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Case Reports - August 11, 2017 | 08-11-2017 | https://www.mspb.gov/decisions/case_reports/Case_Reports_August_11_2017_1436432.pdf | https://www.mspb.gov/decisions/case_reports/Case_Reports_August_11_2017_1436432.pdf | Case Report for August 11, 2017
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
PRECEDENTIAL:
Petitioner: Elissa Rumsey
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2661
Issuance Date: August 10, 2017
Individual right of action (IRA) appeals
Attorney Fees
Reasonableness of Fees
The petitioner was the prevailing party in an IRA appeal and was represented
by three different attorneys during the course of litigation before the Board.
The petitioner filed a petition for attorney fees. The Board granted fees for
two of the attorneys, but denied fees for the third attorney, Beth Slavet, on
the grounds that the petitioner failed to show that the fees were reasonable.
Specifically, the Board found that the documentation of Ms. Slavet’s work on
the case was insufficient to show how she had spent the time for which she
billed.
Holding: The court reversed the Board’s determination to disallow all
attorney fees claimed for Ms. Slavet’s work, and remanded for the Board to
determine the appropriate amount of fees.
1. The applicant for fees bears the burden of proving that they are
reasonable, including documenting the hours appropriately expended.
Nevertheless, under 5 U.S.C. § 1221(g), corrective action in an IRA appeal
“shall” include attorney fees. Therefore, even where documentation is
inadequate, the Board should use its experience and knowledge to
determine what a reasonable fee would be.
2. Although the petitioner conceded that “there may be some truth to
[the agency’s] claim that Ms. Slavet’s time charges should not be fully
compensable,” this did not constitute a concession that none of her time
charges were compensable.
3. There was an insufficient basis for the Board to disallow Ms. Slavet’s
hours altogether, although an examination of the documentation in support
and the agency’s challenges thereto may reveal that some specific hours
should be disallowed. It may also be appropriate for the Board to apply a
global reduction in light of the appellant’s limited success, as it did to the
fee awards for the work of the other two attorneys.
4. Ms. Slavet is a current federal employee, and conflict of interest laws
prohibit federal employees from taking payment for representing
individuals in proceedings against the United States. 18 U.S.C. §§ 203(a),
205(a). Nevertheless, these laws do not prevent an award of attorney fees
in this case because fees under 5 U.S.C. § 1221(g), are payable to the
employee – not to the employee’s attorney.
NONPRECEDENTIAL:
Jones v. Department of Health & Human Services, No. 2016-1908 (Aug. 10,
2017) (DE-4324-16-0240-I-1) (affirming, as supported by substantial evidence,
the Board’s final decision denying the petitioner’s request for corrective
action challenging his nonelection for appointment under VEOA and USERRA).
Brown v. Department of Defense, No. 2017-1687 (Aug. 10, 2017) (MSPB No. SF
0752-15-0761-I-1) (affirming the Board’s decision to uphold the petitioner’s
removal for misconduct; the petitioner did not prove his affirmative defenses
of due process violation or harmful procedural error).
Griesbach v. Department of Veterans Affairs, No. 2017-1510 (Aug. 9, 2016)
(MSPB No. AT-1221-16-0076-W-1) (affirming the Board’s decision that denied
the petitioner’s request for corrective action in this IRA appeal; substantial
evidence supported the Board’s finding that the petitioner’s disclosures were
not protected).
Henley v. Merit Systems Protection Board, No. 2016-2176 (Aug 4., 2016) (MSPB
No. AT-0752-15-0087-I-1) (petition for panel rehearing granted to correct the
legal standard set forth in the court’s July 19, 2017 decision; the court
affirmed the Board’s decision that dismissed the petitioner’s constructive
removal appeal for lack of jurisdiction; the petitioner failed to make a
nonfrivolous allegation that his resignation was involuntary; the petitioner
waived his discrimination claims so the case could proceed before the Federal
Circuit and would not have to be transferred to district court as a mixed case
pursuant to Perry v. Merit System Protection Board, 137
S. Ct. 1975 (2017).
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Case Report - August 11, 2017 | 08-11-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_11_2017_1436441.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_11_2017_1436441.pdf | Case Report for August 11, 2017
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
PRECEDENTIAL:
Petitioner: Elissa Rumsey
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2661
Issuance Date: August 10, 2017
Individual right of action (IRA) appeals
Attorney Fees
Reasonableness of Fees
The petitioner was the prevailing party in an IRA appeal and was represented
by three different attorneys during the course of litigation before the Board.
The petitioner filed a petition for attorney fees. The Board granted fees for
two of the attorneys, but denied fees for the third attorney, Beth Slavet, on
the grounds that the petitioner failed to show that the fees were reasonable.
Specifically, the Board found that the documentation of Ms. Slavet’s work on
the case was insufficient to show how she had spent the time for which she
billed.
Holding: The court reversed the Board’s determination to disallow all
attorney fees claimed for Ms. Slavet’s work, and remanded for the Board to
determine the appropriate amount of fees.
1. The applicant for fees bears the burden of proving that they are
reasonable, including documenting the hours appropriately expended.
Nevertheless, under 5 U.S.C. § 1221(g), corrective action in an IRA appeal
“shall” include attorney fees. Therefore, even where documentation is
inadequate, the Board should use its experience and knowledge to
determine what a reasonable fee would be.
2. Although the petitioner conceded that “there may be some truth to
[the agency’s] claim that Ms. Slavet’s time charges should not be fully
compensable,” this did not constitute a concession that none of her time
charges were compensable.
3. There was an insufficient basis for the Board to disallow Ms. Slavet’s
hours altogether, although an examination of the documentation in support
and the agency’s challenges thereto may reveal that some specific hours
should be disallowed. It may also be appropriate for the Board to apply a
global reduction in light of the appellant’s limited success, as it did to the
fee awards for the work of the other two attorneys.
4. Ms. Slavet is a current federal employee, and conflict of interest laws
prohibit federal employees from taking payment for representing
individuals in proceedings against the United States. 18 U.S.C. §§ 203(a),
205(a). Nevertheless, these laws do not prevent an award of attorney fees
in this case because fees under 5 U.S.C. § 1221(g), are payable to the
employee – not to the employee’s attorney.
NONPRECEDENTIAL:
Jones v. Department of Health & Human Services, No. 2016-1908 (Aug. 10,
2017) (DE-4324-16-0240-I-1) (affirming, as supported by substantial evidence,
the Board’s final decision denying the petitioner’s request for corrective
action challenging his nonelection for appointment under VEOA and USERRA).
Brown v. Department of Defense, No. 2017-1687 (Aug. 10, 2017) (MSPB No. SF
0752-15-0761-I-1) (affirming the Board’s decision to uphold the petitioner’s
removal for misconduct; the petitioner did not prove his affirmative defenses
of due process violation or harmful procedural error).
Griesbach v. Department of Veterans Affairs, No. 2017-1510 (Aug. 9, 2016)
(MSPB No. AT-1221-16-0076-W-1) (affirming the Board’s decision that denied
the petitioner’s request for corrective action in this IRA appeal; substantial
evidence supported the Board’s finding that the petitioner’s disclosures were
not protected).
Henley v. Merit Systems Protection Board, No. 2016-2176 (Aug 4., 2016) (MSPB
No. AT-0752-15-0087-I-1) (petition for panel rehearing granted to correct the
legal standard set forth in the court’s July 19, 2017 decision; the court
affirmed the Board’s decision that dismissed the petitioner’s constructive
removal appeal for lack of jurisdiction; the petitioner failed to make a
nonfrivolous allegation that his resignation was involuntary; the petitioner
waived his discrimination claims so the case could proceed before the Federal
Circuit and would not have to be transferred to district court as a mixed case
pursuant to Perry v. Merit System Protection Board, 137
S. Ct. 1975 (2017).
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Case Report - July 21, 2017 | 07-21-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_21_2017_1430185.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_21_2017_1430185.pdf | Case Report for July 21, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioners: Judith Miskill, AFGE Local 1923
Respondent: Social Security Administration
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1598
Arbitrator’s Decision No. BW-2014-R-004
Issuance Date: July 20, 2017
The agency removed Ms. Miskill for violations of the its time and
attendance policy. The American Federation of Government Employees
submitted a grievance on her behalf. The designated agency official
denied the grievance, and the union invoked arbitration. In preparation
for the arbitration hearing, Ms. Miskill requested turnstile records and
time reports of eight other individuals in her component. Upon
professional analysis of these records, Ms. Miskill argued that the
penalty of removal was too harsh because the eight other employees had
committed the same or similar violations as she had, but none of them
had been investigated or charged with misconduct. The Arbitrator
sustained Ms. Miskill’s removal after finding that the comparators were
not similarly situated to her because possible disciplinary action
regarding these other employees was still pending an investigation.
Ms. Miskill appealed the arbitration decision to the court. The agency
argued that the Collective Bargaining Agreement (CBA), which provides
that “[a]n arbitrator may only consider issues that were raised at the
last step of the grievance process,” precluded the arbitrator from
considering Ms. Miskill’s comparator evidence, which she raised for the
first time during arbitration.
Holdings:
(1) Declining to interpret “issue” as narrowly as suggested by the
agency, the court found that Ms.
Miskill sufficiently raised the
issue of disparate treatment during the grievance process by
arguing that her removal was not in compliance with the
requirements of Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305 (1981), which requires agencies, in determining the
appropriate penalty, to consider the consistency of the penalty
with those imposed upon other employees for the same or similar
offenses.
(2) The court found, however, that the arbitrator erred by imposing a
“categorical rule of exclusion” that similarly situated employees
under investigation could not be comparators. The court explained
that, although the fact that a comparator employee is under
investigation is a factor to be considered in determining whether
that comparator is similarly situated, it is not a complete bar.
(3) The court vacated the arbitration decision and remanded the
matter to the arbitrator.
Petitioner: Laurence M. Fedora
Respondent: Merit Systems Protection Board
Intervenor: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3039
MSPB Docket No. SF-0752-0433-I-1
Issuance Date: July 20, 2017
The appellant petitioned for rehearing en banc of the court’s panel
decision in Fedora v. Merit Systems Protection Board, 848 F.3d 1013
(Fed. Cir. 2017), which dismissed his untimely filed petition for review
with the court for lack of jurisdiction on the grounds that the timeliness
requirement of 5 U.S.C. § 7703(b)(1)(A) is jurisdictional in nature and is
not subject to equitable tolling.
The court requested supplemental briefing in light of the Supreme
Court’s holding in Perry v. Merit Systems Protection Board, 137 S. Ct.
1975 (2017), which held that the proper forum for review of the Board’s
jurisdictional dismissal of a mixed case is district court, not the Federal
Circuit. A mixed-case appeal is one in which an employee complains
that a personnel action serious enough to appeal to the Board was based
on discrimination.
The appellant elected to abandon his discrimination claims to avoid the
jurisdictional concern addressed in Perry, and the Government agreed to
the waiver. The court thus found that it had jurisdiction over the
appeal.
The court denied the appellant’s petition for panel rehearing and his
petition for rehearing en banc.
The dissent would have granted the appellant’s petition for rehearing en
banc to revisit the issue of whether the filing deadline in § 7703(b)(1)(A)
is properly defined as a jurisdictional requirement.
Petitioner: Robert D. Vocke, Jr.
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2390
MSPB Docket No. DC-1221-13-1266-W-1
Issuance Date: July 20, 2017
The appellant filed a petition for rehearing en banc of the panel
decision dismissing his untimely filed petition for review. The appellant
sought review of the Board’s decision dismissing his individual right of
action appeal for lack of jurisdiction. In the panel decision, the court
found that it lacked jurisdiction because the timeliness requirement of
5 U.S.C. § 7703(b)(1)(A) is jurisdictional in nature and is not subject to
equitable tolling.
The court denied the appellant’s petition for panel rehearing and his
petition for rehearing en banc.
The dissent would have granted the appellant’s petition for rehearing en
banc for the reasons stated in the dissent from denial of the petition for
rehearing en banc in Fedora v. Merit Systems Protection Board,
No. 15-3039.
Petitioner: Jeffery S. Musselman
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2522
MSPB Docket No. DA-1221-14-0499-W-3
Issuance Date: July 20, 2017
The appellant filed an untimely petition for review of the Board’s final
order denying his request for corrective action in an individual right of
action appeal. He subsequently requested an initial hearing en banc.
The court denied the appellant’s petition for hearing en banc.
The dissent would have granted the appellant’s petition for hearing en
banc for the reasons stated in the dissent from denial of the petition for
rehearing en banc in Fedora v. Merit Systems Protection Board,
No. 15-3039.
NONPRECEDENTIAL:
Sweeting v. Merit Systems Protection Board, No. 2016-2540 (July 19,
2017) (MSPB Docket No. AT-315H-16-0389-I-1) (Rule 36 affirmance).
Henley v. Merit Systems Protection Board, No. 2016-2176 (July 19, 2017)
(MSPB Docket No. AT-0752-15-0087-I-1) (accepting the appellant’s
waiver of his discrimination claims to retain jurisdiction and affirming
the Board’s dismissal of his alleged involuntary resignation appeal for
lack of jurisdiction).
Jones v. Department of Health and Human Services, No. 2017-1353
(July 17, 2017) (MSPB Docket Nos. DE-4324-15-0474-I-1, DE-4324-15
0499-I-1) (affirming the Board’s denial of the appellant’s request for
corrective action in his joined Uniformed Services Employment and
Reemployment Rights Act of 1994 appeals; finding that the Board did
not abuse its discretion in terminating the appellant’s hearing based on
the appellant’s “rude and disrespectful conduct which regularly
escalate[d] from advocacy to contumaciousness”; and finding no merit
to the appellant’s allegations of “targeted delays” by the Board or his
allegations that the Board supports discrimination against veterans).
Warrender v. Office of Personnel Management, No. 2017-1679 (July 14,
2017) (MSPB Docket No. DC-0845-15-1135-I-1) (affirming the Board’s
final order affirming the Office of Personnel Management’s decision
denying the appellant’s request for waiver of an overpayment paid
under the Federal Employees Retirement System).
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Case Report - June 9, 2017 | 06-09-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_9_2017_1417746.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_9_2017_1417746.pdf | Case Report for June 9, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Mark J. Tartaglia
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2226
MSPB Docket No. DC-0752-14-1108-I-1
Issuance Date: June 8, 2017
The appellant was a GS–12 Supervisory Security Officer and Chief of
Police at the agency’s Hampton, Virginia Veterans Administration
Medical Center (VAMC). The agency proposed to remove him on the
basis of the following three charges: (1) abuse of authority (supported
by six specifications); (2) lack of candor (supported by two
specifications); and (3) misuse of government property (supported by
one specification). The deciding official sustained only Charge 1 (based
on five of the six specifications) and Charge 2, and imposed the
appellant’s removal on the basis of the two sustained charges.
The appellant appealed his removal to the Board, and the administrative
judge issued an initial decision finding that the agency failed to prove
Charge 2 and that it proved only three specifications of Charge 1, but
that removal was nonetheless within the tolerable limits of
reasonableness based on these three specifications alone.
The appellant filed a petition for review of the initial decision. The
Board found that the agency proved only one specification—namely,
Specification 5 of Charge 1, which alleged that the appellant instructed
a subordinate to drive him in a government-owned vehicle to run a
personal errand. The Board found that the single sustained specification
supported the appellant’s removal because the table of penalties
permitted removal for the misconduct in question and because the
misconduct was serious. The Board also found that the significance of
mitigating factors, such as the appellant’s outstanding work record and
lack of prior discipline, was tempered because he has served with the
agency for “only approximately 4 years.”
The appellant appealed the Board’s decision.
Holdings:
1. Contrary to the Board’s factual finding that the appellant had
4 years of service with the agency, the record established that he
had 14 years of service with the agency and another 5 years of
military service.
2. The Board’s factual error affected its assessment of the
reasonableness of the penalty and, because the Board’s decision
rested upon unsupported factual findings, the Board abused its
discretion in sustaining the appellant’s removal.
3. When, as here, the Board sustains less than all of the charges and
the agency has not indicated that it would impose a lesser penalty
for fewer than all of the charges, it is for the Board (not the court
or the agency) to determine the penalty. Accordingly, the court
vacated the Board’s Final Order and remanded the case to the
Board for a determination of an appropriate penalty less than
removal.
4. In ordering the Board to impose a penalty less than removal, the
court explained that, under the circumstances of this case,
removal would be unreasonable and disproportionate to the
relatively minor offense committed, especially in light of the
appellant’s 19 years of combined military and civil service and the
fact that he had not previously been charged with misconduct.
NONPRECEDENTIAL:
Mayers v. Merit Systems Protection Board, No. 2017-1519 (June 6, 2017)
(MSPB Docket No. DE-0330-16-0050-I-1) (affirming the administrative
judge’s dismissal on the basis of untimeliness of more than 20 years
after the original filing date and more than 4 years after the more
recent filing date without good cause shown).
Salahuddin v. Merit Systems Protection Board, No. 2017-1654 (June 7,
2017) (MSPB Docket No. CH-315H-16-0305-I-1) (affirming the Board’s
dismissal of a probationary termination appeal for lack of jurisdiction
because, despite completion of 365 days of service during a leap year,
the petitioner was terminated 2 days prior to the anniversary date of his
initial appointment, whereas his probationary period ended on the day
before the anniversary date).
Wilson v. Department of Agriculture, No. 2017-1587 (June 7, 2017)
(MSPB Docket No. CH-0432-14-C-2) (affirming the Board’s compliance
final decision denying the appellant’s petition for enforcement of a
settlement agreement).
Ahuruonye v. Department of the Interior, No. 2017-1503 (June 8, 2017)
(MSPB Docket Nos. DC-1221-15-0295-W-1, DC-1221-16-0398-W-1,
DC-1221-16-0474-W-1, DC-1221-16-0501-W-1, DC-1221-16-0838-W-1)
(affirming the administrative judge’s findings in four of the five joined
individual right of action appeals but vacating the findings in DC-1221
15-0295-W-1 and remanding the appeal for further proceedings because
the administrative judge’s discussion was inadequate to permit the
court’s affirmance of the finding that the evidence was clear and
convincing that the agency would have proposed the appellant’s 5-day
suspension even without the protected disclosures).
Brenndoerfer v. U.S. Postal Service, No. 2017-1085 (June 8, 2017)
(MSPB Docket No. CH-0752-15-0640-I-1) (per curiam) (dismissing a
petition for review to the Federal Circuit for lack of jurisdiction on the
basis of untimeliness).
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Case Report- June 2, 2017 | 06-02-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_2_2017_1415519.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_2_2017_1415519.pdf | Case Report for June 2, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Darek J. Kitlinski
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1498
Docket Number: SF-4324-15-0088-I-1
Issuance Date: May 31, 2017
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA)
-Jurisdiction
During the relevant time, the appellant was employed by the Department of
Justice (DOJ), Drug Enforcement Administration (DEA). He also served as a
reservist in the U.S. Coast Guard. In 2011, he was recalled to active duty and
served full-time at the Coast Guard headquarters in Washington, DC. During
his employment, the appellant filed two USERRA complaints and an equal
employment opportunity (EEO) complaint against the agency.
On September 23, 2014, DEA representatives took the appellant’s deposition in
the EEO case at the DEA headquarters. Following the deposition, the appellant
returned to his car, which was parked in a secure DEA parking lot and
discovered a Blackberry device bearing a DEA sticker under the hood of the
car, which he suspected had been planted by DEA officials during his
deposition to track him and record his conversations. He reported the incident
to the Federal Bureau of Investigation and DOJ, who referred it to the DEA
Office of Professional Responsibility (OPR). The appellant’s wife, who also
worked for the DEA, also reported the incident to her supervisors and to OPR.
In response, an OPR investigator contacted her and directed her to turn over
the Blackberry and to appear at OPR offices for an interview. She alleged that
the investigators interrogated her and threatened her with discipline if she did
not turn over the Blackberry. Subsequently, two OPR investigators met with
the appellant at the Coast Guard headquarters and directed him to turn over
the Blackberry and come to the OPR offices the following day for an interview.
The appellant filed a Board appeal alleging that the placement of the
Blackberry and the interview of his wife constituted violations of USERRA both
as independent acts of discrimination and by creating a hostile work
environment. He also alleged that the investigators’ actions constituted
individual acts of retaliation and created a hostile work environment in
retaliation for his exercise of his rights under USERRA.
The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction because the appellant failed to make nonfrivolous
allegations that (1) he was subjected to the denial of a benefit of employment
under 38 U.S.C. § 4311(a) based on his military service, (2) the DEA took an
adverse employment action or otherwise discriminated in employment against
him under 38 U.S.C. § 4311(b) in retaliation for engaging in protected USERRA
activity, or (3) he was subjected to a hostile work environment under either
sections 4311(a) or 4311(b).
On review, the Board affirmed the initial decision as modified regarding the
appellant’s claim that the agency’s actions created an actionable hostile work
environment under section 4311(a). First, the Board agreed with the
administrative judge that the Blackberry incident did not deny the appellant a
benefit of employment and therefore did not constitute discrimination under
USERRA. Second, the Board held that the appellant failed to nonfrivoloulsy
allege that the DEA’s conduct created a hostile work environment under
section 4311(a) because the appellant failed to nonfrivolously allege that the
measures alleged to have given rise to the hostile work environment were
taken based on the his military status. Third, the Board held that the
appellant failed to make a nonfrivolous allegation that the agency had
retaliated against him for previous USERRA activity because such a claim
requires proof that the employers’ allegedly retaliatory measures constituted
“discrimination in employment” or “an adverse employment action.” Because
the Board concluded that the agency’s actions did not constitute either, it held
that it lacked jurisdiction over the retaliation claim.
Holding: The Court affirmed in part, vacated in part, and remanded.
1. The Court affirmed the Board’s holding that the appellant failed to
make a nonfrivolous allegation of USERRA discrimination under
section 4311(a) because the agency’s actions did not fit within the
categories of actions that section prohibits an agency from taking,
i.e., the denial of initial employment, reemployment, retention in
employment, promotion, or any benefit of employment.
a. The alleged placement of the Blackberry in the appellant’s car
did not constitute the denial of a benefit of employment within
the meaning of section 4311(a).
b. The actions taken by the OPR investigators, including meeting
the appellant at the Coast Guard headquarters and insisting
that he produce the Blackberry and appear for an interview at
the DEA headquarters the next day, did not deny the appellant
a benefit of employment.
2. The Court affirmed the Board’s finding that the appellant failed to
nonfrivolously allege that the agency violated section 4311(a) by
creating a hostile work environment because he failed to allege that
the hostile work environment was based on his military service.
3. The Court affirmed the Board’s finding that the appellant failed to
nonfrivolously allege that the discrete agency actions violated
section 4311(b), USERRA’s anti-retaliation provision.
a. The anti-retaliation statute is limited to barring acts of
discrimination in employment and adverse employment
actions.
b. The Blackberry incident did not constitute an act of
discrimination in employment because it did not deny him a
benefit that inures to him by virtue of his employment with
the agency. Nor was it an adverse employment action.
c. The OPR investigation did not constitute an act of
discrimination in employment or an adverse employment
action where it did not relate directly to the appellant’s
employment with the DEA and had no apparent effect on his
employment with the DEA.
4. The Board did not address the appellant’s claim that the agency’s
creation of a hostile work environment was due to retaliation under
section 4311(b). The Court granted the Board’s request to remand
the case to allow the Board to address that issue in the first instance.
NONPRECEDENTIAL:
Swartwoudt v. Department of Homeland Security, 2016-2724 (Jun. 1, 2017)
(affirming the Board’s decision to sustain the appellant’s removal for
inappropriate conduct and deny his affirmative defense of whistleblower
reprisal).
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Case Report- June 2, 2017 | 06-02-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_2_2017_1415521.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_2_2017_1415521.pdf | Case Report for June 2, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Darek J. Kitlinski
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1498
Docket Number: SF-4324-15-0088-I-1
Issuance Date: May 31, 2017
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA)
-Jurisdiction
During the relevant time, the appellant was employed by the Department of
Justice (DOJ), Drug Enforcement Administration (DEA). He also served as a
reservist in the U.S. Coast Guard. In 2011, he was recalled to active duty and
served full-time at the Coast Guard headquarters in Washington, DC. During
his employment, the appellant filed two USERRA complaints and an equal
employment opportunity (EEO) complaint against the agency.
On September 23, 2014, DEA representatives took the appellant’s deposition in
the EEO case at the DEA headquarters. Following the deposition, the appellant
returned to his car, which was parked in a secure DEA parking lot and
discovered a Blackberry device bearing a DEA sticker under the hood of the
car, which he suspected had been planted by DEA officials during his
deposition to track him and record his conversations. He reported the incident
to the Federal Bureau of Investigation and DOJ, who referred it to the DEA
Office of Professional Responsibility (OPR). The appellant’s wife, who also
worked for the DEA, also reported the incident to her supervisors and to OPR.
In response, an OPR investigator contacted her and directed her to turn over
the Blackberry and to appear at OPR offices for an interview. She alleged that
the investigators interrogated her and threatened her with discipline if she did
not turn over the Blackberry. Subsequently, two OPR investigators met with
the appellant at the Coast Guard headquarters and directed him to turn over
the Blackberry and come to the OPR offices the following day for an interview.
The appellant filed a Board appeal alleging that the placement of the
Blackberry and the interview of his wife constituted violations of USERRA both
as independent acts of discrimination and by creating a hostile work
environment. He also alleged that the investigators’ actions constituted
individual acts of retaliation and created a hostile work environment in
retaliation for his exercise of his rights under USERRA.
The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction because the appellant failed to make nonfrivolous
allegations that (1) he was subjected to the denial of a benefit of employment
under 38 U.S.C. § 4311(a) based on his military service, (2) the DEA took an
adverse employment action or otherwise discriminated in employment against
him under 38 U.S.C. § 4311(b) in retaliation for engaging in protected USERRA
activity, or (3) he was subjected to a hostile work environment under either
sections 4311(a) or 4311(b).
On review, the Board affirmed the initial decision as modified regarding the
appellant’s claim that the agency’s actions created an actionable hostile work
environment under section 4311(a). First, the Board agreed with the
administrative judge that the Blackberry incident did not deny the appellant a
benefit of employment and therefore did not constitute discrimination under
USERRA. Second, the Board held that the appellant failed to nonfrivoloulsy
allege that the DEA’s conduct created a hostile work environment under
section 4311(a) because the appellant failed to nonfrivolously allege that the
measures alleged to have given rise to the hostile work environment were
taken based on the his military status. Third, the Board held that the
appellant failed to make a nonfrivolous allegation that the agency had
retaliated against him for previous USERRA activity because such a claim
requires proof that the employers’ allegedly retaliatory measures constituted
“discrimination in employment” or “an adverse employment action.” Because
the Board concluded that the agency’s actions did not constitute either, it held
that it lacked jurisdiction over the retaliation claim.
Holding: The Court affirmed in part, vacated in part, and remanded.
1. The Court affirmed the Board’s holding that the appellant failed to
make a nonfrivolous allegation of USERRA discrimination under
section 4311(a) because the agency’s actions did not fit within the
categories of actions that section prohibits an agency from taking,
i.e., the denial of initial employment, reemployment, retention in
employment, promotion, or any benefit of employment.
a. The alleged placement of the Blackberry in the appellant’s car
did not constitute the denial of a benefit of employment within
the meaning of section 4311(a).
b. The actions taken by the OPR investigators, including meeting
the appellant at the Coast Guard headquarters and insisting
that he produce the Blackberry and appear for an interview at
the DEA headquarters the next day, did not deny the appellant
a benefit of employment.
2. The Court affirmed the Board’s finding that the appellant failed to
nonfrivolously allege that the agency violated section 4311(a) by
creating a hostile work environment because he failed to allege that
the hostile work environment was based on his military service.
3. The Court affirmed the Board’s finding that the appellant failed to
nonfrivolously allege that the discrete agency actions violated
section 4311(b), USERRA’s anti-retaliation provision.
a. The anti-retaliation statute is limited to barring acts of
discrimination in employment and adverse employment
actions.
b. The Blackberry incident did not constitute an act of
discrimination in employment because it did not deny him a
benefit that inures to him by virtue of his employment with
the agency. Nor was it an adverse employment action.
c. The OPR investigation did not constitute an act of
discrimination in employment or an adverse employment
action where it did not relate directly to the appellant’s
employment with the DEA and had no apparent effect on his
employment with the DEA.
4. The Board did not address the appellant’s claim that the agency’s
creation of a hostile work environment was due to retaliation under
section 4311(b). The Court granted the Board’s request to remand
the case to allow the Board to address that issue in the first instance.
NONPRECEDENTIAL:
Swartwoudt v. Department of Homeland Security, 2016-2724 (Jun. 1, 2017)
(affirming the Board’s decision to sustain the appellant’s removal for
inappropriate conduct and deny his affirmative defense of whistleblower
reprisal).
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Case Report - June 2, 2017 | 06-02-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_2_2017_1415527.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_2_2017_1415527.pdf | Case Report for June 2, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Darek J. Kitlinski
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1498
Docket Number: SF-4324-15-0088-I-1
Issuance Date: May 31, 2017
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA)
-Jurisdiction
During the relevant time, the appellant was employed by the Department of
Justice (DOJ), Drug Enforcement Administration (DEA). He also served as a
reservist in the U.S. Coast Guard. In 2011, he was recalled to active duty and
served full-time at the Coast Guard headquarters in Washington, DC. During
his employment, the appellant filed two USERRA complaints and an equal
employment opportunity (EEO) complaint against the agency.
On September 23, 2014, DEA representatives took the appellant’s deposition in
the EEO case at the DEA headquarters. Following the deposition, the appellant
returned to his car, which was parked in a secure DEA parking lot and
discovered a Blackberry device bearing a DEA sticker under the hood of the
car, which he suspected had been planted by DEA officials during his
deposition to track him and record his conversations. He reported the incident
to the Federal Bureau of Investigation and DOJ, who referred it to the DEA
Office of Professional Responsibility (OPR). The appellant’s wife, who also
worked for the DEA, also reported the incident to her supervisors and to OPR.
In response, an OPR investigator contacted her and directed her to turn over
the Blackberry and to appear at OPR offices for an interview. She alleged that
the investigators interrogated her and threatened her with discipline if she did
not turn over the Blackberry. Subsequently, two OPR investigators met with
the appellant at the Coast Guard headquarters and directed him to turn over
the Blackberry and come to the OPR offices the following day for an interview.
The appellant filed a Board appeal alleging that the placement of the
Blackberry and the interview of his wife constituted violations of USERRA both
as independent acts of discrimination and by creating a hostile work
environment. He also alleged that the investigators’ actions constituted
individual acts of retaliation and created a hostile work environment in
retaliation for his exercise of his rights under USERRA.
The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction because the appellant failed to make nonfrivolous
allegations that (1) he was subjected to the denial of a benefit of employment
under 38 U.S.C. § 4311(a) based on his military service, (2) the DEA took an
adverse employment action or otherwise discriminated in employment against
him under 38 U.S.C. § 4311(b) in retaliation for engaging in protected USERRA
activity, or (3) he was subjected to a hostile work environment under either
sections 4311(a) or 4311(b).
On review, the Board affirmed the initial decision as modified regarding the
appellant’s claim that the agency’s actions created an actionable hostile work
environment under section 4311(a). First, the Board agreed with the
administrative judge that the Blackberry incident did not deny the appellant a
benefit of employment and therefore did not constitute discrimination under
USERRA. Second, the Board held that the appellant failed to nonfrivoloulsy
allege that the DEA’s conduct created a hostile work environment under
section 4311(a) because the appellant failed to nonfrivolously allege that the
measures alleged to have given rise to the hostile work environment were
taken based on the his military status. Third, the Board held that the
appellant failed to make a nonfrivolous allegation that the agency had
retaliated against him for previous USERRA activity because such a claim
requires proof that the employers’ allegedly retaliatory measures constituted
“discrimination in employment” or “an adverse employment action.” Because
the Board concluded that the agency’s actions did not constitute either, it held
that it lacked jurisdiction over the retaliation claim.
Holding: The Court affirmed in part, vacated in part, and remanded.
1. The Court affirmed the Board’s holding that the appellant failed to
make a nonfrivolous allegation of USERRA discrimination under
section 4311(a) because the agency’s actions did not fit within the
categories of actions that section prohibits an agency from taking,
i.e., the denial of initial employment, reemployment, retention in
employment, promotion, or any benefit of employment.
a. The alleged placement of the Blackberry in the appellant’s car
did not constitute the denial of a benefit of employment within
the meaning of section 4311(a).
b. The actions taken by the OPR investigators, including meeting
the appellant at the Coast Guard headquarters and insisting
that he produce the Blackberry and appear for an interview at
the DEA headquarters the next day, did not deny the appellant
a benefit of employment.
2. The Court affirmed the Board’s finding that the appellant failed to
nonfrivolously allege that the agency violated section 4311(a) by
creating a hostile work environment because he failed to allege that
the hostile work environment was based on his military service.
3. The Court affirmed the Board’s finding that the appellant failed to
nonfrivolously allege that the discrete agency actions violated
section 4311(b), USERRA’s anti-retaliation provision.
a. The anti-retaliation statute is limited to barring acts of
discrimination in employment and adverse employment
actions.
b. The Blackberry incident did not constitute an act of
discrimination in employment because it did not deny him a
benefit that inures to him by virtue of his employment with
the agency. Nor was it an adverse employment action.
c. The OPR investigation did not constitute an act of
discrimination in employment or an adverse employment
action where it did not relate directly to the appellant’s
employment with the DEA and had no apparent effect on his
employment with the DEA.
4. The Board did not address the appellant’s claim that the agency’s
creation of a hostile work environment was due to retaliation under
section 4311(b). The Court granted the Board’s request to remand
the case to allow the Board to address that issue in the first instance.
NONPRECEDENTIAL:
Swartwoudt v. Department of Homeland Security, 2016-2724 (Jun. 1, 2017)
(affirming the Board’s decision to sustain the appellant’s removal for
inappropriate conduct and deny his affirmative defense of whistleblower
reprisal).
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Case Report - May 26, 2017 | 05-26-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_26_2017_1413772.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_26_2017_1413772.pdf | Case Report for May 26, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Regina E. Lee
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1232
MSPB Docket Number: DA-0752-15-0388-I-1
Issuance Date: May 25, 2017
Jurisdiction
The petitioner had almost 6 years of Federal service under a series of term
appointments. She began an appointment under the Federal Career Intern
Program (FCIP) on March 16, 2008. On March 5, 2010, the agency notified her
that her term would expire on March 15, 2010, and that it would not convert
her appointment into a competitive service appointment. Thus, the agency
terminated the petitioner from Federal service. She appealed her termination
to the Board. The administrative judge dismissed her appeal for lack of
jurisdiction and the Board affirmed the initial decision.
Holding: The court affirmed the Board’s dismissal of the appeal for lack of
jurisdiction.
1. An agency’s decision not to convert an FCIP intern to the competitive
service is generally not an adverse action that is appealable to the Board
because 5 C.F.R. § 213.3202(o)(6) (2006), which implemented the FCIP,
explains that an intern has no right to further Federal employment after
the expiration of his or her term.
2. Executive Order No. 13,162, which created the FCIP, does not confer
further rights upon the petitioner because it states that competitive civil
service status may be granted to a successful intern and not that it shall
be granted, and because the Order states that it “does not create any
right or benefit, substantive or procedural, enforceable in law or equity,
by a party against the United States, its agencies, its officers or
employees, or any other person.”
NONPRECEDENTIAL:
Gordon v. Office of Personnel Management, No. 2017-1165, (Fed. Cir. May 25,
2017) (MSPB Docket No. CH-0845-16-0204-I-1) (reversing the Board’s decision
that found that the petitioner failed to prove that recovery of his overpaid
benefits under the Federal Employees’ Retirement System would be against
equity and good conscious because: (1) recovery would be unconscionable
based upon OPM’s lengthy delays on two separate occasions; (2) the first delay
hindered his ability to receive Department of Veterans Affairs and state
benefits he likely would have received; and (3) the second delay fell only
40 days short of 4 years, and directing the Board to instruct the Office of
Personnel Management to waive recovery of the claimed overpayment).
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Case Report - May 12, 2017 | 05-12-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_12_2017_1409612.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_12_2017_1409612.pdf | Case Report for May 12, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Sharon M. Helman
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3086
MSPB Docket No. DE-0707-15-0091-J-1
Issuance Date: May 9, 2017
Veterans Access, Choice, and Accountability Act of 2014
Removal of Senior Executives from the Department of Veterans Affairs
As part of the Veterans Access, Choice, and Accountability Act of 2014,
Pub. L. No. 113-146, § 707, 128 Stat. 1754, 1798 (2014) (Veterans Access
Act), Congress created a new executive removal scheme, codified at
38 U.S.C. § 713, to make it easier for the Department of Veterans
Affairs to remove or demote its senior executives. Section 713 differs
from the removal provisions of title 5 in two primary respects: (1) it
creates a process for the removal or transfer of senior executives by the
Secretary for poor performance with limited executive protections,
38 U.S.C. § 713(a)-(d)(1), (f)–(g); and (2) it creates a process for an
expedited Board review of a removal or transfer carried out under the
statute, id. § 713(d)(2)–(e). Under the expedited review process of
§ 713, an employee has only 7 days to appeal her removal or transfer to
the Board. Id. § 713(d)(2)(B). Upon receipt of such an appeal, the
Board is required to refer the appeal to an administrative judge, who
“shall issue a decision not later than 21 days after the date of the
appeal.” Id. § 713(e)(1). The removal or transfer may not be stayed
during the appeal to the administrative judge, id. § 713(e)(4), and the
Secretary and the Board must ensure that the appeal is expedited, id.
§ 713(e)(6). Section 713 denies senior executives any type of pay,
bonus, or benefit during their appeals. 38 U.S.C. § 713(e)(5). In
contrast to Title 5, administrative judges’ decisions under § 713 are
final and Board or judicial review is prohibited. Id. § 713(e)(2).
In the instant appeal, the agency removed the appellant from her Senior
Executive Service (SES) position as Director of the Phoenix Veterans
Affairs Health Care System pursuant to § 707 of the Veterans Access Act.
The appellant appealed her removal to the Board. Within the 21-day
period required by § 713(e)(1), the administrative judge issued a written
decision sustaining some of the charges, denying the appellant’s due
process and harmful procedural error affirmative defenses, and
affirming her removal.
The appellant sought an extension of time to appeal the administrative
judge’s decision to the full Board. The Clerk of the Board informed the
parties that the Board would take no further action on the appeal
because, pursuant to § 713(e)(2), the administrative judge’s decision
was final and not subject to any further appeal.
The appellant filed a petition for review with the Court of Appeals for
the Federal Circuit, asking the court to review the constitutionality of
38 U.S.C. § 713.
Holdings:
(1) The court has jurisdiction to review the appellant’s constitutional
claims under 28 U.S.C. § 1295(a)(9), pursuant to 5 U.S.C.
§ 7703(b)(1).
(2) The authority to render a final decision affirming or overturning
the Secretary’s removal decision is a significant duty that can only
be performed by officers of the United States. Therefore, the
portions of § 713 that vest this significant authority in
administrative judges, who are hired as employees and are not
officers of the United States, is unconstitutional under the
Appointments Clause.
(3) The portions of § 713 that are expressly keyed to the finality of
the administrative judge’s decision, which includes § 713(e)(2) in
its entirety and portions of § 713(e)(3) and § 713(e)(5), are
invalid. Removing the invalidated provisions, § 713(e)(3) now
reads as follows: “(3) In any case in which the administrative
judge cannot issue a decision in accordance with the 21-day
requirement under paragraph (1), the removal or transfer is final.
In such a case, the Merit Systems Protection Board shall, within 14
days after the date that such removal or transfer is final, submit
to Congress and the Committees on Veterans' Affairs of the Senate
and House of Representatives a report that explains the reasons
why a decision was not issued in accordance with such
requirement.” Section 713(e)(5) now reads as follows:
“(5) During the period beginning on the date on which an
individual appeals a removal from the civil service under
subsection (d) and ending on the date that the administrative
judge issues a final decision on such appeal, such individual may
not receive any pay....”
(4) The invalidated portions of § 713(e) are severable from § 713 and,
upon severing § 713(e)(2) and the related portions of § 713(e)(3)
and § 713(e)(5), § 713 remains fully operative. There is no
indication in the statute’s language, structure, or legislative
history to suggest that Congress would have preferred no statute
at all to § 713 with a modified Board appeal process. Therefore,
the remaining provisions of § 713 are not invalid.
(5) Because the invalidated portions of § 713(e) do not affect the
process the agency followed to remove the appellant, the court
chose not to vacate the agency’s decision to remove the appellant
pursuant to § 713.
(6) Upon severing the invalid portions of § 713, Board review of the
administrative judge’s decision is now permitted. Thus, the
matter is remanded to the Board to review the initial decision.
(7) The court declined to reach the appellant’s due process
affirmative defense, finding it appropriate for the Board to review
the administrative judge’s findings on this issue in the first
instance.
(8) The court also declined to reach the appellant’s argument that
the remaining provisions of § 713 violate the Appointments Clause
and/or the separation of powers doctrine, finding it appropriate
for the Board to deal with those arguments in the first instance if
the appellant chooses to pursue them on remand.
NONPRECEDENTIAL:
Parra v. Department of Homeland Security, No. 2016-1797 (May 9, 2017)
(case no. FMCS 15-52044-3) (Rule 36 affirmance of an arbitration
decision).
Singh v. U.S. Postal Service, No. 2016-2668 (May 9, 2017) (MSPB Docket
No. SF-0752-15-0629-I-1) (Rule 36 affirmance).
Tikhonov v. Merit Systems Protection Board, No. 2017-1374 (May 10,
2017) (MSPB Docket No. DC-0842-16-0336-I-1) (affirming the Board’s
dismissal for lack of jurisdiction an appeal of a final Office of Personnel
Management (OPM) retirement decision after OPM rescinded the final
decision).
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Case Report - April 28, 2017 | 04-28-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_28_2017_1405129.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_28_2017_1405129.pdf | Case Report for April 28, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Victoria Snyder
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1940
MSPB Docket No. DC-0752-13-6201-I-1
Issuance Date: April 26, 2017
The appellant was one of many Department of Defense (DOD) employees
furloughed in 2013 as a result of legislation that cut the DOD’s
2013 budget by $37 billion approximately halfway through Fiscal Year
2013 as a result of across-the-board budget cuts known as sequestration.
The appellant was a civilian mechanical engineer at the Naval Surface
Warfare Center, Dahlgren Division (Dahlgren), a Working Capital Fund
(WCF) entity. Other than receiving initial working capital through
appropriation, WCF entities are self-supporting and function from the
fees charged for the services they provide to their customers. The
primary customers of WCF entities are other DOD entities that transfer
their own congressionally appropriated funds to make “purchases” from
WCFs. At the time of the sequestration, the appellant was working
full-time on a project funded by Lockheed Martin.
The appellant appealed her 6-day furlough, and her case was
consolidated with 39 other furloughed Dahlgren employees. The
appellant argued that, because Lockheed Martin was solely responsible
for funding her project, she should have been exempt from the furlough
because her furlough could not have assisted in reducing DOD’s
budgetary shortfall. She also argued that the agency improperly
provided some, but not all, furloughed employees on her project an
opportunity to earn overtime pay to mitigate the economic impact of
the furlough.
The administrative judge issued an initial decision finding that the
appellant’s furlough was a reasonable management solution to the
shortage of funds caused by sequestration and therefore promoted the
efficiency of the service. In so finding, the administrative judge
explained that the appellant was paid directly from the WCF and thus
was no different from other furloughed employees. The administrative
judge also concluded that there was no evidence that the furlough was
unfairly applied. Instead, a witness only “assumed” that the agency
paid him and others the requested overtime to mitigate the effects of
the furlough and the appellant did not request overtime pay.
The appellant filed a petition for review of the initial decision with the
Board. On March 18, 2016, the Board issued a Split Vote Order
indicating that the two members of the Board could not agree upon a
disposition and, as a result, the initial decision became the final
decision of the Board.
The appellant then appealed the Board’s decision to the U.S. Court of
Appeals for the Federal Circuit. The court affirmed the judgment of the
Board upholding the appellant’s furlough.
Holdings:
(1) The court agreed with the administrative judge’s finding that the
appellant was a WCF employee directly paid from the WCF, regardless
of the ultimate funding source of her project.
(2) The court further agreed that, taking a holistic view of budget
management, the decision to furlough employees paid by a WCF was a
reasonable management solution to the budget shortfall because,
among other reasons, preserving money in the WCFs generally
provided DOD with the flexibility to meet higher priority needs during
the critical time period.
(3) The court was not persuaded by the appellant’s argument that the
Government would not realize any savings from her furlough because,
although any unused monies from her project would be returned to
Lockheed Martin at the completion of the project in 2015, it was
reasonable for the agency to furlough all WCF employees in May 2013
to achieve a savings during that critical time period.
(4) The court further found unpersuasive the appellant’s argument
that she met an exception in the Secretary of Defense’s furlough
memorandum pertaining to employees who were “not paid directly by
accounts included in the Department of Defense-Military [] budget”
because she was paid directly from the WCF.
(5) The court agreed with the administrative judge’s finding that the
the agency applied the furlough in a fair and even manner. The court
agreed that the agency’s approval of other employees’ requests for
overtime did not establish that the overtime was offered to mitigate
the impact of the furlough or establish that the appellant, who did
not request overtime, was treated differently than similarly situated
employees.
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Case Report - April 21, 2017 | 04-21-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_21_2017_1402951.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_21_2017_1402951.pdf | Case Report for April 21, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Phyllis E. Banks
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1242
MSPB Docket Number: SF-0752-16-0381-I-1
Issuance Date: April 18, 2017
Jurisdiction
“Employee”
Probationers/5 U.S.C. § 7511(a)(1)(A)
The petitioner was hired in the excepted service subject to a one-year
probationary/trial period. Prior to the expiration of this period, the agency
notified her that it planned to terminate her. Instead, the petitioner resigned.
In an initial decision dismissing the petitioner’s involuntary
resignation/constructive removal appeal for lack of jurisdiction, the
administrative judge found that she was not an “employee” with Board appeal
rights because: (1) she was not a preference eligible; (2) there was no
evidence that she had prior Federal service; and (3) she resigned within the
relevant probationary/trial period. The administrative judge also found that,
absent an otherwise appealable action, the Board lacked jurisdiction over the
petitioner’s hostile work environment and retaliation claims. The Board
upheld the administrative judge’s dismissal, but, in doing so, addressed
additional evidence that the administrative judge had not considered which
demonstrated that, prior to the petitioner’s employment, she had been
currently and continuously employed by the U.S. Postal Service. The Board
found that this employment did not constitute prior Federal service for
purposes of determining whether the petitioner was an “employee” with Board
appeal rights because the U.S. Postal Service is not an “Executive agency.”
Holding: The court dismissed the petition for review for lack of
jurisdiction.
1. Because the petitioner did not have one year of service with the agency
and her three years with the U.S. Postal Service did not qualify as
“current continuous service... in an Executive agency,” she was not
an “employee” with Board appeal rights.
a. Pursuant to 5 U.S.C. § 105, an “Executive agency” is defined as “an
Executive department, a Government corporation, or an independent
establishment.
b. The provisions of 5 U.S.C. § 104 displace the general characterization
of the U.S. Postal Service as an “independent establishment,” and
thus it does not constitute an “Executive agency.”
2. Absent an otherwise appealable action, the petitioner’s claims of
retaliation and a hostile work environment lie outside of the Board’s
jurisdiction.
NONPRECEDENTIAL:
Kasten v. Merit Systems Protection Board, No. 2016-1321-ag, (2nd Cir. Apr. 14,
2017) (MSPB Docket No. PH-1221-16-0006-W-1)(affirming the initial decision’s
dismissal of the petitioner’s whistleblower claim for lack of jurisdiction
because the petitioner failed to nonfrivolously allege that her letter to her
supervisors constituted a protected disclosure).
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Case Report - April 14, 2017 | 04-14-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_14_2017_1400664.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_14_2017_1400664.pdf | Case Report for April 14, 2017
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Amanda E. Becker
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1365
MSPB Docket No. CH-0831-15-0280-I-1
Issuance Date: April 7, 2017
The appellant filed an application with the Office of Personnel
Management (OPM) seeking survivor benefits under the Federal
Employees’ Retirement System (FERS) based on the Federal service of
her late husband. OPM denied her application on the basis of its finding
that she did not meet the statutory definition of a “widow” who may
receive such benefits, which is defined at 5 U.S.C. § 8441(1) as the
surviving wife of an employee who was married to the employee for at
least 9 months immediately before his death, or who is the mother of
children by that marriage. The appellant appealed OPM’s decision, and
the administrative judge affirmed. During the proceedings, the
administrative judge denied the appellant’s request for discovery
regarding instances in which OPM may have waived the 9-month
requirement and regarding whether OPM provided her late husband
notice regarding the 9-month requirement. The appellant appealed the
decision to the court, arguing that 5 U.S.C. § 8441(1) was
unconstitutional and that the administrative judge improperly denied
her discovery requests.
Holdings:
(1) The court found that 5 U.S.C. § 8441(1) does not violate the
Constitution because there is a rational basis for Congress to use an
imprecise set of criteria as a proxy to ensure that the marriage was
entered into for reasons other than the desire to shortly acquire
benefits.
(2) The court found that the administrative judge did not abuse her
discretion in denying the appellant’s discovery requests because:
(a) she had no reasonable belief that OPM has previously waived the
9-month requirement and, even if OPM had previously done so, it
would still be required to follow the statutory requirements when
reviewing the appellant’s application; and (b) there was no dispute
that the appellant’s late husband submitted all of the election forms
to ensure that she received survivor benefits and, even if he was
unfamiliar with the statutory requirements contained in the election
forms he signed, such fact would not provide a basis for waiving the
requirements.
NONPRECEDENTIAL:
Levy v. Department of Homeland Security, No. 17-1034 (Apr. 12, 2017)
(MSPB Docket No. DE-1221-13-0216-W-3) (affirming the Board’s final
order denying the appellant’s request for corrective action in his
Individual Right of Action appeal).
Thomas v. Department of Labor, No. 17-1191 (Apr. 12, 2017) (MSPB
Docket No. AT-3330-12-0270-B-2) (affirming the Board’s final decision
denying the appellant’s request for corrective action under VEOA).
Brown v Office of Personnel Management, No. 17-1160 (Apr. 11, 2017)
(MSPB Docket No. DA-844E-15-0398-C-1) (affirming the Board’s final
decision dismissing the appellant’s petition for enforcement of a prior
Board decision and order in his favor where the appellant sought
additional damages for a delay that may have occurred in his receipt of
interim payments and the Board correctly determined that it lacks any
statutory authority to award monetary damages for such a delay).
Darosa v. Merit Systems Protection Board, No. 17-1152 (Apr. 10, 2017)
(MSPB Docket No. AT-315H-16-0116-I-1) (affirming the Board’s dismissal
of the appellant’s termination appeal for lack of jurisdiction).
Staples v. Merit Systems Protection Board, No. 17-1113 (Apr. 10, 2017)
(MSPB Docket No. DE-0842-16-0117-I-1) (affirming the Board’s final
decision dismissing the appellant’s appeal of OPM’s rescinded
reconsideration decision for lack of jurisdiction).
Grayton v. Social Security Administration, No. 17-1349 (Apr. 7, 2017)
(MSPB Docket No. SF-4324-16-0551-I-1) (affirming the Board’s denial of
corrective action in the appellant’s USERRA appeal).
