard when he evaluated the evidence, and his analysis did
not follow the framework of Warren v. Department of the Army, 804 F.2d 654,
656-58 (Fed. Cir. 1986). The Board found that this legal error permitted the Board
to make its own findings.
Applying Warren, Simien v. U.S. Postal Service, 99
M.S.P.R. 237, ¶ 28 (2005), and Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th
Cir. 1994), to the facts of this case, the Board concluded that the appellant
3
established that the removal action was taken in reprisal for protected EEO
activity.
Chairman McPhie issued a dissenting opinion in which he disagreed with the
majority on both the falsification charge and the affirmative defense of retaliation for
protected EEO activity. On the former, he concluded that the majority improperly
exceeded the scope of the narrow review that should be applied to arbitration decisions,
and engaged in de novo review of the arbitrator’s findings of fact. Regarding the
affirmative defense, he contended that the arbitrator did undertake the appropriate
analysis under Simien, weighing all the evidence and making a finding on the ultimate
issue of whether the appellant met her overall burden of proving retaliation.
► Appellant: Michael Dwyer
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 10
Docket Number: CB-7121-07-0024-V-1
Issuance Date: January 22, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration
Discrimination
- Retaliation for EEO Activity
The appellant requested review of an arbitrator’s decision that reversed his
removal under 5 U.S.C. chapter 75, but found unproven his affirmative defense of
retaliation for prior equal employment opportunity activity.
Holding: The Board sustained the arbitrator’s decision. Per the standards
summarized above in the FitzGerald appeal, the Board found that it had
jurisdiction, but that the appellant had failed to establish that the arbitrator had
erred as a matter of law in adjudicating his retaliation claim.
► Appellant: Erick D. Taylor
Agency: Department of the Army
Decision Number: 2008 MSPB 11
Docket Number: CB-7121-07-0025-V-1
Issuance Date: January 23, 2008
Appeal Type: Arbitration Appeals/Grievances
Arbitration
Discrimination
The appellant requested review of an arbitrator’s decision the sustained his
removal on misconduct charges. Although the arbitrator dismissed two charges, he
sustained two of the three specifications of the charge of sexual harassment, and found
that removal was an appropriate penalty for this sustained charge.
Holdings: The Board sustained the arbitrator’s decision:
4
1. Per the standards summarized above in the FitzGerald appeal, the Board found
that it had jurisdiction. The agency’s contention that the Board lacks jurisdiction
over the appellant’s claim of gender discrimination, because the collective
bargaining agreement provides that such claims cannot be raised as a grievance, is
without merit. The terms of the collective bargaining agreement cannot divest the
Board of the jurisdiction granted by law.
2. The Board will modify or set aside an arbitration decision only where the
arbitrator has erred as a matter of law in interpreting civil service law, rule, or
regulation. The appellant failed to make any showing of such error in this case.
► Appellant: Daniel U. Antonio
Agency: Department of the Air Force
Decision Number: 2008 MSPB 9
Docket Number: SF-0752-07-0581-I-1
Issuance Date: January 22, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
Mootness
The appellant petitioned for review of an initial decision that dismissed his
removal appeal as moot. After the appellant filed his appeal, the agency presented
evidence that it had canceled the appellant’s removal, reinstated him to his original
position, and provided him with back pay. In dismissing the appeal as moot, the AJ
stated that any claim that the agency did not actually provide status quo ante relief
could be raised in a future petition for enforcement.
Holdings: Although the Board denied the appellant’s PFR, it reopened the appeal
on its own motion, vacated the initial decision, and remanded the appeal to the
regional office for further adjudication:
1. The Board’s jurisdiction is determined by the nature of an agency’s action at the
time an appeal is filed with the Board, and an agency’s unilateral modification of
its action after an appeal has been filed cannot divest the Board of jurisdiction
unless the appellant consents to such divesture or unless the agency completely
rescinds the action being appealed.
2. The AJ erred in stating that an appeal is moot if the employee has been “placed,
as nearly as possible, in the same situation that he would have been in if the action
had never occurred.” That standard was overruled in Fernandez v. Department of
Justice, 2007 MSPB 99, ¶ 5, 105 M.S.P.R. 443. The correct test is whether the
employee has received all of the relief that he could have received if the matter had
been adjudicated and he had prevailed. Here, the appellant had claimed national
origin discrimination, and may have a claim for compensatory damages.
3. Following issuance of the initial decision, the Board overruled the case law cited
by the AJ for the proposition that the appellant could file a petition for
enforcement after the appeal was dismissed as moot if the agency failed to follow
5
through with rescinding his removal. The Board lacks the authority to adjudicate
a petition for enforcement when an appeal has been dismissed as moot because the
Board has been divested of jurisdiction.
► Appellant: John M. Hope
Agency: Department of the Army
Decision Number: 2008 MSPB 13
Docket Number: DA-3443-06-0597-I-1
Issuance Date: January 28, 2008
Jurisdiction
- Probationers
Defenses and Miscellaneous Claims
- Harmful Error
The agency petitioned for review of an initial decision that reversed its termination
of the appellant’s employment during his probationary period due to pre-appointment
reasons. The agency appointed the appellant to the position of Optometrist. Less than
3 months later, it cancelled the appointment based on its determination that he did not
meet the qualifications required for the position, namely, a Doctor of Optometry degree
and a current state license to practice optometry. On appeal to the Board, the appellant
contended that the agency failed to give him written notice and an opportunity to
respond, as required by 5 C.F.R. § 315.805. The appellant contended that this error was
harmful because, if he had been allowed to respond, the agency would have concluded
that he was qualified for the position. Specifically, he adduced evidence that he is
certified by the American Board of Ophthalmology and licensed to practice medicine in
Arkansas and Oklahoma. The AJ agreed with these contentions, finding jurisdiction
under 5 C.F.R. § 315.806(c), finding procedural error in the failure to provide notice
and an opportunity to respond, and that the error was harmful. The AJ ordered the
agency to cancel its termination action and to reinstate the appellant to his position.
Holdings: The Board granted the agency’s PFR, affirmed the initial decision
insofar as it found jurisdiction and that the agency committed procedural error,
vacated the initial decision insofar as it found the agency’s procedural error to be
harmful, and remanded the appeal to the regional office for further adjudication:
1. The Board rejected the agency’s argument that it lacks jurisdiction because the
appointment was illegal and the appellant was never an employee. The appellant
was appointed and entered into duty under the criteria of 5 U.S.C. § 2105(a).
2. The Board also rejected the agency’s contention that the appellant’s
appointment was subjected to an absolute prohibition by 10 U.S.C. § 1094(a)(1),
the Qualifications Standards Operating Manual, and Army Regulation 40-68.
None of these acts as an absolute prohibition because they all concern professional
qualifications for a specific position. Such qualification requirements may prohibit
an appointment under a certain set of circumstances, but they cannot act as an
absolute bar to the appellant’s appointment in the civil service in all
circumstances.
6
3. That the agency committed procedural error was not in dispute, as the agency
admitted that it failed to provide the appellant with the written notice and
opportunity to respond required by 5 C.F.R. § 315.805. The remaining question is
whether that error was harmful to the appellant. In resolving this question in the
affirmative, the AJ relied primarily upon evidence outside the record—the
appellant’s medical licensure in Oklahoma and that state’s scheme for licensure of
Optometrists—of which he took official notice. While the appellant’s license to
practice medicine in Oklahoma can be verified, the effect of Oklahoma’s statutory
scheme is something that may be subject to reasonable dispute and should not have
been taken as proven. Moreover, the agency was given no opportunity to refute the
facts of which the AJ took official notice. A remand is therefore required.
► Appellant: Uche O. Elendu
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 12
Docket Number: PH-844E-07-0473-I-1
Issuance Date: January 28, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s final
decision denying his application for disability retirement benefits under FERS. The
appellant resigned from his position with the U.S. Postal Service effective January 27,
2006. OPM received his FERS disability retirement application on February 27, 2007.
In both its initial and final decisions, OPM rejected the application on the basis that it
was untimely filed, as it was received more than a year after his separation from federal
employment. On appeal to the Board, the AJ affirmed for the same reason.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision
and OPM’s final decision, and remanded the case to OPM for further proceedings:
1. Under 5 U.S.C. § 8453, a FERS disability retirement application may be allowed
only if it “is filed with [OPM] before the employee... is separated from the service
or within 1 year thereafter.” OPM’s regulation at 5 C.F.R. § 844.201(a)(1) clarifies
that an application will be considered on its merits “if the application is filed with
an individual’s former employing agency or with OPM prior to or within 1 year of
the individual’s separation from federal service.” Under 5 C.F.R. § 841.109, when
the last day of a filing period falls on a weekend or legal holiday, the period for
timely filing extends to the next business day. Finally, 5 C.F.R. § 844.201(a)(2)
provides that the filing date for an application that is filed via facsimile is the date
of the facsimile.
2. Because January 27, 2007, fell on a Saturday, the appellant’s application was
timely filed if it was filed with either OPM or the U.S. Postal Service no later than
Monday, January 29, 2007. The undisputed evidence is that the appellant’s
retirement application was faxed to the Postal Service on that date. Accordingly, it
was timely filed, and OPM must issue a new decision on the merits.
7
► Appellant: Cindy M. Smedley
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 20
Docket Number: SF-831E-07-0116-I-1
Issuance Date: January 30, 2008
Appeal Type: CSRA - Employee Filed Disability Retirement
Action Type: Retirement/Benefit Matter
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s final
decision denying her application for disability retirement benefits. The appellant filed
an application for disability retirement based on medical conditions resulting from an
automobile accident, including neck pain, headaches, severe depression, post-traumatic
stress disorder, anxiety with associated panic attacks, and agoraphobia. The Postal
Service removed the appellant from her position as a Mail Processing Clerk for physical
inability to perform the duties of her position. The AJ determined that the appellant’s
removal entitled her to a presumption that she was entitled disability retirement benefits
under Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993),
but only as to her physical condition, not her psychological conditions. He found that
OPM rebutted the Bruner presumption, in that the appellant failed to show that her
physical condition could not be controlled by medication, therapy, or other reasonable
means. As to the appellant’s psychological conditions, the AJ found that the appellant
was disqualified from disability retirement benefits because she failed to follow her
physicians’ repeated recommendations to seek psychiatric care.
Holdings: A majority of the Board, Member Sapin dissenting, granted the
appellant’s PFR, but affirmed the initial decision as modified, still sustaining
OPM’s reconsideration decision:
1. The AJ erred by not applying the Bruner presumption to the appellant’s
psychological conditions as well as her physical conditions. The Board has often
noted and relied on the causal or exacerbating effect of one of an appellant’s
conditions on another, including both the psychological effect of a physical cause
and the physical effects of a psychological cause, as well as on the aggravating
effect on a mental condition of a failure to work that is attributable to the
condition.
2. The AJ’s determination that the appellant failed to follow her physicians’
recommendations to receive treatment from a pain specialist or to seek psychiatric
treatment should not have been applied to the period after November 26, 2004,
because the appellant’s limited finances did not allow her to obtain specialized
treatment.
3. OPM’s evidence is nonetheless sufficient to rebut the Bruner presumption. An
appellant’s voluntary refusal to accept facially reasonable treatment will bar
entitlement to disability retirement benefits. Here, the appellant submitted no
evidence or argument addressing why she did not obtain the recommended facially
reasonable treatment from 1999 through mid-2004.
8
In her dissent, Member Sapin reviewed the evidence and concluded that the
appellant did reasonably comply with her doctors’ recommendations. She noted that it
was not until September 2003 that the appellant’s doctor diagnosed her with post
traumatic stress disorder and referred her to a psychiatrist and, although the appellant
did not see that psychiatrist, she did follow up on treatment for her psychological
condition.
► Appellant: Harold W. Taylor
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 14
Docket Number: SF-0831-07-0501-I-1
Issuance Date: January 28, 2008
Appeal Type: CSRA Retirement - Other Than Initial
Retirement
- Service Credit
- Deposits – Post-1956 Military Service
The appellant petitioned for review of an initial decision that affirmed OPM’s final
decision recomputing and reducing the amount of his CSRS retirement annuity. The
appellant retired in 1997 at age 52. Before his retirement, he received notice that his
retirement annuity might be reduced at age 62 if he failed to make a deposit for his
post-1956 military service. When the appellant reached at 62, OPM recomputed and
reduced his retirement annuity by $235 per month. On appeal to the Board, the
appellant argued that he was not given specific information concerning the amount of
his military deposit and that, because he was accepting an early retirement, there was
very little time between when he made the decision to retire and the effective date of
his retirement to obtain information about this. The AJ determined that the appellant
received adequate notice of the requirement that he make a deposit for his post-1956
military service, and that the appellant failed to show that his failure to pay the deposit
was the result of administrative error.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and ordered OPM to allow the appellant an opportunity to make a deposit for his
post-1956 military service:
1. An annuitant who retires after September 7, 1982, is entitled to receive credit for
active duty military service performed after 19856 only if he deposits an amount
equal to 7% of his total post-1956 military pay with Civil Service Retirement and
Disability fund. This deposit must be made before the employee’s separation from
service, unless an administrative error has occurred such that the employee was
not given proper notice or opportunity to make the deposit before separation.
5 C.F.R. § 831.2107(a)(1).
In McCrary v. Office of Personnel Management, 459 F.3d
1344, 1349 (Fed. Cir. 2006), the Board’s reviewing court held that, when an
employee asks for information regarding the amount of the military deposit or the
consequences of failing to make the deposit, the government commits
administrative error if its response either misrepresents the dollar amounts in
question, or is so indirect, inaccurate, or incomplete as to confuse or mislead the
9
employee as to the amount of the deposit or the effect of any failure to make the
deposit on the annuity recalculation.
2. Here, the undisputed evidence indicates that the employing agency’s human
resources employee told the appellant that she did not know how to determine the
amount required to pay the deposit, misinformed him that he could wait until he
was 62 years old to file an appeal with the Board, and rushed him to complete the
retirement process within a short period of time. Under these circumstances, the
Board concluded that the information provided by the appellant’s employing
agency was indirect, inaccurate, and incomplete under the McCrary standard and
therefore constituted administrative error.
► Appellant: Edward J. Simpkins
Agency: Department of Labor
Decision Number: 2008 MSPB 15
Docket Number: DC-3443-07-0674-I-1
Issuance Date: January 28, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his VEOA
appeal for lack of jurisdiction. The appellant sought to make a deposit so that he would
be entitled to retirement service credit for his post-1956 military service. He alleges
that he thought that deductions for this purpose were taking place, but later learned they
were not. As relief, he requested that the agency pay the deposit for him or the
“difference in accrued interest” on the deposit to be paid which the delay had caused.
When the agency declined to provide this relief, the appellant sought help with the
Department of Labor, and then filed a VEOA appeal with the Board’s regional office.
The AJ found that, while the appellant exhausted his remedy with DOL, he failed to
make a nonfrivolous allegation that the agency violated his rights under a statute or
regulation relating to veterans’ preference, and dismissed the appeal for lack of
jurisdiction.
Holdings: The Board denied the PFR, reopened the appeal on its own motion,
reversed the initial decision, and dismissed the appeal for failure to state a claim
upon which relief may be granted:
1. The appellant’s allegation that the agency violated his veterans’ preference
rights by preventing him from exercising his right to make a deposit for his post
1956 military service was a nonfrivolous allegation that his veterans’ preference
rights were violated. The AJ therefore erred in dismissing the appeal for lack of
jurisdiction.
2. By law, interest is due on the deposit to be paid, and there is no provision in the
relevant statute or regulations allowing waiver of interest in the appellant’s case.
Furthermore, the pertinent statutory and regulatory provisions do not stand in
some relation to, or have a bearing on, concern, or have a connection with
veterans’ preference rights. Even if the agency erred in processing his request to
have deductions taken from his paycheck and credited toward a deposit for his
10
post-1956 military service, he is not entitled to relief under VEOA. Accordingly,
the appellant’s VEOA claim must be dismissed for failure to state a claim upon
which relief can be grated.
► Appellant: Joe D. Cameron Jerusalem
Agency: Department of the Air Force
Decision Number: 2008 MSPB 16
Docket Number: AT-0752-88-0195-I-1
Issuance Date: January 28, 2008
Appeal Type: Adverse Action by Agency
Timeliness
The appellant sought to reopen an appeal of a removal action that was resolved in
an initial decision, issued in 1988, that dismissed the appeal pursuant to a written
settlement agreement. The appellant asserts that he was mentally incompetent at the
time of the settlement and that he was taken advantage of by his representative. He
further asserts that his 19-year delay in contesting the settlement agreement should be
excused because of mental incompetence.
Holding: The Board found that the appellant failed to prove that he was impaired
from filing his PFR for the entire period of his delay. To the extent that the
appellant’s filing could be construed as a request to reopen his appeal, the
appellant declined to exercise its discretion to do so.
► Appellant: Furnando L. Keith
Agency: Department of the Air Force
Decision Number: 2008 MSPB 8
Docket Number: DA-0752-04-0569-I-1
Issuance Date: January 22, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
The appellant petitioned for review of an initial decision that affirmed the agency’s
removal action. The initial decision was issued and became final in 2004. The petition
for review was received in August 2007.
Holding: The Board dismissed the PFR as untimely filed without a showing of
good cause for the delay.
► Appellant: Jerry L. Hopkins
Agency: United States Postal Service
Decision Number: 2008 MSPB 18
Docket Number: DC-0752-07-0796-I-1
Issuance Date: January 30, 2008
Appeal Type: Adverse Action by Agency
Timeliness
11
The appellant petitioned for review of an initial decision that dismissed his appeal
of a removal action as untimely filed without good cause shown. After the appellant
was removed effective June 3, 2005, he filed a grievance, which was resolved by a
July 31, 2006 settlement agreement. The agreement provided that the removal would be
held in abeyance for a period not to exceed November 1, 2006, in order to give the
appellant an opportunity to apply for retirement. The appellant filed an appeal with the
Board’s regional office prior to November 1, 2006, but it was rejected as prematurely
filed. On January 11, 2007, the agency processed the appellant’s removal, effective the
following day. The appellant filed a new appeal on July 26, 2007. In dismissing the
appeal, the AJ found that the appellant was required to file his Board appeal no later
than 30 days after June 3, 2005, the effective date of the removal action, and that his
appeals filed in August 2006 and July 2007 were untimely filed by more than 1 and 2
years, respectively. The AJ found that the appellant failed to establish good cause for
this delay in filing.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to vacate the initial decision and remand the appeal to the regional
office for further adjudication:
1. The Board has viewed the removal of a Postal Service employee, who is retained
on the agency’s rolls in a non-pay status until the final disposition of a grievance,
as being constructively effective on the effective date contained in the agency’s
decision notice, rather than on the date when the employee is eventually separated
from the Postal Service’s rolls. The Board has nevertheless found that a settlement
agreement reached during a grievance could serve to change the employment status
of an employee who has been kept on the agency’s rolls in a non-pay status after a
removal, and thereby alter the general rule that the effective date of a removal is
the date set forth in the decision letter.
2. It is not clear from the existing record whether the exception to the general rule
should apply in this case, necessitating a remand. On remand, the AJ will accept
further evidence and argument on the timeliness issues, including the submission of
any applicable collective bargaining agreement, and any evidence relating to when
the agency first informed the appellant of the January 12, 2007 removal.
► Appellant: Joyce A. Barrett
Agency: United States Postal Service
Decision Number: 2008 MSPB 19
Docket Number: CH-0353-07-0566-I-1
Issuance Date: January 30, 2008
Appeal Type: Restoration to Duty
Action Type: Restore After Recovery from Compensable Injury
Miscellaneous Agency Actions
- Restoration to Duty
The appellant petitioned for review of an initial decision that dismissed her appeal
for lack of jurisdiction. In her appeal, the appellant claimed that the agency improperly
12
failed to provide partial restoration to her after compensable on-the-job injury. Without
holding a hearing, the AJ dismissed the appeal for lack of jurisdiction.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to reverse the initial decision and remand the appeal to the regional
office for further adjudication:
1. In order to establish Board jurisdiction over a restoration claim as a partially
recovered employee, an appellant must allege facts that would show, if proven,
that: (1) She was absent from her position due to a compensable injury; (2) she
recovered sufficiently to return to duty on a part-time basis, or to return to work
in a position with less demanding physical requirements than those previously
required of her; (3) the agency denied her request for restoration; and (4) the
denial was “arbitrary and capricious.”
2. The appellant made nonfrivolous allegations as to each of these elements. As to
the last, the appellant’s treating psychologist determined that the appellant could
return to work on a part-time basis, but that such return must be to the same
facility where she previously worked where she “still has her support network of
husband, relatives and friends.” Her doctor also stated that the appellant should
perform her duties “seated in a chair with back support.” After a meeting was
held between the appellant, her union representative, and agency officials, the
agency denied the request to return to work, stating that her request included “an
environment free of noise and interaction,” unlimited access to family members for
comfort and support,” and “limited or no supervision.” The appellant responded
to this, stating, “At no time was a request made for UNLIMITED ACCESS to
family member for comfort and support, limited or no supervision, and an
environment free of noise and interaction.” Given that the agency based its denial,
at least in part, on restrictions that were clearly beyond the scope of those set forth
by the appellant and her doctor, the Board found that the appellant had made a
nonfrivolous allegation that the agency’s denial of partial restoration was arbitrary
and capricious. | 31,842 | |
Case Report - March 3, 2008 | 03-03-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_3_2008_319329.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_3_2008_319329.pdf | CASE REPORT DATE: March 3, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Samuel Valenzuela
Agency: Department of the Army
Decision Number: 2007 MSPB 313
Docket Number: DA-0752-07-0143-I-1
Issuance Date: December 21, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Absence-Related
- Falsification
Penalty
The appellant petitioned for review of an initial decision that affirmed his removal.
Holdings: The Board affirmed the initial decision with respect to the charge of
AWOL and failure to follow leave procedures, reversed the initial decision with
respect to the charge of providing false or misleading evidence, and affirmed the
removal penalty for the sustained charge.
1. The agency established AWOL, which requires a showing that the employee was
absent, and that his absence was not authorized or that his request for leave was
properly denied. The agency also established that discipline was appropriate based
on the appellant’s failure to follow leave procedures.
2. By finding that the agency failed to prove that the appellant intended to deceive
or mislead the agency by the medical documentation he provided, but sustaining
the charge upon finding that the agency proved that the appellant provided
misleading but not false information, the administrative judge (AJ) improperly
split the charge that the appellant “provided false or misleading information not
consistent with medical documentation as reason for not being at work” on
specified dates. Falsification requires proof of intent to deceive.
3. Removal was a reasonable penalty for the sustained charge.
2
► Appellant: Dean J. Balouris
Agency: United States Postal Service
Decision Number: 2008 MSPB 1
Docket Number: PH-0752-06-0495-I-1
Issuance Date: January 4, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
- Assault/Violent Conduct
The agency petitioned for review of an initial decision that mitigated the
appellant’s removal to a 60-day suspension. The removal action, based on a charge of
“Unacceptable Conduct/Assault,” related to an incident between the appellant and
another letter carrier, Sullivan. The agency charged that, after heated words between
the two were exchanged, the appellant punched Sullivan in the side of the face. The AJ,
however, believed the appellant’s testimony that he reflexively pushed Sullivan away
after Sullivan had spit on him and, in doing so, accidentally hit Sullivan in the face.
The AJ also found that Sullivan instigated the altercation by referring to the appellant
as an “a**hole” in a telephone conversation with a third party within the appellant’s
hearing. In light of these findings, and that (1) Sullivan suffered only minor injuries,
(2) Sullivan was only issued a letter of warning, and (3) the appellant had 15 years of
satisfactory service with no previous disciplinary record, the AJ found that the removal
penalty exceeded the bounds of reasonableness and mitigated the penalty to a 60-day
suspension.
Holding: A majority of the Board, Member Sapin dissenting, granted the agency’s
PFR and reinstated the removal penalty. Although the majority found no error in
the AJ’s finding that the appellant did not intentionally strike Sullivan, it
concluded that the deciding official had weighed the relevant Douglas factors and
that the removal penalty was within the bounds of reasonableness.
Relying on the same factors as did the AJ, Member Sapin concluded that the
removal penalty exceeded the bounds of reasonableness, and would have affirmed the
mitigation to a 60-day suspension.
► Appellant: Sylvester Christopher
Agency: Department of the Army
Decision Number: 2008 MSPB 2
Docket Number: AT-0752-07-0092-I-1
Issuance Date: January 8, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Falsification/Fraud
Penalty
The agency petitioned for review of an initial decision the appellant’s removal to a
14-day suspension. The agency removed the appellant from his position as a Metal
3
Worker Welder based on 3 charges: (1) inappropriate comments in the workplace;
(2) false statement on his Declaration for Federal Employment; and (3) violation of the
agency’s policy on violence in the workplace. Both the first and third charges were
based on a statement to a co-worker that, if he did not receive a promotion to a leader’s
position, “he would go out to [his] car, get [his] gun and shoot the place up and shoot
somebody.” The second charge was based on the appellant’s response to a question that
asked whether, during the last 10 years, he had been convicted, imprisoned, or placed
on probation or parole and, if so, required him to provide details of all such
occurrences. The appellant answered this question in the affirmative, and in the
explanation portion wrote: “My wife and I had a domestic squabble between 96 and 97.
I was placed on probation but all that has been taken care of.” The agency charged that
this answer was false, in that the appellant failed to disclose that he was arrested,
charged, and convicted of assault on 4 separate occasions between December 1994 and
November 1999, for which he was sentenced to and served periods of incarceration, and
that he was charged and convicted of contempt of court in 2001.
The AJ merged the first and third charges into a single charge, as they both related
to the same alleged misconduct, and found that the agency proved it by preponderant
evidence. The AJ did not sustain the second charge, finding that the appellant lacked
the intent to deceive the agency. Based on the single sustained charge, the AJ found
that the removal penalty exceeded the bounds of reasonableness, and mitigated the
penalty to a 14-day suspension. The AJ also order the agency to provide interim relief.
Holdings: The Board granted the agency’s PFR and reinstated the removal
penalty:
1. The Board rejected the appellant’s argument that the agency’s PFR should be
rejected for lack of compliance with the interim relief order. The agency certified
that it timely took appropriate administrative action to result in the issuance of
pay to the appellant for the interim relief period, and the appellant’s evidence
shows that he is receiving pay and benefits from the agency during the interim
period.
2. Based on the totality of the evidence, the Board concluded that the agency
proved is falsification charge by a preponderance of the evidence.
3. Based on the sustained charges, the removal penalty was reasonable.
► Appellant: Cheryl W. Nevins
Agency: United States Postal Service
Decision Number: 2008 MSPB 4
Docket Number: PH-0353-07-0280-I-1
Issuance Date: January 11, 2008
Appeal Type: Restoration to Duty After Recovery from Compensable Injury
Jurisdiction
Miscellaneous Agency Actions
- Restoration to Duty
Timeliness
4
The appellant petitioned for review of an initial decision that dismissed her
restoration appeal for lack of jurisdiction. The appellant experienced a work-related
injury to her eyes in 1991. In 1997, the agency offered the appellant a limited-duty
assignment, which she refused to accept, and resigned from her federal employment.
There was extensive litigation between the appellant and the Department of Labor,
including the Office of Workers’ Compensation Programs (OWCP) and Employees’
Compensation Appeals Board (ECAB), starting in 1998, and concluding on
February 26, 2006, when the ECAB found that the appellant did not have any permanent
residual affect from the employment injury, and affirmed OWCP’s action terminating
compensation in 2004.
Holdings: The Board granted the appellant’s PFR, reversed the initial decision,
and remanded the appeal to the regional office for adjudication on the merits:
1. Where an employee fully recovers from a compensable injury after more than a
year, MSPB jurisdiction requires nonfrivolous allegations that: (1) the appellant
was separated because of a compensable injury; (2) she has fully recovered more
than a year after the date she became eligible for OWCP benefits; (3) she requested
restoration within 30 days after the cessation of OWCP compensation; and (4) she
believes that the agency violated her reemployment priority rights.
2. The first and fourth elements are satisfied, as there is no dispute that the
appellant’s OWCP compensation benefits were terminated in 2004, and that the
agency has not subsequently entered the appellant on its reemployment priority
list.
3. OWCP eventually determined that it did not make a valid work suitability
determination with regard to the limited-duty position offered to the appellant in
1997, and she has alleged that her resignation arose in the context of rejecting the
same limited-duty position. The appellant thereby made a nonfrivolous allegation
that this separation resulted from, or was substantially related to, her compensable
injury, satisfying the first element of the jurisdictional standard.
4. With regard to the third jurisdictional element—a timely request for
restoration—the Board found that the appellant has raised a sufficient factual
dispute as to require a hearing. A remand is therefore required.
► Appellant: Richard A. Froom
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 6
Docket Number: AT-0831-07-0536-I-1
Issuance Date: January 11, 2008
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Retirement
- Deposits/Refunds
5
The appellant petitioned for review of an initial decision that affirmed OPM’s
denial of his request for a refund of his discretionary CSRS military service credit
deposit.
Holding: The Board granted the appellant’s PFR, reversed the initial decision, and
ordered OPM to refund the appellant’s deposit. In making the deposit, the
appellant had reasonably relied on incorrect information supplied to him by OPM
and the Social Security Administration. Under these circumstances, OPM must
grant the appellant’s request for a refund.
► Appellant: Tracy A. Baldwin
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 311
Docket Number: CH-0845-07-0209-I-1
Issuance Date: December 19, 2007
Appeal Type: FERS - Collection of Overpayment
Retirement
- Annuity Overpayment
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that she was not entitled to an adjustment of the recovery schedule for
repaying an overpayment of annuity benefits. A majority of the Board denied the PFR.
Member Sapin issued a dissenting opinion in which concluded that the repayment
schedule should be reduced from $50 per month to a nominal amount of $5 per month.
She found the facts of the present case similar to several others in which the Board
reduced the repayment schedule.
► Appellant: Ervine E. Rumph
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 3
Docket Number: AT-844E-07-0839-I-1
Issuance Date: January 9, 2008
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. During a telephone conference, the appellant told the AJ he
was actively seeking OPM’s reconsideration of the decisions reflected in an OPM letter
to him. The administrative judge dismissed the appeal without prejudice on the ground
that OPM had not yet issued a final decision that was appealable to the Board.
Holding: Although the initial decision was correct when issued, OPM has now
issued a final decision subject to Board jurisdiction. Accordingly, the appeal was
remanded to the regional office for adjudication.
6
► Appellant: Mark A. Deems
Agency: Department of the Treasury
Decision Number: 2008 MSPB 5
Docket Number: PH-3443-03-0115-X-1
Issuance Date: January 11, 2008
Appeal Type: Compliance
Compliance
Board Procedures
- Reopening and Reconsideration
This case was before the Board based on the AJ’s Recommendation finding the
agency in noncompliance with the Board’s final decision in Deems v. Department of the
Treasury, 100 M.S.P.R. 161 (2005). In that decision, the Board ordered the agency to
reconstruct the selection process for three File Clerk positions. The AJ found that the
agency, by utilizing the Clerical and Administrative Support Positions assessment tool
in reconstructing the selection for two of the three positions, again made choices that
were non-competitive and did not take into account the appellant’s veterans’ preference
rights. The AJ found, however, that the agency adequately demonstrated that its
selection of another person for the third position was based on a legitimate exception to
the required examination process, 5 C.F.R. § 213.3102(u) (2006), and was authorized
by Executive Order 12125. In addition to filing a response to the AJ’s
Recommendation, the agency moved for reconsideration decision of the Board’s final
decision.
Holdings: The Board denied the agency’s motion for reconsideration and
remanded the case to the regional office for further adjudication:
1. The agency’s argument that the Board lacks jurisdiction over the appellant’s
VEOA claim is based on the mistaken assumption that 5 U.S.C. § 3304(b) is not a
statute relating to veterans’ preference-eligible, an argument that was rejected in
Dean v. Department of Agriculture, 2006 MSPB 1, 104 M.S.P.R. 1, ¶¶ 8-10 (2006).
2. The Board now believes that there are shortcomings in the factual record that
are material to the outcome of the compliance issue, making a remand to the
regional office appropriate.
► Appellant: Carlos M. Rivera
Agency: United States Postal Service
Decision Number: 2007 MSPB 312
Docket Number: NY-0752-05-0345-X-1
Issuance Date: December 20, 2007
Appeal Type: Compliance
Compliance
The case was before the Board on the AJ’s Recommendation finding that the
agency was in noncompliance with the Board’s final order. The merits proceeding in
this removal action was resolved by settlement. In his petition for enforcement, the
appellant alleged numerous violations of the agreement. Most were resolved during the
7
compliance proceeding, but the AJ found the agency in noncompliance as to is
obligations to pay interest on back pay and with respect to its obligation to credit the
appellant with the appropriate amounts of leave.
Holding: The Board found the agency to be in continued noncompliance with its
obligations to pay interest on back pay and to credit the appellant with appropriate
leave, and ordered the agency to provide this. The Board found that additional
allegations of noncompliance raised by the appellant should be determined in a
new compliance proceeding, as they had not been raised in the existing action. | 14,962 | |
Case Report - January 25, 2008 | 01-25-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_25_2008_312273.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_25_2008_312273.pdf | CASE REPORT DATE: January 25, 2008
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Richard W. Parbs
Agency: United States Postal Service
Decision Number: 2007 MSPB 302
Docket Number: AT-0752-07-0266-I-1
Issuance Date: December 13, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Insubordination
Interim Relief
The agency petitioned for review of an initial decision that reversed the appellant’s
removal. The agency removed the appellant, a Mail Processing Equipment Mechanic,
based on a charge of “Improper Conduct” relating to an incident between him and a
Distribution Operations Supervisor. Based on the specification of misconduct, the
administrative judge (AJ) determined that the agency had charged the appellant with
insubordination, and that the agency failed to prove that charge. The appellant filed a
motion to dismiss the petition for review (PFR) on the basis that the agency failed to
comply with the AJ’s interim relief order.
Holdings:
1. The Board declined to dismiss the agency’s PFR for failure to comply with the
interim relief order. The Board does not have the authority to review the merits of
the agency’s determination that the appellant’s return would be unduly disruptive
and the appropriateness of the work assignment he was given. Minor shortcomings
in the agency’s certification of compliance are not sufficiently serious to warrant
dismissing the PFR.
2. The Board concurred with the AJ’s conclusion that the agency had charged the
appellant with insubordination, notwithstanding the “Improper Conduct” label.
2
Although a charge of “improper conduct” has no specific elements of proof, the
Board will examine the structure and language in the proposal and decision
notices. The structure and language of those notices persuaded the Board that the
agency charged the appellant with insubordination. Moreover, the AJ had
informed the agency in a pre-decision order that he had determined that the
specification involved insubordination, and the agency did not object to this order.
3. A majority of the Board, Member Sapin dissenting, concluded that the agency
proved its charge of insubordination, which is the willful and intentional refusal to
obey an authorized order of a superior officer which the officer is entitled to have
obeyed.
4. The Board concluded that the AJ did not commit prejudicial error in
adjudicating the appellant’s affirmative defenses.
It noted, however, that the AJ
should have applied the higher standard of proof set forth in Warren v. Department
of the Army, 804 F.2d 654 (Fed. Cir. 1986) to the appellant’s allegation of
retaliation for whistleblowing, instead of the standard contained in the
Whistleblower Protection Act, because the WPA does not apply to Postal
employees.
5. The Board concluded that removal is a reasonable penalty for the sustained
charge of insurbordination.
► Appellant: Jerry O. Jones
Agency: Department of the Treasury
Decision Number: 2007 MSPB 304
Docket Number: DA-0752-07-0206-I-1
Issuance Date: December 13, 2007
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Retirement
The appellant petitioned for review of an initial decision that dismissed his appeal
of his allegedly involuntary retirement for lack of jurisdiction. The appellant was a
Program Manager with the IRS in Dallas, Texas. He received a telephone call from his
second-line supervisor, who told the appellant that he was unhappy with the appellant’s
performance and would be reassigning him immediately. This led to a meeting 2 days
later, on July 21, in which the supervisor told the appellant he had “lost confidence” in
him and was therefore assigning him to a new post as an Automation Project Manager
in New Carrollton, Maryland. The supervisor told the appellant that, if he did not
accept the reassignment, he must retire or face removal within 90 days. The supervisor
also told the appellant that, if he were to retire by August 3, he could offer the appellant
a Voluntary Separation Incentive Payment (VSIP). Because OPM had not given the
agency VSIP authority for either the appellant’s existing position or the position in
Maryland, it was necessary to reassign him to a third position to qualify him for a VSIP.
The appellant alleged that, while he was contemplating retirement, the agency
3
transferred him to this third position without his knowledge. Three days later, he
applied for immediate retirement and the VSIP, both of which were approved.
Based on the parties’ written submissions, the AJ found that the appellant failed to
make a nonfrivolous allegation of jurisdiction, and dismissed the appeal without
holding a hearing.
Holdings: The Board granted the appellant’s petition for review, vacated the
initial decision, and remanded the appeal for a jurisdictional hearing:
1. Although a decision to retire is presumed to be voluntary, this presumption can
be overcome. An employee’s retirement is considered involuntary where an agency
threatens a removal action knowing that the removal cannot be substantiated. The
Board will consider the totality of the circumstances to determine voluntariness,
including undue time pressure on the retirement decision and agency bad faith in
encouraging the retirement, as well as unreasonably difficult working conditions
caused by the agency.
2. Although the agency alleged that it had legitimate management reasons for
reassigning the appellant—that it was going through a reorganization, the
appellant was suffering from performance problems in his current position, and
that the agency determined that the appellant’s talents could best be utilized at the
New Carrollton post of duty—the appellant made allegations to rebut these
proffered reasons, including that there was no reason to require him to move to
New Carrollton to work in the reassigned position, as other employees working on
the same project were permitted to work from their respective posts of duty
throughout the United States. The AJ erred in crediting the agency’s explanation
over the appellant’s without holding a hearing. Although an AJ may consider an
agency’s documentary evidence in determining whether the appellant has made
nonfrivolous allegations of involuntariness, when the agency’s evidence constitutes
mere factual contradiction of the appellant’s otherwise prima facie showing of
jurisdiction, a requested hearing must be held. Here the propriety of the
reassignment could not be determined without a hearing.
3. In addition to the threatened removal, the appellant made a nonfrivolous
allegation that the agency showed bad faith in encouraging the appellant’s
retirement by qualifying him for a VSIP for which he was not otherwise eligible,
and which exerted additional time pressure on his decision to retire.
► Appellant: Michael A. Endres
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 301
Docket Number: DE-3443-06-0055-X-1
Issuance Date: December 12, 2007
Compliance
This case was before the Board on a Recommendation of the AJ finding the agency
in noncompliance with the final order in the underlying appeal. In the merits appeal
concerning the appellant’s VEOA claim, the AJ found that the agency violated the
4
appellant’s rights as a veteran when it selected another applicant for the position of
Chief Financial Officer (CFO) in its Denver Veterans Affairs Health Administration
Center. The appellant was included on the certificate of eligibles with a score of 92
points, which include 10 points for disabled veterans’ preference. The certificate of
eligibles also included two other individuals, McCorvey and Innis, with scores of 97
and 94 points, each of which included 5 points veterans’ preference. Both McCorvey
and Innis had the notation “TP” next to their scores, indicating that they had received
the status of tentative veterans. Although the certificate forewarned that a selection
could not occur without verifying the preference status of all the candidates, the agency
selected McCorvey for the position before determining whether he was eligible for
veterans’ preference. It was later determined that McCorvey was not entitled to
veterans’ preference status. During the appeal, the agency acknowledged that it had
appointed McCorvey without seeking “pass over” authority from OPM, and without
giving the appellant an opportunity to respond to the “pass over” in accordance with
5 U.S.C. § 3318. The AJ found that the agency’s violation of the appellant’s veterans’
preference rights was willful because it had neglected to verify whether the selectee was
entitled to veterans’ preference status despite having been given instructions to do so.
As a remedy, the AJ ordered the agency to “appropriately” reconstruct its selection
process consistent with the appellant’s rights as a compensably disabled veteran.
In its “Agency’s Compliance with Order,” the agency stated that the reconstructed
certificate of eligibles contained only the appellant’s name, and argued that it was
within its authority not to make any selection from the certificate. It stated that
McCorvey would continue to hold the CFO position through a “regularization” of his
appointment based on obtaining a variation under 5 C.F.R. § 5.1 to correct the
administrative error that led to McCorvey’s original selection. The appellant filed a
petition for enforcement. Following a hearing, the AJ issued a Recommendation
concluding that the agency’s reconstruction and its alleged decision to make no
selection from the certificate of eligibles was contrary to the facts and did not constitute
a selection process consistent with law. The AJ further concluded that McCorvey’s
non-competitive appointment through an alleged regularization under 5 C.F.R. § 5.1
effectively circumvented the veterans’ preference laws, including the requirement that it
seek authority from OPM to pass over the appellant in order to hire a candidate who did
not have preference eligibility at the time of the selection.
Holdings:
1. The agency did not properly reconstruct the selection process. Under a proper
reconstruction, the appellant would have to be entered on the register ahead of
McCorvey, who would have had the same score as the appellant, and Innis would
have had either 89 or 94 points, depending on whether he was determined to be a
preference eligible. To have selected McCorvey for the position, the appointing
authority must have received OPM’s approval to do so after filing written reasons
with OPM for having passed over the appellant, and the agency must also have
given the appellant notice of the agency’s intent to pass over his candidacy and the
opportunity to respond to the agency’s reasons. The agency took neither of these
actions.
5
2. The agency’s purported “regularization” of McCorvey’s appointment to the
CFO position was not in accordance with law. First, McCorvey’s selection cannot
be called an “administrative error” because the agency did not verify his
preference eligibility status prior to his selection as required. His selection thus
involved a violation of law, not an administrative error. Second, there is no
evidence that the agency obtained a variation. Because the agency has not shown
that McCorvey’s appointment was regularized by either a variation or by
correcting the illegal component of the appointment, McCorvey’s appointment to
the CFO position is not valid.
► Appellant: Armando H. Calvetti
Agency: Department of the Air Force
Decision Number: 2007 MSPB 306
Docket Number: DA-0752-07-0299-I-1
Issuance Date: December 14, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
Whistleblower Protection Act
- Election of Remedies
The appellant petitioned for review of an initial decision that dismissed his appeal
of a removal action as untimely filed. The agency removed the appellant from his
position effective April 26, 2004. He filed an appeal of that action with the Board on
July 5, 2005. In an initial decision that became the Board’s final decision, the AJ
dismissed the appeal as untimely filed without good cause shown. Doc.
No. DA-0752-05-0545-I-1 (Oct. 6, 2005). On November 9, 2006, the appellant sought
corrective action from OSC, challenging his removal on the basis of whistleblower
retaliation. After OSC informed the appellant that it had terminated its inquiry, the
appellant filed an IRA appeal with the Board within 65 days of OSC’s notification
letter. The AJ interpreted 5 U.S.C. § 1214(a)(3) and 5 C.F.R. § 1209.5(b) to mean that
the appellant could choose one of two options for raising his allegations that the
agency’s removal action was due to whistleblower retaliation: he could seek corrective
action from OSC, or he could file an appeal directly with the Board. Since the
appellant first sought to challenged the removal action by filing his first appeal directly
with the Board, the AJ determined that the time limit for this appeal was governed by
5 C.F.R. § 1201.22(b), rather than the time limit set for in 5 C.F.R. § 1209.5(a).
Accordingly, the AJ determined that the appeal was untimely filed without good cause
shown.
Holding: Although the Board denied the appellant’s PFR, it reopened the appeal
to find that the appellant’s options were governed by 5 U.S.C. § 7121(g), and that
the appeal was timely filed. Under section 7121(g), an employee who is subject to a
personnel action that he is entitled to grieve and who alleges a prohibited
personnel practice that is not covered by 5 U.S.C. § 2302(b)(1), may elect one of the
following remedies: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) the
negotiated grievance procedure; or (3) a complaint with OSC which, upon
6
exhaustion of Special Counsel proceedings, may be followed by an appeal to the
Board under 5 U.S.C. §§ 1214 and 1221. Since the appellant was entitled to grieve
his removal, he could have elected one of the remedies set forth in section 7121(g).
Since the appellant’s prior removal appeal was untimely filed, the appellant did
not “elect” the Board remedy by filing that appeal. He was therefore free to elect
the third remedy, which he has done in a timely manner by filing within 65 days
after OSC’s termination letter.
► Appellant: Patricia K. Zelenka
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 308
Docket Number: PH-831M-07-0316-I-1
Issuance Date: December 17, 2007
Appeal Type: CSRA - Overpayment of Annuity
Retirement
- Annuity Overpayment
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination regarding an overpayment of annuity benefits. It was undisputed that the
appellant, who retired on disability in 1991, was later restored to an earning capacity
and was no longer entitled to disability retirement benefits because she exceeded the
80% earnings limit under 5 U.S.C. § 8337(d) and 5 C.F.R. § 831.1209. By the time of
OPM’s July 2006 notice, the appellant had received an overpayment of $45,341.22, the
amount of which was not in dispute. OPM found, and the Board’s AJ affirmed on
appeal, that the appellant was not entitled to a waiver of the overpayment. The AJ did,
however, find that an adjustment in the repayment schedule was appropriate, from $350
per month to $250 per month.
Holdings: The Board granted the PFR, affirmed the initial decision as to the
amount of the overpayment, reversed the decision with regard to the finding that
the appellant was at fault in causing the overpayment, vacated the decision with
regard to the determination to adjust the repayment schedule, and remanded the
appeal to the regional office for further adjudication:
1. Under 5 U.S.C. § 8346(b) and 5 C.F.R. § 831.1401, recovery of an overpayment
will be waived when the annuitant is without fault and recovery would be against
equity and good conscience. A recipient of an overpayment is without fault if she
has performed no act or commission or omission that resulted in overpayment.
5 C.F.R. § 831.1402. Although the appellant was on notice of the 80% income
limitation, and could have located the relevant salary table on the Internet, it was
not her responsibility to do this. Her responsibility was to submit accurate earned
income reports to OPM, which she did. It was OPM’s responsibility to advise her
when she exceeded the limit. The appellant was therefore without fault in the
creation of the overpayment.
2. To date, the appellant has failed to establish that recovery is against equity and
good conscience on the ground that it would cause financial hardship. Although
the appellant argues that the AJ erred in this regard, she has failed to provide
7
evidence to support this argument; the evidentiary record supports a finding that
the margin available for debt collection is well under OPM’s proposed monthly
installments of $350.
3.
After the AJ issued her decision, the Board issued its decision in Fearon v. Office
of Personnel Management, 2007 MSPB 252, 107 M.S.P.R. 122, which held that the
Board lacks the authority to address the appellant’s possible entitlement to an
adjustment.
4. A remand is appropriate for further development of the record on the issue of
financial hardship. OPM’s guidelines allow for the possibility of a partial waiver
of the overpayment, the appellant’s financial information is now a year old, and
additional information regarding her alleged “extraordinary” recurring expenses
required for her husband would be helpful.
► Appellant: Kurt Heiter
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 305
Docket Number: AT-0831-07-0435-I-1
Issuance Date: December 13, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Retirement
- Recovery from Disability
The appellant petitioned for review of an initial decision that affirmed OPM’s
decision terminating his disability retirement benefits on the basis that he had recovered
from his disability. In 1990, the appellant began receiving disability retirement from
his position as a mail distribution clerk for the Postal Service because of back problems.
In 2007, OPM determined that the appellant had recovered from his disability based on
an investigation that showed that the appellant had worked part-time as a Federal
Express delivery driver, a position that required comparable physical requirements.
OPM also relied on an interview with the appellant’s treating physician in which the
physician alleged indicated that the appellant’s condition was stable enough that he
could return to work as a distribution clerk. After conducting a hearing, the AJ
affirmed OPM’s decision.
Holdings: Based on clinical findings, expert medical opinion and testimony, plus
the appellant’s own subjective evidence, the Board found that the appellant proved
his continuing entitlement to disability retirement benefits. The appellant’s
physician testified, inter alia, that the appellant’s MRI showed degenerative
changes, that his back was in worse condition now than when he retired, that the
appellant should not have worked for Federal Express, that he would not advise
the appellant to go back to work, and that his condition would prevent him from
lifting more than 20 to 30 pounds (OPM had found that the Federal Express
position required him to lift 70 pounds, the same as his previous Postal position).
The appellant testified, inter alia, that, his 5 months of work with Federal Express
caused his back pain to worsen and forced him to quit the position.
8
► Appellant: Lawrence A. Morin
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 309
Docket Number: DA-0831-07-0406-I-2
Issuance Date: December 18, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Jurisdiction
Retirement
- Service Credit for Post-1956 Military Service
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. OPM determined that the appellant’s CSRS retirement annuity
must be reduced because he was eligible for Social Security benefits and he had not
made a deposit for his post-1956 military service. In his appeal to the Board, the
appellant requested that his military service be credited, and claimed that “retirees in
similar circumstances have been allowed to retire with their military time being
counted.” OPM later issued a letter rescinding its reconsideration decision, advised the
appellant that he would be given an opportunity to complete the deposit for his
post-1956 military service, and requested dismissal of the appeal. Responding to the
AJ’s show-cause order, the appellant explained that “paying the deposit would set the
retiree substantially back financially.” He also proffered that OPM had other options it
could offer him, be failed to identify any. The AJ dismissed the appeal for lack of
jurisdiction on the ground that OPM had completely rescinded its reconsideration
decision.
Holdings: The Board granted the PFR, vacated the initial decision, and affirmed
OPM’s final decision:
1. Once OPM completely rescinds a reconsideration decision, the Board no longer
retains jurisdiction over the appeal in which that decision is at issue. Even though
OPM purported to rescind its reconsideration decision, it is clear that OPM will
not issue another decision. Under these circumstances, the rescission letter
constitutes OPM’s final decision to reduce the appellant’s annuity if he does not
make the deposit for his post-1956 military service, and the rescission letter does
not divest the Board of jurisdiction.
2. If an annuitant who retires after September 7, 1982 does not make a deposit for
his post-1956 military, OPM is required by law to recompute and reduce the
annuity when the retiree becomes eligible for Social Security benefits. The
appellant’s position that he should be credited for his post-1956 military service
without making the requisite deposit is not supported by any statute, regulation, or
decision, and it does not matter whether others are receiving benefits improperly.
The appellant must decide whether to make the deposit and receive credit for his
military service or forego the deposit and not receive the credit.
9
► Appellant: Salvador I. Guerrero, Jr.
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 307
Docket Number: AT-0752-06-0144-X-1
Issuance Date: December 17, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
- Dismissal on Proof
This case was before the Board on a Recommendation by the AJ finding the agency
in noncompliance with the final order which reversed the agency’s removal action.
During this compliance proceeding, it was agreed that the agency had complied with
regard to cancelling the appellant’s removal, his cost of living and within-grade
increases, providing his back pay, and reinstating his health benefits retroactively. The
AJ found, however, that the appellant was entitled to be reimbursed for the $1,100 he
paid for his job search following his removal, and that the agency had not paid the
appellant this amount.
Holding: The agency has submitted evidence that it has now paid the appellant
$1,100 for his job search expenses. The petition for enforcement was therefore
dismissed as moot.
► Appellant: Leslie J. Gregory
Agency: Department of the Navy
Decision Number: 2007 MSPB 303
Docket Number: PH-1221-07-0119-W-1
Issuance Date: December 13, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Protected Disclosure
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction on the basis that the appellant failed to establish that he
had made disclosures protected by the Whistleblower Protection Act. A majority of the
Board denied the PFR by short-form Final Order. Member Sapin issued a dissenting
opinion concluding that the appellant made a nonfrivolous allegation of a violation of
law, rule, or regulation in that he reasonably believed that a supervisor engaged in
excessive use of overtime. She noted that the Board has held in the context of claims of
alleged time and attendance violations that there is no de minimis exception for this
category of protected disclosure.
10
► Appellant: Elpidia L. Braza
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 310
Docket Number: DC-0831-07-0165-I-1
Issuance Date: December 18, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Retirement
- Survivor Annuity
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision, which denied the appellant’s request for a survivor annuity
based on the service of her deceased husband. A majority of the Board denied the PFR
by short-form Final Order.
Member Sapin issued a dissenting opinion in which she
agreed with the AJ that, although the facts of this case are similar to those in Steele v.
Office of Personnel Management, 57 M.S.P.R. 458 (1993), aff’d, 50 F.3d 21 (Fed. Cir.
1995) (Table), she agreed with the AJ’s belief that Steele was wrongly decided and
ought to be overruled. She would have ruled that the appellant’s consent to waiving her
survivor rights was not valid because she was not sufficiently educated to understandv
the effect of her actions when she signed the SF-2801. | 25,509 | |
Case Report - October 12, 2007 | 10-12-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_12_2007_292258.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_12_2007_292258.pdf | CASE REPORT DATE: October 12, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Raymond H. Ryan
Agency: Department of the Air Force
Decision Number: 2007 MSPB 240
Docket Number: DA-0752-06-0393-I-1
Issuance Date: October 4, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Absence-Related
The appellant petitioned for review from an initial decision that sustained his
removal based on a charge of excessive absence from the workplace. The
administrative judge (AJ) found that the agency proved its charge, noting that although
some of the appellant’s absences were covered by approved leave, and generally not
actionable, the agency was permitted to bring a removal action based on excessive
approved absences under Cook v. Department of the Army, 18 M.S.P.R. 610 (1984).
The AJ further found that the appellant failed to prove his affirmative defenses and that
the removal penalty was reasonable.
Holdings:
1. As a general rule, an agency’s approval of leave for unscheduled absences
precludes the agency from taking an adverse action on the basis of those absences.
The Cook exception applies only in a situation where the employee’s absence was
due to excessive use of unscheduled leave without pay (LWOP). The agency
presented no evidence that the appellant made excessive use of unscheduled
LWOP; indeed it presented no evidence that the appellant was carried on LWOP at
all. Nor could the removal action be sustained on the basis of absence without
leave (AWOL), as the agency did not charge the appellant with AWOL.
2
2. The Board concurred with the AJ’s findings that the appellant failed to prove
his affirmative defenses.
The Board ordered the agency to cancel the appellant’s removal and restore him
to employment.
► Appellant: John M. Killeen
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 237
Docket Number: CH-0831-07-0013-I-1
Issuance Date: October 4, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Retirement
- Annuities
Defenses and Miscellaneous Claims
- Collateral Estoppel
OPM petitioned for review of an initial decision that found that the appellant was
entitled to a basic retirement annuity in an amount higher than OPM determined was
appropriate. This controversy was previously before our reviewing court, 382 F.3d
1316 (Fed. Cir. 2004), and in an enforcement proceeding before the Board, 102
M.S.P.R. 627 (2006). The issue is whether OPM was required to do separate
calculations for service performed before and after April 6, 1986, when 5 U.S.C.
§ 8339(p) was enacted. OPM did separate calculations, resulting in a total annuity of
$28,850.41, whereas the appellant claimed that a single calculation was appropriate,
and that he ought to receive $30,803.00. In the initial decision presently under review,
the AJ found that the appellant was entitled to the higher figure.
Holdings:
1. This issue was already litigated and decided in the previous enforcement
proceeding, in which the Board found that it was appropriate for OPM to separate
the pre-April 7, 1986 and post-April 6, 1986 calculations. That determination is
binding in the present appeal under the doctrine of collateral estoppel.
2. Collateral estoppel is an affirmative defense that generally must be timely pled
or is deemed waived, and OPM did not raise the defense. But it is appropriate for
the Board to raise the issue sua sponte in special circumstances, present here,
where significant resources were spent evaluating the issue.
3
► Appellant: Jacqueline E. Gordon-Cureton
Agency: United States Postal Service
Decision Number: 2007 MSPB 239
Docket Number: DC-0752-06-0551-B-1
Issuance Date: October 4, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures
- Reopening and Reconsideration
Defenses and Miscellaneous Claims
- Law of the Case
Jurisdiction
The appellant petitioned for review of a remand initial decision that dismissed
her appeal for lack of jurisdiction. The jurisdictional issue was whether the appellant is
a preference-eligible employee entitled to appeal a removal action to the Board. In the
original initial decision, the AJ found that the appellant was not a preference-eligible
because all of her military service was for training purposes. On petition for review,
the full Board found that the appellant’s active duty for a specified period was not for
training, and that this period of service was the type that would qualify her for
preference-eligible status.
Gordon-Cureton v. U.S. Postal Service, 105 M.S.P.R. 165
(2007). The Board further found that it was unclear from the record whether the
appellant had completed the relevant minimum service requirement or qualified for an
exemption from this requirement, and remanded the appeal for a determination of those
matters. On remand, the AJ again dismissed the appeal for lack of jurisdiction, again
finding that all of the appellant’s active military duty was for training purposes.
Holdings:
1. The petition for review was dismissed as untimely filed (by 15 days) without
good cause shown. Nevertheless, a majority of the Board treated the pleading as a
request to reopen the appeal. Although the Board will not generally reopen an
appeal to cure the untimeliness of a PFR, it has discretion to do so to prevent a
“manifest injustice” when an error implicates a party’s “basic procedural rights,”
and the Board found that reopening was appropriate in this case.
2. Under the law of the case doctrine, an AJ is bound by the findings and
conclusions of the full Board in an earlier phase of ongoing litigation. The Board
had specifically found that some of the appellant’s military service was not for
training, and was of the type that would qualify for preference-eligible status, and
that finding was binding in the remand proceeding.
3. The Board treated the appellant’s statements of frustration at being unable to
find a copy of her DD-214 as a discovery request asking the agency to produce her
DD-214. The agency representative had made assertions about the appellant’s
military service, and stated that the agency had position of the DD-214, but never
submitted it to the Board. The Board stated that the representative’s actions in
4
this regard “goes beyond zealous representation and smacks of gamesmanship,”
and ordered the agency to provide the appellant with a copy of her DD-214.
The Board vacated the remand initial decision and remanded the case for further
adjudication. In a separate opinion, Vice Chairman Rose stated her belief that the
particular circumstances of this case did not justify the exceptional step of reopening an
appeal to cure the untimeliness of the petition for review.
► Appellant: Kenneth A. DeBlock
Agency: United States Postal Service
Decision Number: 2007 MSPB 241
Docket Number: CH-0353-07-0024-I-1
Issuance Date: October 5, 2007
Appeal Type: Restoration to Duty
Action Type: Restore After Recover of Comp Injury Denied
Miscellaneous Agency Actions
- Restoration to Duty
The appellant petitioned for review of an initial decision that dismissed his
restoration appeal for lack of jurisdiction. The appellant left his position in 1993 and
began receiving workers’ compensation benefits. He was removed from the agency’s
rolls in 1999. Effective July 10, 2004, OWCP terminated his compensation because
“his work-related conditions have resolved” and he “could return to work in [his] date
of injury job without restrictions.” The appellant contacted the agency “to be
reinstated,” reported to the agency on August 14, 2004, and worked 2 full days. The
agency then sent him home after he reported for duty on August 18, 2004. The
appellant filed this appeal a little more than 2 years later. The AJ dismissed the appeal
for lack of jurisdiction, finding that, at the time of his appeal, the appellant was neither
fully nor partially recovered from his compensable condition. The AJ further found
that, to the extent that the appeal was based on the agency’s decision to send the
appellant home, and its subsequent failure to honor the appellant’s restoration requests,
the appellant filed a grievance which was resolved by settlement, and he was therefore
foreclosed from appealing those actions to the Board.
Holdings:
1. OWCP’s determination that an individual is fully recovered is “final and
conclusive for all purposes and with respect to all questions of law and fact.”
5 U.S.C. § 8128(b)(1). Accordingly, OWCP’s determination of full recovery is
binding on the Board, despite contrary evidence adduced by the appellant,
including his application for and receipt of disability retirement benefits. The AJ
therefore erred in finding that the appellant had neither fully or partially
recovered from his compensable condition.
2. An employee in the excepted service may appeal an alleged denial of restoration
rights to the Board if he was entitled to priority consideration by presenting
information that he was denied restoration rights because of the employment of
another person. 5 C.F.R. § 302.501. Because the AJ did not fully apprise the
5
appellant of his jurisdictional burden of proof in this regard, a remand is
necessary.
3. The appellant’s allegations may also give rise to a constructive suspension claim,
which would require proof that the appellant was a duly appointed employee on
August 18, 2004. Such a claim might be moot, however, depending on the
circumstances of OPM’s award of disability retirement benefits to the appellant.
4. The grievance settlement agreement does not preclude a Board appeal, as
preference-eligible Postal employees are entitled to pursue both a grievance and a
Board appeal simultaneously.
► Appellant: Phillip W. Sedgwick
Agency: The World Bank
Decision Number: 2007 MSPB 238
Docket Number: DE-3443-07-0158-I-1
Issuance Date: October 4, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
VEOA complaint for lack of jurisdiction. The issue is whether the World Bank is an
agency subject to the Veterans Employment Opportunities Act. The AJ, relying on the
definition of “agency” contained in 5 U.S.C. § 3330(a), found that the World Bank is
not an agency subject to the Act.
Holding: The Board found that section 3330 is not particularly relevant, as that
section was not enacted by or affected by the enactment of VEOA, which is codified
at 5 U.S.C. § 3330a. Nevertheless, the VEOA is applicable only to the civil service
of the United States government, and neither World Bank employees nor recipients
of Word Bank funding are employed in the federal government-wide civil service
system.
► Appellant: Sandra J. Roberts
Agency: Department of Commerce
Decision Number: 2007 MSPB 242
Docket Number: SF-0752-05-0230-I-1
Issuance Date: October 5, 2007
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Timeliness
The appellant petitioned for review of an initial decision issued in 2005.
Holding: The Board dismissed the petition for review as untimely filed without good
cause shown.
6
COURT DECISIONS
► Appellant: Cassandra A. Augustine
Agency: Department of Veterans Affairs
Docket Number: 2006-3307
Issuance Date: October 5, 2007
Attorney Fees
- Authority to Award
In the merits proceeding, the Board determined that the agency violated the
appellant’s veterans’ preference rights in connection with her unsuccessful application
for employment. As the prevailing party, she moved for attorney fees and expenses
under 5 U.S.C. § 3330c(b). The AJ denied that motion on the basis that the appellant’s
attorney was not a member of the California bar. The court vacated and remanded with
instructions to the Board to consider the motion without regard to the state of the
attorney’s bar membership.
Augustine v. Department of Veterans Affairs, 429 F.3d
1334 (Fed. Cir. 2005). On remand, the AJ again denied the motion for attorney fees
and expenses because, in the AJ’s opinion, “[n]one of [the attorney’s] services appear
to have contributed to the appellant’s success on appeal.” This decision became the
Board’s final decision as the appellant did not file a petition for review with the full
Board, instead seeking review by the court.
Holdings:
1. Section 3330c(b) provides: “A preference eligible who prevails in an action
under section 3330a or 3330b shall be awarded reasonable attorney fees, expert
witness fees, and other litigation expenses.” The court rejected “out of hand as
being completely unsupported by the plain language of the statute” the AJ’s
determination that attorney fees and expenses are unreasonable if (1) success
before the Board was not in some way attributable to the efforts of the successful
party’s attorney, or (2) services were rendered prior to the attorney’s entry of
appearance before the Board. The statute requires only that the fees and expenses
be reasonable.
2. As to the amount of fees, “the most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” The case was remanded to the
Board to determine an appropriate amount of attorney fees. | 13,524 | |
Case Report - September 28, 2007 | 09-28-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_28_2007_289857.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_28_2007_289857.pdf | CASE REPORT DATE: September 28, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Shed M. Jessup, Jr.
Agency: Department of Homeland Security
Decision Number: 2007 MSPB 225
Docket Number: AT-1221-07-0049-W-1
Issuance Date: September 17, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Abuse of Authority
- Jurisdiction
- Contributing Factor
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The appellant alleged that 2 personnel actions were
taken against him in retaliation for 3 whistleblowing disclosures. The administrative
judge (AJ) found that the appellant failed to make non-frivolous allegations that any of
his 3 disclosures were protected under the WPA. The first alleged disclosure involved a
statement by an agency official to the appellant that the official would “throw [the
appellant’s] ass under a bus,” which the appellant characterized as an abuse of
authority. The AJ found that this “threat” was not one that a reasonable person would
believe evidenced an abuse of authority and so was not protected under the WPA.
In his petition for review (PFR), the appellant challenged only the AJ’s finding
with respect to the first disclosure.
Holdings:
1. In spite of the appellant’s “misperception that the threat was solely to his body,”
the appellant had alleged before OSC that the official was attempting to intimidate
him and others in order to influence their legal determinations. This constitutes a
non-frivolous allegation of an abuse of authority, which occurs when there is an
2
arbitrary or capricious exercise of power by a federal official that adversely affects
the rights of any person or that results in personal gain or advantage to himself or
to preferred other persons.
2. The appellant made a non-frivolous allegation that this disclosure was a
contributing factor in 2 personnel actions: placing him in a “Release” status,
which is comparable to leave without pay; and the agency’s rescission of a job
offer.
The appeal was remanded to the regional office for a hearing and decision on the
merits.
► Appellant: J. Larry Shope
Agency: Department of the Navy
Decision Number: 2007 MSPB 219
Docket Number: PH-1221-07-0152-W-1
Issuance Date: September 19, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The “disclosure” at issue was the appellant’s e-mail to
his supervisor declining a $500 bonus the agency had awarded him. Although the AJ
denied the agency’s motion to dismiss the appeal for lack of jurisdiction, he concluded,
following a hearing, that the appellant did not make a nonfrivolous allegation that his
disclosure was protected under the WPA.
Holding: Although the AJ’s procedural handling of the appeal was flawed, this
error was harmless because the AJ correctly concluded that the appellant had not
presented a nonfrivolous allegation that his disclosure was protected. The e-mail
did not evidence a reasonable belief that the appellant was disclosing information
that constituted any of the 5 U.S.C. § 2302(b)(8) categories. Instead, the statements
constitute “an unprotected, generalized, vague rant against the government and
agency policy and decision-making.”
► Appellant: Emily K. Hartsock-Shaw
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 222
Docket Number: PH-844E-06-0658-I-1
Issuance Date: September 21, 2007
Appeal Type: FERS - Employee Filed Disability Retirement
3
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision that denied her application for disability retirement benefits.
The appellant applied for disability retirement, claiming she was unable to perform her
duties because she suffered from major depression. The AJ found that, despite the fact
that the appellant had been awarded disability benefits by the Social Security
Administration, she failed to show how her depression interferes with the performance
of her duties. The AJ found that the Bruner presumption—that an employee’s removal
for physical inability to perform the essential functions of her position constitutes
prima facie evidence of entitlement to disability retirement—did not apply because
there was no PS Form 50 or letter of removal in the record indicating that she had been
removed.
Holding: The appeal must be remanded for a determination of whether the Bruner
presumption applies. Contrary to the AJ’s finding, the record contains a PS
Form 50 showing that the appellant was removed effective April 26, 2004. But
neither the PS-50 nor other evidence clearly establishes the basis for the removal.
► Appellant: Richard D. Creasy
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 221
Docket Number: DC-831E-07-0074-I-1
Issuance Date: September 21, 2007
Appeal Type: CSRA - Employee Filed Disability Retirement
Retirement
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision denying his disability retirement application as untimely filed.
The appellant resigned from his position in January 2002, but did not apply for
disability retirement until August 2005, more than 2½ years after the 1-year deadline
specified by 5 U.S.C. § 8337(b). For purposes of determining whether the application
was timely filed, the issue under section 8337(b) is whether the appellant was mentally
incompetent at the time of his separation or within 1 year thereafter. The AJ
determined, after a hearing that included testimony by the appellant’s physician, that
the appellant had not established by preponderance of the evidence that he was mentally
incompetent during this period of time.
Holding: The appellant established by preponderant evidence that he was mentally
incompetent at the time of his separation or within 1 year thereafter. The AJ
failed to give appropriate weight to the physician’s testimony, which was supported
by statements by friends and family.
Chairman McPhie issued a dissenting opinion.
4
► Appellant: Louis A. Lodge
Agency: Department of the Treasury
Decision Number: 2007 MSPB 223
Docket Number: AT-0752-01-0116-I-1
Issuance Date: September 24, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The agency petitioned for review of an initial decision that granted the
appellant’s request for redress under the Veterans Employment Opportunities Act and
ordered the agency to appoint him retroactively to the position for which he had
applied. The appellant cross petitioned for review, asserting that the AJ erred when she
did not order liquidated damages and interim relief.
The appellant, a veteran with a 30% service-connected compensable disability,
applied for the position of Internal Revenue Officer. The agency sought approval from
OPM to “pass over” the appellant in order to select a non-preference eligible, but OPM
denied that request. The agency filled 83 Internal Revenue Officer positions, but did
not select the appellant for this position. On appeal to the Board, the AJ determined
that the agency had violated the appellant’s rights to veterans’ preference, and ordered
the agency to retroactively offer the appellant the position for which he would have
been selected had he not been erroneously passed over. The AJ further determined that
the agency’s violation had not been willful, but ordered the agency to compensate the
appellant for any loss of wages or compensation because of its violation.
On PFR, the agency did not contest the AJ’s finding that it violated the appellant’s right
to veterans’ preference, but argued that the AJ erred in ordering it to retroactively offer
the appellant an Internal Revenue Officer position, and in ordering back pay and
benefits.
Holdings:
1. Reconstruction of the hiring process is the appropriate remedy in this case, not
an order to appoint the appellant retroactively to a particular position.
As set out
in Dean v. Department of Agriculture, 99 M.S.P.R. 533 (2005), aff’d on recons., 104
M.S.P.R. 1 (2006), and in Walker v. Department of the Army, 104 M.S.P.R. 96
(2006), reconstruction of the selection process allows the Board to make
determinations necessary to award appropriate relief, and is consistent with the
principle that requires agencies to give preference eligibles the opportunity to
compete for particular positions, but does not guarantee them a position.
2. Where appropriate, relief may be retroactive. The Board will not order a
retroactive appointment as a remedy, but an individual may be entitled to the
retroactive remedies of back pay and compensation for loss of benefits if it is
determined that he would have been hired by the agency in the absence of a
violation of his rights.
5
3. In light of the above findings, the Board declined to adjudicate the appellant’s
contentions in his cross-PFR at this time.
► Appellant: Henry G. Buckheit, III
Agency: United States Postal Service
Decision Number: 2007 MSPB 224
Docket Numbers: PH-3443-07-0050-I-1; PH-3443-06-0643-I-1; PH-3443-06-0645-I-1
Issuance Date: September 25, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
VEOA appeal for lack of jurisdiction, and denied his request for relief under USERRA.
The agency notified the appellant that his position (PS-5 mail processing clerk at
Linthicum, Maryland) was being abolished, and that he would be reassigned to another
position at the same wage level. The appellant bid for and received an appointment to a
PS-5 mail processing clerk position at Frederick, Maryland. He filed an appeal,
alleging that the agency had conducted a reduction in force (RIF), that the agency had
violated his rights as a preference eligible in doing so, and that the agency had
discriminated against him based on his prior military service. The AJ dismissed the
appellant’s VEOA claim as outside the Board’s jurisdiction, found that the appellant
had not been subjected to an appealable RIF action, and ruled against the appellant on
his USERRA claim, finding that the appellant failed to show that the agency treated him
less favorably than it treated employees who were not preference eligibles.
Holdings:
1. The Board lacks jurisdiction over the action as a RIF, as the appellant was not
separated or demoted, but was reassigned from one PS-5 position to another.
2. The appellant established jurisdiction for his VEOA claim, in that he:
(1) showed that he exhausted his remedy with the Department of Labor; and
(2) made nonfrivolous allegations that he is a preference eligible, the actions at
issued took place after VEOA was enacted, and that the agency violated his rights
under a statute or regulation relating to veterans’ preference. Regarding the last
element, because an employee’s rights under the RIF regulations (5 C.F.R.
Part 351) are based in part on whether the employee is a preference eligible, a
violation of those regulations may constitute a violation of a regulatory provision
relating to veterans’ preference.
3. On the merits of the appellant’s VEOA claim, the RIF regulations apply only
when an agency releases an employee from his competitive level by “reassignment
requiring displacement.” Because the undisputed evidence shows that the
appellant’s reassingment did not require displacement, the appellant has not
shown that he was denied any preference-related rights to which he was entitled
under Part 351.
6
4. The appellant’s argument that the agency violated his assignment rights under
collective bargaining agreement provisions is of no avail, as VEOA does not
provide jurisdiction over violations of rights under a collective bargaining
agreement.
► Petitioner: Special Counsel
Respondent: Paula Acconcia
Decision Number: 2007 MSPB 227
Docket Number: CB-1216-06-0007-T-1
Issuance Date: September 26, 2007
Appeal Type: Disciplinary Action - Hatch Act
Special Counsel Actions
- Hatch Act
The Special Counsel filed a complaint with the Board charging the Respondent
with 3 counts of violating the Hatch Act, specifically 5 U.S.C. §§ 7323(a)(1)-(2) and
7324(a)(2). The Special Counsel alleged that the Respondent, an Assistant United
States Trustee employed by the Department of Justice, used her official authority or
influence to coerce a subordinate employee to make a political contribution for the
purpose of affecting the result of a gubernatorial election. After holding a hearing, the
ALJ found that the Respondent violated the Hatch Act proscriptions against knowingly
soliciting a political contribution from any person, engaging in political activity while
on duty in a government office, and using her official authority for the purpose of
affecting the result of an election. The ALJ rejected the recommended removal penalty,
however, deciding that removal was too severe a penalty for “a single solicitation by an
individual who had no relationship with the political campaign involved and who made
no attempt to follow up or ascertain whether a contribution was made.”
Holding: Under 5 U.S.C. § 7326, removal is presumptively appropriate for a
federal employee’s violation of the Hatch Act, unless the Board finds by unanimous
vote that the violation does not warrant removal. After examining the 5 factors
that are considered in Hatch Act penalty reviews, the Board concluded that
removal was appropriate in this case.
► Appellant: Robert H. Lary, Jr.
Agency: United States Postal Service
Decision Number: 2007 MSPB 220
Docket Number: DE-0752-02-0233-M-1
Issuance Date: September 20, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures/Authorities
- Remands/Forwards
The case was before the Board pursuant to decision by the Board’s reviewing
court in Lary v. U.S. Postal Service, 472 F.3d 1363 (Fed. Cir. 2006), in which the court
7
ordered the Board to provide the appellant with specific performance to remedy a
material breach of a settlement agreement.
Holding: The Board ordered the agency to provide the relief specified by the
court.
Chairman McPhie issued a concurring opinion observing that the appellant’s
death forecloses the possibility that his estate will receive any benefit from the specific
performance ordered by the court, but that “the Board is constrained to comply with the
direction of the court, made with knowledge of the appellant’s death, to order the
agency to now reinstate and then remove a deceased employee.”
► Appellant: Julio G. Pimentel
Agency: Department of the Treasury
Decision Number: 2007 MSPB 228
Docket Number: CH-0752-06-0239-I-1
Issuance Date: September 26, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
This removal action was resolved by a settlement agreement, which was
approved by the AJ in an initial decision issued May 26, 2006. That decision advised
the parties that it would become the Board’s final decision unless a PFR was filed by
June 26, 2006, or the Board reopened the case on its own motion. The appellant filed a
PFR more than 10 months later, on May 18, 2007.
Holding: The Board dismissed the petition for review as untimely filed without
good cause shown.
► Appellant: Karen N. Mitchell
Agency: Broadcasting Board of Governors
Decision Number: 2007 MSPB 226
Docket Number: DC-315H-07-0208-I-1
Issuance Date: September 17, 2007
Appeal Type: Termination of Probationers
Action Type: Probationary Termination
Timeliness
The appellant’s petition for review was filed about 2 months after the deadline
specified in the initial decision. The appellant did not response to the Clerk’s notice
that advised her that her petition might be dismissed as untimely filed unless she
showed that it was timely filed or that good cause justified the delay in filing.
Holding: The petition for review was dismissed as untimely filed without good
cause shown.
8
COURT DECISIONS
► Appellant: Craig J. Jacobsen
Agency: Department of Justice
Docket Number: 2007-3006
Issuance Date: September 20, 2007
Attorney Fees
- USERRA
The appellant petitioned the court for review of the Board’s decision in Jacobsen
v. Department of Justice, 103 M.S.P.R. 439 (2006), which denied the appellant’s motion
for attorney fees. On the merits of the USERRA claim, the Board found that the agency
improperly charged the appellant with two days of military leave for days he was not
scheduled to work. In its motion for attorney fees under 38 U.S.C. § 4324(c)(4), the
appellant sought $8,700 for 29 hours of legal work performed by his attorney. The
Board denied the motion, relying on 2 factors.
First, citing Farrar v. Hobby, 506 U.S.
103 (1992), the Board considered the degree of overall success, and found that the
appellant’s success was “nominal,” in that Jacobsen’s claim for relief covered
unspecified days over a 7-year period, and the agency was eventually ordered to restore
only 2 days of leave. Second, the Board relied on the fact that the appellant failed to
avail himself of the agency’s administrative process for making retroactive military
leave adjustments. Had he utilized the agency’s internal procedure in the first place,
the Board rationalized, the appellant would have obtained the same result before the
agency without filing an appeal before the Board.
Holdings:
1. Unlike other attorney fees-permitting provisions administered by the Board,
section 4324(c)(4) does not require that the petitioner be a “prevailing party” who
may only be awarded attorney fees in the “interest of justice”; it provides that “the
Board may, in its discretion, award such person reasonable attorney fees....” In
such circumstances, the court would accord broad deference to the Board’s
decision to deny fees.
2. The Board’s reliance on Farrar v. Hobby was appropriate, and the court agreed
that the appellant’s success was minimal. His claim could reasonably be construed
as alleging that the agency improperly charged him military leave for each of the
7 years he was obligated to serve. But the evidence established that the agency
only once improperly charged him with military leave in violation of USERRA.
3. It was error for the Board to rely on the fact that the appellant could have
achieved the same result through the administrative process as he did before the
Board. USERRA contains no requirements that a petitioner pursue, much less
exhaust, his or her administrative remedies prior to bringing an appeal before the
Board. The Board’s improper reliance on this factor was harmless, however. | 18,951 | |
Case Report - September 7, 2007 | 09-07-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_7_2007_285582.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_7_2007_285582.pdf | CASE REPORT DATE: September 7, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Robert C. O'Bleness
Agency: Department of the Air Force
Decision Number: 2007 MSPB 202
Docket Numbers: DA-3443-06-0361-I-1; DA-3443-06-0360-I-1
Issuance Date: August 30, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
In this USERRA appeal, the appellant claimed that the agency improperly denied
him a benefit of employment by improperly charging him for the use of military leave
authorized under 5 U.S.C. § 6323(a)(1) on non-workdays, thereby forcing him to use
annual leave to cover his absence from his federal civilian position for some of his
military reserve service. Relying on copies of the appellant’s copies of his Air Force
Form 526s and other records, plus a spreadsheet based on those records, the
administrative judge (AJ) found that the appellant was entitled to the restoration of 22
days of annual leave for the period of fiscal years 1983 through 1988.
Holding: The appellant did not provide a sworn affidavit as to the specific dates
the agency improperly charged him military leave and the specific dates he was
thereafter forced to use annual leave to cover his absences for military service, and
his documentary evidence did not establish this information. An appellant is not
entitled to relief when he fails to identify and submit evidence of the specific dates
on which he was required to use some form of civilian leave as a result of an
agency’s improper charge of military leave. The request for corrective action was
therefore denied.
2
► Appellant: Charles E. Posey
Agency: Department of Defense
Decision Number: 2007 MSPB 203
Docket Number: AT-1221-03-0888-M-1
Issuance Date: August 31, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
Board Procedures/Authorities
- Criteria for Board Review (Fact Findings)
This case was before the Board on remand from a decision by the U.S.
Court of
Appeals for the Federal Circuit, Posey v. Department of Defense, 180 F. App’x. 931
(Fed. Cir. 2006). The appellant had alleged that the agency took 5 personnel actions
against him in retaliation for his making a whistleblowing disclosure. In the original
initial decision, the AJ found against the appellant on the merits with respect to the first
3 personnel actions, and that the Board lacked jurisdiction over the last 2 personnel
actions because the appellant had waived his appeal rights under a last chance
agreement (LCA). The full Board denied the appellant’s petition for review of that
decision. On appeal to the Federal Circuit, the court found that, by entering into the
LCA, the appellant waived his right to argue that the first 3 personnel actions were
tainted by retaliation for whistleblowing. Nevertheless, the court reversed the Board’s
finding that the appellant had waived his right to argue that his supervisors retaliated
against him while he was subject to the LCA, and remanded the case to the Board for a
determination of whether the agency breached the implied term of good faith by
retaliating against the appellant while he was subject to the LCA.
After a hearing, the AJ issued a remand initial decision, finding no basis for
concluding that the appellant’s supervisors retaliated against the appellant during the
LCA, and concluding that the claim of retaliation was in essence an assertion that the
appellant was “required to perform the full range of duties of his position.” In his
petition for review, the appellant asserted that the AJ failed to fairly assess the evidence
adduced at the hearing.
Holding: The appeal must be remanded for further adjudication because the AJ
did not resolve several material issues relating to the appellant’s job performance
during the LCA period, as required by Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587 (1980). In particular, the AJ did not evaluate
evidence relating to the appellant’s allegations that: (1) His first-line supervisor
told the individual who normally ordered supplies not to perform those duties
anymore, forcing the appellant to create a new system in that regard; (2) his first
line supervisor prohibited a secretary from doing the timekeeping work she had
previously performed; (3) the first-line supervisor had handled scheduling before
the start of the LCA period but would not do so during that period; and (4) the
agency acted in bad faith by requiring the appellant to work under the direct
3
supervision of an individual who was a target of the appellant’s whistleblowing,
even though the appellant’s second-level supervisor, who was also a target of the
whistleblowing, was directed to recuse himself from supervising the appellant.
► Appellant: Christine J. Donati
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 204
Docket Number: PH-0843-05-0336-R-1
Issuance Date: August 31, 2007
Appeal Type: FERS - Death & Survivor Benefits
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
Following the death of former federal employee Andre Gabert, a New Hampshire
probate court determined that he and the appellant had a common-law marriage under a
state statute (N.H.
Rev. Stat. Ann. § 457:39) that requires that a couple acknowledge
one another as husband and wife for 3 years prior to the decease of one of them. In
determining whether the appellant was eligible for survivor annuity benefits, the
dispositive issue was whether the appellant was a “widow” within the meaning of
5 U.S.C. §§ 8441(1) and 8442(b), which require that the surviving wife have been
married for at least 9 months immediately preceding the husband’s death. As applied to
the facts of this case, the question became whether the New Hampshire common-law
marriage statute had retroactive effect in order to meet the 9-month requirement of
federal law. In its earlier decision the Board, Vice Chairman Rose dissenting,
determined that the law did have retroactive effect and that the appellant was entitled to
survivor annuity benefits.
Donati v. Office of Personnel Management, 104 M.S.P.R. 30
(2006). The Director of OPM sought reconsideration under 5 U.S.C. § 7703(d).
Holding: The New Hampshire statute does not have retroactive application.
Accordingly, the appellant was not married to Mr. Gabert for the 9 months
preceding his death, she does not meet the definition of “widow” in 5 U.S.C.
§ 8441(1), and she is therefore not eligible for survivor annuity benefits.
Member Sapin issued a dissenting opinion.
4
► Appellant: Wayne H. Brehmer
Agency: United States Postal Service
Decision Number: 2007 MSPB 205
Docket Number: PH-0752-06-0639-I-1
Issuance Date: August 31, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures/Authorities
- Initial Decision – Contents
Jurisdiction
- Resignation/Retirement/Separation
- Suspensions
Miscellaneous Agency Actions
- Restoration
The appellant petitioned for review of a decision dismissing his appeal for lack
of jurisdiction. The appellant suffered an injury to his left knee in 1986 and was
subsequently diagnosed with underlying degenerative joint disease. Following knee
surgery in 2000, the appellant filed a workers’ compensation claim with OWCP,
arguing that the surgery was causally related to his federal employment. The
appellant’s OWCP claim was denied on June 19, 2003. While that claim was on appeal,
the agency assigned him to a limited-duty position, effective September 24, 2003. On
June 17, 2005, the Employees’ Compensation Appeal Board set aside the Hearing
Representative’s decision and remanded the case to OWCP for further consideration.
Later in 2005, the agency informed the appellant that, because his OWCP claim had
been denied, he was no longer eligible for limited duty, and that, while he was eligible
for light duty, no light-duty work was available. The appellant asked if he was being
laid off, or if he would be placed on administrative leave on account of his veterans’
preference status. He was told that he would have to take annual leave, sick leave, or
leave without pay. The appellant retired effective February 3, 2006.
On appeal to the Board, the appellant alleged that, by terminating his limited
duty status and failing to honor his request for light duty, the agency denied his
restoration rights, placed him on enforced leave, and ultimately forced him to retire. He
further claimed that the agency discriminated against him by failing to accommodate
his disability. Following a hearing, the AJ issued an initial decision finding that the
appellant’s retirement was voluntary, and dismissed the appeal for lack of jurisdiction
without addressing the appellant’s remaining claims.
Holdings:
1. The AJ erred in failing to adjudicate the appellant’s claim of a constructive
suspension, as required by Spithaler v. Office of Personnel Management, 1 M.S.P.R.
587 (1980), and in failing to apprise the appellant of the elements required to
establish Board jurisdiction over an alleged constructive suspension, as required
5
by Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985). A
remand is therefore necessary.
2. Remand is necessary to determine whether the Board may have jurisdiction over
a denial of restoration under 5 C.F.R. § 353.404(c).
3. On remand, the AJ must revisit the appellant’s constructive removal claim. The
AJ found that the agency acted reasonably and on the best information available
regarding the status of the appellant’s OWCP claim. In particular, he relied on the
testimony of an agency official that the agency’s policy is that limited-duty status is
terminated at the point of OWCP’s denial of a claim notwithstanding the fact that
an employee has appealed the denial. But on December 25, 2005, when the agency
determined that the appellant was no longer eligible for limited duty, the ECAB
had vacated OWCP’s negative determination and remanded the matter to OWCP
for a de novo decision.
In his separate opinion, Chairman McPhie concurred in the majority’s decision to
remand the case for proper Burgess notice and adjudication of the appellant’s
constructive suspension claim, and the need to revisit the constructive removal claim if
appropriate. He disagreed with the majority’s decision to also remand the case for
proper Burgess notice and adjudication of a restoration to duty claim; he would have
found that the appellant failed to raise such a claim below.
► Appellant: Dawonna J. Carriker
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 206
Docket Number: CH-844E-06-0588-I-1
Issuance Date: August 31, 2007
Appeal Type: FERS - Employee Filed Disability Retirement
Action Type: Retirement/Benefit Matter
Timeliness
Board Procedures/Authorities
- Initial Decision – Contents
- Forwards
Jurisdiction
- Suspensions
The appellant filed an appeal with the Board following OPM’s denial of her
application for a disability retirement annuity. The AJ issued an initial decision
sustaining OPM’s denial. The decision informed the appellant that it would become the
Board’s final decision unless a petition for review was filed by November 15, 2006.
The appellant filed a petition for review on April 12, claiming that her employing
agency had constructively suspended her by not allowing her to return to work and by
failing to comply with an EEOC final decision in her favor regarding a race
discrimination complaint she had filed.
6
Holding: The petition for review was dismissed as untimely filed without good
cause shown for the delay. The Board forwarded the appellant’s claim of a
constructive suspension to the regional office for docketing as a new appeal.
► Appellant: Angela B. Goodwin
Agency: Department of Transportation
Decision Number: 2007 MSPB 207
Docket Number: DA-0752-06-0624-I-1
Issuance Date: September 4, 2007
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Arbitration/Collective Bargaining-Related Issues
- Election of Remedy
The appellant asked for review of an initial decision that dismissed her appeal
from an alleged involuntary reduction in pay resulting from a reassignment for lack of
jurisdiction on the ground that she made a binding election to first grieve the matter
before filing her Board appeal.
Holding: Contrary to the AJ’s finding, the record shows that the appellant first
elected to contest her reassignment through the EEO process rather than through
the negotiated grievance procedures, filing a formal EEO complaint 2 days before
she filed her first grievance. The Board found that the appellant thus made a
binding election under 5 U.S.C. § 7121(d) and 29 C.F.R. § 1614.301(a) to seek a
remedy to the agency’s actions through “the applicable statutory procedure” and
not through the negotiated grievance procedure. The appellant was thus entitled to
have her EEO complaint processed as a “mixed case” in accordance with 29 C.F.R.
§ 1614.302(d). The initial decision was vacated and the case remanded to the
regional office for further adjudication.
► Appellant: Paul Durand
Agency: Environmental Protection Agency
Decision Number: 2007 MSPB 208
Docket Number: DC-3443-06-0809-I-1
Issuance Date: September 4, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
VEOA and USERRA appeals for lack of jurisdiction. The appellant applied, but was
not selected, for a GS-9 position with the agency. On his application, he indicated that
he was entitled to 5-point veterans’ preference on the basis of his active duty service as
a Public Health Service (PHS) Commissioned Officer from 1975 through 2005. He
filed an appeal with the Board after the Department of Labor determined that his service
as a PHS Commissioned Officer did not entitle him to veterans’ preference. The AJ
7
dismissed the appeal for lack of jurisdiction, finding that the appellant is not a
preference-eligible veteran under the VEOA, and that the Board lacks jurisdiction under
USERRA because the appellant merely alleged that he did not receive more favorable
treatment because of his uniformed service.
Holdings:
1. The appellant established jurisdiction under USERRA because he made
nonfrivolous allegations that: (1) he performed duty in a uniformed service of the
United States; (2) he was denied initial employment; and (3) the denial of initial
employment was due to the performance of duty in the uniformed service. The
Board remanded this claim for a hearing.
2. The appellant failed to establish jurisdiction under VEOA because he failed to
establish that he is a preference-eligible veteran. While 42 U.S.C. § 213(a) provides
that commissioned officers in the PHS have the same rights under federal law as
commissioned officers of the Army under any of 3 specified conditions, none of
those conditions was satisfied here. The Board found that the appellant did not
serve “in time of war.” The Board found persuasive in this regard OPM’s
VetGuide, which indicates that “war,” as used in 5 U.S.C. § 2108(1)(A) means an
armed conflict for which a declaration of war was issued by Congress. The last
“war” for which active duty is qualifying for veterans’ preference is World War II.
Chairman McPhie issued a separate opinion in which he concurred with the
majority as to the VEOA claim, but did not agree that the appellant has asserted a claim
under USERRA that must be remanded for a hearing.
COURT DECISIONS
► Appellant: Raleigh W. Robinson, Jr.
Agency: Department of Homeland Security
Docket Number: 2006-3123
Issuance Date: August 30, 2007
Adverse Action Charges
- Security Clearance Determinations
Constitutional Issues/Due Process
- Due Process
The agency removed Robinson from his position as a Special Agent because his
security clearance, which was a condition of his employment, had been revoked. On
appeal to the MSPB, Robinson argued that his minimum due process rights had been
denied because the agency’s decision to revoke his security clearance had been
“predetermined.” The AJ excluded the testimony of a witness who would have
8
addressed this issue, reasoning that the proffered testimony was not relevant to the only
issue to be adjudicated—“whether the appellant was granted minimum due process
protection.” In an initial decision that became the Board’s final decision, the AJ found
that the agency had afforded Robinson minimum due process in the denial of his
security clearance and had properly followed the procedures of 5 U.S.C. § 7513 when it
removed him from his position.
Holding: In a per curiam opinion, the 3-judge panel affirmed the Board’s decision.
The court held that security clearance decisions are not reviewable for “minimum
due process protection,” stating that federal employees do not have a liberty or
property interest in access to classified information, and that the revocation of a
security clearance therefore does not implicate constitutional procedural due
process concerns.
In a concurring opinion, Judge Rader wrote separately “to clarify that this court
and the Merit Systems Protection Board (“Board”) lack jurisdiction to review security
clearance removal processes at all.” Judge Plager issued a separate concurring opinion
stating his view that the court’s opinion did not adequately respond to one of
Robinson’s major arguments—that, like the plaintiff in King v. Alston, 75 F.3d 657
(Fed. Cir. 1996), he is entitled to have the MSPB and the court review the manner in
which his security clearance was revoked. | 17,762 | |
Case Report - August 31, 2007 | 08-31-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_31_2007_284455.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_31_2007_284455.pdf | CASE REPORT DATE: August 31, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
► Appellant: Johnny Williamson
Agency: United States Postal Service
Decision Number: 2007 MSPB 198
Docket Number: NY-3443-06-0245-I-1
Issuance Date: August 27, 2007
Timeliness
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant, an agency employee, sought corrective action under the Veterans
Employment Opportunities Act (VEOA), alleging that the agency violated his rights as
a veteran when it failed to select him for several higher-graded positions. He filed his
appeal with the Board 18 days after the Department of Labor (DOL) issued its letter
notifying the appellant’s representative that it could not assist the appellant in resolving
his complaint against the agency. The administrative judge (AJ) informed the appellant
that a VEOA appeal must be filed no later than 15 days after the date on which written
notification is received from DOL that it is unable to resolve the complaint, and ordered
the appellant to state when he received DOL’s written notification. The AJ also ordered
the appellant to state the nature of the agency’s alleged violations and the dates on
which they occurred. In response, the appellant did not specify the date when he
received DOL’s letter, asserting only that he timely filed his Board appeal within the
15-day window. Without holding a hearing, the AJ issued an initial decision dismissing
the appeal as untimely filed, and for failing to state a claim upon which relief could be
granted, stating that veterans’ preference rules do not do not apply to promotions and
intra-agency transfers.
2
Holdings:
1. The Board found that the appeal was timely filed. Board precedent and
regulations recognize that documents placed in the mail are presumed to be
received in 5 days. Accordingly, DOL’s May 25, 2006 letter is presumed to have
been received by the appellant’s representative on May 30, 2006, making the
appellant’s June 12, 2006 appeal timely filed within the 15-day filing period.
2. The Board denied corrective action on the merits, as the record shows that the
appellant applied for multiple positions under announcements limited to internal
candidates, and veterans’ preference does not apply when an employee seeks a
promotion under an announcement limited to internal candidates.
Chairman McPhie issued a concurring opinion in which he agreed that the
appellant’s claim of a violation of his veterans’ preference rights fails on the merits,
and that the appeal was timely filed, but his reasoning on the latter issue differed from
the majority opinion.
► Appellant: Paul R.S. Vogel
Agency: Department of the Navy
Decision Number: 2007 MSPB 200
Docket Number: AT-0752-07-0168-I-1; AT-1221-07-0169-W-1
Issuance Date: August 29, 2007
Appeal Types: Adverse Action by Agency; IRA Appeal
Action Type: Reduction in Grade/Rank/Pay
Settlement
- Authority Under/Effect Of
- Waiver of Rights
Whistleblower Protection Act
The agency removed the appellant from his GS-12 Accountant position, effective
January 4, 2004, and he filed an appeal with the Board’s regional office. That appeal
was resolved pursuant to a settlement agreement in which the agency agreed to cancel
the appellant’s removal and to accept his request for a GS-07, step 10 Command
Evaluation position, and in which the appellant agreed that the agency’s actions would
constitute a full and complete settlement of the appeal, and that he waived his right to
litigate any allegations or charges identified in the appeal, or to institute any other
actions with respect to them. An initial decision was issued dismissing the appeal per
the settlement agreement, and a petition for review filed by the appellant was dismissed
as untimely.
Vogel v. Department of the Navy, 101 M.S.P.R. 638 (2006).
Following his receipt of a November 2006 letter from the Office of Special
Counsel informing him that it was terminating its investigation into his claims of
reprisal for making whistleblowing disclosures, the appellant filed another appeal with
the Board, which was docketed as both an adverse action (0752) appeal, and as an IRA
(1221) appeal. The appellant alleged that he made whistleblowing disclosures on
August 22, 2003, and that the agency retaliated against him by attempting to reassign
3
him in September 2003, and by removing him effective January 4, 2004. The appellant
also claimed that he made protected disclosures in May 2001 and that, as a result, he
was threatened with termination and referred for counseling. In response to a
jurisdictional order issued by the AJ, the appellant argued that the agency fraudulently
induced him to enter into the settlement agreement because it had no intention of
complying with it, and, in fact, had breached it. The AJ dismissed both appeals for lack
of jurisdiction, finding that the appellant could not overcome the waiver of his appeal
rights because he breached the agreement by filing a complaint with OSC regarding his
reassignment and subsequent 2004 removal, that he did not make a nonfrivolous
allegation that the agency breached the agreement; and he did not claim that he did not
knowingly and voluntarily enter the agreement.
Holdings:
1. In the adverse action appeal, the appellant is barred by the settlement agreement
from appealing the January 4, 2004 removal. To the extent that the appellant
argues that the 2004 agreement was fraudulently obtained, that argument is
properly raised in a petition for review challenging the initial decision dismissing
the appeal as settled; the appellant’s previous PFR was dismissed as untimely filed,
and the Board declined to reopen that appeal now.
2. The appellant’s waiver applies to an IRA appeal, and precludes the Board from
exercising jurisdiction over the 2004 removal and any other personnel actions that
occurred prior to the date of the settlement agreement.
3. Remand is appropriate for the allegations of whistleblower retaliation that
occurred subsequent to the execution of the settlement agreement. The appellant
alleged that he was denied promotions subsequent to the date of the settlement
agreement.
4. In light of the appellant’s allegation that the agency has not complied with the
settlement agreement, specifically that the agency failed to reinstate him to a
GS-07 Step 10 position, the AJ shall afford the appellant an opportunity to clarify
whether he intended to file a petition for enforcement of the settlement agreement.
► Appellant: Chris C. Coleman
Agency: Department of the Army
Decision Number: 2007 MSPB 195
Docket Number: AT-315H-07-0463-I-1
Issuance Date: August 27, 2007
Appeal Type: Termination of Probationer
Jurisdiction
- Probationers
The appellant was a preference-eligible employee in the excepted service who
was appointed on February 19, 2006. The agency notified the appellant that he was
being removed during his 1-year trial period, effective February 6, 2007. The AJ
4
notified the appellant that an employee with less than 1 year of current, continuous
service in the same or similar position has limited appeal rights the Board, and that such
an employee would be granted a hearing only if he makes a nonfrivolous allegation that
his termination was based on partisan political reasons or marital status. In response,
the appellant asserted that: (1) the agency did not provide him with advance notice of
the termination and an opportunity to respond; (2) the agency placed him in a leave
without pay (LWOP) status after February 6, 2007, keeping him on the agency’s rolls
for more than 1 year; and (3) the SF-50 effecting his termination was not approved until
March 8, 2007, after the completion of the 1-year trial period. The AJ issued an initial
decision dismissing the appeal for lack of jurisdiction, finding inter alia that the date
that personnel documents were issued does not establish that the employee was
employed on that date.
Holding: The appellant submitted evidence and argument indicating that he was in
a leave without pay status after February 6, 2007. This evidence calls into question
the effective date of his termination set forth in the termination notice and the
SF-50. A remand for a jurisdictional hearing is therefore necessary to determine
whether the appellant’s employment was terminated before his trial period ended.
► Appellant: Eugene Mills
Agency: United States Postal Service
Decision Number: 2007 MSPB 199
Docket Number: DC-3443-07-0463-I-1
Issuance Date: August 28, 2007
Jurisdiction
- Suspensions
Discrimination
- Physical/Mental Disability – Qualified Disabled Employee
The appellant, a preference eligible, is a Mail Handler. The agency notified him
that his position was being abolished and that he would be reassigned at his same wage
level. The appellant requested reassignment to a manual facility with less noise to
accommodate his tinnitus and vertigo. The agency denied his request for
accommodation, finding that, because his hearing impairment did not substantially limit
him in a major life activity, he was not a qualified individual with a disability within
the meaning of the Rehabilitation Act. After advising the parties that the Board may
lack jurisdiction over the agency’s denial of the appellant’s request for reasonable
accommodation, and considering the parties’ responses, the AJ issued an initial decision
dismissing the appeal for lack of jurisdiction. The AJ found that, absent an otherwise
appealable action, the Board lacks jurisdiction over an agency’s denial of an
employee’s request for reasonable accommodation of an alleged disability.
Holding: An employee’s absence for more than 14 days that results in a loss of pay
may be a constructive suspension appealable under 5 U.S.C. §§ 7512(2) and
7513(d). In his appeal, the appellant alleged that the agency “left [him] out of
work” for 8 months on leave without pay instead of placing him in a “quieter/less
5
machinery” facility, and that this action was a denial of reasonable
accommodation, and he provided information about his medical conditions and
request for accommodation under the Rehabilitation Act. This was sufficient to
require the AJ to issue a notice informing the appellant of the elements of a
constructive suspension claim. Because neither the AJ’s jurisdictional order nor
the agency’s motion to dismiss the appeal did this, a remand is necessary to afford
the appellant an opportunity to submit evidence and argument to show that the
Board has jurisdiction.
► Appellant: Arthur Perkins
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 197
Docket Number: NY-1221-02-0407-X-1
Issuance Date: August 27, 2007
Appeal Type: Individual Right of Action (IRA)
Compliance
- Settlement-Related
This appeal was resolved pursuant to a settlement agreement. In a previous
adjudication, the Board found that the agency was in partial noncompliance with its
obligations and ordered the agency to take appropriate remedial action.
Perkins v.
Department of Veterans Affairs, 105 M.S.P.R. 289 (2007). The agency submitted
evidence that it is now in full compliance with its obligations, but the appellant argued
that the agency is not in compliance.
Holding: The Board found that the agency has provided satisfactory evidence of
compliance with respect to all 5 disputed issues. It therefore dismissed the petition
for enforcement.
► Appellant: Bruce A. Loomis, John C. Stierle, Richard C. Leavy, Joseph W. Burge
Agency: Department of the Army
Decision Number: 2007 MSPB 196
Docket Numbers: PH-0752-06-0225-I-1; PH-0752-06-0226-I-1;
PH-0752-06-0228-I-1; PH-0752-06-0237-I-1
Issuance Date: August 27, 2007
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Timeliness
The April 2007 requests to reopen the initial decisions in these appeals were
filed about 10 months after the deadline for filing a petition for review specified in the
decisions. The appellants asked for reopening in light of an initial decision in another
appeal that was issued on January 26, 2007.
6
Holding: The Board considers a request to reopen an initial decision as an
untimely filed petition for review. The Board dismissed these petitions as untimely
filed without good cause shown.
► Appellant: Ralph T. Vandagriff
Agency: Department of the Army
Decision Number: 2007 MSPB 201
Docket Number: DA-3443-06-0529-I-1
Issuance Date: August 29, 2007
Timeliness
In an initial decision issued October 19, 2006, the AJ dismissed this VEOA
appeal for lack of jurisdiction. The appellant filed a petition for review more than
3 months later, on March 1, 2007.
Holding: The Board dismissed the petition for review as untimely filed without
good cause shown for the delay.
COURT DECISIONS
► Appellant: Jose D. Hernandez
Agency: Department of the Air Force
Docket Number: 2006-3375
Issuance Date: August 27, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Hernandez, a retired mechanic for the Department of the Air Force and a former
member of the military reserves, filed a Butterbaugh claim with the MSPB, alleging
that he had been erroneously charged military leave from 1980 to 2001, and that as a
result he was improperly forced to use annual leave, sick leave, and leave without pay.
In resolving a discovery dispute, the AJ, believing the Board’s remedial authority to be
limited to events occurring after the enactment of USERRA on October 13, 1994,
confined subpoenas to documents after that date. Based on the records obtained in
discovery, Hernandez identified 12 days from 1997 to 2000 for which he had been
improperly charged military leave. The agency provided relief for those days and
moved to dismiss Hernandez’s complaint as moot. The AJ issued an initial decision
dismissing the appeal as moot.
On petition for review, the full Board determined,
pursuant to its ruling in Garcia v. Department of State, 101 M.S.P.R. 172 (2006), that
the Board was authorized to adjudicate USERRA claims arising from prohibited pre
enactment conduct, and that the AJ had improperly limited inquiry to post-enactment
7
conduct. The Board nevertheless concluded that this error was harmless, reasoning that
the appellant was provided with sufficient opportunity to prove his alleged pre
enactment USERRA violations and that the AJ’s erroneous ruling had not caused him to
abandon his pre-enactment claims. With respect to post-enactment claims, it agreed
that the appellant had been afforded complete relief.
Hernandez v. Department of the
Air Force, 102 M.S.P.R. 515 (2006).
Holdings:
1. The Butterbaugh rule that it is improper to charge reservists military leave for
non-work days applies to violations pre-dating USERRA’s enactment. While the
substantive provisions of USERRA do not apply retroactively, the result is the
same under the predecessor statute, the Vietnam Era Veterans’ Readjustment
Assistance Act of 1974. The Board has the authority to order relief covering the
entire period of Hernandez’s alleged Butterbaugh violations.
2. The Board erred in not remanding the case for further proceedings with respect
to the pre-enactment period. Under a proper understanding of USERRA and the
Board’s jurisdiction, the AJ’s rulings on the scope of subpoenas was arbitrary and
capricious because no reasoned basis existed to exclude pre-USERRA records while
ordering production of post-USERRA ones. Remand for further proceedings is
therefore necessary.
3. The court agreed with the Board that Hernandez’s post-USERRA claims were
moot because he had already received complete relief under them.
► Appellant: Alexander F. Pucilowski, Jr.
Agency: Department of Justice
Docket Number: 2006-3388
Issuance Date: August 29, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Pucilowski filed a Butterbaugh claim with the Board alleging that he had been
erroneously charged military leave from 1989 to 2001, and that as a result he was
improperly forced to use annual leave, sick leave, and leave without pay (LWOP).
Before the Board, he established that he had been improperly charged 22 days of
military leave from 1991 to 1998, including 2 days in 1991 and 3 days in 1993, but the
only resulting leave that these improper charges forced him to take was LWOP in 1993.
Pucilowski took a total of 34 days of LWOP that year, but because he had been
improperly denied only 5 days of military leave from 1991 to 1993, the AJ limited his
award of back pay to 5 days. The AJ declined to order correction of Pucilowski’s
civilian and military leave records, reasoning that the Board was without authority to do
so under Dombrowski v. Department of Veterans Affairs, 102 M.S.P.R. 160 (2006).
8
Holdings:
1. The Board erred by declining to order correction of Pucilowski’s civilian and
military leave records to remedy the improper charges of military leave. The
Board plainly has the authority under 38 U.S.C. § 4324 to remedy denial of
military leave benefits.
2. The court rejected Pucilowski’s suggestion that he is entitled to monetary
compensation based solely on the 22 days of improperly charged military leave; a
veteran is legally entitled to monetary compensation or its equivalent only when he
demonstrates actual harm. The court stated, however, that while not legally
obligated to do so, agencies may resolve claims by providing more compensation
than an individual has been able to prove. This practice is appropriate as a matter
of administrative convenience, especially if the records before them are deficient or
incomplete, and helps to ensure that veterans are appropriately given the benefit of
the doubt in the face of such records and fully enjoy the presumption that
veterans’ benefits statutes are to be resolved in their favor. | 17,955 | |
Case Report - August 3, 2007 | 08-03-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_3_2007_279460.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_3_2007_279460.pdf | CASE REPORT DATE: August 7, 2003
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Johnson v. Department of the Air Force, 2007 MSPB 182
MSPB Docket No. DA-315H-06-0313-I-1
July 26, 2007
Timeliness
- New Evidence/Argument
The initial decision dismissed the appeal for lack of jurisdiction, concluding that
the appellant was serving a probationary period at the time of his termination. The
petition for review was filed more than seven months after the deadline specified in the
initial decision. The appellant urged the Board to waive the deadline because of what
he characterized as new and material evidence showing that the initial decision was
incorrectly decided.
Holding: The evidence proffered by the appellant was not new and material
justifying the waiver of the deadline for timely filing. To constitute new and
material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence.
Alexis v. Office of Personnel Management, 2007 MSPB 183
MSPB Docket No. AT-0845-06-0594-I-1
July 26, 2007
Mootness
The appellant filed an appeal with the regional office contesting the agency’s
reconsideration decision that found that he was overpaid $3,770 in FERS annuity
benefits. The administrative judge issued an initial decision dismissing the appeal for
failure to prosecute after the appellant failed to comply with several prehearing orders.
On petition for review, the appellant filed a motion in which he asserted, inter alia, that
2
he was unable to competently prosecute his appeal because of illness. The agency
thereafter filed a motion to dismiss the appeal as moot, and presented evidence that it
had written off the appellant’s debt in its entirety.
Holding: An agency’s unilateral modification of an appealable action after
an appeal has been filed cannot divest the Board of jurisdiction unless the
appellant consents to such divestiture or unless the agency completely
rescinds the action being appealed. Here, the record shows that the agency
has completely rescinded the action being appealed. | 2,372 | |
Case Report - July 27, 2007 | 07-27-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_27_2007_278467.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_27_2007_278467.pdf | CASE REPORT DATE: July 27, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Paige v. United States Postal Service, 2007 MSPB 176
MSPB Docket No. AT-3443-07-0156-I-1
July 20, 2007
Jurisdiction
- Resignation/Retirement/Separation
- Excepted Service
The appellant resigned from his position as a PS-3 Custodial Laborer, and
the agency denied his subsequent requests for reinstatement. On appeal to the
Board, the appellant alleged that his supervisors had told him that, as long as
they were in their positions, he could return to his position, and that he resigned
based on these promises. The administrative judge (AJ) issued an initial decision
dismissing the appeal for lack of jurisdiction, analyzing the case as a denial of
reinstatement or restoration under 5 C.F.R. Part 353.
The Board denied the appellant’s petition for review (PFR), but reopened
the appeal on its own motion to clarify the AJ’s jurisdictional analysis. It
affirmed the initial decision as modified, still dismissing the appeal for lack of
jurisdiction.
Holding: A resignation constitutes a removal when it is the result of
an agency’s misleading statements on which the employee relied.
Here, the appellant had made a non-frivolous allegation that his
resignation was involuntary because he received assurances from his
supervisors and a Human Resources representative that he would be
rehired when he had resolved his personal issues, and that he relied to
his detriment on these promises. Nevertheless, the Board lacks
jurisdiction because it is undisputed that the appellant was not a
preference eligible, a management or supervisory employee, or an
2
employee engaged in personnel work in other than a purely
nonconfidential clerical capacity.
Steinmetz v. United States Postal Service, 2007 MSPB 178
MSPB Docket No. DE-0353-05-0429-I-1
July 20, 2007
Miscellaneous Agency Actions
- Restoration to Duty
The appellant, a Parcel Post Distribution Clerk, sustained an on-the-job
injury and began receiving workers’ compensation benefits effective August 24,
1998. The agency separated him in February 2003 based on his compensable
injury. OWCP terminated his benefits in July 2005, when it found that he was
fully recovered and able to perform the duties of his former position. The
agency offered the appellant restoration under 5 C.F.R. § 353.301(b), as an
employee who had fully recovered more than 1 year from the date his eligibility
for OWCP benefits began. The appellant responded that the offer was invalid,
asserting that he had was entitled to restoration as an employee who fully
recovered within 1 year, and the offer expired without acceptance. On appeal to
the Board, the AJ conducted a hearing, after which she determined that the
appellant had not fully recovered within 1 year, and was therefore entitled only
to priority consideration for reemployment under 5 C.F.R. § 353.301(b), and
provided him with an opportunity to establish Board jurisdiction under that
provision. The appellant declined to do so, insisting that he had fully recovered
within 1 year. The initial decision dismissed the appeal for lack of jurisdiction.
The Board denied the appellant’s PFR, but reopened the case on the Board’s
own motion to clarify the standard for establishing Board jurisdiction over
restoration appeals such as this one. The Board reversed the initial decision’s
dismissal for lack of jurisdiction, but found on the merits that the agency did not
violate the appellant’s restoration rights.
Holding: To establish jurisdiction over an appeal in which an
appellant alleges a denial of restoration as an employee who fully
recovered within 1 year of sustaining a compensable injury, the
appellant must make non-frivolous allegations that: (1) He is an
employee of an executive branch agency; (2) he suffered a
compensable injury; (3) he fully recovered from the compensable
injury within 1 year from the date his eligibility for compensation
began; (4) the agency failed to restore him or improperly restored
him; and (5) if he was separated from his position prior to the alleged
failure to restore or improper restoration, his separation was from a
position without time limitation and substantially related to the
compensable injury. The Board found that the appellant had made
non-frivolous allegations of all these elements, and therefore
established jurisdiction. Regarding the 3d and 4th elements, the
record showed that the appellant became eligible for OWCP benefits
3
August 24, 1998, that the agency offered him an OWCP-approved
rehabilitation position in May 1999, that he accepted the position in
July 1999, but that the agency withdrew the offer and placed him on
administrative leave before he reported to the new assignment. On
the merits, however, the evidence showed that the agency did not
violate the appellant’s restoration rights because the record indicates
that OWCP did not consider the appellant to be fully recovered when
he was offered the rehabilitation job in 1999.
Jinn v. Department of Justice, 2007 MSPB 177
MSPB Docket No. PH-0353-06-0569-I-1
July 20, 2007
Miscellaneous Agency Actions
- Restoration to Duty
The appellant is a WS-14 General Foreman with a Federal Bureau of
Prisons’ Federal Medical Center. Effective March 11, 2005, the agency
“assigned” the appellant to the Escort Cadre of Correctional Services pending the
resolution of an administrative investigation into possible wrongdoing by the
appellant. Three days later, the appellant sustained a back injury while
performing escort duties, for which he received workers’ compensation benefits.
In March 2006, the appellant was cleared to return to work, and the agency
issued an SF-50 returning him to his former position. The agency immediately
assigned the appellant to phone monitoring duties pending the completion of the
administrative investigation that had started a year earlier, which had not been
completed. While performing these duties, the appellant re-injured himself in
April 2006, and was assigned light duty in the phone monitoring position. In
July, he was cleared by his doctor to return to full-duty status, but the agency
kept him performing phone monitoring duties.
On appeal to the Board, the appellant alleged that the agency violated his
restoration rights by failing to restore him to the duties of his WS-14 General
Foreman position after his full recovery from a compensable injury, instead
indefinitely reassigning him to phone monitoring duties in which he was “unable
to work within his appointed job description[,]”, “denied the opportunity to
develop managerial skills,” and where “his daily work ha[d] been reduced to a
set of menial tasks....” The agency countered that the appellant has at all
times encumbered his General Foreman position, with the pay and grade
associated with that position. The AJ dismissed the appeal for lack of
jurisdiction without conducting a hearing, finding that the Board lacks
jurisdiction over the agency’s detailing and reassigning the appellant to another
position at the same grade and pay. On PFR, the appellant asserts that the
agency improperly restored him, in that his position, status, duties, seniority, and
responsibilities as a phone monitor were not equivalent to those of his WS-14
General Foreman position.
4
Holding: Although the AJ erred in applying a “preponderance of the
evidence” standard to the appellant’s allegations of jurisdiction,
instead of the proper standard of making non-frivolous allegations,
that error was harmless. There was nothing improper in the agency
assigning the appellant duties other than his supervisory duties as a
General Foreman. The reason was the agency’s ongoing investigation
into possible wrongdoing on the appellant’s part, not his compensable
injury. To require restoration to his General Foreman duties would
place the appellant in a better position than he would have been had
he not been absent from the agency due to injury. Accordingly, the
Board affirmed the initial decision as modified, still dismissing the
appeal for lack of jurisdiction.
Cranston v. United States Postal Service, 2007 MSPB 181
MSPB Docket No. PH-0353-06-0422-I-1
July 20, 2007
Timeliness
- Notice of Time Limit/Appealable Matter
The appellant suffered a compensable injury in 1990. In 1992, he accepted
the agency’s offer of a modified position. The agency abolished the appellant’s
modified position in November 2002, and the appellant made several subsequent
requests for restoration. In a letter dated January 16, 2003, the agency notified
the appellant that it was unable to accommodate his request for limited duty.
This letter did not notify the appellant of any appeal rights to the Board. The
agency removed the appellant effective January 23, 2006, due to his medical
inability to work. Thereafter, the appellant initiated equal employment
opportunity pre-complaint counseling with the agency, which issued an April 18,
2006 final interview letter that notified the appellant that he may have right to
appeal some of his claims to the Board. The appellant filed this appeal on
May 2, 2006.
The appellant conceded that the Board lacked jurisdiction over his removal
because he was not a preference-eligible employee, but asserted a claim of a
denial of restoration following partial recovery. The agency moved to dismiss
the appeal as untimely filed.
The appellant cited Shiflett v. U.S. Postal Service,
839 F.2d 669 (Fed. Cir. 1988) for the proposition that the time limit for filing his
restoration appeal never began to run because the agency never informed him of
his appeal rights. The AJ dismissed the appeal as untimely filed without good
cause shown, despite the agency’s failure to provide a notice of appeal rights,
based on an OPM regulation, 5 C.F.R. § 353.104, as construed in Green v. U.S.
Postal Service, 103 M.S.P.R. 278 (2006). The regulation provides that an agency
must provide a notice of appeal rights when it fails to restore an employee
because of compensable injury, but further provides that, “regardless of
notification, an employee is still required to exercise due diligence in
ascertaining his or her rights....”
5
Holding: The Board’s interpretation of Green in section 353.104
conflicts with the Board’s prior interpretation of that regulation in
Dunklebarger v. Department of the Army, 67 M.S.P.R. 607 (1995),
where the Board concluded that § 353.104 only requires an appellant
to be diligent in discovering and exercising his restoration rights, not
his appeal rights from a denial of restoration. The Board concluded
that its interpretation in Dunklebarger was correct and overruled
Green. An appellant who was not provided a required notice of
appeal rights is not required to show that he exercised due diligence in
attempting to discover his appeal rights; the question is whether he
was diligent in filing an appeal after he learned he could do so. Here,
the appellant filed an appeal within two weeks of learning that he had
appeal rights. The appeal was remanded for adjudication on the
merits.
Romero v. Department of Defense, 2007 MSPB 180
MSPB Docket No. DC-0752-06-0136-B-1
July 20, 2007
Board Procedures/Authorities
- Bias
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
Evidence
Miscellaneous Agency Actions
- Indefinite Suspensions
This case involved a remand of a previous Board decision, reported at 104
M.S.P.R. 245 (2006), in which the Board found that it lacked jurisdiction to
consider the imposition of the appellant’s indefinite suspension, which was based
on preliminary decision to deny him access to Sensitive Compartmented
Information (SCI), because the appellant had waived his appeal rights in a
settlement agreement. The Board found, however, that because the agency kept
the appellant on indefinite suspension for at least 4 months after a final decision
denying his access to SCI, the waiver of appeal rights did not apply to that
period of time, and remanded the appeal to the regional office for the limited
purpose of determining whether the agency had improperly constinued the
appellant’s indefinite suspension. On remand, the AJ found that the agency had
initiated the appellant’s removal within a reasonable time after a final
determination denying the appellant’s access to SCI. On PFR, the appellant
challenged the merits of both the imposition of his indefinite suspension and his
subsequent removal, as well as the continuation of his indefinite suspension. He
also claimed that the AJ was biased.
Holdings: 1. Neither the original imposition of the indefinite
suspension nor the appellant’s removal are properly before the Board;
the former is precluded by the law of the case doctrine, the latter is
6
the subject of a separate appeal. 2. The appellant failed to establish
that the AJ was biased. 3. Although the agency submitted a timeline
that purported to explain its actions, it was in the form of an unsworn
pleading filed by agency counsel, which is not considered evidence,
and the agency therefore did not establish the reasonableness of its
action. Accordingly, the Board ordered the agency to cancel the
indefinite suspension for the period in question.
Young v. Department of the Interior, 2007 MSPB 179
MSPB Docket No. SF-0752-06-0443-I-2
July 20, 2007
Timeliness
The PFR was filed approximately one month after the deadline specified in
the initial decision. The appellant did not respond to the notice issued by the
Clerk of the Board that informed the appellant that his PFR appeared to be
untimely filed, and which afforded him the opportunity to show that the petition
was timely filed or that good cause existed for the delay.
Holding: The Board dismissed the PFR as untimely filed with no
showing of good cause for the delay.
FEDERAL REGISTER NOTICES
72 Fed. Reg. 40215 (July 24, 2007). The Merit Systems Protection Board
amended Appendix II of its Part 1201 regulations to announce the change in
location of its Western Regional Office. The new location is 201 Mission Street,
Suite 2310, San Francisco, CA 94105-1831. The telephone number changes to
(415) 904-6772 and the facsimile number changes to (415) 904-0580. | 14,442 | |
Case Report - July 6, 2007 | 07-06-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_6_2007_275361.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_6_2007_275361.pdf | CASE REPORT DATE: July 6, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
New v. Department of Veterans Affairs, 2007 MSPB 166
MSPB Docket No. PH-0353-95-0695-X-1
June 28, 2007
Compliance
In his petition for enforcement, the appellant raised numerous issues of
compliance with the Board’s final order in this restoration appeal. Following
discovery and several status conferences, the appellant agreed that all her
compliance issues had been resolved, except for two: (1) retroactive promotions
and/or step increases; and (2) reimbursement for educational expenses. The
Chief Administrative Judge granted the appellant’s petition as to the first issue,
but denied her request for reimbursement for educational expenses, and referred
the case to the full Board for enforcement. The agency filed evidence that it had
implemented the CAJ’s Recommendation by granting the appellant 7 within
grade increases. The appellant responded, contending that the agency incorrectly
computed her back pay and annual and sick leave entitlement.
Holding: The agency is now in compliance with the Board’s
final order. The appellant’s challenge to the back pay
calculations was based on the mistaken assumption that she
was entitled to back pay during the period preceding her
request for restoration. During the proceeding before the
CAJ, the appellant’s representative did not raise any issue
relating to leave balances, and so no such issues can now be
raised.
2
Greenup v. Department of Agriculture, 2007 MSPB 167
MSPB Docket No. SF-1221-06-0855-W-1
June 28, 2007
Jurisdiction
- Resignation/Retirement/Separation
Whistleblower Protection Act
- Coverage
- Personnel Actions
The appellant resigned from her position as a Program Technician with the
Morrow County Office of the Farm Service Agency, a component of the U.S.
Department of Agriculture. She filed a complaint with the Office of Special
Counsel (OSC) alleging that her County Office Supervisor and the USDA
retaliated against her for making whistleblowing disclosures. The administrative
judge dismissed the appeal for lack of jurisdiction. The Board reversed and
remanded for further adjudication.
Holdings: (1) The Board lacks jurisdiction over the
appellant’s resignation as a constructive removal in an
adverse action appeal under 5 U.S.C. § 7512 because she
was not an “employee” under 5 U.S.C. §§ 2105(a) and
7511(a); (2) the Board lacks jurisdiction over the
appellant’s IRA appeal in regard to her allegations that
personnel actions were taken against her while employed by
the County Committee because, at the time of the alleged
retaliatory actions, she was not she was not a covered
employee, former employee, or applicant for employment;
(3) the AJ erred in dismissing the IRA appeal with respect
to allegations that the agency retaliated against her by not
selecting her for a secretarial position in the Office of
General Counsel, after she had resigned from her County
Committee Program Technician position; and (4) the
appellant otherwise satisfied jurisdictional requirements,
i.e., she made a nonfrivolous allegation that she made one or
more whistleblowing disclosures, and that such disclosures
were a contributing factor in the agency’s decision to take
or fail to take a covered personnel action.. Regarding the
third holding, the WPA does not require that the disclosure
must have been made when the individual seeking
protection was either an employee or applicant for
employment in a covered position.
3
Heckman v. Department of the Interior, 2007 MSPB 168
MSPB Docket No. SF-3443-06-0791-I-1
June 28, 2007
Board Procedures
- Authority of AJs/Board
- Sanctions
Hearings
- Right to a Hearing
In challenging his non-selection for a position with the agency, the appellant
alleged retaliation for whistleblowing disclosures and made claims under the
Veterans Employment Opportunities Act (VEOA) and the Uniformed Services
Employment and Reemployment Rights Act (USERRA). In her
Acknowledgment Order, the AJ ordered the appellant to submit evidence and
argument to establish jurisdiction over his various claims. When the appellant
did not respond to this order, the AJ issued a second order, to which the
appellant filed two responses. The AJ issued another order directing the
appellant to submit additional information concerning his USERRA and
whistleblower claims. When the appellant failed to respond timely to that order,
and after the AJ attempted unsuccessfully to reach the appellant by telephone,
she ordered the appellant to show cause why his appeal should not be dismissed
for failure to prosecute. After receiving no response to the show-cause order, the
AJ cancelled the appellant’s requested hearing and determined that the appellant
had waived his USERRA and whistleblower claims. The day after the deadline
for submitting additional evidence, the appellant registered as an e-filer, and
filed a pleading stating that he had understood he would receive electronic notice
of MSPB issuances because he had registered as an e-filer in a previous appeal,
that he had not received the AJ’s earlier orders because he had been away from
his home address and did not receive his mail due to a misunderstanding with the
Postal Service, and that he had only received the AJ’s most recent order the day
before he filed his response. He requested that the AJ reopen the record and
reschedule his hearing.
The AJ issued an initial decision that: (1) dismissed the appellant’s VEOA
claim for failure to state a claim upon which relief can be granted; (2) rejected
the appellant’s request to reopen the record, finding “incredible” his expectation
that he would receive electronic notification of pleadings and orders; and
(3) found that the appellant failed to make adequate arrangements to receive his
mail.
The Board affirmed the initial decision as modified, still dismissing the
appeal.
Holding: The AJ did not abuse her discretion by cancelling
the appellant’s requested hearing for noncompliance with
her orders, or by dismissing the appellant’s USERRA and
whistleblower claims as abandoned. Even if the AJ had
erred by cancelling the hearing, the appellant was not
4
prejudiced because there is no genuine issue of material fact
concerning his VEOA claim. Although the Board’s
regulations do not specifically require an appellant to
register separately as an e-filer every time he files a new
appeal, having received the Acknowledgment Order and a
subsequent order by Postal mail only, he could not have
reasonably maintained his assumption that he would receive
notices regarding his appeal electronically. The Board
agreed with the AJ’s determination that the appellant had
failed to make adequate arrangements for the handling of
his mail. The dismissal of the appellant’s USERRA and
whistleblower claims was not an abuse of discretion where
the appellant failed to comply with multiple orders over a
period of nearly 2½ months.
Cadman v. Office of Personnel Management, 2007 MSPB 169
MSPB Docket No. CH-844E-07-0002-I-1
June 28, 2007
Retirement
- Disability Retirement
After sustaining an on-the-job injury as a City Letter Carrier, the appellant
accepted the Postal Service’s offer of a position as a “Full-time Regular Mail
Processing Clerk (modified),” which was consistent with her medical
restrictions. The appellant later filed an application for disability retirement
with OPM, stating that, while the Postal Service had accommodated her neck and
back pain, she still experience “much discomfort... and there was nothing
anyone can do about [her] body pain, especially the lower back, loss of eye sight
and the constant fatigue.” OPM found that the appellant’s medical evidence
lacked objective clinical findings and failed to establish that her illnesses were
severe enough to cause her service deficiency in her position under the
accommodations provided by the agency. On appeal, the AJ affirmed, finding
that there was insufficient medical evidence to show that the appellant’s
conditions prevented her from performing the duties of a Modified Clerk.
Holding: Remand was necessary to determine the
appellant’s position of record when she applied for
disability retirement—the Modified Clerk position she
accepted in 2003, the City Letter Carrier position, or some
other position, citing Ancheta v. Office of Personnel
Management, 92 M.S.P.R. 640 (2002), in which the Board
held that a modified job in the Postal Service that does not
“comprise the core functions of an existing position” is not a
“position” or a “vacant position” for purposes of
determining eligibility for disability retirement.
5
Felton v. Department of the Air Force, 2007 MSPB 170
MSPB Docket No. AT-0752-07-0285-I-1
June 28, 2007
Timeliness
- Mixed Cases
Effective July 18, 2006, the agency removed the appellant from his position
based on a charge of unauthorized absence. The appellant filed his appeal on
December 29, 2006, stating that he had filed a timely formal complaint of
discrimination with the agency. In his Acknowledgment Order, the AJ advised
the appellant of the Board’s time limits under 5 C.F.R. §§ 1201.22(b) and
1201.154(b), and ordered the appellant to submit evidence and argument that the
appeal was timely filed or that good cause to excuse the delay existed. The
appellant did not respond to the Acknowledgment Order. The agency moved to
dismiss the appeal as untimely, stating that the appellant had not filed a formal
complaint of discrimination with the agency regarding the removal. The AJ
issued an initial decision finding that the appeal was untimely filed without good
cause shown.
Holding: Remand was necessary because the Board could
not determine on the existing record whether the appellant
filed a formal complaint or whether the appeal was timely.
Although the agency representative stated that the
appellant had not filed a formal complaint, this submission
was not sworn and bore no indication that the agency
representative had any personal knowledge of the
appellant’s EEO activity. Although the appellant did not
respond to the Acknowledgment Order, he did state in the
appeal that he had filed a formal complaint of
discrimination.
Graves v. U.S. Postal Service, 2007 MSPB 171
MSPB Docket No. DC-0752-06-0828-I-1
June 29, 2007
Hearings
- Right to a Hearing
- Waiver
The appellant timely appealed his removal for unsatisfactory
attendance/absence without permission. On the day before the scheduled hearing
date, the appellant filed a handwritten statement that he wanted to withdraw from
the hearing and that he would file a written statement in support of his appeal.
He added, “However[,] the appeal trail is still active.” The AJ decided the case
on the written record after giving both parties an opportunity to submit
additional evidence and argument. On petition for review, the appellant argued
that he was denied the opportunity to call witnesses.
6
Holding: Remand is necessary because it is not clear from
the record that the appellant knowingly and voluntarily
waived his right to a hearing. Because there is a strong
policy in favor of granting an appellant a hearing on the
merits of his case, withdrawal of a hearing request much
come by way of clear, unequivocal, or decisive action, and a
decision to withdraw a hearing request must be informed,
i.e., the appellant must be fully apprised of the relevant
adjudicatory requirements and options, including the right
to request a postponement or continuance of the hearing or
a dismissal of the appeal without prejudice to its timely
refiling. The appellant’s statement that “the [appeal] trail
is still active” raises doubts as to whether he fully
understood that he was completely waiving his right to a
hearing.
COURT DECISIONS
Lary v. United States Postal Service
No. 2006-3050
July 3, 2007
The petitioner, Robert H. Lary, Jr. died after the court issued its original
opinion in this case, Lary v. U.S. Postal Service, 472 F.3d 1363 (Fed. Cir. 2006).
Robert H. Lary, Sr., his father and personal representative, moved to be
substituted as the petitioner, and the government petitioned for rehearing, asking
the court to vacate the original position and dismiss the appeal as moot. The
court granted the motion to substitute and denied the government’s motion. The
court briefly explained its reasons for denying the government’s motion for
rehearing. | 12,625 | |
Case Report - June 29, 2007 | 06-29-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_29_2007_274208.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_29_2007_274208.pdf | CASE REPORT DATE: June 29, 2007
Note: These summaries are descriptions prepared by individual MSPB employees.