Montalvo v. Merit Systems Protection Board, No. 17-1081 (Apr. 7, 2017)
(MSPB Docket No. AT-831M-16-0268-I-1) (affirming the Board’s final
decision dismissing the appellant’s appeal of OPM’s rescinded
overpayment determination for lack of jurisdiction).
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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.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Robin Boyd
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1078
MSPB Docket No. No. PH-0845-15-0215-I-1
Issuance Date: March 20, 2017
The appellant filed for disability retirement annuity benefits under the Federal
Employees Retirement System (FERS). While approving the application, OPM
instructed the appellant to apply for Social Security disability benefits, inform
OPM if she was awarded those benefits, and set them aside to pay for a
required reduction in her FERS annuity. After she was awarded Social Security
disability benefits, the appellant did inform OPM, but did not set those
benefits aside. Because OPM failed to adjust her FERS annuity until months
later, the appellant was overpaid. The appellant requested a waiver of the
overpayment, but OPM denied the request. The appellant filed an appeal, but
the administrative judge found that the appellant was not without fault and
entitled to waiver because she had failed to set aside her Social Security
payments. The Board affirmed.
Holding: The court vacated the Board's decision and held that the
petitioner was without fault under the plain terms of OPM's
guidelines. Specifically, OPM Policy Guidelines provide for a "prompt
notice exception" that applies to individuals who inform OPM within
60 days of an apparent excess payment. The court found that this
exception applied to the petitioner because she notified OPM within
60 days of her receipt of Social Security benefits.
The guidelines also require a determination as to whether the person
"suspected or knew" that she had received an overpayment, in which
case the person must set aside that payment. The court construed
the set-aside requirement as inapplicable to individuals who do not
know or suspect that the money does not belong to them. For such
"unknowing individuals," financial hardship can serve as a basis for
finding that recovery of the overpayment is against equity and good
conscience. The court instructed the Board on remand to determine
whether the petitioner knew or suspected that she had been
overpaid, and if she did not, whether the recovery of the
overpayment would be against equity and good conscience.
The court recognized that an individual’s receipt of an OPM letter
warning them to set aside Social Security disability awards may be
enough evidence from which to infer knowledge, but determined that
this was a factual issue for the Board to resolve in the first instance.
NONPRECEDENTIAL:
Carson v. Merit Systems Protection Board, No. 2015-3135, 2015-3211
(Mar. 17, 2017) (MSPB Docket Nos. AT-1221-14-0620-W-1, AT-1221-15
0092-W-1) (The court affirmed two Board dismissals of whistleblower claims
against OSC. For the first appeal, the court agreed with the Board’s
dismissal for lack of jurisdiction because the petitioner’s allegations that
OSC failed to resolve a whistleblower complaint he had against his
employer, the Department of Energy, did not describe a “personnel
action.” For the second appeal, which essentially raised the same claim as
the first while it was still pending, the court agreed with the Board’s
dismissal for adjudicatory efficiency).
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Laurence M. Fedora
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3039
MSPB Docket Number: SF-0752-13-0433-I-1
Issuance Date: February 16, 2017
Jurisdiction
Resignation/Retirement/Separation
Timely Filing
Equitable Tolling
On August 31, 2012, the petitioner retired from his position as a Mail Handler
at the U.S. Postal Service. On April 27, 2013, he filed a Board appeal alleging
that his retirement was involuntary. In an initial decision dated August 12,
2013, the administrative judge dismissed the appeal for lack of jurisdiction,
finding that the petitioner failed to nonfrivolously allege that his retirement
was involuntary. On August 15, 2014, the Board issued a final order that
affirmed the initial decision and advised the petitioner that he had “the right
to request review” of the decision “no later than 60 calendar days after the
date of this order,” citing 5 U.S.C. § 7703(b)(1)(A). The petitioner appealed to
the court on October 20, 2014, six days after the 60-day filing period had
expired.
Holding: The court dismissed the petition for review for lack of
jurisdiction.
1. Relying on certain U.S. Supreme Court decisions and its own precedent,
the court found that it lacks jurisdiction over petitions for review that
fail to comply with the timeliness requirement of 5 U.S.C.
§ 7703(b)(1)(A).
2. The court also found that, because the timeliness requirement of
section 7703(b)(1)(A) is jurisdictional in nature, it is not subject to
equitable tolling.
3. The court acknowledged the petitioner’s claim that he relied on the
court’s own “Guide for Pro Se Petitioners and Appellants,” which
incorrectly advised that a petitioner could file a petition for review
within 60 days of receipt of a Board decision, which he did, rather than
within 60 days of the issuance date of a Board decision, as required by
section 7703(b)(1)(A). The court reiterated, however, that it lacked the
authority to equitably toll a statutory deadline. The court also
recognized that the Board advised the petitioner of his proper review
rights in its August 15, 2014 final order, specifically informing him that
the 60-day filing period would commence on the date of the order and
cautioning him to “be very careful to file on time.”
Judge Plager issued a dissenting opinion, contending that the “conclusion does
not do justice to the complexities of the issue [the petitioner] presents, is
inconsistent with current Supreme Court guidance, and in my view probably
results in a wrong conclusion that is based neither on good law nor
fundamental fairness.”
NONPRECEDENTIAL:
Sparks v. Office of Personnel Management, No. 2016-2340 (Feb. 10, 2017)
(MSPB Docket No. DA-0831-16-0264-I-1) (affirming the Board’s decision, which
affirmed the Office of Personnel Management’s dismissal of the petitioner’s
request for reconsideration of its denial of disability retirement benefits as
untimely filed).
Bain v. Office of Personnel Management, No. 2016-1333 (Feb. 10, 2017) (MSPB
Docket No. SF-0845-15-0579-I-1) (affirming, per Rule 36, the Board’s decision,
which affirmed the Office of Personnel Management’s reconsideration decision
finding that the agency proved the existence and amount of an overpayment
and that the petitioner was not entitled to a waiver of the overpayment or a
further adjustment of the repayment schedule).
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of three improperly manipulated competitive service packages with knowledge
that the actions were intended to convert the noncareer political appointees
to career appointments. The case against the respondent focused on: (1) the
respondent’s signatures on three cover letters forwarding the proposed
competitive hiring actions to the Chief Human Capital Officer at DHS, who
disallowed the appointments; and (2) the respondent’s role in a subsequent
effort to hire one of the three individuals, Applicant A, using a noncompetitive
Schedule A authority.
Following a hearing, the administrative law judge (ALJ) assigned to the case
declined to impose disciplinary action, finding that the Special Counsel did not
prove any of the counts in its complaint by preponderant evidence. He found
that the respondent’s actions were ministerial in nature, and that even if she
should have taken a more detailed review of the application packages before
signing them, the Special Counsel had proven, at most, that she was negligent
in her duties, not that she acted intentionally to advance the applications for
improper reasons. The ALJ found that that these events were actually
directed and accomplished by other persons, who were “apparently outside
the reach of [OSC] or the Board’s jurisdiction,” and concluded that he was
“left with the unmistakable impression that Respondent was charged solely
because she was the last woman standing.”
On review, the Special Counsel did not contest the ALJ’s findings regarding the
alleged violations of 5 U.S.C. § 2302(b)(1)(E), but again argued that the
respondent granted unlawful hiring preferences in violation of 5 U.S.C.
§ 2302(b)(6).
Holding: The Board denied the Special Counsel’s petition for review and
affirmed the initial decision, finding no basis for disciplinary action.
1. Section 2302(b)(6) of title 5 provides:
Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect
to such authority... grant any preference or advantage not
authorized by law, rule, or regulation to any employee or applicant
for employment (including defining the scope or manner of
competition or the requirements for any position) for the purpose of
improving or injuring the prospects of any particular person for
employment.
2. To establish a violation of 5 U.S.C. § 2302(b)(6), the Special Counsel
must establish an intentional or purposeful taking of a personnel action
Commissioner in his former role at DHS, by approving and certifying the results
of three improperly manipulated competitive service packages with knowledge
that the actions were intended to convert the noncareer political appointees
to career appointments. The case against the respondent focused on: (1) the
respondent’s signatures on three cover letters forwarding the proposed
competitive hiring actions to the Chief Human Capital Officer at DHS, who
disallowed the appointments; and (2) the respondent’s role in a subsequent
effort to hire one of the three individuals, Applicant A, using a noncompetitive
Schedule A authority.
Following a hearing, the administrative law judge (ALJ) assigned to the case
declined to impose disciplinary action, finding that the Special Counsel did not
prove any of the counts in its complaint by preponderant evidence. He found
that the respondent’s actions were ministerial in nature, and that even if she
should have taken a more detailed review of the application packages before
signing them, the Special Counsel had proven, at most, that she was negligent
in her duties, not that she acted intentionally to advance the applications for
improper reasons. The ALJ found that that these events were actually
directed and accomplished by other persons, who were “apparently outside
the reach of [OSC] or the Board’s jurisdiction,” and concluded that he was
“left with the unmistakable impression that Respondent was charged solely
because she was the last woman standing.”
On review, the Special Counsel did not contest the ALJ’s findings regarding the
alleged violations of 5 U.S.C. § 2302(b)(1)(E), but again argued that the
respondent granted unlawful hiring preferences in violation of 5 U.S.C.
§ 2302(b)(6).
Holding: The Board denied the Special Counsel’s petition for review and
affirmed the initial decision, finding no basis for disciplinary action.
1. Section 2302(b)(6) of title 5 provides:
Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect
to such authority... grant any preference or advantage not
authorized by law, rule, or regulation to any employee or applicant
for employment (including defining the scope or manner of
competition or the requirements for any position) for the purpose of
improving or injuring the prospects of any particular person for
employment.
2. To establish a violation of 5 U.S.C. § 2302(b)(6), the Special Counsel
must establish an intentional or purposeful taking of a personnel action
in such a way as to give a preference to a particular individual for the
purposes of improving his prospects. This standard is consistent with the
plan text of the statute, which specifies that the preference must be
given “for the purpose of” providing the improper advantage. Thus,
whether the respondent violated 5 U.S.C. § 2302(b)(6) turns on whether
she intended to afford preferential treatment to the three applicants in
question.
3. The Board found that, while the respondent’s actions amounted to
possible error or negligence, they did not rise to the level of
intentionally committing an unlawful hiring practice. The Board
stressed that its decision did not resolve whether illegal hiring practices
did or did not happen. They may have, but the Special Counsel failed to
prove that the respondent’s actions showed that she intentionally
granted an unlawful hiring preference in violation of 5 U.S.C.
§ 2302(b)(6).
4. The Board went on to provide a detailed, highly fact-specific explanation
of its findings. In doing so, the Board rejected the Special Counsel’s
challenges to the ALJ’s credibility determinations.
Appellant: Robin Sabio
Agency: Department of Veterans Affairs
Decision Number: 2017 MSPB 4
Docket Number: NY-315H-13-0277-I-1
Issuance Date: January 6, 2017
Appeal Type: Probationary Termination
Discrimination
Board Procedures
After the appellant filed a Board appeal of her purported probationary
termination, the agency determined that the appellant had completed her
probationary period just before the effective date and time of her
termination. Because the agency had improperly terminated the appellant
without providing her the notice and opportunity to respond that is due a
tenured Federal employee, the agency agreed to rescind the removal notice,
return the appellant to her term position, and restore her to the status quo
ante. Although the agency rescinded her termination, the appellant continued
pursuing her hostile work environment and race-based discrimination claims
with the Board.
After affording the appellant an opportunity to clarify her affirmative
defenses, the administrative judge struck her hostile work environment
affirmative defense, finding that she had failed to make a nonfrivolous
allegation that she was subjected to a hostile work environment that resulted
in her unacceptable performance. However, the administrative judge found
that the appellant had sufficiently alleged discrimination based on race and
held the appellant’s requested hearing on this claim. In the initial decision,
the administrative judge found that the appellant failed to show by
preponderant evidence that her rescinded termination was motivated in any
part by race discrimination and that she failed to show that the agency’s
reasons in support of its action were a mere pretext for race
discrimination. Thus, he denied the appellant’s affirmative defense. The
appellant petitioned for review of the initial decision.
Holding: The Board affirmed the initial decision as modified, to clarify
when an administrative judge must hold a hearing on a discrimination claim
raised in connection with an otherwise appealable action and to clarify the
administrative judge’s analysis of the race discrimination claim consistent
with Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).
1. In asserting her hostile work environment defense, the appellant did not
allege that she had been personally harassed on the basis of her sex, but
rather that she was subjected to a hostile work environment when she
observed inappropriate behavior of a sexual nature between two senior
employees who were married to other individuals. The Board agreed
with the administrative judge that the appellant was not entitled to a
hearing on this defense.
2. In reaching that conclusion, the Board clarified the distinction between
summary judgment and dismissal for failure to state a claim. Although
the Board’s procedures do not allow for summary judgment, Savage,
122 M.S.P.R. 612, ¶ 46 & n.10, the Board held that an administrative
judge nonetheless may dispose of a discrimination claim raised in
connection with an otherwise appealable action when the appellant’s
factual allegations in support of the discrimination claim are deficient as
a matter of law. In other words, if an appellant fails to allege a
cognizable claim of discrimination in connection with the otherwise
appealable action, the claim may be disposed of without a hearing.
3. To the extent the administrative judge struck the appellant’s hostile
work environment defense for failure to establish a genuine issue of
material fact in dispute by providing insufficient detail, he improperly
rendered summary judgment on this issue. Nonetheless, the Board
found that he properly struck the defense because, taking her
allegations as true and drawing all reasonable inferences in her favor,
she could not prevail on her hostile work environment as a matter of
law. Her allegation that she and others in close proximity to her
cubicle—without regard to their sex—were generally exposed to
distracting office flirtation is not the type of situation covered by Title
VII. Because the appellant’s hostile work environment was facially
deficient, a hearing on the claim would have been an empty ritual.
4. Regarding the appellant’s race-based discrimination affirmative defense,
the Board found that the administrative judge improperly applied the
McDonnell Douglas burden-shifting analytical framework, which the
Board in Savage held has no application in Board proceedings. The
Board thus modified the portion of the initial decision that applied the
burden-shifting framework and supplemented the administrative judge’s
analysis consistent with Savage. After conducting its own analysis
consistent with Savage, the Board agreed with the administrative
judge’s conclusion that the appellant failed to establish her race
discrimination claim.
Appellant: Lawrence Little, Jr.
Agency: United States Postal Service
Decision Number: 2017 MSPB 5
Docket Number: DC-0752-15-0108-I-1
Issuance Date: January 6, 2017
Appeal Type: Adverse Action by Agency
Action Type: Suspension – Enforced Leave
Mixed-case appeals
Timeliness
The appellant filed an equal employment opportunity (EEO) complaint alleging
discrimination based on race, age, and disability, and in August 2013, the
agency amended the complaint to include the appellant’s receipt of a notice of
proposed placement on enforced leave. Subsequently, in October 2013, the
agency issued a decision sustaining the proposed enforced leave action. On
January 8, 2016, the agency issued a final agency decision (FAD) finding no
merit to the appellant’s discrimination claims, and the FAD was delivered to
the appellant’s post office box on January 13, 2016.
The appellant filed a Board appeal on February 13, 2016. The administrative
judge issued a show cause order notifying the appellant that his appeal
appeared to be untimely by 1 day, and that the Board appeared to lack
jurisdiction, because the EEO complaint had not been amended to include the
October 2013 enforced leave action. In response, the appellant argued, inter
alia, that his appeal was timely filed because he did not receive the FAD until
he checked his post office box on January 16, 2016. The administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant’s EEO
complaint encompassed only the proposed enforced leave action. Having
dismissed the appeal on jurisdictional grounds, the administrative judge did
not reach the issue of timeliness. The appellant petitioned for review.
Holding: On review, the Board vacated the initial decision and instead
dismissed the appeal as untimely filed with no good cause shown.
1. The Board’s regulations provide that when an appellant has filed a
timely formal complaint of discrimination with the agency, a subsequent
Board appeal must be filed within 30 days after the appellant receives
the FAD. 5 C.F.R. § 1201.154(b). Under a prior version of the
regulation, the 30-day time period began to run from the date of the
appellant’s actual receipt of the FAD, even in situations in which the
appellant’s receipt was delayed by his own negligence. However, under
the current regulation, which became effective November 13, 2012, the
date the appellant received the FAD is determined according to the
standard set forth at 5 C.F.R. § 1201.22(b)(3), which provides for
constructive receipt in certain circumstances. The rule provides several
illustrative examples, including the following: “An appellant who fails to
pick up mail delivered to his or her post office box may be deemed to
have received the agency decision.”
2. Because the FAD was delivered to the appellant’s post office box on
January 13, 2016, he is deemed to have received it on that date,
notwithstanding his assertion that he did not check his box every day.
Thus, the deadline for filing a Board appeal was February 12, 2016.
Because the appellant provided no evidence or argument regarding any
additional circumstances that affected his ability to timely file his
appeal, the Board dismissed the appeal as untimely filed without a
showing of good cause for the 1-day delay.
3. Having found the appeal to be untimely filed, the Board declined to
make a finding on the jurisdictional issue.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Victoria Calhoun
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2016-2220 (MSPB Docket No. PH-0752-13-5389-I-1)
Issuance Date: January 12, 2017
Furloughs
Harmful Procedural Error
Due Process
At the time of the 2013 sequestration order, the appellant was employed by
the U.S. Army Cyber Command (ACC). The Commander of ACC, who was the
designated deciding official for the resulting furloughs of ACC employees,
delegated his authority to his Chief of Staff. After receiving the notice of
proposed furlough, the appellant made an oral presentation to an official
whom the Chief of Staff had in turn designated to hear oral replies. In
addition, she made a written response, which included budget proposals she
asserted would prevent furloughs. The agency ultimately furloughed the
appellant for 6 nonconsecutive days.
On appeal to the Board, the appellant argued that the furlough did not
promote the efficiency of the service, that the agency committed harmful
error by failing to consider her budget proposals, and that the Commander of
ACC had improperly delegated his deciding official authority to his Chief of
Staff. The administrative judge sustained the furlough action, and the
appellant petitioned for review of the initial decision. On review, the
appellant renewed her argument that the agency erred in delegating the
responsibilities of deciding official to the Chief of Staff, and further asserted
that the agency denied her due process because the Chief of Staff did not
receive a written summary of her oral reply prior to issuing the decision letter.
The Board found that the delegation did not introduce harmful procedural
error, and further found no due process violation because the Chief of Staff
received and considered the appellant’s written reply and the summary of her
oral reply would not have altered the furlough decision. The appellant then
appealed to the Federal Circuit.
Holding: The Federal Circuit affirmed the Board’s decision to uphold the
furlough action.
1. Although the appellant contended that her budget proposals would have
averted furloughs, the Board correctly declined to second-guess agency
management and spending decisions in applying the efficiency of the
service standard.
2. Substantial evidence supported the Board’s finding that the Chief of
Staff reviewed the appellant’s proposals prior to issuing the notice of
decision. The Chief of Staff made a sworn declaration to that effect,
and there was no contrary information.
3. The court next considered the appellant’s argument that the agency
improperly delegated deciding official authority because DOD furlough
policies prohibited “further delegations” and the Chief of Staff was not
at the identified minimum rank. The court agreed with the Board that
the policy cited by the appellant contemplated that deciding official
authority could be delegated several times, provided the deciding
official was “no lower than a local Installation Commander, senior
civilian or equivalent.” In addition, substantial evidence supported the
Board’s determination that the Chief of Staff was no lower than a “local
Installation Commander.”
4. The court also rejected the appellant’s contention that the agency
deprived her of a meaningful reply because the Chief of Staff lacked
authority to review and act on her budget proposals. While the deciding
official must possess authority to take or recommend action, due
process does not require unfettered discretion to take any action he or
she believes is appropriate, nor does it require consideration of
alternatives that are prohibited, impracticable, or outside of
management’s purview. Here, the authority of the deciding official—
which was limited to determining whether the appellant was within one
of the DOD-prescribed categories of exempted employees and whether a
reduction in her furlough hours was necessary to the agency’s mission—
was commensurate with the nature of the furlough decisions.
5. The court rejected the appellant’s contention that the two-member
Board that issued the final decision was improperly constituted. The
regulations contemplate that a Board may be composed of two
members, 5 C.F.R. § 1200.3(e), and that two-member Board panels may
issue final decisions when both members are in agreement, 5 C.F.R.
§ 1200.3(b)-(d).
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential
decisions in the following cases:
Jones v. Merit Systems Protection Board, No. 2016-1711 (Jan. 10, 2017) (MSPB
Docket No. DC-315I-12-0847-I-1)
The appellant in this case sought to appeal the Clerk of the Board’s letter
denying his third request to reopen his appeal. The court dismissed the case,
finding that the Clerk’s letter was not final order or decision of the Board, but
rather an administrative response, over which the court lacks jurisdiction.
The
court distinguished the facts from those in McCarthy v. Merit Systems
Protection Board, 809 F.3d 1365 (Fed. Cir. 2016), in which the Board’s denial
of a request to reopen was found to be reviewable because the Board had not
previously considered an intervening change of law.
Weathersbee v. Department of the Treasury, No. 2016-2628 (Jan. 12, 2017)
(MSPB Docket No. SF-0432-16-0634-I-1)
Following his performance-based removal, the appellant filed a Board appeal
in which he alleged, inter alia, that he had not received any letter or official
notice regarding his removal or appeal rights. The administrative judge
affirmed the action and concluded that the appellant’s purported failure to
receive a copy of the final decision did not constitute harmful error. In
particular, the administrative judge found that the agency had sent the
appellant three copies of its decision—one by first class mail, another by first
class certified mail, and the third by UPS overnight delivery—and that the
appellant had rejected both the Postal Service and UPS deliveries as “Receiver
did not want, refused delivery.” The full Board affirmed the initial decision.
On appeal, the court concluded that substantial evidence supported the
Board’s finding that the appellant was properly served with a copy of the
termination decision, and that any harm suffered by the appellant because of
his failing to read the letter or to acknowledge its receipt was not due to any
action or inaction by the agency.
Barnes v. Department of Defense, No. 2016-1754 (Jan. 10, 2017) (MSPB Docket
No. DC-0752-13-0357-M-1) (Rule 36 affirmance) | 20,980 | |
Case Report - December 30, 2016 | 12-30-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_30_2016_1369064.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_30_2016_1369064.pdf | Case Report for December 30, 2016
BOARD DECISIONS
Appellant: James Patrick Pierotti
Agency: Office of Personnel Management
Decision Number: 2016 MSPB 46
Docket Number: AT-0831-16-0032-I-1
Issuance Date: December 27, 2016
Appeal Type: CSRS-Collection of Overpayment
Action Type: Retirement
OPM Overpayment
The appellant challenged OPM’s reconsideration decision, which found that he
had been overpaid in disability annuity benefits due to his receipt of Office of
Workers’ Compensation Program (OWCP) benefits. After holding a hearing, the
administrative judge found that OPM proved the existence and amount of the
overpayment. She also found that the appellant failed to show that he was
entitled to waiver of the overpayment or that he was entitled to an
adjustment of OPM’s recovery schedule because he was not without fault and
his monthly income exceeded his ordinary and necessary expenses.
Holding: The Board granted the appellant’s petition for review and
affirmed the initial decision as modified to reduce the appellant’s
repayment schedule.
1. The Board agreed with the administrative judge that the appellant
failed to prove that he was without fault, and thus entitled to a
waiver, because he accepted payments that he knew or should have
known to be erroneous based on a February 16, 2006 letter from
OPM. In the letter, OPM stated that it was suspending disability
retirement payments to the appellant because he was receiving
OWCP benefits. Although OPM shared some blame for the
overpayment because it failed to stop paying the appellant after
learning that he was receiving OWCP benefits, the governing
regulations provide that the fact that OPM may have been at fault in
initiating the overpayment will not necessarily relieve the recipient
from liability.
2. The Board modified OPM’s collection schedule to $5 per month
because it found that the appellant needed substantially all of his
current income to meet his ordinary and necessary living expenses,
and the collection of the overpayment on the schedule set by OPM
would cause him financial hardship.
3. The Board requested an advisory opinion from OPM regarding what
notice, if any, the Board could provide debtors to let them know that
their debt to the U.S. Government may not terminate, and may
continue to be collectible through various means, even after their
deaths. In response, OPM recommended that the Board notify
debtors of a potential collection action against the debtors’
estate, and beneficiaries, if appropriate, should the
outstanding debt not be satisfied at the time of death, with the
language as follows:
The OPM has advised the Board that it may seek recovery
of any debt remaining upon your death from your estate
or other responsible party. A party responsible for any
debt remaining upon your death may include an heir
(spouse, child or other) who is deriving a benefit from
your Federal benefits, an heir or other person acting as
the representative of your estate if, for example, the
representative fails to pay the United States before
paying the claims of other creditors in accordance with
31 U.S.C. § 3713(b), or transferees or distribute[r]s of
your estate.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Joseph R. Gallegos
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2120
Docket Number: DA-0752-01-0157-C-1
Issuance Date: December 27, 2016
Petition for Enforcement of Settlement Agreement
-Timeliness
The petitioner was formerly employed by the Food and Drug Administration
(agency) as a Consumer Safety Officer. On November 5, 2000, he was removed
for failing to accept a job reassignment that required relocation. He filed a
Board appeal challenging his removal. In March 2001, parties entered into a
settlement agreement. Under the terms of the agreement, the petitioner
agreed to withdraw his appeal with prejudice, and the agency agreed to
expunge from his Official Personnel File (OPF) and Standard Form 50 (SF-50)
any indication that he was removed from his position. The agency agreed to
issue a revised SF-50 indicating a “voluntary resignation.” The agreement
stated that the petitioner would be provided with a copy of the revised SF-50
for inspection and that he would notify the agency of any concerns within 15
days of receipt of the form.
On June 15, 2015, over 14 years after executing the settlement agreement,
the petitioner filed a petition for enforcement of the settlement agreement
with the Board. He argued that, in October 2014, he discovered a breach of
the settlement agreement after he received a copy of his SF-50, which stated
“Resignation ILIA,” meaning in lieu of involuntary action. According to the
petitioner, he suspected the agreement had been breached in October 2014
because of the ILIA designation, but he had been using the SF-50 at issue since
2001.
The Board found that the petitioner failed to establish that his petition for
enforcement was timely filed. The Board also found that the petitioner failed
to establish good cause for his untimely filing because his failure to maintain a
copy of the parties’ settlement agreement, as well as his apparent failure to
compare the SF-50 with the settlement agreement at the time he received the
documents was less than diligent.
Holding: The court affirmed.
1. A petition for enforcement of a settlement agreement must be filed
“promptly.” 5 C.F.R. § 1201.182(a). The Court has interpreted
“promptly” to mean within a “reasonable time.” Here, the
petitioner had a copy of the SF-50 as of 2001 and was thus aware of
the alleged breach approximately 14 years prior to filing his petition.
2. The Court found no error in the Board’s conclusion that the
petitioner failed to establish good cause for his untimely filing
because he did not exercise due diligence given that the agreement
specifically provided that he would notify the agency of any concerns
within 15 days of receipt of the revised SF-50.
3. The Court rejected the petitioner’s arguments that good cause
existed for his untimely filing because the agency engaged in fraud.
a. The appellant’s argument that the agency inappropriately
altered his SF-50 after he received a copy at the time of the
settlement was unpersuasive because the minor typographic
differences had no bearing on the “Resignation ILIA”
designation on the SF-50.
b. Although the agreement provided for a “voluntary resignation”
and the agency instead designated it a “Resignation ILIA,” the
agreement placed the burden on the petitioner to review the
SF-50 and notify the agency of any concerns within 15 days.
The petitioner was represented by counsel and should have
inquired about the ILIA acronym at the time of receiving his
revised SF-50.
LEGISLATION
National Defense Authorization Act for Fiscal Year 2017, S. 2943
S. 2943 was signed into law by President Obama on December 23, 2016.
Section 512 amends 32 U.S.C. § 709 to provide Board appeal rights to dual
status military technicians when the appeal concerns activities that occurred
when the technician was not in military pay status or the issue does not involve
fitness for duty in the reserve component. It also amends 5 U.S.C. § 7511 to
delete National Guard technicians from the list of Federal employees who are
not covered under 5 U.S.C. chapter 75. These provisions are effective upon
enactment.
Section 1138 may be cited as the “Administrative Leave Act of 2016.” It limits
the length of time that an agency may place an employee on paid
administrative leave to 10 work days within a calendar year. Among other
things, it also amends 5 U.S.C. chapter 63, subchapter II by adding a new
section 6329b, which establishes two new categories of leave – investigative
leave and notice leave. These categories of paid leave are distinct from
administrative leave and are subject to certain restrictions on their use.
Investigative leave is for employees undergoing investigations, and notice leave
is for employees with pending notice periods under 5 U.S.C. § 7513(b)(1).
Placement on investigative leave for a period of not less than 70 work days is
considered a personnel action under 5 U.S.C. § 2302(b)(8) and (9). The Office
of Personnel Management is charged with issuing regulations to implement
these provisions within 270 days of enactment.
Section 1140 amends 5 U.S.C. chapter 33, subchapter I by adding a new section
3322. This section requires that, when an employee resigns under
investigation and the investigation later results in an adverse finding, the
agency must make a permanent notation of this fact in the employee’s Official
Personnel File (OPF). An individual who has had such a note placed in his or
her OPF may file a Board appeal challenging the notation. These provisions
become effective upon enactment.
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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.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Troy w. Miller
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3149
Issuance Date: December 2, 2016
Individual right of action (IRA) appeals
Substantial evidence
Clear and convincing evidence
The petitioner was Superintendent of a Federal prison factory that
manufactured ballistic helmets. In October 2009, the petitioner reported some
suspected financial improprieties. In December 2009, the agency’s Office of
Inspector General (OIG) made an on-site visit to investigate these reports. The
day after the OIG’s visit, the petitioner reported that someone had engaged in
industrial sabotage by placing faulty Kevlar on the production line. He urged
that production be halted pending an investigation. Several hours later, the
petitioner’s supervisor reassigned him away from the factory, purportedly at
the behest of the OIG. Over the following 4 ½ years, the petitioner was placed
in various lower- level assignments, culminating in an assignment in which he
was without any duties whatsoever for 8 months. After seeking corrective
action from the Office of Special Counsel, the petitioner filed an IRA appeal
with the Board.
The Board found that the petitioner’s disclosures about financial improprieties
and industrial sabotage were protected, and that, by virtue of the
knowledge/timing test, they were a contributing factor in his reassignment.
However, the Board also found that the agency showed by clear and convincing
evidence that it would have reassigned the appellant notwithstanding his
disclosures, and thus denied the appellant’s request for corrective action. The
petitioner appealed to the court.
Holding: The court reversed the Board’s decision because it was not
supported by substantial evidence, and it remanded for determination of an
appropriate remedy.
1. Once an employee makes a prima facie case of whistleblower
retaliation, the burden shifts to the Government to show by clear and
convincing evidence that it would have taken the same personnel action in
the absence of the disclosure. Clear and convincing evidence “produces in
the mind of the trier of fact an abiding conviction that the truth of a factual
contention is ‘highly probable.’” It is a higher burden than preponderant
evidence, but somewhat less than beyond a reasonable doubt.
2. In determining whether an agency has met its burden, it is
appropriate to consider, among other things: (1) the strength of the
agency’s evidence in support of its personnel action; (2) the strength of any
motive to retaliate by the relevant officials; and (3) any evidence that the
agency takes similar actions against similarly-situated non-whistleblowers.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999).
3. The court reviews the Board’s factual findings for substantial
evidence, i.e., such evidence as a reasonable mind might accept as
adequate to support a conclusion. However, the court’s standard of review
takes into account the underlying evidentiary standard for the factual
findings at issue – in this case clear and convincing evidence.
4. Regarding the Carr factors:
(a) A reasonable fact finder could not conclude that the government
introduced strong evidence in support of the reassignment. The
only evidence of the basis for the reassignment was the
supervisor’s testimony that OIG directed it out of fear that the
petitioner might interfere with the investigation. There was no
explanation as to why or how it was feared that the petitioner
might interfere, and there was no evidence as to what individual
at OIG the petitioner’s supervisor spoke with. This explanation is
further undermined by the petitioner’s outstanding character and
reputation. Moreover, there is no documentation of any of the
petitioner’s multiple reassignments or the reasons therefor.
(b) Substantial evidence supported the Board’s finding that the
petitioner’s supervisor’s retaliatory motive was slight at best.
However, the Board should also have examined OIG’s motive to
retaliate because it was purportedly the office that directed the
petitioner’s reassignment. Nevertheless, substantial evidence
supported the Board’s finding that this factor tips in the
Government’s favor.
(c) Although the Board correctly found that there was no evidence as
to how the agency treats similarly-situated non-whistleblowers,
the court disagreed that this factor was thereby irrelevant. The
Government bears the burden of proof on this issue, and it could
and should have introduced evidence on whether it often
reassigns employees pending OIG investigations. This factors cuts
slightly against the Government.
5. Weighing these factors together, the court concluded that
substantial evidence did not support the Board’s finding that the
agency carried its burden to prove independent causation by clear
and convincing evidence.
Judge Reyna issued a concurring opinion, emphasizing the importance of
OIG’s role in the reassignment and stressing that the Board should have
considered this matter in its decision.
Judge Hughes issued a dissenting opinion, contending that the court
overstepped its authority in reviewing the Board’s findings of fact, improperly
made credibility determinations about the petitioner’s supervisor, and imposed
a requirement that a deciding official’s testimony in an IRA appeal be
corroborated by other evidence in order to meet the clear and convincing
threshold.
Petitioner: Nicholas Jay Wilson
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3225
Issuance Date: December 7, 2016
Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA)
Adverse actions – Removal
Security clearances
The petitioner was a civilian Resource Analyst for the Nuclear Propulsion
Directorate – a position requiring a security clearance. On July 25, 2014, the
Department of Energy revoked the petitioner’s security clearance based on
several instances of alleged misconduct. On September 12, 2014, the
Department of the Navy removed the petitioner for failure to maintain a
security clearance.
The petitioner appealed his removal to the Board, arguing that the security
clearance determination, and therefore resultant removal, was based on his
uniformed service. The Board affirmed the removal, finding that the agency
had provided the petitioner the procedural protections of 5 U.S.C. § 7513(b),
there was no requirement for the agency to reassign the petitioner to a
position that did not require a security clearance, and the Board was precluded
from determining whether the security clearance determination was based on
the petitioner’s uniformed service. The petitioner appealed to the court
Holding: The court affirmed.
1. Although the petitioner argued that USERRA authorizes review of
security clearance determinations, the court found that, under well-settled
Supreme Court precedent, neither the court nor the Board has the
authority to determine whether discrimination was the reason for a
security clearance revocation.
2. The petitioner argued that the Board may review the reasons for
initiating a security clearance action without reaching the merits of the
action. The court, however, found this to be a distinction without a
difference.
3. The petitioner argued that USERRA entitles him to reemployment,
but the Court found that this entitlement pertains only to reemployment
after an absence related to uniformed service. If an employee is removed
due to antimilitary animus, he has no reemployment claim under USERRA,
even if a USERRA discrimination claim might otherwise be available.
NONPRECEDENTIAL:
Sutton v. Department of Veterans Affairs, No. 2016-2205 (Dec. 8, 2016) (MSPB
No. DC-300A-14-0641-I-1) (affirming the Board’s decision that dismissed the
petitioner’s employment practice claim for lack of jurisdiction and denied his
VEOA claim; the petitioner failed to identify any employment practice that he
was challenging, and his VEOA claim was disposed of in a prior Board decision
for which the time for seeking judicial review had already elapsed).
Ahuruonye v. Department of the Interior, No. 2016-2493 (Dec. 8, 2016) (MSPB
No. CH-1221-15-1172-W-1) (affirming the Board’s decision denying the
petitioner’s IRA appeal on the merits because the petitioner failed to establish
that his disclosure was a contributing factor in the personnel action).
Carpenter v. Navy, No. 2016-2180 (Dec. 7, 2016) (MSPB No. DC-0752-13-2215
B-1) (affirming the Board’s decision that upheld the petitioner’s 6-day
furlough; the Board did not abuse its discretion in limiting the petitioner’s
discovery to information pertaining to similarly-situated employees, and
substantial evidence supported the Board’s finding that the furlough was taken
for such cause as to promote the efficiency of the service).
Lundberg v. Merit Systems Protection Board, No. 2016-2536 (Dec. 6, 2016)
(MSPB No. CH-3443-15-0448-I-1) (affirming the Board’s decision finding that the
petitioner was collaterally estopped from establishing jurisdiction over his
appeal concerning improper charge of annual leave).
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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
The Board has not issued any precedential decisions since the last
Case Report.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Robert Michael Miller
Respondent: Federal Deposit Insurance Corporation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3146
MSPB Docket No.: SF-3330-12-0711-I-1
Issuance Date: April 8, 2016
Veterans Employment Opportunities Act of 1998 (VEOA)
Credit for experience material to a position
Scope of Board review
The appellant, a preference-eligible veteran, applied for a competitive
service position as an Associate Professor with the agency. The vacancy
announcement provided that applicants could satisfy an education
qualification requirement for the position through either: (1) a degree that
included or was supplemented by major study in certain specialized fields; or
(2) a combination of education and experience in courses equivalent to a
major in certain specialized fields.
The appellant applied for the position and stated that he met the education
qualification requirement through a combination of education and
experience, including experience in the military. The agency conducted
multiple reviews of the appellant’s application, considered supplemental
information that the appellant submitted, conducted research, and
ultimately concluded that the appellant’s education and experience,
including his military training and coursework, did not satisfy the education
qualification requirement for the position.
After exhausting his administrative remedies with the Department of Labor
(DOL), the appellant filed a Board appeal, alleging that the agency violated
his veterans’ preference rights when it failed to properly credit his
experience, in violation of 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d).
After holding a hearing, the administrative judge found that the agency
properly considered the appellant’s education and experience.
On review, the Board found that, under 5 U.S.C. § 3311(2) and 5 C.F.R.
§ 302.302(d), the Board’s role was limited to determining whether the
agency improperly omitted, overlooked, or excluded a portion of the
appellant's experiences or work history in assessing his qualifications. The
Board found that, because the agency considered the totality of the
appellant’s experiences in determining that he was qualified for the position,
the agency did not violate 5 U.S.C. § 3311(2) or 5 C.F.R. § 302.302(d).
Holding: The Court affirmed the Board’s decision denying the appellant’s
request for corrective action, as modified.
1. The Board’s review in VEOA appeals alleging violations of 5 U.S.C.
§ 3311(2) and 5 C.F.R. § 302.302(d) is not limited to determining whether
an agency improperly omitted, overlooked, or excluded a portion of an
appellant's experiences or work history in assessing his qualifications.
Instead, the Board must assess whether an agency adequately considered
a veteran’s experiences and work history.
2. Although the Board does not reevaluate the weight that an agency
accords to a veteran’s experience, the Board’s jurisdiction extends to
determining whether the agency actually evaluated experience material
to the position, as required by 5 U.S.C. § 3311(2) and 5 C.F.R.
§ 302.302(d). However, it is not the Board’s role to determine whether
an appellant ultimately satisfied the requirements of a position based on
his experience.
3. The court found that the agency evaluated all of the appellant’s
experience and credited all of his work history in evaluating whether he
met the education qualification requirement for the position. Therefore,
because the agency adequately considered the appellant’s experience and
work history, it did not violate 5 U.S.C. § 3311(2) or 5 C.F.R.
§ 302.302(d).
Petitioner: Robert Michael Miller
Respondent: Federal Deposit Insurance Corporation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3147
MSPB Docket No.: DC-3330-13-0504-I-1
Issuance Date: April 8, 2016
VEOA
Bad faith cancellation of vacancy
Discrimination and retaliation unrelated to status as a veteran
The appellant, a preference-eligible veteran and current agency employee,
applied for a Financial Analyst position with the agency under both merit
promotion and delegated examining vacancy announcements. The agency
selected the appellant as 1 of 3 candidates for a structured interview. After
the agency completed the structured interviews, the selecting official
determined that none of the candidates possessed the requisite qualifications
for the position, and the agency cancelled the vacancy.
After exhausting his administrative remedies with DOL, the appellant filed a
Board appeal challenging his non-selection, and alleging that the agency had
cancelled the vacancy in bad faith. The administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to raise a
nonfrivolous allegation that the agency violated his rights under a statute or
regulation related to veterans’ preference.
On review, the Board found that it had jurisdiction over the appeal, but that
the appellant failed to establish that the agency violated his veterans’
preference rights. The Board found that an agency is not required to hire a
preference-eligible veteran if it does not believe that the candidate is
qualified or possesses the requisite skills, and that the agency had conducted
a thorough, structured interview process, and determined none of the
interviewees, including the appellant, possessed the requisite skills and
knowledge for the position.
Holding: The Court affirmed the Board’s decision finding that the
appellant failed to establish that the agency violated VEOA.
1. The agency did not deny the appellant the opportunity to compete
for the position, as required by 5 U.S.C. § 3304(f), because the agency
considered his application, and he was 1 of 3 candidates interviewed for
the positon.
2. There was no evidence that the agency’s cancellation of the
vacancy violated a statute or regulation relating to veterans’ preference.
Instead, the record contained substantial evidence that the agency
cancelled the vacancy due to a lack of qualified candidates.
3. The Board properly found that the appellant could not raise
retaliation and discrimination as affirmative defenses or as evidence of
bad faith, where the alleged retaliation and discrimination was unrelated
to his status as a veteran, but was instead based on prior lawsuits that he
had filed, and personal animus on the part of his supervisors.
NONPRECEDENTIAL:
Petitioner: Travis E. WIlkes
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1220
MSPB Docket No. DA-0432-11-0466-C-1
Issuance Date: April 8, 2016
Holding: The court affirmed the Board’s decision, which denied the
appellant’s petition for enforcement of a Board order reinstating his
employment. The court found that the appellant, rather than the agency,
was obligated to contact the Federal Retirement Thrift Investment Board
to seek reinstatement of the appellant’s Thrift Savings Plan loan.
Petitioner: Elizabeth A. Emond
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1227
MSPB Docket No. DC-831M-12-0383-B-1
Issuance Date: April 8, 2016
Holding: The court affirmed the administrative judge’s decision finding
that the appellant was not entitled a former spouse survivor annuity,
because a Virginia state court found that the divorce decree that OPM
relied on in awarding her the annuity was not a “true and accurate copy.”
Petitioner: Calvin J. Mosley
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1240
MSPB Docket No. CH-0752-10-0469-C-1
Issuance Date: April 8, 2016
Holding: The court affirmed the Board’s decision denying the appellant’s
petition for enforcement of a settlement agreement. The appellant’s
claims challenging the validity of the settlement agreement were barred
by the doctrine of res judicata, because the appellant had litigated these
claims and obtained a final decision in a prior Board appeal. The agency
did not breach the settlement agreement by failing to pay the appellant a
monetary award, because the agreement did not require the agency to do
so.
Petitioner: Manuel V. Custodio
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1023
MSPB Docket No. SF-0831-15-0018-I-1
Issuance Date: April 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s Civil Service Retirement System (CSRS) retirement appeal as
barred by the doctrine of res judicata, where the appellant had litigated
the issue of his entitlement to make a redeposit for his Federal service
and obtained a final decision in a prior Board appeal.
Petitioner: David Wayne Carson
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1154
MSPB Docket No. AT-1221-11-0062-B-2
Issuance Date: April 11, 2016
Holding: The court affirmed the Board’s decision denying the appellant’s
request for corrective action in an Individual Right of Action (IRA) appeal.
The appellant failed to establish that his retirement was involuntary, and
therefore, failed to prove that he was subject to a personnel action within
the meaning of the Whistleblower Protection Act.
Petitioner: Conrado A. Padua
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3174
MSPB Docket No. SF-0831-15-0399-I-1
Issuance Date: April 12, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s appeal as barred by the doctrine of res judicata, where the
appellant had litigated the issue of his eligibility for a CSRS retirement
annuity and obtained a final decision in a prior Board appeal.
Petitioner: Illona A. Ramsey
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3192
MSPB Docket No. DC-0432-14-0918-I-2
Issuance Date: April 12, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision dismissing
an appeal as untimely filed without good cause shown.
Petitioner: Richard S. Krugman
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3156
MSPB Docket No. DA-1221-13-0288-B-1
Issuance Date: April 12, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision denying the
appellant’s request for corrective action in an IRA appeal. The agency
proved that it would have terminated the appellant in the absence of his
whistleblowing activity.
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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
Appellant: Edward Bent
Agency: Department of State
Decision Number: 2016 MSPB 17
Docket Number: DC-3330-15-0951-I-1 & DC-3330-15-1148-R-1
Issuance Date: April 1, 2016
Appeal Type: Veterans Employment Opportunities Act
Action Type: VEOA - No Otherwise Appealable Action
VEOA exhaustion
Equitable tolling
The appellant was a preference-eligible veteran. He attempted to apply for a
Diplomatic Security Service Special Agent position despite exceeding that
position’s maximum-entry age restriction. The appellant filed a Board appeal,
alleging that the agency violated his veterans’ preference rights by refusing to
accept his application for the position. The AJ ordered him to prove that he had
exhausted his administrative remedies with DOL. The appellant responded with
evidence showing that he filed a complaint with DOL after his Board appeal and
DOL dismissed the complaint because of the Board appeal. The AJ dismissed
the appeal for lack of jurisdiction because the appellant had not filed his
complaint with DOL prior to filing his Board appeal.
The appellant filed a petition for review, but also filed a new appeal concerning
the same matter. The AJ dismissed the new appeal without prejudice pending
the outcome of his petition for review in the initial appeal, and neither party
filed a petition for review of that appeal.
Holding: The Board reopened the appellant’s second appeal, joined it with
his first, vacated both initial decisions, and remanded the matter for further
adjudication.
1. The Board’s practice is to adjudicate an appeal that was premature
when filed but ripens while pending before the Board. Because the
appellant submitted evidence showing that he had exhausted his
remedy with DOL while his first appeal was pending, the AJ erred in
finding otherwise.
2. The appellant met his jurisdictional burden under VEOA by
(1) proving exhaustion of his administrative remedies with DOL and
(2) nonfrivolously alleging that (i) he is preference eligible within the
meaning of the VEOA, (ii) the disputed action took place in 2009
(after VEOA went into effect), and (iii) the agency violated his
veterans’ preference rights by failing to consider him for a position
because it imposed an unlawful maximum-entry age requirement.
3. The appellant’s complaint to DOL exceeded the 60-day deadline set
by the VEOA statute, 5 U.S.C. § 3330a(a)(2)(A). That deadline is not
jurisdictional; it is similar to a statute of limitations that is subject to
equitable tolling. The Supreme Court has allowed equitable tolling in
certain situations, including those where an individual has actively
pursued judicial remedies by filing a defective pleading during the
statutory period. Accordingly, on remand, the AJ must determine
whether the filing deadline should be equitably tolled.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Angel Canava
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3083
Issuance Date: April 5, 2016
The appellant was a U.S. Border Patrol Agent. He was indicted on two felony
counts, but entered into a plea agreement with the State of Arizona in which
he pleaded guilty to “Unlawful Imprisonment by Strangulation, Domestic
Violence, a class six undesignated offense.” A judgment was entered against
him for the “undesignated offense” of unlawful imprisonment.
The agency removed the appellant pursuant to 5 U.S.C. § 7371, which
mandates the removal of any law enforcement officer who is convicted of a
felony. The appellant invoked arbitration, arguing that he was not convicted
of a felony, but only an undesignated offense that is treated like a felony. The
arbitrator sustained his removal, and the appellant appealed.
Holding: The Court affirmed the arbitrator’s decision, upholding the
appellant’s removal pursuant to 5 U.S.C. § 7371.
1. A prior version of the statute provided discretion, but the current
version of section 7371 requires that law enforcement officers
convicted of a felony be immediately removed.
2. Although the appellant entered into a plea agreement which
provided that his offense would remain “undesignated” and “open
ended,” it was appropriate to conclude that he was convicted of a
class six felony pursuant to Arizona’s A.R.S. § 13-604(A). Under that
statute, when a class six felony is left undesignated at sentencing, it
is treated as a felony conviction until such time that the judge enters
an order designating the offense a misdemeanor.
NONPRECEDENTIAL:
Petitioner: George Heath
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1273
MSPB Docket No. No. DA-0752-14-0233-B-1
Issuance Date: April 7, 2016
Holding: The Court affirmed the underlying decision, which upheld the
appellant’s removal for failure to carry out assigned duties and failure to
observe orders, rules, or procedures where safety to persons or property is
endangered. Although the appellant established a prima facie case of
whistleblower reprisal for purposes of an affirmative defense, the agency
proved that it would have removed him, notwithstanding his protected
disclosure.
Petitioner: Joseph Clipse
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1209
MSPB Docket No. No. AT-0752-14-0178-I-1
Issuance Date: April 7, 2016
Holding: The Court affirmed the Board’s decision, which upheld the
appellant’s removal for failure to follow a written directive and lack of
candor. Despite the appellant’s arguments, the Court found no basis for
disturbing the credibility findings of the AJ.
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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
Appellant: Steven P. Pirkkala
Agency: Department of Justice
Decision Number: 2016 MSPB 16
Docket Number: AT-0752-15-0454-I-1
Issuance Date: March 31, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Election of Remedies
Effect of an untimely grievance
Untimely Board appeal
In March 2009, the agency removed the appellant, and informed him that he
could challenge his removal through the negotiated grievance procedure, a
Board appeal, or the equal employment opportunity complaint process. The
appellant filed an untimely grievance challenging his removal, which the
agency rejected. Subsequently, the appellant’s union indicated that it would
invoke arbitration on his behalf. However, prior to the scheduled arbitration
hearing, the union decided that it would not represent the appellant or
invoke arbitration on his behalf because he was not a dues paying member of
the union. Therefore, on August 27, 2009, the arbitrator notified the
appellant that he would not proceed with the arbitration.
Five years and 7 months later, on March 27, 2015, the appellant filed a Board
appeal challenging his removal. The administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant had elected to
pursue his removal through the negotiated grievance process.
Holding: The Board vacated the initial decision and found that the Board
had jurisdiction over the appeal, but dismissed the appeal as untimely
filed without good cause shown for the delay.
1. The Board had jurisdiction over the appeal. Pursuant to the plain
language of 5 U.S.C. § 7121(e)(1), which references an employee who
“timely files a grievance,” the untimely filing of the appellant’s grievance
precluded it from being considered a valid election of remedies.
Therefore, because the appellant did not effectively elect another forum
to challenge his removal, the Board had jurisdiction over the appeal.
2. The appeal was untimely filed without good cause shown for the
delay.
a. There was no indication that the appellant was aware that the
union would refuse to represent him, in violation of Federal
labor law, at the time that he grieved his removal. Therefore,
the appellant established good cause for his delay in filing until
August 27, 2009, when the arbitrator informed him that the
arbitration would not proceed because he lacked union
representation.
b. However, the appellant did not file his Board appeal until 5
years and 7 months later. Even assuming that the appellant’s
anxiety and depression affected his ability to timely file his
appeal, he failed to establish good cause for his delay in filing
between August 27, 2009, when the arbitrator made it clear
that the union would not represent him, and August 10, 2010,
when medical evidence reflected that he began treatment for
his conditions.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Shirley R. Hicks
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1091
MSPB Docket No.: AT-1221-15-0217-W-1
Issuance Date: March 22, 2016
Individual Right of Action (IRA) Appeal
Whistleblower Protection Enhancement Act (WPEA) Retroactivity
In 1989, the agency removed the appellant from her position as a Secretary.