They do not represent official summaries approved by the Board itself, and are not
intended to provide legal counsel or to be cited as legal authority. Instead, they are
provided only to inform and help the public locate Board precedents.
BOARD DECISIONS
Smith v. Department of Defense, 2007 MSPB 163
MSPB Docket Nos. CH-315H-07-0102-I-1; DE-315H-07-0077-I-1
June 22, 2007
Jurisdiction
- Probationers/5 U.S.C. § 7511(a)(1)(A)
The Board consolidated appellant’s two appeals of his termination during his
probationary period. The first appeal was dismissed by an administrative judge (AJ) in
the Board’s Central Regional Office for lack of jurisdiction because appellant did not
present a nonfrivolous allegation that he had completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or less, and the
second appeal was dismissed by an AJ in the Board’s Denver Field Office on the basis
of collateral estoppel without considering appellant’s jurisdictional response.
The Board reopened the joined appeals, vacated the second initial decision, and
affirmed as modified the first initial decision, still dismissing the appeal for lack of
jurisdiction. The Board found it appropriate to consider appellant’s jurisdictional
response, which had not been submitted in the first appeal because of appellant’s belief
that his case was before a separate office. The Board found that appellant did not show
sufficient service to meet the definition of employee in 5 U.S.C. § 7511(a)(1)(a)(i)
because the break in service between his current and previous positions was greater
than 30 days and his prior service was with another agency. It found that he did not
show that he meets the definition of employee in 5 U.S.C. § 7511(a)(1)(A)(ii) because
he did not show that he had completed 1 year of current continuous service. In the
absence of an appealable action, the Board found that it lacked jurisdiction to consider
appellant’s claims that the agency’s termination action violated Amendments V, VI, and
VIII of the Constitution.
Horton v. Department of Veterans Affairs, 2007 MSPB 164
MSPB Docket No. CH-1221-06-0480-W-1
June 22, 2007
Whistleblower Protection Act
- Exhaustion of Remedies
Board Procedures/Authorities
- Pro Se Appellants
The Board granted appellant’s petition for review, reversed the initial decision that
dismissed his individual right of action (IRA) appeal for lack of jurisdiction, and
remanded for further proceedings. The Board, considering appellant’s pro se status,
found his descriptions of his disclosures in his OSC complaint and before the Board
substantially the same and concluded that he had exhausted his administrative remedies
with respect to all 7 of his alleged protected disclosures, rather than the two identified
by the administrative judge (AJ). Additionally, the Board found that at least one of
appellant’s disclosures was protected because he made a nonfrivolous allegation that
agency employees violated the law by providing false information on documentation for
Medicare and/or Medicaid payments, and the Board found that appellant made a
nonfrivolous allegation that his disclosure was a contributing factor in the agency’s
decision to take at least one personnel action against him.
Jaramillo v. Department of the Air Force, 2007 MSPB 165
MSPB Docket No. DA-0752-05-0280-I-4
June 25, 2007
Timeliness
- Miscellaneous
The Board, while finding appellant’s representative’s confusion about the filing
date insufficient to establish good cause for the 29-day late filing, nevertheless found
that it was in the interest of justice to waive the refiling deadline for appellant’s appeal
where the appeal had previously been dismissed three times without prejudice to permit
completion of criminal proceedings involving events that led to appellant’s removal,
appellant had timely filed his initial appeal, his intention to refile a Board appeal had
been clear throughout the proceedings, he refiled his appeal only 5 days after resolution
of the criminal proceedings, the refiling deadline was apparently arbitrary, and the
agency did not assert that it would be prejudiced by waiver of the time limit.
DISMISSALS
Davenport v. Department of Veterans Affairs, MSPB Docket No. AT-1221-07-0066
W-1 (June 22, 2007)
Woods v. U.S. Postal Service, MSPB Docket No. AT-0752-07-0160-I-1 (June 25,
2007)
FEDERAL CIRCUIT AFFRIMANCES/DISMISSALS (NP)
Westover v. Department of Agriculture, Fed. Cir. No.2006-3062, MSPB No. DE-3443
05-0035-I-1, June 27, 2007
Swain v. U.S. Postal Service, Fed. Cir. No.2006-3170, MSPB No. DE-0752-06-0539-I
1, June 27, 2007
Vaughn v. USPS, Fed. Cir. No. 2007-3206, MSPB No. PH-0752-01-0214-I-1, June 27,
2007 | 4,820 | |
Case Report - June 22, 2007 | 06-22-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_22_2007_274210.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_22_2007_274210.pdf | CASE REPORT DATE: June 22, 2007
Note: These summaries are descriptions prepared by individual MSPB employees.
They do not represent official summaries approved by the Board itself, and are not
intended to provide legal counsel or to be cited as legal authority. Instead, they are
provided only to inform and help the public locate Board precedents.
BOARD DECISIONS
Luzi v. Office of Personnel Management, 2007 MSPB 158
MSPB Docket No. AT-831E-06-0901-I-1
June 15, 2007
Retirement
- Disability Retirement
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
In an initial decision that became final when neither party petitioned for review,
the administrative judge (AJ) affirmed the Office of Personnel Management’s (OPM)
denial of appellant’s application for disability retirement based on appellant’s claim of
Post-Traumatic Stress Disorder (PTSD). Appellant filed a second application for
disability retirement, which OPM dismissed based on a finding that appellant’s
application relied on the same medical conditions previously rejected as a basis for
disability retirement. On appeal, the AJ found that appellant’s disability claim was
barred by res judicata. The Board, however, found that appellant was arguing that his
PTSD worsened after March 29, 2005, the date of the hearing in appellant’s first appeal,
and that he is entitled to a decision on the merits of this claim. Because of the lack of
clarity in the record as to the basis of appellant’s removal, which occurred after
issuance of the initial decision in the original appeal, and in order to apprise the parties
of their respective evidentiary burdens under Bruner v. Office of Personnel
Management, 996 F.2d 290 (Fed. Cir. 1993), the Board found remand necessary.
Liu v. Department of Agriculture, 2007 MSPB 159
MSPB Docket No. AT-315H-06-0986-I-1
June 19, 2007
Jurisdiction
- Probationers/5 U.S.C. § 7511(a)(1)(A)
HOLDING: Prior service under a temporary limited appointment
may count toward completion of a later probationary or trial
period.
Appellant served in a temporary appointment for five months and, without a break
in service, was appointed to a career-conditional Biological Science Laboratory
Technician position, subject to a one-year probationary period. The agency removed
her, allegedly one-day prior to the end of her probationary period. The Board found
that appellant’s prior service pursuant to a temporary appointment did not count toward
completion of the one-year of service required to establish employee status under 5
U.S.C. § 7511(a)(1)(A)(ii), but that her service in the temporary appointment could be
“tacked” on to her nearly 12 months of service in her career-conditional appointment if
it was rendered immediately prior to the career-conditional appointment, was in the
same line of work in the same agency, and was completed with no more than one break
in service of less than 30 days. Because the administrative judge did not address the
issue of tacking under 5 U.S.C. § 7511(a)(1)(A)(i) and because appellant raised a
nonfrivolous issue that she had completed one-year of service in her career-conditional
position, the Board remanded the appeal to the Regional Office for a jurisdictional
hearing.
Dey v. Nuclear Regulatory Commission, 2007 MSPB 160
MSPB Docket No. DC-0432-07-0132-I-1
June 19, 2007
Board Procedures/Authorities
- Dismissals – With/Without Prejudice
Mootness
The agency removed appellant for unacceptable performance under 5 U.S.C.
Chapter 43 and for misconduct under 5 U.S.C. Chapter 75. Appellant appealed the
Chapter 43 removal to the Board and sought arbitration of the conduct removal.
Because the administrative judge (AJ) found that the arbitration decision “could
effectively moot” the chapter 43 appeal, she dismissed that appeal without prejudice,
over the objection of appellant, and ordered appellant to notify her when a final
arbitration decision had been issued in the conduct removal appeal.
The Board found that it was inappropriate to allow the refiling date to be solely
contingent on the issuance of a final arbitration decision because a dismissal without
prejudice should avoid open-ended periods for resolving appeals. Additionally, the
Board found that the arbitration decision would not effectively moot the Chapter 43
appeal because appellant might be able to obtain consequential damages or referral to
the Office of Special Counsel if he were able to prove his whistleblower claim.
Accordingly, the Board vacated the initial decision and remanded for adjudication.
Solomon v. Department of Agriculture, 2007 MSPB 161
MSPB Docket No. DC-0752-07-0020-I-1
June 19, 2007
Board Procedures/Authorities
- Adjudicatory Error
Jurisdiction
- Resignation/Retirement/Separation
Appellant retired on disability retirement after a lengthy period of paid leave and
leave without pay but subsequently alleged that her retirement was involuntary because
the agency failed to accommodate her disability. The administrative judge (AJ) found
that appellant failed to prove that her retirement was involuntary.
The Board found that the AJ erred by failing to consider whether appellant made a
nonfrivolous allegation of adverse action jurisdiction but instead proceeded directly to
the ultimate question of whether appellant proved by a preponderance of the evidence
that the Board has jurisdiction over the appeal. The Board, however, found the error
harmless because appellant failed to make a nonfrivolous allegation of jurisdiction
because she did not allege that there was an accommodation available on the date of her
separation, either at or below her grade or level, that would have allowed her to
continue working and that the agency did not provide her with that accommodation.
Parrish v. Department of the Interior, 2007 MSPB 162
MSPB Docket No. DE-0351-05-0293-M-1
June 20, 2007
Jurisdiction
- Miscellaneous
Miscellaneous Topics
- Statutory/Regulatory/Legal Construction
HOLDING: Failure of the agency to publish in the Federal
Register any document specifically identifying the regulatory RIF
appeal provisions it intended to waive or supersede did not satisfy
the statutory requirement of Public Law No. 105-77 for
eliminating Board jurisdiction over RIF appeals of SIPI
employees. Because the agency failed to comply with the statutory
provision requiring explicit waiver of Board appeal rights, the
asserted waiver is ineffective and the Board retains jurisdiction to
hear appellant’s RIF appeal.
Appellant filed a reduction-in-force (RIF) appeal, which the Board dismissed for
lack of jurisdiction on the basis that the legislation authorizing the Southwestern Indian
Polytechnic Institute (SIPI) to establish a demonstration project did not provide for
Board appeals of RIF separations and did not authorize the Board to enforce the
procedural requirements of that legislation or to nullify actions taken pursuant to that
legislation. The Federal Circuit vacated the Board’s decision, holding that the Board
has the authority to analyze an agency action to ensure that the agency has complied
with the requirements Congress imposed as a condition for limiting the Board’s
jurisdiction. The Court remanded for the Board to determine whether the agency
satisfied the statutory requirements for eliminating Board jurisdiction over RIF appeals
and, if not, the effect of such noncompliance.
The Board found that the agency did not satisfy the statutory requirements for
eliminating Board jurisdiction over RIF appeals of SIPI employees because it did not
provide an explicit waiver in its Personnel Manual describing its alternative personnel
system, in its regulations describing that system, or in the Federal Register notices
regarding the system. The Board found that the agency’s failure to comply with the
statutory requirements rendered the purported waiver of Board appeal rights ineffective.
Accordingly, the Board found it had jurisdiction over appellant’s RIF appeal and
remanded the appeal to the field office for further proceedings.
COURT DECISIONS
Bowles v. Russell, 2007 WL 1702870
Supreme Court Docket No. 06-5306
June 14, 2007
HOLDING: The statutory time limit for filing a notice of appeal
of a district court’s denial of a writ of habeas corpus is
jurisdictional and therefore is not subject to forfeiture or waiver.
After a district court denied petitioner’s federal habeas corpus application, he
moved to reopen the period during which he could file his notice of appeal under Fed.
Rule App. Proc. 4(a)(6) which allows district courts to extend the filing period for 14
days from the date the district court grants the order to reopen. The District Court
granted petitioner 17 days in which to file his notice of appeal and he filed within the
17 days allowed but 2 days beyond the 14-day statutory time limit and the Sixth Circuit
dismissed the case for lack of jurisdiction. The Supreme Court, in a 5-4 decision,
affirmed, finding that the statutory time limit established by Congress in 4(a)(6) is
jurisdictional and therefore, unlike court-created procedural rules, is not subject to
equitable exceptions. Thus, the Court rejected petitioner’s argument that his
untimeliness should be excused under the “unique circumstances” doctrine which
purports to create an exception to a jurisdictional rule.
Quiocson v. Office of Personnel Management
Fed. Cir. No. 2007-3084; MSPB Docket No. SF-0831-06-0449-I-1
June 19, 2007
Retirement
- Survivor Annuity
HOLDING: The exception in 5 U.S.C. § 8333(b) to the
requirement that at least one of the two years prior to separation
be covered service applies only to waiver of that requirement for
an employee who served in a covered position.
The Court held that petitioner was not entitled to a survivor annuity because her
husband, who held a series of temporary appointments, never served in a position
covered by the Civil Service Retirement System (CSRS). The Court rejected
petitioner’s argument, based on 5 U.S.C. § 8333(b), that because her husband died
while in service he did not need to meet the covered service requirement. The Court
approved the Board’s interpretation of section 8333(b) that the exception applies only
to waive the time-in-service requirement for a covered employee but does not eliminate
the requirement that the employee must have served in a covered position.
Finding that a retroactive deposit cannot convert a non-covered position into a
covered position, the Court rejected petitioner’s argument that she should have been
allowed to make a deposit on her husband’s behalf to overcome the problem that no
retirement deductions were taken from his pay. The Court also rejected petitioner’s
argument that her late husband’s tenure group was evidence that his position qualified
as “covered service.”
FEDERAL CIRCUIT AFFRIMANCES/DISMISSALS (NP)
The following cases were affirmed:
McKnight v. Merit Systems Protection Board, 2007-3018; AT-3443-05-0157-I-1
(06/11/07).
Williams v. Merit Systems Protection Board and Army, 2007-3021; DE-0752-05-0185-I
2 (06/14/07)
The following cases were dismissed:
Martin v. Department of the Interior, 2007-3222; AT-0752-06-0949-I-1 (06/14/07)
Foret v. Department of the Army, 2007-3221; DA-0752-06-0195-I-1 (06/15/07)
Perfilio v. Department of the Air Force, 06-3369; CH-3443-05-0492-I-1 (06/18/07)
Nichols v. Merit Systems Protection Board, 06-3403; DE-0752-03-0454-C-1 (06/19/07) | 11,395 | |
Case Report - June 15, 2007 | 06-15-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_15_2007_274209.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_15_2007_274209.pdf | CASE REPORT DATE: June 15, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Helmstetter v. Department of Homeland Security, 2007 MSPB 147
MSPB Docket No. PH-0752-04-0067-I-2
June 7, 2007
Timeliness
- Representation
The appellant appealed his removal based on misconduct charges, and the
administrative judge sustained the removal. The initial decision became the final
decision of the Board on July 26, 2004. The appellant, through a new attorney, filed a
petition for review on February 19, 2007, and thereafter a motion to waive the time
limit on the ground that his representative failed to file, even though paid to do so. The
appellant attached to his motion a damages judgment in his favor against his former
attorney and an order disbarring him. The Board found that the appellant failed to show
good cause to excuse his delay because, regardless of his belief that his representative
would file a petition, he remained personally responsible for prosecution of his appeal.
Even if his efforts to diligently prosecute it had been thwarted without his knowledge
by his representative's negligence, the Board stated that it would not waive the filing
deadline several years after the appellant should have become aware of the negligence.
Guerrero v. Department of Veterans Affairs, 2007 MSPB 148
MSPB Docket No. AT-0752-06-0144-N-1
June 7, 2007
Miscellaneous Topics
- Stays
HOLDING: The Board denied the agency's request for a stay of its final decision
pending OPM's consideration of a petition for reconsideration where the agency
failed to make an argument that it had a strong case on the merits and failed to
make convincing arguments that it would be irreparably harmed by denial of a
stay or that a stay would not harm the appellant and was in the public interest.
The agency requested the Board to stay enforcement of its final decision while it
consults with the Office of Personnel Management (OPM) about filing a petition for
reconsideration. The appellant opposed the request. The final decision held that the
agency failed to prove its charges that the appellant made false statements on
application forms and ordered the agency to cancel his removal and restore him to
employment. In deciding whether to grant a stay, the Board noted it considers whether
the agency has a strong case on the merits, whether it would be irreparably harmed
without a stay, whether a stay would substantially harm other parties, and where the
public interest lies, and under this test the less the likelihood of success, the more
support for the other three criteria is required.
The Board denied the stay. It found that the agency made no argument that it is
likely to prevail on the merits and failed to make a convincing argument that the last
three criteria were met. The Board noted that the appellant worked for one year in his
position and that the agency offered no evidence his performance was unsatisfactory.
Although the agency argued that the appellant would not be harmed because he is on
paid leave, the Board found some merit to his argument that issuance of a stay would
harm his professional credibility. The Board found no public interest in granting a stay.
Dissenting, Chairman McPhie would have granted the stay because he found a high
likelihood the agency would succeed on the merits should OPM seek reconsideration.
He also found there was a risk of irreparable harm to patients and to the agency as an
institution if the appellant were returned to his hospital laboratory position, and he
discounted any harm from a stay to his professional reputation, given the findings
already made in the Board's final decision. He concluded that the public interest
weighs in favor of a stay given the nature of the appellant's alleged misconduct.
Welch v. Department of Justice, 2007 MSPB 149
MSPB Docket No. CH-0752-06-0015-X-2
June 11, 2007
Miscellaneous Agency Actions
- Indefinite Suspension
The appellant filed a petition for enforcement of the final order that upheld his
indefinite suspension pending disposition of criminal charges and found that resolution
of the charges was the determinable condition that would end the suspension. All
criminal charges against the appellant were dismissed on May 10, 2006, and he
contended that the agency was not in compliance because it did not reinstate him until
August 10, 2006. The administrative judge (AJ) recommended that the Board find
noncompliance because the agency had no plan to issue any other disciplinary action
against the appellant and that it order the agency to restore him retroactively effective
May 10, 2006. The Board agreed with the AJ's recommendation. Finding that the
agency had submitted evidence that it had made the appellant's reinstatement retroactive
with back pay to May 10, 2006, the Board dismissed the petition as moot.
Janini v. Department of Labor, 2007 MSPB 150
MSPB Docket No.DC-0432-06-0171-I-1
June 11, 2007
Timeliness
- Miscellaneous
Board Procedures/Authorities
- Reopening and Reconsideration
The appellant filed an appeal of his removal on December 19, 2005, but his union
representative withdrew the appeal on December 21, 2005, to pursue arbitration. The
administrative judge dismissed the appeal as withdrawn. On March 14, 2007, the
appellant filed a motion to reopen his Board appeal and was informed that his filing
would be treated as a petition for review (PFR) of the initial decision dismissing his
appeal. The appellant filed a motion to waive the time limit and to reopen the appeal.
The Board first considered the PFR as a petition for appeal filed 16 months after
the effective date of his removal. The only explanation that the appellant offered for
his delay was that he was pursuing relief under the collective bargaining agreement, and
the Board held that pursuing relief in another forum is not good cause for a delay in
filing. Considering the PFR as a request to reopen, the Board noted that a withdrawal is
an act of finality removing its jurisdiction and that it will not reopen and reinstate an
appeal absent unusual circumstances. The Board declined to reopen the appeal on the
ground that the arbitrator had held that the earlier Board appeal prevented him from
reaching the merits of the appellant's removal.
Stempihar v. U.S. Postal Service, 2007 MSPB 151
MSPB Docket No. SF-0752-06-0635-I-1
June 12, 2007
Mootness
HOLDING: It was error to dismiss the appeal as moot based on
the agency's assurances that the appellant would be restored to
the status quo ante instead of evidence that he had been restored
to it.
The appellant appealed his removal, and while the appeal was pending, the agency
indicated that it was rescinding the removal. Over the appellant's objection, the
administrative judge (AJ) dismissed the appeal as moot based on the agency's implicit
representation it would restore the appellant to the status quo ante. The decision said
that any dispute about such restoration could be raised in a petition for enforcement and
that the deadline for filing a petition for review was August 23, 2006. On October 25,
2006, the appellant filed a complaint that he was not provided lost overtime pay, and
the pleading was docketed as an untimely petition for review, with notice to appellant
to show good cause for his delay.
The Board found that the appellant showed good cause for his untimely filing
because he acted reasonably in the face of a confusing initial decision. No date was
specified for filing a petition for enforcement (PFE), and the appellant filed what he
intended as a PFE within 30 days of a perceived impasse in the parties' negotiations
over his claim for lost overtime. The Board also found the decision was misleading
because a decision dismissing an appeal as moot is not enforceable since it is not a
decision on the merits. The Board also noted that an agency's unilateral modification of
its action after an appeal has been filed does not divest the Board of jurisdiction unless
the appellant consents or the agency completely rescinds the action. The Board found
that the AJ erred by dismissing the appeal as moot on the agency's assurances, and it
remanded for the dispute concerning the appellant's overtime back pay to be resolved.
Seward v. Department of Veterans Affairs, 2007 MSPB 152
MSPB Docket No. DA-3443-06-0679-R-1
June 11, 2007
Timeliness
- Equitable Tolling
Miscellaneous Topics
- USERRA/VEOA/Veterans' Rights
The Department of Labor (DOL) dismissed the appellant's claim under the
Veterans Employment Opportunities Act (VEOA) as untimely filed. On appeal, the
Board found that because DOL dismissed her complaint as untimely without
adjudicating its merits, she failed to exhaust her DOL remedy and the Board lacked
jurisdiction over her appeal.
One week later the Federal Circuit issued Kirkendall v.
Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), holding that the
Board has authority to review, and should apply the doctrine of equitable tolling to,
claims brought under VEOA that DOL has dismissed as untimely. The Board therefore
reopened the appeal and remanded to the regional office with instructions to notify the
appellant of her burden under Kirkendall and to decide whether the time limit should be
equitabley tolled.
Melendez v. Department of Veterans Affairs, 2007 MSPB 153
MSPB Docket No. DA-0752-07-0040-I-1
June 11, 2007
Timeliness
- Miscellaneous
After the appellant appealed his removal, the agency and he entered into a Last
Chance Agreement (LCA) under which the agency agreed to restore him to employment
and hold his removal in abeyance for 2 years, while the appellant agreed to waive his
right to appeal any removal during that period. The agency removed the appellant for
violating the LCA effective August 21, 2006. The appellant filed an appeal on October
23, 2006, and the administrative judge (AJ) ordered him to show that his appeal was
timely or that good cause existed for his delay. The appellant responded that his motion
for compensatory damages filed electronically under the first appeal's docket number on
September 8, 2006, was intended to appeal his second removal and was timely. The AJ
dismissed the appeal as untimely.
On petition for review, however, the Board found that the pro se appellant's
reasons for filing his appeal as a motion for compensatory damages were credible. It
was reasonable for him to assume that his appeal of his August 21, 2006 removal was a
continuation of his earlier removal appeal. Since there was no basis for awarding
compensatory damages at the time when the appellant filed his motion, the Board
construed it as an appeal of his removal, found the appeal timely, and remanded for
further adjudication.
Williamson v. Office of Personnel Management, 2007 MSPB 154
MSPB Docket No. DA-0841-06-0636-I-1
June 12, 2007
Miscellaneous Topics
- Pay and Benefits
The appellant sought death benefits under the Federal Employees’ Retirement
System (FERS) based on the service of his late wife, contending that he met the
statutory requirement of a marriage of at least 9 months prior to his wife's death
because a common law marriage of 3 months duration immediately preceded their
formal marriage of over 6 months. The Office of Personnel Management (OPM) denied
benefits on the ground that the appellant failed to submit evidence establishing the
common law marriage. On appeal, the administrative judge reversed, finding that the
appellant's state, Oklahoma, recognized common law marriage, that the common law
and licensed marriages could be combined to meet the 9-month requirement, and that
the appellant submitted evidence establishing the common law marriage.
On petition for review, OPM contended that 1998 amendments to Oklahoma
marriage law requiring certain formal acts had rendered common law marriages invalid
in Oklahoma. The Board rejected this argument, finding that the amendments applied
only to licensed marriages and that the Oklahoma Supreme Court had repeatedly
affirmed the validity of common law marriage. The Board ordered OPM to provide the
appellant the survivor benefits to which he was entitled.
Schroeder v. Office of Personnel Management, 2007 MSPB 155
MSPB Docket No. PH-0845-06-0600-I-1
June 12, 2007
Timeliness
-Miscellaneous
The appellant appealed a reconsideration decision of the Office of Personnel
Management (OPM), and the administrative judge affirmed OPM's decision and notified
the appellant that a petition for review must be filed on or before January 2, 2007.
After the appellant filed a petition for review on January 19, 2007, he was informed by
the Clerk of the Board that his petition was untimely and that he must submit a motion
to waive the time limit, accompanied by a sworn statement showing good cause for the
late filing. The appellant did not respond to the Clerk's notice. The Board found that
the appellant's petition was untimely filed and dismissed it because the appellant was
informed of the time limit and failed to show any circumstances that reasonably
prevented him from timely filing.
Hay v. U.S. Postal Service, 2007 MSPB 156
MSPB Docket No. AT-0752-05-0775-B-1
June 13, 2007
Timeliness
-Mixed Cases
HOLDING: In determining whether an EEO complaint concerning a proposed
removal encompasses the removal, the Board must look to the complaint, the
agency's treatment and processing of the claim, and the surrounding
circumstances. Where an appellant filed a timely EEO complaint with the agency
prior to appealing to the Board, the right to appeal does not vest until the agency
issues a final decision on the complaint or 120 days have elapsed from the date the
complaint is filed.
On May 5, 2004, the appellant appealed his removal effective March 13, 2004.
The administrative judge (AJ) dismissed for lack of jurisdiction because the appellant
failed to show that he was a preference eligible. On July 20, 2005, the appellant again
appealed with evidence showing that he was preference eligible. The AJ dismissed
based on the collateral estoppel effect of his previous decision, but on petition for
review the Board reversed, finding that in the prior appeal the appellant may not have
had a fair opportunity to litigate the issue where the agency possesed information on his
status that it failed to reveal. Finding jurisdiction, the Board remanded for a
determination as to the appeal's timeliness.
On September 28, 2006 the AJ ordered the appellant to show within 7 days that his
May 5, 2004 appeal from his March 13, 2004 removal was timely or that there was good
cause for the delay. The appellant responded on October 11, 2006 that he received the
order on October 6, 2006, and that his appeal was timely under mixed case procedures,
i.e., because he appealed the agency's June 21, 2005 final agency decision on his
complaint on July 20, 2005. The AJ declined to consider the appellant's untimely
response to his order and dismissed the appeal as 23 days late under 5 C.F.R.
§ 1201.22(b). The appellant filed a petition for review arguing that the AJ erred in not
applying mixed case procedures.
The Board held that sanctions for a late-filed response to an order should be
imposed only when a party has failed to exercise due diligence in complying and that
the opposing party is not entitled to sanctions, absent a showing of prejudice. It found
that the agency was not prejudiced by the appellant's 6-day delay, particularly where the
appeal was delayed for over 2 years by the agency's failure to promptly come forward
with evidence of the appellant's preference eligible status. Therefore, the Board
considered the appellant's late submission.
The Board held that, when an appellant has filed a mixed case complaint with the
agency, an appeal to the Board must be filed within 30 days after he receives the agency
resolution or final decision. Whether a complaint regarding a proposed removal
includes the removal action depends on whether the parties clearly intended that it
should, the Board said. It found that coverage was intended in this case, citing the
appellant's complaint, filed after the final notice of removal but before the effective
date, and the agency's treatment of the complaint. Noting that where a complaint
precedes an appeal to the Board, the right to appeal does not vest until there is a final
agency decision or 120 days have elapsed, the Board found that the AJ should have
dismissed the May 5, 2004 appeal without prejudice because at the time of his decision
120 days had not elapsed since the complaint was filed. With respect to the appellant's
July 20, 2005 appeal, the Board held that it was timely filed because it was filed within
30 days of the agency's June 21, 2005 decision on his complaint. Thus the Board
remanded the case for further adjudication.
Hayes v. Department of the Army, 2007 MSPB 157
MSPB Docket No. AT-0330-06-0198-R-1
June 13, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
HOLDING: Reopening and reconsideration may be appropriate where there is
clear and material legal error and a conflict between the decision and a controlling
precedent, either because of oversight or a change in the controlling law since the
decision issued.
The appellant filed a complaint under the Veterans Employment Opportunities Act
(VEOA) concerning his nonselection that the Department of Labor (DOL) dismissed as
untimely without addressing the merits of his claim. He then appealed to the Board.
The administrative judge dismissed his appeal because the Board's jurisdiction was
precluded by the appellant's failure to exhaust the DOL remedy by a timely complaint
and because the Board lacked authority to review the DOL's failure to excuse his
lateness. The appellant's petition for review of the dismissal was denied, and he did not
seek judicial review.
Eight months later, the Federal Circuit issued its decision in
Kirkendall v. Department of the Army, 479 F.3d 830 (Fed.Cir. 2007) (en banc), holding
that the Board has authority to review, and should apply the doctrine of equitable
tolling to, claims brought under VEOA that DOL has dismissed as untimely. Nine days
after Kirkendall issued, the appellant filed a request for reconsideration.
In its decision, the Board noted that reopening and reconsideration may be
appropriate where there is clear and material legal error and a conflict between the
decision and a controlling precedent, either because of oversight or a change in the
controlling law since the decision issued. While noting that it generally exercises this
authority within a shorter time period than eight months, the Board determined that, in
light of the appellant's diligence in seeking reconsideration only nine days after the
Kirkendall decision, the desirability of finality was outweighed by the public's interest
in reaching what appears to be the right result. It found that the appellant had no basis
for seeking further review in court earlier because, prior to Kirkendall, equitable tolling
of the DOL filing deadline was not available. It also found that it was not a foregone
conclusion that the appellant could not prevail on the merits of his claim because there
was a dispute concerning the basis of the selection of the individual who received the
position that the appellant sought.
Chairman McPhie dissented because he found there was no indication that the
result would change after reopening and because the appellant could have sought
judicial review. Noting the appellant made no argument that he would receive relief if
his failure to meet the filing deadline is excused, the Chairman found that the agency
lawfully filled the postion that the appellant sought under merit promotion procedures
and that veterans' preference rules do not apply to such actions. He also cited the
appellant's failure to seek judicial review as Kirkendall did and the absence of a
persuasive reason why his appeal should receive the same treatment as Kirkendall's.
COURT DECISIONS
Lynch v. Department of the Army, (NP)
Fed. Cir. No. 2007-3114, MSPB Docket No. DE-3443-06-0256-I-1
June 12, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans' Rights
The appellant, a ten point 30% disabled preference eligible veteran,
applied for a position at the Naval Station, Guantanamo Bay. The
position required medical clearance since all residents of the Guantanamo
base were required to be medically fit, given the limited medical care
available there. The agency made the appellant a tentative job offer, but
after medical screening revealed that he suffered from hematuria and
hypertension, the agency withdrew the offer, finding him medically
unsuitable. The appellant filed a complaint with the Department of Labor
(DOL) under the Veterans Employment Opportunities Act (VEOA),
claiming the Army violated his veterans' preference rights. After the DOL
denied his claim, he appealed to the Board. The Board denied corrective
action, finding that no veterans' preference statute or regulation precluded
withdrawing a job offer because the applicant is not medically cleared for
work overseas.
On appeal, the court addressed the appellant's argument that the
agency violated his rights under 5 U.S.C. §§ 3312(a) and (b). Section
3312(a) provides that, in determining a preference eligible's qualifications
for a competitive service position, an examining agency shall waive
physical requirements if it determines that the preference eligible is
physically able to efficiently perform the duties. Section 3312(b)
provides that, if an agency determines that a preference eligible with a
service-connected disability of 30% or more is unable to fulfill the
physical requirements of the position, the agency shall notify the Office of
Personnel Management (OPM), which shall make the final determination.
The court noted that it was undisputed that the agency did not
comply with subsection (b). The agency argued that its error was
harmless since it determined only that the appellant was unable to fulfill
the physical requirements of the duty location and that the position itself
had no physical requirements. However, the court found nothing in the
wording of the statute, the regulations or the legislative history that
supported this limiting interpretation of "requirements of the position" and
found there was no basis for distinguishing requirements inherent in the
job from requirements that result from the job's location. Concluding that
the agency violated the appellant's rights when it withdrew the job offer
without notifying OPM, the court reversed the Board's decision and
remanded for proceedings consistent with its opinion.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals affirmed the Board's decision.
Mueller v. Merit Systems Protection Board, 2007-3086, SF-0752-06-0777-I-1 (6/7/07)
Chambers v. Office of Personnel Management, 2007-3090, SF-0831-06-0848-I-1
Reyman v. Office of Personnel Management, 2007-3110, SF-0831-06-0491-I-1 (6/7/07)
Eisinger v. Merit Systems Protection Board, 2006-3426, CB-1216-05-0011-T-1 (6/8/07)
Ravago v. Merit Systems Protection Board, 2007-3079, SF-0831-06-0494-I-1 (6/8/07)
Jones v. U.S. Postal Service, 2007-3054, AT-0752-06-0027-I-1 (6/11/07)
Pangilian v. Office of Personnel Management, 2007-3060, SF-0831-06-0315-I-1
(6/11/07)
Bloom v. Department of the Army, 2007-3102, DC-1221-05-0024-B-1 (6/11/07)
Jwanouskos v. Department of the Treasury, 2007-3123, DC-0752-00-0091-I-1
Anderson v. Office of Personnel Management, 2007-3127, CH-844E-06-0550-I-1
(6/11/07)
Shelton v. Merit Systems Protection Board, 2007-3048, SF-0752-04-0040-B-1 (6/12/07)
The following appeals were dismissed.
Foronda v. Office of Personnel Management, 2007-3120, SF-0831-06-0677-I-1 (6/8/07)
Ivery v. Department of Transportation, 2006-3360, DA-0752-02-0424-C-1 (6/12/07) | 24,048 | |
Case Report - June 8, 2007 | 06-08-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_8_2007_268386.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_8_2007_268386.pdf | CASE REPORT DATE: June 8, 2007
Note: These summaries are descriptions prepared by individual MSPB employees.
They do not represent official summaries approved by the Board itself, and are not
intended to provide legal counsel or to be cited as legal authority. Instead, they are
provided only to inform and help the public locate Board precedents.
BOARD DECISIONS
Wallace and Martin v. Department of Commerce, 2007 MSPB 141
MSPB Docket Nos. DC-0752-05-0760-I-1;DC-0752-06-0094-I-1
June 4, 2007
Board Procedures
- Adjudicatory Error
Evidence
- Credibility
Jurisdiction
- Miscellaneous
HOLDING: An appointment allegedly made in violation of 5
U.S.C. § 3110 (which restricts the employment of relatives)
constitutes a removal within the Board’s jurisdiction where the
appellant was: (1) an individual in the competitive service who, at
the time the agency cancelled her appointment, had completed 1
year of current continuous service under other than a temporary
appointment limited to 1 year or less; (2) she was qualified for the
position; and (3) the restriction in section 3110 is not an absolute
statutory prohibition to appointment. The Board will not give
deference to an AJ’s demeanor-based credibility determinations
where they are inconsistent with the weight of the evidence and do
not reflect the record as a whole. In the absence of a finding that
appellant Wallace violated 5 U.S.C. §§ 2302(b)(7) and 3110 during
the selection of appellant Martin, there is no basis for finding that
appellant Martin’s appointment was improper and therefore her
removal must be cancelled.
The Board granted the appellants’ petition for review and reversed their removals.
The appeals relate to appellant Wallace’s (Wallace) alleged improper involvement in
the selection of her sister, appellant Martin (Martin), for the position of Human
Resources Specialist at a time when Wallace was detailed to a supervisory position in
the agency’s Office of Human Resources (OHR). The agency removed Wallace based
on four charges: (1) conduct unbecoming a federal employee; violations of (2) 5 C.F.R.
§ 2635.502(the appearance of a loss of impartiality in the performance of official
duties); (3) 5 U.S.C. § 3110(regarding the employment of relative); and (4) 5 U.S.C.
§ 2302(b)(7)(designating a violation of section 3110 as a prohibited personnel practice).
The agency removed Martin because it found that her appointment was made in
violation of 5 U.S.C. §§ 3110 and 2302. The agency also advised Martin that because
her appointment was in violation of section 3110, she was not entitled to pay under that
appointment.
The administrative judge (AJ) assigned to the case merged the four charges against
Wallace into two charges and, after holding a hearing, sustained the charges and the
penalty. He also found that the agency properly cancelled appellant Martin’s
appointment and that the appellants failed to proved their affirmative defenses (Wallace
alleged sex discrimination and Martin alleged sex discrimination and retaliation for
prior EEO activity).
On petition for review, the Board first addressed the issue of whether the
cancellation of Martin’s appointment constituted a “removal” for purposes of
jurisdiction under chapter 75 and found that it did. The Board noted that an appellant,
like Martin, whose appointment has been cancelled as unlawful and who is otherwise
entitled to adverse action procedures, will only be deprived of such rights if the
appointment was contrary to an absolute statutory prohibition such that the appointee
was not qualified for appointment. The Board found that the prohibition against
appointments in which a public official has engaged in nepotism in violation of 5
U.S.C.§ 3110(b) is not absolute and therefore, even if Martin were appointed in
violation of section 3110(b), her appointment was not contrary to an absolute statutory
prohibition.
Regarding the merits of the charges against Wallace, the Board first noted that the
mere fact that Wallace served as the agency’s chief personnel officer at the time her
subordinates in OHR selected Martin does not establish a violation of the nepotism
statutes. Further, the agency presented no evidence that Wallace was actually involved
in the hiring process. To the extent the agency alleged that Wallace advocated for her
sister’s appointment in violation of 5 U.S.C. §§ 2302(b)(7) and 3110, the Board found
that the record does not support the allegation, and the AJ’s contrary findings, although
based on credibility determinations, may be overturned because they are inconsistent
with the weight of the evidence. To the extent the agency charged Wallace with a
violation of 5 C.F.R. § 2635.502 and therefore conduct unbecoming a federal employee,
the regulation, which requires an employee’s participation in a particular matter, is not
implicated where, as here, the employee did not participate in the matter. The Board
also found that because Wallace did not actually participate in the hiring process, the
agency failed to prove that Wallace violated the regulation by not seeking prior
authorization from ethics officials. The Board noted that the agency had already
decided, prior to its selection of Martin, that if she were selected, she would be detailed
out of OHR until Wallace left her supervisory detail to OHR, and the record reflects
that the agency took this action following the selection of Martin. Finally, the Board
held that the agency failed to sustain the basis for Martin’s removal because the
justification for it, an appointment made in violation of the anti-nepotism rules, was not
sustained by the Board. The Board found no basis to disturb the AJ’s finding that the
appellants failed to establish their affirmative defenses.
Smith v. Department of Transportation, 2007 MSPB 142
MSPB Docket No. AT-0752-05-0901-I-2
June 5, 2007
Adverse Action Charges
- Theft/Misuse/Misappropriation of Government Property/Funds
Constitutional Issues/ Due Process
- Due Process
- First Amendment
HOLDING: Appellant’s innocent acquisition of incriminating
documents from an anonymous source and subsequent disclosure
of them to his attorney and EEO investigator in the course of
pursuing his discrimination complaint was permissible.
Appellant’s disclosure to his attorney and EEO investigator of
information improperly accessed from confidential agency files
and not relevant to his EEO complaint violated the agency’s
standards of conduct concerning the safeguarding and use of
information, documents and records. Where an appellant’s EEO
claim is personal in nature and limited to his own situation, it is
not a matter of public concern and therefore the appellant’s
speech is not protected by the First Amendment. The agency’s
action does not constitute an impermissible restriction on any
Fifth Amendment due process right to retain counsel in civil
litigation where the appellant had other legal avenues available to
him to obtain the information necessary for his EEO complaint.
The appellant is a Labor Relations Manager whose duties and responsibilities
included the EEO program. Following his non-selection for a Supervisory Program
Analyst position, he filed an EEO complaint alleging that his non-selection was the
result of race discrimination and reprisal for prior EEO activity. During the
investigation of his complaint, questions posed to the selectee for the Supervisory
Program Analyst position indicated that private information about the selectee’s prior
EEO complaints had been compromised. At the completion of an internal investigation,
the agency suspended the appellant for 30 days based on charges of unauthorized use of
official government information, unauthorized use of official government documents
obtained through government employment, unauthorized removal and possession of a
personal government document, and misstating information for another’s government
claim.
On appeal to the Board, the administrative judge found that the agency failed to
prove any of its charges, she rejected the appellant’s claim of race discrimination but
found that the appellant had established that the agency’s action was taken in retaliation
for his prior EEO activity. The Board majority reversed the initial decision (ID) to the
extent it declined to sustain charges 1-3 and found that the agency retaliated against the
appellant, but affirmed the ID to the extent it declined to sustain charge 4.
With respect to Charge 1, unauthorized use of official government information, the
Board did not sustain specification 1 concerning the appellant’s release to his attorney
and the EEO investigator of information about the selectee’s EEO complaints because
the Board found that the appellant innocently acquired the information from an
anonymous source and did not misuse the information by disclosure to his attorney and
the EEO investigator. Thus there was no violation of the agency’s standards of conduct
relating to the safeguarding and use of agency information. The Board came to the
opposite conclusion with respect to Specification 2 of Charge 1, concerning the
appellant’s disclosure of details regarding the proposed removal of another employee
for false statements. The Board found that this information was improperly obtained
from confidential agency files to which the appellant had access as part of his duties
and that the information was irrelevant to the appellant’s EEO complaint. Thus, the
Board found that the disclosure was not protected activity and sustained Specification
2. The Board, having sustained Specification 2 of Charge 1, sustained Charge 1.
Similarly, the Board found not relevant to the appellant’s EEO complaint and
improperly obtained a memorandum regarding his supervisor’s poor performance, a
memorandum the appellant discovered in his supervisor’s office while searching for
another document the supervisor had authorized him to obtain. Accordingly, the Board
found the appellant’s disclosure was not protected activity and sustained the agency’s
charge of unauthorized use. Finally, the Board sustained Charge 3, which related to the
removal of the memorandum noted in Charge 2 and copying that document for the
appellant’s own use.
With respect to the appellant’s constitutional claims, the Board found that where
an EEO complaint is personal in nature and limited to the complainant’s own situation,
it is not a matter of public concern. The Board also found that, even if the appellant’s
speech addressed a matter of public concern, the agency’s interest in promoting the
efficiency of the service outweighs the appellant’s interests as a citizen and therefore
agency’s discipline of the appellant did not violate his First Amendment rights. The
Board also rejected the appellant’s claim that the agency violated his Fifth Amendment
right to due process by requiring pre-clearance of documents and information, thereby
restricting the flow of communications between the appellant and his attorney and
effectively precluding him from obtaining sound legal advice, noting that the appellant
had other avenues available to him, such as the EEO investigation process. The Board
applied a balancing test similar to that used in analysis of First Amendment claims and
found that the agency’s interest in protecting official information outweighs the
appellant’s interest in discussing the merits of his EEO complaint with his attorney,
considering the manner in which the appellant obtained and handled the information.
The Board also rejected the appellant’s claim that his suspension was retaliatory.
The Board found that the deciding official’s application of the Douglas factors indicates
that the sustained misconduct caused the agency to lose trust in the appellant and his
ability to safeguard sensitive personnel. The Board also found that the deciding
official, although lobbied by other individuals with possible motives to retaliate,
himself had no motive to retaliate and that the seriousness of the appellant’s misconduct
was sufficient to outweigh any retaliatory motive.
Chairman McPhie issued a concurring opinion. Member Sapin issued a dissenting
opinion, adopting the relevant portions of the AJ’s decision.
Byrne v. Department of Labor, 2007 MSPB 143
MSPB Docket No. CB-7121-07-0007-V-1
June 5, 2007
Adverse Action Charges
- Performance-Based Actions
Arbitration/Collective Bargaining-Related Issues
- Review Authority of MSPB
Discrimination
- Physical/Mental Disability - Accommodation
HOLDING: Reasonable accommodation does not require an
agency to lower production or performance standards. Upon
determining that the appellant was not capable of meeting the
productivity requirements of his position, the arbitrator correctly
found that the appellant was not a qualified individual with a
disability under the Americans with Disabilities Act because he
could not perform the essential functions of his position with or
without reasonable accommodation.
The appellant was removed from his Staff Attorney position with the agency’s
Employees’ Compensation Appeals Board (ECAB) for unsatisfactory performance.
He grieved his removal and asserted that he suffered from a mental disability and that
the agency could accommodate his position by reducing his production requirements.
The arbitrator denied the grievance and sustained the removal.
In his request for review, the appellant asserted that the arbitrator erroneously
decided the disability discrimination claim. The Board, however, found that the
arbitrator applied the correct legal analysis. Specifically, the Board found that
reasonable accommodation does not require an agency to lower production or
performance standards and, upon determining that the appellant was not capable of
meeting the productivity requirements of his position, the arbitrator correctly
determined that the appellant was not a qualified individual with a disability under the
Americans with Disabilities Act because he could not perform the essential functions of
his position with or without reasonable accommodation. The arbitrator did not err in
concluding that the agency was not obligated to afford the appellant an opportunity to
demonstrate acceptable performance under the performance standards that went into
effect after the appellant’s performance improvement period (PIP) ended, or in failing
to address the appellant’s performance with respect to the second critical element for
which the agency placed him on the PIP. Accordingly, the Board sustained the
arbitrator’s decision.
Dean v. Consumer Product Safety Commission, 2007 MSPB 144
MSPB Docket Nos. AT-3443-05-0147-M-1; AT-3443-05-0179-M-1
June 5, 2007
Miscellaneous Topics
- USERRA/Veterans Rights
This case, involving non-selection claims brought under the Uniformed Services
Employment and Reemployment Rights Act (USERRA) and the Veterans Employment
Opportunities Act (VEOA), was remanded to the Board by the Federal Circuit. The
court directed the Board to determine whether the agency’s practice of creating multiple
certificates of eligibles and requiring applicants to submit more than one application in
order to be included on more than one certificate, and selecting from only one
certificate, violated USERRA or the appellant’s veterans’ preference rights. The Board,
noting that resolution of these issues may concern facts in dispute, further remanded the
case to the regional office for development of the record and a new adjudication.
The
Board noted that, in light of Kirkendall v. Department of the Army, 479 F.3d 830 (Fed.
Cir. 2007) (en banc), the appellant should not be bound by his earlier election to
proceed without a hearing.
Brooks v. Department of the Treasury, 2007 MSPB 145
MSPB Docket Nos. AT-3443-06-0957-I-1
June 5, 2007
Miscellaneous Topics
- USERRA/Veterans Rights
Without holding the hearing the appellant had requested, the administrative judge
denied the appellant’s request for corrective action under Uniformed Services
Employment and Reemployment Rights Act (USERRA). While the appellant’s petition
for review was pending before the Board, the Federal Circuit issued Kirkendall v.
Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), which held that
USERRA claimants are entitled to a hearing before the Board. The Board found,
consistent with Kirkendall, that the appellant is entitled to the hearing he requested.
Accordingly, the Board remanded the appeal to the regional office for further
adjudication.
Giove v. Office of Personnel Management, 2007 MSPB 146
MSPB Docket No. DE-844E-00-0370-C-2
June 5, 2007
Compliance
- Miscellaneous/Procedures
Miscellaneous Topics
- Compensatory/Consequential Damages
HOLDING: The Board has authority to review matters related to
Thrift Savings Plan (TSP) accounts, including claims that an
agency failed to take corrective actions it should have taken with
respect to an account. Tax-related consequences of withdrawal of
TSP funds due to denial of a disability retirement application are
damages, and the Board lacks authority to award damages in a
retirement appeal.
The appellant successfully appealed the denial of his disability retirement
application by the Office of Personnel Management (OPM), and the Board ordered
OPM to approve his application and make his annuity retroactive to his last day of pay.
The appellant filed a petition for enforcement stating he had withdrawn $61,000 from
his TSP account between 1999 and 2004 and asking the Board to allow a 2006 tax
deductible contribution to his account in the same amount. OPM stated that it did not
administer the TSP and moved to dismiss. The administrative judge (AJ) denied the
petition on the ground that the Board lacks jurisdiction to review matters within the
discretion of the TSP Board.
On petition for review, the Board held that its enforcement authority under 5
U.S.C. § 1204(a)(2) permitted it to review matters related to TSP accounts, including
claims that an agency failed to take required corrective action with respect to such an
account. At the same time, it found that compliance with its order in the appellant's
appeal did not require any agency to permit the redeposit that the appellant requested.
It found that, to the extent the appellant's withdrawal was related to OPM's denial of his
disability retirement application, tax-related and other consequences of the withdrawal
would represent damages from the disallowance. However, the Board held that it
lacked authority to award damages in a retirement appeal and denied the appellant's
petition for enforcement. The Board also found that other claims raised by the
appellant would more appropriately be raised on appeal from a new reconsideration
decision by OPM addressing them.
FEDERAL CIRCUIT AFFRIMANCES/DISMISSALS (NP)
The following appeals were dismissed:
Gibson-Michaels v. Federal Deposit Insurance Corporation, 07-3080, 07-3081, 07
3107; DC-0752-05-0633-C-1, DC-0752-05-0633-C-2, DC-0752-06-0515-I-1 (05/31/07).
Livingston v. Office of Personnel Management, 07-3197; DC-844E-06-0325-I-1
(05/31/07)
The following appeals were affirmed:
Labio v. Office of Personnel Management, 2006-3399; SF-0831-06-0249-I-1 (06/01/07)
Dichoso v. Office of Personnel Management, 2007-3055; SF-0831-06-0409-I-1
(06/05/01)
Stewart v. Merit Systems Protection Board and Department of Veterans Affairs, 2007
3070; AT-0752-06-0585-I-1 (06/05/07)
Rods v. Department of the Interior, 06-3424; AT-0842-05-0695-I-2 (06/05/07)
Freeman v. U.S. Postal Service, 07-3026; BN-0752-03-0133-A-1 (06/05/01)
The following appeals were vacated and remanded:
Freund v. Department of the Air Force, 2006-3140; CH-315H-05-0773-I-1 (06/06/07)
Amato v. Department of the Army, 2005-3380; DC-3443-04-0299-I-2 (06/06/07) | 19,710 | |
Case_Report_June_1_2007 | 06-01-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_1_2007_268388.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_1_2007_268388.pdf | CASE REPORT DATE: June 1, 2007
Note: These summaries are descriptions prepared by individual MSPB employees.
They do not represent official summaries approved by the Board itself, and are not
intended to provide legal counsel or to be cited as legal authority. Instead, they are
provided only to inform and help the public locate Board precedents.
BOARD DECISIONS
Gingery v. Department of Defense, 2007 MSPB 138
MSPB Docket No. CH-3443-06-0582-I-1
May 30, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
HOLDING: The Federal Career Intern Program (FCIP) is a valid
exception to the competitive examination requirement set out in 5
U.S.C. § 3304 because it was expressly authorized by an Executive
Order promulgated under 5 U.S.C. § 3302 and therefore the use of
the FCIP to select 2 applicants other than the preference eligible
appellant did not constitute circumvention of the appellant’s
preference rights.
The Board denied the appellant’s petition for review of an initial decision denying
his request for relief under the Veterans Employment Opportunities Act of 1998
(VEOA), reopened the appeal on its own motion, and affirmed as modified the initial
decision.
The appellant appealed to the Board after he was not selected for an auditor
position which was announced by the agency on an internet website which stated that
the agency was also accepting resumes for its Federal Career Intern Program (FCIP).
The appellant asserted that his rights as a compensably disabled preference eligible
were violated when the agency hired two applicants under the FCIP, one applicant from
an OPM certificate and one applicant described as eligible for noncompetitive
reinstatement. The Administrative Judge (AJ) denied the appellant’s request for
corrective action.
On review, the Board found no error in the AJ’s conclusion that the appellant
failed to show a violation of his rights under a statutory or regulatory provision relating
to veteran preference. The Board specifically rejected the appellant’s arguments that
Deems v. Department of the Treasury, 100 M.S.P.R. 161 (2005) and Dean v.
Department of Agriculture, 99 M.S.P.R.533 (2005), aff’d on recons., 104 M.S.P.R. 1
(2006), and Olson v. Department of Veterans Affairs, 100 M.S.P.R. 322 (2005), aff’d on
recons. Sub nom.
Dean v. Department of Agriculture, 104 M.S.P.R. 1 (2006), establish
that the agency’s hiring under the FCIP constitutes improper circumvention of his
preference rights. The Board explained that the cited decisions do not hold that
noncompetitive hiring authorities, such as the FCIP, may never be used to hire
candidates not entitled to preference when qualified preference-eligible candidates are
available. Rather, those decisions hold that, under 5 U.S.C. § 3304, an individual may
be appointed in the competitive service only if he has passed an examination or
qualified for appointment under a valid noncompetitive appointing authority. Here, the
Board found that the FCIP constitutes a valid exception to the competitive examination
requirement of 5 U.S.C. § 3304 and that the agency followed correctly OPM’s
regulations applicable to such excepted appointments.
Caracciolo v. Department of the Treasury, 2007 MSPB 139
MSPB Docket No. NY-3443-05-0222-I-3
May 30, 2007
Board Procedures
- Adjudicatory Error
Jurisdiction
- Reduction In Pay/Rank/Grade
The Administrative Judge (AJ) dismissed for lack of jurisdiction the appellant’s
appeal of the agency’s failure to grant her a timely within-grade increase based on a
finding that the appellant was covered by a collective bargaining agreement that
provides the exclusive remedy for raising claims related to within-grade increases. The
Board vacated the initial decision, still dismissing the appeal for lack of jurisdiction,
but on other ground.
On petition for review, the Board found, based on the appellant’s submission
below of an SF-50, that the appellant occupied a supervisory position and therefore was
not covered by the collective bargaining agreement. Nevertheless, the Board concluded
that the appellant had not raised a nonfrivolous allegation of fact that would establish
Board jurisdiction. While the Board noted that the AJ had not provided to the
appellant, prior to issuance of the initial decision, the required explicit information of
what was needed to establish an appealable jurisdictional issue of a reduction in pay,
the initial decision put the appellant on notice that she must show that her pay was
actually lowered. Under these circumstances, the Board found no prejudice to the
appellant’s substantive rights. The Board noted that the appellant, on PFR,
acknowledged that she had received payment from the agency but stated that the
appellant now appears to be appealing the agency’s failure to offer a full accounting of
the payment, a matter not within the Board’s jurisdiction outside the context of a
compliance proceeding. Finally, the Board found no error in the AJ’s failure to grant
the appellant’s request for recusal, a motion based on the appellant’s perception that the
AJ was biased based on rulings the AJ had made in the appellant’s prior appeal.
Pinegar v. Federal Election Commission, 2007 MSPB 140
MSPB Docket No. CB-7121-07-0001-V-1
May 30, 2007
Arbitration/Collective Bargaining-Related Issues
- Review Authority of MSPB
Discrimination
- Physical/Mental Disability - Qualified Disabled Employee
HOLDING: The scope of the Board’s review of an arbitrator’s
decision is limited. The appellant’s disability discrimination claim
failed because the evidence did not show that his depression
substantially limited his major life activities. The Board will not
review arguments other than discrimination claims that have not
been raised before the arbitrator. The Board upheld the penalty
of removal because it was not incorrect as a matter of civil service
law, rule, or regulation.
The appellant was removed from his GS-12 Attorney position based on charges of
Disruptive Behavior (two specifications) and Inappropriate Remarks (seven
specifications). He grieved his removal and the arbitrator sustained both charges and
found that the penalty of removal was within the bounds of reasonableness. Before the
Board, the appellant challenged two specifications under the charge of Inappropriate
Remarks, raised claims that he was discriminated against based on gender and
disability, and challenged the appropriateness of the penalty.
The Board first rejected the appellant’s request to proceed anonymously.
The
Board applied the principles enunciated in Ortiz v. Department of Justice, 103 M.S.P.R.
621 (2006) and found that he had not rebutted the presumption that parties’ identities
are public information in Board cases.
On the merits, the Board noted that the scope of its review of an arbitrator’s
decision is limited. The Board found that the appellant did not show that the arbitrator
erred in sustaining the charges. The Board found that the appellant made only a bare
allegation with respect to his gender discrimination claim, and found that it was
unsupported by factual allegations. With respect to disability discrimination, the Board
found that the evidence supported the appellant’s assertion that he suffered depression.
However, the Board found that the evidence did not show that depression substantially
limited the appellant’s ability to care for himself, perform manual tasks, walk, see,
hear, speak, learn, or work. Further, the appellant offered no evidence regarding his
own experience living with these conditions upon which the Board could conclude that
his depression substantially limited a major life activity. To the extent he asserted that
he was disabled due to the side effects of the various medications he took, the Board
found that that purported disability can only be considered temporary or transitory
because the appellant switched to different medication.
With respect to other affirmative defenses raised by the appellant, the Board noted
that it will not review arguments other than discrimination claims that are not raised
before the arbitrator. The appellant did not raise his due process and whistleblower
claims before the arbitrator. The Board further found that the arbitrator correctly
applied the harmful error standard in determining that the appellant failed to show how
he was harmed by the agency’s procedural errors. Finally, the Board concluded that it
could not find that the arbitrator’s determination that the penalty of removal was within
the bounds of reasonableness was incorrect as a matter of civil service law, rule, or
regulation.
EEOC DECISIONS
Parks v. Potter
Petition No. 0320070049; MSPB Nos. AT-0752-06-0166-I-1, AT-0752-06-0167-I-1
May 7, 2007
The petitioner filed a complaint with his agency alleging that he was discriminated
against on the basis of disability when he was placed on enforced leave and later
demoted from a PS-4 to a PS-3 as a result of reassignment from the position of Part
Time Flexible Mail Handler to Custodian. The agency found no discrimination and the
petitioner appealed to the Board, which found that the petitioner failed to establish that
his diabetes mellitus substantially limited him.
On petition for review to the EEOC, the
EEOC noted that it has determined that some individuals with diabetes mellitus are
individuals with disabilities within the meaning of the Rehabilitation Act while others
are not and that much more specific information, pursuant to the principles set forth in
Carr v. United States Postal Service, EEOC Appeal No. 01A43665 (May 18, 2006),
must be collected to shed light on the full extent to which the petitioner’s diabetes
mellitus impacts his major life activities. Accordingly, the EEOC referred the matter
back to the Board for the taking of additional evidence and directed the Board to
forward the supplemented record to the Commission for review and a decision on the
record.
COURT DECISIONS
Ledbetter v. Goodyear Tire & Rubber Co., Inc., 2007 WL 1528298
Supreme Court Docket No. 05-1074
May 29, 2007
Discrimination
- Sex Discrimination
HOLDING: The time period for filing a charge with the Equal
Employment Opportunity Commission (EEOC) is triggered when
a discrete unlawful practice takes place. A new violation does not
occur, and a new charging period does not commence, upon the
occurrence of subsequent nondiscriminatory acts that entail
adverse effects resulting from the past discrimination. Because a
pay setting decision is a “discrete act,” the period for filing an
EEOC charge commences when a pay setting decision is made. If,
however, an employer engages in a series of acts, each of which is
intentionally discriminatory, then a fresh violation takes place
when each act is committed.
Petitioner Ledbetter was an employee of Goodyear from 1979 until 1998, at which
time she brought a discrimination action under Title VII of the Civil Rights Act of 1964
alleging that several supervisors had, in the past, given her poor evaluations because of
her sex. Petitioner had not filed a timely charge of discrimination following each
instance of any such past discriminatory act. Rather, she claimed that the past acts of
discrimination were “carried forward” within the employer's performance-based pay
system by causing her, over the passage of time, to earn significantly less than her male
colleagues. The Supreme Court granted certiorari to determine whether, and under
what circumstances, a plaintiff may bring an action under Title VII alleging illegal pay
discrimination when the disparate pay is received during the statutory limitations
period, but is the result of intentionally discriminatory pay decisions that occurred
outside the limitations period.
Citing to precedent such as National Railroad Passenger Corporation v. Morgan,
536 U.S. 101 (2002), the Court held, in a 5-4 decision, that the EEOC charging period
is triggered when a discrete unlawful practice takes place. A new violation does not
occur, and a new charging period does not commence, upon the occurrence of
subsequent nondiscriminatory acts that entail adverse effects resulting from the past
discrimination. Because a pay setting decision is a “discrete act,” it follows that the
period for filing an EEOC charge commences when a pay setting decision is made. If,
however, an employer engages in a series of acts, each of which is intentionally
discriminatory, then a fresh violation takes place when each act is committed. Under
the facts presented, the Court found that Ledbetter had not proven that a discriminatory
act had occurred during the applicable time limit for a private sector complaint (180
days prior to the filing of the EEOC charge).
The Court also rejected Ledbetter's argument that her case, to the extent that
relates to discriminatory pay setting decisions, should be governed by the Court's
holding in Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam), and therefore treated
differently. The Court held that Bazemore does not support Ledbetter's claim of
discrimination but, rather, stands for the proposition that an employer violates Title VII
and triggers a new EEOC charging period whenever the employer issues paychecks
using a facially discriminatory pay structure. However, a new Title VII violation does
not occur, and a new charging period is not triggered, when an employer issues
paychecks pursuant to a system that is facially nondiscriminatory and neutrally applied.
The Court held that Ledbetter had not established that Goodyear adopted its
performance-based pay system in order to discriminate on the basis of sex and,
therefore, Bazemore was not applicable.
Davis v. Department of Homeland Security NP
Fed. Cir. No. 2006-3061, MSPB Docket No. SF-0752-04-0760-I-1
May 30, 2007
Jurisdiction
-Miscellaneous
The Federal Circuit vacated and remanded the Board’s decision which had found
that the petitioner voluntarily resigned from her position as a Customs and Border
Patrol Officer for the Department of Homeland Security.
The petitioner filed a complaint of sexual harassment with the Equal Employment
Opportunity Commission (EEOC). Before her complaint was resolved, she filed a claim
of constructive discharge with the Board and alleged that her resignation was coerced
based on sexual harassment, and retaliation for filing an EEO complaint and
whistleblowing. The administrative judge (AJ) found that while the petitioner may
have been subject to sexual harassment the agency took appropriate measures to curtail
the conduct and that the appellant had voluntarily resigned. After the initial decision
had been issued and after the record on petition for review (PFR) had closed, the
petitioner submitted to the Board a copy of the transcript of the EEOC proceeding and
the EEOC’s decision finding that the petitioner was subject to sexual harassment. The
short form Order stated that the Board did not consider the late-filed submissions.
On judicial review, the Court rejected the petitioner’s claims that the AJ violated
her due process rights during the processing of the appeal and that the Board’s decision
did not state with sufficient specificity the reasons for denying review. The Court also
found that the petitioner’s allegations of coercion, other than her claim of sexual
harassment, do not establish coercion and that the AJ correctly found no jurisdiction
over the petitioner’s whistleblowing claim. The Court, however, found that the Board
should have considered the EEOC’s decision, which was issued after the record on PFR
had closed, given that the EEOC’s decision was inconsistent with the determination
made by the AJ in the initial decision. The Court remanded with instructions to
consider the conclusions reached by the EEOC and the AJ with respect to sexual
harassment and to resolve the inconsistencies, noting that the Board might still reach
the same result if, for instance, the sexual harassment was too far removed in time from
the petitioner’s resignation to have rendered it involuntary or if other factors, unrelated
to the harassment, caused the petitioner to resign voluntarily. | 16,082 | |
Case_Report_May_25_2007 | 05-25-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_25_2007_268389.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_25_2007_268389.pdf | CASE REPORT DATE: May 25, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board itself, and
are not intended to provide legal counsel or to be cited as legal authority. Instead, they
are provided only to inform and help the public locate Board precedents.
BOARD DECISIONS
Brown v. U.S. Postal Service, 2007 MSPB 136
MSPB Docket No. DA-0752-07-0077-I-1
May 22, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Timeliness
- Miscellaneous
HOLDING: The filing deadline for an adverse action appeal may be
tolled under the Servicemembers Civil Relief Act of 2003 (SCRA). The
Board may reopen and reconsider a case on its own motion to consider
the effect of the SCRA on the timeliness of an appeal. In a removal
appeal, the Board may consider an appellant’s USERRA claim as an
affirmative defense under 5 U.S.C. § 7701(c)(2)(C) or, if the adverse
action is found to be untimely or not within the Board’s jurisdiction, the
Board may consider the USERRA claim as a separate appeal.
The administrative judge (AJ) dismissed the appellant’s removal appeal as
untimely filed with no good cause shown based on a finding that the appellant received
the Final Agency Decision (FAD) on his discrimination complaint on October 5, 2006,
but filed his appeal more than 30 days later and failed to respond to the AJ’s order
concerning timeliness. The AJ did not address the appellant’s Uniformed Services
Employment and Reemployment Rights Act (USERRA) claim.
On petition for review, the appellant alleged for the first time, with some
supporting evidence, that he did not accept delivery of the FAD on October 5, 2006
because he was serving on military orders with the U.S. Navy Reserve and that his
appeal was timely because he filed it within 30 days after his returned home upon
completing military duty. The Board denied the appellant’s PFR, reopened the appeal
under its own motion, vacated the initial decision, and remanded the appeal for further
adjudication, including the appellant’s claim under USERRA.
The Board found that the AJ correctly dismissed the appeal as untimely filed
without a showing of good cause based on the 9-day delay in filing and the appellant’s
failure to respond to the AJ’s show cause order.
Nevertheless, the Board, relying on
Henry v. USPS, 69 M.S.P.R. 555 (1996), found it appropriate to reopen to consider the
effect on the timeliness issue of the Servicemembers Civil Relief Act of 2003 (SCRA),
which has a tolling provision that operates to halt the running of the time limitation for
filing an appeal until an appellant is released from military service. Because the
evidence submitted by the appellant was inconclusive as to whether it constituted
military service within the meaning of the SCRA, the Board remanded for a
determination on the timeliness issue, with further instructions to the AJ to determine,
depending upon the timeliness finding, whether the Board has adverse action
jurisdiction over the appellant’s removal appeal.
The Board also found it necessary to remand for a determination on the
appellant’s USERRA claim, which was not addressed by the AJ in either an
acknowledgment order or the initial decision. The Board directed the AJ, on remand, to
inform the appellant of his jurisdictional burden under USERRA and noted that the
appellant’s USERRA claim may be considered as an affirmative defense to the removal,
or as a separate claim, in which case the Board’s authority would not extend beyond the
alleged USERRA violations.
Sutton v. Office of Personnel Management, 2007 MSPB 137
MSPB Docket No. AT-0845-03-0442-I-1
May 23, 2007
Timeliness
-Miscellaneous
The Board dismissed as untimely filed with no good cause shown, the appellant’s
petition for review (PFR) of an initial decision where the record shows that the PFR
was filed three and a half years after issuance of the initial decision and where the
appellant’s vague allegation of depression was unsupported by any medical evidence
that he had such a condition, or that it existed during the relevant time period or that it
prevented him from timely filing his appeal.
COURT DECISIONS
Lutz v. U.S. Postal Service
Fed. Cir. No. 06-3154; MSPB Docket No. CH-0752-03-0220-X-1
May 15, 2007
Settlement
- On PFR/PFE
HOLDING: The agency’s breach of a settlement agreement provision
that required it to cooperate and facilitate the acceptance of the
appellant’s disability retirement application and not to place negative
statements in the supervisor statement was a material one because it
discouraged OPM’s acceptance of the application.
In this enforcement case, the Federal Circuit held that a supervisor’s negative
statements discouraged OPM’s acceptance of Mr. Lutz’s disability retirement
application and therefore constituted a material breach of the parties’ settlement
agreement. The court reversed the Board’s decision and remanded for further
proceedings.
In the settlement agreement resolving Mr. Lutz’s appeal, the agency agreed to
cooperate and facilitate the acceptance of Mr. Lutz’s disability retirement application
and “not to place negative statements in the supervisor statement.” OPM denied Mr.
Lutz’s application and he filed a petition for enforcement (PFE) alleging that the
agency breached the settlement agreement by including negative statements in the
supervisor’s statement. The Board denied the PFE, finding that OPM would have
denied the application regardless of any allegedly negative remarks contained in the
supervisor’s statement.
On review, the court found that OPM explicitly relied on the supervisor’s
negative statements as one of two factors in denying the request for disability
retirement, the other factor being a lack of medical evidence to establish a disabling
medical condition. The court acknowledged that it is impossible to know precisely to
what extent the supervisor’s statements colored OPM’s analysis, but found it clear that
the statements did discourage OPM’s acceptance of the application. The court directed
the Board, on remand, to determine the appropriate remedy for the agency’s material
breach.
Pittman v. Department of Justice
Fed. Cir. No. 2006-3263; MSPB Docket No. NY-3443-05-0113-I-1
May 15, 2007
Miscellaneous Topics
- USERRA/Veterans Rights
HOLDING: The Board lacks jurisdiction over a USERRA claim where
the appellant has elected to raise similar matters through the negotiated
grievance procedure. A reemployment claims fails where the employee
was placed in his previous position at the agency following his military
service.
In this USERRA case, the Federal Circuit held that the Board did not have
jurisdiction over Mr. Pittman’s claims under 38 U.S.C. §§ 4311(a) & 4316(c) for
improper removal because he had elected to raise similar matters by challenging his
removal under the negotiated grievance procedure. Because he was barred by 5 U.S.C.
§ 7121(e) from bringing those claims before the Board, the Board’s denial of those
claims on the merits was error. The court found that substantial evidence supported the
AJ’s finding that Mr. Pittman was reemployed in his previous position at the agency
following his military service. The court therefore affirmed the Board’s denial of Mr.
Pittman’s reemployment claim under USERRA, but vacated the denial of his improper
removal claims and remanded with instructions to dismiss those claims for lack of
jurisdiction. In dissent, Judge Mayer expressed his view that the agency failed in its
obligation to reemploy Mr. Pittman following his military service.
Rhodes v. Merit Systems Protection Board
Fed. Cir. No. 2006-3340; MSPB Docket No. NY-0752-06-0015-I-1
May 23, 2007
Jurisdiction
- Arbitration/CBA-Related Issues
- Suspensions
HOLDING: For purposes of an election made under 5 U.S.C.
§ 7121(e),the matter raised by an appeal from the imposition of an
indefinite suspension is not the same as the matter raised by an appeal
from the continuation of an indefinite suspension and therefore the
petitioner’s election to grieve the former does not preclude an appeal to
the Board of the latter.
The petitioner appealed the agency’s failure to restore him to duty after an
acquittal of the criminal charges that formed the basis of his indefinite suspension by
the agency. The administrative judge (AJ) dismissed the appeal for lack of jurisdiction
based on a finding that the petitioner had made a binding election, under 5 U.S.C.
§ 7121(e), when he challenged the imposition of the indefinite suspension under the
collective bargaining agreement. The AJ concluded that an election to grieve the
reasons for the indefinite suspension would include any subsequent challenge to the
agency’s failure to end the indefinite suspension pursuant to the stated condition
subsequent.
The Court reversed and remanded. It concluded that, for purposes of section
7121(e), the “matter” raised by an appeal from the imposition of an indefinite
suspension is not the same as the matter raised by an appeal from the continuation of an
indefinite suspension. Thus, the Court found that the petitioner’s election to grieve the
former does not preclude an appeal to the Board of the latter. The Court rejected the
Board’s argument that Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed.
Cir. 1986), limited the definition of “matter in 7121(e) to the underlying personnel
action, of which there is only one in this case, an indefinite suspension. The Court
found that an analysis of “matter” in the context of section 7121(e) looks to the
underlying agency action that is being appealed.
FEDERAL CIRCUIT AFFRIMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Daniel v. Department of Veterans Affairs, 2006-3291; PH-0432-05-0280-I-2 (05/11/07)
Green v. U.S. Postal Service, 2006-3425; SF-0353-05-0977-I-1 (05/11/07)
Richards v. Merit Systems Protection Board, 2006-3303; CH-0752-05-0883-I-1
(05/11/07)
Shelburne v. Merit Systems Protection Board, 2007-3003; DC-0752-06-0334-I-1
(05/11/07)
Brooks v. Department of the Air Force, 2007-3039; DA-0752-06-0260-I-1 (05/14/07)
Gafford v. Merit Systems Protection Board, 2006-3428; DA-0752-05-0658-I-1
(05/14/07)
Schwab v. Office of Personnel Management, 2007-3061; DC-0846-06-0340-I-1
(05/14/07)
Sweeney v. Department of Homeland Security, 07-3014; DA-0752-05-0534-I-2
(05/14/07)
Rethaber v. Merit Systems Protection Board, 2006-3311; DA-0752-06-0115-I-1
(05/15/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 26533-26535 (May 10, 2007)
MSPB issued an interim rule, with the concurrence of the Office of Government
Ethics, requiring an MSPB employee to obtain written approval from that employee’s
supervisor and the concurrence of the agency’s Designated Agency Ethics Official
(DAEO) or the alternate DAEO before engaging in certain kinds of outside
employment. Employment is defined broadly to cover non-Federal employment or
business relationships involving the provision of personal services, whether or not for
compensation. | 11,057 | |
Case_Report_-_May_11__2007 | 05-11-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_11_2007_262715.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_11_2007_262715.pdf | CASE REPORT DATE: May 11, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Sredzinski v. United States Postal Service, 2007 MSPB 125
MSPB Docket No. CH-0752-06-0717-I-1
May 3, 2007
Mootness
The administrative judge dismissed the appeal as moot after the agency
indicated that it was rescinding the appellant’s removal and the appellant did
not object, provided the agency returned him to the status quo ante. The
Board found that remand was necessary to determine whether the agency has
completely rescinded the appellant’s removal so as to deprive the Board of
jurisdiction where the current record shows that the agency has not completed
processing the appellant’s back pay, the agency has not expunged references
to the removal action from the appellant’s personnel file and the agency
placed the appellant on administrative leave without showing a sufficient
reason for doing so.
Triplett v. Office of Personnel Management, 2007 MSPB 126
MSPB Docket Nos. CH-844E-05-0089-B-1; CH-844E-03-0754-I-1
May 4, 2007
Timeliness
- Notice of Time Limit/Appealable Matter
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
HOLDING: The appellant did not demonstrate good cause for her
untimely PFR where she failed to notify the Board of her change of
address and phone number while the appeal was pending. The dismissal
of the appellant’s first appeal for failure to prosecute was a valid, final
judgment on the merits, and therefore barred the appellant’s second
appeal under the doctrine of res judicata.
The appellant appealed from two initial decisions (IDs) that dismissed
her appeals from the Office of Personnel Management’s (OPM’s) denials of
her disability retirement applications. Her first appeal was dismissed for
failure to prosecute after documents sent to her address of record and her
forwarding address were returned as undeliverable. Her second appeal was
dismissed because OPM rescinded its reconsideration decision based on its
determination that the appellant’s second disability application was barred by
res judicata. The Board construed the appellant’s petition for review (PFR)
as a PFR of both IDs.
The Board found that the appellant’s PFR of the first ID was untimely
without good cause shown for the delay. The Board found that she did not act
with due diligence and ordinary prudence under the circumstances because
she did not provide the regional office with her change of address. With
respect to the PFR of the second ID, the Board held that the administrative
judge properly dismissed the appeal as barred by res judicata. The Board
found that the dismissal of the appellant’s first appeal for failure to prosecute
was a valid, final judgment on the merits, and therefore barred the appellant’s
second appeal. Accordingly, the Board dismissed the petition for review of
the first ID as untimely and affirmed the second ID.
In dissent, Member Sapin expressed her view that the appellant diligently
raised appropriate objections to the dismissal of her original appeal within 2
weeks after she first received notice that the dismissal of her original appeal
might preclude Board adjudication of her second appeal. Member Sapin
further found that there was no reason for the appellant to renew these
objections when the AJ dismissed her second appeal without prejudice to her
right to refile her appeal because the ID that dismissed the appeal without
prejudice did not put the appellant on notice that the Board might resolve this
potentially dispositive issue against the appellant. Therefore, Member Sapin
stated that she would reverse both IDs and remand the case for adjudication
on the merits.
Brandt v. Office of Personnel Management, 2007 MSPB 127
MSPB Docket No. AT-844E-07-0242-I-1
May 4, 2007
Retirement
- Disability Retirement
The administrative judge (AJ) dismissed this disability retirement appeal
after concluding that the Board no longer had jurisdiction given the Office of
Personnel Management’s (OPM) rescission of its final decision on the
appellant’s disability retirement application. The AJ further noted that OPM
2
would consider the appellant’s claim for benefits on the merits. OPM filed a
petition for review stating that, contrary to the AJ’s comments in the initial
decision (ID), OPM did not promise that it would issue a new final decision
on the merits, but rather a new reconsideration decision. The appellant did
not dispute OPM’s contentions. Accordingly, the Board modified the ID to
the extent that it indicated that OPM would necessarily issue a new
reconsideration decision on the merits. The Board nonetheless affirmed the
dismissal of the appellant’s appeal for lack of jurisdiction.
Bobie v. Department of the Army, 2007 MSPB 128
MSPB Docket No. CH-0752-07-0022-I-1
May 4, 2007
Jurisdiction
- Reduction in Pay/Grade/Rank
HOLDING: There is no need to reach the question of whether a
constructive demotion occurred where there was an actual reduction in
grade. Further, because the appellant was not eligible for grade retention
following his reduction in grade, he is not precluded from challenging
that action before the Board. On remand, the administrative judge will
review the agency’s reclassification of the appellant’s position only to
determine whether the agency acted in accordance with law.
The agency reclassified the appellant’s new position from GS-14 to GS
13 due to a classification error. The agency placed the appellant at Step 10 of
the GS-13 level, and his resulting salary was actually slightly higher than it
had been before the change to a lower grade. The appellant filed an appeal
challenging the change to a lower grade. The administrative judge (AJ),
focusing on the constructive demotion doctrine, dismissed the appeal for lack
of jurisdiction without holding the appellant’s requested hearing.
On review, the Board found that there was no need to reach the question
of whether a constructive reduction in grade occurred because the appellant’s
grade level was actually changed from GS-14 to GS-13. Such a reduction in
grade is generally an appealable adverse action. Furthermore, because the
appellant was not eligible for grade retention following his reduction in
grade, he is not precluded from challenging that action before the Board. The
Board vacated the ID and remanded for a hearing. The Board noted that,
under the applicable scope of review, the Board will review the agency’s
reclassification of the appellant’s position only to determine whether the
agency acted in accordance with law.
3
Berry v. Department of Commerce, 2007 MSPB 129
MSPB Docket No. CB-7121-07-0005-V-1
May 4, 2007
Arbitration/Collective Bargaining-Related Issues
- Arbitral v. Appeal Context
Discrimination
- Race Discrimination
HOLDING: The Board will modify or set aside an arbitration decision
only where the arbitrator has erred as a matter of law in interpreting
civil service law, rule, or regulation. An arbitrator’s finding that an
appellant did not prove his discrimination and EEO claims is a factual
determination entitled to deference, unless the arbitrator erred in his
legal analysis. The fact that a proposing official and the appellant are of
the same race is of little probative value because a person’s race does not
preclude the possibility of racial discrimination against a person of the
same race.
The agency removed the appellant from his GS-13 Patent Examiner
position on the charge of unacceptable performance. After an 8-day hearing,
the arbitrator found that the agency failed to prove that it properly removed
the appellant for unacceptable performance, and that the appellant failed to
prove that the agency engaged in race or color discrimination, or retaliated
against him for his prior equal employment opportunity activity. The
arbitrator ordered the agency to reinstate the appellant to his former position
and award him back pay and benefits. The appellant sought Board review of
the arbitrator’s decision, asserting that the arbitrator erred by failing to
consider his retaliation claim separately from his discrimination claims and
by concluding that he did not prove his affirmative defenses.
On review, the Board found that the arbitrator erroneously assumed that
a proposing official would not discriminate against the appellant because they
were both of the same race and color. A person’s race does not preclude the
possibility of racial discrimination against a person of the same race.
However, the arbitrator properly found that the record contained no evidence
of pretext for prohibited discrimination. Because an arbitrator’s finding that
an appellant did not prove his discrimination claims is a factual determination
entitled to deference, unless the arbitrator erred in his legal analysis, the
Board found no basis to disturb the arbitrator’s findings that the appellant
failed to prove his affirmative defenses. Accordingly, the Board sustained the
arbitrator’s decision.
4
Davis v. Department of Defense, 2007 MSPB 130
MSPB Docket No. PH-3443-06-0506-1
May 7, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Holding: An individual bringing a USERRA appeal has an unconditional
right to a hearing on the merits. A finding in a VEOA appeal that a
particular position was filled as a merit promotion without a competitive
examination is a finding on the merits of the appeal not a jurisdictional
finding but the appellant is only entitled to a hearing if he can show that
there is a genuine dispute of material fact. Where the appellant was not
put on notice of the need to show a genuine dispute of material fact in
order to receive a hearing on the merits of his VEOA claim, the appeal
must be remanded. Neither USERRA nor VEOA authorize the Board to
hear prohibited personnel practice claims, other than claims of
retaliation for whistleblowing in violation of 5 U.S.C. § 2302(b)(8).
The appellant, a GS-5 preference–eligible veteran with the agency
applied for a competitive service GS-6 position with the agency but the
agency selected an internal candidate who was not preference eligible for the
GS-6 position. The appellant filed an appeal with the Board alleging a
violation of his veterans’ preference rights under the Veterans Employment
Opportunities Act (VEOA) and also alleging discrimination on the basis of
his status as a veteran under the Uniformed Services Employment and
Reemployment Rights Act (USERRA). Additionally, the appellant alleged
that the agency violated four merit system principles and committed two
prohibited personnel practices. The administrative judge (AJ) dismissed the
USERRA and VEOA claims without the requested hearing and found no
jurisdiction to address the allegations regarding merit system principles and
prohibited personnel practices.
The Board vacated the AJ’s findings and conclusions on the merits of the
appellant’s USERRA claim and remanded for a hearing as the AJ had issued
his decision prior to the Federal Circuit’s decision in Kirkendall v.
Department of the Army, 479 F.3d 830 (2007), which held that an individual
bringing a USERRA appeal has an unconditional right to a hearing on the
merits.
The Board also vacated and remanded the AJ’s decision with respect to
the appellant’s VEOA appeal. The Board found that to the extent the AJ had
dismissed the appellant’s VEOA appeal for lack of jurisdiction, that finding
was incorrect because the AJ reached the merits of the appeal when he found
that the position at issue was filled as a merit promotion without a
competitive examination. The Board also found that to the extent the AJ
dismissed the appellant’s VEOA claim for failure to state a claim, that
5
disposition was incorrect because the AJ did not, as required for such a
disposition, accept as true the appellant’s claim that the selection of a non
veteran for the GS-6 position was not a merit promotion. The Board noted
the dispute between the parties as to whether or not the agency used merit
promotion procedures to appoint the non-preference eligible but also noted
that in VEOA appeals, unlike USERRA appeals, there is no absolute right to a
hearing. A hearing is only required if there is a genuine dispute of material
fact and here it appears from the agency’s documentary evidence that the
appointment was made pursuant to merit promotion procedures.
Nevertheless, because the appellant was not put on notice of what was needed
to show a genuine dispute of material fact, the Board remanded the appeal to
give the appellant the opportunity to demonstrate a genuine dispute.
The Board found no jurisdiction to hear the appellant’s allegations of
violations of merits system principles. It also found no jurisdiction to hear
the appellant’s allegations of prohibited personnel practices other than
retaliation for whistleblowing, citing cases holding that VEOA does not grant
the Board authority to consider claims for violations of laws other than
veterans preference rules and that USERRA does not grant the Board
authority to consider violations of laws other than USERRA. The Board
found that the appellant had abandoned the whistleblower retaliation claim he
raised below.
Moore-Meares v. Office of Personnel Management, 2007 MSPB 131
MSPB Docket No. DA-0831-06-0565-I-1
May 8, 2007
Retirement
- Survivor Annuity
Miscellaneous Topics
- New Evidence
Holding: In a survivor annuity case where the paramount concern is
whether the appellant is entitled to the benefits she seeks and where the
appellant’s new argument and evidence presented for the first time on
petition for review (PFR) raise the real possibility that the appellant is
entitled to a survivor annuity, the Board may exercise its discretion to
reopen and reconsider the decision below despite the fact that the
evidence submitted on PFR was not unknown or unavailable to the
appellant prior to the close of the record below.
The administrative judge affirmed the Office of Personnel Management’s
(OPM) decision denying the appellant a survivor annuity because she did not
meet the statutory definition of “widow,” because she was not married to the
Civil Service Retirement System (CSRS) annuitant for 9 months or more prior
to his death as required for entitlement to a CSRS survivor annuity. On
petition for review, the appellant argued for the first time that she met the
6
definition of “widow” because she and the annuitant had entered into a
common law marriage under Texas law approximately 15 months before the
annuitant’s death and she submitted affidavits in support of her claim. OPM
replied that it was unaware of this information and would not oppose a
remand of the appellant’s survivor annuity application.
The Board majority found that the affidavits submitted by the appellant
do not meet the criteria for new evidence because they do not contain facts
that were unknown or unavailable to the appellant prior to the close of the
record below. Rather, the appellant’s affidavit indicates that neither she nor
her non-attorney representative were aware that Texas law recognizes
common law marriage. The Board, however, declined to apply the usual rule
that an appellant is responsible for the errors of her chosen representative,
noting that it might be inequitable to do so in this annuity appeal where the
paramount concern is whether the appellant is entitled to benefits and where
the appellant’s new argument and evidence presented for the first time on
PFR raise the possibility that she is entitled to a survivor annuity under
CSRS. Accordingly, the Board reopened the appeal, vacated the initial
decision and remanded the case to OPM for issuance of a new reconsideration
decision.
The Chairman concurred in the result, based on OPM’s statement that it
would have no objection if the Board remanded the matter to it. In the
Chairman’s view, the evidence submitted for the first time on PFR was not so
strong on its face as to justify departure from the general rule that the Board
will not consider argument and evidence submitted for the first time on
review unless it was unavailable for below.
Guerrero v.Department of Veterans Affairs, 2007 MSPB 132
MSPB Docket No. AT-0752-06-0144-I-2
May 8, 2007
Adverse Actions Charges
- Falsification/Fraud
Board Procedures
- Adjudicatory Error
The agency removed the appellant based on three charges: false
statements on Optional Form 306; false statements on Optional Form 612; and
misrepresentation of qualifications. After a hearing, the administrative judge
(AJ) found that the agency had failed to establish any of its charges and
reversed the removal.
The Board majority denied the agency’s petition for review, reopened on
its own motion, and affirmed as modified the initial decision. With respect to
the charge of false statements on Optional Form 306, the majority found that
neither the proposal notice nor the decision letter identified any specific
information on the form that it believed was inaccurate or false and therefore
7
the majority found in agreement with the AJ that the charge could not be
sustained. With respect to the charges of false statements on Optional Form
612 and misrepresentation of qualifications, the Board found it appropriate to
merge the charges into a single charge because charges of falsification and
misrepresentation require the same elements of proof and because the charges
here are based on the same factual specifications. The Board majority found
that the agency failed to establish the necessary element of intent to mislead.
The Board majority rejected all the agency’s claims of adjudicatory
error. Specifically, the majority found no error in the AJ’s refusal to permit
the proposing official to testify on a particular topic where the agency
provided no explanation regarding how the testimony would have altered the
outcome of the proceeding. Contrary to the agency’s argument that the AJ
erroneously relied on a decision of the Georgia Department of Labor
awarding the appellant benefits based on its finding that the appellant had not
falsified his employment application, the majority found no indication of such
reliance. The majority also considered exhibits that the agency alleged the AJ
had improperly excluded as irrelevant and found that the information
contained was not of sufficient weight to change the outcome of the appeal.
Finally, the majority rejected the agency’s arguments that the AJ failed to
resolve certain credibility issues.
The Chairman dissented, noting that evidence of an individual’s
“reckless disregard” for the truth is sufficient to infer that an individual
intended to make a false statement. In the Chairman’s view, the agency met
its burden of proof to show intent and he would not disturb the agency’s
decision to remove the appellant.
Bennett v. Department of Transportation 2007 MSPB 133
MSPB Docket No. DC-0752-06-0139-I-1
May 9, 2007
Miscellaneous Topics
- Statutory/Regulatory/Legal Construction
- Remedies
HOLDING: The Board has jurisdiction over the FAA’s placement of an
air traffic controller on enforced leave for three months, despite the
absence of a specific reference to chapter 75 provisions in the legislation
providing FAA employees with appeal rights to the Board. The Board
lacks authority to award back pay to a FAA employee placed on enforced
leave. The Board also lacks authority to award specific or equitable relief
to an FAA employee who was placed on enforced leave. Where the
appellant withdrew his discrimination and reprisal claims under
circumstances in which he had reason to believe that the Board had
authority to award him back pay, remand is appropriate to permit the
appellant to pursue those claims.
8
The appellant, an air traffic controller with the Federal Aviation
Administration (FAA) who was assigned to administrative duties for about
two months following a restriction of his medical clearance, was directed to
take leave after the agency informed him that administrative work was no
longer available. The appellant successfully challenged his placement on
leave as a constructive suspension. As relief, the administrative judge (AJ)
ordered the agency to provide back pay and to restore the paid leave the
appellant used during the enforced leave period.
On review, the Board denied the agency’s petition for review, reopened
the appeal on its own motion, affirmed the AJ’s findings on the merits of the
appeal, vacated the initial decision with respect to the remedies of back pay
and restoration of leave and remanded for further consideration.
The Board rejected the agency’s argument that the Board lacks
authority to issue orders in adverse actions taken against FAA employees
because the 2000 Wendell H. Ford Aviation Investment and Reform Act for
the Twenty-First Century (Ford Act), which reestablished the Board’s
jurisdiction over such actions does not specifically identify chapter 75
provisions.
As to remedies, the Board found that, consistent with its recent
decision in Ivery v. Department of Transportation, 102 M.S.P.R. 356 (2006),
issued after the AJ had issued the initial decision, it lacked authority to order
back pay to an FAA employee because the Back Pay Act does not apply to the
FAA and the back pay provisions of the FAA Personnel Management System
do not apply to Board appeals. The Board also found that sovereign immunity
is a bar to providing an equitable remedy, in this case restoration of leave
improperly charged to the appellant. While the Board recognized that
Congress amended 5 U.S.C. § 702 with the purpose of granting a waiver of
sovereign immunity where equitable relief is sought, the Board found that the
specific language of section 702, which refers to “[a]n action in a court of the
United States….” precludes its application to remedies available in
administrative proceedings before the Board.
The Board distinguished West
v. Gibson, 527 U.S. 212 (1999), which interpreted language somewhat similar
to that in section 702 as waiving sovereign immunity against compensatory
damages in proceedings before the Equal Employment Opportunity
Commission. Finally, the Board examined the statutory provisions made
applicable by the Ford Act to FAA employee, 5 U.S.C. §§ 1204, 1221, and
7701, but found that none of them authorize the Board to order either
damages or equitable relief.
The Board noted the appellant’s claims of discrimination based on
gender and race and a claim of reprisal for prior EEO activity and his
withdrawal of these claims under circumstances in which he had reason to
believe that the Board could award him back pay. The Board found it
appropriate to remand the appeal for a hearing on these discrimination claims,
noting that if he were to prevail, the administrative judge, the Board or the
9
EEOC might conclude that he is entitled to relief to which he would not
otherwise be entitled.
Member Sapin dissented from that portion of the majority’s decision
that found that the Board lacks authority to award specific or equitable relief
under the circumstances of this appeal. She would find that the waiver of
sovereign immunity in 5 U.S.C. § 702 extends to administrative proceedings,
noting the Supreme Court’s observation in West v. Gibson that declining to
apply in administrative proceedings a waiver that is applied in judicial
proceedings would undermine the remedial scheme under which an individual
is to seek administrative relief prior to seeking court action.
Johnson v. U.S. Postal Service, 2007 MSPB 134
MSPB Docket No. AT-0752-06-0968-I-1
May 9, 2007
Settlement
- Waiver of Rights
HOLDING: Where an appellant raises a nonfrivolous factual issue of
compliance with a settlement agreement, the Board must resolve that
issue before addressing the scope and applicability of a waiver of appeal
rights in the agreement. Here, the appellant’s general denial of the
agency’s allegations, along with interview summaries from the agency’s
investigation, constitute a nonfrivolous allegation that he did not violate
the settlement agreement. Thus, he is entitled to a hearing to determine
whether he, in fact, complied with the settlement agreement. If the
appellant fails to show compliance with the settlement agreement, then
the Board must determine the scope and applicability of the agreement’s
waiver provision.
The appellant and the agency entered into a settlement agreement
whereby the agency agreed to change the appellant’s proposed reduction in
grade and pay to “a letter of warning in lieu of a 30-day suspension.” In
exchange, the appellant agreed not to engage in certain improper conduct. The
appellant also agreed that “any further similar incidents of improper conduct.
.. [would] result in [his] immediate reduction in grade and pay to a Level
05/O PTF clerk position, without avenue of appeal.” Subsequently, the
agency proposed reduction of the appellant’s grade and pay based on a single
charge of “improper conduct – violation of resolution of proposed adverse
action.” The administrative judge (AJ) dismissed the appellant’s appeal for
lack of jurisdiction finding that, under the settlement agreement, the appellant
waived his right to appeal the demotion if he violated the settlement
agreement within three years of its execution.
On review, the Board found that the appellant’s general denial of the
agency’s allegations, along with the interview summaries from the agency’s
10
investigation, constitute a nonfrivolous allegation that he did not violate the
settlement agreement. Thus, he is entitled to a hearing to determine whether
he, in fact, complied with the settlement agreement. If the appellant fails to
show compliance with the settlement agreement, then the Board must
determine the scope and applicability of the agreement’s waiver provision.
The Board remanded the case for further adjudication. The Board also
directed the AJ to examine extrinsic evidence of the parties’ intent as to the
expiration of the agreement.
Johnson v. U.S. Postal Service, 2007 MSPB 135
MSPB Docket No. CH-0752-06-0177-I-1
May 9, 2007
Timeliness
The administrative judge (AJ) dismissed the appeal on the basis
that it was untimely filed and that the appellant failed to show any
good cause for his delay in filing his appeal after he had learned about
his appeal rights. The AJ also found that the Board lacked jurisdiction
over the appellant’s VEOA claim because he did not show that he had
exhausted his claim before the Department of Labor. On review, the
Board did not find sufficient evidence in the record that the appellant
received information on where, when, and how to file a Board appeal.
However, the Board found that the AJ did not alert the parties to the
significance of a November 24, 1998 notice that may have informed
the appellant of his appeal rights. The Board remanded the appeal so
that the AJ may order the parties to submit evidence and argument
before deciding anew whether the appellant had sufficient information
to file a timely appeal when he learned of his appeal rights in
September 2005. If he did not have sufficient information, the AJ
must determine whether the appellant showed good cause for the delay
in filing his appeal.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Gershfield v. Merit Systems Protection Board, 2006-3347, DC-3443-06-0447-I-1 (05/04/07)
Mullins v. Department of Commerce, 06-3284, CH-0752-05-0686-I-1 (05/04/07)
The court denied petitions for rehearing in these cases:
Trobovic v. General Services Administration and Merit Systems Protection Board, 06-3341,
NY-0752-05-0347-I-1 (05/04/07)
11 | 27,812 | |
Case_Report_April_20_2007 | 04-20-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_20_2007_255133.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_20_2007_255133.pdf | CASE REPORT DATE: April 20, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Umbarger Wright v. Office of Personnel Management, 2007 MSPB 110
MSPB Docket No. DE-831M-06-0362-I-1
April 12, 2007
Retirement
- Annuity Overpayment
After the appellant notified the Office of Personnel Management (OPM)
that she had recovered and wished to waive her disability retirement benefits,
OPM terminated them, but 6 months after June 1, 2005, when they should
have been ended under its regulations. When OPM then determined that she
had received an overpayment, the appellant requested waiver of the debt on
the basis of financial hardship. OPM denied her request, noting that she was
obliged to have set aside payments received after June 1, 2005. On appeal,
the administrative judge (AJ) found that she was not eligible for a waiver,
citing OPM's set-aside rule, and also that her financial situation did not
support waiving recovery as inequitable or adjusting the repayment schedule.
On review, the Board declined to affirm OPM's application of the set
aside rule, noting that the appellant denied receiving an alleged June 17,
2004, notice of her annuity's termination date and OPM failed to submit a
copy of it. The Board also found the AJ erred in concluding that the
appellant's financial situation did not warrant waiver or adjustment. In the
absence of a specific challenge, an appellant seeking a waiver should not be
required to substantiate her expenses and income unless the information is
incomplete or unreasonable on its face. After discussing the evidence, the
Board concluded that the AJ should have asked the appellant for clarifying
information and remanded the case for further adjudication.
Smart v. Department of the Army, 2007 MSPB 111
MSPB Docket No. DE-0731-06-0294-I-1
April 12, 2007
Miscellaneous Agency Actions
- Suitability
Board Procedures/Authority
- Adjudicatory Error
HOLDING: The agency's nonselection of the appellant was a
constructive negative suitability determination where the position in
question was in the competitive service, the agency had delegated
authority to make suitability determinations, and the basis for the
agency's decision was the appellant's misconduct in prior employment
and a history of unpaid debt. The administrative judge erred in not
addressing the appellant's discrimination and retaliation claims because
she is required to adjudicate all material issues presented and inform the
appellant of the burdens and elements of proof for such claims.
The appellant appealed the agency's decision not to hire him for a
Security Guard position because it found him unqualified due to misconduct
in his employment record and a history of unpaid debt. He challenged his
nonselection as a negative suitability determination and also alleged that it
was based on race discrimination and retaliation for equal employment
opportunity (EEO) activity. The administrative judge (AJ) determined that
the agency's reliance on the appellant's character and conduct made its action
a constructive suitability determination within the Board's jurisdiction, but he
found that the agency's action was justified by the appellant's pattern of
misconduct or negligence in employment and his history of unpaid debt
amounting to dishonesty. Her decision did not address the appellant's
discrimination and retaliation claims.
The Board agreed that the appellant's nonselection was a constructive
suitability determination within its jurisdiction since the position in question
was in the competitive service, the agency had delegated authority from OPM
to make suitability determinations, and the agency's decision based on his
misconduct in prior employment and dishonest financial conduct was an
unsuitability finding within the meaning of 5 CFR Part 731. The Board also
agreed the agency proved that the appellant was unsuitable for employment in
light of his work record and history of unpaid debts. However, the Board
found that the AJ erred in not addressing his discrimination and retaliation
claims. The pro se appellant could not be deemed to have abandoned them by
not objecting to their omission from the list of issues in the AJ's orders since
they did not purport to be exhaustive. The Board also found the AJ erred by
not informing the appellant of the burdens and elements of proof on these
claims, and it remanded the case for their adjudication.
2
Bollar v. Department of Housing & Urban Development, 2007 MSPB 112
MSPB Docket No. AT-0432-02-0580-I-1
April 12, 2007
Timeliness
The appellant filed a petition for review, postmarked on October 30,
2006, that challenged a November 7, 2002 initial decision.. He explained that
he had filed an earlier petition by facsimile on December 12, 2002, but had
inadvertently used an incorrect area code, and stated that, despite checking
the Board's website regularly, he did not learn until October 2006 that his
petition had not been filed. He attributed his use of the wrong area code to
eye surgery in November 2002. The Board found that the appellant failed to
establish good cause for his delay, concluding that even if his medical
condition excused his initial failure to file, his failure to inquire about the
petition for approximately four years was not the act of a reasonably prudent
person.
Scott v. Department of Justice, 2007 MSPB 113
MSPB Docket No. AT-3443-06-1080-I-1
April 12, 2007
Board Procedures/Authorities
- Adjudicatory Error
Miscellaneous Agency Actions
- Employment Practices
HOLDING: The administrative judge (AJ) erred by failing to give the
appellant explicit information about what she must present to establish
the Board's adverse action jurisdiction until the initial decision, but the
notice in the decision permitted her to present it in her petition for review
and the Board to resolve her claim. Where the appellant challenged her
nonselection as an improper employment practice based on the agency's
refusal to waive an OPM educational qualification standard, it was
necessary to remand for further adjudication because the AJ did not
inform her of the evidence necessary to prove her claim.
The appellant was selected for a lower-graded position than the one she
held, accepted it, and began serving in the position. About three months later,
the agency discovered that she lacked the educational qualifications required
for the position, informed her that the selection was cancelled, and returned
her to her previous position. The appellant appealed the agency's action to
the Board. The administrative judge (AJ) found that the Board lacked
jurisdiction over her nonselection, that she suffered no appealable loss of
grade or pay in her reassignment, and that she failed to show jurisdiction over
3
her case as an employment practice appeal since there was no OPM
involvement in the agency's action.
On petition for review, the Board found that the AJ erred in not giving
the appellant explicit information about the evidence and arguments she must
present to establish the Board's jurisdiction under Chapter 75. However, it
found the lack of notice was cured by the AJ's initial decision that set forth
the law concerning nonselections and reductions in grade or pay, permitting
the appellant to address those issues in her petition for review. The Board
determined that, contrary to the AJ's conclusion, the appellant showed she
was appointed to the position from which she was reassigned (an SF-52 was
issued and her acceptance was shown by her service). Nonetheless, the Board
affirmed the AJ's finding it lacked adverse action jurisdiction since the
appellant suffered no loss of grade or pay.
The Board reopened the case to address the employment practice issue.
It noted that an agency's misapplication of a valid OPM requirement may
constitute an appealable employment practice and that the appellant made
such a claim by requesting a waiver of the OPM educational qualification
standard on which the agency relied. Because the AJ failed to inform the
appellant of her burden to prove her claim and the type of evidence necessary
to prove it, the Board vacated and remanded this part of the case. It also
directed the AJ to take evidence on and address two other issues: whether the
appellant's appeal was timely and whether the negotiated grievance procedure
was the exclusive means of resolving her employment practice claim.
Holbrook v. Office of Personnel Management, 2007 MSPB 114
MSPB Docket No. CH-0845-06-0515-I-1
April 13, 2007
Retirement
- Annuity Overpayment
The appellant appealed the Office of Personnel Management (OPM's)
reconsideration decision notifying him that he had received an annuity
overpayment and that it intended to collect it in installments. The Board
reopened the case because it found that OPM had made a mathematical error
in determining the amount of the appellant's annuity when it applied the
formula for computing the "high-three" average salary of a part-time
employee that is used for service performed before April 7, 1986. Based on
this finding, the Board remanded the case to OPM for further proceedings.
4
Boots v. U.S. Postal Service, 2007 MSPB 115
MSPB Docket No. AT-0752-03-0286-P-1
Apri1, 13, 2007
Discrimination
- Physical/Mental Disability - Accommodation
- Remedies
Holding: Where an agency discriminates against an individual by
disqualifying him for a position without making an individualized
assessment of whether his employment would pose a direct threat to his
safety or that of others, the agency is not liable for damages if it
demonstrates good faith efforts to reasonably accommodate the employee.
The agency's offer to the appellant of a position in another craft was not
an accommodation precluding an award of damages.
The agency removed the appellant for inability to perform his tractor
trailer operator position because he was disqualified by his use of anti-seizure
medication from operating a commercial motor vehicle under Department of
Transportation (DOT) regulations. After review of his removal by the Board
and the Equal Employment Opportunity Commission (EEOC), a decision by
the Special Panel deferred to EEOC's finding and determined that the agency
discriminated against him on the basis of his disability by relying on DOT
regulations rather than making an individualized assessment to determine
whether he posed a direct threat that could not be eliminated or reduced by
reasonable accommodation. Pursuant to that decision, the Board ordered the
agency to cancel the appellant's removal and provide benefits due.
The appellant then filed a motion for compensatory damages which the
administrative judge (AJ) denied. Applying 42 U.S.C. § 1981a(a)(3), the AJ
determined that damages could not be awarded because the agency
demonstrated good faith efforts to reasonably accommodate the appellant. He
based this finding on the agency's offer of mailhandler positions in the
appellant's commuting area and on its alternative proposal that he establish
his fitness to drive by foregoing anti-seizure medicine for a period of time
and thereby retain his position.
On review, the Board agreed with the AJ that the issue of reasonable
accommodation was involved in this case even though the discrimination
finding was based on the agency's failure to establish the direct threat
qualification standard on which it relied. The Board cited the definition of
"direct threat" in 29 C.F.R. § 1630.2(r) and EEOC cases stating that to
establish a direct threat the employer must show that no reasonable
accommodation exists that would either eliminate or reduce the threat.
However, the Board disagreed with the AJ's conclusion that the agency made
such a showing. It found that an offer of a position outside the appellant's
craft did not constitute a good faith effort to make a reasonable
accommodation and that the agency's proposal that he cease taking seizure
5
medication was not an effort to accommodate, but a means for him to show
that he could meet DOT standards without accommodation. Thus the Board
remanded the case for further adjudication of the appellant's damages claim.
Chairman McPhie issued a concurring opinion because he agreed that the
appellant is eligible for an award of damages, but disagreed with the
majority's rationale. He would find the appellant was eligible for damages
because the agency violated regulations implementing 29 U.S.C. § 791 by
failing to make an individualized assessment of whether the appellant posed a
direct threat to himself or others. However, he would find the case was not
one where the discriminatory practice involved denial of a reasonable
accommodation because neither the EEOC nor the Special Panel made such a
finding and the appellant did not request accommodation. In his view, the
EEOC cases cited by the majority do not represent a consistent, developed
interpretation of discrimination law to which the Board should defer, and
other EEOC cases are expressly to the contrary. The Chairman expressed
concern that the decision introduces confusion into the law and fails to
distinguish between general qualification standards related to the functions of
a position and safety-based standards to which the direct threat defense
applies.
Schuringa v. Department of the Treasury, 2007 MSPB 116
MSPB Docket No. DA-0752-06-0491-I-1
April 13, 2007
Timeliness
In upholding the administrative judge's dismissal of the appellant's
petition for appeal as having been untimely filed, the Board found: (1) the
appellant's bare allegations that she attempted, unsuccessfully, to obtain
additional evidence from the union did not establish good cause for the filing
delay; (2) the fact that someone at the Board purportedly informed the
appellant that the Board would not grant her request for an extension of time
to file her appeal did not excuse her subsequent untimely filing; and (3)
although the administrative judge did not issue the appellant an order
informing her of the requirements set forth in Lacy, any oversight was
remedied when the Clerk subsequently issued a proper Lacy notice. On this
last point, the Board further found that none of the medical documents
submitted by the appellant demonstrate how her medical condition prevented
her from timely filing her appeal, especially given the fact that the documents
show that she was medically cleared to return to work approximately two
weeks prior to the filing deadline. Finally, the Board found that the
documents submitted by the appellant actually undermined her claim that a
mental health condition prevented her from timely filing her appeal.
Blanton v. Office of Personnel Management, 2007 MSPB 117
MSPB Docket No. CB-1205-07-0004-U-1
6
April 13, 2007
Miscellaneous Topics
- Regulation Review
The Board denied the petitioner's request for a regulation review for
failure to meet the requirements of 5 C.F.R. § 1203.11(b) because: (1) the
petitioner's assertion that his agency violated 5 C.F.R. § 630.306 (pertaining
to the time limit for the use of restored annual leave) when it failed to provide
him sufficient time to use his annual leave did not specify or explain how the
agency's implementation of the regulation required an employee to commit a
prohibited personnel practice; and (2) the petitioner failed to identify the
prohibited personnel practice the agency committed.
Coles v. United States Postal Service, 2007 MSPB 118
MSPB Docket No. AT-0752-05-0486-I-1
April 13, 2007
Timeliness
- Timely Filing
Compliance
- Miscellaneous/Procedures
HOLDING: On the issue of timeliness, the Board held that a petition for
review mistakenly filed with the regional office within the deadline for
filing a petition for review is deemed a timely filing with the Board. On
the merits, the Board held: (1) it lacked authority to enforce an award of
back pay for the time period pre-dating the effective date of the
appellant's removal; and (2) a remand was necessary to address the
appellant's claim for post-removal overtime back pay.
The appellant, a mail handler for the Postal Service, was removed
effective March 18, 2005. On appeal, the removal was reversed and the
appellant was ordered restored to the status quo ante. Thereafter she filed a
petition for enforcement. The petition was dismissed as moot because the
Board determined that the agency complied with its obligation to provide the
appellant back pay. However, the Board noted that there were two remaining
areas of dispute. As to the first area, overtime back pay, the Board found that
the appellant had not raised the issue in her reply to the agency's evidence of
compliance but, in the event a dispute remained, she could file a new petition
for enforcement. The second area of dispute concerned the appellant's
assertion that she was entitled to pre-removal back pay. The Board held that
it lacked authority to enforce an award of back pay for the time period pre
dating the appellant's removal.
Following the Board's decision, the appellant filed a new petition for
enforcement, essentially re-arguing the matters raised in her initial petition
7
for enforcement. After the administrative judge (AJ) denied enforcement on
June 20, 2006, the appellant filed a petition for review (PFR), postmarked
November 13, 2006, with the regional office. That office forwarded the PFR
to the Clerk of the Board, who ordered the appellant to submit evidence and
argument on the issue of timeliness. The appellant then presented a copy of a
PFR, signed July 20, 2006, that included a certificate of service attesting that
it was filed with the Atlanta Regional Office on that date. This evidence was
unrebutted. Citing prior precedent, the Board held that a PFR mistakenly
filed with the regional office within the deadline for filing is deemed a timely
filing with the Board.
On the merits of the appellant's PFR, the Board referenced its earlier
decision, in which it concluded that it does not have authority to award back
pay for the time period pre-dating removal. However, as to the appellant's
claim for post-removal overtime back pay, the Board held that the AJ, in
finding that the Board had previously resolved the issue, had misinterpreted
its decision. Because this issue had not been raised as part of the initial
petition for enforcement, the Board did not decide it; rather, the Board merely
informed the appellant of her right to file a new petition for enforcement
concerning her entitlement to overtime back pay. Accordingly, the Board
remanded the case for adjudication of the appellant's claim that she is owed
overtime back pay.
Randall v. Department of Justice, 2007 MSPB 119
MSPB Docket No. SF-3443-06-0187-I-1
Apri1, 13, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans' Rights
Holding: Allegations of USERRA jurisdiction should be broadly
construed, and the weakness of supporting statements is not a basis for a
jurisdictional dismissal.
The appellant filed an appeal with the Board under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) alleging that
she performed duty in the uniformed service and that the agency
discriminated against her on account of her obligation to perform such duty
by harassing her in various ways: placing her in AWOL status when she had
timely requested and received approved leave to perform military duty;
complaining to her Reserve unit that she gave the agency insufficient advance
notice of her military orders; informing her that her civilian position took
precedence over her military obligation; threatening to deny her military
leave; and contacting her superior officer to demand that a training order be
changed. She asked that the agency be ordered to cease its threats and
harassment. The AJ found that the appellant failed to make nonfrivolous
8
allegations of facts which, if proven, would establish the Board's jurisdiction
and dismissed her appeal.
On review, the Board noted that its USERRA jurisdiction may be
established by showing performance of duty in a uniformed service and
nonfrivolous allegations that the appellant was denied a benefit of
employment because of military service or obligation, as provided in 38
U.S.C. § 4311(a). Such a claim should be broadly construed, the Board
stated, and the weakness of supporting assertions is not a basis for a
jurisdictional dismissal; rather, if the appellant fails to develop her
contentions, the claims should be denied on the merits.
Finding that the
appellant's allegations of harassment were sufficient to establish USERRA
jurisdiction over her appeal and that she was entitled to a hearing under
Kirkendall v. Army, 479 F.2d 830 (Fed. Cir. 2007) (en banc), the Board
remanded for further adjudication of her USERRA claim.
Before the Board, the appellant also stated that her performance ratings
were lowered because of her military commitments, that she was charged with
AWOL for military leave, and that she resigned from her civilian position as a
result of agency harassment. The Board noted that her involuntary
resignation claim may be a basis for the Board's jurisdiction under chapter 75
and ordered the AJ on remand to notify the appellant of her burden of proof to
establish adverse action jurisdiction and the timeliness of her chapter 75
appeal.
Robey v. U.S. Postal Service, 2007 MSPB 120
MSPB Docket No. CH-0752-06-0696-I-1
April 17, 2007
Timeliness
Board Procedures/Authorities
- Authority of Administrative Judges/Board
Holding: When an appellant files a second petition for appeal after
withdrawing a first one, it is generally appropriate to treat the second
petition as a new late-filed appeal and to determine whether there is good
cause to waive the filing deadline. AJs lack the authority to reinstate an
appeal in which there is a final Board decision.
After the agency removed the appellant on November 25, 2005, he
appealed to the Board, but later he asked to withdraw his appeal, indicating
he would challenge it through a union grievance. The administrative judge
(AJ) dismissed the appeal with prejudice as withdrawn in a decision that
became final when no petition for review (PFR) was filed. The appellant
pursued a grievance, which was ultimately submitted to arbitration. The
arbitrator denied the grievance, and on July 26, 2006, the appellant filed a
new MSPB appeal of his removal. When the AJ notified him the appeal
appeared to be barred by res judicata, the appellant stated he was seeking
9
review of the arbitrator's decision. The AJ dismissed for lack of jurisdiction
because of the appellant's withdrawal with prejudice of his previous removal
appeal. He also found that Postal Service employees are not entitled to Board
review of arbitration decisions and that the appellant also failed to show
unusual circumstances warranting reinstatement of his prior removal appeal.
The Board denied the appellant's PFR, but reopened to vacate the
initial decision because it was based in part on the AJ's finding that the
appellant showed no basis for reinstating his prior appeal, when AJs lack the
authority to reinstate appeals in which there has been a final Board decision.
The Board held that, when an appellant files a second appeal after
withdrawing his first one, it is generally appropriate to consider the second
appeal as a new, late-filed one and to determine whether there is good cause
to waive the filing deadline. The appellant cited his financial circumstances
and medical conditions to excuse his lateness, but the Board noted that
financial difficulty does not establish good cause for untimeliness, and it
found that the appellant's medical evidence did not explain how his condition
prevented him from timely filing. The Board also noted that his pursuit of a
grievance during the period of his delay was inconsistent with his claim his
condition prevented him from filing timely, and it dismissed his appeal as
untimely. It also found there were no unusual circumstances to justify its
reopening his original appeal.
Guthrie v. Office of Personnel Management, 2007 MSPB 121
MSPB Docket NO. AT-844E-06-1002-I-1
April 17, 2007
Retirement
- Disability Retirement
Evidence
The appellant appealed the Office of Personnel Management's (OPM's)
decision denying her application for disability retirement based on
depression, severe stress and anxiety. She cited her medical diagnosis and
treatment, her physician's conclusion that she could not perform her duties,
the duration of her condition, and inability to be accommodated. The
administrative judge (AJ) affirmed OPM's decision, finding that the
generalized opinions of her doctors that did not address any particular duties
were insufficient to show that her condition prevented her from performing
the duties of her position.
On petition for review, the appellant argued, inter alia, that the AJ erred
by not considering the Social Security Administration's (SSA) award of
disability benefits. The Board found that the AJ's failure to consider the SSA
award was not prejudicial because there was no indication as to the basis for
its determination and such an award is of little weight unless it is based on the
same underlying condition as that for which disability retirement is sought.
The Board also found that, even assuming it was, the medical evidence was
10
insufficient to support the appellant's claim. Although job-related stress
resulting in mood disorders can be disabling, unless there is evidence
establishing impaired performance of duties, it is insufficient even coupled
with absence from work due to it. The Board found that the supervisor's
statement failed to explain how the appellant's performance was deficient, and
the statements of her doctor and psychologist also failed to explain how her
condition affected specific work requirements. In addition, the evidence
suggests that her conditions are largely situational and does not make the
required showing of inability to perform her job duties in general and not just
in a specific environment. Thus the Board affirmed the AJ's decision as
modified.
Matson v. Office of Personnel Management, 2007 MSPB 122
MSPB Docket No. SF-844E-06-0374-I-1
April 18, 2007
Retirement
- Disability Retirement
Holding: The Board recognizes that appeals involving entitlement to
retirement benefits under the law are fundamentally different from other
types of appeals, such as disciplinary appeals involving competing
interests, and it is therefore more willing to reopen such appeals in the
interest of equity.
In April 2005, the appellant, who had not worked since October 2001
because of an on-the-job injury, applied for disability retirement stating that
she suffered from post-traumatic stress disorder, major depressive disorder,
and panic disorder with agoraphobia. After the Office of Personnel
Management (OPM) denied her application, she appealed to the Board. The
administrative judge (AJ) found that the appellant's psychological conditions
prevented her from rendering useful and efficient service in her position.
However, finding that the appellant had refused facially reasonable treatment
for her conditions and was therefore barred from receiving a disability
annuity, the AJ affirmed OPM's decision.
On petition for review (PFR), the Board said it saw no reason to disturb
the AJ's finding, which OPM did not dispute, that the appellant was unable
due to her conditions to render useful and efficient service in her position for
a perod exceeding a year. The only issue was the correctness of the AJ's
finding that the appellant was barred from receiving disability retirement
because of her refusal of treatment, a finding based on letters from the
appellant's psychologist stating that the appellant had a substance abuse
problem and had voluntarily stopped pursuing treatment for her psychological
problems. The appellant submitted evidence that contradicted the finding,
letters from her primary care provider indicating that she was providing
11
regular treatment as were a chemical dependency specialist and an addictions
specialist, and that the appellant was seeing a psychologist on a weekly basis.
While this information was not previously unavailable so as to support
granting the appellant's PFR, the Board reopened the appeal on its own
motion, explaining its willingness to do so by its longstanding view that
appeals involving entitlement to retirement benefits are fundamentally
different from appeals involving the competing interests of agency
management and employee rights. Although the appellant's new evidence was
contrary to her answers to OPM's interrogatories below, the Board noted that
the latter were completed by her representative and found that it would be
inequitable to deny the appellant benefits to which she is entitled because of
the representative's errors. Finding that the appellant did not voluntarily
refuse facially reasonable treatment for her conditions, the Board reversed the
initial decision and ordered OPM to grant the appellant's application for
disability retirement.
DISMISSALS-SETTLEMENT/WITHDRAWN
Garner v. U.S. Postal Service, DA-0353-06-0646-I-1 (4/13/07)
Boque v. Department of Veterans Affairs, NY-3443-06-0353-I-1 (4/17/07)
COURT DECISIONS
Rapp v. Office of Personnel Management (P)
Fed. Cir. No. 2006-3172; MSPB Docket No. AT-844E-05-0056-I-1
April 18, 2007
Retirement
- Disability Retirement
- Procedures/Miscellaneous
Board Procedures/Authorities
- Representation
HOLDING: An appellant who is denied continuation of her disability
retirement annuity because of failure to prove continuing mental
disability and who then seeks legal assistance is entitled to a hearing
before the Board on whether she is mentally competent to represent
herself. If the Board finds that appellant is not competent, then it is to
reevaluate her claim once she acquires or has been appointed adequate
legal counsel.
The appellant, during her employment by the Department of the Navy,
developed severe mental health problems and was unable to meet the
requirements of her position. In February 1997, OPM approved her disability
retirement based on a medical diagnosis of major depression and anxiety. To
continue receiving her disability retirement annuity, appellant was subject to
12
annual medical evaluations to certify that she was still mentally disabled. In
March of 2004, OPM informed appellant that the latest medical report she
submitted did not adequately support her continued entitlement to the annuity.
In response, the appellant submitted a statement from her psychiatrist
indicating that her depression was controllable with medication and that he
saw “no signs of psychiatric impairment.” Accordingly, OPM determined
that appellant failed to establish her continued entitlement to the annuity.
The appellant appealed to the Board and provided testimony from a
psychologist indicating that she still suffered from a major depressive order.
The administrative judge (AJ) found the psychiatrist’s views to be more
persuasive and found for OPM. The decision became final when the full
Board denied review of the AJ’s decision.
Before the court, appellant filed a motion requesting legal assistance and
raised the issue of whether the Board had committed procedural error when it
allowed appellant to represent herself before the Board.
The court noted that
its standard for mental incompetence is set out in French v. Office of Pers.
Mgmt, 810 F.2d 1118, 1120 (Fed. Cir. 1987), which is an inability to handle
one’s personal affairs because of either physical or mental infirmity. The
majority found, however, that French provided little guidance in this case
because it was unclear from the record whether the issue of appellant’s mental
competence (as opposed to her past mental disability) had been before the
Board. Therefore, the court vacated the Board’s decision and remanded to the
Board for further proceedings to determine whether appellant was mentally
competent to represent herself. The court ordered further that, if the Board
found that appellant was not competent, then it was to reevaluate her claim
once she acquired or had been appointed adequate legal counsel.
One judge dissented in part, opining that a competency hearing would be
redundant because appellant had already demonstrated inability to represent
herself. The dissenting judge suggested that, instead, the court should have
ordered that appellant be given reasonable legal assistance in showing that
she remains mentally disabled.
White v. Merit Systems Protection Board (NP)
Fed. Cir. No. 07-3007; MSPB Docket No. DE-0752-05-0497-I-1
April 16, 2007
Timeliness
- Mixed Cases
- Miscellaneous
HOLDING: The Board’s interpretation of 5 C.F.R. § 1201.154(b)(1), that
an appeal must be filed within 30 days of receipt of a final agency
decision in an equal employment opportunity complaint, even if the
employing agency does not issue the decision within the required 120
13
days, does not constitute an abuse of discretion. A document is
considered received by an appellant when it is received at his place of
residence.
The petitioner, a former supervisor with the Bureau of Prisons, filed an
equal employment opportunity complaint alleging that disability
discrimination had forced him to retire. Thereafter, an Equal Employment
Opportunity Commission (EEOC) administrative judge (AJ) dismissed the
complaint because Mr.White's allegations that his retirement was coerced
made the matter a “mixed case” that had to be appealed to the Board. The
EEOC AJ returned the case to the Bureau of Prisons for processing as a
“mixed case,” and on February 6, 2004, the case was submitted for a final
agency decision (FAD).
On August 2, 2005, 543 days after the case was submitted, the agency
issued a FAD finding no discrimination. The FAD was sent by certified mail
to Mr. White’s home and a receipt was signed for by his mother-in-law on
August 5, 2005. The FAD informed petitioner that he had 30 days from the
date he received it to file an appeal with the Board. Because the last day of
the 30-day period fell on a Sunday, and the following day was a federal
holiday, his MSPB appeal was due by September 6, 2005. Mr. White did not
file his appeal until September 11, 2005. The MSPB AJ dismissed the appeal
for lack of jurisdiction, but on petition for review the Board found instead
that the appeal was untimely filed.
Before the Court of Appeals, Mr. White argued that, because the Bureau
of Prisons issued its FAD 543 days after his EEO complaint was submitted as
mixed case, pursuant to 5 C.F.R. § 1201.154(b)(2), the 30-day time limit for
filing an appeal set forth in subsection (b)(1) did not apply and he could file
his appeal at any time. In addressing this argument, the court discussed its
process of construing a regulation and an agency’s interpretation of its own
regulation. The court stated that it gives broad deference to an agency’s
interpretation of its regulations and that an agency’s construction is “of
controlling weight unless it is plainly erroneous or inconsistent with the
regulation.” The court found that the Board’s interpretation of
section 1201.154(b)(1), that an appeal must be filed within 30 days of receipt
of a FAD, even if the employing agency does not issue its FAD within the
required 120 days, did not constitute an abuse of discretion.
Mr. White also argued before the court that his appeal was timely
because, despite the fact that his mother-in-law signed a receipt for the FAD
on August 5, 2005, he did not receive the decision until August 13, 2005,
when he returned home from an out-of-state trip. The court found, however,
that the Board did not abuse its discretion in finding that the FAD was
constructively received when it was signed for by his mother-in-law.
Finally, the court found that the Board did not abuse its discretion when it
found that petitioner failed to show good cause for the 5-day delay in filing.
14
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeal was affirmed:
Boyd v. Department of the Treasury, 2007-3033, CH-0752-05-0612-I-2 (4/18/07)
The following appeal was dismissed:
Hardy v. U.S. Postal Service, 07-3112, CH-0353-05-0849-I-1 (4/13/07)
The court denied petitions for rehearing in these cases:
Aleksandr Stoyanov v. Department of the Navy, 06-3363, DC-1221-06-0266-W-1 (4/12/07)
Yuri Stoyanov v. Merit Systems Protection Board, 06-3358, -3359, DC-1221-06-0160-W-1,
DC-531D-06-0228-I-1 (4/16/07)
King v. Department of Veterans Affairs, 07-3034, AT-1221-05-0790-W-1 (4/17/04)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 19093 – 19099 (April 17, 2007)
OPM issued final regulations on compensatory time off for time spent in
a travel status away from the official duty station when such time is not
otherwise compensable. The regulations implement Section 203 of the
Federal Workforce Flexibility Act of 2004, amending 5 U.S.C. chapter 55,
subchapter V.
72 Fed. Reg. 19099 – 19100 (April 17, 2007)
OPM adopted as a final rule a change in the Federal Employees Health
Benefits Program regulations stating that OPM may waive the eligibility
requirements for health benefits coverage as an annuitant for an individual
when it determines that it would be against equity and good conscience not to
allow a person to be enrolled. The regulations state that an individual's
failure to satisfy eligibility requirements must be due to exceptional
circumstances. The change eliminates a list of specific situations where a
waiver will not be granted, such as where an individual’s retirement is based
on a disability or involuntary separation or when an individual was
misadvised by his/her employing office, thus providing OPM with more
flexibility when granting waivers.
15 | 37,898 | |
Case_Report_April_13_2007 | 04-13-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_13_2007_255132.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_13_2007_255132.pdf | CASE REPORT DATE: April 13, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Foret v. Department of Army, 2007 MSPB 97
MSPB Docket No. DA-0752-06-0193-I-1
April 6, 2007
Defenses and Miscellaneous Claims
- Harmful Error
Miscellaneous Topics
- Statutory/Regulatory Construction
HOLDING: The rules of statutory construction apply when interpreting
an agency regulation. Under the usual rules of statutory construction, the
use of two different terms is presumed to be intentional. Moreover, the
provisions of a statute should be read in harmony, leaving no provision
inoperative or superfluous or redundant or contradictory. Based on the
above rules and the language of the agency’s regulation, the Board
concluded that a commander is not a “supervisor” for purposes of
initiating a drug test under the agency’s program. Although the agency
erred by having a commander administer the drug test, the appellant did
not show by preponderant evidence that the error was harmful.
The appellant was suspended for 30 days for refusing to take a drug test.
On appeal, the appellant argued, inter alia, that the agency committed harmful
procedural errors by failing to follow language in section 6(b) of the U.S.
Army Corps of Engineers (USACE) Drug Testing Procedures for the Army’s
Drug-Free Federal Workplace (DFW) Civilian Drug Testing Program,
specifically by ordering him to take a drug test even though neither his first
nor second-line supervisor recommended to the commander that he be tested.
The administrative judge (AJ) upheld the agency's action and rejected the
appellant’s claims of harmful error, finding that he did not show that the
agency failed to follow its drug-testing procedures and that, in doing so, it
caused him harm or otherwise prejudiced his rights.
On review, the appellant argued, inter alia, that the agency’s drug policy
was not followed and that he was not ordered to take a drug test under the
policy. The Board noted that an action may not be sustained on appeal if the
employee establishes, by preponderant evidence, that the agency erred in
applying its procedures, and that the error is likely to have caused the agency
to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Here, however, the appellant did not show that
if the agency had followed applicable procedures it would not have suspended
him. Thus, the Board concluded that the appellant did not show by
preponderant evidence that the agency committed harmful error in failing to
comply with its drug testing program.
Fernandez v. Department of Justice, 2007 MSPB 99
MSPB Docket No. SF-0752-05-0786-I-2
April 6, 2007
Mootness
HOLDING: For the appeal to be deemed moot, the employee must have
received all of the relief that he could have received “if the matter had
been adjudicated and he had prevailed." If an appeal is not truly moot
despite cancellation of the action under appeal, the proper remedy is for
the Board to retain jurisdiction and to adjudicate the appeal on the
merits.
The agency removed the appellant from his position with the agency’s
Bureau of Prisons based on his conviction of a felony in state court. The
administrative judge dismissed without prejudice the appellant’s appeal
pending the appellant’s action to have his conviction set aside by the state
court. The state trial court subsequently entered a judgment of acquittal and
the appellant refiled his appeal. While the refiled appeal was pending, the
agency informed the AJ that it had canceled the removal action and reinstated
the appellant in a full-duty status retroactive to the effective date of his
removal. On this basis, the agency requested that the appeal be dismissed as
moot. After issuing a show-cause order and considering the parties’
responses, the AJ dismissed the appeal as moot based on his finding that the
appellant failed to raise a non-frivolous allegation which, if proven, would
show that the Board could still provide any substantial relief in his appeal.
On review, the appellant asserted that he had not received the correct
amount of back pay, interest, benefits and attorney fees that he was due. He
argued that the AJ erred in dismissing the appeal based on the agency’s
expressed intent to restore the appellant’s back pay without ascertaining
2
underlying factual proof of payment. The Board found that the appellant’s
sworn statement that the agency had not paid him all appropriate back pay
constitutes a nonfrivolous allegation that his appeal is not moot. The Board
therefore remanded the case for the AJ to make a determination as to whether
the agency has completely rescinded the appellant’s removal and restored him
to the status quo ante. If the agency has done so, the Board directed the AJ to
again dismiss the appeal as moot. However, if the agency has not done so,
the Board directed the AJ to adjudicate the appeal on the merits.
Graham v. Commodity Futures Trading Commission, 2007 MSPB 100
MSPB Docket No. DC-0752-06-0238-I-2
April 6, 2007
Miscellaneous Topics
- USERRA/Veterans Rights
HOLDING: The Uniformed Services Employment and Reemployment
Rights Act (USERRA) does not provide for exhaustion of the complaint
before the Secretary of Labor as a matter of time; it instead requires
notification from the Department of Labor (DOL) that the Secretary of
Labor’s efforts did not resolve the appellant’s complaint. The Board does
not acquire jurisdiction over the appellant’s USERRA claim until the
appellant receives the required notification from DOL. Here, despite the
fact that the DOL had not yet issued its notification while the
administrative judge processed the refiled appeal, the record indicates
that the appellant had a full and fair opportunity to present his USERRA
defense to the AJ.
The agency removed the appellant on charges of rude and disrespectful
conduct, failure to follow instructions, failure to complete work, and being
absent without leave (AWOL), all of which the agency alleged the appellant
committed after he returned to his position following military service. The
appellant filed a complaint with the DOL in which he alleged that his removal
violated his rights under the USERRA. The AJ initially dismissed the
appellant’s appeal without prejudice in order to give DOL time to adjudicate
the appellant’s claim. However, the AJ subsequently refiled the appeal and
processed it without requiring the appellant to indicate whether DOL had
resolved his USERRA complaint.