The appellant filed a Board appeal challenging her removal, and the Board
mitigated the penalty of removal to a 60-day suspension. Subsequently, in
1990, the agency effected a new removal action. More than two decades
later, in July 2014, the appellant contacted the Office of Special Counsel
(OSC), alleging that the agency had removed her in 1990 in retaliation for
making protected disclosures and in reprisal for filing her Board appeal.
After OSC terminated its investigation, the appellant filed an IRA appeal with
the Board. The administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to raise a nonfrivolous
allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8).
In addition, the administrative judge found that the Board lacked jurisdiction
over the appellant’s claim that the agency removed her in retaliation for
filing her prior Board appeal, because at time of the appellant’s removal, the
Whistleblower Protection Act (WPA) did not authorize IRA appeals based on
reprisal for protected activity under 5 U.S.C. § 2302(b)(9). The Board
affirmed the initial decision.
Holding: The Court affirmed the Board’s decision dismissing the appeal
for lack of jurisdiction.
1. Effective December 27, 2012, the WPEA expanded IRA appeal rights
under 5 U.S.C. § 1221(a) to include claims for corrective action based on
prohibited personnel practices described in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), and (D). However, this expansion of appeal rights does not apply
retroactively to events that occurred before the effective date of the
WPEA. Therefore, the WPEA does not provide jurisdiction over the
appellant’s claims that the agency removed her in 1990 in retaliation for
filing her prior Board appeal.
2. The court expressly declined to address whether other provisions of
the WPEA may apply retroactively.
NONPRECEDENTIAL:
Petitioner: Damian C.A. Phillip
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1002
MSPB Docket No. DC-1221-15-0642-W-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s IRA and probationary termination appeal for lack of
jurisdiction. The appellant failed to raise a nonfrivolous allegation that
he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or that his
probationary termination was based on partisan political reasons or
marital status.
Petitioner: Bancie Black
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3223
MSPB Docket No. DC-0831-14-1113-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims for Civil Service Retirement System retirement benefits
as barred by the doctrines of res judicata and collateral estoppel where
the appellant had litigated these claims and obtained a final decision in a
prior Board appeal.
Petitioner: Linda Jwanouskos
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1086
MSPB Docket No. DC-0752-15-0127-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims challenging her removal as barred by the doctrine of
collateral estoppel, and dismissing her claims regarding her disability
retirement for lack of jurisdiction because there was no evidence that
OPM had issued a final decision on those claims.
Petitioner: Taylor M. Sharpe
Respondent: Environmental Protection Agency
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3413
MSPB Docket No. DA-0752-14-0034-I-1
Issuance Date: March 14, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision sustaining
the appellant’s indefinite suspension based on his arrest for charges of
violating his probation.
Petitioner: Lee Johnson
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3174
MSPB Docket No. SF-1221-14-0828-W-1
Issuance Date: March 17, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision denying the
appellant’s request for corrective action in an IRA appeal.
Petitioner: Nancy E. Whitaker
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3085
MSPB Docket No. CH-3330-14-0634-I-1
Issuance Date: March 18, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision dismissing
the appellant’s Veterans Employment Opportunities Act of 1998 (VEOA)
appeal as untimely.
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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
Appellant: Steven P. Pirkkala
Agency: Department of Justice
Decision Number: 2016 MSPB 16
Docket Number: AT-0752-15-0454-I-1
Issuance Date: March 31, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Election of Remedies
Effect of an untimely grievance
Untimely Board appeal
In March 2009, the agency removed the appellant, and informed him that he
could challenge his removal through the negotiated grievance procedure, a
Board appeal, or the equal employment opportunity complaint process. The
appellant filed an untimely grievance challenging his removal, which the
agency rejected. Subsequently, the appellant’s union indicated that it would
invoke arbitration on his behalf. However, prior to the scheduled arbitration
hearing, the union decided that it would not represent the appellant or
invoke arbitration on his behalf because he was not a dues paying member of
the union. Therefore, on August 27, 2009, the arbitrator notified the
appellant that he would not proceed with the arbitration.
Five years and 7 months later, on March 27, 2015, the appellant filed a Board
appeal challenging his removal. The administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant had elected to
pursue his removal through the negotiated grievance process.
Holding: The Board vacated the initial decision and found that the Board
had jurisdiction over the appeal, but dismissed the appeal as untimely
filed without good cause shown for the delay.
1. The Board had jurisdiction over the appeal. Pursuant to the plain
language of 5 U.S.C. § 7121(e)(1), which references an employee who
“timely files a grievance,” the untimely filing of the appellant’s grievance
precluded it from being considered a valid election of remedies.
Therefore, because the appellant did not effectively elect another forum
to challenge his removal, the Board had jurisdiction over the appeal.
2. The appeal was untimely filed without good cause shown for the
delay.
a. There was no indication that the appellant was aware that the
union would refuse to represent him, in violation of Federal
labor law, at the time that he grieved his removal. Therefore,
the appellant established good cause for his delay in filing until
August 27, 2009, when the arbitrator informed him that the
arbitration would not proceed because he lacked union
representation.
b. However, the appellant did not file his Board appeal until 5
years and 7 months later. Even assuming that the appellant’s
anxiety and depression affected his ability to timely file his
appeal, he failed to establish good cause for his delay in filing
between August 27, 2009, when the arbitrator made it clear
that the union would not represent him, and August 10, 2010,
when medical evidence reflected that he began treatment for
his conditions.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Shirley R. Hicks
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1091
MSPB Docket No.: AT-1221-15-0217-W-1
Issuance Date: March 22, 2016
Individual Right of Action (IRA) Appeal
Whistleblower Protection Enhancement Act (WPEA) Retroactivity
In 1989, the agency removed the appellant from her position as a Secretary.
The appellant filed a Board appeal challenging her removal, and the Board
mitigated the penalty of removal to a 60-day suspension. Subsequently, in
1990, the agency effected a new removal action. More than two decades
later, in July 2014, the appellant contacted the Office of Special Counsel
(OSC), alleging that the agency had removed her in 1990 in retaliation for
making protected disclosures and in reprisal for filing her Board appeal.
After OSC terminated its investigation, the appellant filed an IRA appeal with
the Board. The administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to raise a nonfrivolous
allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8).
In addition, the administrative judge found that the Board lacked jurisdiction
over the appellant’s claim that the agency removed her in retaliation for
filing her prior Board appeal, because at time of the appellant’s removal, the
Whistleblower Protection Act (WPA) did not authorize IRA appeals based on
reprisal for protected activity under 5 U.S.C. § 2302(b)(9). The Board
affirmed the initial decision.
Holding: The Court affirmed the Board’s decision dismissing the appeal
for lack of jurisdiction.
1. Effective December 27, 2012, the WPEA expanded IRA appeal rights
under 5 U.S.C. § 1221(a) to include claims for corrective action based on
prohibited personnel practices described in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), and (D). However, this expansion of appeal rights does not apply
retroactively to events that occurred before the effective date of the
WPEA. Therefore, the WPEA does not provide jurisdiction over the
appellant’s claims that the agency removed her in 1990 in retaliation for
filing her prior Board appeal.
2. The court expressly declined to address whether other provisions of
the WPEA may apply retroactively.
NONPRECEDENTIAL:
Petitioner: Damian C.A. Phillip
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1002
MSPB Docket No. DC-1221-15-0642-W-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s IRA and probationary termination appeal for lack of
jurisdiction. The appellant failed to raise a nonfrivolous allegation that
he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or that his
probationary termination was based on partisan political reasons or
marital status.
Petitioner: Bancie Black
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3223
MSPB Docket No. DC-0831-14-1113-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims for Civil Service Retirement System retirement benefits
as barred by the doctrines of res judicata and collateral estoppel where
the appellant had litigated these claims and obtained a final decision in a
prior Board appeal.
Petitioner: Linda Jwanouskos
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1086
MSPB Docket No. DC-0752-15-0127-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims challenging her removal as barred by the doctrine of
collateral estoppel, and dismissing her claims regarding her disability
retirement for lack of jurisdiction because there was no evidence that
OPM had issued a final decision on those claims.
Petitioner: Taylor M. Sharpe
Respondent: Environmental Protection Agency
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3413
MSPB Docket No. DA-0752-14-0034-I-1
Issuance Date: March 14, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision sustaining
the appellant’s indefinite suspension based on his arrest for charges of
violating his probation.
Petitioner: Lee Johnson
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3174
MSPB Docket No. SF-1221-14-0828-W-1
Issuance Date: March 17, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision denying the
appellant’s request for corrective action in an IRA appeal.
Petitioner: Nancy E. Whitaker
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3085
MSPB Docket No. CH-3330-14-0634-I-1
Issuance Date: March 18, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision dismissing
the appellant’s Veterans Employment Opportunities Act of 1998 (VEOA)
appeal as untimely.
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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
Appellant: Steven P. Pirkkala
Agency: Department of Justice
Decision Number: 2016 MSPB 16
Docket Number: AT-0752-15-0454-I-1
Issuance Date: March 31, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Election of Remedies
Effect of an untimely grievance
Untimely Board appeal
In March 2009, the agency removed the appellant, and informed him that he
could challenge his removal through the negotiated grievance procedure, a
Board appeal, or the equal employment opportunity complaint process. The
appellant filed an untimely grievance challenging his removal, which the
agency rejected. Subsequently, the appellant’s union indicated that it would
invoke arbitration on his behalf. However, prior to the scheduled arbitration
hearing, the union decided that it would not represent the appellant or
invoke arbitration on his behalf because he was not a dues paying member of
the union. Therefore, on August 27, 2009, the arbitrator notified the
appellant that he would not proceed with the arbitration.
Five years and 7 months later, on March 27, 2015, the appellant filed a Board
appeal challenging his removal. The administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant had elected to
pursue his removal through the negotiated grievance process.
Holding: The Board vacated the initial decision and found that the Board
had jurisdiction over the appeal, but dismissed the appeal as untimely
filed without good cause shown for the delay.
1. The Board had jurisdiction over the appeal. Pursuant to the plain
language of 5 U.S.C. § 7121(e)(1), which references an employee who
“timely files a grievance,” the untimely filing of the appellant’s grievance
precluded it from being considered a valid election of remedies.
Therefore, because the appellant did not effectively elect another forum
to challenge his removal, the Board had jurisdiction over the appeal.
2. The appeal was untimely filed without good cause shown for the
delay.
a. There was no indication that the appellant was aware that the
union would refuse to represent him, in violation of Federal
labor law, at the time that he grieved his removal. Therefore,
the appellant established good cause for his delay in filing until
August 27, 2009, when the arbitrator informed him that the
arbitration would not proceed because he lacked union
representation.
b. However, the appellant did not file his Board appeal until 5
years and 7 months later. Even assuming that the appellant’s
anxiety and depression affected his ability to timely file his
appeal, he failed to establish good cause for his delay in filing
between August 27, 2009, when the arbitrator made it clear
that the union would not represent him, and August 10, 2010,
when medical evidence reflected that he began treatment for
his conditions.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Shirley R. Hicks
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1091
MSPB Docket No.: AT-1221-15-0217-W-1
Issuance Date: March 22, 2016
Individual Right of Action (IRA) Appeal
Whistleblower Protection Enhancement Act (WPEA) Retroactivity
In 1989, the agency removed the appellant from her position as a Secretary.
The appellant filed a Board appeal challenging her removal, and the Board
mitigated the penalty of removal to a 60-day suspension. Subsequently, in
1990, the agency effected a new removal action. More than two decades
later, in July 2014, the appellant contacted the Office of Special Counsel
(OSC), alleging that the agency had removed her in 1990 in retaliation for
making protected disclosures and in reprisal for filing her Board appeal.
After OSC terminated its investigation, the appellant filed an IRA appeal with
the Board. The administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to raise a nonfrivolous
allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8).
In addition, the administrative judge found that the Board lacked jurisdiction
over the appellant’s claim that the agency removed her in retaliation for
filing her prior Board appeal, because at time of the appellant’s removal, the
Whistleblower Protection Act (WPA) did not authorize IRA appeals based on
reprisal for protected activity under 5 U.S.C. § 2302(b)(9). The Board
affirmed the initial decision.
Holding: The Court affirmed the Board’s decision dismissing the appeal
for lack of jurisdiction.
1. Effective December 27, 2012, the WPEA expanded IRA appeal rights
under 5 U.S.C. § 1221(a) to include claims for corrective action based on
prohibited personnel practices described in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), and (D). However, this expansion of appeal rights does not apply
retroactively to events that occurred before the effective date of the
WPEA. Therefore, the WPEA does not provide jurisdiction over the
appellant’s claims that the agency removed her in 1990 in retaliation for
filing her prior Board appeal.
2. The court expressly declined to address whether other provisions of
the WPEA may apply retroactively.
NONPRECEDENTIAL:
Petitioner: Damian C.A. Phillip
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1002
MSPB Docket No. DC-1221-15-0642-W-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s IRA and probationary termination appeal for lack of
jurisdiction. The appellant failed to raise a nonfrivolous allegation that
he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or that his
probationary termination was based on partisan political reasons or
marital status.
Petitioner: Bancie Black
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3223
MSPB Docket No. DC-0831-14-1113-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims for Civil Service Retirement System retirement benefits
as barred by the doctrines of res judicata and collateral estoppel where
the appellant had litigated these claims and obtained a final decision in a
prior Board appeal.
Petitioner: Linda Jwanouskos
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1086
MSPB Docket No. DC-0752-15-0127-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims challenging her removal as barred by the doctrine of
collateral estoppel, and dismissing her claims regarding her disability
retirement for lack of jurisdiction because there was no evidence that
OPM had issued a final decision on those claims.
Petitioner: Taylor M. Sharpe
Respondent: Environmental Protection Agency
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3413
MSPB Docket No. DA-0752-14-0034-I-1
Issuance Date: March 14, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision sustaining
the appellant’s indefinite suspension based on his arrest for charges of
violating his probation.
Petitioner: Lee Johnson
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3174
MSPB Docket No. SF-1221-14-0828-W-1
Issuance Date: March 17, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision denying the
appellant’s request for corrective action in an IRA appeal.
Petitioner: Nancy E. Whitaker
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3085
MSPB Docket No. CH-3330-14-0634-I-1
Issuance Date: March 18, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision dismissing
the appellant’s Veterans Employment Opportunities Act of 1998 (VEOA)
appeal as untimely.
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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
Appellant: Steven P. Pirkkala
Agency: Department of Justice
Decision Number: 2016 MSPB 16
Docket Number: AT-0752-15-0454-I-1
Issuance Date: March 31, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Election of Remedies
Effect of an untimely grievance
Untimely Board appeal
In March 2009, the agency removed the appellant, and informed him that he
could challenge his removal through the negotiated grievance procedure, a
Board appeal, or the equal employment opportunity complaint process. The
appellant filed an untimely grievance challenging his removal, which the
agency rejected. Subsequently, the appellant’s union indicated that it would
invoke arbitration on his behalf. However, prior to the scheduled arbitration
hearing, the union decided that it would not represent the appellant or
invoke arbitration on his behalf because he was not a dues paying member of
the union. Therefore, on August 27, 2009, the arbitrator notified the
appellant that he would not proceed with the arbitration.
Five years and 7 months later, on March 27, 2015, the appellant filed a Board
appeal challenging his removal. The administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant had elected to
pursue his removal through the negotiated grievance process.
Holding: The Board vacated the initial decision and found that the Board
had jurisdiction over the appeal, but dismissed the appeal as untimely
filed without good cause shown for the delay.
1. The Board had jurisdiction over the appeal. Pursuant to the plain
language of 5 U.S.C. § 7121(e)(1), which references an employee who
“timely files a grievance,” the untimely filing of the appellant’s grievance
precluded it from being considered a valid election of remedies.
Therefore, because the appellant did not effectively elect another forum
to challenge his removal, the Board had jurisdiction over the appeal.
2. The appeal was untimely filed without good cause shown for the
delay.
a. There was no indication that the appellant was aware that the
union would refuse to represent him, in violation of Federal
labor law, at the time that he grieved his removal. Therefore,
the appellant established good cause for his delay in filing until
August 27, 2009, when the arbitrator informed him that the
arbitration would not proceed because he lacked union
representation.
b. However, the appellant did not file his Board appeal until 5
years and 7 months later. Even assuming that the appellant’s
anxiety and depression affected his ability to timely file his
appeal, he failed to establish good cause for his delay in filing
between August 27, 2009, when the arbitrator made it clear
that the union would not represent him, and August 10, 2010,
when medical evidence reflected that he began treatment for
his conditions.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Shirley R. Hicks
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1091
MSPB Docket No.: AT-1221-15-0217-W-1
Issuance Date: March 22, 2016
Individual Right of Action (IRA) Appeal
Whistleblower Protection Enhancement Act (WPEA) Retroactivity
In 1989, the agency removed the appellant from her position as a Secretary.
The appellant filed a Board appeal challenging her removal, and the Board
mitigated the penalty of removal to a 60-day suspension. Subsequently, in
1990, the agency effected a new removal action. More than two decades
later, in July 2014, the appellant contacted the Office of Special Counsel
(OSC), alleging that the agency had removed her in 1990 in retaliation for
making protected disclosures and in reprisal for filing her Board appeal.
After OSC terminated its investigation, the appellant filed an IRA appeal with
the Board. The administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to raise a nonfrivolous
allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8).
In addition, the administrative judge found that the Board lacked jurisdiction
over the appellant’s claim that the agency removed her in retaliation for
filing her prior Board appeal, because at time of the appellant’s removal, the
Whistleblower Protection Act (WPA) did not authorize IRA appeals based on
reprisal for protected activity under 5 U.S.C. § 2302(b)(9). The Board
affirmed the initial decision.
Holding: The Court affirmed the Board’s decision dismissing the appeal
for lack of jurisdiction.
1. Effective December 27, 2012, the WPEA expanded IRA appeal rights
under 5 U.S.C. § 1221(a) to include claims for corrective action based on
prohibited personnel practices described in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), and (D). However, this expansion of appeal rights does not apply
retroactively to events that occurred before the effective date of the
WPEA. Therefore, the WPEA does not provide jurisdiction over the
appellant’s claims that the agency removed her in 1990 in retaliation for
filing her prior Board appeal.
2. The court expressly declined to address whether other provisions of
the WPEA may apply retroactively.
NONPRECEDENTIAL:
Petitioner: Damian C.A. Phillip
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1002
MSPB Docket No. DC-1221-15-0642-W-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s IRA and probationary termination appeal for lack of
jurisdiction. The appellant failed to raise a nonfrivolous allegation that
he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or that his
probationary termination was based on partisan political reasons or
marital status.
Petitioner: Bancie Black
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3223
MSPB Docket No. DC-0831-14-1113-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims for Civil Service Retirement System retirement benefits
as barred by the doctrines of res judicata and collateral estoppel where
the appellant had litigated these claims and obtained a final decision in a
prior Board appeal.
Petitioner: Linda Jwanouskos
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-1086
MSPB Docket No. DC-0752-15-0127-I-1
Issuance Date: March 11, 2016
Holding: The court affirmed the Board’s decision dismissing the
appellant’s claims challenging her removal as barred by the doctrine of
collateral estoppel, and dismissing her claims regarding her disability
retirement for lack of jurisdiction because there was no evidence that
OPM had issued a final decision on those claims.
Petitioner: Taylor M. Sharpe
Respondent: Environmental Protection Agency
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3413
MSPB Docket No. DA-0752-14-0034-I-1
Issuance Date: March 14, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision sustaining
the appellant’s indefinite suspension based on his arrest for charges of
violating his probation.
Petitioner: Lee Johnson
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3174
MSPB Docket No. SF-1221-14-0828-W-1
Issuance Date: March 17, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision denying the
appellant’s request for corrective action in an IRA appeal.
Petitioner: Nancy E. Whitaker
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3085
MSPB Docket No. CH-3330-14-0634-I-1
Issuance Date: March 18, 2016
Holding: Per Rule 36, the court affirmed the Board’s decision dismissing
the appellant’s Veterans Employment Opportunities Act of 1998 (VEOA)
appeal as untimely.
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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
Appellant: Zachary Batara
Agency: Department of the Navy
Decision Number: 2016 MSPB 15
Docket Number: SF-0752-15-0560-I-1
Issuance Date: March 7, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Mitigation
The agency removed the appellant, a Shipyard worker who admitted to
frequent off-duty use of marijuana. The appellant filed a Board appeal, and
the administrative judge sustained the charge but mitigated the removal to a
30-day suspension. She found that the agency’s penalty determination was not
entitled to deference because the deciding official failed to consider all of the
mitigating factors, and that the removal penalty exceeded the tolerable limits
of reasonableness. The agency filed a petition for review.
Holding: The Board granted the petition for review, reversed the initial
decision, and upheld the removal.
1. Standard. The Board will review an agency-imposed penalty only to
determine if the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness.
2. The deciding official considered the relevant penalty factors. The
administrative judge found that the agency’s penalty determination was not
entitled to deference because the deciding official failed to consider that
the appellant’s supervisors remained confident in the appellant’s ability to
perform his duties. However, the penalty determination belongs to the
agency – not the supervisors. The opinions of the appellant’s supervisors
were insufficient to overcome the judgment of the deciding official.
3. The removal penalty was not unreasonable.
a. The appellant’s work on submarines was such that his illegal drug use
could result in substantial danger to the lives and safety of others,
and it showed a flagrant disregard for Shipyard policy. The appellant
was aware that his frequently repeated conduct was prohibited, and
removal fell within the recommended range on the table of penalties
b. Although the appellant and the agency both proffered comparators,
these individuals’ circumstances were so different from the
appellant’s that neither was similarly situated to him for purposes of
a disparate penalty analysis. Therefore, this penalty factor was
irrelevant.
c. The agency’s failure to take down or re-inspect the appellant’s work
after it learned of his drug use was not a mitigating factor. Nor were
“the cultural and social mores regarding drug use for people of [the
appellant’s] age group.”
d. There were several mitigating factors, including the appellant’s
satisfactory work record, demonstrated reliability, and lack of prior
discipline. The appellant also expressed remorse, successfully
completed a drug treatment program, and produced two negative
drug test results. However, considering that the appellant’s service
with the agency was only 3 years and his expressions of remorse and
attempts at rehabilitation occurred only after the removal action, the
mitigating factors provided an insufficient basis to disturb the
agency’s penalty determination.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Louise Klees-Wallace
Respondent: Federal Communications Commission
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3067
Petition for review from arbitration
Issuance Date: March 10, 2016
Adverse actions – removal
Arbitration review
Final judgement rule
The agency proposed the petitioner’s removal for leave-related reasons. In
lieu of removal, the parties entered into a last chance agreement (LCA).
Paragraphs 2(a) through 2(d) of the LCA set forth various conditions and
requirements for the petitioner to take leave in the future. Any violation of
the LCA would result in removal with no opportunity to respond or appeal.
The agency subsequently removed the petitioner for violating paragraph 2(c).
The union filed a grievance, and the deciding official issued a decision, finding
found that paragraph 2(c) was inapplicable to the situation, but that removal
was still appropriate because the petitioner had violated paragraph 2(d). The
matter went to arbitration. The arbitrator issued an “Opinion and Interim
Award,” finding that the petitioner was deprived of the right to show that she
did not violate paragraph 2(d), remanded the case to the agency for further
proceedings, and retained jurisdiction to hear any appeal of the remanded
grievance proceeding. The petitioner appealed to the court.
Holding: The court dismissed for lack of jurisdiction.
1. One constraint on the court’s jurisdiction is the so-called “final
judgment rule,” which ordinarily limits its jurisdiction to appeals from a
decision or order that ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.
2. Congress made arbitral decisions subject to judicial review in the
same manner and under the same conditions as if the matter had been
decided by the MSPB; both are subject to the final judgement rule.
3. The arbitrator’s Opinion and Interim Award was not a final order or
decision. The arbitrator did not reach the ultimate question of whether the
petitioner breached the LCA. Rather, the arbitrator remanded the matter
to the agency to provide the petitioner with an opportunity to prove that
she did not violate paragraph 2(d). An order remanding a matter to an
administrative agency for further findings and proceedings is not final.
NONPRECEDENTIAL:
Harrelle v. Merit Systems Protection Board, No. 2016-1138 (Mar. 10, 2016)
(MSPB No. DC-315H-15-0425-I-1) (affirming the Board’s decision dismissing the
appellant’s termination appeal for lack of jurisdiction on the bases that the
appellant’s Foreign Service position was specifically excluded from chapter 75
coverage, and in any event, she did not have the requisite period of current
continuous service to qualify as an “employee” under 5 U.S.C. § 7511(a)(1)).
Fisher v. Department of Health & Human Services, No. 2015-3207 (Mar. 10,
2016) (MSPB No. CH-0752-15-0099-I-1) (affirming the Board’s decision that
upheld the appellant’s removal for AWOL, including the Board’s finding that
the agency proved by clear and convincing evidence that it would have
removed the appellant notwithstanding his protected disclosure).
Skrettas v. Department of Veterans Affairs, No. 2015-3203 (Mar. 10, 2016)
(MSPB No. AT-3443-15-0037-I-1) (affirming the Board’s decision dismissing the
appellant’s removal appeal for lack of jurisdiction on the basis that the
appellant waived his Board appeal rights in a settlement agreement).
Dominado v. Merit Systems Protection Board, No. 16-1133 (Mar. 10, 2016)
(MSPB No. SF-0831-15-0490-I-1) (affirming the Board’s decision dismissing the
appellant’s survivor annuity appeal for lack of jurisdiction on the basis that
OPM had not yet issued a final, appealable decision, and there was no
indication that such a decision from OPM was not forthcoming).
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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
Appellant: Cedric D. Clay
Agency: Department of the Army
Decision Number: 2016 MSPB 12
Docket Number: SF-0752-15-0456-I-1
Issuance Date: March 2, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
The agency removed the appellant based upon charges of failure to
follow instructions, inappropriate contact with a coworker, and use of
offensive language in the workplace. The appellant appealed his
removal, raising affirmative defenses of race discrimination and
retaliation for filing a prior Board appeal. The administrative judge
affirmed the removal.
Holding: The Board affirmed the administrative judge’s findings
concerning proof of the charges and the race discrimination
affirmative defense, but remanded for further adjudication of the
reprisal affirmative defense.
1.
After the administrative judge issued the initial decision, the
Board issued Savage v. Department of the Army,
122 M.S.P.R. 612 (2015), clarifying the proper standard for
cases involving discrimination or retaliation allegations under
42 U.S.C. § 2000e-16. Nevertheless, the Board determined that
the result in this case was the same because the appellant
presented no evidence that the agency took any actions in the
appeal based upon his race.
2. The appellant’s reprisal affirmative defense was based upon a
claim that the agency removed him for filing a prior Board
appeal, an appeal that included a whistleblower reprisal
allegation. Accordingly, his reprisal claim fell under 5 U.S.C.
§ 2302(b)(9)(A)(i), which makes it a prohibited personnel
practice to “take or fail to take, or threaten to take or fail to
take, any personnel action against any employee or applicant
for employment because of the exercise of any appeal,
complaint, or grievance right granted by any law, rule, or
regulation, with regard to remedying a violation of
[§ 2302(b)(8)]. Therefore, the appellant’s retaliation claim
should have been analyzed under the burden-shifting scheme
set forth in 5 U.S.C. § 1221(e), not the general reprisal
standard the administrative judge used.
Appellant: Darryl M. Lewis
Agency: Department of Defense
Decision Number: 2016 MSPB 13
Docket Number: DC-1221-15-0676-W-1
Issuance Date: March 3, 2016
Appeal Type: Individual Right of Action (IRA)
Action Type: IRA "1221" Non-appealable Action
After the agency denied his requests for extended LWOP or permission
to telework from Germany for a year, the appellant stopped reporting to
work. Subsequently, the agency removed him on charges of AWOL and
failure to follow an order. The appellant filed a whistleblower
complaint with OSC. After OSC closed its investigation, the appellant
filed an IRA with the Board. The administrative judge dismissed the IRA
for lack of Board jurisdiction.
Holdings: The Board granted the appellant’s petition for review,
vacated the initial decision, and remanded for a hearing on the
merits.
1. The administrative judge rejected the appellant’s
whistleblowing claims based on the contents of OSC close-out
and final determination letters, finding that most of his
allegations had not been exhausted. However, an appellant
may submit his own letters to OSC to demonstrate the scope of
complaints he exhausted with that agency. In this case, the
appellant’s letters to OSC detailed more disclosures than that
which was included in OSC’s letters.
2. Two of the appellant’s disclosures concerned the agency failing
to prevent two individuals from unauthorized access to
sensitive or classified information. For those disclosures, the
Board found that the appellant could have reasonably believed
that he was disclosing a violation of law, rule, or regulation
pertaining to physical and information security. In addition,
although the appellant could not provide specific dates of his
disclosures due to his lacking access to his agency email
account, he alleged that agency officials told him that his
disclosures were “at the very least a contributing factor” in the
agency’s denial of his request for LWOP, which ultimately led
to his failing to report to work. Accordingly, the appellant
made nonfrivolous allegations and met his jurisdictional
burden.
Appellant: NV24-KEYPORT2 et al.
Agency: Department of the Navy
Decision Number: 2016 MSPB 14
Docket Number: SF-0752-13-3066-I-1
Issuance Date: March 3, 2016
Appeal Type: Adverse Action by Agency
Action Type: Furlough (30 Days Or Less)
The agency furloughed a number of similarly situated employees for 6
days. The administrative judge held one hearing and issued a decision
for each consolidated group of employees, affirming the furloughs.
Holdings: The Board affirmed the initial decisions as modified to
supplement the administrative judge’s conclusions.
1. An agency meets its burden of proving that a furlough promotes
the efficiency of the service by showing, in general, that the
furlough was a reasonable management solution to the financial
restrictions placed on it and that the agency applied its
determination as to which employees to furlough in a fair and
even manner.
2. The appellants alleged that their component, the NUWC Division
Keyport, was a Major Range and Test Facility Base (MRTFB)
governed by 10 U.S.C. § 129, a provision that prohibits certain
civilian personnel management constraints for some DOD
employees. The Board found that there was no evidence that
the furloughs of the appellants constituted an improper
constraint or limitation on the management of civilian
personnel in violation of § 129.
3. Notwithstanding assertions that the NUWC Division Keyport had
adequate funding to avoid the furloughs, the Board found that
it was reasonable for DOD to consider its budget situation
holistically. Further, although an agency’s decision to award
certain employees overtime may be relevant to whether the
agency applied the furlough uniformly and consistently, the
Board found that the agency’s use of overtime in this case was
fair and even.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: John Parkinson
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3066
MSPB Docket No. No. SF-0752-13-0032-I-2
Issuance Date: February 29, 2016
The appellant was a Special Agent for the FBI at its Sacramento field office.
His duties included managing the build-out of a leased facility. In
February 2008, he made whistleblower-eligible disclosures to an Assistant
Special Agency in Charge, Mr. Cox. Just a few months later, Mr. Cox and the
appellant’s immediate supervisor issued the appellant a low performance
rating, removed him as group leader, and reassigned him to another field
office. Believing these acts to be whistleblower reprisal, the appellant sent a
letter to Senator Charles Grassley, who forwarded the allegations to DOJ’s
OIG. Separately, Mr. Cox and the Sacramento field office submitted a referral
to OIG concerning possible misuse of funds related to the build-out the
appellant had previously managed.
At the conclusion of OIG’s investigation concerning the buildout, the FBI’s
Office of Professional Responsibility (OPR) issued a report and proposed the
appellant’s removal. The OPR report concluded that the evidence
substantiated (1) theft (FBI Offense Code 4.5), (2) obstruction of the OPR
process (FBI Offense Code 2.11), (3) unprofessional conduct while on duty (FBI
Offense Code 5.22), and lack of candor (FBI Offense Code 2.6). OPR dismissed
the appellant and he filed a Board appeal.
The Board did not sustain the theft or unprofessional conduct charge, but did
sustain the obstruction charge, along with the lack of candor charge. The
Board affirmed the administrative judge’s dismissal of the appellant’s
whistleblower and USERRA affirmative defenses, based upon Board precedent
that FBI employees are not entitled to such affirmative defenses under
5 U.S.C. § 7701(c)(2)(B) due to the fact that the FBI is excluded from the
definition of agency in 5 U.S.C. § 2302. After reconsidering the Douglas
factors, the Board approved the penalty of removal.
Holding: The Court found that the record supported sustaining only
the obstruction of the OPR process charge. In addition, the Court
found that the appellant was entitled to bring an affirmative defense
of whistleblower reprisal. Accordingly, the Court remanded for
consideration of the whistleblower retaliation affirmative defense
and the appropriate penalty, if any, for the one sustained charge.
1. FBI Offense Code 2.11 prohibits taking any action to influence,
intimidate, impede or otherwise obstruct the OPR process.
Substantial evidence supported the Board’s determination that the
appellant obstructed the OPR process by meeting with the lessor of
the build-out property, a potential witness to the misuse of funds
investigation, to get their stories straight and commit that story to
writing.
2. The appellant was charged with lack of candor in violation of FBI
Offense Code 2.6. That offense code provides for dismissal when an
employee “knowingly provid[es] false information in a verbal or
written statement made under oath,” with “false information”
defined as including false statements, misrepresentations, the failure
to be fully forthright, or the concealment or omission of a material
fact/information. Although lack of candor is distinct from
falsification in that it does not require a showing of an “intent to
deceive,” it nevertheless requires that information is conveyed
“knowing” that such information is incomplete.
3. One of the sustained specifications underlying the lack of candor
charge stemmed from a statement to OIG in which the appellant
distinguished between his “asking” and “telling/directing” the lessor
of the build-out property not to provide the FBI with the
documentation it had requested. Although the Board found that the
appellant appeared to draw the distinction in order to suggest that he
had little control over what the lessor did and minimize his
culpability, the Court found that there was not substantial evidence
that any failure to be forthright was done “knowingly.” The
appellant’s subsequent statement that he had “directed” the lessor
to provide the documents to OIG rather than the FBI was not enough
to permit an inference that his earlier characterization was
knowingly deceptive.
4. The other sustained specification underlying the lack of candor
charge stemmed from the appellant’s testimony that “nothing was
done with any of the tenant improvement funds that was not
approved by [the lessor].” The Court found that the Board erred by
determining that that the statement inaccurately provided an
appearance of pre-approval rather than after-the-fact ratifications.
The Court noted that the context of the question was whether the
lessor approved the expenses, not when he did so. Moreover, the
Court found that the word “approved” is a generic way of saying
“pre-approved or ratified,” making the appellant’s statement wholly
accurate.
5. Although Congress created an FBI-specific enforcement mechanism
for whistleblower retaliation in § 2303, that does not preclude a
preference-eligible FBI agent with the right to appeal his removal to
the Board under § 7513(d) and § 7701 from bringing an affirmative
defense of whistleblower retaliation. (overruling the Board’s
contrary ruling, first set out in Van Lancker v. Department of
Justice, 119 M.S.P.R. 514 (2013)).
6. In contrast to the whistleblower retaliation affirmative defense, the
USERRA violation claims manifest a clear Congressional will to
withhold all judicial review of USERRA violations for FBI agents. The
appellant cited 38 U.S.C. § 4315 in presenting his USERRA affirmative
defense, but that section wholly excludes the FBI’s determination of
reemployability from judicial review. Therefore, a substantive
determination of reemployability was excluded from judicial review,
even in the context of an affirmative defense.
NONPRECEDENTIAL:
Petitioner: John Bazan
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3105
MSPB Docket No. No. SF-3330-13-4195-I-1
Issuance Date: February 26, 2016
Holding: The Court affirmed the Board’s decision, denying the appellant’s
VEOA claim, which stemmed from an allegation that the agency violated his
veterans’ preference rights by selecting another applicant for an excepted
service position.
Petitioner: Vernice James
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3120
MSPB Docket No. No. AT-3443-14-0870-I-1
Issuance Date: February 29, 2016
Holding: The Court affirmed the Board’s decision, which dismissed the
appellant’s appeal of her non-selection. To the extent that the appellant
alleged that her non-selection was retaliation for whistleblowing, her
appeal was premature.
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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
Appellant: Gary Kalus
Agency: Department of Homeland Security
Decision Number: 2016 MSPB 9
Docket Number: NY-1221-15-0110-W-1
Issuance Date: February 12, 2016
Appeal Type: Individual Right of Action (IRA)
IRA Appeals
Timeliness
Exhaustion
On December 7, 2011, the appellant filed a whistleblower complaint with the
Office of Special Counsel (OSC), alleging that the agency retaliated against him
for protected whistleblowing by failing to nominate him for a fiscal year 2011
performance award. On August 29, 2012, OSC closed the complaint without
taking corrective action and notified the appellant of his Board appeal rights.
The appellant, however, did not file a Board appeal.
On August 10, 2014, the appellant filed another whistleblower complaint with
OSC on the same matter and submitted additional evidence to support his
claim. On December 8, 2014, OSC closed the file without taking corrective
action and notified the appellant of his Board appeal rights. On February 8,
2015, the appellant filed an IRA appeal with the Board.
The administrative judge dismissed the appeal as untimely filed. He found
that the matters raised in this appeal were the same as those previously raised
before OSC in December 2011, and thus, the appellant’s February 8, 2015 IRA
appeal was untimely filed with respect to OSC’s August 29, 2012 close-out
letter. The administrative judge further found that the circumstances did not
warrant equitable tolling. The appellant filed a petition for review.
Holding: The Board granted the petition for review, vacated the initial
decision, found that the IRA appeal was timely filed, and remanded the
appeal to the regional office for further adjudication.
1. An IRA appeal must be filed no later than 65 days after the date that
OSC issues its close-out letter, or, if the letter is received more than 5 days
after its issuance, within 60 days of the date of receipt.
2. Although the appeal would have been untimely with respect to OSC’s
August 29, 2012 closeout letter, it was timely with respect to the December
8, 2014 closeout letter. When OSC reopened the proceedings in this
matter, it deprived the August 29, 2012 letter of the finality required for
purposes of Board review, and thus, the December 8, 2014 letter is the
operative one.
3. Absent egregious circumstances evidencing an abuse of process, the
Board will accept OSC’s decision to reopen at face value.
4. The Board distinguished between situations in which OSC declines to
reopen a case and situations like this one in which OSC does reopen the
case. In the former, OSC’s decision does not trigger a new IRA filing period;
in the latter, it does.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Peter McMillan
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3042
Issuance Date: February 16, 2016
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Discrimination
Substantial Evidence
The appellant was a Drug Enforcement Agency (DEA) Criminal Investigator
stationed in Lima, Peru. He was also a Major in the Army Reserves, and was
scheduled to complete 1 week of military service from July 17 through July 26,
2010. As part of his military service, the appellant was assigned to write a
“two to three page intelligence assessment on the historical impact of the
DEA’s expulsion from Bolivia on drug trafficking, public corruption and social
effects.” In assigning this task to the appellant, the Army was mindful of his
expertise in DEA matters and wanted to leverage that expertise.
Prior to leaving for military service, the appellant sought guidance from some
of his superiors at the agency in writing the report. The appellant’s third-level
supervisor gave him permission to use a sensitive DEA document as a source
and reference for his report, on the condition that the appellant would submit
the report to him for review before disseminating it to the Army.
While on military leave, the appellant submitted his report to the agency for
review. The appellant also informed the agency that he would be participating
in a military conference in which his “dual capacity as a MI Reservist and
‘working’ agent,” would allow him “to be a proponent for DEA’s viewpoint in
the Southern Cone.” The appellant’s third-level supervisor balked at this idea,
and an unpleasant email exchange ensued. The third-level supervisor also
disapproved the appellant’s report and forbade him from using the DEA
document as a source at all.
On September 14, 2010, less than 2 months after his return from military
service, the appellant requested a tour extension in Lima. The agency denied
the request the next day. After exhausting his remedies with the Department
of Labor, the appellant filed a USERRA appeal with the Board. The
administrative judge denied the appellant’s request for corrective action,
finding that there was no evidence that the agency’s decision was motivated
by the appellant’s uniformed service. The full Board remanded the appeal for
further adjudication, holding that “to the extent an employee’s military duties
are themselves at odds with the interests of the civilian employer, the
employer may not take action against the employee on that basis.” On
remand, the administrative judge again denied the appellant’s request for
corrective action, finding that the agency’s decision was not motivated by the
appellant’s military service but was instead based on legitimate,
nondiscriminatory reasons. The full Board affirmed, and the appellant
petitioned the court for review.
Holding: The court reversed the Board’s decision because it was not
supported by substantial evidence. It granted the appellant’s request for
corrective action and remanded for determination of an appropriate
remedy.
1. Evidentiary Framework – To prevail on the merits of a USERRA
discrimination appeal, the appellant must show that his military service was
a substantial or motivating factor in the agency’s action. If the appellant
meets this burden, the burden shifts to the agency to show that the action
would have taken place for a valid reason.
2. The Appellant’s Burden – Employers will rarely concede an improper
motivation for their actions, but an improper motivation may be inferred
upon consideration of the following factors: (1) proximity of time between
the military service and the employment action; (2) inconsistencies
between the employer’s proffered reasons for the action and other actions
of the employer; (3) the employer’s expressed hostility towards members
protected by USERRA together with a knowledge of the employee’s military
activity; and (4) disparate treatment of covered employees compared with
other employees with similar records or offenses. All four factors in this
case weighed in the appellant’s favor and entailed an inference of
discrimination.
A. There was less than 2 months between the appellant’s military
service and the agency’s action, thus demonstrating a close
proximity in time.
B. The agency’s proffered reasons for its action (performance issues,
failure to follow chain of command, and disrespectful tone in the
appellant’s emails) were not well-supported. There was no
explanation of how the appellant’s performance in the current
rating period was below his performance in prior rating periods, in
which he received higher ratings and was granted tour extensions.
The Lima office had not instituted or followed a strict chain of
command policy prior to the incidents at issue here. Although the
tone of the appellant’s emails was not “ideal,” it was not beyond
the pale, especially considering that the appellant’s third-level
supervisor initiated the hostile tone.
C. The appellant’s third-level supervisor’s emails expressed hostility
to the appellant’s military assignment.
D. The agency failed to take action against another employee who
disregarded the chain of command.
3. The Agency’s Burden – The agency failed to prove that it would have
taken the action at issue even in the absence of the appellant’s uniformed
service. Notably, all of the agency’s proffered reasons for denying the
appellant’s tour extension were related to the project that the appellant
was assigned to perform as part of his military service and his interaction
with agency officials in connection thereto.
Petitioner: Carl D. Hayden
Respondent: Department of the Air Force
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3073
MSPB Docket No. CH-4324-13-0534-I-1
Issuance Date: February 12, 2016
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Reemployment
Discrimination
Reprisal
The appellant was a GS-11 Protocol Specialist for the agency. Due to changes
in personnel and workload at his duty station, the appellant began accreting
more and higher-level duties. Because of this, on March 26, 2012, the
appellant’s supervisor put in a request to upgrade the appellant’s position to
GS-12. Meanwhile, the appellant, who was also a member of the Air Force
Reserve, was called to active duty from April 10, 2012 to December 2012.
Initially, the agency declined to process the upgrade during the appellant’s
absence because he was not available for an in-person desk audit. Later, the
workload in the appellant’s area dereased and there was no need for
additional GS-12s. Therefore, the agency declined to process the upgrade at
all, even after the appellant’s return.
In March, 2013, the appellant asked his supervisor to re-submit the upgrade
request. The appellant alleged that, in response, his supervisor told him that
she did not recommend his promotion because of his excessive absence for
Reserve duties. The appellant then sought assistance from the Employer
Support of the Guard Reserve (ESGR) office. During a subsequent meeting
about his performance, the appellant’s supervisors told him that he was no
longer working at the GS-12 level.
The appellant filed a Board appeal, alleging that the agency’s failure to
upgrade his position violated USERRA’s discrimination, reemployment, and
retaliation provisions. The administrative judge denied the appellant’s request
for corrective action, and the full Board affirmed. The appellant then
petitioned for review with the Federal Circuit.
Holding: The court affirmed the Board’s decision as to the reemployment
and retaliation claims, but vacated the Board’s findings on the
discrimination claim and remanded for further adjudication.
1. Discrimination – To prevail on the merits of a USERRA discrimination
claim, the appellant must show that his military service was a substantial or
motivating factor in the agency’s action. If the appellant meets this
burden, the burden shifts to the agency to show that the action would have
taken place for a valid reason.
A. Appellant’s Burden – The court affirmed the Board’s finding
that the appellant met his initial burden to show that the
agency’s actions were discriminatory. The agency considered
the appellant’s military absences to be problematic, and they
were a motivating factor in its decision not to upgrade his
position.
B. Agency’s Burden – The record was insufficient to conclude that
the agency showed that it would have declined to upgrade the
appellant’s position notwithstanding his uniformed service.
The in-person desk audit was discretionary, and the appellant’s
unavailability for it due to his uniformed service was not a
sufficient reason for the agency to deny the upgrade.
Furthermore, although there were displaced employees who
might have been entitled to the GS-12 position over the
appellant, the Board misallocated the burden of proof. It
required the appellant to show that he would have been
successful in competing for any new GS-12 position rather and
requiring the agency to show that he would not have been.
Because there was insufficient evidence that, had the agency
processed the upgrade at the time it was requested, the
appellant would have had to compete for the position and
would not have won, the court vacated and remanded for
further findings.
2. Reemployment –The appellant did not prove his reemployment
claim because position upgrades are not incidents or advantages
generally granted to all employees. Nor was the upgrade “reasonably
certain” to accrue to the appellant.
4. Retaliation – The appellant did not prove his retaliation claim
because he presented no evidence that the agency bore any
discriminatory animus towards him for seeking assistance from the
ESGR. To the contrary, the agency presented evidence that it did not
need additional GS-12 Protocol Officers at the time, and that the
appellant’s supervisors were concerned about helping him overcome
a decline in his performance and prepare for eventual promotion to
GS-12.
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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
Appellant: Marie Jackson
Agency: Department of the Army
Decision Number: 2016 MSPB 4
Docket Number: AT-0752-15-0504-I-1; AT-531D-14-0638-I-2
Issuance Date: January 19, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Settlement agreements
OWBPA
At issue on petition for review was the parties’ settlement agreement of these
two joined appeals, which concerned the appellant’s performance-based
removal and within-grade increase denial. The settlement agreement included
a provision permitting the appellant to revoke it within 7 days from execution
“in accordance with the Older Workers’ Benefit Protection Act (OWBPA).” The
administrative judge dismissed the appeal as settled prior to the expiration of
the 7-day period. Subsequently, on the sixth day, the appellant informed the
agency that she was revoking the agreement. The appellant then filed the
petition for review, seeking to reinstate her appeal.
Holding: The Board granted the petition for review, vacated the initial
decision, and remanded the appeal to the regional office to resume
adjudication.
1. The Board found that, according to the plain language of the
settlement agreement, the appellant was entitled to revoke the settlement
agreement within 7 days.
2. It was irrelevant that the appellant did not raise a claim under the
Age Discrimination in Employment Act (ADEA) and that the OWBPA does not
require that a settlement agreement of a Board appeal contain a 7-day
revocation period even if age discrimination is raised. The settlement
provided for a 7-day revocation period and the appellant revoked.
3. The revocation clause was not severable. Although the settlement
agreement contained a severability provision, it provided for severing
unenforceable terms. The revocation clause was not unenforceable, and
therefore did not fall within the scope of the severability provision.
4. The revocation clause was not limited to non-ADEA claims, and
therefore the Board declined to remand only for adjudication of age
discrimination claims as it has done in cases where an appellant sought to
set aside a settlement agreement that did not comply with the OWBPA and
did not contain a revocation clause.
Appellant: Lisa J. Hess
Agency: United States Postal Service
Decision Number: 2016 MSPB 5
Docket Number: AT-0752-14-0058-I-2
Issuance Date: January 21, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Mixed-case appeals
Mootness
Whistleblower reprisal
The agency removed the appellant for an attendance-related charge, and she
filed the instant appeal, raising equal employment opportunity (EEO)
affirmative defenses and whistleblower reprisal. The agency then rescinded
the removal and returned the appellant to status quo ante. The administrative
judge therefore found the removal action moot. He further found that the
appellant failed to present a genuine issue of material fact regarding her EEO
affirmative defenses, and dismissed them without a hearing. Finally, he found
that, as a postal employee, she was not entitled to seek damages under
5 U.S.C. § 1221; therefore, he dismissed her whistleblower reprisal affirmative
defense as moot.
Holding: The Board granted the petition for review, affirmed the findings
in the initial decision that the appellant’s removal claim and whistleblower
reprisal affirmative defense were moot, but vacated the dismissal of the
appellant’s EEO affirmative defenses and remanded them for a hearing.
1. The Board found that the administrative judge properly dismissed the
removal and whistleblower reprisal claims as moot. With regard to the
appellant’s removal claim, the agency properly returned the appellant to
status quo ante by rescinding all references to her removal and returning
her in a nonpay status prior to the effective date of her removal. The
agency was not required to cancel the appellant’s preremoval absence
without leave (AWOL) status because doing so would place her in a more
advantageous position than she was in prior to her removal.
2. With regard to the appellant’s whistleblower reprisal claim, the
appellant can raise an affirmative defense of whistleblower reprisal.
However, as a postal employee, she cannot seek attorney fees or damages
under 5 U.S.C. § 1221. Because there is no additional relief that the Board
could order in connection with this claim, it is also moot.
3. Where, as here, an appellant raises claims of prohibited
discrimination in connection with an otherwise appealable action, the
Board may only decide such claims after the record is complete.
Therefore, the appellant is entitled to her requested hearing on her claims
of sex and disability discrimination and EEO reprisal. The Board vacated
the initial decision with regard to the appellant’s EEO affirmative defenses,
and remanded those claims for a hearing.
Appellant: Beverly Martin
Agency: United States Postal Service
Decision Number: 2016 MSPB 6
Docket Number: DC-0752-15-0108-I-1
Issuance Date: January 21, 2016
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Mixed-case appeals
Settlement agreements
Suspensions – constructive and nonconstructive
The parties entered into a settlement agreement that resolved the appellant’s
EEO complaints. In pertinent part, the appellant agreed to retire effective
July 2011, and the agency agreed to enhance its contributions to her
retirement for the 3 previous years. However, in April 2012, the parties
learned that OPM did not approve the enhanced retirement contributions.
Therefore, in October 2012, the agency reinstated the appellant retroactive to
July 2011. The agency designated the period between July 2011 and October
2012 as leave without pay (LWOP). After filing an EEO complaint, the
appellant timely filed the instant appeal, in which sought back pay for the
LWOP period, as well as alleging EEO reprisal and discrimination. The
administrative judge dismissed the appeal without a hearing, finding that the
Board lacked jurisdiction. He reasoned that the appellant was not
constructively suspended between July 2011 and October 2012, because her
decision to retire in July 2011 was knowing and voluntary.
Holding: The Board granted the petition for review, reversed the initial
decision, canceled the appellant’s July 2011 to October 2012
nonconstructive suspension, ordered the agency to pay back pay for this
period, and remanded the appeal for adjudication of the appellant’s EEO
reprisal and discrimination claims.
1. The Board found that the administrative judge erred in analyzing the
LWOP period as a constructive suspension. The term “constructive
suspension” is properly reserved for appeals where the appellant alleges
that leave that appeared to be voluntary was not. Here, the leave was not
even ostensibly voluntary. Therefore, the appellant suffered a
nonconstructive suspension within the Board’s jurisdiction.