On review, the Board found that, despite the fact that the DOL had not
yet issued its notification while the AJ processed the refiled appeal, the
record indicated that the appellant had a full and fair opportunity to present
his USERRA defense to the AJ. Because the Board perceived no error in the
AJ’s analysis of the appellant’s USERRA defense, and the appellant’s PFR
failed to establish any basis to reverse or modify the AJ’s findings with
3
respect to the other issues raised in the appeal, the Board affirmed the initial
decision.
Carol A.
Shelton v. Department of Health & Human Services, 2007 MSPB 101
MSPB Docket No. DA-0752-06-0061-I-1
April 6, 2007
Penalty
The Board issued a final order denying the appellant's petition for review
of the initial decision upholding her removal for false statements made during
an internal agency investigation. Member Sapin dissented because she
believed the removal penalty exceeded the bounds of reasonableness. She
would have found that a 30-day suspension was the maximum reasonable
penalty under the circumstances: the investigation was a managerially inept
response to disagreements between the appellant and two co-workers, which
was likely the result of the office conditions in which they worked; the false
statements were minor compared with the type of misconduct typically
involved in a falsification case resulting in removal; the appellant had a good
record during her seven years in the job; and there was no evidence of intent
on her part to defraud or harm the agency, but only of an attempt to obtain
assistance in managing a workplace conflict.
McKenna v. Department of the Navy, 2007 MSPB 102
MSPB Docket No. PH-0351-03-0399-B-1
April 6, 2007
Reduction in Force
- Assignment Rights
New Evidence
HOLDING: The agency failed to meet its burden to show that it properly
followed reduction-in-force (RIF) regulations in effecting the appellant's
assignment and so was not in compliance with the Board's order that it
reassess the appellant's qualifications for a position he sought and place
him in it if he was qualified. Since the Board considers previously
available evidence submitted for the first time on petition for review
when the party was not put on notice of the nature of a dispositive issue
prior to the initial decision, the Board considered the appellant's new
evidence, found that it showed a position he formerly held was essentially
identical to the one that he sought, concluded that the appellant was
qualified for that position, and ordered him placed in it.
The appellant appealed his assignment in a reduction in force (RIF), and
the Board ordered the agency to reassess his qualifications for two positions
that he sought and to place him in one of them if he was qualified. After the
agency found that the appellant was unqualified for the positions, he
4
challenged its determination in a petition for enforcement. The administrative
judge in a compliance decision found that the agency proved that the
appellant was not qualified for the positions. On petition for review, the
appellant reiterated his argument that he was qualified for one of the
positions, and he submitted new evidence that a position he had formerly held
for several years was essentially the same as the position he sought.
In its decision, the Board noted that, when an employee's assignment
rights are at issue, the agency must prove that it properly followed the RIF
regulations in effecting the assignment. The Board considered the appellant's
new evidence, even though it was available before the record closed below,
because he was not put on notice before the initial decision that to prevail he
needed to show that his former position and the position in which he sought to
be placed were essentially identical. The new evidence included the sworn
statement of a manager who supervised both positions that the duties of the
two positions were the same, and the Board found that the manager's
conclusion was corroborated by the statements of employees in the positions
and by the two position descriptions. Concluding that the appellant was
qualified for the position he sought, the Board ordered the agency to place
him in it.
McAlexander v. Department of Defense, 2007 MSPB 103
MSPB Docket No. CB-7121-06-0015-V-1
April 6, 2007
Jurisdiction
- Arbitration/CBA Related Issues
- Reassignment
Discrimination
- Physical/Mental Disability
HOLDING: The Board could review the arbitrator's decision on the
appellant's grievance concerning his reassignment if the reassignment
was involuntary and resulted in a reduction in pay. The appellant's
acceptance of a reassignment in lieu of removal for failure to meet the
agency's required hearing standard was not coerced where the standard
was job-related and consistent with business necessity. The agency's
action was not the product of disability discrimination where it made an
individualized assessment that the appellant's employment in the job
from which he was reassigned would pose a direct threat to his safety or
that of others.
After an examination revealed that the appellant's hearing did not meet
new medical standards for his Police Officer, AD-07, position, the agency
proposed his removal for failure to meet required standards. Subsequently,
the agency rescinded its proposal and reassigned the appellant to the non-law
enforcement position of Office Support Assistant, GS-07. The appellant filed
5
a grievance of the decision to "remove" him from his former position, but the
arbitrator denied it, finding the agency's action lawful. The appellant sought
Board review, arguing that the agency violated 5 C.F.R. § 339.204 by not
waiving its hearing standard for him and committed disability discrimination
by "removing" him from his position without an "individualized assessment,"
under 29 C.F.R. § 1630.2(r), to determine whether he posed a "direct threat"
to his or others' safety. Noting that it lacked jurisdiction over a reassignment,
the Board ordered the parties to address whether the appellant's reassignment
was voluntary and whether it resulted in a reduction in grade or pay.
In its decision, the Board noted that it has jurisdiction under 5 U.S.C.
§ 7121(d) to review an arbitrator's award where the grievance concerns an
action within its jurisdiction and the appellant has alleged discrimination in
connection with it. The Board found that it could have jurisdiction over the
appellant's reassignment if it had resulted in a reduction in pay, but only if the
reassignment was involuntary. It held that, if the appellant could establish
that he accepted the reassignment to avoid a threatened removal that the
agency should have known could not be substantiated or if he could establish
that the proposal to remove him was the product of disability discrimination,
then his decision to accept the reassignment in lieu of removal may be
considered coerced and involuntary. The Board found that the agency had
support for its action because its hearing acuity standard, under which it
found the appellant unqualified, was job-related and consistent with business
necessity. The Board also agreed with the arbitrator that the agency acted
properly in denying a waiver of its hearing standard under 5 C.F.R.
§ 339.204.
With respect to the appellant's disability discrimination claim, the Board
noted that under applicable law an employer may not rely on a safety-based
qualification to disqualify an individual without making an "individualized
assessment" showing that he would pose a "direct threat" to the safety of
himself or others. The Board found that the agency had made such an
assessment when it determined that due to his hearing deficit the appellant
would be at a greater than normal risk of being injured or injuring others
because of background noises he had missed or misunderstood in critical
situations and that no hearing aid could correct the problem. Concluding that
the appellant failed to show that his reassignment was involuntary, the Board
dismissed for lack of jurisdiction.
Smith v. Department of the Army, 2007 MSPB 104
MSPB Docket No. AT-0752-06-0606-I-1
April 6, 2007
Timeliness
Settlement
The Board dismissed the appellant's petition for review as having been
untimely filed where: (1) the appeal was dismissed pursuant to a settlement
6
agreement; (2) the initial decision apprised the parties of the date on which
the decision would become final; (3) the appellant filed the petition for
review 36 days after the issuance of the initial decision and did not allege that
he received it more than 5 days after the date of issuance; and (4) the
appellant failed to respond to the Clerk's notice that, among other things,
provided him an opportunity to show good cause for the failure to file a
timely petition. Notwithstanding the foregoing, the case was forwarded to the
regional office for docketing as a petition for enforcement given the fact that
the appellant, in his petition for review, claimed that the agency had failed to
comply with the settlement agreement.
Walker v. Office of Personnel Management, 2007 MSPB 105
MSPB Docket No. PH-831M-06-0579-I-1
April 9, 2007
Retirement
- Disability Retirement
- Annuity Overpayment
- Procedures/Miscellaneous
HOLDING: To properly determine an appropriate repayment schedule
for an appellant deemed to have received an annuity overpayment, an
appellant's monthly tax liability must be considered in relation to his
gross income.
The appellant received a disability retirement annuity in 1987. In 2006,
the Office of Personnel Management (OPM) determined that the appellant had
been restored to earning capacity in 2001 and, as a result, he had become
ineligible for continued disability retirement benefits as of June 30, 2001.
OPM further found that, in total, the appellant had received an annuity
overpayment of $56,834.19 during the period July 1, 2001 through March 30,
2006. OPM also deemed the appellant ineligible for a waiver of the
overpayment because he was not without fault in creating the overpayment.
In considering the appellant's petition for review, the Board held that the
administrative judge correctly analyzed the appellant's monthly income by
considering his gross, as opposed to net, wages. Additionally, the Board held
that, insofar as the appellant did not dispute the administrative judge's finding
that he was not without fault in causing the overpayment, he was not entitled
to a collection waiver.
The Board also held that the appellant's monthly tax liability must be
considered in determining whether or not to grant his request for an
adjustment to his repayment schedule based on financial hardship. In this
case, the appellant did not present any evidence concerning his tax liability to
the administrative judge; consequently, the administrative judge acted
appropriately by adjudicating this matter without considering the impact of
the appellant's taxes. However, because the evidence submitted by the
7
appellant as part of his petition for review was sufficient to establish that his
gross income may be subject to a significant tax liability that could
potentially affect his ability to comply with the existing repayment schedule,
the Board remanded the appeal to afford the parties an additional opportunity
to submit evidence and argument concerning the appellant's monthly tax
liability.
Uson v. Office of Personnel Management, 2007 MSPB 106
MSPB Docket No. SE-0831-03-0227-I-1
April 9, 2007
Timeliness
The Board dismissed the appellant's petition for review as having been
untimely filed where: (1) his purported inability to engage legal counsel
failed to establish good cause for the untimely filing of the petition; (2) the
initial decision clearly provided notice concerning the time limit within which
to file the petition; and (3) the petition was filed more than 3 years after the
expiration of the deadline for filing a petition.
Leatherbury v. Department of the Army, 2007 MSPB 107
MSPB Docket No. SF-0752-06-0100-I-1
April 10, 2007
Adverse Action Charges
- Falsification/Fraud
The agency removed the appellant on charges of filing false claims for
overtime compensation and for filing and approving false travel vouchers.
The agency alleged that he claimed overtime compensation for hours spent
conducting official business that actually was conducted during his normal
duty hours and that he sought reimbursement for travel while in the course of
his daily commute. The Board sustained three of the four charges, finding
that the appellant acted with reckless disregard for the truth or for
ascertaining the truth when he sought overtime compensation for a period of
several years despite not having kept records by which he could have
accurately calculated the amount incurred and used dollar figures that were
calculated to the exact penny without any hint that the figures were in fact
mere estimates. It also sustained the false travel voucher charges that he
failed to deduct his normal commuting mileage from the amount claimed.
The Board found that that, as a supervisor and a travel approving official who
had received training in the travel regulations, the appellant was responsible
for knowing the such deductions were required and more likely than not acted
with reckless disregard either for the truth or for ascertaining the truth of the
matter. In evaluating the penalty, the Board noted that falsification is a
serious offense and that it has long held that removal is a reasonable penalty
for such misconduct. In light of the seriousness of the offense and the
8
testimony of the deciding official that he would have removed the appellant
on any one of the charges, the Board upheld the removal.
Willis v. Department of Defense, 2007 MSPB 108
MSPB Docket No. PH-0752-06-0530-I-1
April 10, 2007
Jurisdiction
Settlement
- Waiver of Rights
The appellant was removed for violating a Last Chance Agreement
(LCA) by being absent without authorization (AWOL) because of failing to
request leave in accordance with established procedures. On appeal he
alleged that the agency violated its standard procedures when it denied his
request for retroactive leave. The administrative judge (AJ) dismissed the
appeal for lack of jurisdiction, finding that the appellant violated the LCA by
being AWOL, that the LCA clearly provided that a violation would result in
reinstatement of his removal, and that in the LCA he knowingly waived his
right to appeal should that occur.
On review, the appellant submitted an unemployment compensation
decision issued after the AJ's decision to support his claim. The Board held it
was previously unavailable, new evidence that supported the appellant's claim
that he did not violate the LCA. The unemployment decision found that he
credibly testified he was not aware at the time of his brief absence of the need
to request leave, that he quickly did so when he was informed of the need, and
that denial of his request was inconsistent with the agency's normal practice,
which was for the supervisor to advise an employee of the need to request
leave before charging him with AWOL. The Board held that the appellant
made a nonfrivolous allegation of compliance with the LCA and that the
agency's mere factual contradiction of his prima facie showing of jurisdiction
was not dispositive, and it remanded for a jurisdictional hearing.
Woodworth v. Department of the Navy, 2007 MSPB 109
MSPB Docket No. SE-1221-04-0166-M-1
April 10, 2007
Whistleblower Protection Act
- Danger to Public Health or Safety
HOLDING: To establish that he had a reasonable belief that his
disclosure met the criteria of 5 U.S.C. § 2302(b)(8), the appellant must
show that a reasonable person in his position would believe that the
reported matter evidenced a substantial and specific danger, a test that
9
may be met even though the perceived danger was to a limited number of
government personnel and not to the public at large.
The appellant filed an appeal claiming that agency officials in Japan
decided not to extend his overseas duty as a reprisal for his protected
disclosures to the facility's commanding officer. The agency responded that
his overseas duty was not extended because he requested a return to his
position in California. The administrative judge (AJ) found that the appellant
failed to make a nonfrivolous allegation of jurisdiction and dismissed. The
Board affirmed on the ground that officials in California, who were unaware
of his alleged disclosures, were responsible for the decision not to extend his
overseas duty. On appeal, the Federal Circuit granted the agency's motion to
remand on the ground that the Board failed to distinguish two distinct
personnel actions - the extension of the appellant's overseas tour, which was
under the authority of officials in Japan, and the extension of his return
rights, which was subject to the authority of officials in California.
On remand, the Board overruled its decision based on finding the two
actions were interdependent and remanded for further consideration. The AJ
again dismissed for lack of jurisdiction. He found, based on a memo
submitted on remand and inadequacies in the appellant's evidence, that the
agency's decision not to extend the appellant's overseas tour was the result of
his earlier notice of intent to exercise his return rights. On petition for
review, the appellant argued that the AJ erred by making unwarranted
inferences from the memo and by treating the agency's contrary evidence as
dispositive.
In its decision, the Board found that the appellant exhausted his
administrative remedies with the Special Counsel and made nonfrivolous
allegations of the other elements of a whistleblower appeal: 1) he made a
protected disclosure to the commanding officer when he told him that workers
who disassembled missiles were exposed to missile blast residue containing
harmful chemicals and metals, a situation that a reasonable person would
believe constituted a substantial and specific danger to public health and
safety (since the statutory test is satisfied even though the perceived danger
was to a limited number of government workers); 2) the decision not to
extend an overseas tour constituted a covered personnel action because it was
a significant change in his duties or working conditions; and 3) the notice of
the expiration of his overseas tour about eight months after first his disclosure
was sufficient to establish a presumption his disclosures were contributing
factors in the personnel action. The Board remanded the case for a hearing on
the merits of the appellant's claim, noting that he will bear the burden of
proving its elements by the preponderance of the evidence. It held that the
reasons cited by the AJ for finding no jurisdiction may more appropriately be
applied to whether the appellant met his burden of proof to show that his
disclosures were a contributing factor in taking the personnel action.
10
DISMISSALS-SETTLEMENT/WITHDRAWN/MOOT
Smith v. U.S. Postal Service, SF-0752-05-0923-X-1 (4/06/07)
Mazzei v.Department of the Army, PH-0752-05-0319-X-1 (4/11/07)
COURT DECISIONS
Trobovic v. Merit Systems Protection Board & General Services Administration (NP)
Fed. Cir. No. 2006-3341; MSPB Docket No. NY-0752-05-0347-I-1
April 6, 2007
Jurisdiction
- Suspensions
Hearings
- Right to a Hearing
HOLDING: The appellant made a nonfrivolous allegation that he was
constructively suspended by being excluded from his workplace, and
therefore the administrative judge erred by denying the appellant’s
request for a hearing. In considering an appellant’s allegations, the AJ
must not prematurely weigh evidence.
The appellant was employed by General Services Administration (GSA)
as a building management specialist. He appealed to the Board from an
alleged constructive suspension. Specifically, he alleged that four distinct
actions caused his constructive suspension: (1) being barred from his
workplace, (2) being placed in absent without leave (AWOL) status, (3) being
subjected to a hostile work environment, and (4) being denied work that
would accommodate his disabilities. The administrative judge (AJ) dismissed
his appeal for failure to make nonfrivolous allegations sufficient, if proven, to
establish jurisdiction, and the decision became final when the Board denied
review.
On review, the court found that the appellant’s allegation that he was
barred from his workplace was not inherently implausible and could not be
deemed frivolous. While GSA submitted an e-mail indicating that the
appellant had not been barred from the building during normal working hours,
the weighing and assessing of the credibility of that evidence should have
been reserved pending jurisdictional hearing. The danger of prematurely
weighing evidence is illustrated here by the strength lent to the appellant’s
allegation by new evidence discovered by the appellant. That evidence,
which GSA acknowledges it should have disclosed to the appellant during the
Board proceedings, may turn out to substantiate the allegation that he was
denied access to his workplace during normal working hours.
The court rejected other allegations made by the appellant. The court
rejected, as conclusory, the appellant’s allegation that GSA erroneously
11
rejected his medical documentation of his inability to work. The court further
found that even if the GSA failed to consider the appellant’s medical
documentation for 71 days, as alleged by the appellant, such a delay in this
case was not so lengthy as to show deliberate delay. With respect to the
appellant’s hostile work environment claim, the court found that the
administrative judge’s failure to examine the appellant’s specific allegations
was improper. The court nonetheless concluded that the alleged facts did not
rise to the level of working conditions so intolerable that a reasonable person
confronted with the same circumstances would feel coerced into leaving the
workplace. Finally, the court rejected the appellant’s claim that the agency
unlawfully failed to offer available light-duty work accommodating his
medical restrictions. The court found that the appellant had not alleged that
light-duty work was available.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Plasai v. Department of Transportation, 07-3043, DA-0752-06-0208-I-1 (4/05/07)
Phillips v. Merit Systems Protection Board, 06-3401, AT-0752-06-0274-I-1 (4/06/07)
Henson v. Department of Justice, 06-3400, DA-0752-03-0645-I-1 (4/09/07)
Stephens v. Department of the Treasury, 06-3402, CH-0752-05-0634-I-1 (4/09/07)
Garcia v. Department of the Army, 06-3406, AT-0752-05-0735-I-1 (4/09/07)
Sinigaglio v. Department of the Army, 06-3412, SF-0752-06-0197-I-1 (4/09/07)
Reeping v. U.S. Postal Service, 06-3417, PH-0752-02-0185-I-1 (4/09/07)
Cook v. Office of Personnel Management, 07-3002, AT-844E-06-0133-I-1 (4/09/07)
The following appeals were dismissed:
Garcia v. Department of Homeland Security, 07-3144, DC-0752-04-0110-I-1 (4/06/07)
Ide v. Merit Systems Protection Board, 06-3302, AT-0752-03-0379-I-1 (4/10/07)
Madewell v. Department of Veterans Affairs, 07-3016, DA-0432-0585-I-1 (4/10/07)
Purcell v. Merit Systems Protection Board, 07-3035, DC-0752-06-0307-I-1 (4/10/07)
Edmonds v. Department of Defense, 07-3083, AT-0752-05-0027-I-2 (4/10/07)
McIntosh v. Office of Personnel Management, 07-3121, DA-0831-07-0032-I-1 (4/10/07)
Cunningham v. Department of the Air Force, 07-3094, CH-0752-04-0584-I-2 (4/11/07)
Meza v. Department of Homeland Security, 07-3150, DA-0752-06-0240-I-2 (4/11/07)
Tennyson v. Office of Personnel Management, 07-3156, SE-844E-07-0035-I-1 (4/11/07)
The court recalled the mandate and reinstated the appeal:
Coach v. Department of Justice, 06-3332, DC-0752-05-0798-I-1 (4/10/07)
12 | 30,543 | |
Case_Report_Apirl_6_2007 | 04-06-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_Apirl_6_2007_255131.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_Apirl_6_2007_255131.pdf | CASE REPORT DATE: April 6, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Mahaffey v. Department of Agriculture, 2007 MSPB 93
MSPB Docket No. SF-0432-04-0668-I-2
March 30, 2007
Board Procedures/Authorities
- Adjudicatory Error
Defenses and Miscellaneous Claims
- Prohibited Personnel Practices
HOLDING: The administrative judge erred in not addressing some of
the appellant's defenses because he was required to make findings of fact
and conclusions of law on all material issues presented, and, when the
Board has jurisdiction, 5 U.S.C. § 7702(a)(1) entitles an appellant to a
Board decision on his discrimination claims. The Board was not required
to determine whether sexual orientation is covered by 5 U.S.C.
§ 2302(b)(10), prohibiting discrimination on the basis of conduct not
adversely affecting performance, because the appellant's evidence was
insufficient under any view of the statute.
The appellant was removed from his position for unacceptable
performance. On appeal he challenged the merits of the agency's evaluation
of his performance and also raised several defenses, including discrimination
on the basis of age, religion, disability and sexual orientation, and reprisal for
prior EEO activity. The administrative judge (AJ) upheld the agency's action,
finding that it proved by substantial evidence that appellant's performance
standards were valid, that they were communicated to him, that he failed to
meet one critical element of his standards, and that he was given a reasonable
opportunity to improve. The AJ did not address the appellant's discrimination
or retaliation claims.
On review, the appellant challenged the AJ's fact findings on the merits
and his failure to adjudicate some of his defenses. The Board found that the
appellant's mere disagreement with the AJ's fact findings did not warrant full
review, but found that the AJ erred by not addressing all of the appellant's
defenses (other than the disability claim that he abandoned). Since the
appellant had waived a hearing and submitted evidence in support of his
claims after being placed on notice of the burden and elements of proof to
establish them, the Board found that it could address them without a remand
on the basis of the documentary record.
The Board then proceeded to determine whether the appellant met his
burden of proving that the agency's reasons for its actions were pretextual and
motivated by unlawful discrimination. The Board found that the appellant
failed to prove discrimination on the basis of age or religion or retaliation for
EEO activity because his evidence was no more than unsupported, subjective
belief or unwarranted interpretations of supervisors' statements or actions.
Addressing the appellant's contention that the agency violated 5 U.S.C.
§ 2302(b)(10) by discriminating against him on the basis of his sexual
orientation and related political activities, the Board determined that the
appellant's evidence was no more than speculation and that it was therefore
unnecessary to decide whether the statute covers sexual orientation
discrimination since there was insufficient evidence to support a violation
under any view of the statute.
West v. Office of Personnel Management, 2007 MSPB 94
MSPB Docket No. DA-0831-06-0235-I-1
March 30, 2007
Retirement
- Court/Domestic Relations Orders
HOLDING: Where the court order purporting to award intervenor a
portion of appellant’s annuity stated that it was “intended to be a
‘qualified domestic relations order’ … in accordance with ERISA and a
related provision of the Internal Revenue Code,” but made no reference
to part 838 of 5 CFR, and where the order did not clearly indicate that its
provisions concerning CSRS benefits were drafted in accordance with the
terminology used in that part, and where the annuity–apportioning
provision of the order was ambiguous, the Board held that the court
order was not acceptable for processing.
The appellant, who was covered by the Civil Service Retirement System
(CSRS), was divorced from the intervenor in 1993 and the divorce decree
included a section pertaining to the division of the marital estate. The Office
2
of Personnel Management (OPM) accepted the decree as a qualifying
domestic relations order acceptable for processing and began paying the
annuity, including a retroactive payment covering the period beginning after
the appellant’s last day in a pay status. The appellant appealed OPM’s
interpretation of the court order and the intervenor participated in the
proceeding. After the administrative judge (AJ) found that the formula OPM
had used in calculating the intervenor’s share of the annuity was inconsistent
with the language of the divorce decree, OPM sought review, asserting that it
had erred in finding the divorce decree to be a court order acceptable for
processing under 5 C.F.R. part 838.
On review, the Board agreed that the court order at issue is not one
acceptable for processing under part 838 of 5 C.F.R. The Board noted that
the court order failed to meet the requirements established by OPM for
acceptance of a court order, that is, the order at issue did not expressly refer
to 5 C.F.R. part 838 or state that the provisions of the order concerning CSRS
benefits were drafted in accordance with the terminology used in part 838.
While the Board recognized that the absence of the express reference and
statement set out in OPM’s regulation at 5 C.F.R. part 838 does not
necessarily preclude the award of an annuity, where, as here, there is a
dispute concerning the meaning of the order’s annuity-apportioning provision,
and there is no showing that the parties or the court understood or intended
that any ambiguity in the order would be resolved under OPM’s interpretive
rules in 5 C.F.R. part 838, the order may not be accepted for processing under
that part. The Board noted that the intervenor is not without a remedy
because she may ask the court that issued the order for clarification and may
then present the clarifying order to OPM for a new determination.
Azbill v. Department of Homeland Security, 2007 MSPB 95
MSPB Docket No. DE-1221-06-0058-W-1
March 30, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
Board Procedures/Authorities
- Adjudicatory Error
The Board reopened appellant’s IRA appeal to address the issue of jurisdiction
where the AJ dismissed the appeal, apparently for lack of jurisdiction, after adjudicating
the appeal under the standards applicable to a determination on the merits. The Board
held that it was error to assume jurisdiction and then reject a whistleblower reprisal
claim on the merits; rather, the Board must first address jurisdiction before proceeding
to the merits. In contrast, the Board may resolve the merits issues in any order it deems
most convenient. Here, the Board found that appellant, a Customs and Border Patrol
(CBP) Officer working a “mixed-tour” schedule, established jurisdiction by showing
that he exhausted his administrative remedies before OSC and made a nonfrivolous
3
allegation that his disclosure of an agency official’s violation of Utah law was a
contributing factor in the reduction in his working hours. The Board found, however,
that the agency showed by clear and convincing evidence that it would have limited the
appellant’s “mixed-tour” hours even in the absence of whistleblowing where the
evidence shows that the agency decided to eliminate the hours of all “mixed-tour” CBP
Officers.
Wright v. U.S. Postal Service, 2007 MSPB 96
MSPB Docket No. DC-0353-06-0717-I-1
March 30, 2007
Jurisdiction
Timeliness
- Notice of Time Limit/Appealable Matter
HOLDING: Since the agency's failure to provide an appellant with notice
of the right to appeal its action normally justifies a waiver of the time
limit to file an appeal, the jurisdictional issue here of whether the agency
took an appealable action is inextricably intertwined with the timeliness
issue and must therefore be addressed first.
The appellant was a nonpreference eligible City Carrier with the Postal
Service. She filed an appeal with the Board on July 18, 2006, alleging that
the agency violated her restoration rights as a partially recovered employee,
but her appeal did not describe the factual basis of her claim. The
administrative judge (AJ) ordered her to show that her appeal was timely or
that there was good cause for her delay. She responded that the Board should
waive the time limit because the agency did not inform her of her appeal right
when it denied her request for restoration. The agency moved to dismiss the
appeal as untimely. The agency noted that on April 11, 2006, the appellant
had filed an appeal alleging a constructive suspension on March 8, 2006, that
was based on the same operative facts as her restoration claim. The agency
argued that she failed to show why she could not have timely raised her
restoration claim in that earlier appeal.
The AJ dismissed the appeal as untimely, finding that the appellant failed
to show good cause for her failure to file her restoration claim at the time she
filed her earlier appeal. He found that the agency's failure to inform appellant
of her appeal rights did not provide good cause because she did not show due
diligence in filing her appeal upon becoming aware of her appeal right.
On review, the Board indicated that there was a jurisdictional issue in the case and
stated that to establish jurisdiction over a restoration claim as a partially recovered
employee an appellant must allege facts that would show, if proven, that the agency's
denial of her request for restoration was "arbitrary and capricious." Although it found
that the appellant failed to allege such facts, the Board also found that the AJ did not
inform her of the jurisdictional pleading requirements for a restoration appeal and that
4
therefore the record was insufficient for determining whether the Board had jurisdiction.
With respect to the timeliness issue, the Board noted that, if the agency denied the
appellant's request for restoration and failed to notify her of her appeal rights, its failure
would normally justify a waiver of the time limit. Thus it concluded that the
jurisdictional and timeliness issues were inextricably intertwined and that the
jurisdictional issue must be addressed first. Accordingly, it remanded the case for the
AJ to do so, after providing the appellant proper notice of the jurisdictional pleading
requirements in a restoration appeal and giving her the opportunity to further address
the jurisdictional and timeliness issues.
DISMISSALS-SETTLEMENT/WITHDRAWN
Glenn A.
Meyers v. Office of Personnel Management, CH-0841-06-0779-I-1 (3/30/07)
Michael W.
Bendig v. Office of Personnel Management, CH-844E-07-0001-I-1 (4/04/07)
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Cheryl L.
Long v. U.S. Postal Service, 2007-3010, CH-0752-05-0699-I-2 (4/04/07)
Rajan Zed v. U.S. Postal Service, 2007-3019, SF-0752-06-0251-I-1 (4/04/07)
The following appeals were dismissed:
Raymond H.
Wilkes v. Department of the Treasury, 06-3294, CH-0432-04-0774-I-1 (4/03/07)
Janet K.
Hufenbach v. Merit Systems Protection Board, 07-3089, CH-844E-06-0656-I-1
(4/04/07)
Kelsey L.
Hebron v. U.S. Postal Service,07-3117, DC-0752-0319-I-1 (4/04/07)
Robert P.
Beaudette v. Department of the Treasury, 07-3133, DE-0752-04-0112-I-1 (4/04/07)
Steven L.
Whittenburg v. Department of Homeland Security, 07-3136, AT-0831-06-0473-I-1
(4/04/07)
Mary Jo A.
Stauner v. Merit Systems Protection Board, 07-3121, SF-0752-00-0262-I-2 (4/04/07)
The court recalled the mandate and reinstated the appeal:
Patrick N.
Sweeney v. Department of Homeland Security, 07-3091, DA-0752-05-0534-I-2
(4/03/07)
5 | 11,988 | |
Case_Report_March_30_2007 | 03-30-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_30_2007_255144.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_30_2007_255144.pdf | CASE REPORT DATE: March 30, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Nichol v. Office of Personnel Management, 2007 MSPB 82
MSPB Docket No. AT-0842-06-0480-I-1
March 22, 2007
Retirement
- Annuities
- Definitions
HOLDING: To calculate an individual’s annuity under FERS if she had
some part-time service, the “average pay” is determined by using the
annual rate of basic pay that one would have for full-time service; next,
the resulting annuity “benefits” are prorated to reflect the period of part
time service.
The appellant retired from federal service with a combination of full
time Civil Service Retirement System (CSRS) service and part-time CSRS
Offset and FERS service. In calculating the appellant’s gross monthly
annuity, OPM used separate high-3 average salary amounts for her CSRS and
her FERS service. The appellant appealed OPM’s reconsideration decision,
asserting that only one high-3 average salary for her entire career should have
been used to calculate her annuity. The administrative judge affirmed OPM’s
decision.
On review, the Board found that the appellant’s contention that she has
only one high-3 pay amount is correct. The average pay for the computation
of CSRS and FERS benefits, i.e., the “high-3” average pay, is the largest
annual rate resulting from averaging the employee’s rates of basic pay in
effect over any 3 consecutive years of creditable service. The Board
determined that there are two steps performed to calculate an individual’s
annuity under FERS if she had some part-time service: The “average pay” is
determined by using the annual rate of basic pay that one would have for
full-time service. The next step in calculating the FERS portion of the
annuity, or “benefit,” is to prorate the benefit to reflect the period of part-time
service. The Board therefore found that OPM erred in using separate high-3
average salary amounts for the appellant’s CSRS and her FERS service and,
thus, vacated the initial decision and remanded the appeal to OPM for
recalculation of the annuity.
Lizzio v. Department of the Army, 2007 MSPB 89
MSPB Docket No. PH-0752-06-0546-I-1
March 27, 2007
Settlement
- Authority under/Effect of
- Breach
- Waiver of Rights
HOLDING: The principle that the Board is required to review an
agency’s decision on an adverse action solely on the grounds invoked by
the agency does not apply to the agency’s notice of intention to invoke the
LCA; the Board is free to rely on different ground than the agency did in
determining whether the appellant complied with the LCA.
The parties entered into a last-chance settlement agreement (LCA), in
which the agency agreed to hold the appellant’s removal in abeyance and the
appellant agreed: to “[a]void any misconduct,” and, if he failed to abide by
the terms of the LCA, the agency would execute the original removal
decision; to not contest or appeal any subsequent removal action; to “waive[s]
the right to appeal or contest a supervisor’s determination of future
misconduct and agency action based upon misconduct for one year” (the
“¶ 2(b)(2) waiver provision”); and to waive his right to file a grievance,
Board appeal, and EEOC complaint of any actions taken under the agreement
and actions prior to the signing of the agreement (the Ҧ 2(b)(3) waiver
provision”). The agency subsequently issued a “Notice of Intention to Invoke
[LCA]” for “misconduct” based on the appellant’s alleged rude and
discourteous behavior to members of the public during the 1-year abeyance
period. This notice stated that the appellant failed to “maintain the standards
of personal conduct and professionalism required by AR 195-3 and CIDR
195-1.” The agency then removed the appellant pursuant to the LCA.
On appeal, the administrative judge (AJ) found that the ¶ 2(b)(2) waiver
provision was unenforceable as a matter of public policy. Following the
hearing, the AJ found that the appellant had complied with the LCA, and that
the agency was therefore not entitled to invoke the appellant’s waiver of
2
appeal rights. Having further determined that the agency did not afford the
appellant due process in removing him, the AJ reversed the action.
On review, the Board stated that the threshold issue in determining the
Board’s jurisdiction over this appeal is whether the appellant violated the
LCA by engaging in misconduct. Insofar as ¶ 2(b)(2) might be construed as
precluding the Board from addressing that issue, the Board agreed with the
AJ’s decision not to enforce it on public policy grounds. Thus, the
appellant’s claim that he did not breach the LCA by engaging in misconduct
was properly before the Board.
Next, the Board found that the AJ erred in limiting the issue of the
appellant’s compliance to the grounds relied upon by the agency’s
determination that the appellant had engaged in misconduct, i.e., failure to
“maintain the standards of personal conduct and professionalism required by
AR 195-3 and CIDR 195-1.” The principle that the Board is required to
review an agency’s decision on an adverse action solely on the grounds
invoked by the agency does not apply to the agency’s notice of intention to
invoke the LCA because the resulting removal is not a new adverse action,
but reinstatement of the removal that was held in abeyance, and the penalty of
removal is then a product of the former misconduct, rather than a breach
itself. Thus, the Board is free to rely on a different ground than the agency
did in determining whether the appellant established that he complied with
the LCA.
Here, regardless of whether the appellant violated AR 195-3, rude and
discourteous behavior toward members of the public constitutes misconduct.
Thus, the AJ’s finding that the appellant was “rude and obnoxious” during his
encounter with members of the public is sufficient to establish that the
appellant failed to show that he did not breach the agreement. Accordingly,
the Board upheld the waiver provision at ¶ 2(b)(3) of the LCA, and dismissed
the appeal for lack of jurisdiction.
Foley v. U.S. Postal Service, 2007 MSPB 87
MSPB Docket No. PH-0353-06-0222-I-1
March 26, 2007
Miscellaneous Agency Topics – Restoration to Duty
HOLDING: The Board set forth the test for establishing jurisdiction
over an appeal under 5 C.F.R. § 353.304(c); the appellant failed to make a
nonfrivolous allegation of jurisdiction over his restoration appeal because
he did not nonfrivolously allege that the agency’s reduction of his merit
award for the period of time that he was receiving OWCP compensation
constituted a denial of a right or benefit based upon length of service.
The appellant filed an appeal with the Board alleging that the agency
improperly reduced his merit pay award in FY 2005 for the period of time that
3
he was in leave without pay and receiving Office of Workers’ Compensation
Programs (OWCP) compensation. The administrative judge (AJ) found that
the Board has jurisdiction in this appeal pursuant to 5 C.F.R. § 353.304(c)
because the appellant alleged that the agency had failed to credit time spent
on OWCP compensation for the purposes of rights and benefits based on
length of service. However, the AJ dismissed the appeal without the hearing
requested by the appellant upon finding that he had failed to show that he had
been denied any rights or benefits based on length of service.
On review, the Board stated that 5 C.F.R. § 353.304(c) provides Board
appeal rights to a partially recovered employee where the agency failed to
credit time spent on compensation for the purposes of rights and benefits
based upon length of service. To establish jurisdiction over an appeal under
5 C.F.R. § 353.304(c), the appellant must allege facts that, if proven, would
show that: (1) He was absent from his position due to a compensable injury;
(2) the agency restored him to duty on a part-time basis, to light duty, or to a
position with less demanding physical requirements; and (3) the agency failed
to credit time spent on compensation for the purposes of rights and benefits
based upon length of service. The Board found that the appellant failed to
make a nonfrivolous allegation of jurisdiction over his restoration appeal
because he did not nonfrivolously allege that the agency’s reduction of his FY
2005 merit award for the period of time that he was on LWOP and receiving
OWCP compensation constituted a denial of a right or benefit based upon
length of service; rather, it was undisputed that the award was similar to a
bonus or premium pay. Accordingly, the Board modified the initial decision
to dismiss the appeal for lack of jurisdiction.
Neice v. Department of Homeland Security, 2007 MSPB 85
MSPB Docket No. SF-0752-06-0030-I-1
March 26, 2007
Whistleblower Protection Act
- Miscellaneous
Jurisdiction – Resignation/Retirement/Separation
The appellant failed to establish that he was forced to resign because of
intolerable working conditions. Thus, the Board lacks jurisdiction over his
allegation that the agency coerced his resignation in retaliation for his
protected disclosures. The Board forwarded the appellant’s other allegations
of whistleblowing reprisal to the regional office for individual right of action
(IRA) appeal jurisdictional notice and for docketing and adjudication as an
IRA appeal.
LaBoube v. Department of the Treasury, 2007 MSPB 91
MSPB Docket No. PH-315H-06-0221-I-1
March 27, 2007
4
Jurisdiction
- Probationers/5 U.S.C. § 7511(a)(1)(A)
HOLDING: The appellant did not satisfy either prong of 5 U.S.C.
§ 7511(a)(1)(A), because at the time he was terminated, he had not
completed the 1-year trial period nor 1-year of current continuous
service; an agency’s failure to provide accurate information at the time of
appointment about the requirement to serve a trial period is no basis for
finding that the trial period was waived or otherwise completed ahead of
schedule.
The Board found that the appellant, a Part-Time Seasonal 3-year term
Tax Examining Clerk, did not satisfy the first prong of 5 U.S.C.
§ 7511(a)(1)(A), because he had not completed the 1-year trial period when
he was terminated and his prior service as a Clerk could not be credited
toward completion of the trial period. An agency’s failure to provide accurate
information at the time of appointment about the requirement to serve a trial
period is no basis for finding that the trial period was waived or otherwise
completed ahead of schedule. The appellant did not satisfy the second prong
of 5 U.S.C. § 7511(a)(1)(A), because he had not completed 1-year of current
continuous service. Because the appellant failed to make nonfrivolous
allegations that the agency terminated him based on marital status
discrimination, the Board affirmed, as modified, the initial decision that
dismissed the appeal for lack of jurisdiction.
Livingston v. Office of Personnel Management, 2007 MSPB 84
MSPB Docket No. DC-844E-06-0325-I-1
March 26, 2007
Timeliness
– e-appeal
- Incapacity
Retirement – Procedures/Miscellaneous
Miscellaneous Topics – USERRA/VEOA/Veterans’ Rights
HOLDING: The appellant showed good cause for his untimely filed
petition for review because he attempted to make a timely electronic
filing on the Board’s e-filing site, he was able to exit the Board’s website
without receiving a clear warning that he had not yet filed his pleading,
and he acted with due diligence in submitting the relevant documents
when he became aware of the program; the removal appeal was
forwarded to the regional office to provide Lacy notice and jurisdictional
notice regarding his USERRA claim as either an affirmative defense or a
stand-alone appeal; veterans’ preference rules appear only to apply to
hiring and retention during a reduction in force.
5
The appellant showed good cause for his untimely filed petition for
review because: He attempted to make a timely electronic filing on the
Board’s e-filing site (an e-Appeal number was created); he was able to exit
the Board’s website without receiving a clear warning that he had not yet
filed his pleading; and he acted with due diligence in submitting the relevant
documents when he became aware of the problem. The administrative judge
(AJ) correctly dismissed the appellant’s disability retirement appeal for lack
of jurisdiction because the appellant did not show that he requested
reconsideration by the Office of Personnel Management.
The Board vacated the initial decision’s dismissal of the removal appeal
as untimely filed (25-years late) and forwarded this appeal to the regional
office to provide notice and determine whether, under Lacy v. Department of
the Navy, 78 M.S.P.R. 434 (1998), the appellant suffers from a medical
condition that may have affected his ability to file an appeal in a timely
manner. Because the appellant checked a box on the petition for appeal form
indicating that he was raising Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA) in connection with the removal action, in the new appeal against
the employing agency, the AJ shall provide appropriate jurisdictional notice
regarding the appellant’s USERRA claim as either an affirmative defense or a
stand-alone appeal. Should the AJ reach the merits of the removal, the
appellant can attempt to show that his removal violated veterans’ preference
rules and thus was not “in accordance with law,” under 5 U.S.C.
§ 7702(c)(2)(C). However, the veterans’ preference rules appear only to
apply to hiring and retention during a reduction in force. The Board found
that the appellant failed to establish jurisdiction over his Veterans
Employment Opportunities Act of 1998 claim because he did not show that he
exhausted his administrative remedies with the Department of Labor.
Horton v. Department of the Navy, 2007 MSPB 86
MSPB Docket No. PH-0752-06-0605-I-1
March 26, 2007
Timeliness - Miscellaneous
The Board found that the appellant did not constructively receive the
agency’s decision letter when it was delivered to his rooming house and
accepted by an unauthorized and unrelated person there while the appellant
was on vacation because the appellant did not provide the rooming house
address to the agency as his mailing address and he specifically instructed the
agency to mail the decision letter to his e-mail address. Therefore, the Board
found that the appellant could not reasonably be charged with receipt of the
notice prior to the date on which he actually received that letter. Because the
appellant filed his appeal 30 days thereafter, his appeal was timely.
6
Rogers v. U.S. Postal Service, 2007 MSPB 83
MSPB Docket No. SF-0752-06-0642-I-1
March 26, 2007
Timeliness – e-Appeal
The appellant showed good cause for his untimely filed petition for appeal
because: He attempted to make a timely electronic filing on the Board’s e-filing site (an
e-Appeal number was created); he was able to exit the Board’s website without
receiving a clear warning that he had not yet filed his pleading; and he acted with due
diligence in submitting the relevant documents when he became aware of the problem.
The Board excused the appellant’s failure to submit this evidence and argument below,
because the acknowledgment order did not put him on notice of the relevant timeliness
issue, i.e., whether the appellant’s e-filing activities constituted a “filing.”
Special Counsel ex rel.
Waddell v. Department of Justice, 2007 MSPB 90
MSPB Docket No. CB-1208-06-0020-U-5
March 26, 2007
Special Counsel Actions - Stays
The Board granted the Office of Special Counsel’s (OSC) request for an
indefinite extension of the previously granted stay of Waddell’s reassignment
in light of OSC’s filing of a corrective action.
Ferguson v. Department of the Air Force, 2007 MSPB 88
MSPB Docket No. SF-0752-00-0050-I-1
March 26, 2007
Timeliness - Miscellaneous
The Board dismissed the appellant’s petition for review (PFR) of the
initial decision that dismissed his appeal as settled as untimely filed (6-years
late) without good cause shown notwithstanding his claims of ineffective
representation and mental or physical incapacity, or his arguments concerning
the merits of his appeal,.
7
Marshall v. Department of the Army, 2007 MSPB 92
MSPB Docket No. SF-0752-00-0050-I-1
March 28, 2007
Compliance – Settlement-Related
Settlement - Breach
The Board granted the agency’s petition for enforcement, rescinded the
parties’ settlement agreement, and reinstated the appeal because the appellant
did not contest the administrative judge’s finding that he materially breached
the settlement agreement and this finding was supported by the record.
DISMISSALS-SETTLEMENT/WITHDRAWN
Miller v. U.S. Postal Service, CH-0752-06-0813 I-1 (3/22/07)
Alexander v. Department of Transportation, SF-0752-06-0039-I-1 (3/23/07)
Filardi v. Department of Veterans Affairs, NY-1221-06-0116-W-1 (3/23/07)
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Kincade v. Department of the Treasury, 06-3342, BN-0752-01-0143-I-3 (3/28/07)
The following appeals were dismissed:
Jackson v. Department of the Interior, 07-3052, AT-0831-05-0900-I-2 (3/26/07)
A petition for rehearing was denied in the following cases:
Abadia v. Office of Personnel Management, 06-3297, DC-0831-03-0453-I-1 (3/23/07)
Siwa v. Office of Personnel Management, 06-3174, CB-1205-05-0024-U-1 (3/23/07)
The court recalled the mandate and reinstated the appeal:
Herbert v. Office of Personnel Management, 06-3422, PH-0831-06-0170-I-1 (3/28/07)
Bloom v. Department of the Army, 07-3102, DC-1221-05-0024-B-1 (3/28/07)
8 | 17,805 | |
Case_Report_March_23_2007 | 03-23-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_23_2007_255143.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_23_2007_255143.pdf | CASE REPORT DATE: March 23, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Gordon-Cureton v. U.S. Postal Service, 2007 MSPB 71
MSPB Docket No. DC-0752-06-0551-I-1
March 15, 2007
Jurisdiction
- Excepted Service
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
HOLDING: An individual who, after October 13, 1982, was discharged
from active duty prior to completing the shorter of either 24 months of
continuous active duty or the full period for which she was called to
active duty, is generally not eligible for any benefit of veterans’
preference.
The agency removed the appellant for absence without leave (AWOL)
and the administrative judge (AJ) dismissed the appeal for lack of jurisdiction
because the appellant failed to establish that she was a preference eligible
veteran. The appellant was called to active duty on November 21, 1990 and
was honorably discharged on January 15, 1991. The record lacked evidence
as to whether or not her active duty was for other than training purposes, as
required by 38 U.S.C. § 101(21)(A). On PFR, the appellant argues that her
deployment was active combat duty, not training, and that appears to be the
case. However, under 38 U.S.C. § 5303A(d), an individual who, after
October 13, 1982, was discharged from active duty prior to completing the
shorter of either 24 months of continuous active duty or the full period for
which she was called to active duty, is generally not eligible for any benefit
of preference eligibility.
The appellant did not complete 24 months of continuous active service,
but the record lacks evidence of whether or not the appellant served the entire
period for which she was called to duty. If not, the record also lacks evidence
as to whether she qualifies for one of the exemptions, at 38 U.S.C.
§ 5303A(b)(3), from this minimum active duty requirement. Given this lack
of evidence, and given that the appellant was not informed of this
jurisdictional issue, the Board vacated the ID and remanded the case to give
the appellant the opportunity to address this jurisdictional issue.
Rosenborg v. Department of Transportation, 2007 MSPB 72
MSPB Docket No. AT-0752-06-0043-I-1
March 15, 2007
Adverse Action Charges
- Theft/Misuse/Misappropriation of Government Property/Funds
Penalty
- Theft/Misuse/Misappropriation of Government Property/Funds
- Prior Record
HOLDING: It is not wrongdoing for an employee to charge amounts to
his government credit card in excess of the amount to which he is entitled
reimbursement as long as they are legitimate official travel expenses. It
is wrongdoing for an employee to withdraw cash advances on his
government issued credit card in excess of the amounts authorized.
The agency suspended the appellant for 30 days for 2 sustained charges
of misuse of a government credit card and of obtaining cash advances in
excess of the amount authorized. The administrative judge (AJ) affirmed both
charges and the 30 day suspension. On review, the Board sustained one
charge, reversed the other and mitigated the penalty to a 15 day suspension.
Under the Federal Travel Regulation (FTR), found at title 41 of the Code
of Federal Regulations, a government credit card may be used for any
legitimate expense related to official travel. Expenditures on a government
credit card may exceed the amount to which an employee is entitled to
reimbursement, as long as they are legitimate travel expenses; he will simply
not receive reimbursement for them. Such activity was the essence of the
agency’s second charge and so evidenced no wrongdoing as the agency
proffered no evidence that the appellant’s expenditures were for anything
other than legitimate travel expenses. Therefore, the Board reversed the
charge of misuse of a government credit card.
Under the FTR, the agency may authorize an employee to withdraw cash
advances on his credit card to cover official travel expenses. For the travel at
issue, the agency authorized the appellant to withdraw up to a total of $1,300
in cash advances. The appellant admitted to withdrawing $1,880 in cash with
his government credit card. Even if the cash was used for legitimate
2
expenses, this amounted to unauthorized withdrawal of cash advances and so
the Board sustained this charge.
Having sustained one of the two charges, the Board mitigated the
penalty. The agency’s deciding official failed to testify at the hearing as to
why the penalty of a 30-day suspension was imposed. The Board did not
show any deference to the agency’s penalty determination and undertook its
own analysis of the relevant Douglas factors, concluding that the maximum
reasonable penalty was a 15-day suspension. On PFR, the appellant objected
to the consideration of his prior discipline; however, as he made no such
objection below, the Board did not consider this argument and did not need to
undertake a Bolling review of the prior discipline, limiting its review to only
whether the discipline occurred.
Member Sapin dissented, stating that the two charges should be merged
into one and that the agency failed to prove this merged charge. Chairman
McPhie issued a concurring opinion to rebut aspects of Member Sapin’s
dissent.
Lydon v. Office of Personnel Management, 2007 MSPB 73
MSPB Docket No. PH-844E-06-0388-I-1
March 15, 2007
Retirement
- Disability Retirement
HOLDING: The medical evidence of the appellant’s pulmonary disease
and heart disease was unambiguous and without contradiction indicated
that she could not perform the duties of her position and therefore fell
within the Mullins-Howard exception. The appellant’s refusal to follow
her doctor’s orders to stop smoking, diet, and exercise did not disqualify
her from receiving disability retirement because this course of action
would not improve her condition sufficiently that she would be able to
perform her duties.
The Office of Personnel Management (OPM) denied the appellant’s
disability retirement application because she failed to submit sufficient
medical evidence. The administrative judge (AJ) affirmed OPM’s denial
because the extensive medical documentation the appellant submitted on
appeal failed to explain how her medical condition rendered her unable to
perform the duties of her Mail Handler position.
The Board reversed, finding
under Mullins-Howard v. Office of Personnel Management, 102 M.S.P.R. 153
(2006), that the medical evidence of her chronic obstructive pulmonary
disease and heart disease was unambiguous and without contradiction
indicated that she could not perform the duties of her position. Additionally,
the appellant’s refusal to follow her doctor’s orders to stop smoking, diet, and
exercise did not disqualify her from receiving disability retirement because
3
the evidence in the record established that even if she followed this course of
action, her conditions would not improve significantly and she would not be
able to perform her duties.
Chairman McPhie dissented, stating that the appellant’s medical
conditions and her job description do not fall within the narrow Mullins
Howard exception.
Daniels v. Department of Veterans Affairs, 2007 MSPB 74
MSPB Docket No. AT-1221-06-0806-W-1
March 16, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
- Contributing Factor
- Protected Disclosure
- Election of Remedies
Mootness
HOLDING: The AJ erred in issuing the ID prior to the closing of the
record. A reasonable person would believe that the disclosure of
computer systems security problems and potential Privacy Act violations
evidences wrongdoing under 5 U.S.C. § 2302(b)(8). The knowledge/timing
test is just one way to satisfy the contributing factor criterion and the AJ
must consider other evidence, such as agency motive. Even though the
appellant is no longer a federal employee, her IRA appeal may not be
moot because the WPA affords relief that exceeds status quo ante relief.
The appellant filed an individual right of action (IRA) appeal alleging
that her proposed removal was retaliation for whistleblowing. The
administrative judge (AJ) issued a show cause order detailing the appellant’s
jurisdictional burden and giving her 10 days to file a response. On the 9th
day the AJ dismissed the appeal for lack of jurisdiction. The appellant mailed
her response to the order on the 10th day. The Board held that the AJ erred in
issuing the initial decision (ID) prior to the closing of the record and that the
appellant’s response was timely filed. The Board considered the appellant’s
filing, which alleged that personnel actions other than the proposed removal
were also retaliation for her whistleblowing.
The Board found that the appellant had failed to exhaust her remedies
before the Office of Special Counsel (OSC) with regard to the proposed
removal because that personnel action was never a part of her complaint to
OSC and in fact occurred after she had filed the OSC complaint. Therefore,
the Board lacked jurisdiction over that claim. With regard to two other
alleged personnel actions, the removal of duties and the restriction of
access/privileges, the appellant had exhausted her remedies before OSC and
4
these could be considered personnel actions under the Whistleblower
Protection Act (WPA).
The appellant also non-frivolously alleged that she made disclosures that
were protected under the WPA. A reasonable person in her position would
believe that the disclosures of computer systems security problems and
potential Privacy Act violations evidenced wrongdoing under 5 U.S.C.
§ 2302(b)(8). Some of the disclosures were made in the normal course of her
duties to her immediate supervisors, and so are not protected; however, some
were not in the normal course of her duties and were made to the agency’s
Office of the Inspector General (OIG) and so were protected.
The appellant also non-frivolously alleged that her disclosure contributed
to the alleged personnel actions. While her allegations may not have met the
knowledge/timing test, this just one way to satisfy the contributing factor
criterion and the AJ must consider other evidence; in this case there were
additional allegations and evidence of a motive on the part of the agency.
Therefore, the Board found that the appellant carried her burden of non
frivolously alleging that her protected disclosures were a contributing factor.
Finally, the Board found that this appeal may be moot because the
appellant has subsequently been removed by the agency and the Board has
upheld that removal. However, the WPA affords an individual relief that
exceeds status quo ante relief, including costs, expenses, and other
consequential damages. A prevailing party in an IRA appeal may also request
disciplinary action against agency officials. Neither the appellant’s initial
appeal or petition for review contain any such request; however, on remand
the AJ must order the appellant to identify some meaningful relief and then
address the issue of mootness before holding a hearing on the merits.
Thorne v. Office of Personnel Management, 2007 MSPB 75
MSPB Docket No. AT-844E-06-0227-I-1
March 19, 2007
Retirement
- Disability Retirement
OPM denied the appellant’s disability retirement application and the
administrative judge affirmed, finding the appellant had not proved disability
because his psychological symptoms were limited to the workplace. The
Board reversed, finding that the undisputed evidence established that the
appellant was angry, severely depressed, anxious, suffered from post
traumatic stress disorder, suicidal ideation, psychosis, was obsessed with the
Postal Service, and posed a threat to his colleagues. Therefore, the record
demonstrated that the appellant’s psychiatric condition was precipitated and
exacerbated by job-related stress to the point it became disabling such that
disability was proved by preponderant evidence.
5
Cook v. Department of the Army, 2007 MSPB 76
MSPB Docket No. CH-0752-05-0830-I-1
March 19, 2007
New Evidence
Evidence
- Credibility
Interim Relief
HOLDING: With regard to interim relief, the Board’s review of an
agency’s undue disruption determination is limited to whether the
determination has been made and does not extend to the merits of the
determination. Affidavit of an agency official was not new evidence
because it could have been discovered by the agency with due diligence
and the official’s failure to come forward earlier with his testimony can
be imputed to the agency.
The agency removed the appellant for conduct unbecoming. The
administrative judge (AJ) reversed, finding the agency failed to prove its
charge and that the appellant proved his affirmative defenses of harmful
procedural error, retaliation for EEO activities, and retaliation for
whistleblowing. The agency petitioned for review, offering new evidence,
and the appellant cross-petitioned, arguing that the agency had failed to grant
him the interim relief the AJ ordered.
With regard to interim relief, the Board found that the agency had made
an undue disruption determination, the merits of which the Board has no
authority to review, and that there was no evidence that the appellant was not
receiving the appropriate pay and benefits. Therefore, there was no basis for
finding that the agency had not complied with the interim relief order.
The Board affirmed the AJ’s finding that the agency failed to prove its
lone charge, deferring to the AJ’s credibility determinations. The new
evidence offered by the agency was not new despite its due diligence because
the knowledge of one of the agency’s own officials could have been obtained
via diligent discovery and, because this was a high ranking official, an EEO
Officer, who was aware of the proceedings against the appellant, his decision
not to come forward earlier can be imputed to the agency.
The Board vacated the AJ’s finding of harmful procedural error because
the appellant could not receive any further relief, the Board having reversed
the agency’s action on the merits.
The Board reversed the AJ’s findings regarding the appellant’s
affirmative defenses, finding that the appellant failed to prove that his
disclosures were protected, that they were contributing factors, or that the
agency’s action was retaliatory.
6
Hunt v. Office of Personnel Management, 2007 MSPB 77
MSPB Docket No. AT-844E-06-0001-I-1
March 19, 2007
Reitirement
- Disability Retirement
Board Procedures/Authority
- Adjudicatory Error
HOLDING: In a disability retirement appeal, it was error for the AJ to
not consider a DVA decision finding that the appellant was entitled to
“individual unemployability.” However, DVA’s decision is not dispositive
and, because it did not relate the appellant’s medical conditions to his
specific job duties, it was outweighed by the evidence in the record.
Therefore, the AJ’s error in failing to consider it did not prejudice the
appellant’s substantive rights and did not warrant a different outcome.
OPM denied the appellant’s disability retirement application. The AJ
affirmed OPM’s decision, finding that the appellant failed to show that his
various medical conditions prevented him from performing useful and
efficient service in his position. The Board affirmed the AJ’s decision,
finding that the medical evidence did not demonstrate that the appellant was
disabled from performing his job duties.
The Board did find that the AJ erred in failing to consider a decision of
the Department of Veterans Affairs (DVA) that concluded that the appellant
was entitled to “individual unemployability.” However, DVA’s decision is
not dispositive and, because it did not relate the appellant’s medical
conditions to his specific job duties, it was outweighed by the evidence in the
record. Therefore, the AJ’s error in failing to consider it did not prejudice the
appellant’s substantive rights and did not warrant a different outcome.
Navarro v. Office of Personnel Management, 2007 MSPB 78
MSPB Docket No. CB-1205-07-0003-U-1
March 19, 2007
Miscellaneous Topics
- Regulation Review
The petitioner requests the Board to review OPM regulation 5 C.F.R.
§ 831.201(a)(13), which excludes non-permanent employees serving under
indefinite appointments from retirement coverage under CSRS. The Board
denied the request under the doctrine of res judicata because the appellant
could have raised this argument before the Board in the several prior
proceedings that she and her late husband, for whom she stands in, had
previously brought with regard to their claims for a retirement annuity and
survivor annuity under CSRS.
7
Will v. Department of the Treasury, 2007 MSPB 79
MSPB Docket No. DC-3443-06-0853-I-1
March 21, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
HOLDING: The appellant did not fail to state a claim upon which relief
can be granted because he could obtain relief if his allegations were
accepted as true.
The AJ denied the appellant’s request for a hearing and dismissed this
Butterbaugh appeal for failure to state a claim upon which relief can be
granted because the appellant failed to respond to the AJ’s order to identify
specific dates that he was required to use military leave on non-work days and
subsequent specific dates that he was required to use annual leave, sick leave,
or LWOP to participate in military duty.
The Board vacated the initial decision because the AJ erred in dismissing
the appeal for failure to state a claim. Failure to state a claim requires a
finding that the appellant cannot obtain relief even if his allegations are
accepted as true. That is not the case here, as the appellant’s allegations, if
true, would warrant a remedy from the Board. Despite the fact that the
appellant failed to respond to the AJ’s order and provide sufficient evidence
to prevail, in the interest of justice the Board dismissed the appeal without
prejudice to refiling.
If the appellant refiles and requests a hearing, the AJ
must hold a hearing in accordance with Kirkendall v. Department of the Army,
No. 05-3077, 2007 WL 675744 (Fed. Cir., Mar. 7, 2007) (en banc).
Perkins v. Department of Veterans Affairs, 2007 MSPB 80
MSPB Docket No. NY-1221-02-0407-X-1
March 21, 2007
Compliance
- Settlement-Related
Settlement
- On PFR/PFE
The appellant filed a petition for enforcement (PFE) of the settlement
agreement, arguing that the agency had failed to initiate the process of
amending his position description and failed to pay the appellant the required
pay and benefits. The Board found the agency to be in partial non
compliance for its failure to accurately account for the cost-of-living
allowance to which the appellant was entitled and for failing to undertake the
position description review as required.
8
Fiacco v. Office of Personnel Management, 2007 MSPB 81
MSPB Docket No. AT-831M-06-0467-I-1
March 21, 2007
Retirement
- Procedures/Miscellaneous
- Court/Domestic Relations Orders
HOLDING: Court orders affecting the apportionment of retirement
annuities may be modified after the employee’s retirement or death and
OPM will honor such court orders, applying them prospectively only.
In assessing a modified court order regarding the apportionment of the
retirement annuity between the appellant and her former spouse, the retiree,
the Office of Personnel Management (OPM) determined that it had overpaid
the appellant and underpaid the retiree. The appellant sought board review
and the administrative judge (AJ) found that OPM failed to prove any
overpayment. The AJ also determined that the modified court order was
inapplicable. OPM petitioned for review.
While OPM may not honor a modification to a court order providing a
former spouse annuity if the modification is made after the employee’s
retirement or death, court orders affecting the apportionment of retirement
annuities may be modified after the employee’s retirement or death and OPM
will honor such court orders, applying them prospectively only. 5 U.S.C.
§ 8345(j); 5 C.F.R. § 838.225(a). Therefore, the AJ should honor the Court
order modifying the apportionment of the annuity, but only giving it effect
prospectively, beginning the first day of the second month after OPM
received it.
The Board remanded the appeal because the AJ should have notified the
retiree of the appeal and given him the opportunity to intervene because the
outcome of the case could directly affect his rights, in that his annuity could
be reduced. The Board also ordered the AJ to consider argument on the
interpretation of the court order, the resolution of which would affect the
apportionment of the annuity and on whether the appeal should be remanded
to OPM so that the appellant can obtain clarification of the court order’s
language from the state court.
COURT DECISIONS
Tully v. Department of Justice
Fed. Cir. No. 2007-3004
March 21, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
9
HOLDING: USERRA requires the rights and benefits of employees
absent for military service to be equal to, not more favorable than, those
of an employee on a comparable leave of absence. To determine whether
two types of leave are comparable, the duration of the leave may be the
most significant factor to compare.
The court upheld the Board’s decision that the appellant was not entitled
to pay for the 27 holidays that occurred while he was on leave without pay to
serve on active duty in the Army. Under USERRA, an employee absent for
military service is deemed to be on furlough or leave of absence and is
entitled to the rights and benefits generally provided to employees on
furlough or leave of absence.
The appellant sought to rely on Waltermyer v.
Aluminum Co. of America, 804 F.2d 821 (3d Cir. 1986), which found a short
absence for military training comparable to employees’ absences for non
military purposes, such as jury duty, for which employees received holiday
pay. The case at hand was distinguished from Waltermyer because the
appellant’s 2½ year absence on active military service was significantly
longer as to not be comparable to a short absence such as jury duty.
USERRA requires the rights and benefits to be equal, not more favorable
than, those of an employee on a comparable leave of absence. To determine
whether two types of leave are comparable, the duration of the leave may be
the most significant factor to compare. In contrast, payment of salary during
the absence is a benefit, not a characteristic during the absence to be
compared.
Perez v. Department of Justice
Fed. Cir. No. 06-3144
March 16, 2007
Adverse Action Charges
- Miscellaneous/Procedures
HOLDING: If an agency gives the employee 30 days written notice of its
proposed action, it need not show that it has reasonable cause to believe
he has committed a crime.
The petitioner challenged the arbitrator’s rejection of his argument that,
in addition to 30 days written notice of the proposed suspension, the agency
also had to determine that there was reasonable cause that he committed the
crime that was the basis of the suspension. Under 5 U.S.C. § 7513(b)(1), an
employee is entitled to 30 days advance written notice of a proposed agency
action, unless the agency has reasonable cause to believe the employee has
committed a crime for which a sentence of imprisonment may be imposed.
The court held that if an agency gives the employee 30 days written notice, it
need not show that it has reasonable cause to believe he has committed a
crime. The Court affirmed the arbitrator’s decision.
10
Judge Dyk dissented, stating that prior Federal Circuit opinions required
a reasonable cause determination by the agency in all cases and that an action
taken without reasonable cause is plainly arbitrary.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Chambers v. Office of Personnel Management, 06-3310, SF-831M-05-0504-I-1 (3/16/07)
Boechler v. Department of the Interior, 05-3252, DE-1221-02-0389-W-3 (3/19/07)
Gaddy v. Department of the Navy, 07-3001, DC-0752-04-0660-I-2 (3/19/07)
The following appeals were dismissed:
Shokoohe v. Department of Veterans Affairs, 06-3149, CH-1221-03-0714-A-1 (3/16/07)
A petition for rehearing was denied in the following cases:
Fisher v. Office of Personnel Management, 06-3324, DE-0845-05-0500-I-1 (3/16/07)
Dobruck v. Department of Veterans Affairs, 06-3411, AT-0432-05-0734-I-1 (3/16/07
Hunter v. Department of Veterans Affairs, 06-3338, DC-0752-05-0322-I-1 (3/19/07)
The court recalled the mandate and reinstated the appeal:
Maibie v. Merit Systems Protection Board, 06-3275, DA-0752-06-0206-I-1 (3/16/07)
Baxter v. Department of Veterans Affairs, 07-3103, AT-1221-06-0158-W-1 (3/19/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 12032-12037 (March 15, 2007)
OPM issued final regulations to amend a number of rules on pay and leave
administration, including employment in the SES, use of paid leave during uniformed service,
time limits for using compensatory time off earned in lieu of overtime pay, and other
miscellaneous changes.
72 Fed. Reg. 12031-12032 (March 15, 2007)
OPM adopted as a final rule, without changes, an interim rule that implemented
amendments to veterans’ preference as contained in the National Defense Authorization Act of
FY 2006. These amendments expanded the definition of a veteran and clarified veterans’
preference eligibility for individuals discharged or released from active duty under honorable
conditions.
72 Fed. Reg. 12122-12125 (March 15, 2007)
OPM issued proposed regulations clarifying representative rate as used in OPM’s
retention regulations. These regulations clarify: how an agency determines employees’
retention rights when the agency has positions in one or more pay bands; the order in which an
11
agency releases employees from a competitive level; and how an agency determines employees’
retention rights when a competitive area includes more than one local commuting area.
72 Fed. Reg. 12947-12958 (March 20, 2007)
OPM issued final regulations to revise the ALJ Program. The revisions remove
procedures that appear in other parts of 5 C.F.R. parts. 337 and 930, update outdated
information and remove the internal examining processes from the regulations and
describe OPM and agency responsibilities concerning the ALJ Program.
12 | 26,402 | |
Case_Report_March_9_2007 | 03-09-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_9_2007_255141.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_9_2007_255141.pdf | CASE REPORT DATE: March 9, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Bouchard v. Department of Veterans Affairs, 2007 MSPB 63
MSPB Docket No. AT-3443-06-0636-I-1
March 1, 2007
Reduction in Force
- Miscellaneous
Appointments
- Miscellaneous/General
HOLDING: Temporary employees appointed under 38 U.S.C.
§ 7405(a)(1) are excluded from coverage under civil service laws, rules,
and regulations, including title 5 RIF procedures; whereas permanent
employees appointed under 38 U.S.C. § 7401 are entitled to title 5 RIF
procedures.
The agency terminated the appellant’s appointment, under 38 U.S.C.
§ 7405(a)(1), as a part of “staff adjustments.” The administrative judge (AJ)
dismissed the case for lack of jurisdiction finding that the appellant was a
temporary employee appointed under 38 U.S.C. § 7405(a)(1), and so lacking
appeal rights. On petition for review (PFR), the appellant argued that he is
entitled to title 5 reduction in force (RIF) procedures under section 7405 and,
in the alternative, that his appointment was permanent, rather than temporary,
so according him RIF appeal rights under 38 U.S.C § 7401.
The Board found that the first argument fails because the board
previously held in Beckstrom-Parcell v. Department of Veterans Affairs, 91
M.S.P.R. 656 (2002), that appointees under section 7405(a)(1) are excluded
from coverage under civil service laws, rules, and regulations, including title
5 RIF procedures. However, the Board remanded the case for further
consideration of the appellant’s second argument because there was
conflicting evidence in the record as to whether the appellant’s appointment
was permanent or temporary. A permanent appointment would be consistent
with section 7401 and so confer RIF rights under James v. Von Zemerensky,
284 F.3d 1310 (Fed. Cir. 2002); a temporary appointment under section 7405
would not confer RIF rights.
Jordan v. Office of Personnel Management, 2007 MSPB 64
MSPB Docket No. CH-844E-05-0545-I-2
March 1, 2007
Retirement
- Disability Retirement
The Board denied the appellant’s petition for review of the initial
decision, which affirmed the decision of the Office of Personnel Management
denying the appellant’s disability retirement application. Member Sapin
dissented, stating that the appellant had provided sufficient medical evidence
to establish that she was disabled from performing the duties of her position.
MacDonald v. Department of Justice, 2007 MSPB 65
MSPB Docket No. AT-1221-06-0532-W-1
March 5, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
- Exhaustion of Remedy
- Timeliness
HOLDING: In an IRA appeal, the AJ must first address the matter of
jurisdiction before proceeding to the merits of the appeal. The WPA’s
requirement of exhaustion before OSC is a mixed question of fact and law
and stipulations on such questions are not binding on the Board.
The Board reversed the initial decision and remanded this individual
right of action (IRA) appeal for the administrative judge (AJ) to address
unresolved jurisdictional issues. In an IRA appeal, the AJ must first address
the matter of jurisdiction before proceeding to the merits of the appeal. The
AJ failed to notify the appellant of the correct jurisdictional standard for an
IRA appeal and also failed to identify and resolve the issue of timeliness of
the appeal. Additionally, the AJ erred in finding that the appellant had
exhausted his remedies before the Office of Special Counsel (OSC) based
upon the agency so stipulating. The Board held that the exhaustion
requirement of the Whistleblower Protection Act is a mixed question of fact
and law and stipulations on such questions are not binding on the Board.
2
Masselli v. Department of the Army, 2007 MSPB 67
MSPB Docket No. DC-3443-06-0745-I-1
March 7, 2007
Jurisdiction
- Miscellaneous
HOLDING: Failure to provide an appellant with adequate notice of
jurisdictional requirements does not prejudice his substantive rights
when the appellant receives the necessary information in an initial
decision and he subsequently fails to make sufficient non-frivolous
allegations to establish jurisdiction on petition for review.
The appellant e-filed an appeal of his non-selection, claiming entitlement
to veterans’ preference. The AJ issued an order notifying the appellant of the
Board’s jurisdictional requirements, specifically including the requirements
of the Veterans Employment Opportunities Act (VEOA). The appellant failed
to respond and the AJ dismissed the appeal for lack of jurisdiction. The
appellant contacted the Clerk of the Board, unaware that his appeal had been
dismissed, having received neither the jurisdictional order nor the initial
decision (ID) via the e-appeal system. The Clerk provided the appellant with
a copy of the ID and the appellant subsequently filed a petition for review
(PFR).
The Board denied the appellant’s PFR because the appellant failed to
non-frivolously allege facts on PFR that established Board jurisdiction.
Having received the ID prior to filing his PFR, the appellant was put on
notice by the ID of the jurisdictional pleadings required, such that the earlier
lack of notice did not prejudice his substantive rights.
Miller v. U.S. Postal Service, 2007 MSPB 68
MSPB Docket No. PH-3443-06-0392-I-1
March 1, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
HOLDING: A Postal Service employee, although not covered by the
military leave provisions of 5 U.S.C. § 6323, was covered by an equivalent
Postal Service rule, which the Board has jurisdiction to enforce.
Therefore, the appellant did state a USERRA claim upon which relief
could be granted.
The appellant filed an appeal under the Uniformed Services Employment
and Reemployment Rights Act (USERRA) alleging that his agency
improperly charged him military leave for his absences on non-workdays.
Without a hearing, the AJ found jurisdiction under USERRA but dismissed
3
the appeal for failure to state a claim because the appellant was a Postal
Service employee and so not covered by the military leave provisions of
5 U.S.C. § 6323.
The Board found that Postal Service employees are excluded from
coverage of section 6323; however, the Postal Service had a policy in effect
at the relevant time that was the equivalent of section 6323 and the Board has
jurisdiction to enforce employee rights derived from agency rules,
regulations, and collective bargaining agreements. Accordingly, taking as
true the appellant’s allegations, he did state a claim upon which relief may be
granted. As the appellant was not permitted to engage in discovery prior to
dismissal of the claim and that he was seeking relevant evidence from a third
party, the Defense Finance and Accounting Service (DFAS), the Board
dismissed the appeal without prejudice to refiling, with no deadline, since
there is no deadline for filing claims under USERRA.
COURT DECISIONS
Kirkendall v. Department of the Army (en banc)
Fed. Cir. No. 05-3077; MSPB Docket Nos. AT-0330-02-0621-I-1, AT-3443-02-0622-I-1
March 7, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Timeliness
- Equitable Tolling
Hearings
- Right to a Hearing
HOLDING: The DOL’s rejection of a VEOA complaint as untimely filed
does not represent a failure to exhaust administrative remedies depriving
the Board of jurisdiction. The filing deadlines in VEOA are subject to
equitable tolling. An appellant is entitled to a hearing of his USERRA
claim as all USERRA claims are “appeals” under 5 U.S.C. § 7701.
The en banc court addressed two issues: (1) Are VEOA’s 60-day
deadline for filing a claim with the Department of Labor (DOL), and its 15
day deadline for filing an appeal to the Board, subject to equitable tolling?
(2) Are all veterans who allege a USERRA violation entitled to a hearing?
First, the Court reaffirmed the holding from its previously vacated
Kirkendall decision that the rejection, by the Department of Labor (DOL), of
the appellant’s VEOA complaint as untimely filed does not represent a failure
to exhaust administrative remedies depriving the Board and the Court of
jurisdiction; otherwise judicial review of DOL’s decision of untimeliness
would be foreclosed.
4
Equitable Tolling of VEOA
Under Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990),
equitable tolling is available in suits against the government when permitted
in analogous private litigation. If such an analogy exists, the Court presumes
Congress intended to allow equitable tolling. The Irwin presumption in favor
of equitable tolling can be rebutted if there is good reason that Congress did
not want the equitable tolling doctrine to apply. Absent clear and contrary
intent of Congress, equitable tolling is presumed to apply. The Court held
that claims under VEOA are analogous to private actions under Title VII of
the Civil Rights Act, invoking the Irwin presumption in favor of equitable
tolling.
A majority of the Court held that the language in 5 U.S.C. § 3330a(d)(1)
– “in no event may any such appeal be brought” – is not unusually emphatic,
is of limited, if any, special importance, and so does not overcome the Irwin
presumption allowing equitable tolling. Furthermore, VEOA’s purpose makes
it abundantly clear that Congress did not intend to override the Irwin
presumption and, in any event, the canon that veterans’ benefits statutes
should be construed in the veteran’s favor would compel the Court to find
both deadlines in VEOA subject to equitable tolling. Therefore, VEOA is
subject to equitable tolling.
The dissenting judges stated that the plain language of VEOA precludes
equitable tolling.
Hearing Rights Under USERRA
A majority of the Court held that the Board, through its regulations and
decisions, has defined and treated a USERRA claim as an “appeal” to the
Board from an “action which is appealable” such that 5 U.S.C. § 7701(a)
confers on the appellant a right to hearing. Therefore, an appellant has a right
to a hearing under section 7701 on a USERRA claim.
A plurality of 5 judges held that the plain language of USERRA, at 38
U.S.C. § 4324(c)(1), requires the Board not only to adjudicate any complaint
brought under the statute but also to hold a hearing, should one be requested.
Therefore, the plurality held that veterans have a right to a hearing under
USERRA and the Board may not deny any request for a hearing.
The dissenting judges stated that neither does the plain language of
USERRA provide an automatic right to a hearing nor do the Board’s
regulations provide a right to a hearing under 5 U.S.C. § 7701.
5
Cheney v. Department of Justice
Fed. Cir. No. 06-3124; MSPB Docket No. CH-0752-05-0326-I-1
March 2, 2007
Constitutional Issues/Due Process
- Due Process
Adverse Action Charges
- Security Clearance Determinations
HOLDING: Although the Board and the Court may not review the
underlying merits of an agency’s security clearance decision, the Board
or the Court may determine whether the procedures for notice and an
opportunity to respond, as set forth in 5 U.S.C. § 7513, were followed.
Under 7513, an employee must be given enough information to enable him
or her to make a meaningful response to the agency’s proposed
suspension of the security clearance. The Court held that the DEA failed
to provide adequate notice to the appellant because its allegations were
vague and non-specific
The Drug Enforcement Administration (DEA) suspended the appellant’s
security clearance due to a pending investigation based on allegations of
“derogatory personal conduct.” The DEA then proposed the appellant’s
indefinite suspension because of the loss of his security clearance. The
appellant requested additional information as to the reasons for the
suspension of his security clearance and the agency replied that its basis was
“allegations that you inappropriately queried … Law Enforcement Data Bases
and abused the Administrative Subpoena process. Additionally it is believed
that you are in violation of the confidentiality agreement you entered into…”
The appellant appealed his suspension to the Board, arguing that he did
not receive sufficient notice to enable him to respond. The administrative
judge (AJ) upheld the suspension, holding that the appellant received
sufficient information to respond, and the Board denied his petition for
review.
The Court reversed the Board’s decision, reaffirming that, although the
Board and the Court may not review the underlying merits of an agency’s
security clearance decision, the Board or the Court may determine whether
the procedures for notice and an opportunity to respond, as set forth in
5 U.S.C. § 7513, were followed. Under 7513, “the employee must be given
enough information to enable him or her to make a meaningful response to the
agency’s proposed suspension of the security clearance.” The Court held that
the DEA failed to provide adequate notice to the appellant because the
allegations were vague and non-specific, particularly in view of the fact that
querying the Law Enforcement Data Bases and utilizing the Administrative
Subpoena process were actions that the appellant regularly and repeatedly
undertook as part of his duties. Accordingly, the Court held the indefinite
6
suspension to be improper, reversed it, and remanded the case to the Board to
determine appropriate back pay.
Chief Judge McKinney dissented, stating that he believed the appellant
was sufficiently informed to formulate a meaningful response to the
suspension of his security clearance.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Roberts v. Department of Commerce, 06-3356, SF-0752-05-0605-I-1 (3/5/07)
Ian-Benet v. Department of Defense, 06-3416, DC-0752-05-0513-I-1 (3/6/07)
Wiley v. U.S. Postal Service, 06-3407, DA-0752-05-0539-I-1 (3/7/07)
The following appeals were dismissed:
Bennett v. Merit Systems Protection Board, 07-3044, AT-0351-06-0612-I-1 (3/1/07)
A petition for rehearing was denied in the following cases:
Simmons v. Small Business Administration, 06-3415, DC-0752-06-0356-I-1 (3/2/07)
Hoover v. Department of Labor, 06-3066, DA-0752-04-0561-I-1 (3/2/07)
7 | 14,369 | |
Case_Report_January_26_2007 | 02-26-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_26_2007_255139.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_26_2007_255139.pdf | CASE REPORT DATE: January 26, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Del Prete v. U.S. Postal Service
MSPB Docket No. NY-0752-04-0143-I-1
January 18, 2007
Attorney Fees
- Knew Or Should Have Known
HOLDING: The appellant was entitled to reasonable attorney fees in the
interest of justice because he prevailed in gaining penalty mitigation due
to factors that the agency knew or should have known. However, the
award of attorney fees must be limited to legal fees associated only with
the appellant’s challenge to the penalty and not with his challenge to the
sustained charge.
The agency removed the appellant on one charge of breaching the
agency’s accounting procedures resulting in the loss of postal stock totaling
approximately $45,000. On appeal, the administrative judge (AJ) sustained
the charge but mitigated the penalty to a 60-day suspension because removal
was unreasonable and the deciding official failed to take into account several
mitigating factors. Neither party sought review of the initial decision, which
became the Board’s final decision. The appellant filed a motion for attorney
fees. The AJ awarded the requested fees, finding that the appellant was a
prevailing party and an award of fees was in the interest of justice because the
agency “knew or should have known” that its penalty of removal would not be
upheld because of the mitigating factors the deciding official knew of but
failed to consider. The agency petitioned for review.
The Board affirmed the AJ’s finding that an award of attorney fees was
in the interest of justice because the appellant was a prevailing party with
regard to the mitigation of the penalty and because the AJ’s decision on the
merits, which became the Board’s final decision, found that the agency knew
of and failed to consider mitigating factors in determining the appropriate
penalty. The findings in the Board’s final decision on the merits control the
determination on attorney fees and those findings cannot be re-litigated.
The Board remanded the appeal to determine the appropriate amount of
the award because the appellant only partially prevailed in his appeal and an
attorney fee award should be limited to expenses related to the issue on which
the appellant prevailed, if it is practicable to do so. The facts and legal
theories employed in the appellant’s challenge to the penalty were different
from and unrelated to those employed in his unsuccessful challenge to the
merits of the agency’s charge. Therefore, the Board ordered the AJ to
determine, if possible, the fees and expenses attributed to the penalty issue
only and reduce the award accordingly. If such a segregation of costs is not
practicable, the Board ordered the AJ to determine an otherwise appropriate
amount by which to reduce the award.
Chairman McPhie dissented, stating that the AJ erred in finding that the
deciding official failed to consider mitigating factors. The Chairman stated
that the deciding official considered the mitigating factors but simply gave a
different weight to them than the AJ did in coming to a penalty decision.
Because of this, it was not in the interests of justice to award attorney fees
because the agency could not have known that an AJ would disagree with its
weighting of the Douglas factors and so mitigate the penalty.
Crenshaw v. Broadcasting Board of Governors
MSPB Docket No. DC-1221-06-0097-W-1
January 19, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
Board Procedures/Authorities
- Miscellaneous
HOLDING: Garcia v. Department of Homeland Security, 437 F.3d 1322
(Fed. Cir. 2006) does not apply to IRA appeals. An appellant in an IRA
appeal is not entitled to a hearing until he has established jurisdiction in
his written pleadings by showing that he is an employee and making non
frivolous allegations that he made a protected disclosure and the
disclosure was a contributing factor in the agency’s personnel action.
The appellant reported alleged violations of safety and environmental
requirements to the agency’s Office of the Inspector General (OIG) in
October 1999 and again in October 2003. He also stated that he expected to
be separated by reduction in force (RIF) in retaliation for his reporting of
such issues. In September 2000, the appellant accepted a temporary
2
appointment in a non-career Foreign Service position, which was set to expire
in September 2005. In June 2005, the appellant sought corrective action from
the Office of Special Counsel (OSC), which determined not to take any
action. The appellant was separated in September 2005 and the appellant
filed an individual right of action (IRA) appeal with the Board. The
administrative judge (AJ) found that the appellant was an employee under
5 U.S.C. § 2105 and so subject to the Whistleblower Protection Act (WPA),
but, after a hearing, dismissed the appeal for lack of jurisdiction because the
appellant had failed to prove that his disclosures were a contributing factor in
the agency’s personnel action.
The Board vacated the initial decision and remanded the appeal to
determine whether the appellant, in a temporary non-career Foreign Service
position, is an employee under 5 U.S.C. § 2105 because the record was not
sufficiently developed to make such a determination.
The Board clarified that the AJ had erred in relying on Garcia v.
Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) in holding
a jurisdictional hearing. Unlike adverse action appeals, Garcia is not
applicable to IRA appeals and an appellant in an IRA appeal is not entitled to
a hearing until he establishes Board jurisdiction. Accordingly, the AJ erred in
holding a jurisdictional hearing and erred in dismissing the appeal for lack of
jurisdiction because the appellant had failed to prove by preponderant
evidence that his disclosures were a contributing factor.
In order to establish jurisdiction and gain a hearing on the merits in an
IRA appeal, in addition to showing that he is an employee under 5 U.S.C.
§ 2105, the appellant’s written pleadings must make non-frivolous allegations
that he made a protected disclosure and the disclosure was a contributing
factor in the agency’s personnel action. Although it cannot yet be determined
if the appellant is an employee subject to the WPA, the appellant’s pleadings
did make the requisite non-frivolous allegations to establish jurisdiction and
gain a hearing on the merits. Therefore, the Board remanded the appeal for
the AJ to determine if the appellant is an employee subject to the WPA. If so,
the Board ordered the AJ to find jurisdiction and hold a hearing on the merits
of the appellant’s IRA appeal.
Kravitz. Department of the Navy
MSPB Docket No. SF-0353-04-0204-B-2
January 19, 2007
Miscellaneous Agency Actions
- Restoration to Duty
Jurisdiction
- Miscellaneous
HOLDING: An application for a vacant position that is pending when an
employee receives an OWCP award constitutes a request for restoration.
3
In a remand decision the AJ found that the appellant was physically
disqualified from his position but had failed to timely seek restoration and so
the AJ dismissed the appeal for lack of jurisdiction. The Board vacated the
remand decision and remanded the appeal for further proceedings.
The right to restoration of a physically disqualified employee applies for
1 year from the date the employee becomes eligible for Office of Workers’
Compensation Programs (OWCP) payments. The AJ was correct in finding
that the appellant met the definition of a “physically disqualified” employee
under 5 C.F.R. § 353.102. However, the appellant may have requested
restoration within the 1-year time frame of becoming OWCP eligible because
it appears he had an application for a position pending at the time he was
granted an OWCP award. The Board has previously held that if an employee
who is physically disqualified applies for a vacant position during the 1-year
timeframe, that application is construed as a request for restoration.
Similarly, the Board held here that an application for a vacant position that is
pending on the date the appellant receives an OWCP award also constitutes a
request for restoration. Therefore, the Board remanded the appeal for the AJ
to determine if the appellant’s application was indeed pending at any point
during the 1-year timeframe. If so, the AJ must treat that pending application
as a proper request for restoration and grant jurisdiction.
Tschumy v. Department of Defense
MSPB Docket No. PH-315H-06-0104-I-1
January 19, 2007
Appointments
- Temporary Appointments
- Miscellaneous/General
Jurisdiction
- Probationers/5 U.S.C. § 7511(a)(1)(A)
HOLDING: 5 C.F.R. § 315.801(e), which mandates probationary periods
unless specifically exempted, applies only to authorities described in
5 C.F.R. subparts 315F and 315G, so appointees under subpart 315D are
not necessarily required to serve a probationary period. A person serving
under a temporary appointment not exceed 1 year is not an “employee”
under 5 U.S.C. § 7511.
The appellant began his civilian service in September 2004. He
subsequently accepted, in December 2004, a temporary appointment not to
exceed 1 year in the competitive service under 5 C.F.R. subpart 315D. The
agency separated the appellant for alleged inappropriate conduct in October
2005. The appellant appealed his separation and alleged sex discrimination
and retaliation for whistleblowing. The AJ dismissed the appeal for lack of
jurisdiction because the appellant was not an “employee” under 5 U.S.C.
§ 7511 with Board appeal rights and because he had not sought corrective
4
action from the Office of Special Counsel (OSC) and so could not pursue an
IRA appeal.
The Board held that the appellant was not an “employee” in the
competitive service under 5 U.S.C. § 7511(a)(1)(A)(ii) because he had not
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. Even if his appointments between
September and December 2004 were not temporary, the appellant’s
appointment from December 2004 onwards was temporary and limited to 364
days and so he never accumulated 1 year in a non-temporary appointment.
Furthermore, the appellant did not gain appeal rights under Park v.
Department of Health & Human Services, 78 M.S.P.R. 527 (1998) because,
when he accepted the temporary appointment, he only had 3 months of
civilian service and was serving a probationary period. Therefore, unlike
Park, the appellant was not an “employee” with appeal rights and so could not
unwittingly relinquish any such rights by accepting the temporary
appointment.
The AJ found that the appellant was not an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i) either because he was serving a probationary period.
There was no mention of a probationary period on the appellant’s
appointment but the AJ concluded this by reference to 5 C.F.R. § 315.801(e),
which states that a person appointed to the competitive service under 5 C.F.R.
subparts 315F and 315G serves a 1-year probationary period unless
specifically exempted. This was error because the appellant was appointed
under 5 C.F.R. § 315.403(b)(1), which is within subpart 315D, and 5 C.F.R.
§ 315.801(e) applies only to authorities described in subparts 315F and 315G.
Despite this, the appellant was not an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i), because both the Board and the Federal Circuit Court of
Appeals have interpreted that section not to include persons serving under
temporary appointments of less than 1 year.
Hamiel v. U.S. Postal Service
MSPB Docket No. AT-0752-06-0252-I-1
January 19, 2007
Jurisdiction
- Suspensions
Hearings
- Right to a Hearing
HOLDING: The appellant established entitlement to a jurisdictional
hearing on his constructive suspension claim by making non-frivolous
allegations that he requested to return to work after an absence for
medical reasons and that the agency had denied his request.
5
The appellant was absent from work due to diagnosed narcolepsy and
shoulder surgery. He was cleared by his doctors to return to work on May 23,
2005 and he requested to do so, within certain restrictions. The agency
informed the appellant that he could not work within his requested
restrictions and did not permit him to return until August 18, 2005. The
appellant filed an appeal alleging a constructive suspension for the period of
time between his request to return in May and his return to duty in August.
The AJ dismissed the appeal for lack of jurisdiction without a hearing, finding
that the appellant had failed to present sufficient evidence to show that the
agency knew he had received medical clearance or that the agency could
assess if an appropriate light duty position was available.
The Board vacated and remanded the decision, finding that the appellant
had established entitlement to a jurisdictional hearing, under Garcia v.
Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006), by making
non-frivolous allegations that he requested to return to work after an absence
for medical reasons and the agency had denied his request.
Chairman McPhie dissented, stating that the appellant’s request to return
to work in May 2005 did not address his narcolepsy, only his shoulder
ailment, and his second request to return to work in July 2005 was also
incomplete. The Chairman states that the Board should defer to the agency’s
reasonable decision to delay the appellant’s return to work until August 2005,
when he finally provided complete information on both his ailments and their
necessary work restrictions.
Special Counsel, ex rel.
Waddell v. Department of Justice
MSPB Docket No. CB-1208-06-0020-U-4
January 19, 2007
Special Counsel Actions
- Stays
Whistleblower Protection Act
- Stays
HOLDING: The Board granted OSC’s request for a 60-day extension of
the previously-granted stay of the agency’s reassignment of Special Agent
Waddell.
The Office of Special Counsel (OSC) requested an additional 60-day
extension of the previously granted stay of the agency’s reassignment of
Special Agent Waddell. OSC stated that it needed the extension to complete
its legal analysis and determine what further action was warranted. Viewing
the evidentiary record, which had not changed significantly since the granting
of OSC’s initial stay request, in the light most favorable to OSC, the Board
found OSC’s prohibited personnel practice claim was not clearly
unreasonable and so granted the request for a further 60-day extension of the
6
stay. Given that this was OSC’s third 60-day extension, in addition to the
initial 45-day stay, the Board stated that, absent any unusual circumstances,
this will be the final extension of the stay.
Durr v. Department of Veterans Affairs
MSPB Docket No. AT-1221-04-0293-B-1
January 24, 2007
Whistleblower Protection Act
- Contributing Factor
- Danger to Public Health or Safety
- Gross Mismanagement
- Protected Disclosure
HOLDING: A protected disclosure made after the agency has already
proposed the personnel action at issue in an IRA appeal cannot, as a
matter of law, have contributed to that agency action and so does not
meet the non-frivolous allegation standard for Board jurisdiction over
and IRA appeal.
The appellant brought an individual right of action (IRA) appeal against
the agency’s proposed admonishment. The agency rescinded the proposed
action and the administrative judge (AJ) dismissed the appeal as moot. The
Board vacated the initial decision and remanded the appeal because of the
appellant’s requests for consequential damages and attorney fees. On remand,
the AJ dismissed the appeal for lack of jurisdiction because the appellant
failed to make non-frivolous allegations that he reasonably believed his two
disclosures evidenced a substantial and specific danger to public health and
safety and gross mismanagement, respectively.
The Board affirmed the AJ with regard to the research funding
allegation, finding that a reasonable person could not reasonably believe that
the appellant’s dissatisfaction with his inability to do research evidenced
gross mismanagement. With regard to the appellant’s allegations concerning
the agency’s frequently non-functioning computer systems at the Bay Pines,
Florida VA Medical Center, the Board found that these did meet the non
frivolous allegation standard for a protected disclosure. The appellant’s
allegations in a September 2003 letter to the Office of Special Counsel (OSC)
that the frequent systems failures endangered patients evidenced a reasonable
belief in a substantial a specific danger to public health and safety. However,
the relevant disclosure to OSC came two months after the agency had issued
its proposed admonishment. As a matter of law, the protected disclosure
could not have contributed to the proposed admonishment. Therefore, the
appellant failed to non-frivolously allege that his protected disclosure
contributed to the agency’s personnel action and so he failed to establish
Board jurisdiction.
7
Beaudette v. Department of the Treasury
MSPB Docket No. DE-0752-04-0112-B-1
January 24, 2007
Defenses/Miscellaneous Claims
- Miscellaneous
Jurisdiction
- Reassignment
- Reduction in Pay/Rank/Grade
HOLDING: The appellant’s PFR was denied. Member Sapin issued a
dissenting opinion and Chairman McPhie issued a concurring opinion in
response. No constructive demotion claim lies when the agency either
created a new position with additional duties or, as part of a “planned
management action,” reclassified a position with additional duties.
In 2001, the agency created a new GS-14 position to replace a GS-13
position in which the appellant was one of seven incumbents. The agency
interviewed all the incumbents and promoted all except the appellant to the
new GS-14 position. The seventh GS-14 position remained unfilled. In 2003,
the agency reassigned the appellant and his replacement was soon promoted
to the vacant GS-14 position. The appellant appealed to the Board, alleging a
constructive demotion. The administrative judge (AJ) dismissed the appeal
for lack of jurisdiction because the appellant, while he retained the GS-13
position, was not performing the duties of the GS-14 position in the two years
between the creation of the GS-14 position and the appellant’s reassignment.
A constructive demotion occurs when an employee is reassigned from a
position that is subsequently reclassified upward due to a new classification
or correction of a classification error. This did not occur here because the
agency created a new GS-14 position with distinct duties and responsibilities
from the appellant’s GS-13 position. This was not a reclassification.
Regardless, even if characterized as a reclassification, a reclassification with
the addition of duties resulting from a “planned management action,” as here,
cannot constitute a constructive demotion.
Member Sapin dissented, stating that she would find jurisdiction because
the appellant made non-frivolous allegations that the agency did reclassify
and upgrade his GS-13 position after he was reassigned and that the appellant
non-frivolously alleged that he performed the duties of the GS-14 position
between 2001 and 2003.
COURT DECISIONS
Letz v. Department of the Interior
Fed. Cir. No. 06-3180; MSPB Docket No. DE-0842-05-0189-I-2
8
January 22, 2007
Retirement
- Service Credit – Firefighter/Law Enforcement Provision
HOLDING: A change in the agency’s determination of the type of
retirement credit or coverage available to a position was not a
“significant change in the position” under 5 C.F.R. § 542.804(c), because
it did not affect the duties or responsibilities of the position. Therefore,
such a determination by the agency did not afford the appellant a 6
month window to protest the determined level of FF/LEO credit coverage.
An agency has no affirmative duty to advise employees on requests for
firefighter credit.
An employee can qualify for an enhanced annuity as a firefighter under
5 U.S.C. § 8401 and 5 C.F.R. § 842.803 by applying for enhanced annuity
service credit if he served at least three years in a “rigorous” firefighter
position. Service in a “secondary” firefighter position is then also creditable
if such service immediately follows at least three years in the “rigorous”
position. In January 1997 the appellant sought firefighter retirement service
credit for his employment starting in August 1994. In October 1998 and
January 1999, the agency determined that the appellant’s current and prior
positions were covered as secondary/administrative for firefighter credit. In
May 1999 the appellant challenged the agency’s coverage determinations.
The agency denied his request for firefighter credit because he did not timely
file his application and the Board affirmed the agency’s denial.
If a position is not already approved for firefighter credit, an employee
must apply for such credit within 6 months of entering the position or of any
significant change in the position. The appellant failed to request firefighter
credit within the required six-months of any of his appointments, or within 6
months of the special one-time deadline of November 1, 1995 that was
established by the agency. The appellant argued that the agency’s coverage
determinations were a significant change to his position, enabling him to
apply. The agency’s coverage determinations were not significant changes in
the positions because in no way did they change the type of work or duties or
responsibilities of the positions. Therefore, the agency’s coverage
determinations did not provide the appellant with a 6-month window of
protest.
The Court also extended its holding in Bingaman v. Department of the
Treasury, 127 F.3d 1431 (Fed. Cir. 1997), which held that an agency has no
affirmative duty to advise employees on requests for law enforcement officer
credit, to apply equally to firefighter credit.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
9
The following appeals were affirmed:
Wilson v. Office of Personnel Management, 06-3227, DA-831E-05-0339-I-1 (1/18/07)
Metcalfe v. Merit Systems Protection Board, 06-3398, SE-0752-06-0352-I-1 (1/19/07)
Brown v. Merit Systems Protection Board, 06-3220, DA-0752-05-0591-I-1 (1/22/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 2203-2209 (Jan. 18, 2007)
OPM proposed to amend its regulations governing Federal employment suitability,
5 C.F.R. part 731. The proposed regulations would: authorize agencies to debar from
employment for up to three years those found unsuitable, extend the suitability process to those
applying for or who are in positions that can be non-competitively converted to the competitive
service, provide additional procedural protections for those found unsuitable for Federal
employment, and clarify the scope of authority for the Merit Systems Protection Board to review
actions taken under the regulations. OPM also proposed changes to make the regulations more
readable.
10 | 23,200 | |
Case Report - February 16, 2007 | 02-16-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_16_2007_274749.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_16_2007_274749.pdf | CASE REPORT DATE: February 16, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Wilke v. Department of Homeland Security, 2007 MSPB 45
MSPB Docket No. DC-0752-06-0255-I-1
February 8, 2007
Jurisdiction
- Excepted Service
- Miscellaneous
Appointments
- Miscellaneous/General
- Temporary Appointments
HOLDING: The appellant, a TSA employee, was entitled to a jurisdictional
hearing because he made nonfrivolous allegations that at the time of his
separation pursuant to a RIF, he was an excepted service employee,
regardless of whether permanent or temporary, or that he was serving a
career TSES appointment; 49 U.S.C. § 40122 does not preclude the TSA or
the FAA from modifying the RIF procedures applicable to their excepted
and executive service employees.
The appellant submitted an application for employment in response to
agency vacancy announcement number “TSA-TSES-54” for a full-time
permanent position as an Assistant Administrator for Security Technology/Chief
Technology Officer. However, the Transportation Security Administration
(TSA) offered, and the appellant accepted, a temporary appointment to the
position, not to exceed 3 years, effective March 6, 2005. That same year, TSA
separated the appellant as a result of a reorganization-based reduction in force
(RIF). The administrative judge (AJ) dismissed the appellant’s appeal of his
separation for lack of jurisdiction. The AJ found that the appellant had a Senior
Executive Service (SES) position, and that TSA’s SES personnel do not have
Board appeal rights. Alternatively, she found that the appellant was not a
permanent employee and, as such, had no Board appeal rights.
The Board granted the appellant’s petition for review, vacated the initial
decision, and remanded the appeal for further adjudication. While the Federal
Aviation Administration (FAA) and TSA may promulgate personnel management
policies, pursuant to 49 U.S.C. § 114(n), they must promulgate such policies
subject to the requirements of 49 U.S.C. § 40122, including the requirements that
its personnel system is subject to 5 U.S.C. § 7701 and that employees in its
personnel system may submit a Board appeal from any action that was
appealable to the Board under any law, rule, or regulation as of March 31, 1996.
Therefore, regardless of any attempt TSA may have made to eliminate or modify
the appeal rights of its non-security screener employees, the jurisdictional issue
in this case is whether the action the appellant is attempting to appeal is one that
was appealable to the Board under any law, rule, or regulation as of March 31,
1996, given the nature of the appointment held by the appellant at the time of his
separation.
As of March 31, 1996, permanent and temporary excepted service
employees and career appointees to the SES had the right to file a RIF separation
appeal with the Board. Thus, the appellant can establish Board jurisdiction over
his appeal of his RIF separation if he can prove that at the time of his separation:
(1) He was an excepted service employee, regardless of whether permanent or
temporary; or (2) he held a career TSES appointment. The Board found that the
appellant made non-frivolous allegations with respect to each of these
jurisdictional bases and he was therefore entitled to a jurisdictional hearing.
Nevertheless, 49 U.S.C. § 40122 does not preclude TSA or FAA from
modifying the RIF procedures applicable to their excepted and executive service
employees. Thus, in the event the AJ finds that the appellant held either a
permanent or a temporary excepted service appointment, the AJ must determine
if TSA properly promulgated RIF procedures for such employees, and if not,
FAA’s RIF regulations regarding such appointments govern. In the event, the AJ
finds that the appellant was a Career TSES employee, the AJ must determine
whether TSA properly promulgated TSES Letter No. 000-1, and if so, determine
the RIF procedures to which the appellant was entitled as a Career TSES
employee. If the AJ finds that TSES Letter No. 000-1 was not properly
promulgated, the RIF procedures that are applicable to the Federal Aviation
Executive Service govern.
Oates v. Department of Labor, 2007 MSPB 46
MSPB Docket No. CB-7121-06-0021-V-1
February 12, 2007
Arbitration/Collective Bargaining-Related Issues
- Review Authority of MSPB
- Miscellaneous
Back Pay
HOLDING: An arbitrator may award back pay even though he only
mitigated the penalty; because such an award is not covered by the Back Pay
Act, the arbitrator did not err in declining to award the appellant interest on
any back pay.
The appellant filed a request to review an arbitration decision that mitigated
his 25-day suspension to a 13-day suspension and awarded him back pay without
interest on that award. Because the appellant alleged that the suspension was
discriminatory on the basis of disability, the Board has jurisdiction over his
request for review. The Board found that the appellant had not shown that the
arbitrator erred as a matter of law in sustaining the charge nor determining the
penalty, and that the appellant failed to show that the agency discriminated
against him.
The Board found nothing that precludes an arbitrator from awarding back
pay, even though he only mitigated the penalty, pursuant to his broad discretion
in fashioning a just award that takes account of the parties’ mutual interests and
conduct. However, the Back Pay Act does not cover this situation because 5
U.S.C. § 5596(b)(1)(A)(i) requires back pay to be awarded where a removal or
suspension action is reversed, but does not require a back pay award where the
arbitrator only mitigated the penalty. Thus, the arbitrator was not required to
award the appellant interest on the back pay award under the Act. Therefore, the
Board sustained the arbitrator’s decision.
Williams v. Office of Personnel Management, 2007 MSPB 50
MSPB Docket No. DC-0831-06-0490-I-1
February 14, 2007
Retirement – Survivor Annuity
Board Procedures/Authorities
- Remands/Forwards
- Transcripts
HOLDING: If OPM misinformed the appellant concerning his right to elect
a survivor annuity upon remarriage, or concerning the steps he was to take
in order to make that election, and if its misinformation caused the appellant
to fail to elect a survivor annuity in a timely manner, the appellant’s election
should be considered to have been timely; the Board remanded the case
because it was unable to determine either whether the appellant was
misinformed or what effect any such misinformation had, especially since
the tape-recording of the hearing was largely inaudible.
The appellant retired with a reduced annuity with maximum survivor
annuity for his then spouse. After she died, the Office of Personnel Management
(OPM), at the appellant’s request, restored his full annuity. The appellant
remarried in October 2001. In a February 2005 letter, he requested a reduced
annuity with survivor benefits for his new wife. OPM denied the appellant’s
application for a survivor annuity as untimely filed. On appeal, the
administrative judge (AJ) affirmed OPM’s decision.
The Board granted the appellant’s petition for review, vacated the initial
decision and remanded the appeal for further adjudication. The appellant’s
February 2005 election of a reduced annuity with survivor benefits was not filed
within 2 years after his remarriage and, thus, was untimely filed. The appellant’s
allegation that he was unaware of the 2-year deadline was unpersuasive because
he did not deny that twice during the 2-year filing period he received OPM’s
written notices to annuitants that included information about the filing deadline
for making a new election following remarriage.
However, the appellant alleged without rebuttal that he contacted OPM in or
before November 2002 in order to elect survivor benefits for his new wife, and
that an OPM employee informed him that he had to get a social security number
for his present wife before he could request benefits for her. In addition, the
election notices OPM sent the appellant stated that he could call OPM within the
2-year time limit and state the election he wanted to make, and OPM would then
send him detailed information about the effect of the election and an election
form to sign and return to OPM. The Board found that the appellant appeared to
have followed these instructions, and there was no evidence that OPM sent the
appellant the detailed information and election form. If OPM misinformed the
appellant concerning his right to elect a survivor annuity, or concerning the steps
he was to take in order to make that election, and if its misinformation caused
the appellant to fail to elect a survivor annuity in a timely manner, the
appellant’s election should be considered to have been timely. The Board
remanded the case because it was unable to determine either whether the
appellant was misinformed or what effect any such misinformation had,
especially since the tape-recording of the hearing proceedings was largely
inaudible.
Pupis v. U.S. Postal Service, 2007 MSPB 47
MSPB Docket No. PH-0752-06-0450-I-1
February 12, 2007
Back Pay
Mootness
HOLDING: The appellant’s sworn statement that he had not yet received
any back pay from the agency constituted a nonfrivolous allegation that he
had not been restored to the status quo ante requiring a remand
notwithstanding the agency representative’s statement that the agency had
submitted the appropriate documentation to effect the appellant’s back pay
payments and that he would receive the payments shortly.
While the appeal of the appellant’s indefinite suspension was pending, the
agency canceled the suspension retroactive to its effective date, and the
administrative judge dismissed the appeal as moot. On review, the appellant
stated under penalty of perjury that he has not yet received any back pay from
the agency. In response, the agency submitted the unsworn statement of its
representative claiming that the agency had submitted all appropriate
documentation to secure payment of the appellant’s back pay and that he “is due
to receive the payment for all due and owing back pay, shortly.” The agency did
not submit any evidence to support this claim. The Board found that the
appellant’s sworn statement constituted a nonfrivolous allegation that he had not
been restored to the status quo ante. Therefore, the Board remanded the appeal
for a determination as to whether the agency has completely rescinded the
appellant’s suspension and restored him to the status quo ante.
King v. Department of Veterans Affairs, 2007 MSPB 48
MSPB Docket No. AT-1221-06-0462-W-1
February 12, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
HOLDING: The AJ erred in adjudicating the IRA appeal on the merits
without first addressing the threshold issue of jurisdiction; where the AJ did
not discuss the jurisdictional issues in the prehearing summary and
prevented the appellant from eliciting evidence pertaining to the
jurisdictional issues at the hearing, the appellant was deprived of a fair
opportunity to meet her jurisdictional burden and remand was required
even though the agency’s submissions contained notice of what the appellant
must do to establish jurisdiction.
After exhausting her Office of Special Counsel (OSC) remedies, the
appellant filed an individual right of action (IRA) appeal, claiming that she had
received a letter of reprimand for alleged whistleblowing. The administrative
judge (AJ) disallowed documents attached to the appellant’s appeal form except
for the Letter of Reprimand, the Proposed Reprimand, the OSC complaint, and
OSC’s closure letter. After affording the appellant her requested hearing, the AJ,
without first addressing the issue of jurisdiction, found that the agency had
proved by clear and convincing evidence that it would have reprimanded the
appellant absent any protected activity.
On review, the Board found that the AJ erred in adjudicating the appeal on
the merits without first addressing the threshold issue of jurisdiction and, thus,
reopened the appeal to address this issue. However, the Board found that the
portions of the appeal that the AJ retained in the record were insufficient to
determine whether the appellant had made nonfrivolous allegations that she had a
reasonable belief that her disclosures were protected, and that any protected
disclosure was a contributing factor to the reprimand. In addition, although the
agency’s response to the appeal contained notice of what the appellant must do
to establish jurisdiction, the AJ did not discuss the jurisdictional issues in the
prehearing summary and prevented the appellant from eliciting evidence
pertaining to the jurisdictional issues at the hearing. The Board found that the
AJ’s mishandling of the threshold question of jurisdiction likely misled the
appellant into believing that she was not required to establish that the Board has
jurisdiction over her appeal. The Board therefore found that the appellant was
deprived of a fair opportunity to meet her jurisdictional burden and remanded the
case to afford her the opportunity to establish jurisdiction over her appeal.
Timmers v. Office of Personnel Management, 2007 MSPB 49
MSPB Docket No. CH-0831-03-0715-B-1
February 12, 2007
Board Procedures/Authorities
- Remands/Forwards
- Reopening and Reconsideration
Retirement
- Court/Domestic Relations Orders
- Survivor Annuity
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/ Law of the Case
HOLDING: Neither the original 1983 divorce decree nor the 1985 amended
judgment entitled the appellant to a former spouse survivor annuity where
her 1983 divorce occurred prior to the effective date of the Spouse Equity
Act of 1984; the law of the case doctrine precluded the AJ from finding that
the appellant failed to establish grounds for reopening the appeal and in
dismissing the appeal as untimely where the Board previously reopened the
appeal despite the untimeliness.
The appellant and Vernon Rausch were divorced in 1983. In October 1985,
a state court issued an amended judgment and decree of dissolution that awarded
“death benefits” to the appellant based on a portion of Mr. Rausch’s federal
service. After Mr. Rausch’s death, the appellant applied for survivor annuity
benefits. The Office of Personnel Management (OPM) denied the appellant’s
application because the amended judgment did not expressly provide for an
award of survivor annuity benefits. The appellant’s appeal of that decision was
dismissed as untimely filed. The Board denied the appellant’s petition for
review. The court affirmed the Board’s denial of the petition for review, but
remanded the appeal to the Board to determine whether the Board should reopen
the appeal to consider the merits of OPM’s decision in light of the fact that OPM
was wrong in finding that the amended judgment did not expressly provide for an
award of survivor annuity benefits.
Timmers v. Merit Systems Protection Board,
126 F. App’x 482 (Fed. Cir. 2005) (nonprecedential).
On remand, OPM informed the Board that Mr. Rausch had married Susan
Rausch in 1989 and that Ms. Rausch was receiving a survivor annuity pursuant to
Mr. Rausch’s election of survivor benefits for her. The Board then granted Ms.
Rausch’s request to intervene; reopened the appeal despite its untimeliness
because there were genuine questions of fact and law as to how the survivor
annuity should be awarded; and remanded the appeal for further development of
the record and consideration of the merits of the appeal.
Timmers v. Office of
Personnel Management, 101 M.S.P.R. 305 (2006). On remand, the
administrative judge (AJ) found that the appellant was not entitled to a former
spouse survivor annuity. However, the AJ apparently dismissed the appeal as
untimely filed.
On review, the Board agreed with the AJ that neither the original divorce
decree nor the October 1985 amended judgment provided the appellant with an
enforceable entitlement to a survivor annuity because her divorce occurred prior
to the effective date of the Spouse Equity Act of 1984, and prior to that date, a
former spouse had no right to survivor benefits under the Civil Service
Retirement System. However, the Board found that the AJ erred in stating that
the appellant failed to establish grounds for reopening the appeal and in
dismissing the appeal, apparently as untimely, because the Board’s determination
that it was appropriate to reopen the appeal was binding on the AJ pursuant to
the law of the case doctrine. Nevertheless, because the AJ correctly determined
that the appellant is not entitled to a former spouse annuity, the Board affirmed
the initial decision as modified.
EEOC DECISIONS
Heffernan v. Department of Health & Human Services
EEOC Pet. No. 0320060079, 2007 WL 313336
MSPB Docket No. DC-0752-04-0756-I-1
January 24, 2007
Discrimination
- Disparate Impact/Treatment
- Religious Discrimination
Defenses and Miscellaneous Claims - Reprisal
HOLDING: The appellant proved religious discrimination and retaliation
for EEO activity; a comparator for purposes of disparate treatment
discrimination need not be charged with the same offenses as the appellant
or subjected to disciplinary action at all.
The appellant is a Roman Catholic priest who was employed as a Chaplain
in a National Institutes of Health clinic. The appellant’s supervisor, a Methodist
minister, proposed his removal for, among other things, failure to comply with
training requirements. After the appellant was removed, he filed an appeal,
contesting the charges and claiming, in pertinent part, that the removal action
constituted discrimination based on his religion and reprisal for equal
employment opportunity (EEO) activity. The appellant claimed that a rabbi who
also served as a Chaplain under the Methodist minister was treated more
favorably with regard to the same training requirements.
The administrative judge (AJ) affirmed the appellant’s removal and found
that the appellant did not establish a prima facie case of religious discrimination
because he did not identify any similarly situated comparison employees. In
light of this finding, the AJ stated that she did not consider the appellant’s
proffered evidence of pretext. The AJ further found that the appellant did not
prove his claim of retaliation for EEO activity because he did not establish a
nexus between the protected activity and the removal action. The Board denied
the appellant’s petition for review by Final Order.
Upon review of the Board’s decision, the Equal Employment Opportunity
Commission (EEOC) found that, contrary to the initial decision, the rabbi could
be a comparator even though the rabbi was not subjected to disciplinary action at
all and was not charged with the exact same three charges as the appellant. The
EEOC then found that the appellant made a prima facie case of religious
discrimination and EEO retaliation; the agency articulated legitimate,
nondiscriminatory reasons for the removal action; and the AJ, thus, erred in
precluding the appellant from presenting evidence of pretext.
Heffernan v.
Leavitt, EEOC Petition No. 03A60015, 2006 WL 522323 (Feb. 21, 2006).
Therefore, EEOC referred the case to the Board to take additional evidence on
pretext and directed the Board to forward the supplemental record to EEOC.
Upon receipt of the Board’s supplemental record, EEOC found again that
the agency articulated legitimate, nondiscriminatory reasons for its removal
decision. However, EEOC also found that the appellant showed that the
agency’s proffered reasons for his removal were pretext for discrimination on the
bases of religion and reprisal for EEO activity. EEOC relied heavily on the
testimony of the rabbi and a Greek Orthodox Chaplain that the appellant’s
supervisor told them that he was trying to get rid of the appellant in order to hire
a Maronite priest and that he did not like Roman Catholics. EEOC thus found
that the appellant proved his claims of religious discrimination and reprisal for
EEO activity. EEOC therefore returned this case to the Board for action.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Simmons v. Small Business Administration, 06-3415, DC-0752-06-0356-I-1 (2/8/07)
Moody v. Merit Systems Protection Board, 06-3432, DC-0752-06-0280-I-1 (2/8/07)
Baney v. Department of Justice, 07-3008, DA-3443-06-0016-I-1 (2/8/07)
Curry v. Department of Agriculture, 06-3328, DE-0752-05-0294-I-1 (2/9/07)
Jones v. U.S. Postal Service, 06-3361, CH-0752-05-0926-I-1 (2/9/07)
Gibson-Michaels v. Federal Deposit Insurance Corporation, 06-3409, DC-1221-06-0413-W-1
(2/9/07)
Hunter v. Department of Veterans Affairs, 06-3338, DC-0752-05-0322-C-2 (2/12/07)
McFadden v. Department of the Treasury, 06-3349, DC-0752-06-0006-I-1 (2/12/07)
Devera v. Smithsonian Institution, 06-3354, DC-1221-05-0021-B-1 (2/12/07)
Stoyanov v. Merit Systems Protection Board, 06-3358, DC-1221-06-0160-W-1 (2/12/07)
Schultz v. Department of Veterans Affairs, 06-3313, PJ-0752-05-0609-I-1 (2/13/07
The following appeal was dismissed:
Sweeney v. Department of Homeland Security, 07-3091, DA-0752-06-0305-I-1 (2/12/07)
A petition for rehearing was denied in the following case:
Teacher v. Department of Homeland Security, 06-3333, SF-3443-06-0278-I-1 (2/8/07) | 21,580 | |
Case_Report_February_9_2007 | 02-09-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_9_2007_255135.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_9_2007_255135.pdf | CASE REPORT DATE: February 9, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Muyco v. Office of Personnel Management,
MSPB Docket No. SF-0831-06-0492-I-1
February 1, 2007
Jurisdiction
- Miscellaneous
Retirement
- Procedures/Miscellaneous
HOLDING: OPM’s written response informing the appellant that it
would not revisit its prior, final decision, was not a new appealable
decision over which the Board has jurisdiction. OPM did not err or
abuse its discretion in refusing to issue a new decision simply because the
appellant is dissatisfied with OPM’s prior final decision.
The appellant applied to the Office of Personnel Management (OPM) for
a Civil Service Retirement System (CSRS) annuity, which OPM denied. The
appellant filed a late request for reconsideration, which OPM denied as
untimely. The appellant appealed to the Board and OPM’s final decision was
affirmed by initial decision and his petition for review was denied by the
Board. Undeterred, the appellant requested a new decision from OPM, citing
new legal argument. OPM refused to issue a new decision and informed the
appellant, by letter, that no law or circumstance had changed to make the
appellant entitled to an annuity and informed him that OPM would not be
issuing a new decision. The appellant filed an appeal with the Board,
characterizing this letter as a new final decision by OPM. The administrative
judge (AJ) did not recognize the letter as a new decision, treated the appeal as
stemming from OPM’s earlier final decision, and dismissed the appeal as res
judicata. The appellant petitioned for review.
The Board affirmed the AJ’s dismissal for res judicata and reopened on
its own motion to consider the appellant’s argument that OPM’s letter
constituted a new appealable decision. Treated as such, the Board found that
OPM’s letter did not constitute a new decision on the merits of the appellant’s
claim and so dismissed the appeal for lack of jurisdiction. The letter
specifically stated that OPM would not issue a new decision because no law
or circumstance had changed affecting the appellant’s lack of entitlement to
an annuity. The appellant submitted no new evidence and was simply making
new legal argument, which he should have raised before OPM at the time of
his original application. There was no legal error or abuse of discretion in
OPM’s refusal to issue a new decision simply because the appellant appears
dissatisfied with OPM’s prior decision.
Special Counsel v. Phillips and The Jackson County Sheriff Department and Jackson
County, Missouri,
MSPB Docket No. CB-1216-06-0010-T-1
February 1, 2007
Special Counsel Actions
- Hatch Act
HOLDING: The Board denied the PFR for failure to meet the review
criteria. Vice Chairman Rose dissented.
Vice Chairman Rose dissented stating that she disagreed with the holding
of the administrative law judge below that the Office of Special Counsel had
failed to prove that the respondent agency was within the executive branch of
the county.
Moorer v. Office of Personnel Management,
MSPB Docket No. DA-844E-05-0560-I-1
February 2, 2007
Jurisdiction
- Resignation/Retirement/Separation
HOLDING: The AJ’s dismissal for lack of jurisdiction was erroneous
because it was based upon both parties incorrectly stipulating that OPM
had not issued a reconsideration decision; OPM had issued a
reconsideration decision at the time. Despite the untimeliness of the
appellant’s PFR, the proper remedy was for the Board to reopen the
appeal and remand it for adjudication.
The appellant filed a “request for reconsideration” with the Board’s
Dallas Regional Office on August 5, 2005, regarding the denial by the Office
of Personnel Management (OPM) and the Social Security Administration of
disability benefits. The appellant then stated this was not intended as an
2
appeal, as he was awaiting OPM’s reconsideration decision. OPM moved to
dismiss the appeal for lack of jurisdiction because it had not issued a final
decision. As both parties agreed that OPM had not yet issued a final decision,
the AJ dismissed the appeal on September 6, 2005. On September 5, 2006,
the appellant sent another submission to the Board’s Dallas office, which was
forwarded to the Clerk of the Board as a petition for review (PFR). On PFR,
OPM submitted a copy of its April 25, 2005 reconsideration decision denying
the appellant’s disability retirement application and admitted that it had
erroneously stated to the AJ that it had not issued a final decision at the time
of the appellant’s appeal.
The Board vacated the initial decision dismissing the appeal for lack of
jurisdiction because OPM had issued a final decision at the time of the
appellant’s appeal and remanded the appeal to the AJ for adjudication,
including whether the appellant’s August 5, 2005 appeal was timely given the
date of OPM’s April 25, 2005 reconsideration decision.
Nakshin v. Department of Justice,
MSPB Docket No. NY-0731-03-0145-B-2
February 2, 2007
Miscellaneous Agency Actions
- Suitability
HOLDING: The Board’s holding in Duggan v. Department of the Interior,
98 M.S.P.R. 666 (2005), is overruled. To establish Board jurisdiction, an
appellant need not show that an agency’s reasoning in its suitability
determination falls within one of the specific categories discussed in
5 C.F.R. § 731.202(b).
The Board denied the agency’s petition for review (PFR) but reopened
the appeal on its own motion to clarify the Board’s suitability case law.
In
Duggan v. Department of the Interior, 98 M.S.P.R. 666 (2005), aff’d, 190 F.
App’x 963 (2006), the Board stated that to prove jurisdiction, an appellant
must show, inter alia, that “his nonselection for the position was based on the
agency’s determination that he was unsuitable due to one or more of the
factors set forth under 5 C.F.R. § 731.202.” Duggan, 98 M.S.P.R. 666, ¶ 7
(emphasis added). In other words, Duggan held that the agency’s reasoning
for its nonselection must fall within one of the specific categories in 5 C.F.R.
§ 731.202(b) to be characterized as a constructive suitability determination
over which the Board has jurisdiction. This holding was contrary to the
Board’s prior case law and is overruled.
3
Paderes v. Office of Personnel Management,
MSPB Docket No. CB-1205-06-0019-U-1
February 5, 2007
Defense and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
Miscellaneous Topics
- Regulation Review
HOLDING: Petitioner’s challenge to an OPM regulation was precluded
by res judicata because he could have asserted the argument in his prior
appeal of OPM’s denial of his CSRS annuity application.
The petitioner, a former long-time temporary employee of the Department
of the Navy, was denied a Civil Service Retirement System (CSRS) annuity by
the Office of Personnel Management (OPM). The Board and the Federal
Circuit Court of Appeals affirmed OPM’s denial. The petitioner then
requested the Board review OPM’s regulation at 5 C.F.R. § 831.201(a)(13),
which excludes non-permanent indefinite appointments from CSRS coverage.
The Board denied the request as precluded by res judicata because the
appellant was simply seeking to relitigate, in the guise of challenging an OPM
regulation, the issue in his prior appeal of his entitlement to an annuity.
Schaberg v. U.S. Postal Service,
MSPB Docket No. SF-0752-06-0367-I-2
February 5, 2007
Board Procedures
- Representation
- Withdrawal of Appeal/PFR
HOLDING: The Board dismissed the PFR as deficient because it was
signed only by the appellant’s former representative, not the appellant,
who had previously revoked his designation of a representative.
The appellant appealed his removal but after a hearing, while the appeal
was still pending, the appellant requested to withdraw his appeal and revoked
the designation of Mr. J. Byron Holcomb as his representative. The
administrative judge (AJ) found the appellant’s request voluntary and
dismissed the appeal as withdrawn. Mr. Holcomb filed a petition for review
(PFR) arguing that the appellant was not competent to either withdraw his
appeal or discharge his counsel and requesting that the appeal be reinstated.
The Board dismissed the PFR as deficient because it was signed by
neither the appellant nor the appellant’s designated representative. Mr.
Holcomb, who signed the PFR, was no longer the appellant’s designated
representative following the appellant’s revocation of his designation.
4
Vergara v. Office of Personnel Management,
MSPB Docket No. CB-1205-06-0022-U-1
February 5, 2007
Miscellaneous Topics
- Regulation Review
HOLDING:
The petitioner requested Board review of the validity of the Office of
Personnel Management (OPM) regulation at 5 C.F.R. § 831.201(a)(13), which
excludes from Civil Service Retirement System (CSRS) coverage employees
serving under excepted, indefinite appointments. The petitioner argued that
the regulation is not in accordance with 5 U.S.C. § 8347(g), which authorizes
OPM to exclude from CSRS coverage employees whose appointment is
temporary or intermittent, and Executive Order 9154.
The Board may invalidate OPM regulations if the implementation of
those regulations would result in a prohibited personnel practice; however,
the petitioner failed to show how the regulation, on its face or as
implemented, would result in a prohibited personnel practice. Despite this,
the Board denied review on other, more compelling grounds.
The Board considers four factors in deciding whether to grant regulation
review: (1) The likelihood of resolution of the issue through other channels;
(2) The availability of other equivalent remedies; (3) the extent of the
regulation’s application; and (4) the strength of the arguments against its
validity. First, the petitioner has an alternate remedy by pursuing his alleged
entitlement to a CSRS annuity; this action appeared to be such a claim in the
guise of a request for regulation review. Second, the appellant’s arguments
regarding the validity of the regulation were weak because they have already
been addressed and rejected by the Federal Circuit Court of Appeals in Rosete
v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995) and the
Board in Tabradillo v. Office of Personnel Management, 93 M.S.P.R. 257
(2003). Accordingly, the Board rejected the petitioner’s request for review.
Trachtenberg v. Department of Defense,
MSPB Docket No. PH-0351-06-0019-I-1
February 6, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
- Withdrawals of Appeal/PFR
Timeliness
- Miscellaneous
HOLDING: The appellant failed to show good cause for the delay in
filing a PFR and the Board declined to reopen her withdrawn appeal
5
because of the substantial delay in requesting reopening and because
there was no error to cure that implicated her basic rights and threatened
a manifest injustice.
The appellant withdrew her initial appeal and the administrative judge
(AJ) dismissed her appeal as withdrawn in November, 2005. She filed a
petition for review (PFR) in October 2006. The Board denied her PFR as
untimely filed without good cause for the delay because she failed to show
that the delay was due to circumstances beyond her control.
Because the appellant withdrew her appeal the Board also treated her
PFR as a request to reopen that appeal. The Board’s authority to reopen a
case is limited by the requirement that such authority be exercised within a
reasonably short period of time, which the delay in this case was not. In
addition, given that this case did not involve an error that implicates the
appellant’s basic rights, threatening a manifest injustice, the Board declined
to exercise its authority to reopen the appeal.
Johnson v. Department of Justice,
MSPB Docket No. DC-1221-06-0388-W-1
February 6, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
Board Procedures/Authority
- Discovery
HOLDING: The Board has jurisdiction over an IRA appeal if the
appellant has exhausted his remedies before OSC and makes nonfrivolous
allegations that he made a protected disclosure that was a contributing
factor in the agency’s decision to take a personnel action. A motion to
compel must state how the information sought is relevant and material
and be accompanied by a sworn statement that no response to the
discovery request was received. In an IRA appeal, the Board lacks
jurisdiction to also adjudicate the merits of the agency’s personnel action.
The agency suspended the appellant for 14 days for conducting an
unauthorized investigation, misuse of position, and lack of candor. At the
same time the agency also reassigned the appellant. The appellant
complained to the Office of Special Counsel (OSC) alleging that these actions
were in retaliation for several protected disclosures he had made. The AJ
dismissed the appellant’s individual right of action (IRA) appeal for lack of
jurisdiction because the appellant failed to prove, by preponderant evidence,
whistleblowing and retaliation.
The Board reversed the initial decision and remanded the appeal for a
hearing and adjudication on the merits. The AJ erroneous applied the now
6
defunct jurisdictional standard in Geyer v. Department of Justice, 63 M.S.P.R.
13 (1994), of proof by preponderant evidence of whistleblowing and
retaliation.
The correct standard is nonfrivolous allegations, as explicated in
Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) and
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002), which
overruled Geyer. The Board applied the correct standard and found that the
appellant had established jurisdiction with respect to only one of his fifteen
alleged disclosures. With respect to this one disclosure, the appellant had
exhausted his remedies via OSC and had made a nonfrivolous allegation that
the disclosure was protected and contributed to the agency’s personnel action
against him.
The Board also found that the AJ did not err in failing to rule on the
appellant’s motion to compel because it was not accompanied by a sworn
statement that no response was received and did not state how the information
sought was relevant and material. Nor did the AJ err in failing to address the
appellant’s allegations that the agency committed harmful procedural error in
the disciplinary actions taken against him because, in an IRA appeal, the
Board lacks jurisdiction to also adjudicate the merits of the agency’s
personnel action.
Hesse v. Department of the Army,
MSPB Docket No. AT-3443-05-0936-I-1
February 6, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
- Statutory/Regulatory/Legal Construction
HOLDING: “Active duty” for purposes of preference eligibility as a
“disabled veteran” under 5 U.S.C. § 2108(2) may consist entirely of
service for training purposes.
The appellant was tentatively selected for a security guard position that,
by statute, may be filled only by preference eligible veterans. Prior to his
appointment, however, the agency concluded that the appellant was not
preference eligible because, although he served on active military duty, was
honorably discharged, and had a service-connected disability, his active duty
service was only for training purposes. The appellant filed a complaint with
the Department of Labor (DOL), which concurred with the agency, and then
an appeal with the Board under the Veterans Employment Opportunities Act
of 1998 (VEOA). The administrative judge (AJ) concurred with the agency’s
determination and denied the appellant’s request for relief. On petition for
review (PFR) the Board reversed the initial decision (ID), finding that the
appellant met the definition of a “disabled veteran” under 5 U.S.C. § 2108(2)
and so was preference eligible. Vice Chairman Rose dissented.
7
“Disabled veteran” is defined in 5 U.S.C. § 2108(2) as “an individual
who has served on active military duty in the armed forces, has been
separated therefrom under honorable conditions, and has established the
present existence of a service-connected disability …” The parties stipulated
that the appellant facially met all these requirements but also that his active
duty service was only for training purposes. The agency argued that this does
not constitute “active duty” under the statute, referring to the definition of
“active duty” at 38 U.S.C. § 101(21), which specifically excludes active duty
for training. However, unlike 5 U.S.C. §§ 2108(1)(B)-(D), which define
“active duty” by reference to 38 U.S.C. § 101(21), the separate section
defining a “disabled veteran,” at 5 U.S.C. § 2108(2), includes no such
reference to 38 U.S.C. § 101(21). Additionally, nothing in 38 U.S.C.§ 101
makes it generally applicable to Title 5 in general or 5 U.S.C. § 2108 in
particular. Rather, 38 U.S.C. § 101 states that its definitions apply for
purposes of Title 38. Therefore, the provision limiting the definition of
“active duty” in 5 U.S.C. §§ 2108(1)(B)-(D) does not apply to the definition
of “disabled veteran” at 5 U.S.C. § 2108(2). Nothing in the statute’s
legislative history indicates that the omission of this limitation in section
2108(2) by Congress was anything but intentional.
The agency also relied in its argument on Broussard v. U.S. Postal
Service, 674 F.2d 1103 (5th Cir. 1982), which held that, to qualify as
preference eligible, disabled veterans must have served on active duty for
purposes other than training, citing to the Federal Personnel Manual (FPM).
The Board distinguished Broussard, because the 5th Circuit’s holding appears
to rely on a finding that the appellant lacked a service-connected disability.
Regardless, the 5th Circuit decision in Broussard, and the underlying decision
of the U.S. Civil Service Commission, the board’s predecessor, are not
binding on the Board.