2. Because the agency suspended the appellant without an opportunity
to be heard, it violated her Fifth Amendment due process rights, and the
suspension could not be sustained.
3. Finally, because the suspension was an appealable action, the
appellant was entitled to a decision on her EEO reprisal and discrimination
claims. The Board remanded for the appellant to receive her requested
hearing on these claims.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Raymond Muller
Respondent: Government Printing Office
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3032
Petition for review from arbitration
Issuance Date: January 15, 2016
Adverse actions – demotion
Arbitration review
The agency demoted the appellant, and he elected to challenge his demotion
through the negotiated grievance procedure rather than file a Board appeal.
The agency denied the grievance, and the union timely invoked arbitration.
However, the arbitrator dismissed the grievance as non-arbitrable. He
reasoned that the master agreement required the arbitration hearing to take
place within 4 months after the union filed notice of its decision to proceed to
arbitration. Although the arbitrator was selected before the 4 months elapsed,
the arbitration hearing did not take place before the deadline expired. On this
basis, the arbitrator found that the grievance had automatically terminated.
Holding: The Court reversed and remanded.
1. Because Muller’s demotion arose under 5 U.S.C. § 7512, the
arbitrator’s award is reviewed under 5 U.S.C. § 7703(c), which requires the
court to set the decision aside if (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.
2. The 4-month deadline from the master agreement is directed to the
parties collectively and the arbitrator. Further, the master agreement does
not provide for any consequence in the event of noncompliance with the
deadline. Therefore, the deadline is a goal, not a requirement, and the
arbitrator erred in concluding that the contractual provision obligated him
to terminate the arbitration.
3. Further, there is no past practice between the parties of dismissal
under the circumstances here. Rather, the agency presented evidence of a
past practice of closing arbitration when the union was not diligent in
selecting an arbitrator before the 4-month deadline. Muller’s situation was
different because the parties selected the arbitrator, and the case was in
the arbitrator’s hands, three weeks before the 4-month deadline passed.
Prost, J. wrote a separate, concurring opinion. Although she agreed with
the outcome, she disagreed that the 4-month deadline was a mere
housekeeping rule. Instead, if the delay were solely attributable to one
party, which was not the case here, she would find it appropriate to
enforce the deadline against the party responsible.
NONPRECEDENTIAL:
Petitioner: Christopher Harvey Hare
Respondent: National Credit Union Administration
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3214
MSPB Docket No. PH-3443-14-0638-B-1
Issuance Date: January 21, 2016
Holding: The court dismissed for lack of jurisdiction this appeal of the
agency’s reconstruction of its hiring process, finding that Hare must first
appeal to the Board.
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Case Report - October 2, 2015 | 10-02-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_2_2015_1227876.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_2_2015_1227876.pdf | Case Report for October 2, 2015
BOARD DECISIONS
Appellants: Rebstock Consolidation
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 53
MSPB Docket No.: DA-1221-15-0060-W-1
Issuance Date: September 29, 2015
Appeal Type: Individual Right of Action
Action Type: Retaliation
WPEA Retroactivity
Threat of Disciplinary Action for Refusal to Obey Order
New Evidence
The appellants are four Immigration and Customs Enforcement law
enforcement officers who filed a collective complaint with the Office of
Special Counsel (“OSC”) alleging that they were threatened with disciplinary
action if they refused to follow several agency memoranda that provided
guidance on the exercise of prosecutorial discretion in enforcing Federal
immigration law. The appellants then filed separate individual Right of Action
(“IRA”) appeals which were subsequently consolidated by the AJ, alleging that
the agency violated 5 U.S.C. § 2302(b)(9)(D) by threatening to take disciplinary
action against an employee for refusal to obey an order that would require
that employee to violate the law. The AJ dismissed the consolidated appeals
for lack of jurisdiction based on a finding that the events giving rise to the
consolidated appeal occurred prior to the effective date of the Whistleblower
Protection Enhancement Protection Act (“WPEA”), which expanded MSPB
jurisdiction to include IRA appeals alleging violations of 5 U.S.C. §
2302(b)(9)(D). The AJ further found that even if some of the acts at issue
occurred after the effective date of the WPEA, the appellants failed to make a
nonfrivolous allegation of whistleblower retaliation.
Holding: The Board denied the petition for review and affirmed the
initial decision.
1. The Board declined to give retroactive effect to the WPEA provision
expanding jurisdiction over violations of 5 U.S.C. § 2302(b)(9)(D), because
doing so would increase a party’s liability for past conduct.
2. To the extent that the appellants were challenging agency actions
occurring on or after the WPEA’s effective date, the appellants’ generalized
assertions and fears of discipline without reference to any specific matter
failed to constitute a nonfrivolous allegation that the agency threatened to
take a personnel action.
3. The appellant’s new evidence in the form of a nationally televised
Presidential address and the testimony of an agency official before Congress
did not affect the outcome because the Board may only consider the
charges of wrongdoing that the appellant presented before OSC, and may
not consider any subsequent recharacterization of those charges put forth
before the Board.
Appellant: Wendell Terry Rogers
Agency: Department of Defense
Decision Number: 2015 MSPB 54
MSPB Docket No.: AT-0752-14-0682-I-1
Issuance Date: September 30, 2015
Appeal Type: Adverse Action
Action Type: Indefinite Suspension
Indefinite Suspension Access to Classified Information
Harmful Procedural Error
The appellant was indefinitely suspended from his position as an Operations
Research Analyst based on the suspension of his access to classified
information pending final adjudication of his security clearance. The AJ
reversed the indefinite suspension action based on a finding of harmful
procedural error because the agency failed to accord the appellant certain
“unfavorable administrative action” procedures required by internal agency
regulations.
Holding: The Board granted the agency’s petition for review,
reversed the initial decision, and sustained the agency’s indefinite
suspension action.
1. The AJ erred in reversing the action based on harmful procedural error
because the agency’s internal procedures only required it to afford an
employee “unfavorable administrative action” procedures when a security
clearance was actually revoked. Here, the appellant’s security clearance
was only indefinitely suspended pending a final adjudication.
The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decisions this week:
Petitioner: Gregory Einboden
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3117
MSPB Docket No. DC-0752-13-0959-I-1
Issuance Date: October 1, 2015
Furlough Efficiency of the Service Standard
The petitioner was a civilian employee at the Naval Surface Warfare Center
Dahlgren Division (“Dahlgren”). Dahlgren employees were working capital fund
(“WCF”) employees whose salary was paid out of fees earned by Dahlgren, not
appropriations. Pursuant to sequestration, the petitioner was furloughed for
no more than 11 days. The petitioner appealed his furlough to the MSPB,
claiming that the agency should not have furloughed him because his salary
was paid out of WCF, and that no funds from WCF were subject to the
sequestration. The AJ upheld the furlough, finding that it promoted the
efficiency of the service because it was a reasonable management solution to
the financial restrictions placed on the agency. The petitioner appealed the
decision to the Board, and the Board affirmed in a split vote decision, holding
that it was reasonable for the Department of Defense to consider its budget
situation holistically, rather than to isolate each individual military
department’s situation within the Department of the Navy.
Holding: The Court affirmed.
1. A decision to issue a furlough will promote the efficiency of the service
if it is a reasonable management solution to the financial restrictions placed
on an agency, and if the agency determines which employees to furlough in
a fair and even manner.
2. An agency is not required to show actual re-programming of the funds
saved by the furlough to meet the efficiency of the service standard.
3. The Department of the Navy was not obligated to implement the
Department of Defense directive regarding sequestration in the same
manner as other Department of Defense subagencies.
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The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decisions this week:
Petitioner: Mark Shapiro
Respondent: Social Security Administration
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3113
MSPB Docket No. CB-7521-11-0024-T-1
Issuance Date: September 1, 2015
Removal of Administrative Law Judge
Statistical Evidence to Support Good Cause for Removal
The respondent filed a complaint with the MSPB seeking to remove the
petitioner from the position of administrative law judge (ALJ) based on charges
of unacceptable performance and neglect of duty. In support of its petition,
the respondent presented documentary evidence reflecting the statistics of the
number of case dispositions for all ALJs in the petitioner’s office and across the
region. This respondent also presented testimony of other ALJs who reviewed
the petitioner’s work and concluded that his assigned cases were no different
than the typical workload for an agency ALJ. In a recommended decision, the
presiding ALJ found that the respondent proved its charge of neglect of duty,
and that this charge constituted good cause for removal. The Board affirmed
the presiding ALJ’s finding of good cause for removal based on a comparison of
the number of cases the petitioner either scheduled for hearing or disposed of
with cases scheduled or disposed of by his peers.
Holding: The Court affirmed.
1. The Court clarified that a complaint seeking removal of an ALJ for “good
cause” pursuant to 5 U.S.C. § 7521 requires only that the agency describe
with particularity the facts that support the proposed agency action. It is
not bound by the “efficiency of the service” standard of requirement of 5
U.S.C. § 7512, which imposes the more stringent requirements that the
agency to issue a notice stating the specific reasons for the proposed action
and that the agency may only consider the reasons specified in the notice
of the proposed action.
2. The Court declined to follow the Board’s precedent in Social Security
Administration v. Goodman, 19 M.S.P.R. 321, 331 (1984) and Social
Security Administration v. Brennen, 19 M.S.P.R. 335 (1984) to the extent
that it requires some type of heightened evidentiary proof before an
agency can rely on comparative production statistics to prove good cause
for removal.
3. The court found that removal of an ALJ for deficiencies in productivity
can be based on comparative statistics as a threshold showing of good cause
for removal. To the extent that other factors may undermine the reliability
of the comparative statistics, the Board can weigh those factors in making
its ultimate determination of whether the charge of poor case production is
supported by preponderant evidence that an ALJ’s production is
substantially below the norm.
Petitioner: Beth Cobert, Acting Director, Office of Personnel
Management
Respondents: Mary A. Miller and Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3101
MSPB Docket No. SF-0752-11-0766-R-2
Issuance Date: September 2, 2015
Removal Based on Refusal to Accept Directed Reassignment
The respondent, Mary Miller, served as a GS-13 Park Superintendent for the
National Park Service (“agency”), in Sitka, Alaska. In 2010, the agency created
a GS-13 Alaska Native Affairs Liaison position in Anchorage, Alaska. The
agency issued Ms. Miller a directed reassignment to the position, stating that
she had ten calendar days to consider the reassignment. The agency further
stated that if Ms. Miller did not accept the reassignment, she would be
removed. After considering the offer, Ms. Miller ultimately rejected the
reassignment, citing the geographic hardship that would be caused by the
reassignment. The agency removed Ms. Miller, and in doing so stated that Ms.
Miller was uniquely qualified to fill the newly created position, and that her
refusal to accept the reassignment undermined the agency’s ability to manage
its workforce.
Ms. Miller appealed her removal to the Board, alleging that she was not
qualified for the position, and that the agency’s decision to reassign her was
not bona fide because the new position was created for the sole purpose of
reassigning her from her old position without issuing an adverse action. At the
hearing, the agency’s witnesses testified that Ms. Miller’s performance in her
superintendent position showed that she was the only person who could fill the
new position. Ms. Miller testified that she was not qualified for the position,
and also produced a personnel management consultant who provided similar
testimony. After the hearing, the administrative judge (“AJ”) upheld the
removal. In the initial decision, the AJ applied the Board’s test from Ketterer
v. Department of Agriculture, 2 M.S.P.R. 294 (1980), which used a two-step
burden shifting analysis to determine the validity of a removal due to a refusal
to accept a management-directed reassignment. The initial decision stated
that the AJ found credible the agency witnesses’ testimony regarding the need
for the position and Ms. Miller’s qualifications for the position, and found not
credible Ms. Miller’s testimony rebutting the agency’s claims.
Ms. Miller petitioned for review of the initial decision to the Board, and the
Board vacated and reversed the initial decision. In rendering its decision, the
Board issued three opinions. In the first opinion, the Board stated that it was
abandoning its prior two-step test from Ketterer in favor of a single efficiency
of the service standard that would analyze together both the reason for the
reassignment and the adverse action. Under this new test, the Board held that
the reassignment and removal did not promote the efficiency of the service,
and therefore reversed the removal. Shortly thereafter, the Board vacated
this decision on its own motion and issued a second opinion. In the second
opinion, the Board reaffirmed its decision to abandon the Ketterer test, and
stated that the evidence did not support a finding that Ms. Miller’s
reassignment was due to bona fide management considerations or that her
removal promoted the efficiency of the service. The Office of Personnel
Management then petitioned the Board to reconsider that decision, after which
the Board issued a third opinion affirming its prior decision.
In the third
decision, the Board, citing to Tunik v. Merit Systems Protection Board, 407
F.3d 1326 (Fed. Cir. 2005), stated that it was not required to follow Ketterer,
even though it had been adopted by the Federal Circuit in Frey v. Department
of Labor, 359 F.3d 1355 (Fed. Cir. 2004), because in the Board’s view, the
Federal Circuit had only endorsed Ketterer based on deference to the Board.
The Board further modified its prior holding to state that the overall emphasis
of its new test was on the agency’s failure to show a bona fide reason for the
reassignment, and that the agency was not required to show that a geographic
reassignment was necessary. The Board also modified its prior holding by
stating that the agency had failed to show any rational basis for requiring Ms.
Miller to accept the reassignment.
Holding: The Court reversed the Board’s decision, remanded the
case to the Board, and instructed the Board to instate the Initial
Decision as the final decision of the Board.
1. The Court held that the Board’s two-step test from Ketterer became the
“law of the circuit” when it was adopted by the Court in Frey. As a result,
the Board was bound to follow this approach until or unless it was reversed
by the Court en banc or by the Supreme Court.
2. Under the Ketterer test, the agency bears the initial burden of proving
that the agency’s decision to reassign the employee was a bona fide
decision based on legitimate management considerations. If the agency
meets this burden, the burden of producing rebuttal evidence shifts to the
employee, but the burden of persuasion remains with the agency.
3. Applying the Ketterer test, the Court stated that, based on the AJ’s
unchallenged findings of fact and credibility determinations, substantial
evidence in the record supported the AJ’s holding that that the agency
established that it had legitimate management reasons for the
reassignment, and that Ms. Miller failed to rebut the agency’s case. The
Court further stated that the Board’s conclusion that credible evidence cast
doubt on the agency’s motivation was unsupported by the record.
4. The Court held that Ms. Miller’s refusal to accept the directed
reassignment bore directly on the efficiency of the service, and thus
removal was an appropriate penalty.
5. In a concurring opinion, Judge Wallach stated that he concurred in the
result, but believed that the record showed that the agency’s actions were
entirely pretextual and in bad faith, and that its conduct was
reprehensible.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decision this
week:
Petitioner: Melvin Eugene Gibbs
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3122
MSPB Docket No. DC-1221-14-0841-I-1
Issuance Date: August 31, 2015
Holding: The court affirmed the Board’s final order dismissing the appellant’s IRA
appeal pursuant to the doctrine of laches because the appellant’s 27-year delay in
bringing the action was unreasonable and unexcused and the delay materially
prejudiced the agency to defend against the allegations.
The MSPB did not issue any precedential
decisions this week
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BOARD DECISIONS
Appellant: Douglas A. Alarid
Agency: Department of the Army
Decision Number: 2015 MSPB 50
MSPB Docket No.: SF-0752-14-0256-I-1
Issuance Date: August 21, 2015
Appeal Type: Adverse Action
Action Type: Removal
AJ Requirement to Acknowledge Affirmative Defenses
AJ Requirement to Inform Parties of Burdens of Proof
Prehearing Conference Summary
Applicable Standard for Union Activity Reprisal Claims
Waiver of Affirmative Defenses
The appellant was removed from the position of Police Officer for
misconduct. In his appeal, the appellant alleged that his removal was based
on reprisal for his participation in union activity. In a prehearing submission,
the appellant alleged affirmative defenses of reprisal for whistleblowing and a
due process violation. In the first prehearing conference summary, the
administrative judge (AJ) noted that the appellant was raising affirmative
defenses of reprisal for protected whistleblowing and union activity, but the AJ
did not provide the applicable burdens of proof. The AJ further did not
mention the appellant’s affirmative defense of a due process violation.
The AJ
later issued a second order suspending case processing, and in this order stated
that the appellant had raised affirmative defenses of protected EEO activity
and whistleblowing activity, and cited to Warren v. Department of the Army,
804 F.2d 654 (Fed. Cir. 1986) for the applicable burden of proof for retaliation
claims. In the AJ’s third preconference summary and order, the AJ stated that
he determined that the appellant’s originally asserted whistleblowing reprisal
claim was actually a claim of reprisal for protected EEO activity, but did not
provide any explanation for this determination. He also again cited to Warren
for the standard for the appellant’s affirmative defense, and failed to mention
the appellant’s other affirmative defenses of reprisal for participation in union
activity or a due process violation. Finally, he did not provide an explanation
of the effects of withdrawing or abandoning an affirmative defense. Neither
party objected to any of the AJ’s prehearing orders. The AJ then conducted a
hearing, and in an initial decision, sustained the charged misconduct, found
that removal was an appropriate penalty, and concluded that the appellant
failed to prove that his removal was based on reprisal for EEO activity. The AJ
alluded to the appellant’s other affirmative defenses presented in closing
briefs, but declined to address those issues because neither party objected to
his prehearing conference summary within the requisite timeframe, and
because the appellant only presented evidence of his claim of reprisal for EEO
activity. The appellant asserted in his petition for review (PFR) to the Board
that the AJ erred in denying his affirmative defense of reprisal for union
activity.
Holding: The Board granted the appellant’s PFR, vacated the initial
decision, and remanded the case to the AJ for further adjudication.
1. The Board found that the AJ erred by failing to fully identify the
appellant’s affirmative defenses, failing to apprise the appellant of his
burdens of proof on these affirmative defenses, and failing to properly
document whether the appellant had abandoned these affirmative
defenses. As a result, the Board remanded the case for adjudication of the
appellant’s affirmative defenses of reprisal for whistleblowing and union
activity, and a due process violation.
2. The Board found the AJ should have construed the appellant’s claim of
reprisal based on union activity as a claim of reprisal under 5 U.S.C. §
2302(b)(9)(B), rather than a claim of reprisal for EEO activity, because
reprisal for union activity and reprisal for EEO activity are two separate
types of claims.
3. The Board found that under the Whistleblower Protection Enhancement
Act, claims of reprisal based on union activity should be analyzed under the
burden shifting standard set forth in 5 U.S.C. § 1221(e), and not the Warren
standard.
4. The Board found that the appellant’s failure to file an exception to a
prehearing conference summary was not fatal to establishing his affirmative
defenses inasmuch as the record did not reflect any intent by the appellant
to abandon any of those affirmative defenses.
The U.S. Court of Appeals for the Fifth Circuit
issued the following precedential decision this
week:
Petitioner: Jorge A. Aviles
Respondent: Merit Systems Protection Board
Intervenor: Department of the Treasury
Tribunal: U.S. Court of Appeals for the Fifth Circuit
Case Number: 2014-60645
MSPB Docket No. DA-1221-13-0518-W1
Issuance Date: August 24, 2015
Protected Whistleblower Disclosures
Nonfrivolous Allegations
Evidentiary Standard for IRA Jurisdiction
Applicable Standard for Nonfrivolous Allegation
Federal Circuit Review of MSPB Jurisdictional Determinations
In September 2010, the petitioner was removed from his position as an
International Examiner for the Internal Revenue Service (“IRS”) for
misconduct. In 2013, the petitioner filed a complaint with the Office of
Special Counsel, alleging that he was removed because on February 2, 2010, he
disclosed to his supervisor income tax fraud committed by ExxonMobil and “the
involvement by [the] IRS management team in helping to cover it up[,]” and
because on February 16, 2010, he disclosed income tax fraud by ExxonMobil in
excess of 500 million dollars to IRS Management. Following this complaint, the
petitioner filed an Individual Right of Action (“IRA”) appeal with MSPB,
asserting that he was removed as reprisal for protected whistleblowing
activity. The administrative judge (AJ) dismissed the petitioner’s appeal for
lack of jurisdiction, holding that 5 U.S.C. § 2302(b)(8) protects whistleblowers
against retaliation for disclosure of government wrongdoing, and that the
petitioner’s complaint only alleged tax fraud by a private entity. The AJ
further found that the petitioner’s allegations of government involvement
were too vague and speculative to constitute a nonfrivolous allegation of
whistleblowing activity. Upon review, in a 2-1 decision, the Board affirmed
the AJ’s initial decision, with a dissent issued by the Vice Chairman.
Holding: The Court affirmed.
1. Disclosures of purely private misconduct are not protected disclosures
covered by 5 U.S.C. § 2302(b)(8). The Whistleblower Protection Act, and
Whistleblower Protection Enhancement Act, protects only disclosures of
government wrongdoing.
2. The petitioner’s allegation of a “government cover up” was too vague
and speculative to constitute a nonfrivolous allegation of government
wrongdoing.
3. The Fifth Circuit held that the preponderance of the evidence standard
for jurisdictional determinations contained in 5 C.F.R. § 1201.56 applies
only to the merits of constructive adverse action appeals, and does not
apply to jurisdictional determinations for Whistleblower Protection Act
appeals.
4. The Fifth Circuit declined to follow the Federal Circuit’s approach to
determinations of nonfrivolous allegations, which applies a summary
judgment standard that allows the Board to consider the government’s
evidence in deciding jurisdiction. The Court instead applied a motion-to
dismiss standard, in which all well-pleaded facts are accepted as true and
viewed in the light most favorable to the petitioner.
5. The Fifth Circuit noted, without deciding the issue, that the Supreme
Court’s decision in City of Arlington, Texas v. FCC, 133 S.Ct. 1863 (2013)
may call into question whether the Federal Circuit should review MSPB
jurisdictional determinations de novo.
The U.S. Court of Appeals for the Federal
Circuit did not issue any MSPB decisions this
week.
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The U.S. Court of Appeals for the Federal Circuit
issued the following precedential decision this
week:
Petitioner: Ross Vassallo
Respondent: Department of Defense
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3101
MSPB Docket No. PH-3330-13-0049-R-1
Issuance Date: August 14, 2015
Chevron Deference
VEOA Coverage
The petitioner was a veteran employed as a computer engineer by the Defense
Contract Management Agency (“DCMA”), a sub-agency within the Department
of Defense (“DOD”). DCMA posted a vacancy for the position of Lead
Interdisciplinary Engineer, and stated that applications for the position would
be limited to current DCMA employees and current DOD employees with the
Acquisition, Technology, and Logistics workforce outside of DOD’s military
components. The petitioner applied for the position, but DCMA rejected it for
failure to submit the correct forms. The petitioner appealed the rejection to
the Board, alleging that DCMA’s failure to consider his application was a
violation of the Veterans Employment Opportunities Act (“VEOA”), which
states that veterans “may not be denied the opportunity to compete for vacant
positions for which the agency making the announcement will accept
applications from individuals outside its own workforce under merit promotion
procedures.” The word “agency” was not defined in VEOA, but the Office of
Personnel Management (“OPM”) had previously issued a regulation stating that
“agency” meant an “executive agency as defined in 5 U.S.C. 105.” At the
Board, the administrative judge (“AJ”), relying on OPM’s “VetGuide,” held
that VEOA did not apply to DCMA’s posting, because “agency” meant DOD, not
DCMA, and the posting did not allow for applications from outside of DOD. The
Board initially reversed the AJ, but then reconsidered its decision and denied
the petitioner’s request for corrective action. In its decision, the Board held
that OPM permissibly defined “agency” as an “Executive Agency,” such as DOD,
in its regulation at 5 C.F.R. § 315.611(b).
Holding: The Court affirmed.
1. The use of the word “agency” in VEOA is ambiguous, and does not
necessarily mean “Executive Agency” as used by 5 U.S.C. § 105.
2. OPM’s decision to define via regulation the term “agency” to mean
“Executive Agency” was afforded deference under Chevron, U.S.A. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because the statute
was ambiguous and OPM’s construction of the statute was not arbitrary,
capricious, or manifestly contrary to the statute.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decision this
week:
Petitioner: McCarthy Barnes, Jr.
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3018
MSPB Docket No. DC-0752-13-0357-I-1
Issuance Date: August 19, 2015
Holding: The court reversed the Board’s final order dismissing the appellant’s
petition for review for untimeliness based on a finding that the petitioner’s 3-day
filing delay was excusable because: (1) the filing delay was caused by the
petitioner’s counsel’s attempt to bring the petition into compliance with the
Board’s rules on the day the petition was due; (2) the Board’s electronic appeal
system was malfunctioning when the petitioner’s counsel attempted to file the
petition on two separate days after the original petition due date; and (3) had
petitioner’s counsel filed a noncompliant petition on the original due date (which
he did not), Board regulations would have granted the petitioner additional time
to file his petition.
The MSPB did not issue any precedential
decisions this week
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BOARD DECISIONS
Appellant: Corey D. Stoglin
Agency: Department of the Air Force
Decision Number: 2015 MSPB 43
MSPB Docket No.: SF-3330-13-1464-B-1
Issuance Date: July 9, 2015
Appeal Type: USERRA
Action Type: Nonselection
USERRA jurisdiction – Air National Guard employees
The appellant appealed his nonselection for the position of Equal Employment
Manager with the Hawaii Air National Guard, alleging that his nonselection
violated the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”). The administrative judge (“AJ”) dismissed his appeal for lack of
jurisdiction based on a finding that the appellant failed to nonfrivolously allege
a violation of USERRA. The appellant filed a petition for review (“PFR”) and
the Board granted the PFR and remanded the matter for further consideration,
holding that the petitioner’s allegations were sufficient to establish Board
jurisdiction. On remand, the AJ again dismissed the appeal for lack of
jurisdiction, this time doing so because the Hawaii Air National Guard was a
state agency, and therefore the appellant was required to bring his USERRA
claim in state court. The AJ also found that, in the alternative, the appellant
failed to state a claim upon which relief could be granted because a Board
order against the Hawaii Air National Guard in the matter would be
unenforceable.
Holding: The Board vacated its previous holding that it had
jurisdiction over the appellant’s USERRA claim, vacated the
remand initial decision in part, and dismissed the appeal for lack of
jurisdiction.
1. For purposes of USERRA, National Guard civilian technicians are
considered state employees, and actions under USERRA by such employees
must be brought in state court.
2. The Board vacated the portion of the remand initial decision finding that
the appellant failed to state a claim upon which relief could be granted,
because dismissal on these grounds is improper if an appellant fails to
establish jurisdiction over the appeal.
Appellant: Carlton E. Hooker, Jr.
Agency: Department of Veterans Affairs
Decision Number: 2015 MSPB 44
MSPB Docket No.: AT-0752-10-0367-B-4
Issuance Date: July 15, 2015
Appeal Type: Furlough
Action Type: Separation Without Pay
Collateral Estoppel
Res Judicata
The Board remanded this removal appeal for the purpose of affording the
appellant an opportunity to present evidence regarding his affirmative defense
of discrimination, and to clarify whether his whistleblowing claim remained an
issue in the case. The AJ dismissed the appeal based on the application of
collateral estoppel because: (1) the appellant’s allegation of retaliation was
identical to a prior action he brought in U.S. district court; (2) the decision in
the prior action in U.S. district court was based upon the same issues that the
appellant raised in his Board appeal; (3) the U.S. district court ruling to dismiss
the action based on the appellant’s failure to respond to a discovery order was
necessary to the court’s final judgment; and (4) the appellant had a full and
fair opportunity to litigate those issues in U.S. district court.
Holding: The Board affirmed the initial decision as modified by
the Opinion and Order.
1. The Board found that the AJ misapplied the doctrine of collateral
estoppel because the Board permits simultaneous adjudication of a mixed
case appeal before the Board and a U.S. district court.
2. The Board dismissed the appeal based on res judicata because: (1) a
prior civil action was rendered by a forum with competent jurisdiction; (2)
the prior judgment was a final judgment on the merits of the appellant’s
removal action; (3) the same cause of action and the same parties were
involved in both cases.
The U.S. Court of Appeals for the Federal Circuit
issued the following precedential decision this
week:
Petitioner: Joan Ryan
Respondents: Department of Homeland Security, Merit Systems
Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3181, 2014-3182, 2014-3183
MSPB Docket Nos. PH-0752-13-0127-I-1, PH-0752-13-5283-I-1, PH-0752
13-0343-I-1
Issuance Date: July 13, 2015
Indefinite Suspension – Security Clearance
Employee’s Right to Transfer After Loss of Security Clearance
The petitioner’s access to classified information was suspended after she was
indicted on federal criminal charges. Because her position required her to
maintain a top secret security clearance, the agency indefinitely suspended
her until the agency made a final determination on her future eligibility for
access to classified information. After the petitioner was acquitted of all
criminal charges, she filed an appeal of her indefinite suspension with the
Board. The administrative judge (“AJ”) found that she was not entitled to a
termination of the indefinite suspension because the indefinite suspension was
based on the suspension of her security clearance, and not the underlying
reason for the suspension of the clearance, which was the indictment. The
petitioner appealed the decision to the Board, and the Board affirmed. While
the petitioner’s first appeal was pending, she filed a second appeal, claiming
that the agency was unreasonably delaying the adjudication of her clearance.
The administrative judge dismissed the claim for lack of jurisdiction, and the
Board affirmed again. In the second decision, the Board noted there was no
support for the proposition that the Board could end her suspension based
solely on the amount of time that has elapsed since her acquittal. The agency
eventually revoked the petitioner’s security clearance, and afterward the
petitioner filed a third MSPB appeal. In the third appeal, the petitioner
claimed that the basis for her indefinite suspension was amended when her
security clearance was revoked, because the revocation was based on reasons
not specified in the notice of proposed suspension. The AJ dismissed the
appeal, because the new details in the clearance revocation did not change
the basis of her indefinite suspension. The Board affirmed, holding that the
revocation of her clearance did not change the basis for her indefinite
suspension.
Holding: The Court affirmed.
1. An indefinite suspension based on a loss of security clearance is not
subject to a Douglas mitigation analysis.
2. When a security clearance is required for a position and the employee
does not have one, the Board does not have the authority to inquire into
the feasibility of transfer to an alternative position not requiring a security
clearance unless a substantive right to such a transfer is available from
some other source.
3. An agency has broad discretion to determine the length of time needed
to evaluate whether the revocation of a suspended security clearance is
appropriate.
4. The new grounds for the revocation of the petitioner’s security
clearance did not change the basis of her indefinite suspension, which
remained the loss of the clearance itself, and not the reasons for the loss of
the clearance.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decisions
this week:
Petitioner: John Paul Jones III
Respondent: Department of Health and Human Services
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3038
MSPB Docket Nos. DE-3330-12-0137-I-2, DE-3330-12-0338-I-2
Issuance Date: July 10, 2015
Holding: The court affirmed the Board’s final order denying the petitioner’s
request for corrective action under the Veterans Employment Opportunities Act
because substantial evidence supports the Board’s finding that the petitioner’s
experience did not involve the requisite work for the position.
Petitioner: Michael R. Jones
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3043
MSPB Docket No. SF-3443-13-4830-I-1
Issuance Date: July 13, 2015
Holding: The court affirmed the Board’s final order dismissing the petitioner’s
appeal for lack of jurisdiction based on a finding that the Office of Personnel
Management (“OPM”) had not yet issued a final decision on his retirement
application.
Petitioner: Londer B. Davis
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3087
MSPB Docket No. DA-0752-10-0023-C-1
Issuance Date: July 13, 2015
Holding: The court affirmed the Board’s final order dismissing the petitioner’s
petition for enforcement as untimely because the petitioner failed to provide any
explanation for the untimely filing of his petition.
Petitioner: Michael A. Nichols
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3064
MSPB Docket No. AT-3443-14-0159-I-1
Issuance Date: July 13, 2015
Holding: The court affirmed the Board’s final order dismissing the petitioner’s
appeal for lack of jurisdiction because the petitioner failed to demonstrate that
OPM applied an illegal employment practice to him.
Petitioner: Michael B. Graves
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3159
MSPB Docket No. SF-3330-09-0570-X-1
Issuance Date: July 14, 2015
Holding: The court affirmed the Board’s final order that the agency complied
with its prior final order because substantial evidence supported the Board’s
finding that the agency provided the petitioner a proper reconstructed hiring
process.
Petitioner: Julia A. Holland
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3034
MSPB Docket No. DC-3443-14-0014-I-1
Issuance Date: July 14, 2015
Holding: The court affirmed the Board’s final order dismissing the appeal for lack
of jurisdiction based on its finding that the appellant did not suffer an adverse
action.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DECISION
Complainant v. Anthony Foxx, Secretary, Department of Transportation
(Federal Aviation Administration)
Appeal Number: 0120133080
Issuance Date: July 15, 2015
Discrimination – Sexual Orientation Discrimination in Federal Employment
Holding: The Equal Employment Opportunity Commission held that a
complaint of discrimination based on sexual orientation brought by a
Supervisory Air Traffic Control Specialist constitutes a complaint of sex-based
discrimination.
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The U.S. Court of Appeals for the Federal Circuit
issued the following precedential decision this
week:
Petitioner: Cathy Appleberry
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3123
Review of Arbitration Decision
Issuance Date: July 8, 2015
Waiver of Issue – Arbitration
The petitioner filed a grievance over her performance-based removal with an
arbitrator in accordance with procedures set forth in the collective
bargaining agreement. Prior to her removal, the petitioner filed three
grievances regarding her performance rating and placement on a
performance improvement plan, but did not complete the grievance process
and invoke arbitration within the requisite time period for any of the
grievances. The arbitrator ruled that the petitioner had abandoned the right
to challenge her performance rating and placement on a performance
improvement plan because she raised those issues in her prior grievances but
did not pursue those grievances to arbitration. The arbitrator then denied
her removal grievance.
Holding: The Court affirmed.
1. The petitioner waived her right to challenge the performance rating or
performance improvement plan underlying the removal during her
removal grievance because she did not previously complete the grievance
process over those issues.
2. The court noted that if the petitioner had opted to appeal her removal
to the Board instead of challenging the removal at arbitration, the Board
would not have been precluded from considering the performance issues
the appellant raised in her prior grievances.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decision
this week:
Petitioner: Edgardo G. Francisco
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3035
MSPB Docket No. SF-0831-14-0436-I-1
Issuance Date: July 8, 2015
Holding: The court affirmed the Board’s final order that the appellant was not
entitled to a civil service annuity because the appellant’s service was
specifically excluded from Civil Service Retirement System coverage.
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BOARD DECISIONS
Appellant: Lorena Mathis
Agency: Department of State
Decision Number: 2015 MSPB 39
MSPB Docket No.: AT-0432-14-0867-I-1
Issuance Date: June 4, 2015
Appeal Type: Adverse Action
Action Type: Removal
Ward/Stone Ex Parte Communication
The appellant was removed from the position of GS-11 Passport Specialist
based on unacceptable performance. The appellant asserted that the agency
did not consider certain mitigating circumstances and alleged affirmative
defenses of harmful procedural error, disability discrimination, and due
process violations based on alleged ex parte communication that took place
between the deciding official and a human resources (HR) employee. The
administrative judge (AJ) affirmed the removal, concluding that the appellant
failed to prove a harmful procedural error or a due process violation.
Holding: The Board denied the petition for review, affirmed the
initial decision as modified, and sustained the removal action.
1. The deciding official’s ex parte communication with the HR
representative was not a violation of due process because it merely
clarified or confirmed whether the allegations raised in the appellant’s
response to the proposed removal were supported by the facts, and did not
introduce new information.
2. The Board held that the AJ erred by conducting a harmful error analysis
rather than a due process violation analysis when reviewing the ex parte
communication issue.
Appellant: Mike A. Saiz
Agency: Department of the Navy
Decision Number: 2015 MSPB 40
MSPB Docket No.: SF-0752-14-0054-I-1
Issuance Date: June 8, 2015
Appeal Type: Adverse Action
Action Type: Removal
Deference to Agency Penalty Determination
The appellant was removed from the position of Painting Worker based on a
charge of possessing and using a controlled substance aboard a military
installation. The AJ sustained the charged misconduct, but concluded that the
penalty was not entitled to deference because the deciding official incorrectly
assumed that the agency had a zero tolerance drug policy when it did not have
one, only considered removal, and gave a cursory evaluation of other relevant
Douglas factors. The AJ concluded that the maximum reasonable penalty
under the circumstances was a 60 day suspension.
Holding: The Board granted the agency’s petition for review,
reversed the initial decision, and sustained the appellant’s
removal.
1. The AJ erred in finding that the deciding official applied a zero
tolerance policy when deciding to remove the appellant. The record
showed that the deciding official weighed the Douglas factors in making his
decision, and therefore, his penalty determination was entitled to
deference.
2. The Board concluded under its own independent analysis that, even if
the agency’s penalty determination was not entitled to deference, removal
was still the appropriate penalty because the seriousness of the appellant’s
intentional drug-related misconduct outweighed the relevant mitigating
factors.
Appellant: Barbara R. King
Agency: Department of the Air Force
Decision Number: 2015 MSPB 41
MSPB Docket No.: DA-0752-09-0604-P-1
Issuance Date: June 10, 2015
Appeal Type: Adverse Action
Action Type: Reduction in Pay and Grade
Categories of Consequential Damage Awards Under WPEA
The appellant filed a motion seeking an award of compensatory damages and
consequential damages under the Whistleblower Protection Enhancement Act
(WPEA) after the administrative judge issued an initial decision reversing the
appellant’s reduction in grade and pay based on a finding that the appellant
proved her affirmative defense of whistleblower reprisal. The Board
subsequently held in an interlocutory appeal that the appellant was not
eligible for compensatory damages under the WPEA, and the appeal was
remanded to the administrative judge for further consideration of the
appellant’s request for consequential damages. At a damages hearing, the
appellant testified that because of the reduction in pay and grade, she was
unable to meet her financial obligations, and was thus forced to seek other
employment. The appellant was eventually selected for a position with the
agency in Los Angeles, California. As a result, she sold her house in Texas
through a short sale and entered into a compromise loan with the Department
of Veterans Affairs (VA) for the outstanding balance of $64,949.00 on her VA
mortgage. As part of her compromise loan, the VA absorbed the outstanding
balance. The appellant was not required to pay the balance of the
compromise loan back to the VA, but in the event that she ever sought another
loan from the VA, the appellant would be required to pay the balance of
original compromise loan back. In an addendum initial decision, the AJ
awarded the appellant consequential damages for her losses related to her
moving expenses and job search expenses. The AJ also awarded her
$64,949.00 for the amount of the compromise loan on her VA mortgage.
Holding: The Board granted the agency’s petition for review, and
affirmed in part and reversed in part the administrative judge’s
consequential damages award.
1. Consequential damage awards under the WPEA are limited to out of
pocket losses, and do not include nonpecuniary losses.
2. The types of consequential damage awards allowed under the WPEA are
limited to the specific items listed in the statute, i.e., back pay and related
benefits, medical costs incurred, and travel expenses.
3. The Board reversed the appellant’s award of $64,949.00 related to her
compromised loan, because the compromise loan amount from the short
sale of the appellant’s house was not a recoverable type of consequential
damage under the WPEA.
The U.S. Court of Appeals for the Federal Circuit
issued the following precedential decision this
week:
Petitioner: Andrew H. Bernard
Respondent: Department of Agriculture
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3083
MSPB Docket No. DE-0752-11-0222-C-1
Issuance Date: June 11, 2015
Right to Discovery in Compliance Proceedings
The petitioner entered into a settlement agreement following his removal from
the position of Supervisory Firefighter. The petitioner subsequently filed a
petition for enforcement with the Board alleging breach of the settlement
agreement, bad faith, and retaliation by the respondent. During the initial
proceedings, the petitioner made multiple requests to the AJ to engage in
discovery regarding the allegations of bad faith and retaliation, but the AJ
failed to ever specifically respond or rule on these requests, and eventually
denied the petition for enforcement. The petitioner petitioned for review of
the AJ’s decision to the Board, arguing that the AJ improperly denied his
requests to engage in discovery. The Board held that parties in enforcement
proceedings generally do not need to request permission for discovery and that
the Board only becomes involved in discovery matters if a party files a motion
to compel. Because the petitioner did not file a motion to compel, the Board
concluded that the AJ did not err in ignoring the petitioner’s requests.
Holding: The Court vacated the Board’s decision and remanded
the matter for further proceedings.
1. The Court held that neither the Board’s discovery regulations, nor its
precedent interpreting its discovery regulations, provided a clear guarantee
or guidance to the appellant that he had the right to proceed to discovery
in an enforcement proceeding. Further, earlier Board precedent suggested
that in an enforcement proceeding, an appellant may not be entitled to
discovery to establish his allegations, although the AJ has discretion to
grant discovery if it is necessary to resolve disputed facts.
2. The Court also found that the Board abused its discretion by holding that
the AJ was not obligated to respond to the petitioner’s requests to engage
in discovery. The Court stated that the Board’s pre-adjudication orders
failed to provide clear and meaningful notice of an appellant’s right to
discovery and the AJ otherwise had no basis for disregarding the requests.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decisions
this week:
Petitioner: Cambra L. Lucas
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3158
MSPB Docket No. SF-0845-13-0413-I-1
Issuance Date: June 5, 2015
Holding: The Court vacated and remanded the Board’s decision affirming that
she was not entitled to a waiver of her repayment obligation arising out of an
overpayment of benefits because the Board failed to consider new and material
evidence in denying the petitioner’s petition.
Petitioner: Milos Puaca
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3173
MSPB Docket No. CH-0432-12-0595-I-1
Issuance Date: June 8, 2015
Holding: The Court affirmed the Board’s decision sustaining the petitioner’s
removal because the petitioner failed to maintain a satisfactory performance
quality rating.
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Case Report - May 15, 2015 | 05-15-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_15_2015_1174335.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_15_2015_1174335.pdf | Case Report for May 15, 2015
The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decision this week:
Petitioner: Katherine Archuleta, Director, Office of Personnel
Management
Respondents: Tony D. Hopper & Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3177
MSPB Docket No. CH-0731-09-0798-I-3
Issuance Date: May 13, 2015
Jurisdiction Over Suitability-Based Removals
Unified Penalty Jurisdiction
Suitability Penalty Analysis
Respondent Hopper (Respondent) was appointed to a position with the Social
Security Administration (SSA) in April 2008, leading to OPM initiating a
background investigation. Approximately 15 months later, OPM informed the
Respondent that it had questions regarding his suitability for federal
employment, and therefore intended to instruct SSA to remove him, cancel his
eligibility for reinstatement, and debar him from federal employment for three
years. Pursuant to OPM’s directive, SSA removed the Respondent. The
Respondent appealed the removal to the Board, and after a procedural delay,
the Administrative Judge (“AJ”) reviewed the matter as an adverse action
appeal and conducted a hearing in October 2011. At the hearing, OPM gave an
opening statement criticizing the Board’s decision to assume jurisdiction over a
suitability-based removal, but otherwise refused to participate. In his
defense, the Respondent presented testimony from his second level supervisor
who stated that he would have issued a penalty less than removal for the
Respondent’s problems revealed in the background investigation. In the initial
decision, the AJ sustained the charge, and, pursuant to the Board’s holding in
Aguzie v. Office of Personnel Management, 112 M.S.P.R. 276 (2009),
conducted an independent Douglas factor analysis to determine the penalty.
Based on the Respondent’s supervisor’s unchallenged testimony, the AJ
mitigated the penalty to a letter of reprimand. OPM petitioned for review by
the full Board, arguing again that the Board did not have jurisdiction over the
removal because it was based on a suitability determination. The Board
disagreed and affirmed the administrative judge’s initial decision.
Holding: The Court withdrew its December 8, 2014, Opinion and
replaced it with the present Opinion to clarify its prior holding.
1. Suitability-based removals are included within the definition of
“removal” for purposes of Board jurisdiction. Accordingly, suitability-based
removals are appealable adverse actions under Chapter 75 for qualifying
employees.
2. In a suitability-based removal, OPM’s penalty determination does not
receive deference. It bears the burden of persuading the Board of the
appropriateness of the penalty imposed, and the Board must review the
penalty in light of the Douglas factors.
3. The Court clarified in this Opinion that, when reviewing a suitability
based removal, the Board also has jurisdiction to review debarments and
cancellations of eligibility as part of a unified penalty arising from the same
set of circumstances as the removal.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Johnnie Lewis
Respondent: Merit Systems Protection Board
Intervenor: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3108
MSPB Docket No. CH-0353-12-0349-I-1
Issuance Date: May 13, 2015
Holding: The Court affirmed the Board’s final decision dismissing the
petitioner’s partial restoration and constructive suspension appeal for lack of
jurisdiction because the petitioner failed to bid on any positions compatible with
his medical restrictions.
Petitioner: Tanya Pelcher-Herring
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3060
MSPB Docket No. DC-0752-13-0152-B-1
Issuance Date: May 14, 2015
Holding: The Court affirmed the Board’s final order dismissing the petitioner’s
petition for review as untimely because the petitioner failed to show that she
received the initial decision on the date she claimed.
Petitioner: Sidney Nelson, Jr.
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3191
MSPB Docket No. SF-0845-13-0347-I-1
Issuance Date: May 14, 2015
Holding: The Court affirmed the Board’s final order affirming the respondent’s
finding that the appellant was overpaid in disability annuity benefits because his
earnings income for certain years exceeded 80% of his base pay at retirement.
Petitioner: Sidney Nelson, Jr.
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3192
MSPB Docket No. SF-0752-13-0512-I-1
Issuance Date: May 14, 2015
Holding: The Court affirmed the Board’s final order dismissing the petitioner’s
involuntary retirement appeal for lack of jurisdiction because he failed to show
that there was an accommodation available for his disability that would have
allowed him to continue employment.
The MSPB did not issue any precedential
decisions this week
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Case Report - March 20, 2015 | 03-20-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_20_2015_1152167.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_20_2015_1152167.pdf | Case Report for March 20, 2015
The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decision this week:
Petitioner: Alberto Garcia
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3048
Arbitration Decision Number: 13-02607-3
Issuance Date: March 13, 2015
Timeliness – Arbitration
The petitioner requested arbitration of the agency’s decision to remove him
from his position with the U.S. Border Patrol. The petitioner mailed his letter
electing arbitration to the agency on the 28th day after the effective date of
his removal, but the agency did not receive the letter until 7 days later. After
an arbitrator was appointed, the agency moved to dismiss the arbitration for
failure to request arbitration within 30 days of the effective date of the
removal, and the arbitrator granted the request. The arbitrator held that the
meaning of “filed” as construed by the governing collective bargaining
agreement meant that an arbitration request was “filed” on the date it was
received by the agency.
Holding: The Court reversed and remanded the arbitrator’s decision.
1. For purposes of an arbitration in the federal employment context, the
filing date of an arbitration request is considered to be the date it is mailed
to the agency, not the date it is received by the agency.
The MSPB did not issue any precedential
decisions this week
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Case Report - February 27, 2015 | 02-27-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_27_2015_1144048.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_27_2015_1144048.pdf | Case Report for February 27, 2015
BOARD DECISIONS
Appellant: John W. Morrison
Agency: Department of the Navy
Decision Number: 2015 MSPB 15
MSPB Docket No.: PH-0752-14-0669-I-1
Issuance Date: February 23, 2015
Appeal Type: Adverse Action
Action Type: Involuntary Retirement/Removal
Involuntary Retirement Based on Misleading Information
Before issuance of a decision letter effectuating the appellant’s removal from
his position as a Firefighter based on a charge of denial of eligibility to access
noncritical sensitive areas, the agency called the appellant into a meeting for
the purpose of delivering the decision letter. During that meeting, agency
officials advised the appellant that the decision to remove him had been made
and that he would lose “all [his] benefits and…retirement” if he did not resign
or retire. The appellant opted to retire rather than having the agency
effectuate the removal. In an initial decision, the administrative judge
dismissed the appeal for lack of jurisdiction based on a finding that the
appellant failed to make a nonfrivolous allegation that his retirement was
involuntary, or that the action otherwise amounted to a constructive removal.
The appellant filed a petition for review alleging, inter alia, that his
retirement was involuntary because it was based on agency misinformation.
Holding: The Board granted the appellant’s petition for review,
vacated the initial decision, and remanded the appeal for further
adjudication.
1. The AJ erred by not addressing whether the appellant made a
nonfrivolous allegation that his retirement was involuntary because he
materially relied on misleading information provided by the agency, or
whether the agency had reason to know the appellant was relying on
misleading information, but failed to correct it. The Board remanded the
appeal for further adjudication of the appellant’s allegation that an agency
manager told him that he would lose his retirement benefits if he were
removed.
Appellant: Anthony Caros
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 16
MSPB Docket No.: PH-0752-12-0402-A-2
Issuance Date: February 23, 2015
Appeal Type: Adverse Action
Action Type: Motion for Attorney Fees
Mixed Case Appeal Rights in Addendum Decision
Following the reversal of the appellant’s removal, the appellant filed a motion
for attorney fees for 268 hours of legal services at a rate of $510.00 per hour.
The AJ granted the motion after finding that $250.00, rather than $510.00,
was the reasonable billing rate.
Holding: The Board denied the petition for review and cross
petition for review and affirmed the addendum initial decision.
1. Addendum proceedings for attorney fees stemming from a mixed case
will receive notice of mixed-case appeal rights.
Appellant: Clyde W. Beal
Agency: Office of Personnel Management
Decision Number: 2015 MSPB 17
MSPB Docket No.: SF-0831-14-0582-I-1
Issuance Date: February 23, 2015
Appeal Type: Retirement
Action Type: Post 1956 Military Service Credit
Retirement Credit Post 1956 Military Credit
Authority of Board to Review Accuracy of IRR
The appellant accrued a combination of civil service and post-1956 military
service when he retired in in 2003 under the Civil Service Retirement System
(CSRS). OPM initially found that the appellant was required to make a post
1956 military service deposit before separating from federal service, and that
because he had failed to do so, his military service could not be included in the
computation of his annuity. OPM later rescinded that decision and offered the
appellant an opportunity to make the deposit. The appellant asserted that he
should not only be credited with his post 1956 military service, but that he
should not have had to pay a deposit at all because his effective date of
commencing his civil service position was before October 1, 1982. The
appellant offered evidence showing that he commenced his employment on
September 30, 1982, and was therefore not required to make a deposit in
order to have his military service included in the computation of his annuity.
The AJ reversed the OPM decision, based on documentary evidence in the
appellant’s Individual Retirement Record (IRR) certified by the agency to OPM,
and a credibility finding supporting the appellant’s position that he
commenced his employment on September 30, 1982. OPM filed a petition for
review contending that the AJ exceeded her authority in reviewing the
appellant’s certified IRR and supplemental records and erred in relying on the
appellant’s testimony.
Holding: The Board denied OPM’s petition for review and
affirmed the initial decision.
1. If an employee challenges a determination of the employing agency as
reflected in his IRR, OPM and the Board have authority to entertain
challenges to the accuracy and completeness of the IRR. Here, the
documentary evidence contained in the IRR, along with the AJ’s affirmative
credibility determination, was of sufficient weight to support the
appellant’s claim that he started work prior to October 1, 1982.
Appellant: Ronald G. Bowman
Agency: Small Business Administration
Decision Number: 2015 MSPB 18
MSPB Docket No.: AT-0752-13-0538-I-1
Issuance Date: February 23, 2015
Appeal Type: Adverse Action
Action Type: Removal
Mitigation of Penalty
Consideration of Subsequent Medical Documentation Relevant to
Prior Condition as Mitigating Factor
The appellant was removed from his Supervisory Construction Analyst position
based on charges of excessive unauthorized leave and failure to follow proper
leave request procedures. Following numerous requests for documentation to
support his absences, the appellant submitted FMLA paperwork documenting
that he had been diagnosed with Major Depressive Disorder and that he was
hospitalized and otherwise incapacitated by this condition for certain dates,
but not earlier dates identified as a basis for the agency’s removal action. The
AJ sustained the charged misconduct but mitigated the penalty to a 30 day
suspension based, in part, on evidence of the appellant’s mental impairment.
Holding: The Board denied the agency’s petition for review and
affirmed the initial decision.
1. While a mitigating factor based on an appellant’s medical condition will
be considered only if the evidence is made known to the agency before the
adverse action was effected, evidence that an employee’s medical
condition or mental impairment played a part in the charged conduct is
ordinarily entitled to considerable weight as a mitigating factor, if the
agency knows about it before taking the action at issue. Here, evidence
that the appellant’s mental impairment played a part in the charged
conduct was entitled to considerable weight along with the appellant’s
more than 20 years of successful service.
2. In a dissenting opinion, Member Robbins would have sustained the
penalty of removal because the appellant did not provide any explanation
or medical evidence to support any of his absences at issue in his removal,
the appellant expressed no remorse for his actions, the appellant’s work
and disciplinary record reflected that he had a demonstrated problem in
complying with the agency’s leave and attendance policies, and the
appellant’s status as a supervisor required that he be held to a higher
standard.
Appellant: Stephen Edward Moss
Agency: Office of Personnel Management
Decision Number: 2015 MSPB 19
MSPB Docket No.: DC-0843-14-0621-I-1
Issuance Date: February 24, 2015
Appeal Type: Retirement
Action Type: Spousal Survivor Annuity
Waiver of Survivor Annuity
The appellant and his former spouse divorced in 1997, and the divorce decree
awarded the appellant an apportionment of the retirement annuity and a
former spouse survivor annuity, with the cost of the survivor annuity to be
deducted from his share of the retirement annuity. After the appellant’s
former spouse retired in 2013, the appellant contacted OPM to implement the
court order, at which point OPM notified the appellant of the cost of his
survivor annuity. The appellant requested that OPM waive his future
entitlement to his former spouse survivor annuity so that he could receive an
unreduced share of the retirement annuity. OPM denied the request, and then
denied it again after the appellant requested reconsideration. The appellant
appealed the decision to the Board, arguing that he had a statutory right to
waive his survivor annuity, and the administrative judge affirmed OPM’s
denial.
Holding: The Board denied the petition for review.
1. The appellant was not entitled to waive his survivor annuity because he
was awarded the annuity in the divorce decree without an election right.
2. 5 U.S.C. § 8345(d) does not permit a waiver of entitlement to former
spousal survivor annuity to increase the current share of a retirement
benefit. The statute only allows an individual entitled to an annuity to
decline to accept payment of the annuity.
Appellant: Nicole D. Wilson
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 20
MSPB Docket No.: SF-0752-14-0314-I-1
Issuance Date: February 24, 2015
Appeal Type: Interlocutory Appeal
Action Type: Demotion
TSA Position Classification
The appellant was a Supervisory Coordination Center Officer (SCCO) for the
Transportation Security Administration (TSA). In February 2014, the agency
demoted her to the position of Transportation Security Officer (TSO). The
appellant appealed her demotion to the Board, and the agency moved to
dismiss the appeal for lack of jurisdiction. The agency argued that the SCCO
position was a “screener” position exempted from Board jurisdiction pursuant
to 49 U.S.C. § 44935. The administrative judge held that the appellant did not
occupy a “screener” position and could appeal the demotion to the Board, and
then certified her ruling for interlocutory review by the Board.
Holding: The Board affirmed the ruling as modified, vacated the
order staying further processing of the appeal, and returned the
case to the regional office for further adjudication.
1. Employees holding the SCCO position within TSA are not “screeners” for
purposes of 49 U.S.C. § 44935. Accordingly, qualified employees in the
SCCO position have Board appeal rights.
Appellant: Jeffrey L. Bostwick
Agency: Department of Agriculture
Decision Number: 2015 MSPB 21
MSPB Docket No.: SF-4324-11-0854-I-3
Issuance Date: February 25, 2015
Appeal Type: USERRA
Action Type: Reemployment Rights Following Military Service
USERRA Right to Reemployment
The appellant was in active duty with the U.S. Army Reserve during the time
he was employed as a Supervisory Forestry Technician. Shortly after returning
from active duty, the appellant requested and obtained a transfer to another
federal agency. After transferring to the new position at the other federal
agency, the appellant was advised that he did not qualify for special
retirement eligibility coverage that was available in his prior position. The
appellant then filed a USERRA employment restoration claim with the
objective of returning to his previous position so he could have the special
retirement eligibility coverage. In denying the request for corrective action,
the AJ found that the appellant failed to make a request for reemployment
with the agency. The AJ also found that the appellant was eligible to request
reemployment with the agency after it effected his transfer to his new position
because the USERRA regulations do not specifically address the issue of
whether an employee can be reemployed multiple times during the timeframe
for requesting, provided that the successive requests for reemployment are
made within the applicable timeframe.
Holding: The Board denied the petition for review and affirmed
the initial decision as modified by providing a different rationale
for the denial of corrective action.
1. Under the express language and purpose of USERRA’s reemployment
guarantee, it is clear that the absence from a position of employment must
be necessitated by reason of service in the uniformed service, not by
employment with another federal agency, and that a person’s notification
of intent to return must happen upon completion of a period of service in
the uniformed service, not upon completion of such service and additional
service with another federal agency. Here, the agency satisfied its
statutory obligation to reemploy the appellant following his military service
when it returned him to duty but before he was transferred to his new
position with another employer.
The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decision this week:
Petitioner: Edward P. Kerner
Respondent: Department of the Interior
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3012
MSPB Docket No. CH-3330-11-0394-I-1
Issuance Date: February 20, 2015
Merit Promotion Experience Under VEOA
The petitioner was a preference-eligible GS-5 Evidence Custodian with the
respondent’s Fish and Wildlife Service. He applied for GS-9/11 and GS-11/11
vacancies, which were both merit-promotion vacancies. Both vacancies
required federal employee applicants to meet a time-in-grade requirement and
have one year of specialized experience equivalent to the GS-7 and GS-9 level,
respectively. The petitioner did not have federal civil service at the GS-7 or
GS-9 levels, and therefore was determined to not be qualified for either
vacancy. The petitioner appealed his non-selection to the Board, alleging that
he was denied the opportunity to compete for the vacancies under the
Veterans Employment Opportunity Act (VEOA) because the respondent did not
consider his non-federal civil service experience, and the Board affirmed the
respondent’s decision.
Holding: The Court affirmed the Board’s decision.
1. Agencies are not required to consider non-federal civil service
experience when determining whether a veteran employed in the federal
civil service meets time-in-grade or specialized experience requirements
for purposes of merit promotions. The purpose of VEOA was to help
veterans gain access to federal employment, not provide preferential
treatment in promotion decisions.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week:
Petitioner: Clifford W. Jones, Sr.
Respondent: Department of Health and Human Services
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3205
MSPB Docket No. CH-1221-10-1030-C-1
Issuance Date: February 24, 2015
Holding: The Court affirmed the Board’s denial of the petitioner’s petition for
enforcement of a settlement agreement based on its findings that the respondent
complied with the terms of the settlement agreement and that the petitioner did
not show good cause for his untimely filing.
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BOARD DECISIONS
Appellant: Jose E. Rosario-Fabregas
Agency: Department of the Army
Decision Number: 2015 MSPB 13
MSPB Docket No.: NY-0752-13-0167-I-1
Issuance Date: February 13, 2015
Appeal Type: Adverse Action
Action Type: Constructive Suspension
Constructive Suspension
On December 2, 2011, the agency restored the appellant to its employment
rolls pursuant to the Board’s order in his prior removal appeal. However, the
appellant did not return to duty at that time. On December 19, 2011, the
appellant submitted a letter from his treating psychiatrist requesting that he
be excused from work until January 16, 2012, due to an emotional condition.
For the next several months, the appellant repeatedly delayed his return date
due to the same emotional condition. On June 11, 2012, the appellant
submitted a new letter from his psychiatrist recommending he work on a part
time schedule. The agency construed this letter as a request for
accommodation through a modified work schedule and requested further
information from the appellant regarding the details of his schedule, but the
appellant did not provide any responsive information at that time. On June
25, 2012, the appellant informed the agency that he wished to return to work
on a full-time basis on July 2, 2012. The agency responded by stating that the
appellant’s psychiatrist recommended he only work part-time, and therefore
requested additional health information before returning him to duty. The
appellant then did not return to work on July 2, instead claiming that the
agency prevented him from returning to duty. During the following weeks, the
appellant submitted additional medical documentation to the agency, but the
agency claimed the documentation was insufficient to restore him to duty. On
July 25, 2012, the appellant provided a report from his psychiatrist stating that
the agency’s requests for medical documentation had exacerbated his
condition and prevented the appellant from being able to work. The appellant
then requested further leave commencing July 25, 2012, and the agency
approved the request. On November 14, 2012, the appellant sent a new
psychiatrist report to the agency that recommended he be returned to work on
a part-time basis on November 19, 2012. On November 15, 2012, the agency
proposed his removal on other grounds, placed him on paid administrative
leave, and eventually removed him effective February 8, 2013. The appellant
appealed the agency’s failure to restore him to duty, and the administrative
judge (AJ) found that the agency’s refusal to allow him to return to work
constituted a constructive suspension without due process from July 2, 2012,
through November 17, 2012. The AJ further found that the agency failed to
reasonably accommodate him during the same time period. The appellant
filed a petition for review (PFR), arguing that his constructive suspension
started on December 19, 2011. The agency filed a cross-petition for review,
arguing that he was not constructively suspended at all.
Holding: The Board denied the appellant’s petition for review,
granted the agency’s cross-petition for review, vacated the initial
decision, and dismissed the appeal for lack of jurisdiction.
1. The appellant’s use of leave between December 19, 2011, and July 1,
2012, did not constitute a constructive suspension because his
psychological condition was not caused by any improper agency action. The
agency was entitled to require medical documentation to substantiate any
sick leave request in excess of 3 workdays.
2. The appellant’s use of leave between July 2, 2012, and November 17,
2012, did not constitute a constructive suspension because the appellant
did not provide medical documentation releasing him for full duty, and
because he did not provide any information in response to their inquiries
regarding the structure of a potential part-time schedule. The appellant’s
failure to engage in the interactive process after his request for
accommodation and his failure to provide documentation releasing him for
full-time work justified the agency’s decision to not place the appellant
back in duty status.
Appellant: John Lauri Salo
Agency: Department of Defense
Consolidation: In re DCMA Eastern Region Hearings v. Department
of Defense
Decision Number: 2015 MSPB 14
MSPB Docket No.: NY-0752-13-0302-I-1 and consolidation NY-0752
14-0063-I-1
Issuance Date: February 13, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Furlough Procedures
The appellant was furloughed for 6 discontinuous days from his industrial
engineer position due to sequestration. He appealed the action to the Board,
arguing, among other things, that the agency should have applied reduction in
force (RIF) procedures instead of adverse action procedures because the 6
furlough days occurred over a time period longer than 30 days. The
administrative judge affirmed the furlough and held that the 6-day furlough
constituted an adverse action, not a RIF.
Holding: The Board affirmed the Initial Decision as modified by
the Opinion and Order.
1. The furlough was correctly analyzed as an adverse action, as opposed to
a RIF. A discontinuous furlough of 22 workdays or less is covered by
adverse action procedures, while a discontinuous furlough of more than 22
days is covered by RIF procedures.
The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decision this week:
Petitioner: Ramona Gill Herring
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3170
MSPB Docket No. DC-844E-12-0778-I-1
Issuance Date: February 18, 2015
Timeliness – Designated Representative Negligence
In 2010, the petitioner was removed from her position with the Department of
Navy. After her removal, she filed an application for disability retirement
benefits with the Office of Personnel Management (OPM), which was denied.
The respondent received the denial letter on July 14, 2012, making the due
date for a Board appeal of the OPM denial August 13, 2012. The petitioner
retained a law firm to file her appeal by the deadline, and provided the law
firm with the necessary documents and payment to commence legal services.
However, the law firm negligently failed to transmit the necessary documents
to the petitioner’s specific attorney in a timely fashion, so the petitioner’s
Board appeal was not filed until August 23, 2012. At the Board, the AJ
dismissed the appeal as untimely filed, and the Board affirmed.
Holding: The Court reversed the Board’s decision.
1. The Court held that the specific facts of this case demonstrated that the
petitioner had done everything that could be reasonably expected of her,
and the failure to timely file was due to circumstances beyond her control.
Therefore, the Board’s decision to dismiss her appeal as untimely was an
abuse of its discretion.
2. The negligence of an appellant’s chosen representative can constitute
good cause for untimeliness if the petitioner has exercised ordinary
prudence under the circumstances and other mitigating factors are present.
3. The Court noted that the Board has previously held that it will apply a
more lenient timeliness standard in the context of retirement matters.
4. Judge Reyna dissented, stating that a “good cause” determination is left
to the Board’s discretion, and the facts of this case do not lead to the
conclusion that the Board abused its discretion.
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Case Report - January 23, 2015 | 01-23-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_23_2015_1130041.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_23_2015_1130041.pdf | Case Report for January 23, 2015
The U.S. Supreme Court Issued a Decision in the
Following Case:
Petitioner: Department of Homeland Security
Respondent: Robert J. MacLean
Tribunal: U.S. Supreme Court
Case Number: No. 13-894
Decision Below: 714 F. 3d 1301 (Fed. Cir. 2013)
MSPB Docket No. SF-0752-06-0611-I-2
Issuance Date: January 21, 2015
Appeal Type: Adverse Action
Action Type: Removal
Statutory Interpretation of Whistleblower Protection Act
Disclosure of Security Sensitive Information (SSI) Prohibited by
Regulation
The appellant was a Federal Air Marshall (FAM) assigned to the agency’s Las
Vegas, Nevada airport. In July 2003, the TSA briefed all federal air marshals
about a potential plot to hijack long-distance passenger flights. A few days
after the briefing, the agency canceled all overnight missions from Las Vegas
until early August. The appellant, who was stationed in Las Vegas, disclosed
the agency’s cancelation of the missions to an MSNBC reporter based on his
belief that cancelling those missions during a hijacking alert was dangerous and
illegal. MSNBC published a story based on this information. The appellant
later disclosed his disagreement with agency policy regarding clothing
requirements for FAMs to an NBC reporter. After discovering that the
appellant was the source of the disclosed information, the agency removed
him for disclosing sensitive security information without authorization.
The appellant appealed his removal to the Board, arguing that his disclosure
was whistleblowing activity because he disclosed information that revealed a
“violation of any law, rule, or regulation,” or “a substantial and specific
danger to public health or safety, if such disclosure is not specifically
prohibited by law.” The Board upheld the removal, holding that the appellant
did not qualify for protection as a whistleblower because his disclosure was
“specifically prohibited by law”—namely, by 49 U.S.C. § 114(r)(1). On appeal,
the Court of Appeals for the Federal Circuit vacated and remanded the Board’s
decision, holding that § 114(r)(1) did “not expressly prohibit employee
disclosures,” and even if it were a prohibition, it was not “sufficiently
specific,” because the statute provided only general criteria for withholding
information and gave discretion to the TSA to fashion regulations for
prohibiting security sensitive disclosures.
The Supreme Court granted certiorari to examine the scope of “specifically
prohibited by law” within § 2302(b)(8)(A).
Holding: The Court affirmed the Federal Circuit. Justices
Sotomayor and Kennedy joined in a dissent.
1. A disclosure that is specifically prohibited by regulation is not
“specifically prohibited by law” under § 2302(b)(8)(A) because the
statutory language refers only to a “law” and not a “rule or regulation,”
unlike other parts of the same statute.
2. The appellant’s disclosure regarding the canceled missions was not
“specifically prohibited” by 49 U.S.C. § 114(r)(1) because that statute
“does not prohibit anything.” Instead, according to the Supreme Court, the
statute authorizes something— the TSA Administrator to “prescribe
regulations.”
3. The dissent would have affirmed the appellant’s removal based on a
finding that the statutory provision at issue provides a legislative mandate
that assumes that the regulations would fall within the provision.
The MSPB did not issue any precedential
decisions this week
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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Case Report - December 12, 2014 | 12-12-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2014_1116812.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2014_1116812.pdf | Case Report for December 12, 2014
BOARD DECISIONS
Appellant: Tamarah T. Grimes
Agency: Department of Justice
Decision Number: 2014 MSPB 87
MSPB Docket Number: AT-0752-09-0698-I-5
Issuance Date: December 12, 2014
Appeal Type: Adverse Action
Action Type: Removal
Due Process in Security Clearance-Based Removals
Affirmative Defenses in Security Clearance-Based Removals
Consideration of Merits in Security Clearance-Based Removals
Following a security investigation that concluded that her continued
employment posed an unnecessary and unacceptable operational risk, the
appellant was removed from her critical-sensitive position of Paralegal
Specialist based on charges of failure to maintain a qualification of her position
and misrepresentation. The appellant disputed the charges in her appeal and
asserted that the action was defective on due process grounds and was
motivated by whistleblowing reprisal. The AJ sustained the charge and
concluded that removal was an appropriate penalty. Because the AJ sustained
the charge of failure to maintain a qualification of her position, he did not
adjudicate the agency’s second charge of misrepresentation. The AJ found
further that the appellant did not establish her allegation of a due process
violation based on the deciding official’s consideration of additional evidence
not contained in the proposal, because the information was cumulative of
information already shared with the appellant. Finally, the administrative
judge concluded that the appellant did not prove her allegation of
whistleblower retaliation and found that the agency did not deviate from
established internal adjudicative guidelines.
After the appellant filed a
petition for review, the Board issued an order inviting the parties to submit
additional argument as to the applicability of Gargiulo v. Department of
Homeland Security, 727 F.3d 1181 (Fed. Cir. 2013).
Holding: The Board denied the appellant’s petition for review,
affirmed the AJ’s initial in part, and vacated a portion of the decision.
1. It was not a due process violation for the deciding official to consider
the agency’s internal reconsideration decision without allowing the
appellant an opportunity to respond to that decision. There was no
violation because the disputed ex parte communications merely confirmed
or clarified information already in the record and available to the
appellant.
2. It was appropriate to not adjudicate the appellant’s affirmative defense
of whistleblower reprisal because such a claim would go to the merits of
the agency’s underlying basis for determining that the appellant is ineligible
to hold a critical-sensitive position and obtain access to classified
information.
3. To the extent that the AJ reviewed and adjudicated the grounds for the
agency’s decision to revoke the appellant’s eligibility to hold a critical
sensitive position and to obtain access to classified information, the Board
vacated those portions of the initial decision.
The U.S. Court of Appeals for the Federal
Circuit issued the following precedential
decision this week
Petitioner: Katherine Archuleta, Director, Office of Personnel
Management
Respondents: Tony D. Hopper & Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3177
MSPB Docket No. CH-0731-09-0798-I-3
Issuance Date: December 8, 2014
Jurisdiction Over Suitability-Based Removals
Suitability Penalty Analysis
Respondent Hopper (Respondent) was appointed to a position with the Social
Security Administration (SSA) in April 2008, leading to OPM initiating a
background investigation of him. Approximately 15 months later, OPM
informed the Respondent that it had questions regarding his suitability for
federal employment, and therefore intended to instruct SSA to remove him,
cancel his eligibility for reinstatement, and debar him from federal
employment for three years. Pursuant to OPM’s directive, SSA removed the
Respondent. The Respondent appealed the removal to the Board, and after a
procedural delay, the AJ reviewed the matter as an adverse action appeal and
conducted a hearing in October 2011. At the hearing, OPM gave an opening
statement criticizing the Board’s decision to assume jurisdiction over a
suitability-based removal, but otherwise refused to participate. In his
defense, the Respondent presented testimony from his second level supervisor
who stated that he would have issued a penalty less than removal for the
Respondent’s problems revealed in the background investigation. In the initial
decision, the AJ sustained the charge, and, pursuant to the Board’s holding in
Aguzie v. Office of Personnel Management, 112 M.S.P.R. 276 (2009),
conducted an independent Douglas factor analysis to determine the penalty.
Based on the Respondent’s supervisor’s unchallenged testimony, the AJ
mitigated the penalty to a letter of reprimand. OPM petitioned for review by
the full Board, and again argued only that the Board did not have jurisdiction
over the removal because it was based on a suitability determination. The
Board disagreed and affirmed the administrative judge’s initial decision.
Holding: The Court affirmed the Board’s decision to review the
Respondent’s removal as an adverse action appeal and further
affirmed the Board’s decision to mitigate the removal.
1. Suitability-based removals are included within the definition of
“removal” for purposes of Board jurisdiction. Accordingly, suitability-based
removals are appealable adverse actions under Chapter 75 for qualifying
employees.
2. In a suitability-based removal, OPM’s penalty determination does not
receive deference. It bears the burden of persuading the Board of the
appropriateness of the penalty imposed, and the Board must review the
penalty in light of the Douglas factors.
The U.S. Court of Appeals for the Federal
Circuit issued the following non-precedential
decisions this week
Petitioner: Dorothy Burks (Thomas)
Respondent: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3115
MSPB Docket No. AT-0752-12-0577-I-1
Issuance Date: December 8, 2014
Holding: The Court affirmed the Board’s decision to uphold the petitioner’s
removal based on a charge of failure to attend work for six weeks.
Petitioner: Kathryn Michelle Walker
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3155
MSPB Docket No. PH-315H-12-0281-B-1
Issuance Date: December 9, 2014
Holding: The Court affirmed the Board’s jurisdictional dismissal in a
probationary termination effected two weeks prior to the expiration of the one
year probationary period.
Petitioner: Sharon L. Blount
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3156
MSPB Docket No. DC-0752-13-0755-I-1
Issuance Date: December 9, 2014
Holding: The Court affirmed the Board’s jurisdictional dismissal because the
petitioner voluntarily resigned three days prior to the effective date of her
removal.
Petitioner: Darwin M. Nealy
Respondent: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3157
MSPB Docket No. DA-0353-12-0663-I-1
Issuance Date: December 9, 2014
Holding: The Court affirmed the Board’s denial of the petitioner’s request for
corrective action based on its finding that the appellant’s membership in the U.S.
Army Reserves was not a motivating factor in his suspension for misconduct.
Petitioner: Ezell Wyrick
Respondent: Department of Transportation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3162
MSPB Docket No. SF-0752-12-0524-I-3
Issuance Date: December 9, 2014
Holding: The Court affirmed the Board’s decision to uphold the petitioner’s
removal based on charges of lack of candor and operating a government vehicle
without a driver’s license.
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Case Report - November 28, 2014 | 12-01-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_28_2014_1112127.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_28_2014_1112127.pdf | Case Report for November 28, 2014
BOARD DECISIONS
Appellant: Margaret M. Reed
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 85
MSPB Docket No.: CH-1221-13-1557-W-1
Issuance Date: November 25, 2014
Appeal Type: Individual Right of Action
Action Type: Suspension
Protected Disclosures Under the WPEA
Personnel Actions Under the WPEA
Contributing Factors Under the WPEA
Perceived Whistleblower Claims Under the WPEA
After the appellant’s grievance of an official admonishment was denied, she
requested to meet with her facility Director because she believed the
grievance process was futile. The appellant’s supervisors threatened to
discipline her if she went through with the meeting. She subsequently met
with the Director to discuss the grievance process, and also alleged that her
supervisors retaliated against her by failing to follow grievance procedures.
After that meeting, the appellant’s supervisor proposed to suspend her for
three days based on complaints from various agency officials. The suspension
was effectuated, and the admonishment was considered in the decision to
suspend her. The admonishment was eligible to be removed from the
appellant’s personnel file three months prior to the suspension, but her
supervisor elected to not remove it. The appellant filed an IRA with the Board,
alleging that the suspension was issued as reprisal for her complaints about the
grievance. At the Board, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant failed to make a nonfrivolous
allegation that she made a protected disclosure, and that the appellant’s
grievance was not protected activity under the Whistleblower Protection
Enhancement Act (WPEA).
Holding: The Board remanded the case to the regional office for
additional proceedings.
1. The filing of a grievance that does not itself seek to remedy
whistleblower reprisal is not a protected disclosure under the WPEA.
2. The proposed three-day suspension, the decision effectuating the
suspension, the Assistant Chief’s alleged refusal to remove the
admonishment from the appellant’s personnel file, and the Chief and
Assistant Chief’s threats of discipline were all personnel actions under the
WPEA.
3. The Board did not have jurisdiction over the appellant’s allegations of
irregularities in the grievance process because she did not allege that these
irregularities occurred as reprisal for any disclosure.
4. The Board held that the appellant failed to nonfrivolously allege that
any of her claimed protected disclosures were a contributing factor to her
personnel actions.
5. The Board stated that nothing in the WPEA precludes the Board from
considering, at the jurisdictional stage, whether the appellant made a
nonfrivolous allegation that a disclosure was a contributing factor to an
agency decision.
6. The Board remanded the proceedings for further development of the
record because the appellant’s claims suggested that she may have been
attempting to argue that the agency perceived her to be a whistleblower,
but she was not given instructions regarding how to establish Board
jurisdiction over her appeal as a perceived whistleblower.
The U.S. Court of Appeals for the Federal
Circuit did not issue any precedential or
nonprecedential decisions this week
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Case Report - October 24, 2014 | 10-24-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_24_2014_1098880.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_24_2014_1098880.pdf | Case Report for October 24, 2014
The U.S. Court of Appeals for the Federal Circuit
issued a precedential decision in the following
case:
Petitioner: Thomas G. Wrocklage
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3159
MSPB Docket No.: CH-0752-11-0752-I-1
Issuance Date: October 21, 2014
Stipulation Procedure
Disclosures Under the Privacy Act
Penalty Analysis
The appellant, a Customs and Border Protection Officer, believed that two
travelers were wrongfully charged with failing to declare certain food items.
He took home a copy of the Treasury Enforcement Communication System
(TECS) report that reflected the fine issued to the travelers, which had details
about the travelers, including one of the traveler’s social security number,
date of birth, address, and license plate number. He then sent an e-mail to
the agency’s Joint Intake Center stating that he believed that the two
travelers should not have been charged. He also copied a congressional staffer
on the e-mail, and attached a copy of the TECS report. Hours after sending
the e-mail, he realized that he sent the TECS report to the congressional
staffer, and immediately contacted her. He asked her to delete the e-mail
prior to reading it, and she did so. He then self-reported his error to the Joint
Intake Center. Based on his report, the agency initiated an investigation into
his transmission of the report to the staffer, and in the investigation it was
discovered that he sent a copy of the report printed by one of his co-workers.
The agency asked him how he got a copy of that specific copy of that report,
and stated that he did not recall, but he surmised that he must have mixed up
his copy of the report with his co-worker’s copy. As a result of his actions, the
agency removed him, stating that he improperly possessed TECS information,
made an unauthorized disclosure of TECS information, and demonstrated a lack
of candor during the investigation. The appellant appealed his removal to the
Board, but the administrative judge upheld the charges, and the Board
affirmed.
Holding: The Court vacated the Board’s decision for two of the
charges and remanded the appeal for a new penalty determination.
1. The Court held that the appellant’s stipulations to underlying facts
regarding a charge do not equate to stipulating to legal conclusions to be
drawn from those facts. The appellant’s stipulation to the underlying facts
did not mean that he waived the right to argue a separate legal conclusion.
2. The appellant’s transmission of the TECS report did not constitute an
unauthorized disclosure in violation of the privacy act because the
congressional staffer deleted the e-mail before ever reading it. The Court
declined to make a determination as to whether his transmission
constituted a protected disclosure under the Whistleblower Protection Act.
3. The Court reversed the Board’s decision sustaining the charge of lack of
candor. Based on the facts of the case, the Court found that substantial
evidence did not support the charge.
4. The Court vacated the penalty of removal and remanded the matter for
reconsideration of the penalty. The Court stated that the penalty of
removal could not be sustained based solely on the charge of improper
possession of TECS information.
Federal Register Notices:
The Board issued its final rule on VA SES appeals on October 22, 2014.
http://www.gpo.gov/fdsys/pkg/FR-2014-10-22/pdf/2014-25212.pdf
The MSPB did not issue any precedential
•
decisions this week
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Case Report - October 3, 2014 | 10-06-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_3_2014_1091336.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_3_2014_1091336.pdf | Case Report for October 3, 2014
BOARD DECISIONS
Appellant: Reynaldo Alvara
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 77
MSPB Docket Number: DA-0752-10-0223-E-1
EEOC Petition Number: 0320110053
Issuance Date: September 29, 2014
Appeal Type: Removal
Action Type: Physical Inability to Meet Condition of Employment Due
to Medical Condition
Special Panel Standard of Review
Determination of Civil Service Law, Rule or Regulation
Unreasonable Interpretation of Civil Service Law
Ultimate Authority to Determine Essential Functions of Position
Due Deference on EEOC’s Reliance on Discrimination Law
Reasonableness of EEOC’s Interpretation of Discrimination Law
The appellant was removed from the position of Customs and Border
Protection Officer (CBPO) based on a charge of physical inability to meet the
conditions of his employment due to his medical condition. The appellant was
diagnosed with sleep apnea and he requested that the agency accommodate
his condition by exempting him from working the agency’s overnight shift and
performing overtime. The agency denied the accommodation request based on
its position that working all shifts and overtime was an essential function of
the position of a CBPO. The appellant asserted in his appeal that the agency
discriminated against him based on his disabling condition when it denied his
accommodation request.
In affirming the removal action, the administrative judge (AJ) found that the
appellant was not a qualified individual with a disability entitled to a
reasonable accommodation under the Rehabilitation Act because he could not
perform an essential function of his CBPO position.
The AJ relied on an EEOC
decision, Bouffard v. Department of Homeland Security, EEOC Appeal No.
0120065257 (EEOC Jan. 16, 2008), to support her finding that the agency
established that the ability to work rotational shifts and overtime were
essential functions of the CBPO position. In affirming the AJ’s findings, the
Board noted, also citing to Bouffard, that the Board generally defers to the
EEOC on issues of substantive discrimination law unless the EEOC’s decision
rests on civil service law for its support, or that the decision is so unreasonable
that it amounts to a violation of civil service law.
The appellant appealed the Board’s final order to the EEOC. In its decision
reversing the Board’s final order, the EEOC modified its Bouffard decision,
noting that, in accordance with EEOC Enforcement Guidance and precedential
federal sector cases, Bouffard was wrongly decided on the issue of the
essential functions of a part-time CBPO, and concluded that an employee’s
schedule and attendance was not an essential function of the position but was
merely a method by which an essential function is accomplished. The
Commission went on further to conclude that the agency did not establish that
the requested reasonable accommodation would be an undue hardship because
the appellant was one of 700 CBPO officers and granting his scheduling
requests to accommodate his sleep apnea was not an undue burden.
In its Opinion and Certification Order, the Board held that the EEOC decision to
which it was asked to defer was unreasonable both from a legal and
management operational perspective. The Board held that because the EEOC
decision fundamentally addresses not an interpretation of discrimination law,
but rather the civil service law issue of the agency’s ability to determine the
essential functions of any given position. The Board noted that under the
statutory scheme set forth in the Civil Service Reform Act, the Board is not
required to defer to the EEOC’s interpretation of what constitutes a civil
service law, rule, or regulation. In this regard, law enforcement officers
perform a variety of essential duties to accomplish the agency’s mission
including the ability to respond to exigent circumstances that would require
the occasional performance of duties during the graveyard shift and/or during
overtime. The Board cited authority to support the proposition that
determining whether a particular function is “essential” is not generally
reserved for a fact finder such as the Board or the EEOC on a case-by case
basis, because such an approach would amount to “second guessing” the
employing agency in what is an essential function of a given position. The
Board then certified the case to the Special Panel for disposition.
Holding: The Special Panel held, with Anne M. Wagner dissenting,
that it was required to overrule the Board’s decision because the
EEOC decision did not constitute an incorrect interpretation of a
provision of civil service law, rule, regulation, or policy directive. The
Special Panel remanded the case to the Board in order to conduct a
compensatory damages hearing, order the agency to take appropriate
action including cancellation of the removal, and award all back pay
and benefits.
1. The Special Panel adhered to the principal of stare decisis, and followed
the deferential standard of review, which required the Special Panel to give
due deference to the Board with regard to civil service principles, and to
the EEOC regarding discrimination law.
2. Interpretation of a civil service law, rule or regulation does not
encompass interpretation of statutes and regulations relating to
employment discrimination. The Rehabilitation Act and other discrimination
laws have broader application and are not themselves civil service laws.
3. The EEOC decision did not constitute an unreasonable interpretation of
civil service law, because the EEOC’s decision did not encroach on an
agency’s management/operational perspective and discretion to determine
tasks, duties, and responsibilities of a given position. Such an analytical
approach would result in any EEOC decision that conflicted with any part of
an MSPB decision to trigger Special Panel review of the merits. This was not
the statutory intent under the CSRA.
4. The EEOC decision does not amount to second guessing the employing
agency in what is an essential function of the CBPO position because the
Americans with Disabilities Act does not define the term essential
functions. Although federal agencies enjoy wide discretion in determining
how agency operations will be conducted, management cannot determine
as a matter of law whether duties are essential functions. Such a
determination of essential functions is performed by the finder of fact – the
Board or the EEOC - who will ultimately determine the essential function of
a position and not the employer.
5. The EEOC’s decision relied strictly on discrimination law, not civil
service law, in resolving the issues in dispute. Thus, the Special Panel was
required to give the EEOC’s decision due deference, and had no authority
beyond that to issue its own decision on the merits. Notwithstanding the
Board’s argument that the EEOC decision is at odds with the Board’s
jurisprudence concerning adverse actions based on physical inability to
perform, the Special Panel noted that the EEOC’s decision is an
interpretation of discrimination law and not the Board’s jurisprudence
concerning adverse actions based on physical inability to perform.
6. The Special Panel concluded that the EEOC’s decision was not
unreasonable, because the EEOC relied solely on the Rehabilitation act and
not a civil service statute. Considering attendance an essential function as
opposed to a method by which an essential function is accomplished would
lead to the “perverse and unacceptable” conclusion that any employee
with disability related absences would be an unqualified individual unable
to claim the protections of the Rehabilitation Act.
7. The Special Panel noted that the EEOC reasonably determined that the
agency did not meet its “rigorous” burden in substantiating its undue
hardship claim because the agency only made generalized conclusions and
assessments supporting its view that providing a reasonable accommodation
would result in an undue hardship.
DISSENTING OPINION OF ANNE M. WAGNER:
Board Vice-Chairman and Special Panel Member Anne M. Wagner dissented.
In her dissent, she stated that she would have found: (1) the EEOC decision
constituted a misinterpretation of long-standing Board precedent governing
the adjudication of an adverse action based on a charge of physical inability
to perform; (2) the decision constitutes a misinterpretation of various
provisions of the CSRS; (3) the decision that the Board misinterpreted any
provision of discrimination law has no reasonable basis; (4) the decision not
to reach the merits of the dispute between the Board and the EEOC
regarding whether time and attendance requirements may ever be deemed
essential functions of a position is an issue with clear implications under
both civil service and discrimination law; and (5) the deferential posture
toward the EEOC amounts to a misguided analytical approach erroneously
developed by the first Special Panel in Ignacio v. U.S. Postal Service, 30
M.S.P.R. 471, 477 (Spec. Pan. 1986), and fails to give proper effect to the
Special Panel’s statutory duty to decide issues in dispute.
Appellant: Valentino Lopez
Agency: Department of the Navy
Consolidation: NAVFAC Employees – Hawaii v. Department of the
Navy
Decision Number: 2014 MSPB 78
MSPB Docket Number: SF-0752-13-2120-I-1 and consolidation SF-0752
14-0265-I-1
Issuance Date: October 2, 2014
Appeal Type: Adverse Action
Action Type: Furlough
Furlough Standards
Equitable Application of Furloughs
The appellant challenged the agency’s decision to furlough him from his Utility
Systems Repairer-Operator (“USRO”) position for no more than 11 days. The
appellant claimed that he should have been exempted from the furlough,
because his position was a working-capital-funds position, meaning that it was
funded by goods and services and not through appropriated funds. The
administrative judge (“AJ”) held the following: (1) the furloughs promoted the
efficiency of the service because they were a reasonable management
response to sequestration; (2) the agency could consider its budget situation
holistically, instead of doing so individually for each department; (3) the
agency did not need to prove an actual deficit existed to justify the furlough,
only that the furlough was a reasonable response to the situation; (4) the
agency was permitted to include working-capital-funds positions in the
furlough due to its authority to use working capital funds for other needs; (5)
the agency determined which employees to furlough in a fair and even
manner; and (6) the appellants did not prove harmful error, a violation of their
due process rights, or discrimination.
Holding: The Board affirmed the ruling as modified.
1. The agency’s exception to the furlough that allowed employees in the
appellant’s class to be exempted from the furlough “to the extent
necessary” to protect life and property did not allow the appellant to be
exempted from the entirety of the furlough.
2. An agency will satisfy the efficiency of the service standard in furlough
cases by showing that the furlough was a reasonable management solution
to the financial restrictions placed on it, and that the agency applied its
determination as to which employees to furlough in a fair and even
manner.
3. To apply a furlough in a “fair and even manner,” an agency must treat
similarly-situated employees similarly and justify any deviations with
legitimate management reasons. It does not require an agency to do so in
such a way that satisfies the Board’s sense of equity. Further, the Board
will not scrutinize an agency’s furlough decisions in such a way that it
second guesses an agency’s assessment of its mission priorities and
requirements.
4. The agency’s decision to choose which employees to furlough based on
service computation date was a legitimate management reason for the
differential treatment, and therefore an acceptable exercise of its
managerial discretion.
The U.S. Court of Appeals for the Federal
Circuit did not issue any precedential or
nonprecedential decisions this week
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Case Report - September 26, 2014 | 09-26-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2014_1088080.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2014_1088080.pdf | Case Report for September 26, 2014
BOARD DECISIONS
Appellant: John Doe
Agency: Department of Justice
Decision Number: 2014 MSPB 75
MSPB Docket Number: CH-0752-14-0332-I-1
Issuance Date: September 23, 2014
Appeal Type: Interlocutory Appeal
Action Type: Removal
Standard to Certify Interlocutory Review
Scope of Hearing in Security Clearance Adverse Actions
Difference Between “Harmful Procedural Error” and “Not in
Accordance With Law” Analysis
Procedure in Determining Harmful Procedural Error
The appellant appealed his removal from his position based on his failure to
maintain his eligibility to hold a Special-Sensitive, Level 4 position, which
required access to classified information. The administrative judge found that
the charges were functionally equivalent to a security clearance
determination, and affirmed the removal. The appellant appealed the
decision to the Board, and the Board reversed, based on its finding that the
agency failed to apply its internal procedures regarding his eligibility for access
to classified information. The Board then remanded the matter to the agency
to provide the appellant with his rights under the agency’s internal
procedures. However, the Board declined to rule on the petitioner’s
affirmative defenses that the revocation of his security clearance was
discriminatory. After the remand, the agency reversed its negative
determination on the appellant’s access to classified information, and the
appellant filed a new appeal with the Board shortly thereafter. During the
new proceeding, the administrative judge ruled that the hearing would be
limited to whether the agency committed harmful procedural error in
removing the appellant prior to the agency’s internal review of his loss of
access to classified information. The appellant objected, and filed a motion to
expand the scope of the hearing to include consideration of his affirmative
defenses, and a determination of whether the agency’s action was not in
accordance with law. The administrative judge denied the motion, but then
granted the appellant’s motion to certify the issue for interlocutory review by
the Board.
Holding: The Board affirmed the ruling, vacated the order staying
the proceedings, and returned the case to the regional office for
further processing.
1. The Board found that recent developments in case law related to
adverse actions based on security clearance determinations justified its
further consideration of whether to consider the appellant’s affirmative
defenses.
2. Certification for interlocutory review was proper due to the lack of
guidance in the area of adverse actions based on security clearance
determinations.
3. In accordance with its recent reaffirmation of its pre-Gargiulo case law,
the Board affirmed the administrative judge’s decision to decline to expand
the scope of the hearing to include the appellant’s affirmative defenses.
4. The administrative judge properly declined to hear the appellant’s claim
that his removal was not in accordance with law, because the matter should
be analyzed under a harmful procedural error standard.
5. On remand, the administrative judge is allowed to determine whether
harmful procedural error occurred without holding a hearing.
Appellant: Marco A. Romero
Agency: United States Postal Service
Decision Number: 2014 MSPB 76
MSPB Docket Number: SF-0752-13-0217-I-1
Issuance Date: September 24, 2014
Appeal Type: Adverse Action
Action Type: Constructive Suspension
Jurisdiction Standard in Constructive Suspension Cases
Consideration of Affirmative Defenses Without Board Jurisdiction
The appellant appealed the agency’s failure to return him to work following his
recovery from a medical condition. The appellant also raised an affirmative
defense of retaliation for protected EEO activity. A hearing on jurisdiction was
held, and the administrative judge found that the delay in the appellant’s
return to work was reasonable under the circumstances, and therefore the
appellant failed to meet his jurisdictional burden to establish that an
appealable suspension occurred. The administrative judge further held that
the appellant did not prove his affirmative defense of retaliation.
Holding: The Board affirmed the initial decision as modified, and
vacated the administrative judge’s analysis of the appellant’s
retaliation claim.
1. To establish jurisdiction in constructive suspension cases involving
voluntary leave, an appellant must prove by preponderant evidence that:
(a) he lacked a meaningful choice in the matter; and (2) the agency’s
wrongful actions deprived him of the choice.
2. Here, the Board lacked jurisdiction because the agency did not act
improperly in refusing to allow the appellant to return to work.
3. Because the Board lacked jurisdiction over the appellant’s constructive
suspension claim, it was improper for the administrative judge to separately
adjudicate the appellant’s affirmative defense.
The U.S. Court of Appeals for the Federal
Circuit did not issue any precedential or
nonprecedential decisions this week
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Case Report - September 19, 2014 | 09-22-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2014_1085908.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2014_1085908.pdf | Case Report for September 19, 2014
BOARD DECISIONS
Appellant: Damon J. Brown
Agency: Department of Defense
Decision Number: 2014 MSPB 74
MSPB Docket Number: CH-0752-10-0294-I-2
Issuance Date: September 12, 2014
Appeal Type: Adverse Action
Action Type: Removal
Review of Eligibility to Occupy Non-Critical Sensitive Positions
Property Interest in Eligibility to Occupy Sensitive Position
Constitutional Due Process
Harmful Procedural Error
The appellant was removed from his non-critical sensitive positon based on a
charge that he was denied eligibility to occupy a sensitive position. Without
the benefit of the Federal Circuit’s opinion in Gargiulo v. Department of
Homeland Security, the AJ found under the authority of the Board’s decisions
in Conyers/Northover, that (1) the Board had authority to review the merits of
the determination that the appellant lacked the required qualification of
eligibility to occupy a sensitive position; (2) that the agency did not prove that
the appellant was ineligible to occupy a non-critical sensitive position; and (3)
that even if the agency proved its charge, it did not establish that removing
the appellant promoted the efficiency of the service. The agency filed a
petition for review and the Board invited the parties to file briefs on the
possible application of the Court’s opinion in Gargiulo to the appellant’s claims
of constitutional due process violations.
Holding: The Board granted the agency’s petition for review, denied
the appellant’s cross petition for review, reversed the initial decision,
and sustained the removal.
1. The Board noted that the Federal Circuit’s en banc decision in Conyers
prohibits the Board from reviewing Department of Defense national security
determinations concerning the eligibility of an individual to occupy a
“sensitive” position, regardless of whether the position requires access to
classified information. Here, the appellant’s position required him to
maintain eligibility to occupy a non-critical sensitive position, he was
provided with the requisite procedural protections, and there was no
indication in the record that the agency was required to transfer the
appellant to a non-sensitive position.
2. Pursuant to Gargiulo, denial of an employee’s eligibility to occupy a
sensitive position is not subject to due process requirements because an
employee does not have a property interest in his eligibility to occupy a
sensitive position.
3. Employees continue to have a property interest in continued
employment that requires the due process rights to notice and a meaningful
opportunity to respond prior to being removed. Additionally, if there are
“viable alternatives” to an indefinite suspension or removal, due process
requires that the employee be given an opportunity to invoke the
discretion of the deciding official to select and consider such alternatives.
This right does not require that the deciding official consider alternatives
that are prohibited, impracticable, or outside management purview. Here,
the appellant did not identify any viable alternatives, and record evidence
did not show that there were such viable alternatives that were not either
prohibited, impracticable, or outside the purview of agency management.
4. The appellant did not prove that the agency committed harmful
procedural error when it failed to forward a letter it had received from the
appellant’s bankruptcy attorney to the agency’s internal adjudications
office. In this case, the appellant did not identify any particular provision
that the agency violated when it determined that the letter should not be
sent. Moreover, the appellant did not establish that it was likely that the
internal adjudications office would have reached a different conclusion had
it know that the appellant had filed a bankruptcy petition.
The U.S. Court of Appeals for the Federal Circuit
issued precedential decisions in the following
cases:
Petitioner: Robert C. Devlin
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3018
MSPB Docket No. SF-0843-13-0210-I-1
Issuance Date: September 12, 2014
Eligibility for Basic Employee Death Benefits
The appellant appealed an Office of Personnel Management (OPM)
determination that he was not entitled to Basic Employee Death Benefits
(BEDB) on behalf of his mother’s estate. At the time of the appellant’s
father’s passing, the appellant’s mother and father were married for forty
years, and the appellant’s father had served as a civilian federal employee for
nearly six years. However, before the appellant’s mother could file an
application for BEDB, she also passed away. The appellant filed an application
for BEDB on behalf of his mother’s estate, but OPM denied the application,
concluding that the appellant’s mother was not entitled to BEDB for her
deceased husband because she did not submit an application prior to her
passing. The appellant appealed the OPM decision to the Board, and the Board
affirmed, holding that a spouse’s estate may not apply for BEDB after the
spouse has passed away.
Holding: The Court affirmed.
1. To qualify for BEDB under 5 U.S.C. § 8442, a current or former spouse
must be alive at the time the application for benefits is filed.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
cases:
Petitioner: Sylvia E. Booker
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3106
MSPB Docket No. SF-0831-14-0118-I-1
Issuance Date: September 15, 2014
Entitlement to Former Spouse Survivor Annuity
The appellant appealed an Office of Personnel Management (OPM)
determination that she was not entitled to a former spouse survivor annuity
benefit. The appellant had divorced from the decedent/annuitant in 2002,
and the divorce decree provided that the appellant would receive a portion of
the decedent/annuitant’s pension and other retirement investments at the
time of his retirement, but there was no specific provision for death benefits.
In 2012, the decedent died while still employed by the Federal Government.
At the Board, the administrative judge affirmed the denial. The Board
affirmed, holding that the divorce decree contained no provision for a survivor
annuity for the appellant, and that the divorce decree only addressed
decedent’s retirement annuity, which he never had the chance to receive and
which would, in any event, cease upon his death.
Holding: The Court affirmed.
1. A court order awarding a former spouse survivor annuity must (1)
identify the retirement system, and (2) expressly state that the former
spouse is entitled to a former spouse survivor annuity by using terms like
“survivor annuity,” “death benefits,” or “former spouse survivor annuity.”
Here, the divorce decree contained neither a provision for a survivor
annuity, nor any other terminology that could fairly be read as awarding a
survivor annuity.
Petitioner: Norman L. Schumacher
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3110
MSPB Docket No. CH0831-14-0199-I-1
Issuance Date: September 15, 2014
Untimely Filed Request for OPM Reconsideration
The appellant filed an untimely request for reconsideration of an OPM denial of
his request that his reduction in retirement benefits be discontinued. OPM
dismissed the request as untimely, and the AJ and the Board affirmed because
the appellant had not shown that circumstances beyond his control prevented
him from making a timely reconsideration request.
Holding: The Court affirmed.
1. A request for reconsideration of an OPM initial decision must be received
by OPM within 30 calendar days from the date of the original decision. OPM
has discretion to extend the time limit if the individual shows that he was
not notified of the time limit and was not otherwise aware of it, or that he
was prevented by circumstances beyond his control from timely requesting
reconsideration. Here, OPM had no discretion to extend the time limit
because the appellant did not dispute that his request was untimely or that
he received OPM’s letter notifying him of the deadline.
Petitioner: Jerridene H. Moore
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3089
MSPB Docket No. AT-0752-11-0881-I-1
Issuance Date: September 16, 2014
Untimely Filed Petition for Review
In August 2011, the appellant appealed her removal from the federal service.
In November 2011, the administrative judge dismissed her appeal on the
grounds of collateral estoppel, and mailed a copy of the decision to the
appellant’s address of record. In June 2013, the appellant filed an untimely
petition for review with the Board, and stated that her untimeliness should be
waived due to issues with her health, her housing status, and her ability to
receive mail. The Board denied the appellant’s request, holding that she
failed to rebut the presumption that she received the initial decision in a
timely fashion. The Board also held that her failure to monitor her case in the
preceding 18 months was negligent.
Holding: The Court affirmed.
1. The Court found that the Board did not abuse its discretion in finding
that the petitioner did not provide good cause for her untimely filing. The
petitioner had significant experience with Board procedures, did not
change her address of record, had actually responded to other documents
sent to that address, and was not diagnosed with her medical condition
until 18 months after her filing deadline.
Petitioner: Carol A. Trufant
Respondent: Department of the Air Force
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3168
MSPB Docket No. DC-0752-92-0492-C-3
Issuance Date: September 16, 2014
Res Judicata
In 1992, the appellant settled her Board appeal of her removal from the Air
Force. One year later, the appellant filed a petition for enforcement with the
Board, claiming the settlement agreement was invalid. The Board dismissed
the petition and the Federal Circuit affirmed, holding that her allegations were
frivolous. In 2000, the appellant filed another petition for enforcement with
the Board, claiming that the agency was required by the settlement agreement
to remove certain documents from her file. The Board again dismissed her
appeal, holding that it was barred by res judicata, and the Federal Circuit
affirmed. In 2012, the appellant filed a third petition for enforcement with
the Board, again claiming the agency violated the settlement agreement by
failing to remove documents from her file. The Board dismissed her petition,
holding that res judicata barred her claim.
Holding: The Court affirmed.
1. The appellant’s claims were barred by res judicata because they were,
or should have been, litigated in prior proceedings.
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Case Report - August 15, 2014 | 08-15-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_15_2014_1071611.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_15_2014_1071611.pdf | Case Report for August 15, 2014
BOARD DECISIONS
Appellant: Reynaldo Alvara
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 63
MSPB Docket Number: DA-0752-10-0223-E-1
EEOC Petition No. 032011005
Issuance Date: August 13, 2014
Appeal Type: Removal
Action Type: Physical Inability to Perform
Special Panel Certification Under Mixed Case System
Essential Functions of Law Enforcement Position
Reasonable Accommodation
The appellant was removed from his GS-11 Customs and Border Protection
Officer (CBPO) position based on physical inability to perform because his
permanent condition of sleep apnea precluded him from performing the
essential functions of working rotational shifts and working overtime.
Relying
on an Equal Employment Opportunity Commission decision, Bouffard v.