The agency also cited OPM’s regulations at 5 C.F.R. § 211.102, which
define active duty as “full-time duty … in the armed forces, except for
training …” The Board declined to grant Chevron deference to OPM’s
interpretation of the statute here because it found Congress’s intent clear such
that OPM’s interpretation was inconsistent with the statutory language and
legislative history of 5 U.S.C. § 2108(2). Therefore, the Board concluded that
“active duty,” as that term is used in 5 U.S.C. § 2108(2), may consist entirely
of service for training purposes such that the appellant in this case was a
“disabled veteran” and preference eligible. The appropriate relief in this case
was to reconstruct the selection process because, although the appellant had
been tentatively selected, the record did not establish that he would have been
appointed.
Vice Chairman Rose dissented, stating that the statute unambiguously
limits the term “veteran” to those who have served in active duty for other
than training purposes. The Vice Chairman stated that, under the “whole act
rule” of statutory construction, failing to read 5 U.S.C. § 2108(2) in light of
the subsections around it leads to incoherence. Applying the normal rule of
8
statutory construction, that identical words in different parts of the same act
should be read to have the same meaning, the Vice Chairman would have
found that a “disabled veteran” must meet the definition of a “veteran,” which
requires active duty other than training. Finally, Vice Chairman Rose stated
that the statutory language is not unambiguous and that the Board should
therefore defer, under Chevron, to OPM’s interpretation in its regulations at
5 C.F.R. § 211.101.
Donati v. Office of Personnel Management,
MSPB Docket No. PH-0843-05-0336-N-1
February 7, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
HOLDING: The Board granted OPM’s request for a stay pending the
Board’s decision on the merits of OPM’s request for reconsideration.
The Office of Personnel Management (OPM) petitioned the Board for
reconsideration of its decision on the merits of this case and also requested a
stay of the Board’s decision pending resolution of OPM’s request for
reconsideration. The Board considered the four factors that guide it in
deciding whether to exercise its discretion to grant a stay.
First, the Board found that OPM presented a serious legal argument on
the merits. Second, OPM demonstrated that it would be irreparably harmed
by the loss of limited appropriated funds that would be diverted to
adjudicating claims similar to the appellant’s and potentially then incurring
the cost of having to seek recoupment of those funds should the Board’s
decision be overturned. Third, although a stay will delay the appellant’s
receipt of benefits, the harm to her would not be substantial because the
Board did not foresee a protracted delay before ruling on the merits and the
appellant would be exposed to the risk of having to repay any payments
received anyway. Fourth and final, the public interest favored granting the
stay because public funds should not be spent unnecessarily and requiring
OPM to immediately adjudicate similar claims, when the outcome of this case
may effect OPM’s decisions and payments, could lead to the unnecessary
expenditure of more government resources. Therefore, the Board stayed
OPM’s obligation to comply with its decision in Donati v. Office of Personnel
Management, 104 M.S.P.R. 30 (2006), pending resolution of OPM’s petition
for reconsideration.
EEOC DECISIONS
The Equal Employment Opportunity Commission (EEOC) concurred with the
Board’s final decision in the following mixed appeals:
9
Dedrick v. Office of Personnel Management, EEOC No. 0320070033 (1/25/07)
MSPB Docket No. PH-831E-06-0483-I-1
Moncrieffe v. Department of Health & Human Services, EEOC No. 0320070030
(1/30/07)
MSPB Docket No. DC-0752-06-0552-I-1
Hester v. Department of the Interior (Commission of Fine Arts), EEOC No. 0320070038
(1/31/07)
MSPB Docket No. DC-0752-06-0443-I-1
COURT DECISIONS
Parrish v. Merit Systems Protection Board
Fed. Cir. No. 2006-3054; MSPB Docket No. DE-0351-05-0293-I-1
February 7, 2007
Retirement
- Service Credit – Firefighter/Law Enforcement Provision
HOLDING: The Board has the authority and the obligation to determine
its own jurisdiction and a full and careful analysis of an agency’s
implementation of an independent personnel system that purportedly
strips the Board of its jurisdiction is a necessary and appropriate part of
the Board’s determination of its own jurisdiction.
The appellant, an employee of Southwestern Indian Polytechnic Institute
(SIPI), appealed his removal by reduction in force (RIF). The Department of
the Interior (DOI), SIPI’s parent agency, moved to dismiss the appeal for lack
of jurisdiction because SIPI, under a statutory authorized demonstration
project, had implemented an independent personnel system that had removed
Board jurisdiction over RIFs, replacing it with a negotiated-grievance
procedure. The appellant argued that SIPI had failed properly implement its
personnel system under the authorizing statute such that the Board retained
jurisdiction. The administrative judge (AJ) found that SIPI had failed to
publish its plan in the Federal Register, as required by the statute, such that it
was ineffective and the appellant retained his Board appeal rights. On
interlocutory appeal, the Board reversed and dismissed the appeal finding that
the Board lacked jurisdiction and lacked authority to enforce the procedural
requirements of SIPI’s authorizing statute.
The Court vacated the Board’s decision, finding that the Board has the
authority and the obligation to determine its own jurisdiction over a particular
appeal and that it failed to do so here. The Board’s jurisdiction in this case
turns on whether SIPI followed the required statutory procedure to eliminate
Board jurisdiction, as DOI contends, or whether it failed to do so, as the
appellant contends. The Board did not resolve this issue. A full and careful
analysis of SIPI’s actions is a necessary and appropriate part of the Board’s
determination of its own jurisdiction, not an unwarranted attempt to enforce
10
SIPI’s authorizing statute. On remand, the Board should determine if SIPI
satisfied the statutory requirements for effecting its personnel system and, if
not, determine whether such non-compliance vitiated SIPI’s supersession of
the Board’s jurisdiction.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Bagbee v. U.S. Postal Service, 06-3405, SF-0752-06-0336-I-1 (2/6/07)
Abadia v. Office of Personnel Management, 06-3297, DC-0831-03-0453-I-1 (2/6/07)
Chambers v. Department of the Interior, 06-3414, AT-0831-05-0395-I-2 (2/6/07)
The following appeals were dismissed:
Cuellar v. Department of Homeland Security, 07-3074, DA-0752-06-0283-I-1 (2/1/07)
Sheppard v. Department of the Air Force, 07-3078, AT-3443-06-0791-I-1 (2/5/07)
Matos v. U.S. Postal Service, 07-3082, PH-0353-06-0498-I-1 (2/5/07)
A petition for rehearing was denied in the following cases:
Casimier v. Office of Personnel Management, 06-3143, DA-831E-04-0459-I-1 (2/2/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 5151 (Feb. 5, 2007)
OPM issued final regulations to rewrite certain sections of the Federal
regulations in plain language. These final regulations require Federal agencies
to provide employees entering LWOP status, or whose pay is insufficient to
cover their Federal Employees Health Benefits (FEHB) premium payments,
written notice of their opportunity to continue their FEHB coverage.
Employees who want to continue their enrollment must sign a form agreeing
to pay their premiums directly to their agency on a current basis, or to incur a
debt to be withheld from their future salary.
11 | 25,794 | |
Case_Report_February_9_2007c | 02-09-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_9_2007c_255136.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_9_2007c_255136.pdf | CASE REPORT DATE: February 9, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Muyco v. Office of Personnel Management,
MSPB Docket No. SF-0831-06-0492-I-1
February 1, 2007
Jurisdiction
- Miscellaneous
Retirement
- Procedures/Miscellaneous
HOLDING: OPM’s written response informing the appellant that it
would not revisit its prior, final decision, was not a new appealable
decision over which the Board has jurisdiction. OPM did not err or
abuse its discretion in refusing to issue a new decision simply because the
appellant is dissatisfied with OPM’s prior final decision.
The appellant applied to the Office of Personnel Management (OPM) for
a Civil Service Retirement System (CSRS) annuity, which OPM denied. The
appellant filed a late request for reconsideration, which OPM denied as
untimely. The appellant appealed to the Board and OPM’s final decision was
affirmed by initial decision and his petition for review was denied by the
Board. Undeterred, the appellant requested a new decision from OPM, citing
new legal argument. OPM refused to issue a new decision and informed the
appellant, by letter, that no law or circumstance had changed to make the
appellant entitled to an annuity and informed him that OPM would not be
issuing a new decision. The appellant filed an appeal with the Board,
characterizing this letter as a new final decision by OPM. The administrative
judge (AJ) did not recognize the letter as a new decision, treated the appeal as
stemming from OPM’s earlier final decision, and dismissed the appeal as res
judicata. The appellant petitioned for review.
The Board affirmed the AJ’s dismissal for res judicata and reopened on
its own motion to consider the appellant’s argument that OPM’s letter
constituted a new appealable decision. Treated as such, the Board found that
OPM’s letter did not constitute a new decision on the merits of the appellant’s
claim and so dismissed the appeal for lack of jurisdiction. The letter
specifically stated that OPM would not issue a new decision because no law
or circumstance had changed affecting the appellant’s lack of entitlement to
an annuity. The appellant submitted no new evidence and was simply making
new legal argument, which he should have raised before OPM at the time of
his original application. There was no legal error or abuse of discretion in
OPM’s refusal to issue a new decision simply because the appellant appears
dissatisfied with OPM’s prior decision.
Special Counsel v. Phillips and The Jackson County Sheriff Department and Jackson
County, Missouri,
MSPB Docket No. CB-1216-06-0010-T-1
February 1, 2007
Special Counsel Actions
- Hatch Act
HOLDING: The Board denied the PFR for failure to meet the review
criteria. Vice Chairman Rose dissented.
Vice Chairman Rose dissented stating that she disagreed with the holding
of the administrative law judge below that the Office of Special Counsel had
failed to prove that the respondent agency was within the executive branch of
the county.
Moorer v. Office of Personnel Management,
MSPB Docket No. DA-844E-05-0560-I-1
February 2, 2007
Jurisdiction
- Resignation/Retirement/Separation
HOLDING: The AJ’s dismissal for lack of jurisdiction was erroneous
because it was based upon both parties incorrectly stipulating that OPM
had not issued a reconsideration decision; OPM had issued a
reconsideration decision at the time. Despite the untimeliness of the
appellant’s PFR, the proper remedy was for the Board to reopen the
appeal and remand it for adjudication.
The appellant filed a “request for reconsideration” with the Board’s
Dallas Regional Office on August 5, 2005, regarding the denial by the Office
of Personnel Management (OPM) and the Social Security Administration of
disability benefits. The appellant then stated this was not intended as an
appeal, as he was awaiting OPM’s reconsideration decision. OPM moved to
2
dismiss the appeal for lack of jurisdiction because it had not issued a final
decision. As both parties agreed that OPM had not yet issued a final decision,
the AJ dismissed the appeal on September 6, 2005. On September 5, 2006,
the appellant sent another submission to the Board’s Dallas office, which was
forwarded to the Clerk of the Board as a petition for review (PFR). On PFR,
OPM submitted a copy of its April 25, 2005 reconsideration decision denying
the appellant’s disability retirement application and admitted that it had
erroneously stated to the AJ that it had not issued a final decision at the time
of the appellant’s appeal.
The Board vacated the initial decision dismissing the appeal for lack of
jurisdiction because OPM had issued a final decision at the time of the
appellant’s appeal and remanded the appeal to the AJ for adjudication,
including whether the appellant’s August 5, 2005 appeal was timely given the
date of OPM’s April 25, 2005 reconsideration decision.
Nakshin v. Department of Justice,
MSPB Docket No. NY-0731-03-0145-B-2
February 2, 2007
Miscellaneous Agency Actions
- Suitability
HOLDING: The Board’s holding in Duggan v. Department of the Interior,
98 M.S.P.R. 666 (2005), is overruled. To establish Board jurisdiction, an
appellant need not show that an agency’s reasoning in its suitability
determination falls within one of the specific categories discussed in
5 C.F.R. § 731.202(b).
The Board denied the agency’s petition for review (PFR) but reopened
the appeal on its own motion to clarify the Board’s suitability case law.
In
Duggan v. Department of the Interior, 98 M.S.P.R. 666 (2005), aff’d, 190 F.
App’x 963 (2006), the Board stated that to prove jurisdiction, an appellant
must show, inter alia, that “his nonselection for the position was based on the
agency’s determination that he was unsuitable due to one or more of the
factors set forth under 5 C.F.R. § 731.202.” Duggan, 98 M.S.P.R. 666, ¶ 7
(emphasis added). In other words, Duggan held that the agency’s reasoning
for its nonselection must fall within one of the specific categories in 5 C.F.R.
§ 731.202(b) to be characterized as a constructive suitability determination
over which the Board has jurisdiction. This holding was contrary to the
Board’s prior case law and is overruled.
3
Paderes v. Office of Personnel Management,
MSPB Docket No. CB-1205-06-0019-U-1
February 5, 2007
Defense and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
Miscellaneous Topics
- Regulation Review
HOLDING: Petitioner’s challenge to an OPM regulation was precluded
by res judicata because he could have asserted the argument in his prior
appeal of OPM’s denial of his CSRS annuity application.
The petitioner, a former long-time temporary employee of the Department
of the Navy, was denied a Civil Service Retirement System (CSRS) annuity by
the Office of Personnel Management (OPM). The Board and the Federal
Circuit Court of Appeals affirmed OPM’s denial. The petitioner then
requested the Board review OPM’s regulation at 5 C.F.R. § 831.201(a)(13),
which excludes non-permanent indefinite appointments from CSRS coverage.
The Board denied the request as precluded by res judicata because the
appellant was simply seeking to relitigate, in the guise of challenging an OPM
regulation, the issue in his prior appeal of his entitlement to an annuity.
Schaberg v. U.S. Postal Service,
MSPB Docket No. SF-0752-06-0367-I-2
February 5, 2007
Board Procedures
- Representation
- Withdrawal of Appeal/PFR
HOLDING: The Board dismissed the PFR as deficient because it was
signed only by the appellant’s former representative, not the appellant,
who had previously revoked his designation of a representative.
The appellant appealed his removal but after a hearing, while the appeal
was still pending, the appellant requested to withdraw his appeal and revoked
the designation of Mr. J. Byron Holcomb as his representative. The
administrative judge (AJ) found the appellant’s request voluntary and
dismissed the appeal as withdrawn. Mr. Holcomb filed a petition for review
(PFR) arguing that the appellant was not competent to either withdraw his
appeal or discharge his counsel and requesting that the appeal be reinstated.
The Board dismissed the PFR as deficient because it was signed by
neither the appellant nor the appellant’s designated representative. Mr.
Holcomb, who signed the PFR, was no longer the appellant’s designated
representative following the appellant’s revocation of his designation.
4
Vergara v. Office of Personnel Management,
MSPB Docket No. CB-1205-06-0022-U-1
February 5, 2007
Miscellaneous Topics
- Regulation Review
HOLDING:
The petitioner requested Board review of the validity of the Office of
Personnel Management (OPM) regulation at 5 C.F.R. § 831.201(a)(13), which
excludes from Civil Service Retirement System (CSRS) coverage employees
serving under excepted, indefinite appointments. The petitioner argued that
the regulation is not in accordance with 5 U.S.C. § 8347(g), which authorizes
OPM to exclude from CSRS coverage employees whose appointment is
temporary or intermittent, and Executive Order 9154.
The Board may invalidate OPM regulations if the implementation of
those regulations would result in a prohibited personnel practice; however,
the petitioner failed to show how the regulation, on its face or as
implemented, would result in a prohibited personnel practice. Despite this,
the Board denied review on other, more compelling grounds.
The Board considers four factors in deciding whether to grant regulation
review: (1) The likelihood of resolution of the issue through other channels;
(2) The availability of other equivalent remedies; (3) the extent of the
regulation’s application; and (4) the strength of the arguments against its
validity. First, the petitioner has an alternate remedy by pursuing his alleged
entitlement to a CSRS annuity; this action appeared to be such a claim in the
guise of a request for regulation review. Second, the appellant’s arguments
regarding the validity of the regulation were weak because they have already
been addressed and rejected by the Federal Circuit Court of Appeals in Rosete
v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995) and the
Board in Tabradillo v. Office of Personnel Management, 93 M.S.P.R. 257
(2003). Accordingly, the Board rejected the petitioner’s request for review.
Trachtenberg v. Department of Defense,
MSPB Docket No. PH-0351-06-0019-I-1
February 6, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
- Withdrawals of Appeal/PFR
Timeliness
- Miscellaneous
HOLDING: The appellant failed to show good cause for the delay in
filing a PFR and the Board declined to reopen her withdrawn appeal
5
because of the substantial delay in requesting reopening and because
there was no error to cure that implicated her basic rights and threatened
a manifest injustice.
The appellant withdrew her initial appeal and the administrative judge
(AJ) dismissed her appeal as withdrawn in November, 2005. She filed a
petition for review (PFR) in October 2006. The Board denied her PFR as
untimely filed without good cause for the delay because she failed to show
that the delay was due to circumstances beyond her control.
Because the appellant withdrew her appeal the Board also treated her
PFR as a request to reopen that appeal. The Board’s authority to reopen a
case is limited by the requirement that such authority be exercised within a
reasonably short period of time, which the delay in this case was not. In
addition, given that this case did not involve an error that implicates the
appellant’s basic rights, threatening a manifest injustice, the Board declined
to exercise its authority to reopen the appeal.
Johnson v. Department of Justice,
MSPB Docket No. DC-1221-06-0388-W-1
February 6, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
Board Procedures/Authority
- Discovery
HOLDING: The Board has jurisdiction over an IRA appeal if the
appellant has exhausted his remedies before OSC and makes nonfrivolous
allegations that he made a protected disclosure that was a contributing
factor in the agency’s decision to take a personnel action. A motion to
compel must state how the information sought is relevant and material
and be accompanied by a sworn statement that no response to the
discovery request was received. In an IRA appeal, the Board lacks
jurisdiction to also adjudicate the merits of the agency’s personnel action.
The agency suspended the appellant for 14 days for conducting an
unauthorized investigation, misuse of position, and lack of candor. At the
same time the agency also reassigned the appellant. The appellant
complained to the Office of Special Counsel (OSC) alleging that these actions
were in retaliation for several protected disclosures he had made. The AJ
dismissed the appellant’s individual right of action (IRA) appeal for lack of
jurisdiction because the appellant failed to prove, by preponderant evidence,
whistleblowing and retaliation.
The Board reversed the initial decision and remanded the appeal for a
hearing and adjudication on the merits.
The AJ erroneous applied the now
defunct jurisdictional standard in Geyer v. Department of Justice, 63 M.S.P.R.
6
13 (1994), of proof by preponderant evidence of whistleblowing and
retaliation.
The correct standard is nonfrivolous allegations, as explicated in
Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) and
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002), which
overruled Geyer. The Board applied the correct standard and found that the
appellant had established jurisdiction with respect to only one of his fifteen
alleged disclosures. With respect to this one disclosure, the appellant had
exhausted his remedies via OSC and had made a nonfrivolous allegation that
the disclosure was protected and contributed to the agency’s personnel action
against him.
The Board also found that the AJ did not err in failing to rule on the
appellant’s motion to compel because it was not accompanied by a sworn
statement that no response was received and did not state how the information
sought was relevant and material. Nor did the AJ err in failing to address the
appellant’s allegations that the agency committed harmful procedural error in
the disciplinary actions taken against him because, in an IRA appeal, the
Board lacks jurisdiction to also adjudicate the merits of the agency’s
personnel action.
Hesse v. Department of the Army,
MSPB Docket No. AT-3443-05-0936-I-1
February 6, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
- Statutory/Regulatory/Legal Construction
HOLDING: “Active duty” for purposes of preference eligibility as a
“disabled veteran” under 5 U.S.C. § 2108(2) may consist entirely of
service for training purposes.
The appellant was tentatively selected for a security guard position that,
by statute, may be filled only by preference eligible veterans. Prior to his
appointment, however, the agency concluded that the appellant was not
preference eligible because, although he served on active military duty, was
honorably discharged, and had a service-connected disability, his active duty
service was only for training purposes. The appellant filed a complaint with
the Department of Labor (DOL), which concurred with the agency, and then
an appeal with the Board under the Veterans Employment Opportunities Act
of 1998 (VEOA). The administrative judge (AJ) concurred with the agency’s
determination and denied the appellant’s request for relief. On petition for
review (PFR) the Board reversed the initial decision (ID), finding that the
appellant met the definition of a “disabled veteran” under 5 U.S.C. § 2108(2)
and so was preference eligible. Vice Chairman Rose dissented.
“Disabled veteran” is defined in 5 U.S.C. § 2108(2) as “an individual
who has served on active military duty in the armed forces, has been
7
separated therefrom under honorable conditions, and has established the
present existence of a service-connected disability …” The parties stipulated
that the appellant facially met all these requirements but also that his active
duty service was only for training purposes. The agency argued that this does
not constitute “active duty” under the statute, referring to the definition of
“active duty” at 38 U.S.C. § 101(21), which specifically excludes active duty
for training. However, unlike 5 U.S.C. §§ 2108(1)(B)-(D), which define
“active duty” by reference to 38 U.S.C. § 101(21), the separate section
defining a “disabled veteran,” at 5 U.S.C. § 2108(2), includes no such
reference to 38 U.S.C. § 101(21). Additionally, nothing in 38 U.S.C.§ 101
makes it generally applicable to Title 5 in general or 5 U.S.C. § 2108 in
particular. Rather, 38 U.S.C. § 101 states that its definitions apply for
purposes of Title 38. Therefore, the provision limiting the definition of
“active duty” in 5 U.S.C. §§ 2108(1)(B)-(D) does not apply to the definition
of “disabled veteran” at 5 U.S.C. § 2108(2). Nothing in the statute’s
legislative history indicates that the omission of this limitation in section
2108(2) by Congress was anything but intentional.
The agency also relied in its argument on Broussard v. U.S. Postal
Service, 674 F.2d 1103 (5th Cir. 1982), which held that, to qualify as
preference eligible, disabled veterans must have served on active duty for
purposes other than training, citing to the Federal Personnel Manual (FPM).
The Board distinguished Broussard, because the 5th Circuit’s holding appears
to rely on a finding that the appellant lacked a service-connected disability.
Regardless, the 5th Circuit decision in Broussard, and the underlying decision
of the U.S. Civil Service Commission, the board’s predecessor, are not
binding on the Board.
The agency also cited OPM’s regulations at 5 C.F.R. § 211.102, which
define active duty as “full-time duty … in the armed forces, except for
training …” The Board declined to grant Chevron deference to OPM’s
interpretation of the statute here because it found Congress’s intent clear such
that OPM’s interpretation was inconsistent with the statutory language and
legislative history of 5 U.S.C. § 2108(2). Therefore, the Board concluded that
“active duty,” as that term is used in 5 U.S.C. § 2108(2), may consist entirely
of service for training purposes such that the appellant in this case was a
“disabled veteran” and preference eligible. The appropriate relief in this case
was to reconstruct the selection process because, although the appellant had
been tentatively selected, the record did not establish that he would have been
appointed.
Vice Chairman Rose dissented, stating that the statute unambiguously
limits the term “veteran” to those who have served in active duty for other
than training purposes. The Vice Chairman stated that, under the “whole act
rule” of statutory construction, failing to read 5 U.S.C. § 2108(2) in light of
the subsections around it leads to incoherence. Applying the normal rule of
statutory construction, that identical words in different parts of the same act
should be read to have the same meaning, the Vice Chairman would have
8
found that a “disabled veteran” must meet the definition of a “veteran,” which
requires active duty other than training. Finally, Vice Chairman Rose stated
that the statutory language is not unambiguous and that the Board should
therefore defer, under Chevron, to OPM’s interpretation in its regulations at
5 C.F.R. § 211.101.
Donati v. Office of Personnel Management,
MSPB Docket No. PH-0843-05-0336-N-1
February 7, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
HOLDING: The Board granted OPM’s request for a stay pending the
Board’s decision on the merits of OPM’s request for reconsideration.
The Office of Personnel Management (OPM) petitioned the Board for
reconsideration of its decision on the merits of this case and also requested a
stay of the Board’s decision pending resolution of OPM’s request for
reconsideration. The Board considered the four factors that guide it in
deciding whether to exercise its discretion to grant a stay.
First, the Board found that OPM presented a serious legal argument on
the merits. Second, OPM demonstrated that it would be irreparably harmed
by the loss of limited appropriated funds that would be diverted to
adjudicating claims similar to the appellant’s and potentially then incurring
the cost of having to seek recoupment of those funds should the Board’s
decision be overturned. Third, although a stay will delay the appellant’s
receipt of benefits, the harm to her would not be substantial because the
Board did not foresee a protracted delay before ruling on the merits and the
appellant would be exposed to the risk of having to repay any payments
received anyway. Fourth and final, the public interest favored granting the
stay because public funds should not be spent unnecessarily and requiring
OPM to immediately adjudicate similar claims, when the outcome of this case
may effect OPM’s decisions and payments, could lead to the unnecessary
expenditure of more government resources. Therefore, the Board stayed
OPM’s obligation to comply with its decision in Donati v. Office of Personnel
Management, 104 M.S.P.R. 30 (2006), pending resolution of OPM’s petition
for reconsideration.
EEOC DECISIONS
The Equal Employment Opportunity Commission (EEOC) concurred with the
Board’s final decision in the following mixed appeals:
Dedrick v. Office of Personnel Management, EEOC No. 0320070033 (1/25/07)
MSPB Docket No. PH-831E-06-0483-I-1
Moncrieffe v. Department of Health & Human Services, EEOC No. 0320070030
9
(1/30/07)
MSPB Docket No. DC-0752-06-0552-I-1
Hester v. Department of the Interior (Commission of Fine Arts), EEOC No. 0320070038
(1/31/07)
MSPB Docket No. DC-0752-06-0443-I-1
COURT DECISIONS
Parrish v. Merit Systems Protection Board
Fed. Cir. No. 2006-3054; MSPB Docket No. DE-0351-05-0293-I-1
February 7, 2007
Board Procedures/Authorities
- Authority of Administrative Judge/Board
Jurisdiction
- Miscellaneous
Miscellaneous Topics
- Statutory/Regulatory/Legal Construction
HOLDING: The Board has the authority and the obligation to determine
its own jurisdiction and a full and careful analysis of an agency’s
implementation of an independent personnel system that purportedly
strips the Board of its jurisdiction is a necessary and appropriate part of
the Board’s determination of its own jurisdiction.
The appellant, an employee of Southwestern Indian Polytechnic Institute
(SIPI), appealed his removal by reduction in force (RIF). The Department of
the Interior (DOI), SIPI’s parent agency, moved to dismiss the appeal for lack
of jurisdiction because SIPI, under a statutory authorized demonstration
project, had implemented an independent personnel system that had removed
Board jurisdiction over RIFs, replacing it with a negotiated-grievance
procedure. The appellant argued that SIPI had failed properly implement its
personnel system under the authorizing statute such that the Board retained
jurisdiction. The administrative judge (AJ) found that SIPI had failed to
publish its plan in the Federal Register, as required by the statute, such that it
was ineffective and the appellant retained his Board appeal rights. On
interlocutory appeal, the Board reversed and dismissed the appeal finding that
the Board lacked jurisdiction and lacked authority to enforce the procedural
requirements of SIPI’s authorizing statute.
The Court vacated the Board’s decision, finding that the Board has the
authority and the obligation to determine its own jurisdiction over a particular
appeal and that it failed to do so here. The Board’s jurisdiction in this case
turns on whether SIPI followed the required statutory procedure to eliminate
Board jurisdiction, as DOI contends, or whether it failed to do so, as the
appellant contends. The Board did not resolve this issue. A full and careful
analysis of SIPI’s actions is a necessary and appropriate part of the Board’s
10
determination of its own jurisdiction, not an unwarranted attempt to enforce
SIPI’s authorizing statute. On remand, the Board should determine if SIPI
satisfied the statutory requirements for effecting its personnel system and, if
not, determine whether such non-compliance vitiated SIPI’s supersession of
the Board’s jurisdiction.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Bagbee v. U.S. Postal Service, 06-3405, SF-0752-06-0336-I-1 (2/6/07)
Abadia v. Office of Personnel Management, 06-3297, DC-0831-03-0453-I-1 (2/6/07)
Chambers v. Department of the Interior, 06-3414, AT-0831-05-0395-I-2 (2/6/07)
The following appeals were dismissed:
Cuellar v. Department of Homeland Security, 07-3074, DA-0752-06-0283-I-1 (2/1/07)
Sheppard v. Department of the Air Force, 07-3078, AT-3443-06-0791-I-1 (2/5/07)
Matos v. U.S. Postal Service, 07-3082, PH-0353-06-0498-I-1 (2/5/07)
A petition for rehearing was denied in the following cases:
Casimier v. Office of Personnel Management, 06-3143, DA-831E-04-0459-I-1 (2/2/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 5151 (Feb. 5, 2007)
OPM issued final regulations to rewrite certain sections of the Federal
regulations in plain language. These final regulations require Federal agencies
to provide employees entering LWOP status, or whose pay is insufficient to
cover their Federal Employees Health Benefits (FEHB) premium payments,
written notice of their opportunity to continue their FEHB coverage.
Employees who want to continue their enrollment must sign a form agreeing
to pay their premiums directly to their agency on a current basis, or to incur a
debt to be withheld from their future salary.
11 | 25,889 | |
Case_Report_February_1_2007 | 02-01-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_1_2007_255134.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_1_2007_255134.pdf | CASE REPORT DATE: February 2, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Galwey v. U.S. Postal Service,
MSPB Docket No. AT-0752-06-0045-I-1
January 26, 2007
Retirement - Disability Retirement
Board Procedures/Authorities - Miscellaneous
HOLDING: The Board suspended its consideration of the appellant’s
PFR of the ID that affirmed his removal and remanded the appeal to the
regional office for the AJ to determine whether the agency has a duty to
file a disability retirement application on the appellant’s behalf.
The agency proposed the appellant’s removal based on charges of failure
to be regular in attendance and failure to provide medical documentation or
other acceptable evidence. After the agency issued its decision to remove the
appellant, he filed a grievance that the parties settled by agreeing, in part, that
the appellant would immediately submit a release of his medical records to
the agency, authorizing the agency to send a copy of his medical records and
pertinent information to a pre-designated psychiatrist. The agency, citing the
appellant’s failure to provide a medical release, removed the appellant in
September 2005 based on his noncompliance with the settlement agreement.
The appellant appealed to the Board, and the AJ affirmed the appellant’s
removal and denied his affirmative defenses.
On review, the Board found that the medical evidence raised questions
regarding the appellant’s ability to work, his competence to file a disability
retirement application, and the agency’s possible responsibility for filing a
disability retirement application on the appellant’s behalf. Both the Civil
Service Retirement System and the Federal Employees’ Retirement System
mandate that an agency file a disability retirement application on an
employee’s behalf where the employee meets the service requirements for a
disability retirement annuity and where the following circumstances are met:
(1) The agency has issued a decision to remove the employee; (2) the agency
concludes, after its review of medical documentation, that the cause for the
employee’s unacceptable performance, attendance or conduct is disease or
injury; (3) the employee is institutionalized, or the agency concludes, based
on its review of medical and other information, that the employee is incapable
of making a decision to file an application for disability retirement; (4) the
employee has no personal representative or guardian; and (5) the employee
has no immediate family member who is willing to file an application on his
behalf. Given the medical evidence, the Board ordered the agency to show
cause why the Board should not order it to file and prosecute to conclusion an
application for disability retirement on the appellant’s behalf.
The Board found that the agency failed to show cause why this case
should not be remanded for further proceedings. The Board also found that
the agency should have concluded that the appellant was incapable of making
a decision to file a disability retirement application based on the
October 2003 psychiatric evaluation, in which the appellant was diagnosed as
suffering from Delusional Disorder and a high level of paranoia that could,
instead, be Chronic Paranoid Schizophrenia.
The Board next found that, based on the record before the Board, it could
not determine whether the remaining circumstances exist that would require
the agency to act on the appellant’s behalf by filing a disability retirement
application for him, i.e., whether the cause of the appellant’s removal was
actually his mental condition, whether the appellant has a personal
representative or guardian, and whether the appellant has no immediate
family member who is willing to file an application on his behalf. The Board
therefore remanded the appeal for the AJ to determine whether the agency has
a duty to file a disability retirement application on the appellant’s behalf.
Accordingly, the Board suspended its consideration of the appellant’s PFR.
McIntosh v. Office of Personnel Management,
MSPB Docket No. AT-831M-06-0461-I-1
January 31, 2007
Board Procedures/Authorities
- Reopening and Reconsideration
Retirement – Annuity Overpayment
HOLDING: The Board sua sponte reopened the appeal to address the
Board’s jurisdiction where the issue was wrongly decided in the initial
decision; the Board has jurisdiction over the appellant’s claim that OPM
2
should waive recovery of the overpayment that arose when OPM failed to
withhold from her annuity the correct amount for her life insurance
premiums even though the Board lacks jurisdiction over the overpayment
determination itself.
The appellant is an annuitant under the Civil Service Retirement System
Offset. The Office of Personnel Management (OPM) failed to withhold from
her annuity the correct amount for her life insurance premiums for 9 years.
As a result, OPM found that she had been overpaid $5,336.34, and scheduled
an installment plan for her to repay that sum. The appellant asked OPM to
waive the requirement that she repay the overpayment. OPM found that she
was not completely without fault for the overpayment, and thus she did not
meet the eligibility requirements for waiver. The appellant filed this appeal
with the Board, asking that it find that she qualified for a waiver. OPM
moved to dismiss the appeal for lack of Board jurisdiction, arguing that the
overpayment arose from an insurance matter, rather than overpayment of an
annuity per se. The administrative judge (AJ) dismissed the appeal for lack
of jurisdiction.
Because the appellant’s petition for review did not address the issue of
jurisdiction, the Board denied it. However, the Board reopened the case
because the issue of jurisdiction was wrongly decided.
In finding that the
Board lacks jurisdiction in this appeal, the AJ relied on Miller v. Office of
Personnel Management, 449 F.3d 1374, 1378-79 (Fed. Cir. 2006), for the
proposition that the Board cannot decide appeals when they arise from OPM’s
collection efforts for insurance matters.
He noted that the court in Miller had
relied upon Campbell v. Office of Personnel Management, 90 M.S.P.R. 68
(2001). The Board, however, distinguished this case from Campbell, because
here, unlike in Campbell, the appellant sought review of OPM’s refusal to
waive recovery of the overpayment, rather than contesting OPM’s
determination that she had been overpaid.
The Board, instead, relied on Mitchell v. Office of Personnel
Management, 97 M.S.P.R. 566 (2004), a case in which the annuitant also
sought review of OPM’s refusal to waive recovery of the overpayment
resulting from OPM’s failure to deduct from his annuity the correct amount
for life insurance premiums. In Mitchell, the Board found that it has
jurisdiction to review OPM’s final decisions on requests that recovery of
annuity overpayments be waived, even when it lacks jurisdiction to consider
the propriety of the overpayment determination itself. Therefore, the Board
found in this case that it has jurisdiction to review the appellant’s claim that
OPM should waive recovery of the overpayment. Accordingly, the Board
vacated the initial decision and remanded the case for adjudication of that
matter.
3
Davenport v. Department of Justice,
MSPB Docket No. AT-3443-06-0489-I-1
January 30, 2007
Miscellaneous Topics – USERRA/VEOA/Veterans’ Rights
HOLDING: Where the appellant did not show that she was forced to use
annual leave or leave without pay, in lieu of military leave, as a result of
the agency’s improper administration of military leave, the Board denied
her request for corrective action under USERRA.
In this USERRA appeal, the appellant asserted that the agency charged
her military leave account from 1992 to 2001 for absences on nonworkdays in
violation of Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir.
2003). She asserted that the improper charging caused her to use annual,
sick, or leave without pay to perform military duty. The administrative judge
(AJ) found that the appellant showed that the agency had not restored the 4
days of military leave that it charged her on June 19 and 20, 1999, and June
24 and 25, 2000, when she was not scheduled to work in her civilian capacity,
and, thus, ordered the agency to correct its records to show that the 4 days
were “covered by military leave.” The AJ also found that the appellant’s
submissions were insufficient to show that the agency improperly charged her
military leave or required her to use other leave to perform military duty on
any other dates. Thus, the AJ apparently dismissed the appellant’s argument
concerning any days other than June 19 and 20, 1999, and June 24 and 25,
2000, for failure to state a claim upon which relief may be granted.
The Board denied the appellant’s petition for review, reopened the case
on its own motion, affirmed the initial decision as modified, and denied the
appellant’s request for corrective action. Because USERRA does not grant
the Board the authority to order compliance with the military leave law, the
Board found that the AJ erred in ordering the agency to correct its records
with regard to the military leave charged to the appellant on June 19 and 20,
1999, and June 24 and 25, 2000. Rather, the appropriate remedy in such a
case is to order compensation for any annual leave or leave without pay the
appellant was forced to use as a result of the agency’s improper
administration of military leave. Next, the Board found that the AJ erred to
the extent that he dismissed the appellant’s claims concerning days other than
June 19 and 20, 1999, and June 24 and 25, 2000, for failure to state a claim
upon which relief may be granted because, taking as true the allegations in
her complaint, it is not beyond doubt that the appellant could not prove a set
of facts in support of her claim which would entitle her to relief.
The Board next addressed whether the appellant proved that she was
forced to use any annual leave or leave without pay because of the agency’s
improper administration of military leave. First, the Board found that the AJ
4
sufficiently put the appellant on notice that she was required to show that, as
a result of the agency’s improper administration of military leave, she was
forced to use annual leave or leave without pay to fulfill her military duties.
Second, the Board found that the appellant’s military reserve point statement,
time and attendance information, performance appraisals, and affidavit were
insufficient to prove that she is entitled to corrective relief for any of the days
she claimed other than June 19 and 20, 1999, and June 24 and 25, 2000.
Third, the Board found there is no meaningful relief for the appellant to
obtain concerning June 19 and 20, 1999, and June 24 and 25, 2000, because
the appellant did not exhaust her military leave in 1999 and 2000. Even if she
could have rolled over the 4 days into the following years, it would not have
changed her balance because the government stopped charging military leave
for nonworkdays in 2000. Further, the evidence does not establish that the
appellant was forced to use any other leave as a result of being charged
military leave for nonworkdays. Accordingly, the Board denied the
appellant’s request for corrective action.
Thompson v. Department of the Air Force,
MSPB Docket No. SF-0752-06-0219-I-1
January 25, 2007
Adverse Action Charges - Miscellaneous
HOLDING: The Board deferred to the agency’s determination that an
Air Traffic Control Specialist (ATCS) certificate was a necessary
condition of the appellant’s ATCS (Terminal) position.
The agency removed the appellant, an Air Traffic Control Specialist
(Terminal), for failure to maintain an Air Traffic Control Specialist (ATCS)
certificate. The appellant appealed his removal and raised affirmative
defenses of whistleblowing reprisal and harmful error. The administrative
judge (AJ) postponed the appellant’s requested hearing in order to first
determine whether the ATCS certificate was a necessary condition of
employment for the appellant’s position. The AJ then found that the agency
failed to show that the ATCS certificate was a necessary condition of the
appellant’s position, and, thus, reversed the removal action.
On petition for review, the Board found that the AJ did not order interim
relief, and that, in any event, the agency showed compliance with any such
order. With regard to the ATCS certificate, absent evidence of bad faith or
patent unfairness, the Board defers to the agency’s determination as to the
requirements that must be fulfilled in order for an individual to qualify for
appointment to a particular position, and to retain that position. Here, the
Board deferred to the agency’s determination that an ATCS certificate was a
necessary condition of the appellant’s position because: The appellant’s
position description and the agency’s regulations clearly state that an
5
occupant of the position is required to hold an ATCS certificate; withdrawal
of the appellant’s ATCS certificate was directly related to his qualifications
to perform the duties of his position; and the appellant did not present any
evidence of bad faith or patent unfairness. Thus, the agency properly
required that the appellant hold an ATCS certificate as a necessary condition
of his employment. The Board therefore reversed the initial decision and
remanded this case to the regional office for the appellant’s requested
hearing.
Manning v. Department of Homeland Security,
MSPB Docket No. AT-0432-05-0583-I-2
January 26, 2007
Performance-Based Actions
- Unacceptable Performance - Proof
HOLDING: Where the PIP established the quantity and quality of
the appellant’s performance required under the critical element as no
more than 2 incidents of failure, the agency was required to prove that
the appellant committed more than 2 failures within a 90-day period, and
the AJ erred in finding that the agency established the appellant’s
unsatisfactory performance on just 2 incidents of such failure.
The appellant, a Supervisory General Engineer, was placed on a
performance improvement plan (PIP) as a consequence of his “fails to meet”
rating on the supervisory leadership critical element. The PIP letter set forth
the following standard as the acceptable error rate under that critical element
during the 90-day PIP period: (1) No more than 2 incidents of failure to meet
the requirements of the supervisory leadership critical element that result in a
negative impact on meeting project timeliness or project costs; or (2) no more
than 4 incidents of failure to meet the requirements of that critical element
that do not result in a negative impact on meeting such goals. The agency
subsequently removed the appellant for unacceptable performance in the
critical element of supervisory leadership, charging that during the PIP
period, 5 incidents occurred that met the first category of errors and 3
incidents occurred that met the second category of errors set forth in the
appellant’s PIP letter. The appellant opted for a discontinued service
retirement in lieu of the involuntary action of removal.
On appeal, the AJ issued an initial decision affirming the appellant’s
removal. The AJ found in pertinent part that the agency established 2 out of
the 5 alleged incidents of failure of the appellant’s supervisory leadership
under the first category of errors set forth in his PIP. The AJ did not make
findings on any of the 3 remaining incidents which were alleged by the
agency as belonging to the first category of errors, noting that, because the
agency could prove its charge of unsatisfactory performance based upon 2
6
failures of supervisory leadership in the first category of errors, he need not
address the other 3 incidents. The AJ also made no findings regarding the 3
incidents that the agency alleged in the second category of errors.
The Board granted the appellant’s petition for review and vacated the
initial decision, finding that the agency was required to prove that the
appellant committed more than 2 failures within a 90-day period in order to
prove that the appellant failed to perform acceptably under the supervisory
leadership critical element. The Board thus determined that the AJ
erroneously found that the agency established the appellant’s unsatisfactory
performance on just 2 incidents of failure to meet the requirements of the
supervisory leadership critical element under the first category of errors.
Accordingly, the Board remanded the appeal for findings on whether the
agency proved any of the 3 remaining incidents alleged by the agency as
belonging to the first category of errors.
The Board rejected the agency’s suggestion that, upon remand, the AJ,
if he finds that these incidents would not have resulted in a negative impact
on project timeliness or project cost, can consider the incidents charged under
the first category of errors as incidents meeting the lower threshold of the
second category of errors because the Board is required to review the agency's
decision on an adverse action solely on the grounds invoked by the agency.
In addition, because the findings regarding the other 3 incidents charged
under the first category of errors may require the AJ to make credibility
findings, the Board rejected the agency’s invitation to make such findings
without remanding this appeal to the regional office.
Pignataro v. Department of Veterans Affairs,
MSPB Docket No. AT-0752-05-0404-I-1
February 1, 2007
Hearings - Waiver
Board Procedures/Authorities
- Pro Se Appellants
- Sanctions
HOLDING: The AJ erred in finding that the appellant waived her right
to a hearing where the appellant was pro se, there was no written or other
record of a waiver, and the appellant’s actions contradicted the AJ’s
assertion that she waived her right to a hearing and showed that she tried
to exercise her right to a hearing; denial of the appellant’s requested
hearing as a sanction for failing to file a prehearing submission was
unwarranted where the Board could not find in her conduct any
negligence or abuses that would rise to the level of extraordinary
circumstances.
7
This pro se appellant filed an appeal of her removal. After finding that
she had waived her right to a hearing, the administrative judge (AJ)
adjudicated her appeal based on the parties’ written submissions, affirming
the agency’s action.
The Board granted the appellant’s petition for review and vacated the
initial decision, finding that the record did not show that the appellant waived
her right to a hearing by either knowingly taking a clear, unequivocal, or
decisive action, or by committing an act that would amount to estoppel on her
part. There was no written waiver in the record, the AJ did not record the
status conference, and the AJ’s comments concerning an alleged waiver were
too abbreviated. The Board found that, although the appellant did not handle
her appeal flawlessly, her actions directly contradicted the AJ’s assertion that
she waived her right to a hearing and showed that she tried to exercise her
right to a hearing. The Board noted the appellant’s pro se status and stated
that the policy considerations in favor of holding a hearing are not easily
defeated.
The Board further found that, to the extent the AJ denied the appellant a
hearing as a sanction for failing to file a prehearing submission, such a
sanction was not warranted because it could not find in the appellant’s
conduct any negligence or abuses that would rise to the level of extraordinary
circumstances. Although the appellant might have been more diligent in
prosecuting her appeal, her hospitalization and the effects of Hurricane
Wilma serve to mitigate her deficiencies, and the appellant eventually filed an
extensive submission. Under these circumstances, the Board was compelled
to resolve any doubts in the appellant’s favor and to remand the appeal for a
hearing.
George v. Department of the Army,
MSPB Docket No. SF-0752-06-0316-I-1
February 1, 2007
Adverse Action Charges
- Falsification/Fraud
- Miscellaneous/Procedures
Penalty - Miscellaneous
HOLDING: Based on the language of the charge and the narrative
description in the proposal letter, the Board found that to prove the
charge of Allowing False Time Cards to be Processed Resulting in Over
Payment for Unearned Overtime for Yourself and Subordinates, the
agency had to show that the time cards were false, not merely incorrect,
and that the appellant intentionally allowed the false time cards to be
processed; a reduction-in-grade penalty was appropriate and justified for
8
the sustained charge of Retaliatory Behavior Directed Against a
Subordinate for Protected Activity.
The agency reduced the appellant in grade from a GS-8 Supervisory
Firefighter to a GS-7 Firefighter based on the following charges:
(1) Allowing False Time Cards to be Processed Resulting in Over Payment
for Unearned Overtime for Yourself and Subordinates; (2) Falsification of the
Official Fire Department Incident Report, dated October 13, 2004; and
(3) Retaliatory Behavior Directed Against a Subordinate for Protected
Activity. The administrative judge (AJ) issued an initial decision, finding
that the agency proved only the first and third charges. The AJ affirmed the
agency’s action based on those 2 charges.
The Board granted the appellant’s petition for review, agreeing with the
appellant that the AJ misconstrued the first charge. The AJ found that the
first charge only required proof that the appellant was negligent. Based on
the language of the charge and the narrative description in the proposal letter,
the Board found that to prove the first charge, the agency had to show that the
time cards were false, not merely incorrect, and that the appellant
intentionally allowed the false time cards to be processed.
Although the AJ incorrectly interpreted the first charge, the Board found
that it did not need to remand this case for a new determination on the merits
of that charge because the appellant did not show that the AJ erred in
sustaining the third charge, “Retaliatory Behavior Directed Against a
Subordinate for Protected Activity,” and the reduction-in-grade penalty was
appropriate and justified based on that sustained charge. Because individuals
who bring to light waste, fraud, or abuse are serving an important public
purpose, they must not be subjected to retaliatory behavior by anyone,
especially a supervisor.
Marshall v. Department of Health & Human Services,
MSPB Docket No. AT-3443-06-0811-I-1
February 1, 2007
Board Procedures/Authorities - Miscellaneous
Miscellaneous Topics – USERRA/VEOA/Veterans’ Rights
HOLDING: The appellant showed that he had exhausted the DOL
complaint process by e-filing the DOL closure letter with the Board even
though this e-filing was not entered into the appeal file; the VEOA appeal
was remanded so that the AJ could fully advise the appellant of the
jurisdictional requirements for a VEOA claim and afford him the
opportunity to establish jurisdiction.
On June 25, 2006, the appellant filed this appeal alleging that the agency
violated his veterans’ preference rights when it failed to offer him the
9
position of GS-13 Budget Analyst in 2004, due to a purported “hiring freeze,”
but approximately two years later, offered him the job after he had already
accepted other employment. The administrative judge (AJ) issued an
acknowledgment order on July 24, 2006, informing the appellant that the
Board lacks jurisdiction over his VEOA claim absent proof that he exhausted
his Department of Labor (DOL) remedy and ordering the appellant to submit
such proof. Receiving no response from the appellant, the AJ issued an initial
decision dismissing the appeal for lack of jurisdiction since the appellant has
not exhausted his DOL remedy.
The Board granted the appellant’s petition for review. Exhaustion of the
DOL complaint process is a jurisdictional prerequisite to pursuit of a Board
appeal under the VEOA. The Board’s electronic filing record reflects that on
July 24, 2006, the appellant e-filed a copy of a June 22, 2006 letter in which
DOL informed the appellant that his claim was without merit and advised him
that he may file a Board appeal within 15 days from his receipt of the letter.
Through no fault of the appellant, this e-filing containing DOL’s letter was
not entered into the appeal file in accordance with the Board’s regulations, 5
C.F.R. § 1201.14, Electronic filing procedures. The Board thus found that the
appellant exhausted his administrative remedy before DOL and timely filed
his Board appeal.
However, the Board found that the record was not sufficiently developed
for the Board to determine whether the appellant raised a nonfrivolous
allegation that the agency violated his veterans’ preference rights, and, thus,
remanded this appeal so that the AJ could fully advise the appellant of the
requirements for establishing the Board’s jurisdiction over a VEOA claim and
afford the appellant an opportunity to do so.
Bullock v. Department of Homeland Security,
MSPB Docket No. DA-0752-06-0043-I-1
January 31, 2007
Penalty
- Theft/Misuse/Misappropriation of Government Property/Funds
The Board issued a Final Order denying the agency’s petition for review
of the initial decision that mitigated the appellant’s removal for misuse of a
government credit card to a demotion to a non-supervisory position.
Chairman McPhee issued a dissenting opinion, stating that he would have
upheld the removal in light of the appellant’s status as a supervisory law
enforcement officer and her knowing and repeated unauthorized charges to
her government card totaling over $4000.
10
Johnston v. Department of the Treasury,
MSPB Docket No. NY-1221-00-0220-A-2
January 25, 2007
Attorney Fees - Reasonableness
HOLDING: The appellant was entitled to an additional award of
attorney fees for fees and costs incurred in preparing a response to the
agency’s PFR of the addendum initial decision.
The agency petitioned for review of the addendum initial decision that
awarded the appellant attorney fees. The Board summarily denied the petition
for review (PFR) and granted the appellant’s unopposed request for additional
attorney fees for fees and costs incurred in preparing a response to the
agency’s PFR of the addendum initial decision.
Gowdy v. Department of Justice,
MSPB Docket No. SF-0752-05-0340-I-1
February 1, 2007
Timeliness – Miscellaneous
The Board dismissed the appellant’s petition for review as untimely filed
(17–months late) without good cause shown because his alleged
misunderstanding of the appeal process and arguments concerning the
underlying merits of his petition for review do not constitute good cause. The
Board also denied the appellant’s request to reopen the appeal.
Griffin v. Office of Personnel Management,
MSPB Docket No. SF-0731-03-0528-I-3
January 31, 2007
Timeliness – Miscellaneous
The Board dismissed this pro se appellant’s petition for review as
untimely filed (20-months late) without good cause shown because she failed
to respond to the Clerk’s timeliness acknowledgment letter, and her claimed
misunderstanding of, and dissatisfaction with, the terms of the settlement
agreement do not constitute good cause. The Board also denied the
appellant’s request to reopen the appeal.
11
McPherson v. Department of the Treasury,
MSPB Docket No. DA-0752-05-0043-I-1
January 31, 2007
Timeliness
– Miscellaneous
- New Evidence/Argument
The Board dismissed this pro se appellant’s petition for review as
untimely filed (19-months late) without good cause shown because he failed
to respond to the Clerk’s timeliness acknowledgment letter and did not
establish good cause based on alleged agency misconduct, his dissatisfaction
with the terms of the settlement agreement, or alleged new and material
evidence.
COURT DECISIONS
Stoyanov v. Department of the Navy
Fed. Cir. No. 2006-3363, MSPB Docket No. DC-1221-06-0266-W-1
January 26, 2007
Whistleblower Protection Act
- Jurisdiction Generally
- Personnel Actions
HOLDING: Where the appellant did not raise an allegation to OSC involving a
personnel practice taken against him, as opposed to his brother, the Board
properly dismissed his IRA appeal for lack of jurisdiction; the Board’s IRA
jurisdiction only covers personnel actions taken or proposed against the IRA
appellant himself.
The appellant filed a whistleblower complaint with the Office of Special Counsel
(OSC), alleging that the agency took or proposed to take various personnel actions
against his brother in reprisal for whistleblowing disclosures of both brothers. After
exhausting his OSC remedy, the appellant filed an individual right of action (IRA)
appeal with the Board. The AJ dismissed the appeal for lack of jurisdiction because the
Board’s IRA jurisdiction only covers personnel actions taken or proposed with respect
to the IRA appellant himself. The Board denied the appellant’s petition for review by
Final Order.
The court affirmed the Board’s decision. The court agreed with the Board that
5 U.S.C. § 1221(a), on its face, requires that the allegedly improper personnel practice
must be taken or proposed to be taken against the person bringing the IRA appeal. The
court distinguished a case involving the National Labor Relations Act (NLRA) in which
the U.S. Court of Appeals for the Seventh Circuit held that retaliatory acts against a
family member are akin to taking the acts against a person himself. The court
concluded that the NLRA’s language is broader than the language of § 1221(a), which
12
provides relief for complaints by employees with respect to any personnel action taken,
or proposed to be taken, “against such employee.” The court further found that, because
an IRA appellant must exhaust his remedies for whistleblower allegations with the OSC,
and because, in this case, the Board correctly held that the appellant did not raise an
allegation to the OSC involving a personnel practice taken against him, the Board
properly dismissed his appeal for lack of jurisdiction.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Dobruck v. Department of Veterans Affairs, 06-3411, AT-0432-05-0734-I-1 (1/25/07)
Stanley v. Office of Personnel Management, 06-3334, DE-844E-06-0065-I-1 (1/30/07)
A petition for rehearing was denied in the following case:
Thompson v. Office of Personnel Management, 06-3262, SF-844E-05-0638-I-1 (1/29/07)
The mandate was recalled and the appeal reinstated in the following case:
Baird v. Department of the Army, 07-3046, CH-0752-06-0377-I-1 (1/26/07)
13 | 30,840 | |
Case Report - January 26, 2007 | 01-26-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_26_2007_229941.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_26_2007_229941.pdf | CASE REPORT DATE: January 26, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Del Prete v. U.S. Postal Service
MSPB Docket No. NY-0752-04-0143-I-1
January 18, 2007
Attorney Fees
- Knew Or Should Have Known
HOLDING: The appellant was entitled to reasonable attorney fees in the
interest of justice because he prevailed in gaining penalty mitigation due
to factors that the agency knew or should have known. However, the
award of attorney fees must be limited to legal fees associated only with
the appellant’s challenge to the penalty and not with his challenge to the
sustained charge.
The agency removed the appellant on one charge of breaching the
agency’s accounting procedures resulting in the loss of postal stock totaling
approximately $45,000. On appeal, the administrative judge (AJ) sustained
the charge but mitigated the penalty to a 60-day suspension because removal
was unreasonable and the deciding official failed to take into account several
mitigating factors. Neither party sought review of the initial decision, which
became the Board’s final decision. The appellant filed a motion for attorney
fees. The AJ awarded the requested fees, finding that the appellant was a
prevailing party and an award of fees was in the interest of justice because the
agency “knew or should have known” that its penalty of removal would not be
upheld because of the mitigating factors the deciding official knew of but
failed to consider. The agency petitioned for review.
The Board affirmed the AJ’s finding that an award of attorney fees was
in the interest of justice because the appellant was a prevailing party with
regard to the mitigation of the penalty and because the AJ’s decision on the
merits, which became the Board’s final decision, found that the agency knew
of and failed to consider mitigating factors in determining the appropriate
penalty. The findings in the Board’s final decision on the merits control the
determination on attorney fees and those findings cannot be re-litigated.
The Board remanded the appeal to determine the appropriate amount of
the award because the appellant only partially prevailed in his appeal and an
attorney fee award should be limited to expenses related to the issue on which
the appellant prevailed, if it is practicable to do so. The facts and legal
theories employed in the appellant’s challenge to the penalty were different
from and unrelated to those employed in his unsuccessful challenge to the
merits of the agency’s charge. Therefore, the Board ordered the AJ to
determine, if possible, the fees and expenses attributed to the penalty issue
only and reduce the award accordingly. If such a segregation of costs is not
practicable, the Board ordered the AJ to determine an otherwise appropriate
amount by which to reduce the award.
Chairman McPhie dissented, stating that the AJ erred in finding that the
deciding official failed to consider mitigating factors. The Chairman stated
that the deciding official considered the mitigating factors but simply gave a
different weight to them than the AJ did in coming to a penalty decision.
Because of this, it was not in the interests of justice to award attorney fees
because the agency could not have known that an AJ would disagree with its
weighting of the Douglas factors and so mitigate the penalty.
Crenshaw v. Broadcasting Board of Governors
MSPB Docket No. DC-1221-06-0097-W-1
January 19, 2007
Whistleblower Protection Act
- Jurisdiction, Generally
Board Procedures/Authorities
- Miscellaneous
HOLDING: Garcia v. Department of Homeland Security, 437 F.3d 1322
(Fed. Cir. 2006) does not apply to IRA appeals. An appellant in an IRA
appeal is not entitled to a hearing until he has established jurisdiction in
his written pleadings by showing that he is an employee and making non
frivolous allegations that he made a protected disclosure and the
disclosure was a contributing factor in the agency’s personnel action.
The appellant reported alleged violations of safety and environmental
requirements to the agency’s Office of the Inspector General (OIG) in
October 1999 and again in October 2003. He also stated that he expected to
be separated by reduction in force (RIF) in retaliation for his reporting of
such issues. In September 2000, the appellant accepted a temporary
2
appointment in a non-career Foreign Service position, which was set to expire
in September 2005. In June 2005, the appellant sought corrective action from
the Office of Special Counsel (OSC), which determined not to take any
action. The appellant was separated in September 2005 and the appellant
filed an individual right of action (IRA) appeal with the Board. The
administrative judge (AJ) found that the appellant was an employee under
5 U.S.C. § 2105 and so subject to the Whistleblower Protection Act (WPA),
but, after a hearing, dismissed the appeal for lack of jurisdiction because the
appellant had failed to prove that his disclosures were a contributing factor in
the agency’s personnel action.
The Board vacated the initial decision and remanded the appeal to
determine whether the appellant, in a temporary non-career Foreign Service
position, is an employee under 5 U.S.C. § 2105 because the record was not
sufficiently developed to make such a determination.
The Board clarified that the AJ had erred in relying on Garcia v.
Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) in holding
a jurisdictional hearing. Unlike adverse action appeals, Garcia is not
applicable to IRA appeals and an appellant in an IRA appeal is not entitled to
a hearing until he establishes Board jurisdiction. Accordingly, the AJ erred in
holding a jurisdictional hearing and erred in dismissing the appeal for lack of
jurisdiction because the appellant had failed to prove by preponderant
evidence that his disclosures were a contributing factor.
In order to establish jurisdiction and gain a hearing on the merits in an
IRA appeal, in addition to showing that he is an employee under 5 U.S.C.
§ 2105, the appellant’s written pleadings must make non-frivolous allegations
that he made a protected disclosure and the disclosure was a contributing
factor in the agency’s personnel action. Although it cannot yet be determined
if the appellant is an employee subject to the WPA, the appellant’s pleadings
did make the requisite non-frivolous allegations to establish jurisdiction and
gain a hearing on the merits. Therefore, the Board remanded the appeal for
the AJ to determine if the appellant is an employee subject to the WPA. If so,
the Board ordered the AJ to find jurisdiction and hold a hearing on the merits
of the appellant’s IRA appeal.
Kravitz. Department of the Navy
MSPB Docket No. SF-0353-04-0204-B-2
January 19, 2007
Miscellaneous Agency Actions
- Restoration to Duty
Jurisdiction
- Miscellaneous
HOLDING: An application for a vacant position that is pending when an
employee receives an OWCP award constitutes a request for restoration.
3
In a remand decision the AJ found that the appellant was physically
disqualified from his position but had failed to timely seek restoration and so
the AJ dismissed the appeal for lack of jurisdiction. The Board vacated the
remand decision and remanded the appeal for further proceedings.
The right to restoration of a physically disqualified employee applies for
1 year from the date the employee becomes eligible for Office of Workers’
Compensation Programs (OWCP) payments. The AJ was correct in finding
that the appellant met the definition of a “physically disqualified” employee
under 5 C.F.R. § 353.102. However, the appellant may have requested
restoration within the 1-year time frame of becoming OWCP eligible because
it appears he had an application for a position pending at the time he was
granted an OWCP award. The Board has previously held that if an employee
who is physically disqualified applies for a vacant position during the 1-year
timeframe, that application is construed as a request for restoration.
Similarly, the Board held here that an application for a vacant position that is
pending on the date the appellant receives an OWCP award also constitutes a
request for restoration. Therefore, the Board remanded the appeal for the AJ
to determine if the appellant’s application was indeed pending at any point
during the 1-year timeframe. If so, the AJ must treat that pending application
as a proper request for restoration and grant jurisdiction.
Tschumy v. Department of Defense
MSPB Docket No. PH-315H-06-0104-I-1
January 19, 2007
Appointments
- Temporary Appointments
- Miscellaneous/General
Jurisdiction
- Probationers/5 U.S.C. § 7511(a)(1)(A)
HOLDING: 5 C.F.R. § 315.801(e), which mandates probationary periods
unless specifically exempted, applies only to authorities described in
5 C.F.R. subparts 315F and 315G, so appointees under subpart 315D are
not necessarily required to serve a probationary period. A person serving
under a temporary appointment not exceed 1 year is not an “employee”
under 5 U.S.C. § 7511.
The appellant began his civilian service in September 2004. He
subsequently accepted, in December 2004, a temporary appointment not to
exceed 1 year in the competitive service under 5 C.F.R. subpart 315D. The
agency separated the appellant for alleged inappropriate conduct in October
2005. The appellant appealed his separation and alleged sex discrimination
and retaliation for whistleblowing. The AJ dismissed the appeal for lack of
jurisdiction because the appellant was not an “employee” under 5 U.S.C.
§ 7511 with Board appeal rights and because he had not sought corrective
4
action from the Office of Special Counsel (OSC) and so could not pursue an
IRA appeal.
The Board held that the appellant was not an “employee” in the
competitive service under 5 U.S.C. § 7511(a)(1)(A)(ii) because he had not
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. Even if his appointments between
September and December 2004 were not temporary, the appellant’s
appointment from December 2004 onwards was temporary and limited to 364
days and so he never accumulated 1 year in a non-temporary appointment.
Furthermore, the appellant did not gain appeal rights under Park v.
Department of Health & Human Services, 78 M.S.P.R. 527 (1998) because,
when he accepted the temporary appointment, he only had 3 months of
civilian service and was serving a probationary period. Therefore, unlike
Park, the appellant was not an “employee” with appeal rights and so could not
unwittingly relinquish any such rights by accepting the temporary
appointment.
The AJ found that the appellant was not an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i) either because he was serving a probationary period.
There was no mention of a probationary period on the appellant’s
appointment but the AJ concluded this by reference to 5 C.F.R. § 315.801(e),
which states that a person appointed to the competitive service under 5 C.F.R.
subparts 315F and 315G serves a 1-year probationary period unless
specifically exempted. This was error because the appellant was appointed
under 5 C.F.R. § 315.403(b)(1), which is within subpart 315D, and 5 C.F.R.
§ 315.801(e) applies only to authorities described in subparts 315F and 315G.
Despite this, the appellant was not an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i), because both the Board and the Federal Circuit Court of
Appeals have interpreted that section not to include persons serving under
temporary appointments of less than 1 year.
Hamiel v. U.S. Postal Service
MSPB Docket No. AT-0752-06-0252-I-1
January 19, 2007
Jurisdiction
- Suspensions
Hearings
- Right to a Hearing
HOLDING: The appellant established entitlement to a jurisdictional
hearing on his constructive suspension claim by making non-frivolous
allegations that he requested to return to work after an absence for
medical reasons and that the agency had denied his request.
5
The appellant was absent from work due to diagnosed narcolepsy and
shoulder surgery. He was cleared by his doctors to return to work on May 23,
2005 and he requested to do so, within certain restrictions. The agency
informed the appellant that he could not work within his requested
restrictions and did not permit him to return until August 18, 2005. The
appellant filed an appeal alleging a constructive suspension for the period of
time between his request to return in May and his return to duty in August.
The AJ dismissed the appeal for lack of jurisdiction without a hearing, finding
that the appellant had failed to present sufficient evidence to show that the
agency knew he had received medical clearance or that the agency could
assess if an appropriate light duty position was available.
The Board vacated and remanded the decision, finding that the appellant
had established entitlement to a jurisdictional hearing, under Garcia v.
Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006), by making
non-frivolous allegations that he requested to return to work after an absence
for medical reasons and the agency had denied his request.
Chairman McPhie dissented, stating that the appellant’s request to return
to work in May 2005 did not address his narcolepsy, only his shoulder
ailment, and his second request to return to work in July 2005 was also
incomplete. The Chairman states that the Board should defer to the agency’s
reasonable decision to delay the appellant’s return to work until August 2005,
when he finally provided complete information on both his ailments and their
necessary work restrictions.
Special Counsel, ex rel.
Waddell v. Department of Justice
MSPB Docket No. CB-1208-06-0020-U-4
January 19, 2007
Special Counsel Actions
- Stays
Whistleblower Protection Act
- Stays
HOLDING: The Board granted OSC’s request for a 60-day extension of
the previously-granted stay of the agency’s reassignment of Special Agent
Waddell.