Department of Homeland Security, EEOC Appeal No. 0120065257, 2008 WL
276452 (E.E.O.C. Jan. 16, 2008), the administrative judge (AJ) sustained the
charge, holding that although the appellant established that he was disabled,
he failed to establish that he was a “qualified individual with a disability”
because he could not perform the essential functions of the position. The
Board affirmed, and also held that because it found he was not a qualified
individual with a disability, it did not need to reach the issue of undue
hardship.
The appellant then petitioned the EEOC for review in response to the
appellant’s petition for EEOC review of the Board’s decision, and the EEOC
found that its prior decision in Bouffard was incorrectly decided on the issue of
whether the working of rotational shifts and significant amounts of overtime
were essential functions of the CBPO position. The EEOC noted that
subsequent precedential federal sector cases and its Enforcement Guidance
show that the appellant was qualified and could perform the fundamental job
duties of a CBPO, and therefore, the Board’s reliance on the earlier Bouffard
precedent was in error. The EEOC also concluded that the agency failed to
show that modifying the appellant’s work schedule would cause undue
hardship, and that the agency error in denying the appellant’s reasonable
accommodation request amounted to disability discrimination.
Holding: The Board reaffirmed its prior decision and certified the
case to the Special Panel.
1. The Board found that the EEOC’s decision in Bouffard was based on an
incorrect interpretation of civil service law, rule, or regulation, and was
unreasonable.
2. The Board is not required to defer to the EEOC’s interpretation of an
issue of civil service law, rule or regulation when such an interpretation
falls squarely within the purview of the Board’s area of expertise.
3. The classification of law enforcement positions are unique under civil
service law and require structuring the essential functions of the positions
to address the safety and security of the American people.
4. The Board will not “second guess” what an agency has determined is an
essential function of a position when those functions are identified by the
agency as essential as distinguished from “marginal” functions. It is an
agency’s ultimate responsibility to determine what is an essential function
or duty of the job.
The U.S. Court of Appeals for the Federal
•
Circuit did not issue any decisions this
week
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Case Report - August 1, 2014 | 08-01-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2014_1066333.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2014_1066333.pdf | Case Report for August 1, 2014
BOARD DECISIONS
Appellant: Stephen W. Gingery
Agency: Department of Defense
Decision Number: 2014 MSPB 59
Docket Number: CH-3443-06-0582-C-2
Issuance Date: July 28, 2014
Appeal Type: Compliance
Action Type: Veterans Employment Opportunities Act
Reconstructed Hiring Procedure
The appellant appealed the agency’s failure to hire him for an Auditor
position, stating that the agency’s action violated his veterans’ preference
rights under the Veterans Employment Opportunities Act (VEOA). The
administrative judge (AJ) found that the agency violated VEOA, and ordered
the agency to reconstruct the hiring process for the appellant. The agency
did so, and made the appellant a tentative offer of employment. The
agency’s offer required the appellant to obtain a security clearance. The
appellant filed a petition for enforcement, stating that the agency was not in
compliance with the Board’s order because it required him to fill out a
security clearance form as of the date he completed the form, and not as of
the date he would have completed them had the agency initially hired him
before his first Board appeal. All candidates for that position were required
to fill out the form as of the date of completion of the form. Upon
consideration of the petition, the AJ found that the agency had complied
with the Board’s order and denied the petition for enforcement.
Holding: The Board affirmed the initial decision.
1. When offering a position to an applicant pursuant to a reconstructed
hiring process, an agency may subject the applicant to the same pre
appointment process as all other employees in that position.
Appellant: Redale Benton-Flores
Agency: Department of Defense
Decision Number: 2014 MSPB 60
Docket Number: DC-1221-13-0522-W-1
Issuance Date: July 31, 2014
Appeal Type: Individual Right of Action (IRA) appeal
Action Type: Probationary Termination
Evidence Considered in Determining Alleged Disclosures Made
Before OSC
Identification of Disclosures
Requirement for Form of Disclosures
Evidentiary Burden in Disclosures Made in Normal Course of
Duties
The appellant was terminated from her position as a teacher with the
Department of Defense Dependent Schools during her probationary period.
She filed an individual right of action (IRA) appeal alleging that the
termination was predicated on retaliation for protected disclosures. The
administrative judge dismissed the appeal for lack of jurisdiction based on a
finding that the appellant did not demonstrate exhaustion of the protected
disclosures with the Office of Special Counsel (OSC).
Holding: The Board granted the appellant’s petition for review,
reversed the initial decision and remanded the appeal for further
adjudication.
1. The administrative judge must consider all of the allegations contained
throughout the entire record, including the initial OSC complaint and
other written correspondence, before deciding to dismiss an IRA appeal
for lack of jurisdiction.
2. The test for a non-frivolous allegation of a protected disclosure is
whether a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee could reasonably
conclude that the disclosed action violated one or more of the 5
categories listed in 5 U.S.C. § 2308(b)(8). In this case, three of the
appellant’s disclosures amounted to protected disclosures.
3. An appellant is not required to cite to a particular law, rule, or
regulation, when disclosing violations under 5 U.S.C. § 2308(b)(8).
4. Under the Whistleblower Protection Enhancement Act of 2012, if the
appellant made the disclosures within the course of her normal duties,
she must prove that the personnel action was taken as reprisal for the
disclosure.
The U.S. Court of Appeals for the D.C. Circuit
Issued the Following Non-Precedential Opinions:
Appellant: Joseph P. Carson
Agency: Merit Systems Protection Board
Decision Number: 2013-1273
Docket Numbers: AT-1221-13-0285-W-1
Issuance Date: July 30, 2014
Appeal Type: Whistleblower
Action Type: Reprimand
Personnel Actions Under the Whistleblower Protection Act
The appellant filed a claim of whistleblower reprisal with the Board after his
supervisor informed him that his forwarding an e-mail to one of his co
workers was inappropriate. The administrative judge held that the Board
lacked jurisdiction based on the lack of a non-frivolous allegation of a
retaliatory agency personnel action, and the Board affirmed.
Holding: The Court affirmed the Board’s decision.
1. The appellant’s supervisor’s e-mail stating the appellant’s e-mail was
inappropriate did not constitute a significant change in duties,
responsibilities, or working conditions such that it would fall within the
scope of a personnel action as required by the whistleblower protection
act.
The President of the United States Issued the
Following Executive Order:
Executive Order – Further Amendments to Executive Order 11478, Equal
Employment Opportunity in the Federal government, and Executive Order
11246, Equal Employment Opportunity
On July 21, the President issued an Executive Order (EO) that amends
equal employment opportunity related EO’s 11478 and 11246, prohibiting
discrimination by Federal agencies on the basis of “gender identity”
(11478), and prohibiting federal contractors from discriminating against
employees on the bases of sexual orientation and gender identity
(11246).
http://www.whitehouse.gov/the-press-office/2014/07/21/executive
order-further-amendments-executive-order-11478-equal-employmen
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Case Report - July 25, 2014 | 07-25-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_25_2014_1063442.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_25_2014_1063442.pdf | Case Report for July 25, 2014
BOARD DECISIONS
Appellant: Johnathan Gajdos
Agency: Department of the Army
Consolidation: Army Training Doctrine Command v. Department of
the Army
Decision Number: 2014 MSPB 55
Docket Number: SF-0752-13-1913-I-1 and consolidation SF-0752-13
4840-I-1
Issuance Date: July 22, 2014
Appeal Type: Adverse Action
Action Type: Furlough
Furlough Guidance from RIF Principles
Efficiency of the Service in Furlough Cases
Furlough and Individual Due Process Considerations
The appellant, an assistant professor, appealed the agency’s decision to
furlough him for no more than 11 workdays. The furlough was issued
pursuant to the Balanced Budget and Emergency Deficit Control Act. Before
issuing the furlough, the agency provided the appellant an opportunity to
respond to the proposal, and the proposal notice indicated that no decision
would be made until consideration was given to the appellant’s reply. In the
decision issuing the furlough, the deciding official stated the appellant’s
reply had been considered, but the reasons for the furlough remained valid,
and the conditions related to the furlough were the most equitable means of
implementing the furlough. On appeal, the administrative judge (AJ) upheld
the decision, holding that the agency proved the furlough promoted the
efficiency of the service. Additionally, the AJ held that the agency did not
violate the appellant’s due process rights. The AJ stated that due process
does not require an agency to address every argument made in response to a
proposal. The AJ further stated that the deciding official had discretion to
change the proposed action, and that his limited discretionary review was
consistent with furloughs resulting from a sequestration.
Holding: The Board affirmed, but modified, the initial decision’s
due process analysis.
1. The Board applied Reduction in Force (RIF) principles to determine
whether a furlough for 30 days or less promoted the efficiency of the
service.
2. An agency establishes that a furlough promotes the efficiency of the
service by showing the furlough was a reasonable management solution to
the financial restrictions placed on it, and that the furlough was applied in
a fair and even manner.
3. The efficiency of the service standard does not encompass all agency
spending decisions. For furloughs, it only applies to issues about the
uniform, consistent application of the furlough.
4. Administrative disruptions arising from a furlough do not mean the
furlough does not promote the efficiency of the service.
5.
The Board applied the three factor due process test from Mathews v.
Eldridge, 424 U.S. 319 (1976), to determine that the agency’s action did
not violate the appellant’s due process. Under this analysis, the Board
held that the large volume of decisions, combined with the reduced risk
of erroneous deprivation of due process due to the different type of
action, outweighed the deprivation to the appellant such that the
appellant’s due process rights were not violated. The Board further
stated that the availability of post-deprivation relief via Board appeal
lessened the due process required to be given to the appellant when the
decision was issued.
6. Vice-Chair Anne Wagner dissented. She stated that she believed the
Board’s holding meant that furloughed employees were entitled to less
due process than employees subjected to other types of adverse actions.
Appellant: Patrick Hollingsworth
Agency: Department of the Air Force
Decision Number: 2014 MSPB 56
Docket Number: AT-0752-14-0199-I-1
Issuance Date: July 23, 2014
Appeal Type: Adverse Action
Action Type: Removal
Elements of Tardiness Charge
Tardiness Charge Applied to Maxiflex Schedule
The appellant, a Secretary, appealed his removal for tardiness. The agency
removed the appellant for being at least 30 minutes late on four separate
instances over the course of one month. The appellant worked a maxiflex
schedule that required him to work 80 hours every two weeks on less than 10
workdays. In his schedule, he was allowed to work his 80 hours at any time
between 7am and 5pm on any given day. On appeal, the appellant
challenged the claim that he was tardy, due to the flexibility of his working
hours, but the AJ upheld the removal.
Holding: The Board reversed the initial decision.
1. A charge of tardiness should be analyzed like a charge of AWOL. To
prove a charge of tardiness, an agency must show: (1) the employee was
scheduled for duty; (2) the employee was late for duty for the time
charged; and (3) either the employee’s absence was not authorized or his
request for leave was properly denied.
2. The agency failed to prove its charge of tardiness because the
appellant did not have core hours during which he was required to serve.
The agency’s claimed designated start time contradicted his maxiflex
schedule, which allowed him to start at various times of the day, as long
as he finished by 5pm.
3. The appellant’s inability to arrive early enough on the last day of his
pay period that would allow him to complete 80 hours for the pay period
did not mean he was tardy on that day.
Appellant: Casey D. Weathers
Agency: Department of the Navy
Consolidation: Consolidated Furlough Appeals of the Naval
Education and Training Command
Decision Number: 2014 MSPB 57
Docket Number: SF-0752-13-3536-I-1 and consolidation SF-0752-13
4851-I-1
Issuance Date: July 24, 2014
Appeal Type: Adverse Action
Action Type: Furlough
Furlough Similarly Situated Determination
Furlough Guidance from RIF Principles
The appellant alleged that his furlough unfairly exempted certain civil
service employees and allowed them to remain working for the balance of FY
13, when other workers of equal grade and classification working in Navy
Shipyards in other parts of the country were furloughed. The agency
explained that certain employees were legitimately exempt from furlough
because they were assigned to conduct maintenance work on ships critical to
mission success. The AJ found that there was a legitimate management
reason for exempting the referenced employees, and that the appellant was
not exempted because he did not work directly for an excepted naval
shipyard, and his position did not fall within the exemption.
Holding: The Board affirmed the initial decision as modified.
1. Which employees are similarly situated for purposes of an adverse
action furlough is decided on a case-by-case basis, but the Board will be
guided by reduction in force (RIF) principles in making that
determination.
2. The Board modified the initial decision to find that the appellant was
not similarly situated because the appellant, and others who were part of
this consolidation, were all in different local commuting areas than the
exempt employees, and the programs where they were assigned was in a
different organizational unit.
Appellant: Edward Antonio Kelly
Agency: Department of the Army
Consolidation: ACE Baltimore Pro Se No Hearing
Decision Number: 2014 MSPB 58
Docket Number: PH-0752-13-5622-I-1 and consolidation PH-0752-13
5926-I-1
Issuance Date: July 24, 2014
Appeal Type: Adverse Action
Action Type: Furlough
Furlough Determined by RIF Regulations
Furlough and Individual Due Process Considerations
Use of Overtime During Furlough
Consistency of Number of Furlough Days Between Agencies
Furlough Reliance on General Global Agency Advice
The appellant challenged his furlough from his GS-12 Engineering Technician
position on a number of procedural and substantive grounds. The AJ
affirmed the furlough based on a finding that the agency provided a detailed
factual basis for the furlough by showing that it was a reasonable
management solution to the financial restrictions placed on it, and that it
determined which employees to furlough in a fair and even manner.
Holding: The Board affirmed the initial decision as modified, and
affirmed the furlough actions.
1. In accordance with RIF rules, the agency was not required to have
subdivided personnel and furloughed employees based on their tenure
group, veterans’ preference within each group, length of service, and
performance because there was no release of the appellant from his
competitive level for more than 30 days.
2. The agency’s procedures satisfied the requirement of due process,
because the agency presented a factual basis for the furlough, and the
deciding official made individual determinations as to whether there was
a basis for an exemption.
3. The agency’s policy under which it permitted the use of overtime to
meet mission-critical needs was a matter within the agency’s sound
discretion and there was no showing that the agency used overtime to
relieve certain employees, but not others, of the financial consequences
of the furlough to the point where the furlough would not be viewed as
meeting the efficiency of the service standard.
4. The inconsistency of the number of furlough days throughout the
federal sector is irrelevant to the analysis of whether a particular agency
provided that the furlough promoted the efficiency of the service.
5. The Army Corp of Engineer’s reliance on a “global” DOD memo rather
than guidance specific to its agency functions did not, in and of itself,
show that the furlough was improper.
The U.S. Court of Appeals for the Federal Circuit
Issued the Following Precedential Opinions:
Appellant: Richard Erickson
Agency: U.S. Postal Service
Decision Number: 2008-3216 and 2010-3096
Docket Numbers: AT-3443-07-0016-I-2 and AT-3443-07-0016-M-1
Issuance Date: July 18, 2014
Appeal Type: Removal
Action Type: Attorney Fees
Attorney Fees for Federal Circuit Appellate Work in USERRA
Appeal
Interpretation of USERRA Statute
Attorney Fees Equal Access to Justice Act/Timeliness
Statutory Interpretation of Attorney Fee Provision in Back Pack
Act to USERRA
The appellant was removed from his Postal Service position for excessive use
of military leave. The case went to the Federal Circuit twice and was
remanded to the Board. In the second remand proceeding, the Board ruled
that the appellant established his USERRA discrimination claim and ordered
him reinstated with back wages and benefits as of the date of his removal.
The appellant then filed an application with the court seeking attorney fees
related to legal work performed in connection with the two appeals before
the Court. The appellant made four arguments addressed by the Court: (1)
the USERRA attorney fee statute at 38 U.S.C. § 4324(c)(4) authorizes attorney
fees incurred during judicial review; (2) if the Board lacks authority under
USERRA to grant attorney fees, the court should interpret the grant of fees
under the general intent of the USERRA statute because USERRA is to be
construed liberally in favor of veterans; (3) that the Equal Access to Justice
Act (EAJA) authorizes the award of fees if the government’s position in the
case was not “substantially justified”; and (4) that the Back Pay Act
independently authorizes an award of attorney fees for work performed on
appeals brought by preference eligible employees of the Postal Service.
Holding: The Court denied the attorney fee application.
1. The Board is not authorized to award fees incurred during judicial
review under USERRA because the focus of the USERRA attorney fee
provision is on legal work before the Board.
2. The USERRA statute cannot be liberally construed to resolve this issue
in favor of veterans because the court is not authorized to award attorney
fees in the absence of statutory authority to do so.
3.
The Court stated Covington v. Department of Health and Human
Services, 818 F.2d 838 (Fed. Cir. 1987) was no longer good law, because
it was issued prior to Former Emps. of Motorola Ceramic Prods. V. United
States, 336 F.3d 1360, 1366 (Fed. Circ. 2003). Now, the application for
attorney fees must be filed within 30 days from the time the court
remands the case to the Board on the USERRA discrimination issue..
4. The attorney fee provision of the Back Pay Act does not apply to
preference eligible Postal Service employees because the Back Pay Act
does not generally apply to the Postal Service unless specifically
enumerated in the statute, the Postal Service is not defined as an
executive agency, and the Back Pay Act is not specifically “applicable to a
preference eligible” Postal Service employee with regard to rights to
recover attorney fees.
5. The Court noted that the Board’s holding in Andress v. U.S. Postal
Service, 56 M.S.P.R. 501 (1993), that the Back Pay Act as a whole is a
“provision of Title 5 relating to a preference eligible” is questionable
because the Back Pay Act has no special application to veterans.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
cases:
Petitioner: James R. Arnold
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3073
MSPB Docket No. SF-0752-09-0965-C-1
Issuance Date: July 24, 2014
Reasonable Time to File Petition for Enforcement
Board Consideration of Facts and Circumstances
The appellant, a mail handler, appealed his removal from the Postal Service,
but later settled his Board appeal. The decision dismissing the Board appeal
stated a petition for enforcement must be filed within a reasonable time
after non-compliance was discovered. In September 2012, the appellant
filed a petition for enforcement with the Board, claiming that the agency
breached his settlement agreement by interfering with his injury
compensation claim with the Office of Workers’ Compensation Programs
(OWCP), which his settlement agreement allowed him to file. The appellant
based his claim on a November 2011 decision from OWCP in which OWCP
claimed it relied on information derived from agency counsel, and claimed
that he waited 10 months to file the petition because he was trying to save
money to hire an attorney. He also assumed the 1 year appeal deadline for
OWCP decisions also applied to petitions for enforcement to the Board. The
AJ dismissed the petition as untimely, holding that nothing in the initial
decision indicated that the time for filing a petition for enforcement would
be associated with the time to file an OWCP appeal, that waiting to file the
petition until he could afford an attorney was not a sufficient reason to delay
the filing, and that the agency’s prejudice is not a factor in the case. The
Board affirmed.
Holding: The Court vacated and remanded the decision.
1. The reasonableness of the time period to file a petition for
enforcement depends on the circumstances of the case.
2. The Board failed to determine whether the appellant’s excuse was
reasonable under the facts and circumstances of his case.
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Case Report - July 11, 2014 | 07-11-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_11_2014_1056269.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_11_2014_1056269.pdf | Case Report for July 11, 2014
The U.S. Supreme Court Issued a Decision in the
Following Case:
Petitioner: Pamela J. Harris, et al.
Respondent: Pat Quinn, Governor of Illinois, et al.
Tribunal: U.S. Supreme Court
Case Number: 11-681
Decision Below: 656 F.3d 692 (7th Cir. 2011)
Issuance Date: June 30, 2014
Appeal Type: Constitutional Law
Action Type: First Amendment Rights for Public Sector Employees
Right of Partial-Public Employees to Refuse to Pay Union Fees
This case arose from a refusal by certain “Personal Assistants” (PA) in the
Illinois Home Services Program to pay Service Employees International Union
Healthcare Illinois & Indiana (SEIU-HII) fees. The PAs’ employment
conditions were primarily controlled by their customers, who were private
citizens. They were designated public employees only by statute, and solely
to allow them to join a labor union and engage in collective bargaining under
the Illinois Public Labor Relations Act (PLRA). Under the act, the PAs were
required to pay SEIU-HII an agency-fee for the cost of certain activities,
including those tied to the collective-bargaining process. A group of PAs filed
a class action lawsuit in District Court, claiming that the PLRA’s agency-fee
provision violated their First Amendment rights.
The District Court dismissed
their claim, and the Seventh Circuit affirmed, holding that the PAs were
state employees within the meaning of Abood v. Detroit Bd. Of Ed.
The Supreme Court addressed the following issues: (1) May a state,
consistent with the First and Fourteenth Amendments to the United States
Constitution, compel personal care providers to accept and financially
support a private organization as their exclusive representative to petition
the State for greater reimbursements from its Medicaid programs; and (2) Did
the lower court err in holding that the claims of providers in the Home Based
Support Services Program are not ripe for judicial review.
Holding: The Court reversed the judgment of the Seventh
Circuit.
1. In a 39 page Opinion, the Court (Justice Alito writing) held that the
First Amendment prohibited the collection of an agency fee from the PAs
who did not want to join or support the union. The Court declined to
extend Abood to the PAs, because the PAs’ employment circumstances
were very different from that of typical public employees, and instead
analyzed the claim under the First Amendment. Under this analysis, the
Court found that the Petitioners’ interests, including labor peace and the
welfare of the PAs, were not sufficiently compelling to justify violation of
the PAs’ First Amendment rights.
2. The Court called into question the foundations of the Court’s prior
holding in Abood. While the Court did not specifically overrule Abood, it
did state that the Court’s First Amendment analysis in Abood was
“questionable… [.]”
3. Justice Kagan dissented, with Justices Ginsburg, Breyer, and
Sotomayor joining. Justice Kagan disagreed with the majority’s analysis
of Abood, and believed the holdings in that case should have been
extended to the PAs.
The MSPB did not issue any precedential
decisions this week
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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Case Report - December 12, 2008 | 12-12-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2008_383984.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2008_383984.pdf | CASE REPORT DATE: December 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
(cid:190) Appellant: Tommy L. Swanson, Sr.
Agency: General Services Administration
Decision Number: 2008 MSPB 246
Docket Number: DA-1221-08-0182-W-1
Issuance Date: December 4, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Exhaustion of Remedy
- Jurisdiction
- Protected Disclosure
- Gross Mismanagement
- Contributing Factor
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The appellant served as Director of the agency’s Small
Business Office (SBO) in Fort Worth Texas. In June 2002, he alleged that he reported
to his second-level supervisor that his first-level supervisor had “undermined both the
integrity and ability of [the SBO] to perform its mission effectively by eliminating all
but two positions for the entire region,” and was using “bullying tactics” in an attempt
to force him to develop a “virtual office,” which would further reduce the SBO’s
effectiveness. Subsequently, the appellant was detailed and reassigned to various
positions within the agency’s Public Buildings Services. After filing a complaint with
the Office of Special Counsel in which he alleged two other whistleblowing disclosures,
the appellant filed an IRA appeal with the Board. The AJ dismissed the appeal for lack
of jurisdiction, finding that the appellant failed to exhaust his administrative remedies
with OSC as required by 5 U.S.C. § 1214(a)(3).
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case for further adjudication:
2
1. 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. To meet this
exhaustion requirement, the appellant must provide OSC a sufficient basis to
pursue an investigation which might have led to corrective action. The appellant
satisfied this requirement as to the disclosure described above, as he specified with
reasonable clarity and precision the content of the disclosure, the individual to
whom it was made, the nature of the personnel actions that were allegedly taken it
retaliation, and the individuals responsible for taking those actions.
2. The appellant made a nonfrivolous allegation of facts that he reasonably
believed evidenced gross mismanagement, which means a management action or
inaction that creates a substantial risk of significant adverse impact on the
agency’s ability to accomplish its mission. Contrary to the initial decision, gross
mismanagement does not require an “element of blatancy.” If, as the appellant
alleges, his first-level supervisor undermined the ability of the SBO to perform its
mission by drastically cutting the number of employees, a reasonable person could
conclude that the supervisor commited an act of gross mismanagement.
3. Under the knowledge/timing test, the appellant made a nonfrivolous allegation
that his disclosure was a contributing factor in his reassignment, as the
reassignment occurred within 2-3 months of the disclosure.
(cid:190) Appellant: Christopher D. Roche
Agency: Department of Transportation (FAA)
Decision Number: 2008 MSPB 247
Docket Number: NY-0752-07-0359-I-1
Issuance Date: December 8, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
- “Employee”
The appellant petitioned for review of an initial decision that dismissed his
removal appeal for lack of jurisdiction. The appellant was an air traffic control
specialist at the FAA. The issue was whether he was an “employee” entitled to appeal
his removal to the Board. Both the appellant and the agency argued that he was an
employee under the FAA’s personnel management system (PMS) and 49 U.S.C.
§ 40122(g). The AJ found, however, that the appellant must be an employee as defined
under 5 U.S.C. § 7511 to be entitled to appeal his removal, and determined that the
appellant did not meet this requirement.
Holdings: The Board affirmed the initial decision as modified, still dismissing the
appeal for lack of jurisdiction:
1. Under 5 U.S.C. §§ 7512(1) and 7513(d), an individual who meets the definition
of an “employee” under 5 U.S.C. § 7511(a)(1) generally is entitled to appeal his
removal to the Board.
3
2. Effective April 1, 1996, the Board was divested of jurisdiction over appeals filed
by FAA employees, and the FAA was required to develop and implement a
personnel management system for its own workforce. In 2000, the Ford Act
amended the law to provide that an FAA employee may submit an appeal to the
Board “from any action that was appealable to the Board under any law, rule, or
regulation as of March 31, 1996.”
3. In ordinary usage, the word “employee” would appear to mean any person who
works for another. Such a meaning is clearly too broad in this context, as it would
apply to political appointees and probationers, and nothing in the Ford Act or its
legislative history suggests that Congress intended to confer Board appeal rights on
such a broad range of individuals. Accordingly, a narrower definition is required,
which could be provided by either the FAA’s PMS or by 5 U.S.C. § 7511(a)(1).
4. Both the Board and its reviewing court, the U.S. Court of Appeals for the
Federal Circuit, have ruled in similar cases that an individual claiming a right to
appeal to the Board under 49 U.S.C. § 40122 could file such an appeal only if he
met the definition of an “employee” under 5 U.S.C. § 7511. The appellant’s
contrary argument relies on an MSPB initial decision. Initial decisions of the
Board have no precedential value, however.
5. The appellant argues, in effect, that, although Congress restored FAA
employees’ right to appeal certain actions, it did not restore the statutory
provisions defining the categories of individuals who could appeal those actions.
There is no support in the legislative history for such an interpretation, which is
belied by the language of § 40122(g)(3), which provides for the right to appeal “any
action that was appealable to the Board under any law, rule, or regulation as of
March 31, 1996.”
6. The appellant is not an “employee” under 5 U.S.C. § 7511(a)(1).
(cid:190) Appellant: Anil N. Parikh
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 248
Docket Number: CH-1221-08-0352-W-1
Issuance Date: December 10, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure
Defenses and Miscellaneous Claims
- Collateral Estoppel
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The agency proposed to remove him from his position as a
Physician based upon the charge of unauthorized release and disclosure of private and
protected information. The appellant contended that the letters in question were
protected whistleblowing disclosures. In dismissing the appeal, the AJ made the
following rulings with regard to the appellant’s 9 alleged disclosures: (1) The appellant
4
was collaterally estopped from raising the first disclosure because he had raised that
claim in a previous IRA appeal and the judge had found, on the merits, that the
disclosure was not protected under the WPA; (2) in six of the disclosures, which alleged
various violations of professional or clinical standards that potentially endangered
patients, the appellant violated the Health Insurance Portability and Accountability Act
(HIPAA) by disclosing confidential health information to unauthorized persons; and
(3) two of the disclosures pertained to conduct that might violate discrimination laws
protected under 5 U.S.C. § 2302(b)(9), but were not whistleblowing disclosures
protected under 5 U.S.C. § 2302(b)(8).
Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and
remanded the case for further adjudication:
1. One of the requirements for collateral estoppel (issue preclusion) is that the
issue be identical to that involved in the prior action. That requirement was not
satisfied here. The issue in this appeal is whether, on the written record, the
appellant made a nonfrivolous allegation that his disclosure was protected. The
issue in the prior appeal was whether, after a hearing, the appellant proved by
preponderant evidence that the disclosure was protected.
2. Regarding the disclosures alleged to have violated HIPAA, that law generally
prohibits the disclosure of individually identifiable health information. Even if a
disclosure would otherwise be protected under 5 U.S.C. § 2302(b)(8), it is not
protected if the disclosure is specifically prohibited by law. The HIPAA
implementing regulation at 45 C.F.R. § 164.502(j) specifically allows disclosures by
whistleblowers when the individual believes in good faith that the covered entity
has engaged in conduct that is unlawful or otherwise violates professional or
clinical standards or potentially endangers patients, when the disclosure is made to
a health oversight agency or public health authority authorized to investigate such
matters, or to an attorney retained by the whistleblower. The appellant’s
disclosures fell within this exception, notwithstanding the fact that copies of the
disclosures were sent to persons who would not have satisfied the regulation (e.g.,
the appellant’s Senator and other Members of Congress), as well as to authorized
agencies and his attorney.
3. The Board concurred with the AJ’s determination that two of the disclosures,
which reported an inappropriate comment by an agency physician that the
appellant claimed evidenced a violation of EEO policies, were covered under
5 U.S.C. § 2302(b)(1) and (b), not under 5 U.S.C. § 2302(b)(8). | 10,046 | |
Case Report - March 28, 2008 | 03-28-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_28_2008_324047.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_28_2008_324047.pdf | CASE REPORT DATE: March 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: Kevin McCarty
Agency: Environmental Protection Agency
Decision Number: 2008 MSPB 21
Docket Number: CH-1221-05-0902-B-1
Issuance Date: January 31, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure
Board Procedures/Authorities
- Bias
The appellant petitioned for review of a remand initial decision that denied her
request for corrective action in this IRA appeal. The agency terminated the appellant
from her excepted service appointment as an Environmental Engineer under the Federal
Career Intern Program. The appellant alleged that the agency’s failure to convert her
2-year appointment to a permanent appointment was reprisal for whistleblowing. She
alleged, inter alia, that she disclosed that her first-line supervisor usurped the legal
authority granted by regulation to On-Scene Coordinators by interfering with a
commitment that the agency made with stakeholders at the Circle Smelting Superfund
Site. In the original proceeding, the administrative judge (AJ) dismissed the appeal on
the basis that the appellant failed to demonstrate that she made any protected
disclosures or that the agency perceived her as a whistleblower, and that she failed to
demonstrate that any protected disclosure was a contributing factor in the agency’s
decision not to convert her appointment. On review, the Board found that the AJ erred
by denying corrective action without addressing whether the Board has jurisdiction over
the appeal, and by failing to provide the appellant with explicit information on what is
required to establish jurisdiction.
McCarty v. Environmental Protection Agency, 2007
MSPB 59, 105 M.S.P.R. 74.
2
On remand, after receiving an agency pleading which purported to concede Board
jurisdiction, the AJ issued a remand initial decision in which he found that the Board
has IRA jurisdiction over the appeal, but dismissed the appeal for failure to state a
claim upon which relief can be granted.
Holdings: The Board granted the appellant’s petition for review (PFR), vacated
the initial decision, and remanded the appeal for further adjudication:
1. A dismissal for failure to state a claim upon which relief can be granted is
appropriate in an IRA appeal only when the appeal is within the Board’s
jurisdiction but, even assuming the appellant can show she was subjected to a
retaliatory personnel action, the Board would be unable to grant effective relief.
That is not the case in this appeal; if the appellant is able to prove the merits of her
claim, the Board would be able to issue an enforceable order granting her the relief
she seeks: reinstatement to her position.
2. Both of the premises on which the AJ found jurisdiction were incorrect. First, it
was improper for the AJ to rely on a purported finding of jurisdiction in the
earlier initial decision, when the Board had vacated that decision and found that it
did not adequately address the question of jurisdiction. Second, an agency cannot
“concede” jurisdiction over an appeal, nor is jurisdiction subject to stipulation by
the parties.
3. The Board found the record sufficiently developed to make a finding of
jurisdiction. The appellant made nonfrivolous allegations that she disclosed a
violation of regulation, specifically, that her first-line supervisor usurped the legal
authority granted to On-Scene Coordinators, that her second-line supervisor was
aware of the disclosure, and that the agency’s decision to terminate her
employment was taken in reprisal for her disclosure.
4. The AJ did not document any of the status conferences or the prehearing
conference, so there was no basis to determine whether the AJ’s denial of witnesses
and other rulings was an abuse of discretion. Because the record as it exists is
insufficient for the Board to conclude that the appellant received a fair opportunity
to present and prove her case, the case must be remanded to afford her the
opportunity to do so.
5. The Board found the AJ’s conduct to be “troubling” in several instances. It was
inappropriate for the AJ to suggest to the appellant during her testimony that her
testimony was meaningless. Further, the AJ’s questioning of the witnesses may
have left the impression that the AJ was acting as an advocate for the agency
rather than as an impartial decision maker when, for example, he negatively
characterized the appellant and her union representative, interrupted the
appellant before she had completed her question, misinterpreted what she said,
and accused her of making an untrue statement. For these reasons, the Board
found that a reasonable person could have the impression that the AJ allowed his
personal feelings and views to so infect his consideration of the appeal as to create
doubts about his ability to impartially resolve close and difficult questions of fact.
The Board therefore directed that the appeal be assigned to a different AJ on
remand.
3
► Appellant: Gilbert L. Rodriguez
Agency: Department of Homeland Security
Decision Number: 2008 MSPB 25
Docket Number: DA-0752-07-0091-I-1
Issuance Date: January 31, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Whistleblower Protection Act
- Protected Disclosure
The appellant petitioned for review of an initial decision that affirmed his removal
from his position as a Deportation Officer on misconduct charges. All three charges
stemmed from incidents occurring on March 25, 2001, when the appellant was
transporting aliens who had been apprehended by the Immigration & Naturalization
Service to various locations in a passenger bus. One of the prisoners had been severely
injured while being taken into custody. The county jail refused to accept custody of
that prisoner, who was transported by ambulance to a local hospital, and later
determined to have sustained a broken neck. When the appellant arrived at his District
Office with the remaining prisoners, he unplugged the IDENT camera, which is part of
a system used to enter photographs and fingerprints, along with personal biographical
data, into a database, and told his supervisor that the machine was not functioning. The
AJ found that the appellant intentionally unplugged the IDENT camera to avoid having
to process the aliens through the IDENT system, which would have required him to
remain at the District Office for a minimum of two additional hours. The AJ sustained
all 3 charges and found that the removal penalty was within the bounds of
reasonableness.
In his initial filing, the appellant had alleged that his removal was the result of
reprisal for his whistleblowing activity, and identified his March 26, 2001 memorandum
to his District Director regarding the events of the previous day as his protected
disclosure. The AJ advised him that this document did appear to contain any
disclosures protected by 5 U.S.C. § 2302(b)(8), and ordered the appellant to submit
additional information on this issue. In his response, the appellant asserted that the
memorandum was “a disclosure of information that he had reason to believe was a
violation of law.” The AJ then issued an order advising the parties that she was not
accepting the whistleblower claim as an affirmative defense.
Holdings: The Board granted the appellant’s PFR, but affirmed the initial decision
as modified, still sustaining the appellant’s removal:
1. The Board found that the AJ properly sustained all 3 charges of misconduct
against the appellant.
2. Neither the AJ’s order nor the initial decision explained why the AJ decided not
to accept the appellant’s whistleblowing claim as an affirmative defense; nor did
the AJ cite any authority in support of this determination. This was error.
Nevertheless, the Board examined the March 26, 2001 memorandum and concluded
that it does not contain any information that the appellant could have reasonably
believed evidenced a violation of law or any other type of misconduct identified in
4
5 U.S.C. § 2302(b)(8). Even if the memorandum had revealed such misconduct, it
would not qualify as a protected disclosure because the record demonstrates that
the appellant wrote it in the normal course of his duties.
3. The Board agreed with the AJ’s determination that the removal penalty was
within the bounds of reasonableness.
► Appellant: Gary Dilorenzo
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 29
Docket Number: AT-1221-06-0015-B-1
Issuance Date: February 6, 2008
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Clear and Convincing Evidence
The appellant petitioned for review of a remand initial decision that denied his
request for corrective action in this IRA appeal. The agency removed the appellant
from his Respiratory Therapist (RT) position during his probationary period. The
appellant alleged that the action was taken in reprisal for his whistleblowing,
specifically for telling his supervisors that other RTs were not properly administering
medication, causing patients to receive less medication than ordered. Following a
hearing, the AJ found that the appellant had established jurisdiction over his appeal, but
that the agency had shown by clear and convincing evidence that it would have
terminated the appellant absent his whistleblowing. Specifically, the AJ found that the
agency terminated the appellant because his supervisor lost confidence in the
appellant’s truthfulness, the appellant had performed nursing duties outside of his job
description, and other RTs were not comfortable in the appellant’s presence because he
was not a team player.
A majority of the Board denied the appellant’s PFR. Member Sapin issued a
dissenting opinion explaining why she believed the agency did not establish by clear
and convincing evidence that it would have terminated the appellant’s employment in
the absence of his whistleblowing. She found the strength of the agency’s evidence in
support of its action to be “extremely weak,” noting that the supervisor’s belief that the
appellant had lied was based on hearsay, and that the supervisor did not ask those with
direct knowledge what was said. Ms. Sapin also stated that she found no evidence that
the appellant ever performed nursing or other duties except those that were appropriate
for an RT. She found that the evidence showed a strong motive to retaliate, stating that
one supervisor’s testimony came “very close to saying that it was the appellant’s
whistleblowing that made the RTs feel uncomfortable.” She also cited deposition
testimony indicating that the appellant’s whistleblowing contributed to the same
supervisor’s efforts to have the appellant terminated.
5
► Appellant: Don A. Mynard
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 23
Docket Number: DA-0831-06-0436-A-1
Issuance Date: January 31, 2008
Action Type: Attorney Fee Request
Attorney Fees
- Prevailing Party
The appellant petitioned for review of an addendum initial decision dismissing his
motion for attorney fees relating to the merits phase of his retirement appeal as
untimely filed, and denying his motion for attorney fees relating to the compliance
phase of his appeal on the basis that the appellant’s petition for enforcement (PFE) did
not result in the issuance of an enforceable judgment, as required by Buckhannnon
Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources,
532 U.S. 598 (2001).
In the merits case, the Board’s initial decision determined that the appellant
established that his failure to make a pre-separation deposit for his post-1956 military
service was due to administrative errors committed by his former employing agency,
and ordered OPM to set a time limit during which he could make the appropriate
deposit. About six weeks after this initial decision became the Board’s final decision,
the appellant filed a PFE alleging that OPM had not contacted him or his attorney
concerning the computation of his deposit or the amount of time he would have to make
the deposit. OPM responded that it was awaiting a response from the Defense Finance
and Accounting Service regarding the appellant’s military pay. OPM later notified the
appellant of the amount of the deposit due and afforded him an opportunity to notify
OPM of his election regarding the deposit. Based on this action, the AJ dismissed the
compliance action as moot.
Holdings: A majority of the Board, Chairman McPhie dissenting, affirmed the
AJ’s dismissal of the attorney fees motion on the merits action as untimely filed
without good cause shown, but vacated the initial decision as to the attorney fees
motion on the compliance action, and remanded the case to the regional office for
further adjudication:
1.
In ruling that a motion for attorney fees could not be granted for the compliance
proceeding because no enforceable judgment was issued in that proceeding, the AJ
relied on two cases, Buckhannon, and Mulero-Echevarria v. Office of Personnel
Management, 93 M.S.P.R. 154 (2002). The Board found, however, that neither it
nor its reviewing court has issued a precedential decision that specifically
addresses the issue in this case, i.e., whether, for the purposes of awarding attorney
fees for the compliance phase of a Board appeal, Buckhannon applies to preclude
such an award where the appellant’s compliance efforts do not result in an
enforceable order or a Board-approved settlement agreement that materially alters
the legal relationship of the parties.
6
2. The Board’s oversight of the parties’ compliance efforts provides the PFE
process with sufficient Board imprimatur to allow an appellant to qualify as a
“prevailing party” under 5 U.S.C. § 7701(g)(1), even in the absence of a Board
order finding the agency in concompliance or an agreement executed by the parties
to settle compliance matters.
In his dissent, Chairman McPhie stated that he would have found good cause for
the untimely filing of the attorney fees motion on the merits case. On the motion for
attorney fees in the compliance proceeding, he agreed with the majority’s view that
Buckhannon does not preclude an award of attorney fees that is dismissed as moot
without issuance of an enforceable judgment or a Board-approved settlement of the
compliance issues. In his case, however, he would have found that the relief received
by the appellant was not causally related to the initiation of compliance proceedings
before the Board. The Chairman concluded in this regard that OPM was already in the
process of complying with the Board’s order when the appellant filed his petition for
enforcement.
► Appellant: Diane S. Jaussaud
Agency: Department of the Navy
Decision Number: 2008 MSPB 22
Docket Number: SF-0752-05-0140-A-1
Issuance Date: January 31, 2008
Attorney Fees
- Prevailing Party
A majority of the Board denied the agency’s petition for review of an initial
decision that partially granted the appellant’s motion for attorney fees in a compliance
proceeding, ordering the agency to pay $7,339.80 in fees. In a separate concurring
opinion, Chairman McPhie explained why he believed the appellant was a prevailing
party in the compliance proceeding.
► Appellant: Austin H. Brown
Agency: Department of the Army
Decision Number: 2008 MSPB 24
Docket Number: DC-0752-06-0697-I-2
Issuance Date: January 31, 2008
Appeal Type: Adverse Action by Agency
Action Type: Removal
Settlement
- Validity
The appellant petitioned for review of an April 2007 initial decision that dismissed
his appeal of a removal action as settled. The appellant asserts that the settlement
agreement entered into the record for enforcement was not the settlement agreement he
signed. Specifically, he alleges that someone replaced the first two pages of the
settlement agreement he signed with two pages containing different terms, but left the
original signature page intact. He further alleges that his attorney and the agency
7
representative ignored his prompt and repeated requests for a copy of the fully executed
settlement agreement and that he first obtained a copy of the agreement just 5 days
before filing his petition for review.
Holdings: The Board granted the PFR, vacated the initial decision, and remanded
the appeal for further adjudication:
1. The Board found that the appellant’s discovery of new and material evidence—
the fully executed agreement he obtained 5 days before filing his PFR—provided
good cause for his delay in filing the petition.
2. The appellant has made unrebutted allegations of fact that the settlement
agreement on record is either a forgery or is invalid on the basis that the parties
did not agree to the same terms. His allegations are to some extent corroborated
by the agreement in the record, which contains internal inconsistencies. First, the
text of the second page of the agreement does not flow logically or grammatically
onto the signature page that follows it. Second, the text on the signature page is
smaller and less distinct than the text on the other pages. Third, the facsimile
transmission data in the top margin of the pages of the settlement agreement
indicates that the signature page was faxed three times while the other pages of the
agreement were faxed only twice.
► Appellant: Kent D. Kluge
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 26
Docket Number: DA-844E-07-0325-I-1
Issuance Date: January 31, 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 he was not entitled to disability retirement benefits. A majority of
the Board denied the PFR. Member Sapin dissented. She would have found that the
evidence confirms that the appellant suffers from heart problems, bleeding ulcers, first
stage emphysema, Reiter’s Syndrome, migraines, colon problems, uncontrollable
diarrhea, stomach pains, major stress and depression, biplolar disorder, psychiatric
problems, and panic attachs. She also cited evidence that the Social Security
Administration approved disability benefits for the same conditions, effective
September 1, 2006, which is prior to the appellant’s last day in a pay status. She also
cited evidence that the appellant does not handle his own financial affairs, and that he
has engaged in multiple suicide attempts and had 12 mental hospital admissions.
8
► Appellant: Carolyn Z. Dodd
Agency: Office of Personnel Management
Intervenor: Karen Dodd
Decision Number: 2008 MSPB 27
Docket Number: AT-0831-07-0410-I-1
Issuance Date: February 1, 2008
Retirement
- Survivor Annuity
The appellant petitioned for review of an initial decision that sustained OPM’s
reconsideration decision regarding the calculation of her former spouse survivor
annuity. The appellant and her former husband, Eric Dodd, were both employed by the
federal government. During their divorce proceedings, they entered into a separation
agreement, which was incorporated into the final decree of dissolution, that provided,
inter alia, that “each party shall retain each other as a listed survivor on their annuity,
which states that the survivor listed shall rec[ei]ve 55% of the pension upon the death
of the pension owner, but only 25% upon remarriage.” Mr. Dodd subsequently married
Karen Dodd and, upon his retirement in 2006, elected a maximum survivor annuity for
Karen Dodd. The appellant contended that she was still entitled to retain her 55%
survivor annuity, but OPM determined that she was entitled to only 25% of the
maximum survivor annuity benefit. On appeal, the AJ concluded that the separation
agreement was ambiguous, but that it was clear that the appellant was entitled to at least
a 25% survivor annuity, and affirmed OPM’s reconsideration decision.
Holding: The Board agreed that the separation agreement was ambiguous, being
subject to 3 reasonable interpretations: (1) that the appellant’s survivor annuity
would be reduced to 25% upon Mr. Dodd’s remarriage so that he could provide a
partial survivor annuity for his current spouse; (2) that the appellant’s survivor
annuity would be reduced to 25% upon her remarriage because her income would
be increased by her new spouse’s earnings; or (3) that the appellant’s survivor
annuity would be reduced to 25% upon either party’s remarriage. The Board
determined that it need not resolve the ambiguity because the result will be the
same no matter which way the agreement is interpreting, because of the effect of
5 C.F.R. § 838.921(d). The Board determined that the effect of subsections (1) and
(3) of paragraph (d) was that the particular portion of a court order providing for
a reduction in the former spouse’s survivor annuity upon the employee’s or
annuitant’s remarriage will not be processed, and the former spouse will receive an
unreduced survivor annuity. Accordingly, the Board ordered OPM to correct its
records to reflect that the appellant’s entitlement to a survivor annuity of 55% has
not be affected by Mr. Dodd’s remarriage or election of survivor annuity benefits
for his subsequent spouse.
9
► Appellant: Mattie M. Settlers
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 28
Docket Number: SF-0831-07-0185-C-1
Issuance Date: February 6, 2008
Retirement
- Survivor Annuity
- Annuity Overpayment
The appellant petitioned for review of an initial decision that denied her petition
for enforcement (PFE). In the merits proceeding, the Board reversed OPM’s
reconsideration decision denying the appellant’s application for a survivor annuity
based on the federal service of her deceased spouse, and ordered OPM to waive the
statutory time limit and accept the request to elect a survivor annuity. With her PFE,
the appellant attached a letter from OPM that asserted a claim for $67,614 against Mr.
Settlers’ estate, explaining that the debt was the difference between the annuity paid to
Mr. Settlers and the reduced annuity that he should have received to provide the
appellant with a survivor annuity. The appellant asked the Board to order OPM to
waive recovery of the overpayment. The AJ issued an order informing the appellant
that two separate issues were involved—the overpayment claim and the compliance
matter—and that the Board might lack jurisdiction to decide the overpayment claim
because the Board only has such jurisdiction when OPM has rendered a final decision.
After receiving information that OPM had submitted an Explanation of Benefits to the
appellant detailing how survivor annuity payments would be made in the future, and
had provided evidence that it made a lump-sum payment and one monthly payment, the
AJ issued an initial decision denying the PFE. The AJ acknowledged that the appellant
disagreed with the amount of the monthly survivor annuity, but stated that the appellant
could ask OPM to reconsider the payment amount, and could file a new appeal if she
disagreed with OPM’s final decision as to that matter.
Holding: Although the Board generally lacks jurisdiction to hear an appeal of a
retirement matter that has not been addressed in an OPM reconsideration decision,
it has recognized an exception where OPM has failed to render a decision on the
matter in issue. That exception applies in this case. The appellant has asked OPM
to waive repayment of the overpayment amount, the issues of waiver and
compliance are intertwined, and the record indicates that OPM does not intend to
issue a decision on the appellant’s request. Accordingly, the Board vacated the
initial decision and remanded the matter to the regional office for further
proceedings on the merits of the appellant’s overpayment claim.
10
► Appellant: Floyd G. Jordan
Agency: Office of Personnel Management
Decision Number: 2008 MSPB 31
Docket Number: CH-0831-07-0398-I-1
Issuance Date: February 11, 2008
Retirement
- Discontinued Service Retirement
Hearings
- Right to a Hearing
Discrimination
The appellant petitioned for review of an initial decision that affirmed OPM’s
denial of his application for a discontinued service retirement annuity. The appellant
separated from his position with the Postal Service in 1994, pursuant to a settlement
agreement that resolved his appeal of his removal. On appeal to the Board’s regional
office, the AJ determined that the appellant did not qualify for discontinued service
retirement under 5 U.S.C. § 8336(d).
Holdings: The Board granted the appellant’s PFR, but affirmed the initial decision
as modified, still affirming OPM’s denial of the appellant’s application for a
discontinued service retirement annuity:
1. It was error for the AJ to refuse to adjudicate the appellant’s claims of age and
race discrimination and to fail to give him mixed-case appeal rights. Under
5 U.S.C. § 7702, the Board must render a decision on allegations of discrimination
raised in conjunction with otherwise appealable actions, and OPM’s decision
denying a discontinued service retirement was appealable to the Board.
2. As a matter of law, the retirement statutes allow OPM no discretion in
determining an individual’s entitlement to an annuity. If OPM correctly applied
the criteria set forth in 5 U.S.C. § 8336(d), there can be no improper
discrimination.
3. The appellant does not meet the requirements for discontinued service
retirement under § 8336(d)(1), which requires that the applicant’s separation from
the service have been involuntary. Both the Board and its reviewing court have
previously upheld the validity of the settlement agreement reached in the
appellant’s prior removal appeal in which he voluntarily resigned from the Postal
Service in 1994. Under the doctrine of collateral estoppel, that issue cannot be
relitigated in this appeal.
4. The appellant does not meet the requirements for discontinued service
retirement set forth in § 8336(d)(2). The fact that the Postal Service may have
offered an early-out retirement to specific employees in 1992 is irrelevant to the
current appeal because he has not established that an early-out retirement was
offered to him at the time he separated from service in 1994.
5. The AJ did not abuse her discretion by denying the appellant’s request for an
in-person hearing because the appeal did not present any genuine issues of
11
material fact and the appellant did not show good cause for his failure to appear
for the scheduled telephonic hearing on three separate occasions.
► Appellant: Dennis J. Leeds
Agency: United States Postal Service
Decision Number: 2008 MSPB 30
Docket Number: CH-0752-07-0155-X-1
Issuance Date: February 8, 2008
Action Type: Constructive Adverse Action
Compliance
This case is before the Board on the AJ’s Recommendation finding that the agency
was in partial noncompliance with its obligations under a written settlement agreement
that resolved this appeal. The appellant’s petition for enforcement alleged that the
agency had failed to provide back pay or reinstate his health benefits, dental insurance,
and flexible spending account. The AJ found that the agreement did not address the
appellant’s flexible spending account and dental insurance plan. The AJ further found,
however, that the agency had not shown that it had completed the process of processing
the appellant’s restoration of health benefits and back pay award, and therefore was not
in compliance with the parties’ settlement agreement.
Holdings:
1. The Board denied the appellant’s PFE regarding the back pay issue because the
appellant had not submitted a PS Form 8038 to the agency, which was necessary to
the agency complying with its obligations.
2. With regard to health benefits issue, the Board found that the terms of
settlement agreement itself were sufficient to require the agency to take action;
subsidiary forms from the appellant such as the PS 8038 or an SF 2810 were not
required. The Board ordered the agency to reinstate the appellant’s health
insurance to the date on which it was cancelled.
► Appellant: Katina Powe
Agency: United States Postal Service
Decision Number: 2008 MSPB 32
Docket Number: CH-0752-06-0609-C-1
Issuance Date: February 12, 2008
Action Type: Reduction in Grade/Rank/Pay
Compliance
The appellant petitioned for review of an initial decision that dismissed her
petition for enforcement. In the appeal on the merits, the Board reversed the agency’s
action reducing the appellant’s grade and pay, and ordered the agency to provide her
with the back pay and benefits she would have received in the absence of the demotion
action.
12
Holdings: The Board granted the appellant’s PFR, reversed the compliance initial
decision, found the agency in non-compliance with the underlying decision on the
merits, and ordered the agency to establish that it has provided the appellant with
the back pay and benefits to which she is entitled:
1. Although the agency stated its intention to pay the appellant a 3% Pay for
Performance salary increase retroactive to January 2007, it still has not done so,
more than a full year since the Board’s decision ordering back pay and benefits
became final. The Board therefore found the agency in non-compliance on this
matter.
2. The appellant continues to assert, without rebuttal, that she has not received any
back pay because the agency has instructed her not to cash the back pay checks it
tendered to her as a result of its concern that the checks would constitute an
overpayment of back pay to which she is entitled. The initial decision on the merits
instructed the agency that, if there was a dispute as to the amount of back pay, the
agency was to pay the appellant the undisputed amount.
3. As to the calculation of the proper amount of back pay, the agency has failed to
submit the information and evidence required under 5 C.F.R. § 1201.183(a)(1). If
the agency intends to assert that the appellant is not entitled to back pay for any
part of the duration of its unjustified or unwarranted personnel action, it must
submit concrete and positive evidence that establishes that the appellant was not
ready, willing, and able to perform the duties of her Supervisor position for that
period of time. If the agency intends to assert that the appellant is not entitled to
back pay for periods during which the appellant received OWCP wage replacement
benefits, it will need to submit concrete and positive evidence that establishes that
the appellant’s receipt of those benefits was not caused by nor related to its
unjustified or unwarranted personnel action.
► Appellant: Michael A. Endres
Agency: Department of Veterans Affairs
Decision Number: 2008 MSPB 34
Docket Number: DE-3443-06-0055-X-1
Issuance Date: February 14, 2008
Compliance
In a recent decision, 2007 MSPB 301, 107 M.S.P.R. 455, the Board found the
agency in continued non-compliance with a final Board decision that ordered the
agency to reconstruct the selection process for a particular vacancy, and otherwise
comply with the requirements of 5 U.S.C. §§ 3317 and 3318.
Holding: The Board found that the agency’s selection process is now consistent
with the requirements of law and dismissed the appellant’s petition for
enforcement.
13
► Appellant: David Dean
Agency: Consumer Product Safety Commission
Decision Number: 2008 MSPB 33
Docket Number: AT-3443-07-0398-I-1
Issuance Date: February 14, 2008
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his VEOA
claim for lack of jurisdiction. He had applied for a number of Product Safety
Investigator positions, which were advertised in numerous locations under both merit
promotion and competitive vacancy announcements. The appellant’s name was placed
on a list of candidates for various vacancies. In some instances, he was not selected; in
others, the vacancy announcements were cancelled and re-announced. The AJ
dismissed the appeal for lack of Board jurisdiction on the basis that the appellant did
not non-frivolously allege that his non-selection violated a statute or regulation related
to veterans’ preference.
Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its
own motion to vacate the initial decision, and deny the appellant’s request for
corrective action on the merits:
1. The only jurisdictional issue in question is whether the appellant alleged a
violation of his rights under a statute or regulation relating to veterans’
preference. The Board will liberally construe an appellant’s claims of violation of
his veterans’ preference. Applying that liberal standard here, the Board found
that the appellant alleged a violation of his rights under a statute or regulation
relating to veterans’ preference by arguing that the agency issued multiple job
announcements and notifications to confuse him based on his veteran status, and to
deny him his rights as a preference-eligible veteran.
2. On the merits, the Board noted that it has held that nothing prevents an agency
from soliciting applications from the general public and from merit promotion
applicants simultaneously, and that an individual is not entitled to veterans’
preference points under merit promotion procedures. The Board has also held that
an agency does not violate a preference-eligible veterans’ rights under the VEOA
when it cancels a vacancy announcement. The Board found no violation of the
appellant’s rights as a preference-eligible veteran. | 33,683 | |
Case Report - January 4, 2008 | 01-04-2008 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_4_2008_307044.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_4_2008_307044.pdf | CASE REPORT DATE: January 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
► Appellant: Thomas S. Evans
Agency: Department of Homeland Security
Decision Number: 2007 MSPB 297
Docket Number: AT-0752-05-0844-I-1
Issuance Date: December 11, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Discrimination
- Physical/Mental Disability
The appellant petitioned for review of an initial decision that affirmed his removal
for making intentional and material false statements on a pre-employment form, which
asked him to list any “current medication” he was taking. The appellant listed only one
medication, Prilosec. When the appellant was later subjected to random drug testing, he
informed his supervisor that he was taking Adderal, a prescription drug that contains
amphetamines, for treatment of attention deficit disorder. After a hearing, the AJ
sustained the charge. Although the AJ acknowledged that the appellant was not taking
Adderal at the time that he completed the SF-93, he found that the appellant had taken
the drug in the past for his condition, and that his nonuse at the time he completed the
SF-93 was temporary, and concluded that the response was false. The AJ found that the
appellant did not prove his affirmative defenses of disability discrimination and
violation of due process, and that the removal penalty was reasonable.
Holdings: A majority of the Board, Chairman McPhie dissenting, reversed the
initial decision and ordered the agency to reinstate the appellant to employment:
1. By asking the appellant to disclose the medications he was taking prior to
extending a job offer to him, the agency violated 42 U.S.C. § 12111(d) and 29
C.F.R. § 1630.13(a), and this violation constitutes discrimination based on
disability.
2
a. Under 42 U.S.C. § 12112(d)(2) and (3), an employer “shall not conduct a
medical examination or make inquiries of a job applicant as to whether
such applicant is an individual with a disability or as to the nature or
severity of such disability” unless the employer has first made an offer of
employment to the applicant. A medical examination or inquiry that falls
within the scope of 42 U.S.C. § 12112(d)(2), and that precedes any offer of
employment, violates 42 U.S.C. § 12112(a), (d)(1). It was uncontested that
the agency did not extend the appellant a job offer before he completed the
SF-93. The EEOC has promulgated regulations, 29 C.F.R. §§ 1630.13,
1630.14, and issued guidance on the subject.
b. Because the Board defers to the EEOC with respect to issues of substantive
discrimination law, it was inappropriate for the AJ to dismiss EEOC
guidelines interpreting discrimination law as “just a notice.”
c. The 1997 Guidance makes clear that requests that applicants list all their
“current medications” are not permitted at the pre-offer stage. This
guidance also supports the proposition that, to the extent an employer’s
request for information about medications used includes psychiatric
medications (such as the medication the appellant was charged with failing
to disclose), the request may not be made prior to a job offer.
d. Both courts and the EEOC have found that requests that applicants disclose
their medications prior to a job offer violate statutory and regulatory
prohibitions on disability discrimination.
e. Although 42 U.S.C. § 12112(d) provides a “business necessity” exception to
certain limits on disability-related inquiries, that exception does not apply
at the pre-offer stage.
2. A response to an agency’s question that is prohibited to the extent that it would
elicit disability-related information from the applicant on a pre-offer-of
employment form, cannot form the basis of a charge of falsification. For that
reason, the agency’s charge cannot be sustained.
a.
The Board found the decisions in Downs v. Massachusetts Bay
Transportation Authority, 13 F. Supp. 2d 130 (D. Mass. 1998), and other
courts persuasive. Not only do they specifically address matters the same
as or very similar to those at issue here, the reasoning is consistent with the
purpose of the part 1630 provisions the agency here violated.
b. The Board defers to the EEOC, which has taken the “position that the plain
language of the [ADA] explicitly protects individuals with and without
disabilities from improper disability-related inquiries and medical
examinations.” The Board therefore found it unnecessary to determine
whether the appellant is a “qualified individual with a disability.”
c. The Supreme Court decisions on which the dissent relies do not involve the
ADA or otherwise address an issue concerning disability discrimination.
To permit the general principles of these cases to negate the specific
statutory mandates and prohibitions of the ADA would effectively thwart
3
the important policies underlying the ADA that Congress sought to
promote.
In his dissent, Chairman McPhie first noted that the appellant does not claim that
his removal for falsification amounted to a failure to accommodate his disability, or that
it amounted to disparate treatment on account of that disability. He also noted that the
agency did not violate the plain language of 42 U.S.C. § 12112(d) or 29 C.F.R.
§ 1630.13, as the agency did not ask the appellant whether he was an individual with a
disability, and it did not ask him for information about the nature of severity of any
such disability. The Chairman assumed, for purposes of analysis, that the agency
violated the EEOC guidance, as the majority found, but stated that the ultimate issue is
whether disciplining an employee for falsifying a response to a question that violates
the EEOC’s 1995 guidance promotes the efficiency of the service under 5 U.S.C.
§ 7513. While the policies underlying the EEOC guidance are important, the Supreme
Court’s decisions in Lachance v. Erickson, 522 U.S. 262 (1998), and Bryson v. United
States, 396 U.S. 64 (1969), stand for the proposition that a federal employee does not
have the right to lie, even as a response to an improper question.
► Appellant: Samuel L. Kinsey
Agency: Department of the Navy
Decision Number: 2007 MSPB 293
Docket Number: DC-1221-07-0491-W-1
Issuance Date: December 10, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Contributing Factor
- Exhaustion of Remedy
- Protected Disclosure
The appellant, an employee at the Norfolk Naval Shipyard, volunteered in 2005 for
temporary duty in Kuwait in support of Operation Iraqi Freedom. While assigned there,
he heard rumors that two of his co-workers and his temporary duty supervisor were
involved in a scheme to defraud the government by claiming more on their per diem
than they actually spent for off-base housing. The appellant visited the apartment in
question while off duty, and later asked one of its occupants why he had moved out of a
luxury hotel to stay in the apartment. The co-worker responded that he was making an
extra $5,000 per month on his per diem, and he asked the appellant not to tell anyone.
After he subsequently became involved in a physical confrontation with the co-worker,
the appellant requested to return from his assignment early because he felt threatened.
When he returned from Kuwait, the appellant reported to agency officials and
investigative units that he had been assaulted by the co-worker and that his supervisor
and co-workers were involved in a travel fraud scheme. Subsequently, the appellant’s
request to return to temporary duty in Kuwait was denied because the new supervisor
indicated that his return would be bad for morale.
The appellant filed a complaint of retaliation for whistleblowing with OSC, and
after receiving correspondence from OSC informing him that it was terminating its
4
investigation, he filed an IRA appeal with the Board. In her acknowledgment order and
a show-cause order, the AJ advised the appellant that the scope of an IRA appeal is
limited to those disclosures and personnel actions raised in the employee’s complaint to
OSC, and that he had not shown that the allegations raised in his appeal had been raised
before OSC. The AJ directed the appellant to provide evidence in the form of
correspondence with OSC showing the issues raised in his complaint; she also directed
him to provide specifics as to the disclosures he had made. The appellant did not
respond to either the acknowledgment order or the show-cause order. In her initial
decision, the AJ dismissed the appeal for lack of jurisdiction, finding that the appellant
failed to show that he had exhausted his administrative remedy with OSC. The AJ
further found that the appellant failed to show that he had a reasonable belief that his
disclosures evidence a violation of law, rule, or regulation, or any of the other
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Finally, the AJ found that
the appellant failed to show that his alleged whistleblowing disclosures were a
contributing factor in the agency’s decision denying his request to return to Kuwait.
In his petition for review, the appellant asserted that he did not have an opportunity
to respond to the AJ’s order because he was TDY in Guam without access to his
personal files, and the evidence he needed to proceed with his case is controlled by the
NCIS. He also submitted as new evidence OSC’s final decision letter.
Holdings: The Board vacated the initial decision and remanded the appeal to the
regional office for further adjudication for the following reasons:
1. Based on the record below, the AJ properly found that the appellant failed to
make a nonfrivolous allegation that he exhausted his remedies before OSC because
he did not identify the protected disclosures in his OSC complaint with sufficient
specificity. The appellant’s new evidence, OSC’s final decision letter, satisfies this
burden. This evidence constitutes new and material evidence that was unavailable
when the record below closed.
2. Contrary to the AJ’s finding that the appellant’s disclosures were based on mere
rumors, the record shows that the appellant’s allegations of travel fraud were
based on his personal observation of suspicious circumstances, and admissions of
misconduct by one of the participants. Similarly, the appellant’s allegation that a
co-worker assaulted him was clearly based on personal observation of the incident.
3. Regarding the contributing factor issue, the AJ determined that the appellant
failed to make a nonfrivolous allegation that the manager who denied his request to
return to Kuwait had any knowledge of the appellant’s whistleblowing disclosures.
That manager’s affidavit, however, suggests that he was aware of the appellant’s
disclosures when he denied the appellant’s request to return to Kuwait. The
appellant therefore has made a nonfrivolous allegation that his disclosures were a
contributing factor in the agency’s action.
5
► Appellant: Bruce M. Swinford
Agency: Department of Transportation
Decision Number: 2007 MSPB 296
Docket Number: DC-1221-07-0032-W-1
Issuance Date: December 10, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Protected Disclosure
- Contributing Factor
Jurisdiction
- Retirement
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The appellant was a Financial Specialist with the
Federal Highway Administration. In his complaint to OSC, he alleged that he was
placed on a performance improvement plan (PIP), denied the use of sick leave, and
ultimately forced to retire in reprisal for his whistleblowing disclosures. He alleged
that he informed his agency’s Office of Inspector General (OIG) and the FBI that he
was directed to take funds from a state “other than the state specified by law,” and that
the agency violated federal law when it failed to update sliding scale information for
public domain, resulting in incorrect payments to the states, including duplicate
payments “involving millions of dollars.” The AJ dismissed the appeal for lack of
jurisdiction without holding the requested hearing, finding that the appellant failed to
make protected whistleblowing disclosures, and that his retirement was not directly
appealable to the Board because he failed to make any nonfrivolous allegations that his
retirement was involuntary.
Holdings: Although the Board denied the PFR for failure to meet the criteria for
review under 5 C.F.R. § 1201.115, it reopened the appeal on its own motion to
address the IRA jurisdictional analysis and the appellant’s allegation that his
retirement was involuntary. The Board vacated the initial decision and remanded
for further adjudication for the following reasons:
1. The appellant made nonfrivolous allegations that he made protected
whistleblowing disclosures regarding violations of law. The Board noted in this
regard that the agency’s Office of Inspector General regarded the appellant’s
allegations to be sufficiently viable so as to require conducting an investigation
and, ultimately, corrective action.
2. The Board concluded that the appellant made a nonfrivolous allegation that his
protected disclosures were a contributing factor in the agency’s decision to take
several personnel actions, finding that the appellant made nonfrivolous allegations
that his supervisor had knowledge of his alleged protected disclosures.
3. The Board concluded that the appellant made a nonfrivolous allegation that his
retirement was involuntary, noting that the appellant alleged that his supervisor
threatened to abolish his job and “make things difficult” for him if he did not
choose to retire, and placed him on a PIP two weeks after he became eligible to
6
retire. In addition, the appellant averred that he was coerced into retirement
because of financial necessity when he was unable to work because of his health,
and the agency denied his request for sick leave unless he immediately retired.
► Appellant: David M. Vitale
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 300
Docket Number: PH-0752-07-0264-I-1
Issuance Date: December 11, 2007
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Timeliness
Jurisdiction
- Retirement
The appellant petitioned for review of an initial decision that dismissed his appeal
of an allegedly involuntary retirement as untimely filed without good cause shown. The
appellant availed himself of the internal EEO process before filing his appeal with the
Board. The final agency decision was issued January 23, 2007, and the appellant filed
his appeal on February 25, 2007. In a motion to dismiss, the agency asserted that the
appeal was untimely filed by 3 days because the appellant received the final agency
decision on January 23. The AJ issued a show-cause order to the appellant regarding
both timeliness and jurisdiction, but the appellant’s response addressed only the
jurisdictional issue. Based on the written record, and without addressing the issue of
jurisdiction, the AJ dismissed the appeal as untimely filed without good cause shown.
Holdings: Although the Board denied the appellant’s petition for review, it
reopened the appeal on its own motion, vacated the initial decision, and dismissed
the appeal for lack of jurisdiction.
1. The Board could not resolve the timeliness issue because:
a. Proper procedures were not followed in addressing the timeliness issue, in
that the AJ did not inform the appellant of the date that a document
triggering the right to appeal is presumed to have been received. In
addition, the AJ should have ordered the agency as well as the appellant to
submit evidence on the timeliness issue.
b. Neither the show-cause order nor the initial decision addressed the
appellant’s assertion that he received the final agency decision on
January 26, 2007, not January 23, as the agency asserted. If he received
the FAD on January 23, the appeal would have been timely filed.
c. In light of the appellant’s medical impairments, he should have but did not
receive the notice specified in Lacy v. Department of the Navy, 78 M.S.P.R.
434, 437 (1998), for establishing good cause.
d. The appeal need not be remanded for further adjudication of the timeliness
issue, as the record on jurisdiction is fully developed.
7
2. An employee-initiated action such as a retirement is presumed to be voluntary.
A retirement is tantamount to a removal, and is within the Board’s jurisdiction, if
the employee demonstrates that the employer engaged in a course of action that
made working conditions so difficult or unpleasant that a reasonable person in that
employee’s position would have felt compelled to resign or retire. Based on the
totality of the record evidence, the Board found that the appellant failed to
establish that his retirement was involuntary.
► Appellant: Laurence M. Flannery
Agency: Department of State
Decision Number: 2007 MSPB 298
Docket Number: DC-0842-07-0548-I-1
Issuance Date: December 11, 2007
Appeal Type: FERS - Regular Retirement Benefits
Retirement
- Deposits
The appellant petitioned for review of an initial decision sustaining the agency’s
denial of her application to deposit retirement contributions for service performed under
various temporary or intermittent appointments during 1989 through 1997. Prior to the
enactment of section 321 the Foreign Relations Authorization Act (FRAA) of 2002,
Pub. L. No. 107-228, 116 Stat. 1350, 1380-83, service such as the appellant’s could not
be credited toward a FERS annuity. Section 321 permits individuals who were
employed under certain authorities during that time period, and who meet certain
criteria, to receive FERS retirement credit for their service on payment of a deposit
covering that service. Although the appellant appeared to meet the criteria of the
statute, the agency, after obtaining advice from OPM, found that the appellant was not
eligible to make a deposit for her service under OPM interim regulations that specify
that an individual is not eligible to make a deposit for this purpose unless she is an
“employee” or “former employee” whose employment is covered by FERS. The AJ
rejected the appellant’s argument that OPM’s regulations are inconsistent with the
language and purpose of section 321 of the FRAA, and affirmed the agency’s action.
Holdings: The Board reversed the initial decision and ordered the agency to allow
the appellant to make the deposit she seeks to make.
1. The Board found no error in the agency’s position that the appellant’s service
did not qualify as FERS-covered service by an “employee” as defined in 5 U.S.C.
§ 8401(11). Because the appellant has had no service as an “employee,” the
agency’s denial of her application to make a deposit appears to be consistent with
OPM’s regulations.
2. When a statute is silent or ambiguous with respect to the matter at issue, and
when the agency responsible for implementing the statute has promulgated
regulations interpreting the matter, the regulatory interpretation is entitled to
deference if it is based on a permissible construction of the statute. If the entent of
Congress is clear, however, a regulatory provision that is inconsistent with that
intent is not entitled to deference. Nothing in section 321 suggests that its benefits
8
are available only to persons who have performed service as an “employee.”
Instead of using terms such as “employee” or “former employee” to refer to
persons eligible to make deposits, section 321 refers consistently and repeatedly to
those persons as “individuals,” and the Board found nothing in the legislative
history that reflects an intent to limit the provision’s coverage to persons meeting
the definition of “employee” contained in 5 U.S.C. § 8401(11).
3. OPM’s position may be based on the view that, in the absence of any FERS
covered service, obtaining credit for service covered under section 321 would serve
no purpose, as that section only provides the opportunity to obtain FERS
retirement credit to those individuals who subsequently serve in a position covered
by FERS. OPM is correct that obtaining FERS credit for service does not cause
the service to be covered by FERS and, in the absence of any FERS-covered
service, no amount of creditable service can make an individual eligible for a FERS
annuity. But the only issue before the Board is whether the appellant is eligible to
obtain credit for her during by making a deposition under section 321 of the
FRAA.
► Appellant: Timothy D. McFarland
Agency: Department of Transportation
Decision Number: 2007 MSPB 299
Docket Number: PH-0752-06-0028-I-3
Issuance Date: December 11, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Back Pay
Both parties petitioned for review of an initial decision that mitigated the
appellant’s punishment for misuse of government-leased property and failure to follow
instructions from a 90-day suspension to a 30-day suspension, and ordered the agency
to provide the appellant with back pay. In its PFR, the agency argues that the AJ erred
by awarding back pay to the appellant because the Back Pay Act, 5 U.S.C. § 5596, does
not apply to the Federal Aviation Administration, an issue that was not raised below.
Holdings: The Board granted the agency’s PFR, denied the appellant’s cross-PFR,
and affirmed the initial decision as modified.
1. Although the Board will not ordinarily entertain an argument that is raised for
the first time on petition for review, unless it is based on new and material
evidence, it did so here because ordering relief under the Back Pay Act was clearly
erroneous, and the procedural posture of the case precluded an opportunity to
litigate the issue below.
2. The Back Pay Act is a waiver of sovereign immunity, and the Board may not
order the sovereign to expend funds from the public fisc without an explicit waiver
of the sovereign’s immunity. Although the Back Pay Act generally provides such a
waiver, 49 U.S.C. § 40122(g)(2) has the effect of making certain provisions of Title
5 of the U.S. Code—including the Back Pay Act—inapplicable to FAA employees.
Although the Administrator of the FAA has the authority adopt the substance of
9
any portion of title 5, the Back Pay Act has not been made applicable to FAA
employees. Accordingly, the initial decision is vacated only insofar as it ordered a
back pay award; the remainder of the initial decision, including the mitigation to a
30-day suspension, is unchanged.
► Appellant: Lawson A. Rose
Agency: United States Postal Service
Decision Number: 2007 MSPB 294
Docket Number: CH-0752-07-0231-I-1
Issuance Date: December 10, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Threats
The appellant petitioned for review of an initial decision that affirmed his removal
on a charge of Unacceptable Conduct/Violent and Threatening Behavior Towards
Co-Workers. The charge related to an incident in which the appellant, a Mail Handler,
went to the attendance control office and allegedly shouted at 2 clerks, “Give me my
[time] card before I blow your brains out.” After the clerks informed the appellant that
his card was not in the office, he left, then returned about 10 minutes later and allegedly
acted as though he was holding a machine gun/firearm and making machine gun sounds
while pointing at the 2 clerks. He then allegedly laughed and walked away. After a
hearing, the AJ found that the agency proved its charge by preponderant evidence, that
the action promotes the efficiency of the service, and that the removal penalty was
reasonable.
Holding: The Board denied the appellant’s PFR, but reopened on its own motion
to correct an error of law. The AJ incorrectly identified the charge as “making
statements that caused anxiety and disruption in the workplace,” and stated that
intent was not an element of the charge. When an agency’s charge is labeled as a
threat, as it was here, the agency must establish the elements of a threat charge as
set forth in Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986).
After analyzing the evidence under the Metz factors, the Board concluded that the
agency proved its threat charge by preponderant evidence and that removal was a
reasonable penalty.
10
► Appellant: Judith J. Hosford
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 295
Docket Number: AT-0845-07-0053-I-1
Issuance Date: December 10, 2007
Appeal Type: FERS - Collection of Overpayment
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
- Disability Retirement
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision, which found that the appellant received an overpayment of
annuity benefits. Prior to determining her regular annuity benefit, OPM paid the
appellant an estimated annuity benefit. OPM subsequently informed the appellant that
it had overpaid her in the amount of $929.58 for this period. The reason for the
overpayment was the method used by OPM to calculate the appellant’s annuity.
Because it determined that the appellant was eligible for immediate, optional
retirement, OPM computed the appellant’s disability retirement annuity benefits under
the formula for an optional retirement under 5 U.S.C. § 8452(c)(2). In making this
determination, OPM credited the appellant with approximately 7 years of service under
the Civil Service Retirement System, despite the fact that she had received a refund of
her retirement contributions for this service. On appeal to the Board, the AJ found that
OPM had correctly calculated the appellant’s retirement annuity, and that she had
received the overpayment as calculated by OPM.
In her PFR, the appellant argued that she is entitled to receive the FERS Retiree
Annuity Supplement for the period between the effective date of her retirement and the
date on which she began receiving Social Security benefits, and that here repayment
should be reduced by the amount of that supplement.
Holdings: Although the Board denied the appellant’s PFR, it reopened the appeal
on its own motion and ordered OPM to issue a new final decision.
1. The FERS Retiree Annuity Supplement is not available to employees, such as the
appellant, who are receiving a disability retirement annuity. OPM’s calculation of
her retirement annuity was therefore correct.
2. In her pleadings and testimony below, the appellant claimed that her disability
retirement was involuntary because it was based upon misinformation provided by
her employing agency and OPM. Specifically, the appellant averred that she would
not have filed for disability retirement if she had been informed that she qualified
for an immediate optional retirement. The Board agreed, and ordered OPM to
convert the appellant’s retirement from a disability retirement to an immediate
optional retirement.
11
► Appellant: Gary R. Alexander
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 292
Docket Number: DA-0845-07-0079-I-1
Issuance Date: December 6, 2007
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
reconsideration decision that found that the appellant had been overpaid $53,766.89,
and must repay that sum. In requesting reconsideration of OPM’s initial finding in this
regard, the appellant did not check the box on the form requesting waiver. He did,
however, state, “If I have to repay the overpayment my family will be faced with the
choice of overpayment [sic] deduction or dropping my life insurance protection.” In its
reconsideration decision, OPM did not address the issue of waiver. On appeal to the
Board, the appellant complained that the reconsideration decision “failed to “consider
my financial situation.” In a subsequent pleading, he stated that OPM did not consider
his “current state of health and ability to repay.” In his final submission, the appellant
stated that OPM denied his request for waiver “because I made an ‘administrative’
mistake in not checking a box and not using the word wavier [sic] in my appeal to
OPM.” The AJ affirmed the reconsideration decision, finding that the Board lacks
jurisdiction over the waiver issue because the appellant did not seek waiver from OPM.
In his petition for review, the appellant asserted that the AJ erred in failing to address
his request for waiver.
A majority of the Board denied the appellant’s petition for review. Member Sapin
dissented. She recognized that, as a general rule, the Board lacks jurisdiction over an
issue that OPM does not address in a reconsideration decision, but stated that the Board
has recognized a limited exception where an appellant raises an issue in a
reconsideration request and OPM fails to address it despite repeated request. Here, she
would have found that the appellant had only one opportunity to raise the waiver issue
before OPM and did so, and alleged 3 times in his Board appeal that OPM erroneously
failed to address the request.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any precedential
decisions reviewing MSPB decisions since the last Case Report. The Court has,
however, issued nonprecedential decisions reviewing MSPB decisions, which can be
found at the Court’s website. | 29,623 | |
Case Report - December 10, 2007 | 12-10-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_10_2007_303137.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_10_2007_303137.pdf | CASE REPORT DATE: December 10, 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: Harry K. Armstrong
Agency: Department of Justice
Decision Number: 2007 MSPB 280
Docket Number: PH-1221-06-0055-W-2
Issuance Date: November 30, 2007
Appeal Type: Individual Right of Action (IRA)
Action Type: IRA "1221" Non-appealable Action
Whistleblower Protection Act
- Protected Disclosure
- Corrective Action
Interim Relief
Both parties petitioned for review of an initial decision that found that the agency
retaliated against the appellant for protected whistleblowing disclosures. The appellant,
a GS-12 Program Analyst with the agency’s Office of the Inspector General, answered
questions in an investigation involving Polk, his second-level supervisor, who was later
disciplined for wrongdoing. Later, the appellant’s attempts to be promoted to the
GS-13 level were unsuccessful, and he filed a claim with OSC alleging that his non
promotion and the denial of 8 hours of compensatory time, were in reprisal for
disclosures made during the Polk investigation. After receiving notice that OSC had
completed its investigation, the appellant filed a timely IRA appeal.
In finding that the agency retaliated against the appellant for making protected
disclosures, the AJ imposed the sanction of barring the agency from asserting the
affirmative defense that it would have taken the 2 personnel actions in question in the
absence of the protected disclosures. The AJ ordered interim relief pending the
outcome of the case on PFR, but declined to refer the matter to OSC for further
investigation.
2
Holdings:
1. The AJ erred in ordering interim relief in this appeal. The purpose of interim
relief is not to make the appellant whole at the interim relief stage of the
proceedings, but rather to protect the appellant from hardship during the
pendency of his appeal if he prevails in the initial decision. By the time the initial
decision was issued, the appellant had resigned his position and transferred to
another federal agency, and had not alleged that his resignation was involuntary.
Under these circumstances, the Board lacks the authority to order the appellant’s
reinstatement, on either a permanent or interim basis.
2. The appellant met his burden of proof to establish whistleblowing reprisal with
respect to the agency’s failure to promote him. The Board agreed with the AJ’s
conclusion that 3 of 9 alleged whistleblowing disclosures were protected; 2
evidenced a reasonable belief of an abuse of authority, and 1 evidenced a
reasonable belief of a violation of law, rule, or regulation.
3. The appellant established by preponderant evidence that these disclosures were
a contributing factor in the agency’s decision not to promote him to the GS-13
level. The Board agreed with the AJ that Polk was aware of the appellant’s
disclosures, and that the appellant met the knowledge/timing test with respect to
the decision not to promote him.
4. The appellant failed to show that his protected disclosures were a contributing
factor in the denial of compensatory time in January 2005, as it was too remote in
time, and Polk had already left the work unit by this time.
5. The AJ did not abuse his discretion in barring the agency from asserting its
affirmative defense as a sanction for its failure to comply with the AJ’s discovery
orders. Discovery proceedings in this matter were lengthy, and the agency had
multiple opportunities to comply. While the sanction imposed by the AJ was
unquestionably serious, it was not outcome determinative; the agency still had a
fair opportunity to argue that the appellant did not make protected disclosures, or
that his disclosures were not a contributing factor in the decision not to promote
him. Had the agency been permitted to assert its affirmative defense, its
noncompliance with the discovery order would have deprived the appellant of a
fair opportunity to rebut the agency’s argument.
6. The appellant is entitled to corrective action. Because he left the agency
voluntarily, corrective action is limited to retroactive promotion to the GS-13 level,
beginning October 1, 2003, and terminating with the date of his departure from the
agency. He may also be entitled to consequential damages and an award of
attorney fees.
7. Where the Board finds that there is reason to believe that a current employee
may have committed a prohibited personnel practice, it is required to refer the
matter to OSC for appropriate action. 5 U.S.C. § 1221(f)(3). The Board has no
discretion in this matter, and it was error for the AJ not to make such a referral.
The Board referred the case to OSC in accordance with the statute.
3
Chairman McPhie issued a dissenting opinion in which he disagreed with the
majority’s handling of the sanction for noncompliance with the AJ’s discovery order.
He found the sanction disproportionate to the agency’s offense, and would have
remanded the case for further adjudication of whether the agency could show by clear
and convincing evidence that it would have taken the same action in the absence of the
protected disclosures.
► Appellant: Steven R. Thomas
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 285
Docket Number: CH-0831-07-0040-I-1
Issuance Date: December 4, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Retirement
- Service Credit
- Post-1956 Military Service
The appellant petitioned for review of an initial decision affirming OPM’s
reconsideration decision reducing the appellant’s CSRS retirement annuity by $452 per
month when he became eligible for Social Security benefits, because he had not made a
deposit for his post-1956 military service, as required by 5 U.S.C. § 8332(j)(1). The
issue was whether he should be allowed to make a post-separation deposit on the basis
that his failure to make the deposit before his retirement was the result of an
“administrative error” committed by OPM or his employing agency (the Department of
the Air Force). 5 C.F.R. § 831.2104(a). The appellant submitted evidence that, before
he retired, he was interested in making a deposit for his post-1956 military service, but
had tried unsuccessfully for years to determine how much of a deposit he would need to
make in order for this service to be creditable for his civilian retirement annuity, and
that the civilian and military personnel offices kept referring him to one another. He
further testified that someone in civilian personnel told him in 1988 that his failure to
pay the deposit would affect his Social Security payments and not his CSRS annuity.
The AJ found that the appellant failed to establish that his decision not to make the
deposit was due to administrative error, reasoning that the appellant’s own failure to
read the forms he executed precluded him from obtaining the information he needed to
make an informed decision regarding how to make the deposit and the impact upon his
annuity of his failure to make the deposit.
Holdings: A majority of the Board, Member Sapin dissenting, affirmed the initial
decision, finding that the appellant was not entitled to make a post-separation
deposit to make his post-1956 military service creditable. Although the majority
denied the appellant’s petition for review, it stated that it was reopening the appeal
on its own motion to explain why this case is distinguishable from McCrary v.
Office of Personnel Management, 459 F.3d 1344 (Fed. Cir. 2006).
1. The Board has found that the plain language and regulatory history of 5 C.F.R.
§ 831.2104(a) indicate that the administrative error exception should not be given
4
expansive scope. OPM cited as examples employees who were mistakenly advised
by their employing agency that they could make the deposit after retirement and
employees who were not able to collect the information they needed to complete the
application prior to retirement.
2. The appellant completed and signed the 1990 version of SF-2801, which the
Board has found to be reasonably designed to inform an applicant of his
opportunity to make a deposit for his post-1956 military service prior to sepration,
and the consequences of failing to so. The appellant checked “No” in response to
the question on Schedule A asking whether he had paid his military deposit.
3. Where an annuitant receives full and fair notice of the requirement to make a
deposit, the government is not required to inform the annuitant about the dollar
consequences of electing not to make a deposit. The Board has, however,
consistently found administrative error where, in response to an employee’s
inquiry, the employing agency provides material misinformation concerning the
deposit and the consequences of not making the deposit prior to separation.
4. The Board found that the appellant failed to show that his employing agency is
responsible for his professed belief that his Social Security benefits, rather than his
CSRS annuity, would be reduced at age 62 if he did not make the deposit, noting
that the appellant and his wife provided competing explanations as to how he came
to have this belief.
5. The appellant’s employing agency did commit administrative error when the
agency’s personnel official, in response to the appellant’s direct inquiry, failed to
inform him of the amount of his deposit. This administrative error does not justify
a waiver of the deadline for making the deposit, however, because the appellant did
not show that his failure to make the deposit was “due to” the lack of specific
information about the amount of the deposit. The appellant testified that his
military pay was less than $1,200 per year, and he conceded that he knew the
deposit would have been a small amount. He also had page 2 of OPM Form 1515,
which explicitly informed him that the deposit was 7% of his military basic pay.
He further testified that he figured he could work more hours after he retired and
make up the difference in his Social Security benefit. Thus, the appellant’s own
testimony shows that, although he knew that the deposit was only a small amount,
he decided not to make the deposit based upon his mistaken belief that he could
make up the reduction in his Social Security benefit. The appellant’s “mistake”
was caused by his failure to read the forms he executed rather than any error by
OPM or his employing agency.
In her dissent, Member Sapin agreed that the appellant’s employing agency
committed administrative error by failing to respond to his request for an exact
calculation of the amount of money he needed to contribute to his retirement account
for his post-1956 military service. She disagreed with the majority opinion’s
conclusion that, even without that exact calculation, the appellant made an informed
choice not to make the deposit. She stated her belief that, consistent with McCrary,
without that specific calculation and a reasonably accurate estimate of the annuity
5
adjustment likely to result from a decision not to make a deposit, the appellant was
unable to make an informed choice about whether to make the deposit.
► Appellant: John Doe
Agency: Department of Justice
Decision Number: 2007 MSPB 282
Docket Number: CH-0752-04-0620-B-1
Issuance Date: December 4, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Defenses and Miscellaneous Claims
- Law of the Case
Both parties petitioned for review of a remand initial decision that mitigated the
agency’s removal penalty to a 120-day suspension and a directed reassignment at the
agency’s option. In the original initial decision, the AJ did not sustain the removal on
the basis that the agency failed to establish a nexus between the charged conduct—
“Unprofessional Conduct – Videotaping Sexual Encounters With Women Without Their
Consent—and the efficiency of the service. In its previous Opinion and Order, the
Board reversed that initial decision and remanded the appeal to the regional office for
further adjudication.
Doe v. Department of Justice, 103 M.S.P.R. 135 (2006). On
remand, the agency filed a motion requesting that the record be reopened to allow for
the submission of evidence and a supplemental hearing on the issue of whether the
Board’s finding that the appellant’s conduct was “clearly dishonest” impairs the
appellant’s ability to testify or act as an affiant in criminal cases under the agency’s
“Giglio Policy,” promulgated pursuant to Giglio v. United States, 405 U.S. 150 (1972).
The AJ denied the motion, but granted the parties’ request that they be permitted to
submit legal argument concerning this issue. The agency asked the AJ to certify the
issue presented in its motion to the Board as an interlocutory appeal, but the AJ did not
act on that request.
In mitigating the penalty, the AJ found that, despite the appellant’s status as a law
enforcement officer (FBI Special Agent) and his failure to maintain the high standards
expected of him in that position, the penalty of removal was beyond the tolerable limits
of reasonableness due to a number of mitigating factors.
Holdings:
1. The Board denied the appellant’s cross-PFR, which asked the Board to
reconsider its previous ruling on the nexus issue, relying on the law of the case
doctrine.
2. The agency has not shown that the AJ’s implicit denial of its motion for
certification of an interlocutory appeal was an abuse of discretion. An
interlocutory appeal is only appropriate if the record shows that the ruling
involves an important question of law or policy about which there is substantial
ground for difference of opinion, that an immediate ruling will materially advance
the completion of the proceeding, or that the denial of an immediate ruling will
6
cause undue harm to a party or the public. 5 C.F.R. § 1201.92. Those criteria
were not met here.
3. The Board modified the initial decision to find that the removal penalty did not
exceed the bounds of reasonableness.
a. Where the Board sustains the charge and underlying specifications, it will
defer to an agency’s penalty decision unless the penalty exceeds the range
of allowable punishment specified by statute or regulation, or the penalty is
“so harsh and unconscionably disproportionate to the offense that it
amounts to an abuse of discretion.”
b. The appellant has not alleged, and the record does not suggest, that the
agency failed to weigh any relevant factors; thus, mitigation is appropriate
only if the agency’s judgment clearly exceeded the limits of reasonableness.
c. The intentional, egregious, and “clearly dishonest” nature of the appellant’s
misconduct—the surreptitious videotaping of sexual encounters with
various female acquaintances, two of whom were agency employees
assigned to the same division as the appellant—is clear from the record.
Such misconduct stands at odds with the high standards of conduct
expected of an FBI Special Agent.
d. The AJ found that any disruption of office functions resulting from the
existence of the videotapes was caused more by office discussions initiated
by one of the women videotaped than by the actions of the appellant. The
Board found that such intervening acts do not absolve the appellant of
culpability for his clearly dishonest actions in the matter.
e. Although the appellant had served with the agency for 7 years, with no
disciplinary record and a history of positive performance, those factors
were insufficient to warrant mitigation of the penalty.
► Appellant: Rita D. Knox
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 284
Docket Number: DC-831M-07-0648-I-1
Issuance Date: December 4, 2007
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
The appellant petitioned for review of an initial decision that affirmed in part a
reconsideration decision by OPM that found that the appellant had received an
overpayment, and that the appellant was not entitled to a waiver of recovery of the
overpayment. The existence and amount ($6,904.92) of the overpayment, which were
the result of interim payments during a period in which the appellant was not entitled to
an annuity, were not in dispute. The AJ found that the appellant was not without fault
in the creation of the overpayment, and that recovery of the debt would not cause
7
financial hardship. Nevertheless, he ordered OPM to adjust the repayment schedule
from $92 a month to $73 a month.
Holdings: The Board found that the appellant was not entitled to waiver of the
overpayment, but that the repayment schedule should be reduced to $5 per month,
for the following reasons:
1. Contrary to the AJ’s finding, the Board found that the appellant was without
fault in the creation of the overpayment. The appellant testified without
contradiction that she made several telephonic inquiries to OPM within a week of
receiving the overpayment, and informed OPM that she believed it to be in error,
but that she was told that it was her money and that she could spend it.
2. A waiver may be granted when the annuitant is without fault and recovery
would be against equity and good conscience. 5 U.S.C. § 8470(b). As to the latter
inquiry, OPM’s Policy Guidelines, § I.C.4, provide that individuals who know or
suspect that they are receiving overpayments are expected to set aside the amount
overpaid pending recoupment, and in the absence of exceptional circumstances,
which do not include financial hardship, recovery in these cases is not against
equity and good conscience. Here, the appellant concedes that she was aware of
the overpayment but did not set aside the amount overpaid, due to unforeseen
circumstances (she was the victim of vandalism on 2 occasions and wrecked her
car). These hardships do not constitute exceptional circumstances of the sort that
would warrant an exception to the set-aside rule.
3. In calculating the adjustment to the appellant’s repayment schedule, the AJ
made several significant error, leading the Board to conclude that a reduction in
OPM’s repayment schedule to $5 per month was appropriate:
a. It was inappropriate to consider the value of the appellant’s home and
automobile.
b. The AJ did not take into account that the appellant is entitled to $50 per
month in emergency expenses. Adjusting the figures in the appellant’s
Financial Resources Questionnaire, her monthly expenses exceed her
monthly income by $12.51.
c. The AJ erred in finding that the $7,956 in the appellant’s checking accounts
“would easily pay off the overpayment.” OPM policy provides that the
first $5,000 in liquid assets are generally considered unavailable for debt
repayment.
8
► Appellant: Richard A. Becker
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 281
Docket Number: NY-3443-07-0242-I-1
Issuance Date: December 3, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Whistleblower Protection Act
- Jurisdiction
- Exhaustion of Remedy
The appellant petitioned for review of an initial decision that dismissed his VEOA,
USERRA, and IRA appeals for lack of jurisdiction. The appellant, a GS-5 Nursing
Assistant, alleged that his non-selection for a GS-5/6 position was in retaliation for past
Board appeals and at least one workforce complaint, and failed to properly account for
his veteran’s status. The appellant also alleged that he had contacted the Department of
Labor (DoL) and OSC regarding this matter, but had not received a reply. The AJ
dismissed the appeal for lack of jurisdiction on the basis that the appellant failed to
show that he had exhausted his administrative remedies with DoL and OSC.
Holdings:
1. An appellant raising an IRA claim can establish that he exhausted his remedies
before OSC by showing that he filed a request for corrective action with OSC and
that either he received written notification from OSC that it was terminating its
investigation, or that 120 days have passed since the appellant filed his request
with OSC. Here, the appellant has submitted evidence that he sought corrective
action from OSC on May 6, 2007 (the same month he filed his Board appeal), but
the appellant did not allege that he received a termination letter, and 120 days had
not elapsed, so the AJ correctly found that the Board lacked jurisdiction at the
time the initial decision was issued. Nevertheless, 120 days have now passed, and it
is the Board’s practice to adjudicate an appeal under these circumstances. The
IRA appeal is therefore remanded to the regional office for further adjudication,
including a determination whether the appellant has non-frivolously alleged that
he made a whistleblowing disclosure.
2. As with the IRA appeal, the AJ correctly determined that the Board lacked
jurisdiction over the VEOA at the time the initial decision was issued, as the
appellant submitted evidence suggesting that he filed a VEOA complaint with DoL
on May 6, 2007. In a VEOA appeal, an appeal to the Board may not be brought
where the Secretary of Labor has not resolved the complaint with 60 days unless
the complainant “first provides written notification to the Secretary of such
complainant’s intention to bring such appeal” and provides the Board with
evidence of compliance with this statutory requirement. 5 U.S.C. § 3330a(d)(2). As
the appellant has not alleged that he provided written notification to the Secretary
of Labor of his intent to file a Board appeal, the Board affirmed the AJ’s dismissal
of the VEOA appeal for lack of jurisdiction.
9
3. Unlike the jurisdictional requirements of VEOA, an appellant may file a
USERRA complaint directly with the Board without filed a complaint with DoL.
Nevertheless, where, as here, an appellant seeks the assistance of the Secretary of
Labor, he must exhaust his administrative remedies before DoL. Because the
record shows that the appellant has not done so here, the Board affirmed the AJ’s
dismissal of the USERRA appeal for lack of jurisdiction.
► Appellant: Sonia Morales
Agency: Social Security Administration
Decision Number: 2007 MSPB 287
Docket Number: CB-7121-07-0020-V-1
Issuance Date: December 4, 2007
Appeal Type: Arbitration Appeals/Grievances
Action Type: Arbritration
Arbitration/Collective Bargaining-Related Issues
- Interpretation of Contract
The appellant requested review of an arbitration decision that determined that her
grievances over the agency’s actions removing her for unsatisfactory performance and
denying her a within-grade-increase were not arbitrable. The arbitrator found that the
collective bargaining agreement (CBA) required the appellant to make an oral or written
presentation at Step 3 of the grievance procedure, and when the union failed to schedule
either an oral or written presentation within the 10-day period prescribed by the CBA,
the agency properly denied the grievances.
Holdings: The Board reversed the arbitrator’s decision, and remanded the case to
the arbitrator for further consideration for the following reasons:
1. The Board has jurisdiction to review this arbitration decision under 5 U.S.C.
§ 7121(d), because 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) in
connection with the underlying action, and a final decision has been issued.
2. An arbitrator’s interpretation of the terms of a collective bargaining agreement
is a legal matter that is fully reviewable by the Board. The Board found nothing in
the CBA that supports a finding that the appellant was required to make an oral or
written presentation (other than the written statements in the grievance itself) at
Step 3 of the grievance procedure. The agreement provides only that a grievant
has a right to make such a presentation.
10
► Appellant: Steven E. Heath
Agency: United States Postal Service
Decision Number: 2007 MSPB 286
Docket Number: PH-0752-07-0184-I-1
Issuance Date: December 4, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Jurisdiction
- Settlement Agreements
The appellant petitioned for review of an initial decision that dismissed an appeal
of an alleged constructive suspension as settled.
Holdings:
1. Although the appellant alleged that he was seeking to undo the settlement
agreement on the basis of a “mutual mistake,” he essentially was asserting that he
made a bad bargain. The Board therefore denied his petition for review.
2. The Board reopened the appeal on its own motion because there is a question as
to the Board’s jurisdiction over the appeal. The issue of jurisdiction is always
before the Board and may be raised at any time by either party or sua sponte by
the Board.
3. Before accepting a settlement agreement into the record for enforcement, an AJ
must determine that the subject matter of the appeal is within the Board’s
jurisdiction. In constructive adverse action appeals, non-frivolous allegations do
not establish jurisdiction; the appellant must prove the elements of the action by
preponderant evidence. Here, the parties attempted to establish Board jurisdiction
by stating that, “[f]or settlement purposes, the Postal Service and Appellant
stipulate that the M.S.P.B. has jurisdiction over this appeal.” Parties may stipulate
to facts, but the ultimate question of jurisdiction is a legal conclusion not subject to
stipulation. Because the parties did not stipulate to facts that would establish
jurisdiction, their attempted stipulation was not effective.
4. Because the Board currently lacks proof of jurisdiction over this appeal, the
settlement agreement cannot be entered into the record for enforcement purposes.
Thus, the parties settled under the potentially mistaken belief that the agreement
would be enforceable by the Board. On remand, the parties may, if they wish,
resuscitate and validate the settlement agreement, either by agreeing that the
settlement is not enforceable by the Board, or by making factual stipulations
sufficient to establish Board jurisdiction. If not, the settlement agreement must be
deemed invalid and the AJ must proceed to determine whether jurisdiction exists.
11
► Appellant: Jesse G. Zendejas, Sr.
Agency: Department of Homeland Security
Decision Number: 2007 MSPB 283
Docket Number: SF-0752-07-0383-I-1
Issuance Date: December 4, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Arbitration/Collective Bargaining-Related Issues
- Election of Remedy
Board Procedures/Authorities
- Reopening and Reconsideration
- Withdrawal of Appeal
The appellant requested reopening of his appeal, which was dismissed as
withdrawn. After filing an appeal of his removal, the appellant submitted a request to
withdraw the appeal to pursue the matter through the agency’s internal grievance
process. The AJ issued an order notifying the appellant that withdrawing the appeal
would prevent him from refiling it in the future, and afforded him 7 days to consider his
decision. After neither party responded to the order, the AJ dismissed the appeal as
withdrawn. In his current filings, the appellant suggests that the agency did not permit
him to challenge his removal under the negotiated bargaining procedure.
Holdings: The Board reopened the appeal, vacated the initial decision, and
remanded the appeal to the regional office for further adjudication.
1. It is generally appropriate to treat a request for reconsideration of an appellant
initiated dismissal of a petition for appeal as a late-filed petition for appeal or as a
request to reopen and reinstate a prior appeal. Here, the Board treated the
appellant’s submission as a request to reopen his original appeal.
2. Under 5 U.S.C. § 7121(e)(1), an employee subjected to an adverse action may
appeal the matter to the Board or pursue the matter through a negotiated
grievance procedure under a collective bargaining agreement, but he may not do
both, and the action that was taken first generally is regarded as reflecting a
binding election. Here, the appellant filed an appeal with the Board before
attempting to pursue the negotiated grievance procedure.
2. An appellant’s decision to withdraw his appeal ordinarily will be accorded
finality, but the Board may make an exception if the withdrawal was based on
misinformation or misunderstanding. When he withdrew his Board appeals, it
appears that the appellant mistakenly believed that he would still be able to
challenge his removal under the negotiated procedure, and nothing in the record
suggests that any attempt was made to correct the appellant’s apparent
misunderstanding. Under these circumstances, the Board remanded the case to the
regional office to determine whether the dismissal of the appellant’s appeal should
be considered to be without prejudice and, if so, whether the appellant exercised
due diligence in seeking reopening of his appeal.
12
► Appellant: Lawrence E. Smith
Agency: United States Postal Service
Decision Number: 2007 MSPB 289
Docket Number: CH-0752-07-0355-I-1
Issuance Date: December 5, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant filed an appeal from the agency’s decision to
place him in “emergency off-duty status” from his city carrier position. The agency
moved to dismiss on the basis that the appellant is not a preference-eligible employee
with appeal rights to the Board. The appellant did not respond to the agency’s
pleading, or to the AJ’s show-cause order, and the AJ issued an initial decision
dismissing the appeal for lack of jurisdiction.
Holdings: The Board denied the petition for review, but reopened the appeal on its
own motion, vacated the initial decision, and remanded the case to the regional
office for further adjudication.
1. The initial decision was correct based on the information available to the AJ at
that time. In the interim, however, a different AJ in a separate appeal has found
that the appellant is a preference-eligible employee with appeal rights to the
Board, and the Board took official notice of this finding.