The Office of Special Counsel (OSC) requested an additional 60-day
extension of the previously granted stay of the agency’s reassignment of
Special Agent Waddell. OSC stated that it needed the extension to complete
its legal analysis and determine what further action was warranted. Viewing
the evidentiary record, which had not changed significantly since the granting
of OSC’s initial stay request, in the light most favorable to OSC, the Board
found OSC’s prohibited personnel practice claim was not clearly
unreasonable and so granted the request for a further 60-day extension of the
6
stay. Given that this was OSC’s third 60-day extension, in addition to the
initial 45-day stay, the Board stated that, absent any unusual circumstances,
this will be the final extension of the stay.
Durr v. Department of Veterans Affairs
MSPB Docket No. AT-1221-04-0293-B-1
January 24, 2007
Whistleblower Protection Act
- Contributing Factor
- Danger to Public Health or Safety
- Gross Mismanagement
- Protected Disclosure
HOLDING: A protected disclosure made after the agency has already
proposed the personnel action at issue in an IRA appeal cannot, as a
matter of law, have contributed to that agency action and so does not
meet the non-frivolous allegation standard for Board jurisdiction over
and IRA appeal.
The appellant brought an individual right of action (IRA) appeal against
the agency’s proposed admonishment. The agency rescinded the proposed
action and the administrative judge (AJ) dismissed the appeal as moot. The
Board vacated the initial decision and remanded the appeal because of the
appellant’s requests for consequential damages and attorney fees. On remand,
the AJ dismissed the appeal for lack of jurisdiction because the appellant
failed to make non-frivolous allegations that he reasonably believed his two
disclosures evidenced a substantial and specific danger to public health and
safety and gross mismanagement, respectively.
The Board affirmed the AJ with regard to the research funding
allegation, finding that a reasonable person could not reasonably believe that
the appellant’s dissatisfaction with his inability to do research evidenced
gross mismanagement. With regard to the appellant’s allegations concerning
the agency’s frequently non-functioning computer systems at the Bay Pines,
Florida VA Medical Center, the Board found that these did meet the non
frivolous allegation standard for a protected disclosure. The appellant’s
allegations in a September 2003 letter to the Office of Special Counsel (OSC)
that the frequent systems failures endangered patients evidenced a reasonable
belief in a substantial a specific danger to public health and safety. However,
the relevant disclosure to OSC came two months after the agency had issued
its proposed admonishment. As a matter of law, the protected disclosure
could not have contributed to the proposed admonishment. Therefore, the
appellant failed to non-frivolously allege that his protected disclosure
contributed to the agency’s personnel action and so he failed to establish
Board jurisdiction.
7
Beaudette v. Department of the Treasury
MSPB Docket No. DE-0752-04-0112-B-1
January 24, 2007
Defenses/Miscellaneous Claims
- Miscellaneous
Jurisdiction
- Reassignment
- Reduction in Pay/Rank/Grade
HOLDING: The appellant’s PFR was denied. Member Sapin issued a
dissenting opinion and Chairman McPhie issued a concurring opinion in
response. No constructive demotion claim lies when the agency either
created a new position with additional duties or, as part of a “planned
management action,” reclassified a position with additional duties.
In 2001, the agency created a new GS-14 position to replace a GS-13
position in which the appellant was one of seven incumbents. The agency
interviewed all the incumbents and promoted all except the appellant to the
new GS-14 position. The seventh GS-14 position remained unfilled. In 2003,
the agency reassigned the appellant and his replacement was soon promoted
to the vacant GS-14 position. The appellant appealed to the Board, alleging a
constructive demotion. The administrative judge (AJ) dismissed the appeal
for lack of jurisdiction because the appellant, while he retained the GS-13
position, was not performing the duties of the GS-14 position in the two years
between the creation of the GS-14 position and the appellant’s reassignment.
A constructive demotion occurs when an employee is reassigned from a
position that is subsequently reclassified upward due to a new classification
or correction of a classification error. This did not occur here because the
agency created a new GS-14 position with distinct duties and responsibilities
from the appellant’s GS-13 position. This was not a reclassification.
Regardless, even if characterized as a reclassification, a reclassification with
the addition of duties resulting from a “planned management action,” as here,
cannot constitute a constructive demotion.
Member Sapin dissented, stating that she would find jurisdiction because
the appellant made non-frivolous allegations that the agency did reclassify
and upgrade his GS-13 position after he was reassigned and that the appellant
non-frivolously alleged that he performed the duties of the GS-14 position
between 2001 and 2003.
COURT DECISIONS
Letz v. Department of the Interior
Fed. Cir. No. 06-3180; MSPB Docket No. DE-0842-05-0189-I-2
8
January 22, 2007
Retirement
- Service Credit – Firefighter/Law Enforcement Provision
HOLDING: A change in the agency’s determination of the type of
retirement credit or coverage available to a position was not a
“significant change in the position” under 5 C.F.R. § 542.804(c), because
it did not affect the duties or responsibilities of the position. Therefore,
such a determination by the agency did not afford the appellant a 6
month window to protest the determined level of FF/LEO credit coverage.
An agency has no affirmative duty to advise employees on requests for
firefighter credit.
An employee can qualify for an enhanced annuity as a firefighter under
5 U.S.C. § 8401 and 5 C.F.R. § 842.803 by applying for enhanced annuity
service credit if he served at least three years in a “rigorous” firefighter
position. Service in a “secondary” firefighter position is then also creditable
if such service immediately follows at least three years in the “rigorous”
position. In January 1997 the appellant sought firefighter retirement service
credit for his employment starting in August 1994. In October 1998 and
January 1999, the agency determined that the appellant’s current and prior
positions were covered as secondary/administrative for firefighter credit. In
May 1999 the appellant challenged the agency’s coverage determinations.
The agency denied his request for firefighter credit because he did not timely
file his application and the Board affirmed the agency’s denial.
If a position is not already approved for firefighter credit, an employee
must apply for such credit within 6 months of entering the position or of any
significant change in the position. The appellant failed to request firefighter
credit within the required six-months of any of his appointments, or within 6
months of the special one-time deadline of November 1, 1995 that was
established by the agency. The appellant argued that the agency’s coverage
determinations were a significant change to his position, enabling him to
apply. The agency’s coverage determinations were not significant changes in
the positions because in no way did they change the type of work or duties or
responsibilities of the positions. Therefore, the agency’s coverage
determinations did not provide the appellant with a 6-month window of
protest.
The Court also extended its holding in Bingaman v. Department of the
Treasury, 127 F.3d 1431 (Fed. Cir. 1997), which held that an agency has no
affirmative duty to advise employees on requests for law enforcement officer
credit, to apply equally to firefighter credit.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
9
The following appeals were affirmed:
Wilson v. Office of Personnel Management, 06-3227, DA-831E-05-0339-I-1 (1/18/07)
Metcalfe v. Merit Systems Protection Board, 06-3398, SE-0752-06-0352-I-1 (1/19/07)
Brown v. Merit Systems Protection Board, 06-3220, DA-0752-05-0591-I-1 (1/22/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 2203-2209 (Jan. 18, 2007)
OPM proposed to amend its regulations governing Federal employment suitability,
5 C.F.R. part 731. The proposed regulations would: authorize agencies to debar from
employment for up to three years those found unsuitable, extend the suitability process to those
applying for or who are in positions that can be non-competitively converted to the competitive
service, provide additional procedural protections for those found unsuitable for Federal
employment, and clarify the scope of authority for the Merit Systems Protection Board to review
actions taken under the regulations. OPM also proposed changes to make the regulations more
readable.
10 | 23,200 | |
Case Report - January 19, 2007 | 01-19-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_19_2007_229939.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_19_2007_229939.pdf | CASE REPORT DATE: January 19, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Belhumeur v. Department of Transportation
MSPB Docket No. DA-3443-06-0437-I-1
January 11, 2007
Miscellaneous – USERRA/VEOA/Veterans’ Rights
HOLDING: The Board lacks jurisdiction over an appeal of an FAA
employee claiming that the FAA violated his veterans’ preference rights
under VEOA when it failed to select him for a position because the FAA,
the agency charged with violating his veterans’ preference rights, is not
subject to 5 U.S.C. § 3330a.
The appellant, an employee with the Federal Aviation Administration
(FAA), filed this appeal claiming that the FAA violated his veterans’
preference rights under the Veterans Employment Opportunities Act of 1998
(VEOA), when it failed to select him for position. The AJ dismissed the
appeal for lack of jurisdiction, finding that VEOA does not apply to the FAA,
and that the appellant had not alleged any other basis for jurisdiction.
The Board denied the appellant’s PFR, but reopened the matter for the
limited purpose of addressing the issue of whether the FAA is excluded by
statute from 5 U.S.C. § 3330a. The Board found that it lacks jurisdiction over
this appeal because the FAA, the agency charged with violating the
appellant’s veterans’ preference rights, is not subject to 5 U.S.C. § 3330a.
Under 49 U.S.C. § 40122(g)(2), Congress granted the FAA the authority
to establish a personnel system that is not subject to the provisions of Title 5,
with certain enumerated exceptions. Board jurisdiction over this appeal is not
provided by 5 U.S.C. § 2302(b), relating to whistleblower protection;
§§ 3308-3320, relating to veterans’ preference; chapter 71, relating to labor
management relations; nor §§ 1204, 1211-1218, 1221, 7512, and 7701-7703,
relating to the Board. Section 3330a, which grants the Board jurisdiction
over violations of veterans’ preference rights, is not among the sections of
Title 5 applicable to the FAA. There is nothing in 49 U.S.C. § 40122(g)(2)
indicating that Congress intended to grant FAA employees or applicants
VEOA appeal rights. FAA employees were not afforded VEOA appeal rights
by operation of the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century. Thus, the Board has no jurisdiction over a VEOA appeal
from an FAA employee or applicant.
O’Leary v. Office of Personnel Management
MSPB Docket No. AT-300A-98-0635-M-1
January 11, 2007
Miscellaneous Agency Actions - Employment Practice
HOLDING: The Supplemental Qualifications Statement (SQS) part of
the Social Security Administration ALJ Examination under which the
appellant applied meets the basic requirements of 5 C.F.R. § 300.103.
In 1993, the appellant, a staff attorney in the Office of Hearings and
Appeals (OHA) of the Social Security Administration (SSA), filed an
application under the Administrative Law Judge (ALJ) Examination. The
Office of Personnel Management (OPM), which developed and administers
that examination, reviewed the appellant’s supplemental qualifications
statement (SQS) – a document describing the applicant’s relevant work
experience – and initially assigned him a score of 21, then later lowered his
score to 14 after he completed the remaining parts of the ALJ Examination.
The appellant challenged his examination rating by filing an appeal with
OPM pursuant to 5 C.F.R. § 300.104(b), and his SQS score was raised to 18.
He later filed this employment practice appeal with the Board under 5 C.F.R.
§ 300.104(a), alleging that the SQS part of the ALJ Examination
discriminated against staff attorneys employed in SSA’s OHA. That appeal
was eventually dismissed by the administrative judge (AJ) for lack of
jurisdiction after a hearing. In O’Leary v. Office of Personnel Management,
96 M.S.P.R. 548, ¶ 1 (2004), the Board reversed the initial decision. In doing
so, it found that it had jurisdiction over the appeal; it noted that the AJ had
held a hearing; and, although he had characterized the hearing as one
addressing the issue of jurisdiction, the Board found that the parties had in
fact addressed the merits of the appeal, that OPM had met its burden of
proving that the SQS part of the ALJ Examination met the basic requirements
of 5 C.F.R. § 300.103, and that remand was unnecessary. On petition for
judicial review, the court concurred with the Board’s jurisdictional finding,
but found that the appellant was entitled to an additional hearing “because the
2
hearing that [he] received before the [AJ] was designated jurisdictional.”
After holding another hearing, the AJ issued an initial decision in which he
found that the appellant was not entitled to relief.
On review, the Board denied the appellant’s petition for review,
reopened the appeal, and affirmed the initial decision as modified, still
finding that OPM proved that the SQS part of the ALJ Examination under
which the appellant applied meets the basic requirements of 5 C.F.R.
§ 300.103.
The Board first reaffirmed its finding that the SQS portion of the ALJ
Examination meets the job analysis requirement of 5 C.F.R. § 300.103(a). To
satisfy the second of the basic requirements, 5 U.S.C. § 300.103(b), OPM
must show that there is a rational relationship between the employment
practice and performance in the position to be filled, and demonstration of the
existence of this rational relationship must include a showing that the
employment practice was professionally developed. The Board clarified that,
contrary to the AJ’s statement in the initial decision, there is no presumption
that an employment practice was professionally developed. Here, the Board
found that, while standards that eventually became part of the ALJ
examination were not necessarily drafted by professional psychologists, a
preponderance of the evidence established that the SQS portion of the
examination was itself professionally developed.
To satisfy the third of the basic requirements, 5 C.F.R. § 300.103(c), the
employment practice may not discriminate on the basis of a nonmerit factor.
The Board found that one of the “benchmarks examples,” which OPM uses in
calculating an individual’s SQS score, supports the appellant’s argument that
OPM views some aspects of experience as an OHA attorney less favorably
than the experience of attorneys in other agencies and other positions.
However, a scoring system that favors some kinds of experience over other
kinds does not necessarily discriminate against applicants on a nonmerit
factor. Here, OPM reasonably rated the experience of others higher than the
experience of an OHA attorney. In addition, the Board saw no need to modify
its previous findings regarding the effect of the benchmarks’ references to job
titles. Finally, the appellant did not show error or prejudicial error in any of
the AJ’s procedural rulings.
Gartner v.Department of the Navy
MSPB Docket No. AT-0752-06-0156-I-1
January 12, 2007
Adverse Action Charges - Absence Related
Penalty – Absence Related
HOLDING: Absences for which the appellant had been previously
disciplined cannot form the basis of a subsequent disciplinary action for
excessive absences; the Cook exception, which allows an agency to take an
3
adverse action based on approved unscheduled absences when the
employee makes excessive use of unscheduled LWOP, does not apply to
approved sick leave; the charge of excessive absences was properly
sustained based on the appellant’s LWOP and AWOL where the Cook
criteria were satisfied and the evidence showed that the appellant could
not return to work because of the continuing effects of her mental illness;
the removal penalty was sustained for the charge of excessive absences.
Between December 2004 and June 2005, the appellant was counseled and
disciplined for several leave-related violations during the period of
January 12 to April 7, 2005. Following additional absences, the agency
removed the appellant based on a charge of excessive absence during the
period of January 9 to July 23, 2005. On appeal the appellant argued that her
removal was improper because all of her absences were approved. The
administrative judge (AJ) affirmed the removal action.
On review, the Board stated that it would not consider the appellant’s
absences for which the appellant had been previously disciplined because an
agency may not impose discipline more than once for the same misconduct.
Because the notice of proposed removal did not exclude leave-related
misconduct for which the appellant had already been disciplined, it was
unclear whether the agency was attempting to impose a second round of
discipline, at least in part, for the same misconduct. Therefore, the Board
stated that it would not consider the appellant’s absences from January 12-21,
March 29, or April 6 and 7.
In addition, the Board stated that it would not consider the appellant’s
absences during any period that she was on approved sick leave. The Board
thus stated that, for purposes of the charge of excessive absences, it would
only consider a total of 333 ½ hours of unscheduled absences consisting of a
combination of LWOP and AWOL. The appellant argued that she was on
approved medical leave and she submitted medical documentation showing
that she was unable to work because of mental illness. Although an adverse
action cannot be based on an employee’s use of approved leave, an agency
can bring an action against an employee for excessive approved absence when
the criteria set forth in Cook v. Department of the Army, 18 M.S.P.R. 610,
611-12 (1984) are satisfied. The Board found that the Cook criteria were
satisfied here, and that the evidence showed that the appellant could not
return to work because of the continuing effects of her mental illness. The
Board thus found that the AJ properly affirmed the agency’s removal action
based on the charge of excessive absences. Further finding that the deciding
official properly evaluated the relevant penalty factors, the Board sustained
the appellant’s removal.
4
LaMell v. Armed Forces Retirement Home
MSPB Docket No. AT-3443-06-0657-I-1
January 12, 2007
Reduction in Force – Bona Fides
Jurisdiction - Miscellaneous
HOLDING: Although the AJ correctly found that the Board lacks
jurisdiction over the appellant’s placement on administrative leave, the
Board remanded the appeal for the AJ to clarify whether the appellant
intended to appeal her separation by RIF; the RIF may have been in the
nature of an adverse action where the agency issued a notice of proposed
removal under ch. 75, and the record was unclear as to whether the
proposed removal was rescinded prior to the RIF.
In February 2005, the appellant, who was employed at the Armed Forces
Retirement Home in Gulfport, Mississippi, was placed on administrative leave
for disciplinary reasons. On August 10, 2005, the agency issued a notice of
proposed removal under 5 U.S.C. chapter 75 and rescinded a March 2005
notice of proposed removal, explaining that it never issued a decision on the
March proposed removal because the facility was evacuated and closed
following Hurricane Katrina. Since the facility could remain closed for as
long as 18 months due to damage caused by the hurricane, the appellant and
other employees of the Armed Forces Retirement Home were separated
pursuant to a reduction in force (RIF). The appellant appealed her placement
on administrative leave. Without addressing the appellant’s separation
pursuant to the RIF nor the proposed removal, the administrative judge (AJ)
dismissed the appeal for lack of jurisdiction.
On review, the Board stated that the AJ correctly found that the Board
lacks jurisdiction over the appellant’s placement on administrative leave, and
that the Board, thus, could not consider her discrimination claims. The Board
further found that the record below, including the appellant’s reference to her
“terminat[ion],” the appellant’s submission of the RIF separation proposal
notice, and the agency’s submissions, should have alerted the AJ to clarify
whether the appellant intended to appeal her separation by RIF. Therefore,
the Board remanded the case for the AJ to address and, if necessary,
adjudicate, the RIF matter. Finally, the Board stated that, because there is
nothing in the record to indicate that the proposed removal was rescinded
prior to the RIF, it could not eliminate the possibility that the RIF might have
been in the nature of an adverse action, i.e., based on reasons personal to the
appellant and not directed to her position.
5
Thornton v. Office of Personnel Management
MSPB Docket No. PH-0845-06-0098-I-1
January 12, 2007
Retirement – Annuity Overpayment
Timeliness – New Evidence/Argument
New Evidence
HOLDING: The Board remanded this appeal of OPM’s denial of the
appellant’s request for a waiver of collection of an overpayment to OPM
for a new computation of the amount of the annuity overpayment where
OPM submitted new and material evidence on review that the appellant
was receiving OWCP benefits and a FERS disability retirement annuity
concurrently.
The appellant applied for and was granted a disability retirement under
the Federal Employees Retirement System (FERS) in January 2005. The
appellant began receiving monthly estimated interim annuity payments while
OPM calculated the exact amount of his annuity. When OPM finalized its
calculation of the appellant’s retirement annuity in June 2005, it concluded
that he had been overpaid and proposed to collect the overpayment in
installments. OPM denied the appellant’s request for a waiver of the
collection of the overpayment. In a June 19, 2006 initial decision (ID), the
AJ affirmed OPM’s decision.
The Board summarily denied the appellant’s petition for review (PFR).
OPM filed an untimely cross PFR, included a declaration in support of its
request that the Board waive the time limit for filing a cross PFR, and
submitted a letter it received from the Office of Workers’ Compensation
Programs (OWCP) advising OPM that the appellant had been receiving
OWCP benefits since January 5, 2004, and that on August 1, 2006, the
appellant elected to receive OWCP benefits instead of an OPM annuity.
OPM’s representative also submits a sworn statement asserting that OPM did
not receive the OWCP letter until August 22, 2006, and that the representative
did not learn of the letter until September 18, 2006, when he was first
assigned to this case. In his application for a retirement annuity, the
appellant informed OPM that he had not applied for and was not receiving
OWCP benefits. The Board found that: The OWCP letter was new and
material; OPM had established good cause for the delay in filing its cross
PFR; and the OWCP letter was of sufficient weight to warrant an outcome
different from that of the ID because the appellant was not entitled to receive
both OWCP benefits and a FERS disability retirement annuity. Further
finding that this new evidence will require a new computation by OPM of the
amount of the annuity overpayment made to the appellant, the Board
accordingly remanded this matter to OPM.
6
Boykin v. U.S. Postal Service
MSPB Docket No. SF-0752-06-0593-I-1
January 11, 2007
Timeliness – e-Appeal
HOLDING: The appellant showed good cause for his 1-day delay in filing
his e-appeal.
On May 2, 2006, the appellant filed an appeal of his demotion
electronically (e-appeal) 1-day late. The administrative judge dismissed the
appeal as untimely filed without good cause shown. On review, the Board
granted the appellant’s PFR, vacated the initial decision, and remanded the
appeal for adjudication of the merits. The Board found that its records
support the appellant’s representative’s account that: On May 1, 2006, he
accessed the Board’s e-filing site; he repeatedly received “timed out”
messages and was unable to continue with the process; he made multiple
attempts to log on again but was unsuccessful; and he was able to complete
the filing process the following day. Furthermore, several users reported
having problems using e-appeal around May 1-3, 2006, and the incidence of
problems was higher than usual at that time. For these reasons and based on
the minimal delay and the absence of a claim of prejudice by the agency, the
Board found that the appellant showed good cause for the untimely filing of
his appeal.
Tolbert v. Small Business Administration
MSPB Docket No. AT-315H-06-0175-I-1
January 12, 2007
Jurisdiction – Probationers/5 U.S.C. § 7511(a)(1)(A)
HOLDING: Where the appellant did not request a hearing, the Board
weighed the evidence he offered that his termination was based on pre
appointment reasons against the agency’s evidence that he was
terminated for post-appointment reasons and found the latter more
persuasive, and, thus, dismissed this appeal for lack of jurisdiction.
The appellant appealed his termination during his probationary period,
asserting that the agency terminated him for pre-appointment reasons and
submitting a letter that he claimed proved this. He did not request a hearing.
The agency contended that the appellant was terminated for post-appointment
reasons and submitted supporting documentation. The AJ issued an initial
decision dismissing the appeal for lack of jurisdiction apparently based on the
agency’s stated reason for the termination, without considering the
appellant’s proffered evidence. On petition for review, the Board found that,
7
to the extent the AJ erred in failing to properly weigh the record evidence in
assessing the appellant’s jurisdictional assertions, his error provides no basis
for reversal of the initial decision because the appellant’s evidence was
insufficient to meet his burden of proof, especially when weighed against the
agency’s evidence indicating that he was terminated for post-appointment
reasons. Therefore, the Board dismissed the appeal for lack of jurisdiction.
Rainone v. Office of Personnel Management
MSPB Docket No. NY-831E-05-0277-X-1
January 16, 2007
Compliance – Dismissal on Proof
Retirement
- Annuities
– Disability
HOLDING: OPM correctly relied on a certified corrected Individual
Retirement Record (IRR) from the employing agency in determining the
appellant’s last day in pay status for purposes of calculating his disability
retirement annuity.
In Rainone v. Office of Personnel Management, 102 M.S.P.R. 88 (2006),
the Board ordered OPM to award the appellant a disability retirement. In
response to the appellant’s petition for enforcement, OPM submitted evidence
indicating that it had awarded the appellant a disability retirement using July
28, 2000, as the last day in pay status (LDPS), and had issued payment for
back pay and his annuity. A corrected individual retirement record (IRR) in
the record set forth July 28, 2000 as the appellant’s LDPS. The AJ issued a
Recommendation that the Board find OPM only in partial compliance because
OPM should have calculated the appellant’s annuity as of June 19, 1999.
The Board found that the agency was in compliance and dismissed the
appellant’s petition for enforcement as moot. The appellant’s IRR as
maintained by the employing agency is the basic record used in determining
his annuity, and OPM is entitled to rely on the information contained in the
IRR unless and until the IRR is amended by the employing agency. Although
the Board stated in Rainone that the appellant’s LDPS was June 19, 1999, and
that he was disabled from performing useful and efficient service in his
position of record during the period from June 19, 1999, to his voluntary
retirement on January 31, 2004, the corrected certified record of the
appellant’s IRR shows that his LDPS was July 28, 2000. Moreover, it
appears that this corrected date was predicated on the employing agency’s pay
documentation that the appellant worked in the year 2000 for one pay period.
Thus, based on the documentation, it appears that although the appellant may
have been disabled from performing useful and efficient service in his
position since June 19, 1999, his pay had not “ceased” for purposes of
8
5 U.S.C. § 8345(b)(1), if he returned to a pay status prior to his separation.
Because the record shows that OPM relied on a certified corrected IRR for a
LDPS of July 28, 2000, in light of the employing agency’s record that the
appellant returned to a pay status in 2000, the Board found that OPM properly
relied on the IRR for this information to calculate the appellant’s disability
retirement annuity.
Finally, the Board found that it is without jurisdiction to order OPM to
obtain a corrected certified IRR from the appellant’s employing agency, and
that, instead, the appellant’s remedy is to petition the employing agency to
amend his IRR and to forward it to OPM for the commencement of a different
disability date if so determined by the employing agency.
DISMISSALS-SETTLEMENT/WITHDRAWN
The following appeal was dismissed as withdrawn pursuant to a settlement agreement:
Stroup v. Department of Homeland Security, NY-1221-04-0192-W-4 (1/10/07)
The following case was dismissed as settled:
Neal v. Department of the Treasury, MSPB Docket No. DE-0752-01-0338-X-1 (1/12/07)
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Ward v. Office of Personnel Management, 06-3353, AT-831E-06-0053-I-1 (1/11/07)
Hunter v. Department of the Air Force, 06-3355, DA-0752-06-0258-I-1 (1/11/07)
Bush v. Office of Personnel Management, 06-3173, DC-0831-05-0452-I-1 (1/11/07)
Kostishak v. Merit Systems Protection Board, 06-3280, DC-0831-05-0679-I-1 (1/12/07)
Theus v. Department of Transportation, 06-3141, DA-1221-05-0009-W-2 (1/16/07)
Brent v. Department of Justice, 06-3153, AT-0752-05-0514-I-1 (1/16/07)
Smart v. Merit Systems Protection Board, 06-3283; DE-1221-05-0505-W-1 (1/16/07)
Tavarez v. Office of Personnel Management, 06-3394, SF-831E06-0217-I-1 (1/16/07)
Wade v. Department of Labor, 06-3266, SF-0752-05-0640-I-1 (1/17/07)
Fisher v. Office of Personnel Management, 06-3324, DE-0845-05-0500-I-1 (1/17/07)
Douglas v. Department of Agriculture, 07-3029, AT-0752-06-0373-I-1 (1/17/07)
Brown v. Department of the Navy, 07-3064, AT-1221-05-0493-B-1 (1/17/07)
A petition for rehearing en banc was denied in the following case:
Zgonc v. Department of Defense, 06-3265, DC-1221-06-0306-W-1 (1/17/07)
The court recalled the mandate and reinstated the appeal:
Jones v. U.S. Postal Service, 07-3054, AT-0752-06-0027-I-1 (1/16/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 1267 (1/11/07)
9
OPM issued final regulations to amend the incentive awards
regulations. The amended regulations clarify that if agencies grant rating
based awards, they must base such awards on a rating of record of “Fully
Successful” (or equivalent) or higher. In addition, agencies must ensure that
rating-based awards granted make meaningful distinctions based on levels of
performance.
72 Fed. Reg. 1911 (1/17/07)
The Office of Personnel Management issued a final rule to amend the
Federal Employees Health Benefits regulations regarding discontinuance of a
health plan to include situations in which a health plan becomes
incapacitated, either temporarily or permanently, as the result of a disaster.
10 | 23,379 | |
Case_Report_January_19_2007 | 01-19-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_19_2007_255138.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_19_2007_255138.pdf | CASE REPORT DATE: January 19, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Belhumeur v. Department of Transportation
MSPB Docket No. DA-3443-06-0437-I-1
January 11, 2007
Miscellaneous – USERRA/VEOA/Veterans’ Rights
HOLDING: The Board lacks jurisdiction over an appeal of an FAA
employee claiming that the FAA violated his veterans’ preference rights
under VEOA when it failed to select him for a position because the FAA,
the agency charged with violating his veterans’ preference rights, is not
subject to 5 U.S.C. § 3330a.
The appellant, an employee with the Federal Aviation Administration
(FAA), filed this appeal claiming that the FAA violated his veterans’
preference rights under the Veterans Employment Opportunities Act of 1998
(VEOA), when it failed to select him for position. The AJ dismissed the
appeal for lack of jurisdiction, finding that VEOA does not apply to the FAA,
and that the appellant had not alleged any other basis for jurisdiction.
The Board denied the appellant’s PFR, but reopened the matter for the
limited purpose of addressing the issue of whether the FAA is excluded by
statute from 5 U.S.C. § 3330a. The Board found that it lacks jurisdiction over
this appeal because the FAA, the agency charged with violating the
appellant’s veterans’ preference rights, is not subject to 5 U.S.C. § 3330a.
Under 49 U.S.C. § 40122(g)(2), Congress granted the FAA the authority
to establish a personnel system that is not subject to the provisions of Title 5,
with certain enumerated exceptions. Board jurisdiction over this appeal is not
provided by 5 U.S.C. § 2302(b), relating to whistleblower protection;
§§ 3308-3320, relating to veterans’ preference; chapter 71, relating to labor
management relations; nor §§ 1204, 1211-1218, 1221, 7512, and 7701-7703,
relating to the Board. Section 3330a, which grants the Board jurisdiction
over violations of veterans’ preference rights, is not among the sections of
Title 5 applicable to the FAA. There is nothing in 49 U.S.C. § 40122(g)(2)
indicating that Congress intended to grant FAA employees or applicants
VEOA appeal rights. FAA employees were not afforded VEOA appeal rights
by operation of the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century. Thus, the Board has no jurisdiction over a VEOA appeal
from an FAA employee or applicant.
O’Leary v. Office of Personnel Management
MSPB Docket No. AT-300A-98-0635-M-1
January 11, 2007
Miscellaneous Agency Actions - Employment Practice
HOLDING: The Supplemental Qualifications Statement (SQS) part of
the Social Security Administration ALJ Examination under which the
appellant applied meets the basic requirements of 5 C.F.R. § 300.103.
In 1993, the appellant, a staff attorney in the Office of Hearings and
Appeals (OHA) of the Social Security Administration (SSA), filed an
application under the Administrative Law Judge (ALJ) Examination. The
Office of Personnel Management (OPM), which developed and administers
that examination, reviewed the appellant’s supplemental qualifications
statement (SQS) – a document describing the applicant’s relevant work
experience – and initially assigned him a score of 21, then later lowered his
score to 14 after he completed the remaining parts of the ALJ Examination.
The appellant challenged his examination rating by filing an appeal with
OPM pursuant to 5 C.F.R. § 300.104(b), and his SQS score was raised to 18.
He later filed this employment practice appeal with the Board under 5 C.F.R.
§ 300.104(a), alleging that the SQS part of the ALJ Examination
discriminated against staff attorneys employed in SSA’s OHA. That appeal
was eventually dismissed by the administrative judge (AJ) for lack of
jurisdiction after a hearing. In O’Leary v. Office of Personnel Management,
96 M.S.P.R. 548, ¶ 1 (2004), the Board reversed the initial decision. In doing
so, it found that it had jurisdiction over the appeal; it noted that the AJ had
held a hearing; and, although he had characterized the hearing as one
addressing the issue of jurisdiction, the Board found that the parties had in
fact addressed the merits of the appeal, that OPM had met its burden of
proving that the SQS part of the ALJ Examination met the basic requirements
of 5 C.F.R. § 300.103, and that remand was unnecessary. On petition for
judicial review, the court concurred with the Board’s jurisdictional finding,
but found that the appellant was entitled to an additional hearing “because the
2
hearing that [he] received before the [AJ] was designated jurisdictional.”
After holding another hearing, the AJ issued an initial decision in which he
found that the appellant was not entitled to relief.
On review, the Board denied the appellant’s petition for review,
reopened the appeal, and affirmed the initial decision as modified, still
finding that OPM proved that the SQS part of the ALJ Examination under
which the appellant applied meets the basic requirements of 5 C.F.R.
§ 300.103.
The Board first reaffirmed its finding that the SQS portion of the ALJ
Examination meets the job analysis requirement of 5 C.F.R. § 300.103(a). To
satisfy the second of the basic requirements, 5 U.S.C. § 300.103(b), OPM
must show that there is a rational relationship between the employment
practice and performance in the position to be filled, and demonstration of the
existence of this rational relationship must include a showing that the
employment practice was professionally developed. The Board clarified that,
contrary to the AJ’s statement in the initial decision, there is no presumption
that an employment practice was professionally developed. Here, the Board
found that, while standards that eventually became part of the ALJ
examination were not necessarily drafted by professional psychologists, a
preponderance of the evidence established that the SQS portion of the
examination was itself professionally developed.
To satisfy the third of the basic requirements, 5 C.F.R. § 300.103(c), the
employment practice may not discriminate on the basis of a nonmerit factor.
The Board found that one of the “benchmarks examples,” which OPM uses in
calculating an individual’s SQS score, supports the appellant’s argument that
OPM views some aspects of experience as an OHA attorney less favorably
than the experience of attorneys in other agencies and other positions.
However, a scoring system that favors some kinds of experience over other
kinds does not necessarily discriminate against applicants on a nonmerit
factor. Here, OPM reasonably rated the experience of others higher than the
experience of an OHA attorney. In addition, the Board saw no need to modify
its previous findings regarding the effect of the benchmarks’ references to job
titles. Finally, the appellant did not show error or prejudicial error in any of
the AJ’s procedural rulings.
Gartner v.Department of the Navy
MSPB Docket No. AT-0752-06-0156-I-1
January 12, 2007
Adverse Action Charges - Absence Related
Penalty – Absence Related
HOLDING: Absences for which the appellant had been previously
disciplined cannot form the basis of a subsequent disciplinary action for
excessive absences; the Cook exception, which allows an agency to take an
3
adverse action based on approved unscheduled absences when the
employee makes excessive use of unscheduled LWOP, does not apply to
approved sick leave; the charge of excessive absences was properly
sustained based on the appellant’s LWOP and AWOL where the Cook
criteria were satisfied and the evidence showed that the appellant could
not return to work because of the continuing effects of her mental illness;
the removal penalty was sustained for the charge of excessive absences.
Between December 2004 and June 2005, the appellant was counseled and
disciplined for several leave-related violations during the period of
January 12 to April 7, 2005. Following additional absences, the agency
removed the appellant based on a charge of excessive absence during the
period of January 9 to July 23, 2005. On appeal the appellant argued that her
removal was improper because all of her absences were approved. The
administrative judge (AJ) affirmed the removal action.
On review, the Board stated that it would not consider the appellant’s
absences for which the appellant had been previously disciplined because an
agency may not impose discipline more than once for the same misconduct.
Because the notice of proposed removal did not exclude leave-related
misconduct for which the appellant had already been disciplined, it was
unclear whether the agency was attempting to impose a second round of
discipline, at least in part, for the same misconduct. Therefore, the Board
stated that it would not consider the appellant’s absences from January 12-21,
March 29, or April 6 and 7.
In addition, the Board stated that it would not consider the appellant’s
absences during any period that she was on approved sick leave. The Board
thus stated that, for purposes of the charge of excessive absences, it would
only consider a total of 333 ½ hours of unscheduled absences consisting of a
combination of LWOP and AWOL. The appellant argued that she was on
approved medical leave and she submitted medical documentation showing
that she was unable to work because of mental illness. Although an adverse
action cannot be based on an employee’s use of approved leave, an agency
can bring an action against an employee for excessive approved absence when
the criteria set forth in Cook v. Department of the Army, 18 M.S.P.R. 610,
611-12 (1984) are satisfied. The Board found that the Cook criteria were
satisfied here, and that the evidence showed that the appellant could not
return to work because of the continuing effects of her mental illness. The
Board thus found that the AJ properly affirmed the agency’s removal action
based on the charge of excessive absences. Further finding that the deciding
official properly evaluated the relevant penalty factors, the Board sustained
the appellant’s removal.
4
LaMell v. Armed Forces Retirement Home
MSPB Docket No. AT-3443-06-0657-I-1
January 12, 2007
Reduction in Force – Bona Fides
Jurisdiction - Miscellaneous
HOLDING: Although the AJ correctly found that the Board lacks
jurisdiction over the appellant’s placement on administrative leave, the
Board remanded the appeal for the AJ to clarify whether the appellant
intended to appeal her separation by RIF; the RIF may have been in the
nature of an adverse action where the agency issued a notice of proposed
removal under ch. 75, and the record was unclear as to whether the
proposed removal was rescinded prior to the RIF.
In February 2005, the appellant, who was employed at the Armed Forces
Retirement Home in Gulfport, Mississippi, was placed on administrative leave
for disciplinary reasons. On August 10, 2005, the agency issued a notice of
proposed removal under 5 U.S.C. chapter 75 and rescinded a March 2005
notice of proposed removal, explaining that it never issued a decision on the
March proposed removal because the facility was evacuated and closed
following Hurricane Katrina. Since the facility could remain closed for as
long as 18 months due to damage caused by the hurricane, the appellant and
other employees of the Armed Forces Retirement Home were separated
pursuant to a reduction in force (RIF). The appellant appealed her placement
on administrative leave. Without addressing the appellant’s separation
pursuant to the RIF nor the proposed removal, the administrative judge (AJ)
dismissed the appeal for lack of jurisdiction.
On review, the Board stated that the AJ correctly found that the Board
lacks jurisdiction over the appellant’s placement on administrative leave, and
that the Board, thus, could not consider her discrimination claims. The Board
further found that the record below, including the appellant’s reference to her
“terminat[ion],” the appellant’s submission of the RIF separation proposal
notice, and the agency’s submissions, should have alerted the AJ to clarify
whether the appellant intended to appeal her separation by RIF. Therefore,
the Board remanded the case for the AJ to address and, if necessary,
adjudicate, the RIF matter. Finally, the Board stated that, because there is
nothing in the record to indicate that the proposed removal was rescinded
prior to the RIF, it could not eliminate the possibility that the RIF might have
been in the nature of an adverse action, i.e., based on reasons personal to the
appellant and not directed to her position.
5
Thornton v. Office of Personnel Management
MSPB Docket No. PH-0845-06-0098-I-1
January 12, 2007
Retirement – Annuity Overpayment
Timeliness – New Evidence/Argument
New Evidence
HOLDING: The Board remanded this appeal of OPM’s denial of the
appellant’s request for a waiver of collection of an overpayment to OPM
for a new computation of the amount of the annuity overpayment where
OPM submitted new and material evidence on review that the appellant
was receiving OWCP benefits and a FERS disability retirement annuity
concurrently.
The appellant applied for and was granted a disability retirement under
the Federal Employees Retirement System (FERS) in January 2005. The
appellant began receiving monthly estimated interim annuity payments while
OPM calculated the exact amount of his annuity. When OPM finalized its
calculation of the appellant’s retirement annuity in June 2005, it concluded
that he had been overpaid and proposed to collect the overpayment in
installments. OPM denied the appellant’s request for a waiver of the
collection of the overpayment. In a June 19, 2006 initial decision (ID), the
AJ affirmed OPM’s decision.
The Board summarily denied the appellant’s petition for review (PFR).
OPM filed an untimely cross PFR, included a declaration in support of its
request that the Board waive the time limit for filing a cross PFR, and
submitted a letter it received from the Office of Workers’ Compensation
Programs (OWCP) advising OPM that the appellant had been receiving
OWCP benefits since January 5, 2004, and that on August 1, 2006, the
appellant elected to receive OWCP benefits instead of an OPM annuity.
OPM’s representative also submits a sworn statement asserting that OPM did
not receive the OWCP letter until August 22, 2006, and that the representative
did not learn of the letter until September 18, 2006, when he was first
assigned to this case. In his application for a retirement annuity, the
appellant informed OPM that he had not applied for and was not receiving
OWCP benefits. The Board found that: The OWCP letter was new and
material; OPM had established good cause for the delay in filing its cross
PFR; and the OWCP letter was of sufficient weight to warrant an outcome
different from that of the ID because the appellant was not entitled to receive
both OWCP benefits and a FERS disability retirement annuity. Further
finding that this new evidence will require a new computation by OPM of the
amount of the annuity overpayment made to the appellant, the Board
accordingly remanded this matter to OPM.
6
Boykin v. U.S. Postal Service
MSPB Docket No. SF-0752-06-0593-I-1
January 11, 2007
Timeliness – e-Appeal
HOLDING: The appellant showed good cause for his 1-day delay in filing
his e-appeal.
On May 2, 2006, the appellant filed an appeal of his demotion
electronically (e-appeal) 1-day late. The administrative judge dismissed the
appeal as untimely filed without good cause shown. On review, the Board
granted the appellant’s PFR, vacated the initial decision, and remanded the
appeal for adjudication of the merits. The Board found that its records
support the appellant’s representative’s account that: On May 1, 2006, he
accessed the Board’s e-filing site; he repeatedly received “timed out”
messages and was unable to continue with the process; he made multiple
attempts to log on again but was unsuccessful; and he was able to complete
the filing process the following day. Furthermore, several users reported
having problems using e-appeal around May 1-3, 2006, and the incidence of
problems was higher than usual at that time. For these reasons and based on
the minimal delay and the absence of a claim of prejudice by the agency, the
Board found that the appellant showed good cause for the untimely filing of
his appeal.
Tolbert v. Small Business Administration
MSPB Docket No. AT-315H-06-0175-I-1
January 12, 2007
Jurisdiction – Probationers/5 U.S.C. § 7511(a)(1)(A)
HOLDING: Where the appellant did not request a hearing, the Board
weighed the evidence he offered that his termination was based on pre
appointment reasons against the agency’s evidence that he was
terminated for post-appointment reasons and found the latter more
persuasive, and, thus, dismissed this appeal for lack of jurisdiction.
The appellant appealed his termination during his probationary period,
asserting that the agency terminated him for pre-appointment reasons and
submitting a letter that he claimed proved this. He did not request a hearing.
The agency contended that the appellant was terminated for post-appointment
reasons and submitted supporting documentation. The AJ issued an initial
decision dismissing the appeal for lack of jurisdiction apparently based on the
agency’s stated reason for the termination, without considering the
appellant’s proffered evidence. On petition for review, the Board found that,
7
to the extent the AJ erred in failing to properly weigh the record evidence in
assessing the appellant’s jurisdictional assertions, his error provides no basis
for reversal of the initial decision because the appellant’s evidence was
insufficient to meet his burden of proof, especially when weighed against the
agency’s evidence indicating that he was terminated for post-appointment
reasons. Therefore, the Board dismissed the appeal for lack of jurisdiction.
Rainone v. Office of Personnel Management
MSPB Docket No. NY-831E-05-0277-X-1
January 16, 2007
Compliance – Dismissal on Proof
Retirement
- Annuities
– Disability
HOLDING: OPM correctly relied on a certified corrected Individual
Retirement Record (IRR) from the employing agency in determining the
appellant’s last day in pay status for purposes of calculating his disability
retirement annuity.
In Rainone v. Office of Personnel Management, 102 M.S.P.R. 88 (2006),
the Board ordered OPM to award the appellant a disability retirement. In
response to the appellant’s petition for enforcement, OPM submitted evidence
indicating that it had awarded the appellant a disability retirement using July
28, 2000, as the last day in pay status (LDPS), and had issued payment for
back pay and his annuity. A corrected individual retirement record (IRR) in
the record set forth July 28, 2000 as the appellant’s LDPS. The AJ issued a
Recommendation that the Board find OPM only in partial compliance because
OPM should have calculated the appellant’s annuity as of June 19, 1999.
The Board found that the agency was in compliance and dismissed the
appellant’s petition for enforcement as moot. The appellant’s IRR as
maintained by the employing agency is the basic record used in determining
his annuity, and OPM is entitled to rely on the information contained in the
IRR unless and until the IRR is amended by the employing agency. Although
the Board stated in Rainone that the appellant’s LDPS was June 19, 1999, and
that he was disabled from performing useful and efficient service in his
position of record during the period from June 19, 1999, to his voluntary
retirement on January 31, 2004, the corrected certified record of the
appellant’s IRR shows that his LDPS was July 28, 2000. Moreover, it
appears that this corrected date was predicated on the employing agency’s pay
documentation that the appellant worked in the year 2000 for one pay period.
Thus, based on the documentation, it appears that although the appellant may
have been disabled from performing useful and efficient service in his
position since June 19, 1999, his pay had not “ceased” for purposes of
8
5 U.S.C. § 8345(b)(1), if he returned to a pay status prior to his separation.
Because the record shows that OPM relied on a certified corrected IRR for a
LDPS of July 28, 2000, in light of the employing agency’s record that the
appellant returned to a pay status in 2000, the Board found that OPM properly
relied on the IRR for this information to calculate the appellant’s disability
retirement annuity.
Finally, the Board found that it is without jurisdiction to order OPM to
obtain a corrected certified IRR from the appellant’s employing agency, and
that, instead, the appellant’s remedy is to petition the employing agency to
amend his IRR and to forward it to OPM for the commencement of a different
disability date if so determined by the employing agency.
DISMISSALS-SETTLEMENT/WITHDRAWN
The following appeal was dismissed as withdrawn pursuant to a settlement agreement:
Stroup v. Department of Homeland Security, NY-1221-04-0192-W-4 (1/10/07)
The following case was dismissed as settled:
Neal v. Department of the Treasury, MSPB Docket No. DE-0752-01-0338-X-1 (1/12/07)
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Ward v. Office of Personnel Management, 06-3353, AT-831E-06-0053-I-1 (1/11/07)
Hunter v. Department of the Air Force, 06-3355, DA-0752-06-0258-I-1 (1/11/07)
Bush v. Office of Personnel Management, 06-3173, DC-0831-05-0452-I-1 (1/11/07)
Kostishak v. Merit Systems Protection Board, 06-3280, DC-0831-05-0679-I-1 (1/12/07)
Theus v. Department of Transportation, 06-3141, DA-1221-05-0009-W-2 (1/16/07)
Brent v. Department of Justice, 06-3153, AT-0752-05-0514-I-1 (1/16/07)
Smart v. Merit Systems Protection Board, 06-3283; DE-1221-05-0505-W-1 (1/16/07)
Tavarez v. Office of Personnel Management, 06-3394, SF-831E06-0217-I-1 (1/16/07)
Wade v. Department of Labor, 06-3266, SF-0752-05-0640-I-1 (1/17/07)
Fisher v. Office of Personnel Management, 06-3324, DE-0845-05-0500-I-1 (1/17/07)
Douglas v. Department of Agriculture, 07-3029, AT-0752-06-0373-I-1 (1/17/07)
Brown v. Department of the Navy, 07-3064, AT-1221-05-0493-B-1 (1/17/07)
A petition for rehearing en banc was denied in the following case:
Zgonc v. Department of Defense, 06-3265, DC-1221-06-0306-W-1 (1/17/07)
The court recalled the mandate and reinstated the appeal:
Jones v. U.S. Postal Service, 07-3054, AT-0752-06-0027-I-1 (1/16/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 1267 (1/11/07)
9
OPM issued final regulations to amend the incentive awards
regulations. The amended regulations clarify that if agencies grant rating
based awards, they must base such awards on a rating of record of “Fully
Successful” (or equivalent) or higher. In addition, agencies must ensure that
rating-based awards granted make meaningful distinctions based on levels of
performance.
72 Fed. Reg. 1911 (1/17/07)
The Office of Personnel Management issued a final rule to amend the
Federal Employees Health Benefits regulations regarding discontinuance of a
health plan to include situations in which a health plan becomes
incapacitated, either temporarily or permanently, as the result of a disaster.
10 | 23,379 | |
Case Report - January 12, 2007 | 01-12-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_12_2007_229938.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_12_2007_229938.pdf | CASE REPORT DATE: January 12, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Talavera v. Agency for International Development,
MSPB Docket No. DC-0752-05-0801-I-2
January 9, 2007
Constitutional Issues/Due Process
- Due Process
Penalty
- Miscellaneous
HOLDING: The agency deciding official did not violate the appellant’s
due process rights by considering the appellant’s false statements in her
written reply to the notice of proposed removal in making his penalty
determination because it would be appropriate to consider such behavior
in assessing the appellant’s potential for rehabilitation, which is a
relevant consideration in making a penalty determination. Even if the
deciding official had considered misconduct outside of that included in
the notice of proposed removal, the appellant was not denied any due
process because the Board found that the penalty of removal was
reasonable.
The agency removed the appellant, a security specialist, on four charges:
Misrepresentation of a material fact; providing false information to a
supervisor; inattention to duty; and failure to comply with instructions. The
appellant filed a discrimination complaint with the agency and after 120 days
had elapsed without an agency final decision, the appellant filed an appeal
with the Board. Following a hearing, the administrative judge (AJ) found that
the agency had proven 3 of the 4 charges, that the appellant had not proven
her affirmative defenses of discrimination and retaliation, and that the penalty
of removal was reasonable. The appellant petitioned for review, challenging
the AJ’s findings and reasserting that the agency violated her due process
rights because the deciding official considered matters outside the notice of
proposed removal in selecting a penalty.
The Board held that the appellant failed to show any error in the AJ’s
findings regarding the charges and her affirmative defenses; however, the
Board granted the petition to consider the appellant’s due process argument
that the AJ did not address below. The Board affirmed the removal. The
evidence in the record did not support the appellant’s allegation that the
deciding official considered one piece of information outside the notice of
proposed removal. The deciding official did consider another piece of
information in his penalty determination, the appellant’s false written
statements in response to the proposed removal. The Board found that
consideration of such information was appropriate in determining a penalty
because it clearly went to the appellant’s potential for rehabilitation, a
relevant consideration in making a penalty determination. Therefore, the
consideration of that information by the deciding official when determining
an appropriate penalty did not deny the appellant any due process.
Furthermore, even if consideration of such information was error by the
deciding official, there was no denial of due process because the Board
considered the Douglas factors and found the penalty of removal to be
reasonable.
Hardy v. U.S. Postal Service,
MSPB Docket No. CH-0353-05-0849-I-1
January 10, 2007
Retirement
- Disability Retirement
- Recovery from Disability
- Restoration to Earning Capacity
Miscellaneous Agency Actions
- Restoration to Duty
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
Discrimination
- Physical/Mental Disability – Accommodation
Jurisdiction
- Discrimination Complaints/Mixed Cases
- Miscellaneous
HOLDING: The appellant established jurisdiction over his denial of
restoration claim but failed to show that the agency acted arbitrarily and
capriciously in delaying restoration while awaiting confirmation from
OWCP of his restrictions because there was conflicting medical evidence
as to the appellant’s recovery from his disability. The Board lacked
jurisdiction over the appellant’s constructive suspension claim because he
2
was not a preference eligible postal employee and he was precluded from
re-litigating the issue of his veterans’ preference status because he had
the opportunity to litigate the identical issue in a prior appeal.
The appellant suffered an injury at work which affected his right
shoulder and back. He began to receive Office of Workers’ Compensation
Programs (OWCP) benefits and applied and received a disability retirement.
OPM, upon approving his disability retirement requested the agency to
separate the appellant, which it did, effective May 3, 2004. On July 21, 2004,
the agency offered the appellant a modified position to return to work. The
appellant declined, asserting that he was retired. The appellant underwent
two medical exams in January and April 2005, both of which found him no
longer disabled and OWCP terminated his benefits on July 23, 2005. The
appellant reported for work on August 2, 2005 and was told that he was no
longer on the rolls. The appellant filed this appeal and a separately docketed
involuntary retirement claim with the Board. The involuntary retirement
claim was dismissed for lack of jurisdiction because the appellant failed to
show he was a preference-eligible employee or a management or supervisory
employee. That initial decision became final on May 5, 2006.
In this appeal the appellant made essentially three claims: That he was
constructively suspended, that he was denied restoration as a partially
recovered employee, and that his denial of restoration was discriminatory,
based upon his disability. The Board dismissed the appellant’s constructive
suspension claim for lack of jurisdiction because the appellant was not a
preference eligible veteran. The appellant claimed for the first time on PFR
that he was a 5 point preference eligible marine veteran; however, he
provided no evidence in support of this claim. Moreover, he was precluded
from re-litigating this issue because this identical issue was necessarily
litigated in the appellant’s previously decided involuntary retirement appeal
and the AJ had found that the appellant was not preference eligible after the
appellant had a full and fair opportunity to litigate the issue.
With respect to the appellant’s restoration claims, the Board lacked
jurisdiction over his claim that the agency’s July 21, 2004 job offer was so
unreasonable as to be a denial of restoration because the appellant provided
no evidence to show that the appellant had requested restoration at the time.
In fact, the record showed that the appellant expressed no desire to return to
duty at the time. The appellant did request restoration in August 2005, after
his OWCP benefits were terminated. He made sufficient non-frivolous
allegations to establish Board jurisdiction because he was separated due to a
compensable injury, there was some medical evidence that he was recovered
to some degree, the agency acknowledged that he requested restoration in
August 2005, and he alleged that the agency’s response to his request was
effectively a denial of restoration and was arbitrary and capricious.
Having established jurisdiction, the appellant failed to prevail on the
merits. Unlike previous cases where an agency’s delay in restoring an
3
employee may have been arbitrary and capricious in the face of unrebutted
medical evidence of the appellant’s recovery, the agency was faced in this
case with conflicting medical evidence that the appellant was either fully
recovered or only partially recovered, if at all. Moreover, OWCP had yet to
make a final determination as to the appellant’s restrictions, if any.
Accordingly, the agency’s decision to await OWCP’s final determination did
not constitute an arbitrary and capricious denial of restoration. Furthermore,
the appellant’s refusal to cooperate with the agency’s Manager of Personnel
Services and OPM to facilitate his restoration undermines his argument that
the agency acted arbitrarily and capriciously in filling two positions after he
had requested restoration.
Having found jurisdiction over the appellant’s restoration claim, the
Board addressed his discrimination claim and found that he failed to prove
any discrimination. He failed to articulate a reasonable accommodation under
which he could perform. He failed to show that the agency acted under a
misperception that he was more disabled than was the case. He failed to show
that the agency believed he was unable to performance the major life activity
of a job. He failed to present evidence that he was disparately treated as
compared to a similarly situated employee.
Jensen v. Department of Agriculture,
MSPB Docket No. CH-1221-05-0844-W-1
January 10, 2007
Whistleblower Protection Act
- Protected “Disclosure”
- Miscellaneous
HOLDING: The appellant’s disclosures were not protected under the
WPA because she failed to establish that she reasonably believed that the
information she disclosed evidenced a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health and safety. The AJ erred
in finding that the agency conceded that the appellant’s disclosures were
protected under the WPA because such a question is a matter of mixed
fact and law and stipulations on such matters are not binding.
The appellant, a supervisory computer specialist with the agency, alleged
that after she testified in another employee’s EEO proceeding the agency
began taking adverse personnel actions against her. She also alleged that
these continued after she was interviewed by the agency’s Office of the
Inspector General (OIG), specifically that she was reassigned to a non
supervisory position. The information she supplied to the OIG concerned the
quality and reliability of the work provided to the agency by a subcontractor
and her disagreement with her supervisor, Denise Hoffman, about the
4
continued use of that subcontractor and the propriety of the billing for the
subcontractor’s work.
Having exhausted the process at the Office of Special Counsel (OSC),
the appellant filed an individual right of action (IRA) appeal with the Board.
The administrative judge (AJ) found that her testimony at the EEO proceeding
is protected under 5 U.S.C. § 2302(b)(9), not the Whistleblower Protection
Act (WPA) such that the Board lacks jurisdiction over that claim in an IRA
appeal. The AJ found that the appellant proved that her disclosures to the
OIG were protected under the WPA and were a contributing factor in the
agency’s decision to reassign her. However, the AJ also found that the
agency, via Denise Hoffman’s sworn statement, had proved by clear and
convincing evidence that it would have reassigned the appellant to the non
supervisory position absent the protected disclosures.
The Board affirmed the AJ’s finding that it lacked jurisdiction over the
EEO testimony because it is not protected under the WPA. The Board found
that the appellant had not proven that her disclosures to the OIG were
protected because the evidence in the record did not show that she reasonably
believed that her disclosures evidenced a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health and safety. The AJ erred in
finding the disclosures to the OIG were protected by relying on the agency’s
alleged stipulation to that effect in one of its filings. Firstly, this
interpretation of the agency’s filing was erroneous. Secondly, and more
importantly, the question of whether a disclosure is protected under 5 U.S.C.
§ 2302(b)(8) is a matter of mixed fact and law and stipulations relating to
such matters are not binding.
Jenkins v. Department of the Treasury,
MSPB Docket No. DA-0752-050485-I-1
January 10, 2007
Adverse Action Charges
- Miscellaneous/Procedures
Board Procedures/Authorities
- Authority of Administrative Judges/Board
Penalty
- Miscellaneous
HOLDING: The agency’s charge of failure to timely file a personal
federal income tax return did not require the agency to prove that such a
failure was willful because the proposing official specified that the agency
was charging the appellant with willfully failing to timely file, and, in the
alternative, failing to timely file whether willful or not. The Board was
not precluded from considering the reasonableness of the penalty by
prior settlement agreements between the agency and the appellant in
5
which the appellant surrendered her Board appeal rights because the
agency made no mention of the settlement agreements in the notice of
proposed removal. The Board was not precluded from reviewing the
penalty of removal, which would have been mandatory for the charges
here sustained under Section 1203 of the IRS Restructuring & Reform
Act of 1998 (RRA), because the agency did not rely on the RRA’s
procedures in removing the appellant.
The agency removed the appellant based upon two charges: failure to
timely file a 2002 personal federal income tax return; and failure to properly
file the 2002 tax return. The administrative judge (AJ) did not sustain the
first charge, finding that the appellant did not willfully fail to timely file and
that in fact she did not fail to timely file her 2002 return. The AJ sustained
the second charge, finding that she willfully understated her 2002 tax
liability. The AJ upheld the removal as reasonable upon the second charge
alone. The appellant filed a petition for review (PFR) and the agency filed a
cross-PFR.
The Board denied the appellant’s PFR for failure to meet the review
criteria. The Board granted the agency’s cross-PFR, affirmed the initial
decision, as modified, and upheld the removal. The Board sustained the first
charge because the AJ erred in finding that the agency had to prove that the
appellant acted willfully in failing to timely file a return, as required by
Sections 1203(b)(8) and (b)(9) of the RRA, codified at 26 U.S.C. § 7804. The
agency charged the appellant with failure to timely file a return in violation of
Section 1203 and other laws, rules or regulations, which did not require a
showing of intent. Even though the agency did not prove intent, it still
proved the charge in the alternative. The AJ also erred in finding that the
appellant in fact did timely file her 2002 return because the appellant only
filed a partial return by the deadline of April 15, 2003, failing to file a
required schedule, which rendered her return untimely under the agency’s
policy.
The agency argued that two settlement agreements between the appellant
and the agency, wherein the appellant surrendered her Board appeal rights,
prevented the Board from reviewing the reasonableness of the penalty. The
Board disagreed because the notice of proposed removal made no mention of
the settlement agreement and the Board is required to review the agency’s
decision solely on the grounds invoked by the agency in that notice of
proposed removal. Furthermore, it would be error for the agency to rely on
matters affecting the penalty it imposes without including those matters in the
proposal notice.
The agency also argued that the Board lacked authority to review the
penalty because a violation of Section 1203(B)(9) of the RRA, which the AJ
found, subjected the appellant to mandatory removal. The Board disagreed
because the agency did not go through the RRA’s proscribed procedures for
imposing a mandatory removal. In deciding upon removal, the deciding
6
official considered the Board’s Douglas factors rather than forwarding the
case to the Commissioner’s Review Board for mitigation consideration, as
required by the RRA procedures. Therefore, having sustained both charges,
the Board determined that the agency had considered the relevant Douglas
factors and found that removal was the maximum reasonable penalty.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The Court affirmed the Board’s decision in the following appeals:
Donn A.
Kerr v. Department of the Army, 2006-3315; CH-0752-05-0648-I-1
(1/9/07)
Wayne L.
Louie v. Department of the Treasury, 2006-3320, -3396; SF-1221
06-0134-W-1, SF-1221-06-0546-W-1 (1/9/07)
Christopher P.
Teacher v. Merit Systems Protection Board, 2006-3333; SF
3443-06-0278-I-1 (1/10/07)
Deborah M.
Melton v. Department of Health & Human Services, 2006-3346;
DC-0752-05-0498-C-1 (1/10/06)
The Court dismissed the following appeals:
Tyrone L.
Boswell v. Office Of Personnel Management, 07-3031; AT-831E
06-0365-I-1 (1/4/07)
Kim R.
Baird v. Department Of The Army, 07-3046; CH-0752-06-0377-I-1
(1/4/07)
Sheldon B.
Shanoff v. Office Of Personnel Management, 07-3049; PH-844E
05-0598-I-1 (1/4/07)
Daniel R.
Jones v. United States Postal Service, 07-3054; AT-0752-06-0027
I-1 (1/4/07)
Richard A.
Conrad v. United States Postal Service, 07-3058; PH-0752-06
0462-I-1 (1/4/07)
Alfred W.
Williams v. Office Of Personnel Management, 07-3062; PH-831E
06-0310-I-1 (1/9/07)
The Court denied the petition for rehearing:
Cornelio Layao v. Office Of Personnel Management, 05-3105; SE-0831-03
0362-I-1 (1/4/07)
Errata:
Porter v. Merit Systems Protection Board (NP) (1/4/07)
Fed. Cir. No. 2006-3279; MSPB Docket No. DC-315H-03-0146-C-1
Decided December 29, 2006
Page 3, line 1 of the slip opinion, replace “became” with – because –.
7 | 17,483 | |
Case Report - January 5, 2007 | 01-05-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_5_2007_229937.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_5_2007_229937.pdf | CASE REPORT DATE: January 5, 2007
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
COURT DECISIONS
Lary v. U.S. Postal Service
Fed. Cir. No. 3050; MSPB Docket No. DE-0752-02-0233-C-1
December 21, 2006
HOLDING: The agency materially breached the parties’ settlement
agreement by failing to timely provide documents necessary for the
appellant’s disability retirement application; rescission was not an
effective remedy because the appellant had missed the deadline for filing
his disability retirement application; the Board must order specific
performance, i.e., the agency must re-do all steps contemplated by the
agreement.
The agency removed the appellant, who suffers from Obstructive Sleep
Apnea, for attendance-related problems. On appeal, the parties entered into a
settlement agreement, under which the agency agreed, among other things, to
timely provide the following three documents, required by 5 C.F.R.
§ 844.203(a), for the appellant’s disability retirement application: The
Supervisor’s Statement; the Agency Certification of Reassignment and
Accommodation Efforts; and the Disability Retirement Checklist. The agency
did not timely provide the documents, and ultimately the agency itself filed
the appellant’s application and the Office of Personnel Management (OPM)
rejected it because it was filed more than one year from the appellant's
separation.
The appellant filed a petition for enforcement of the settlement
agreement, alleging that the agency had breached the agreement. The
administrative judge denied the petition for enforcement, finding in pertinent
part, that the agency’s failure to provide the needed documents in a timely
fashion was not a material breach of the settlement agreement. The Board
affirmed the compliance decision. Member Sapin dissented, arguing that the
agency had materially breached the settlement agreement because it had
prevented the appellant from timely applying for disability retirement.
On appeal, the court vacated the Board’s decision and remanded the
appeal. The court held that the agency’s breach was material because the
agency’s promise to timely provide the documents was central to the
settlement agreement. The court rejected the agency’s argument that the
breach was not material because, under OPM regulations, the appellant could
have filed an incomplete application and avoided missing the deadline. The
court stated that this argument is relevant only to the question of whether the
appellant could have mitigated damages and not to the materiality of the
breach. The court further found that, even if the appellant had filed an
incomplete application and thus avoided missing the one-year deadline, he
would still have been irreparably harmed by the breach because disability
benefits do not begin to accrue until all application requirements have been
met and the application is complete.
The court determined that rescission was not an adequate remedy
because reinstating the appeal would not change the fact that the appellant
missed the OPM deadline. Instead, the court found that the Board must order
specific performance -- the agency must re-do all steps contemplated by the
agreement. Thus, the Board must order the agency to vacate any and all of
the appellant’s prior removals, proposed removal letters and PS Form 50’s
and expunge them from the records and issue a new removal letter, effective
on the date of issuance, and a new PS Form 50 indicating medical inability to
perform as the reason for removal. The Board must further order the agency
to timely provide the required documents, which should reference only the
date of removal entered pursuant to the order of specific performance and not
any earlier removals. The appellant would then be able to file for disability
retirement benefits within one year of the new removal. Finally, because the
appellant’s previous removals will be expunged, the Board must award back
pay and any other relief that the appellant may be due.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Elinburg v. U.S. Postal Service, 06-3254; SF-0752-05-0900-I-1 (12/22/06)
Gaston v. Merit Systems Protection Board, 06-3264; NY-3443-06-0036-I-1 (12/22/06)
Waddoups v. Department of the Air Force, 06-3127; DE-0752-04-0252-I-1 (12/21/06)
(Rule 36)
FEDERAL REGISTER NOTICES
71 Fed Reg. 78033 (12/28/06)
OPM issued final regulations to carry out the reporting and best
practices requirements of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) which
2
requires federal agencies to report annually on certain topics related to federal
antidiscrimination and whistleblower protection laws and also requires a
comprehensive study to determine the executive branch’s best practices
concerning disciplinary actions against employees for conduct that is
inconsistent with these laws.
71 Fed Reg. 78235 (12/28/06)
OPM requested that the Office of Management and Budget approve a
collection associated with the Scholarship for Service Program (a program to
increase the number of qualified students entering the fields of information
assurance and computer security) Internet webpage.
3 | 5,447 |
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