2. The agency’s placement of the appellant on “emergency off-duty status”
constitutes a constructive suspension appealable to the Board, provided that the
appellant was placed on enforced leave for more than 14 days. On remand, the AJ
must determine whether the constructive continued for more than 14 days.
► Appellant: Robert H. Lary, Jr.
Agency: United States Postal Service
Decision Number: 2007 MSPB 291
Docket Number: DE-0752-02-0233-M-1
Issuance Date: December 5, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures
- Remands
This case was before the Board pursuant to its previous decision, 2007 MSPB 220
(Sept. 20, 2007), ordering compliance with the Federal Circuit’s decisions, which found
that the agency materially breached the parties’ settlement agreement by failing to
provide certain documents to enable him to timely file an application for disability
retirement. The court directed the Board to enter a decree of specific performance,
despite the appellant’s death. Consistent with the Court’s instructions, the Board
ordered the agency to vacate and expunge any and all of the appellant’s prior removals
13
and related documents, and to issue a new letter of decision removing the appellant
indicating medical inability to perform as the reason for the removal. The Board also
ordered the agency to provide certain documents related to an application for disability
retirement. Finally, the Board ordered the agency to provide the appellant (the personal
representative had been substituted as the appellant) with any back pay he may be due.
Holdings:
1. The agency has provided evidence that it has prepared the necessary documents
and provided them to the appellant, and the Board finds the agency in compliance
as to this matter.
2. Contrary to the appellant’s assertion, the Court’s Order did not automatically
entitle him to back pay; the Court stated only that the agency should award back
pay he may be due if it is determined that he would have been entitled to disability
retirement. There has no determination of entitlement to disability retirement. It
would be improper for the Board to decide that issue in the first instances, as OPM
is the agency charged by statute with adjudicating disability retirement issues.
► Appellant: Richard D. DeGrant
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 288
Docket Number: SF-844E-07-0514-I-1
Issuance Date: December 5, 2007
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 dismissed his appeal
as untimely filed. In March 2000, OPM granted the appellant’s application for
disability retirement. In a 2003 reconsideration decision, OPM discontinued the
appellant’s disability retirement benefits based on its determination that the appellant
was able to return to work. The appellant did not appeal to the Board from that
decision. In September 2006, the appellant’s doctor sent a letter to OPM stating his
medical opinion that the appellant was “temporarily totally disabled” as of July 31,
2006. The doctor submitted a similar letter in October 2006. In an April 2007 letter,
OPM noted its 2003 reconsideration decision, and stated that he had exhausted all of his
administrative and appeal rights, and the next step would be to file an appeal with the
Board. The appellant did so, stating that the remedy he was seeking was to have his
disability retirement benefits reinstated as of July 31, 2006. In response to the AJ’s
show-cause order, the appellant further stated, “All I want to do is to have my
retirement disability [sic] reinstated.” OPM responded that the appeal should be
dismissed as an untimely attempt to contest its 2003 reconsideration decision, and the
AJ dismissed the appeal as untimely filed on that basis.
Holding: The appellant is entitled to have his annuity reinstated if OPM finds that
his disability has recurred. 5 C.F.R. § 844.404(b)(1). The appellant has repeatedly
made clear that he is seeking reinstatement of his annuity as of July 31, 2006, but
14
OPM has repeatedly characterized the appellant’s request as seeking to challenge
its 2003 reconsideration decision. Ordinarily, the Board lacks jurisdiction to hear
an appeal of a retirement matter when OPM has not issued a reconsideration
decision on the matter, but the Board recognizes an exception when OPM refuses
to render a decision on the matter at issue. Under the circumstances, the Board
will treat OPM’s April 2007 letter as a final decision that the appellant is not
entitled to reinstatement of his disability retirement annuity, and remanded the
case to the regional office for adjudication on the merits.
► Appellant: Barbara A. Jackson
Agency: Department of Defense
Decision Number: 2007 MSPB 279
Docket Number: CH-1221-06-0643-W-1
Issuance Date: November 30, 2007
Defenses and Miscellaneous Claims
- Res Judicata
Timeliness
The appellant petitioned for review of an initial decision that dismissed her appeal
on res judicata grounds. This matter has a long and complicated procedural history.
The appellant applied to OPM for disability retirement in July 2000. After OPM denied
the application, she appealed to the Board, which affirmed the denial, and then to the
Court of Appeals for the Federal Circuit, which also affirmed the action in July 2004.
While that matter was proceeding, the agency removed the appellant for having been
unavailable for work for the preceding year. A timely appeal was filed with the Board’s
regional office, but this appeal was dismissed on the basis that the appellant wished to
pursue the matter as a discrimination complaint. The agency dismissed the appeal on
the ground that the appellant’s previous filing of a Board appeal regarding her removal
precluded her pursuit of a discrimination complaint. The EEOC upheld the dismissal,
as did a U.S. district court in July 2004. In January 2006, about a year and a half later,
the appellant filed a complaint with the Office of Special Counsel, alleging that agency
officials had acted improperly in connection with her removal. After OSC notified the
appellant that it terminated its investigation, the appellant filed an IRA appeal with the
Board’s regional office. The AJ dismissed the appeal, finding that adjudication of the
appellant’s claims was barred under the doctrine of res judicata because of the previous
appeal relating to her removal.
Holding: Although the withdrawal of an appeal is ordinarily accorded finality, the
Board will find an exception when the withdrawal was based on misinformation or
a misunderstanding. Here, it appears that the appellant reasonably believed, at the
time she withdrew her appeal in 2001, that she would be able to pursue the matter
as a discrimination complaint. It was therefore inappropriate to dismiss the appeal
on res judicata grounds. Nevertheless, the Board found that the current appeal,
initiated about a year and a half after both of her other legal proceedings had been
completed, was untimely filed without good cause shown.
15
► Appellant: Martin F. Salazar
Agency: Department of Energy
Decision Number: 2007 MSPB 290
Docket Number: AT-0752-99-0626-C-2
Issuance Date: December 5, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Timeliness
The appellant petitioned for review of an initial decision that dismissed his appeal
as settled.
Holding: The petition for review was filed approximately 3 years after the
deadline specified in the initial decision. The Board dismissed the petition as
untimely filed without good cause shown.
► Appellant: Robbie D. McGowan-Butler
Agency: Department of Justice
Decision Number: 2007 MSPB 278
Docket Number: SF-0432-06-0735-I-2
Issuance Date: November 30, 2007
Appeal Type: Performance
Action Type: Removal
Performance-Based Actions
- Performance Standards – Objectivity/Reasonableness
The agency petitioned for review of an initial decision that reversed its removal
action. The initial decision found, inter alia, that Critical Element (1) of the appellant’s
performance standards was invalid because it did not define the Minimally Successful
level of performance that is required to avoid removal. A majority of the Board denied
the agency’s PFR, which means that the initial decision becomes the Board’s final
decision. Chairman McPhie issued a dissenting opinion in which he acknowledged
Board law that, under a 5-level system, an agency must define the Minimally Successful
level of performance, because an employee cannot be removed or demoted for
performance meeting that threshold; only “unacceptable” performance can for the basis
for an adverse action. The Chairman also agreed with the AJ’s conclusion that no
Minimally Successful level could be extrapolated between the Fully Successful and
Unacceptable levels; for the tasks described in Critical Element (1), performing below
the level defined as Fully Successful equates to being Unacceptable. As a practical
matter, the Chairman concluded that, for Critical Element (1), there in fact was no
Minimally Successful level, and to invalidate the agency’s action for failing to define
one elevates form over substance. The appellant was given notice of the minimum level
of performance expected of her, as required by 5 U.S.C. § 4302(b), and Critical
Element (1) was valid.
16
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any precedential
decisions reviewing MSPB decisions since the last Case Report. The Court has,
however, issued nonprecedential decisions reviewing MSPB decisions, which can be
found at the Court’s website. | 40,084 | |
Case Report - November 30, 2007 | 11-30-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_30_2007_301450.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_30_2007_301450.pdf | CASE REPORT DATE: November 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
► Appellant: Meta Ilene Ivey
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 272
Docket Number: DC-0831-07-0239-I-1
Issuance Date: November 27, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision, which denied the appellant’s application for a former spouse
survivor annuity. Following the appellant’s divorce from her husband in 2004, which
incorporated a June 2004 settlement agreement, the Clerk of the Circuit Court entered a
“Qualifying Court Order (CSRS)” in January 2005 awarding the appellant a former
spouse survivor annuity. After her former husband’s death in March 2006, the
appellant applied for a former spouse annuity. OPM denied the application on the
ground that the January 2005 Qualifying Court Order was a prohibited modification of
the first order dividing the marital property. The issue was whether the June 2004
settlement agreement provided for a former spouse annuity. The administrative judge
(AJ) agreed with OPM that it did not do so.
Holdings:
1. Under 5 U.S.C. § 8341(h)(1), a former spouse of a deceased employee is entitled
to a survivor annuity “if and to the extent expressly provided for... in the terms
of any decree of divorce or annulment or any court order or court-approved
property settlement agreement incident to such decree.” When words such as
“CSRS survivor annuity” are used in the decree or approved property settlement
agreement, the “expressly provided for” requirement will obviously be satisfied.
2
Nevertheless, “magic words” such as these are not required. In the absence of
magic words, the adjudicating tribunal must first determine whether the order
contains a pertinent clause regarding a survivor annuity. If so, the tribunal must
then inquire whether the operative terms in that clause can fairly be read as
awarding the annuity. If so, then it must examine any evidence introduced
concerning the marriage parties’ intent and the circumstances surrounding the
execution of the document to interpret the clause. If such evidence dictates that
the clause refers to a CSRS survivor annuity, it is legal error to conclude that the
document has not “expressly provided for” the award of a survivor annuity.
2. Applying this mode of analysis to the language of the June 2004 settlement
agreement, the Board found a pertinent clause regarding a survivor annuity, that
the clause can fairly be read as awarding such an annuity, which interpretation
was supported by all extrinsic evidence regarding the parties’ intent, which
included the terms of the decedent’s Last Will and Testament, and declaration
under penalty of perjury of the decedent’s sister, the executrix of the estate.
Accordingly, the Board reversed the initial decision and ordered OPM to grant the
appellant’s application for a former spouse survivor annuity.
► Appellant: Ruben Cano
Agency: United States Postal Service
Decision Number: 2007 MSPB 273
Docket Number: AT-0752-07-0528-I-1
Issuance Date: November 28, 2007
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation/Retirement
The appellant, a former preference-eligible City Carrier, filed an appeal alleging
that his immediate retirement was involuntary. In August 2005, the agency’s Associate
Medical Director, pursuant to the result of a fitness-for-duty examination performed by
another doctor, determined that the appellant would not be allowed to operate a
motorized vehicle for 12 months and would need to be medically cleared by the
agency’s medical unit before he could resume driving. Later that month, the appellant
applied to retire, and did so effective September 30, 2005. The appellant filed a
discrimination complaint in October 2005, and filed an appeal with the Board in
March 2007, following a determination by an EEOC judge that he had raised a mixed
case complaint. Based on the parties’ written submissions, the AJ determined that the
appellant’s retirement was “clearly” voluntary.
The Board vacated the initial decision and remanded the appeal for further
adjudication.
Holdings:
1. In determining whether a retirement was coerced, and thus a constructive
removal, the test is whether, under all the circumstances, working conditions were
made so difficult by agency that a reasonable person in the appellant’s position
3
would have felt compelled to retire. 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
in a particular situation – not whether such evidence meets the test for proof of
discrimination or reprisal under Title VII.
2. An initial decision must identify all material issues of fact and law, summarize
the evidence, resolve issues of credibility, including the AJ’s conclusions of law and
his legal reasoning. Here, the AJ failed to address whether any of the appellant’s
allegations constituted a nonfrivolous allegation that his retirement was
involuntary and entitled him to a jurisdictional hearing. Under the totality of the
circumstances, the Board found that the appellant had raised nonfrivolous
allegations that his working conditions became so difficult that a reasonable person
would have felt compelled to retire, and he was therefore entitled to a
jurisdictional hearing.
a. The appellant alleged that he was harassed by agency officials and treated
disparately compared to other employees. He claimed that agency
managers repeatedly followed him on his route, incorrectly told him his
was wasting his time, and unreasonably denied his requests for annual and
sick leave.
b. The appellant asserted that other employees, who had more debilitating
medical conditions than him, were not required to undergo fitness-for-duty
examinations, and that he was restricted to indoor duty for a full year even
though his personal physician wrote several letters stating that his medical
condition was under control and that he was able to return to work. He
alleged that these letters were not forwarded to the Associate Medical
Director.
c. The appellant asserted that the agency did not provide him with enough
work, and that this led to a decrease in his pay that ultimately contributed
to his decision to retire. “Deliberate idling” by an agency is a factor that
may cause working conditions to become so difficult that a reasonable
person would feels compelled to resign or retire.
3. On remand, the AJ must afford the parties an opportunity to address whether
the appellant posed a “direct threat” to the health or safety of himself or others.
4
► Appellant: Linda A. Taylor
Agency: Department of Homeland Security
Decision Number: 2007 MSPB 276
Docket Numbers: DC-0353-07-0608-I-1; DC-0752-07-0319-I-1
Issuance Date: November 28, 2007
Appeal Type: Restoration to Duty
Action Type: Restoration from Compensable Injury
Miscellaneous Agency Actions
- Restoration to Duty
Discrimination
- Physical Disability - Accommodation
The appellant was removed from her position as a WG-6 materials handler for
physical inability to perform the duties of her position. It was undisputed that she had
partially recovered from an on-the-job injury she suffered in 2004, which left her with
permanent medical restrictions. The appellant filed an appeal contesting her removal,
and also alleged that the agency acted arbitrarily and capriciously in failing to restore
her to an appropriate position following her removal. The AJ issued an initial decision
sustaining the appellant’s removal and finding that the Board lacked jurisdiction over
the appellant’s restoration claim. On PFR, the appellant raises no specific objections to
the AJ’s findings regarding the removal action, but contends that the agency failed to
give her proper consideration for assignment to supply technician positions it advertised
following her removal.
Holdings:
1. Because the appellant is a partially recovered individual, the agency was
obligated, under 5 C.F.R. § 353.301(d) to “make every effort” to restore her in the
local commuting area, and in so doing, to treat her “substantially the same as other
handicapped individuals under the Rehabilitation Act of 1973.” Under the
Rehabilitation Act regulations, 29 C.F.R. § 1630.2(o), the agency must make
reasonable accommodation of an employee’s disability through means such as
modifying or adjusting the duties of the position at issue, or reassigning the
employee to a vacant position whose duties the employee can perform. The
agency’s obligation to offer reasonable accommodation does not entitle the
employee to a position at a higher grade level. As applied to this case, that means
the appellant was entitled to consideration for positions at the GS-06 level, but not
at the GS-07 level.
2. It was undisputed that there were 3 supply technician positions advertised at the
GS-05/06/07 levels. The AJ only considered the appellant’s qualifications for 1 of
those positions, as 2 positions were filled at the GS-07 level. This was error; if the
appellant qualified for any of those 3 positions, she was entitled, under 5 C.F.R.
§ 353.301(d), to be placed in one of them.
3. Because the AJ did not consider the appellant’s qualifications for all 3 positions,
and because the AJ did not address whether the appellant’s medical impairments
5
could be accommodated in those positions, a remand was necessary for further
adjudication.
► Appellant: Sheila Desai
Agency: Environmental Protection Agency
Decision Number: 2007 MSPB 271
Docket Numbers: CH-0752-07-0091-I-1; CB-1205-07-0011-U-1
Issuance Date: November 27, 2007
Appeal Types: Adverse Action by Agency; Request for Regulation Review
Action Type: Reduction in Grade/Rank/Pay; Original Jurisdiction Case
Jurisdiction
- Reduction in Pay
Board Procedures/Authorities
- Joinder/Consolidation
Miscellaneous Topics
- Regulation Review
The appellant petitioned for review of an initial decision that affirmed her
reduction in pay based on OPM regulations that implemented the Federal Workforce
Flexibility Act of 2004 (FWFA). She also sought Board review of those regulations.
The Board consolidated the two matters on its own motion.
Holdings:
1. Although a reduction in an employee’s rate of basic pay is appealable to the
Board, an exception is when an agency reduces an employee’s basic pay from a rate
that is contrary to law or regulation. Under the law in effect at the time of the
appellant’s promotion from GS-11, Step 2 to GS-12, Step 3, a special rate could not
be used “for any purpose” if an employee was “entitled to a higher rate of basic
pay under any other provision of law” such as locality pay under 5 U.S.C. § 5304.
It is undisputed that the appellant was entitled to higher locality rate in her GS-11
position than the special rate that was applicable to her position, so the agency was
prohibited by law from using the underlying special rate for her promotion. The
agency was therefore required by law to reduce her pay in accordance with FWFA,
and this reduction in pay is not appealable to the Board.
2. Since the agency’s action was required by law, it is unnecessary to determine the
validity of OPM’s regulations implementing that law.
6
► Appellant: Daniel C. Russo
Agency: United States Postal Service
Decision Number: 2007 MSPB 277
Docket Number: PH-0752-00-0011-X-1
Issuance Date: November 28, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
In this enforcement proceeding, the appellant alleged that the agency failed to
comply with a final Board decision that ordered the agency to cancel the appellant’s
removal and substitute in its place a demotion to the next lower-graded nonsupervisory
position for which he is qualified with the least reduction in grade or pay. The AJ
issued a Recommendation finding the agency in compliance with some of its
obligations, but not with others.
Holdings:
1. Regarding back pay issues, the Board found that: (a) the agency must process a
disputed amount of back pay, despite the lack of the appellant’s signature on an
agency form; (b) the agency did not err in calculating overtime back pay to which
the appellant is entitled; and (c) the agency has not explained why the appellant in
not entitled to pay for holidays worked for the entire back pay period.
2. As to whether the appellant was reinstated to the proper position, the Board
found that the agency had not shown that the appellant’s qualifications are limited
to the maintenance craft; it had an obligation to consider all positions for which he
could become qualified without undue interruption of the agency’s mission. The
agency’s conclusory affidavits do not establish that it did this.
The case was remanded to the regional office for further adjudication.
► Appellant: William Jarosz
Agency: Department of the Air Force
Decision Number: 2007 MSPB 275
Docket Number: DE-0752-07-0445-I-1
Issuance Date: November 28, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures/Authorities
- Withdrawal of Appeal
The AJ issued an initial decision dismissing the appellant’s appeal of his removal
pursuant to the terms of a negotiated settlement agreement. On PFR, the appellant
points out that the settlement agreement provided that he could revoke the agreement if
he did so within 7 days of the execution of the agreement, and he has provided evidence
that he timely revoked the agreement.
7
Holdings:
1. The appellant revoked his acceptance of the settlement agreement according to
its terms. Accordingly, the Board vacated the initial decision, and reopened and
reinstated the appeal for adjudication.
2. On PFR, the appellant alleged that the agency violated USERRA when it
suspended his civilian security clearance, which prevented him from meeting his
annual military obligations. The Board forwarded this claim for processing as a
new appeal.
► Appellant: David M. Shipp
Agency: Department of Health and Human Services
Decision Number: 2007 MSPB 270
Docket Number: SF-0432-07-0279-I-1
Issuance Date: November 21, 2007
Appeal Type: Performance
Action Type: Removal
Timeliness
Board Procedures/Authorities
- Remands/Forwards
The appellant petitioned for review of an initial decision that dismissed his appeal
of the agency’s removal action as settled.
Holding: The Board dismissed the petition for review as untimely filed (by 36
days) without good cause shown for the delay. The appellant’s assertions
regarding the agency’s alleged noncompliance with the settlement agreement are
inapposite to the issue of timeliness. Nevertheless, the Board forwarded the
appellant’s allegations of noncompliance to the regional office for docketing as a
petition for enforcement.
► Appellant: Jay A. Gondek
Agency: Department of the Army
Decision Number: 2007 MSPB 274
Docket Number: CH-0432-03-0299-X-1
Issuance Date: November 28, 2007
Compliance
- Dismissal on Proof
In the merits proceeding, the Board reversed the appellant’s removal and ordered
the agency to reinstate him with full benefits. In this enforcement proceeding, the
appellant alleged that the agency was in noncompliance as to 3 matters. The AJ issued
a Recommendation finding that the agency was in compliance with respect to 1 of these
matters, but that its evidence of compliance was insufficient as to the other 2.
8
Holding: Based on evidence submitted to the Board following the AJ’s
Recommendation, the Board found that the agency was now in full compliance with
its obligations.
COURT DECISIONS
► Petitioner: Phyllis M. Vanieken-Ryals
Agency: Office of Personnel Management
Docket Number: 2006-3260
Issuance Date: November 26, 2007
Retirement
- Disability Retirement
The petitioner asked for review of the initial decision, which became the Board’s
final decision, that affirmed OPM’s denial of her application for disability retirement
benefits. The petitioner was a long-time employee at the Department of Veterans
Affairs, who applied for disability retirement on the bases of several alleged
psychological disorders, including major depression and anxiety disorder. The
evidence before the Board include the appellant’s own statements and testimony,
several letters, medical reports, and related documentation from her treating
psychologist, Dr. Nichols, and from her treating psychiatrist, Dr. Rummler. In addition,
the petitioner, her husband, and Dr. Nichols testified on her behalf. Both OPM and the
Board found the appellant’s evidence insufficient to entitle her to disability retirement
benefits.
Finding that OPM and the Board applied an erroneous legal standard in evaluating
the evidence, the court vacated the Board’s decision and remanded the case for further
adjudication.
Holding: Both OPM and the Board improperly predicated their determinations
based on the view that “objective” medical evidence is required to prove disability.
OPM and the Board’s adherence to this view was arbitrary, capricious, and
contrary to law. In so holding, the court made the following observations and
stated the following propositions of law:
1. Although factual determinations on “questions of disability and dependency” are
unreviewable by the court, issues of law regarding decisions on disability
applications are reviewable. The court must be discerning and cannot be satisfied
by opinions that invoke the trappings of factual analysis, e.g., by vaguely
describing broad swaths of evidence as “insufficient” or as failing to carry the
claimant’s burden, or simply asserting that all record evidence was considered, but
when read closely and carefully, reveal that absolutely no weight was given to
certain evidence solely because it can generally be classified as “subjective” and
not because of any specific identifiable defect.
2. A review of OPM’s initial and reconsideration decisions and the AJ’s initial
decision show that all were predicated on the view that “objective” medical
evidence is required to prove disability. For example, OPM indicated it was giving
9
Dr. Nichols’ several reports no weight because “she provided no details concerning
any mental status evaluation,” and “she does not provide copies of any formal
cognitive testing.” Similarly, the AJ pointed to OPM’s finding that the petitioner
had provided “little objective medical evidence... to demonstrate that [she] is
disabled,” and further noted that “OPM also points out that the bulk of the
appellant’s evidence... is Dr. Nichol’s [sic] reports of what the appellant told
her,” concluding that Dr. Nichols’ reports were necessarily immaterial since they
were “subjective” in nature.
3. Although the court is not bound by the Board’s case precedent, it agreed with
the Board’s ruling in Chavez v. Office of Personnel Management, 6 M.S.P.R. 404,
418-23 (1981), that objective medical evidence is not a prerequisite to entitlement
to disability retirement benefits. OPM must consider all of an applicant’s
competent medical evidence, and an applicant may prevail based on medical
evidence that, as here, consists of a medical professional’s conclusive diagnosis,
even if based primarily on his/her analysis of the applicant’s own descriptions of
symptoms and other indicia of disability. As stated in Chavez, subjective
evidence—i.e., testimony or written statements, regarding symptoms that is
submitted by the applicant—“may be entitled to great weight on the matter of
disability, especially when such evidence is uncontradicted in the record.” It
stands to reason that qualified medical opinions based on the same types of
information must therefore be afforded at least comparable, if not greater,
probative weight. The court noted that the problem with a requirement of
“objective” tests is particularly pronounced when the alleged disability arises from
purely psychological, as opposed to physical, disorders, as no laboratory tests or
physical examinations exist, or are even known to be possible, to diagnose some
psychological discorders.
4. OPM and the Board may give only limited weight to seemingly strong medical
evidence only in the face of factors such as doubts about professional competence,
contrary medical evidence, failure of the professional to consider relevant factors,
lack of particularity in relating diagnosis to nature and extent of disability, etc.
But here, OPM and the Board did not cite such factors in discounting the medical
evidence.
5. When, as here, the medical evidence indicates physical or mental incapacity so
severe as to clearly establish an inability to perform the tasks of any job—such as
inability to leave home, drive, or accomplish even basic life tasks—the medical
evidence need not enumerate what specific job tasks are rendered unfeasible by the
disability.
Non-Precedential Decisions
The Court of Appeals for the Federal Circuit issued other, nonprecedential
decisions that reviewed Board decisions, which can be accessed at the court’s website. | 21,412 | |
Case Report - November 16, 2007 | 11-16-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_16_2007_298802.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_16_2007_298802.pdf | CASE REPORT DATE: November 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
► Appellant: Connell Dones
Agency: United States Postal Service
Decision Number: 2007 MSPB 268
Docket Number: DC-0752-07-0192-I-1
Issuance Date: November 14, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - More than 14 Days
Miscellaneous Agency Actions
- Indefinite Suspensions
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed his
constructive suspension claim for lack of jurisdiction. The appellant, a Mail Processing
Clerk, suffered a work-related injury in 2000. The agency’s medical staff and the
appellant’s own physician cleared the appellant for limited duty in October 2006, but he
was not returned to duty until January 10, 2007. On appeal to the Board, the appellant
indicated that he was appealing an improper restoration. During a status conference,
the administrative judge (AJ) indicated that the appellant had raised a constructive
suspension claim. In the initial decision, the AJ dismissed the appeal, finding, inter
alia, that the appellant was not entitled to OWCP benefits during the relevant time
period.
Holdings:
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. The AJ erred in finding that the appellant
was not entitled to OWCP benefits during the relevant time period; the appellant
has shown that he in fact had an open OWCP claim at all times relevant to this
appeal.
2
2. The Board cannot determine on the present record whether the appellant was
constructively suspended because it is unclear to what extent the appellant’s
approved OWCP claim may have entitled him to limited duty work, and the record
is silent as to whether limited duty work was available on the relevant dates. In
addition, it is unclear as to the starting date of the alleged constructive suspension.
The case was remanded for further adjudication.
► Appellant: William D. Lynch
Agency: Department of the Army
Decision Number: 2007 MSPB 267
Docket Number: DE-3443-06-0256-M-1
Issuance Date: November 13, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
This case was on remand from a decision by the U.S. Court of Appeals for the
Federal Circuit, No. 2007-3114, that reversed the Board’s final decision finding against
the appellant on the merits of his VEOA claim. After considering the results of a
medical examination, the agency had withdrawn a tentative job offer it had extended the
appellant, a 30% disabled preference-eligible veteran. The court found that the agency
had failed to comply with 5 U.S.C. § 3312(b), which provides that, when an agency
determines that a preference eligible who has a compensable service-connected
disability of 30% or more is not able to fulfill the physical requirements of the position,
the agency shall notify OPM of its determination, and that OPM, before the selection of
any other person for the person, shall make a final determination on the physical ability
of the preference eligible to perform the duties of the position.
Holding: The Board directed the agency to reinstate the appellant’s tentative job
offer and complete the hiring process in accordance with the requirements of
5 U.S.C. § 3312(b).
► Appellant: Raymond Marshall
Agency: Department of Health and Human Services
Decision Number: 2007 MSPB 269
Docket Number: AT-3443-06-0811-B-1
Issuance Date: November 14, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The agency petitioned for review of a remand initial decision that ordered it, as
corrective action in a VEOA appeal, to appoint the appellant to the job position at issue
from the date that the initial selection was made in June 2004 up to the time that the
appellant declined the position when it was subsequently offered to him in 2006. The
agency did not dispute the AJ’s determinations that the Board has jurisdiction over this
VEOA appeal, that the agency violated the appellant’s veterans’ preference rights, and
that corrective action was therefore appropriate.
3
Holding: Automatic and retroactive appointment to the position in question is not
the appropriate remedy for a VEOA violation. Rather, the agency must comply by
reconstructing the hiring process in compliance with applicable laws. The Board
ordered the agency to do that in this case.
► Appellant: Robert J. Leach
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 266
Docket Number: DA-0752-07-0142-I-1
Issuance Date: November 13, 2007
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
base on charges of failure to follow supervisory instructions and for being absent
without leave (AWOL) for about 2½ months. The Board denied the PFR, but affirmed
the initial decision as modified, affirming the removal on the basis of the AWOL charge
alone.
Holdings:
1. The appellant’s approved absence expired August 31, 2006, but he continued to
be absent from September 1 through the date of his removal and did not submit a
leave request. Although the appellant’s physician signed a statement that the
appellant was released to return to work as of September 1, the appellant never
reported or attempted to report for duty, and there is no evidence that the agency
prevented him from returning to work. Under these circumstances, the AWOL
charge was sustained.
2. The agency’s deciding official considered the Douglas factors most relevant to
this case and reasonably exercised management discretion in selecting the removal
penalty. Accordingly, the Board found the removal penalty to be within the
tolerable limits of reasonableness.
4
► Appellant: Harold A. Merian
Agency: Department of the Navy
Decision Number: 2007 MSPB 265
Docket Number: SF-315H-07-0674-I-1
Issuance Date: November 13, 2007
Appeal Type: Termination of Probationers
Action Type: Probationary Termination
Jurisdiction
- Probationers
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant’s employment was terminated during his
probationary period. On appeal, the AJ issued a show-cause order explaining that
probationary employees have limited appeal rights before the Board, and ordering the
appellant to show that his appeal was within the Board’s jurisdiction. When no
response had been received, the AJ issued an initial decision dismissing the appeal for
lack of jurisdiction.
Holding: The appellant had in fact submitted a timely response to the show-cause
order that was postmarked prior to the filing deadline. The Board therefore
considered this pleading on PFR. Nevertheless, the appellant did not allege that
his termination was based on partisan political reasons or marital status, or that
the termination was based on reasons arising prior to his appointment. The Board
therefore dismissed the appeal for lack of jurisdiction.
► Appellant: Velma Y. Lock
Agency: General Services Administration
Decision Number: 2007 MSPB 264
Docket Number: SF-0752-04-0183-I-6
Issuance Date: November 9, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Penalty
Both parties petitioned for review of an initial decision that sustained 2 of the
6 specifications of misconduct, and remanded the case to the agency so that “it can
reevaluate the appropriateness of the penalty by considering only the specification[s]
that [the administrative judge] sustained.” The Board denied both parties’ petitions as
not meeting the standard of review specified in 5 C.F.R. § 1201.115. The Board
reopened the appeal on its own motion, however, to modify the remand order language.
Holding: The Board remanded the appeal to the agency to select an appropriate
penalty in light of the misconduct sustained in the initial decision. The agency
must complete its proceedings and issue a new decision within 60 days. Upon
issuance of that decision, the appellant may file an appeal with the Board’s
regional office, including a hearing, but this appeal would be limited to the
reasonableness of the newly-imposed penalty.
5
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any precedential
decisions that reviewed Board decisions since the last Case Report. The court has,
however, issued some nonprecedential decisions that reviewed Board decisions. These
can be accessed at the court’s website.
NOTICE
In light of the Thanksgiving holiday, there will be no Case Report next week. The
next Case Report is expected to be issued November 30, 2007. | 9,098 | |
Case Report - November 9, 2007 | 11-09-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_9_2007_297700.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_9_2007_297700.pdf | CASE REPORT DATE: November 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
► Appellant: Ermea J. Russell
Agency: Equal Employment Opportunity Commission
Decision Number: 2007 MSPB 262
Docket Number: AT-3443-04-0915-B-1
Issuance Date: October 31, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Jurisdiction
The appellant petitioned for review of a remand initial decision that denied her
request for corrective action in this USERRA appeal. The appellant was a Trial
Attorney in the agency’s Jackson, Mississippi office and a member of the Army
Reserve. She took a leave of absence when she was called up for military duty, and
when she returned, was assigned to the agency’s Birmingham, Alabama office. She
filed a grievance under a negotiated grievance procedure, and also filed a complaint
with the Department of Labor (DoL), contending that she was entitled to be reemployed
in Jackson. The agency denied the grievance, and DoL was unable to resolve the
complaint, and the appellant filed a USERRA appeal with the Board. The AJ denied
relief on the merits. On petition for review, the Board addressed and rejected the
agency’s argument that the Board lacked jurisdiction over the appeal on the basis that
the grievance procedure was the exclusive means for the appellant to raise her USERRA
claim, or on the basis that the appellant made a binding election to pursue a grievance
in lieu of a Board appeal.
Russell v. Equal Employment Opportunity Commission, 2006
MSPB 319, 104 M.S.P.R. 14. The Board vacated and remanded, however, finding that
the AJ had failed to inform the appellant of appropriate types and burdens of proof in
USERRA appeals. On remand the AJ again denied corrective action on the merits.
Holdings:
1. A majority of the Board held that our reviewing court’s recent decision in
Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007), required the
2
Board to vacate both the remand initial decision and the Board’s previous decision,
and dismiss the appeal for lack of jurisdiction. Even though Pittman differs from
the present case because it concerned an election under 5 U.S.C. § 7121(e), and the
present case involves section 7121(a), the court held that claims of USERRA
violations fall within the scope of section 7121, and mandates that the Board hold
that it lacks jurisdiction because the collective bargaining agreement constituted
the exclusive means for pursuing the appellant’s USERRA claim.
2. The Board declined to apply the law of the case doctrine to its previous
determination regarding jurisdictional issues in this case. A recognized exception
to the doctrine, applicable here, applies when there is a contrary decision of law by
controlling authority that applies to the question at issue.
Chairman McPhie issued a dissent arguing that Pittman does not foreclose Board
jurisdiction and does not warrant departure from the law of the case. Pittman discusses
and applies 5 U.S.C. § 7121(e), which requires an individual covered by a CBA who is
affected by an adverse action to elect between a grievance and a Board appeal. Pittman
does not discuss 5 U.S.C. § 7121(a), which generally makes a CBA the exclusive means
for challenging matters that fall within its coverage. Moreover, Pittman does not
discuss or even acknowledge the existence of the Board’s earlier precedential decision
in this case. Nor does Pittman discuss 38 U.S.C. § 4302(b), the USERRA provision
upon which the Board relied to decline to apply the section 7121(a) exclusivity rule to
USERRA cases. Chairman McPhie concluded that Pittman is not a contrary decision of
law by a controlling authority that applies to the question at issue.
► Appellant: Vivian J. Blaha
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 263
Docket Number: DA-0831-07-0068-R-1
Issuance Date: November 8, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Board Procedures
- Reopening and Reconsideration
Retirement
- Survivor Annuity
The Director of OPM sought reconsideration of the Board’s decision in Blaha v.
Office of Personnel Management, 2007 MSPB 174, 106 M.S.P.R. 265. The appellant
retired from the U.S. Postal Service in January 2004, at which time she elected an
annuity payable only during her lifetime. In February 2006, she sought to change her
election to a reduced annuity with a survivor annuity for a person with an insurable
interest in her. OPM rejected the request as untimely filed. It was undisputed that, at
the time of her retirement, the appellant was told by a Postal Service retirement
counselor that she could not elect a survivor annuity for her domestic partner of 15
years, and was not told that her domestic partner would qualify for a survivor annuity as
an individual with an insurable interest in the appellant. In its previous Opinion and
3
Order, the Board held that an agency’s affirmative misconduct may preclude
enforcement of a deadline under the doctrine of equitable estoppel, and that the
Supreme Court’s decision in Office of Personnel Management v. Richmond, 496 U.S.
414 (1990) did not preclude a finding of equitable estoppel because it did not involve a
claim for money from the U.S. Treasury in contravention of law. The Board remanded
the case to address whether affirmative misconduct by the Postal Service would
preclude enforcement of the deadline under the doctrine of equitable estoppel.
In her request for reconsideration under 5 U.S.C. § 7703(d), the OPM Director
contends that Richmond precludes the application of equitable estoppel to the belated
election of an insurable interest survivor annuity.
Holding: Because there is as yet no finding on whether the elements of equitable
estoppel have been established, including detrimental reliance on information
supplied by the agency, it would be premature for the Board to address the
Director’s argument; doing so would require the Board to issue an advisory
opinion, something it may not do.
COURT DECISIONS
► Petitioner: Devon Joseph
Agency: Federal Trade Commission
Docket Number: 2007-3073
Issuance Date: November 5, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The petition sought review of an Opinion and Order, 2006 MSPB 317, 103
M.S.P.R. 684, that held that the agency’s procedure in filling a vacancy did not deny
him his veterans’ preference rights. The paralegal vacancy was announced under both a
“competitive examination” process, and under a “merit promotion” process. Joseph
applied under both procedures. The agency evaluated all of the applicants under both
procedures. Joseph, who was ranked first under the competitive examination process,
and Thomas were among the four applicants with the highest scores on the merit
promotion list. Both were interviewed and considered, but Thomas was selected for the
position. On appeal to the court, Joseph argued that, having conducted the open
competition process, in which he was at the top of the list after receiving a 10-point
veterans’ preference, the FTC could not then make its selection from the merit process
list, which did not reflect his veterans’ preference.
Holding: Unlike the statutes governing open competition applicants, Congress
adopted a different approach in dealing with veterans and merit promotion. The
statute, 5 U.S.C. § 3304(f)(1), guarantees a right to apply and an opportunity to
compete for such positions, but does not entitle the individual to veterans’
preference in the merit promotion process. Joseph was given a right to apply and
and opportunity to compete for the paralegal vacancy; the agency’s decision not to
select him did not violate his rights under VEOA.
4
Non-Precedential Decisions
Additional, non-precedential decisions issued by the Court of Appeals for the
Federal Circuit that reviewed MSPB decisions can be found at the court’s website. | 8,137 | |
Case Report - November 2, 2007 | 11-02-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_2_2007_296345.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_2_2007_296345.pdf | CASE REPORT DATE: November 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
► Appellant: John F. Murphy
Agency: Department of Justice
Decision Number: 2007 MSPB 256
Docket Number: DA-3443-06-0528-I-1
Issuance Date: October 30, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that dismissed his
USERRA appeal as moot. During the processing of this appeal, the appellant presented
testimony and documentary evidence purporting to show that, because he was charged
military leave on non-workdays, he was forced to use 8 hours of annual leave on 15
separate days, for a total of 120 hours of annual leave. The agency presented evidence
that, based on the appellant’s testimony, it credited him with 120 hours of leave, and
moved to dismiss the appeal as moot, arguing that the appellant had received all of the
relief to which he would be entitled in this appeal. Over the appellant’s objection, the
administrative judge (AJ) accepted the agency’s evidence and dismissed the appeal as
moot.
The Board denied the appellant’s petition for review, but reopened the case on its
own motion to consider the appellant’s argument that the agency’s motion to dismiss
was an attempt to circumvent the appellant’s motion for an award of attorney fees to
which the appellant’s counsel is entitled.
Holdings:
1. Under USERRA, 38 U.S.C. § 4324, the appellant’s recovery of attorney fees is
not part of the relief on the merits. This case is thus like attorney fees under
5 U.S.C. § 7701(g), where the Board has held that the potential recovery of
attorney fees does not prevent the dismissal of an appeal as moot, and is unlike
attorney fees in IRA appeals, 5 U.S.C. § 1221(g)(1)(B), where the statutory
2
provision includes attorney fees as part of the corrective action to be awarded on
the merits.
2. Pursuant to the Federal Circuit’s recent ruling in Pucilowski v. Department of
Justice, 498 F.3d 1341 (Fed. Cir. 2007), the Board has authority to order agencies
to correct their records to restore military leave to appellants. While the agency
evidently has compensated the appellant for the annual leave he was forced to take,
there is no evidence to show that the agency has corrected the appellant’s records
so that they no longer reflect that the appellant used military leave on non
workdays. Accordingly, the appeal is not moot and must be remanded for further
adjudication.
► Appellant: Alvern C. Weed
Agency: Social Security Administration
Decision Number: 2007 MSPB 259
Docket Number: DE-3443-05-0248-I-3
Issuance Date: October 30, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Both parties petitioned for review of an initial decision that granted the appellant’s
request for relief in this VEOA appeal. The appellant alleged that the agency violated
his veterans’ preference rights in connection with his application for two vacancies in
the agency’s Montana Field Office, when it non-competitively selected two
non-preference eligible applicants under the Outstanding Scholar Program.
The AJ
determined that, under Dean v. Department of Agriculture, 99 M.S.P.R. 533 (2005), the
appellant’s veterans’ preference rights were violated, and the AJ ordered the agency to
reconstruct the selections for the two positions under the competitive examination
process. The AJ further found that the appellant had shown by preponderant evidence
that the agency’s violation was willful, a finding that would entitle the appellant to back
pay as liquidated damages.
Holdings:
1. The meaning of “willful,” which is not defined in 5 U.S.C. § 3330c(a), is an issue
of first impression. The Board adopted the meaning given by the U.S. Supreme
Court for a similar provision in the Age Discrimination in Employment Act
(ADEA), which is that a violation is “willful” if the “employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by
the ADEA.” Applying this standard to the instant appeal, the Board found that the
agency’s violation of veterans’ preference rules was not willful. The violation
occurred prior to the Board’s decision in Dean. In the 24 years between the
approval of the Outstanding Scholar Program and the Dean decision, no binding
authority had ever held that using that Program’s appointing authority violated
veterans’ preference rules.
2. The appellant’s challenge to the sufficiency of the agency’s reconstruction of the
hiring process was forwarded to the Denver Field Office for adjudication as a
compliance matter.
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► Appellant: Victor W. Welshans
Agency: United States Postal Service
Decision Number: 2007 MSPB 249
Docket Number: PH-3443-06-0353-I-1
Issuance Date: October 25, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The agency petitioned for review of an initial decision that granted the appellant’s
request for corrective action in this USERRA appeal. The appellant alleged that he was
improperly charged military leave for non-workdays while serving in the U.S. Army
reserve from August 1983 through August 2004. The agency moved to dismiss the
appeal on the grounds that the military leave provisions of 5 U.S.C. § 6323, as
interpreted by the U.S.
Court of Appeals for the Federal Circuit in Butterbaugh v.
Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003), do not apply to Postal
employees. The appellant responded that he is entitled to leave under the agency’s
Employee and Labor Relations Manual (ELM). The AJ determined that the appellant
had been improperly charged annual leave on two dates in 1999, and ordered the agency
to correct its records.
Holdings:
1. Because the appellant is a Postal employee, he is not entitled to military leave
under 5 U.S.C. § 6323(a).
2. The Board will enforce employee rights derived from agency rules and collective
bargaining agreements, and the fact that the appellant is not covered by 5 U.S.C.
§ 6323(a), but instead is covered by an agency rule, does not affect the Board’s
authority to consider the case under USERRA.
3. The ELM provisions in effect in 1999, unlike the present provisions,
unambiguously required that non-workdays falling within a period of absence for
active duty be charged against the paid leave allowed full-time employees. Because
the appellant’s allegations, taken as true, do not support a conclusion that he is
entitled to corrective action, the Board dismissed the appeal for failure to state a
claim upon which relief can be granted.
► Appellant: Gary P. Pittman
Agency: Department of Justice
Decision Number: 2007 MSPB 251
Docket Number: NY-3443-05-0113-M-1
Issuance Date: October 26, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
Arbitration
- Election of Remedy
The case was before the Board pursuant to the Federal Circuit’s decision in
Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007). The court affirmed
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the Board’s denial of the appellant’s USERRA claim, but vacated the denial on the
merits of his claims of an improper removal, holding that the Board lacked jurisdiction
to consider those claims because the appellant had elected to file a grievance
concerning his removal. The court directed the Board to dismiss the appellant’s
improper removal claims for lack of jurisdiction.
Holding: In accordance with the court’s ruling, the Board dismissed the
appellant’s improper removal claims under USERRA for lack of jurisdiction.
► Appellant: Nancy R. Keys
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 250
Docket Number: DC-0831-07-0325-I-1
Issuance Date: October 25, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Retirement
- Survivor Annuity
OPM petitioned for review of an initial decision that reversed its reconsideration
decision denying the appellant’s claim for survivor annuity benefits under CSRS. OPM
denied the appellant’s request for a survivor annuity on the ground that she had not
been married to her late husband for 9 months preceding his death, as required by
5 U.S.C. § 8341(a)(1). Although the appellant and Mr. Keys were not married in a
formal ceremony until the month prior to his death, the appellant contended that they
had entered into a valid common-law marriage prior to that. On appeal to the Board’s
regional office, the AJ found that the appellant and Mr. Keys entered into a
common-law marriage in the District of Columbia at some point in 2001 or 2002, and
that the appellant was entitled to survivor benefits.
Holding: Although it is undisputed that the appellant and Mr. Keys had entered
into a common-law marriage, her entitlement to a survivor annuity turns on
whether they were married at the time of his retirement on May 3, 2002, at which
time Mr. Keys indicated he wanted a lifetime-only annuity with no survivor
benefits. If he was married at that time, that election was ineffective because he
and the appellant did not waive her right to a survivor annuity in a written election
filed with OPM. If Mr. Keys was not yet married to the appellant at the time of his
retirement, then she would be entitled to a survivor annuity only if he had
subsequently elected a reduced annuity in a signed writing received by OPM within
2 years of their marriage, which does not appear to have occurred. Because the
record is inadequate to determine whether the common-law marriage between the
appellant and Mr. Keys commenced before his retirement, the Board remanded the
case to the regional office for additional development of the record.
5
► Appellant: Deborah A. Fearon
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 252
Docket Number: PH-831M-07-0022-I-1
Issuance Date: October 26, 2007
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Retirement
- Annuity Overpayment
The appellant petitioned for review of an initial decision that affirmed OPM’s
reconsideration decision, which found that the appellant had received an annuity
overpayment and that she was not entitled to waiver of the overpayment. The appellant
retired on disability in 1989. By letter dated May 24, 2006, OPM informed the
appellant that her eligibility for disability retirement benefits had terminated on June
30, 2004, because she had been restored to earning capacity, and that, for the period
from July 2004 through June 2005, she had been overpaid in the amount of $10,366.
The existence and amount of the overpayment were not in dispute. OPM informed the
appellant that she could either remit the entire amount, or repay that amount, plus
interest, in monthly installments of $250.
On appeal to the Board, the AJ determined that the appellant was not without fault
in the creation of the overpayment, and therefore ineligible for a waiver. The AJ
further found that he could not address the question of whether the appellant was
entitled to an adjustment of the repayment schedule, as it did not appear that OPM
could collect the debt by administrative offset.
Holdings:
1. Recovery of an overpayment will be waived when the annuitant is without fault
and recovery would be against equity and good conscience. 5 U.S.C. § 8346(b). A
recipient of an overpayment is without fault is she has performed no act of
commission or omission that resulted in the overpayment. 5 C.F.R. § 831.1401.
The Board held that the appellant was without fault in the creation of the
overpayment, because:
a. Contrary to the AJ’s finding, the Board found no evidence that the
appellant made incorrect statements or omissions of material fact that
delayed the termination of her disability benefits;
b. Even if the appellant did misreport her earned income, OPM has not alleged
that she underreported the amount, or that the amount she reported was
below the 80% threshold;
c. Once the appellant satisfied her obligation by submitting her earned income
report, she could reasonably expect that OPM would make the correct
determination and notify her promptly if her benefits were to be
terminated; and
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d. When the payments continued, she had every right to assume that OPM had
examined her earned income report and concluded that she was still
entitled to a disability annuity.
2. As to whether recovery of the overpayment would be against equity and good
conscience on the ground that it would cause financial hardship, the Board found
that further development of the record is necessary because the question is a close
one and the financial data is now over a year old. It therefore remanded the case
to the regional office for further adjudication.
► Appellant: LeRon Atkinson
Agency: Department of State
Decision Number: 2007 MSPB 254
Docket Number: DC-1221-07-0301-W-1
Issuance Date: October 26, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Exhaustion of Remedy
- Protected Disclosure
- Contributing Factor
New Evidence
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The agency terminated the appellant’s employment
during his probationary period citing unacceptable performance. After receiving a
letter from the Office of Special Counsel informing him of his right to seek corrective
action from the Board, the appellant filed an appeal with the Board, claiming that he
was terminated in retaliation for disclosing that his supervisor instructed him to
maintain unofficial timekeeping records separate from the official records. The
appellant alleged that he made disclosures concerning this matter to the supervisor
herself, the second-level supervisor, agency officials responsible for the time and
attendance system, and the agency’s Inspector General. The AJ issued an Order to
Show Cause in which she suggested that it would be helpful if the appellant provided a
copy of his correspondence with OSC to show that his OSC complaint addressed all of
the matters raised in his IRA appeal. The appellant responded, but did not submit any
of his correspondence with OSC. In the initial decision, the AJ found that: (1) The
appellant failed to establish that he exhausted his administrative remedies before OSC
with respect to the particular allegations raised before the Board; (2) the appellant
failed to explain why he believed that the actions he disclosed constituted a violation of
law, rule, or regulation, or any other category specified in 5 U.S.C. § 2302(b)(8); the
appellant’s disclosures were not protected because they were made as part of his normal
job duties.
Holdings:
1. The AJ correctly ruled that the appellant failed to exhaust his remedy with OSC
as required by 5 U.S.C. § 1214(a)(3), as he never presented evidence to the AJ to
establish what issues he raised before OSC. Although the appellant has submitted
7
such evidence on PFR, he did not seek this evidence until after the initial decision
was issued, and almost 3 months after the AJ requested the evidence. Under the
circumstances, the Board found that the appellant did not exercise due diligence in
attempting to obtain copies of his correspondence with OSC, and it therefore
denied the petition for review.
2. Nevertheless, the Board exercised its discretion to reopen the appeal because the
appellant’s evidence implicates the Board’s jurisdiction and warrants a different
outcome.
3. The appellant’s allegations that his supervisor asked him to keep unofficial time
and attendance records that differed from the official records are sufficient in and
of themselves to constitute a nonfrivolous allegation that his supervisor violated a
law, rule, or regulation.
4. Because it does not appear that reporting wrongdoing was part of the
appellant’s normal job duties, the appellant’s disclosures, with the exception of the
disclosure to the supervisor herself, are protected. The appeal was remanded for
adjudication on the merits.
► Appellant: Calvin Slocum
Agency: United States Postal Service
Decision Number: 2007 MSPB 253
Docket Number: AT-0752-07-0157-I-1
Issuance Date: October 26, 2007
Appeal Type: Adverse Action by Agency
Miscellaneous Agency Actions
- Indefinite Suspensions
The appellant petitioned for review of an initial decision that dismissed his appeal
for lack of jurisdiction. The appellant, a preference-eligible Mail Handler, submitted a
Family and Medical Leave Act certification in which his doctor stated that the appellant
needed to be absent from work indefinitely. The appellant continued reporting to work,
however, and the agency informed the appellant that his FMLA certification was
incomplete. On the new certification, the appellant’s doctor stated that the appellant
needed to be released from work until he completed medical treatment, a period the
doctor estimated could last a year or more. On October 4, 2006, 2 days after receiving
the second certification, the agency placed the appellant in a non-duty status because of
his doctor’s medical assessment. Between October 4 and December 8, 2006, the
appellant used a combination of sick leave, annual leave, and leave without pay
(LWOP).
The appellant filed an appeal on November 16, stating that he was challenging a
removal and a negative suitability determination, but identified the effective date of the
challenged action as October 4, 2006. In its response to the appeal, the agency stated
that it had taken “steps to reverse the enforced leave period, changing the pay status to
administrative leave beginning on October 18, 2006.” The AJ held that the Board
lacked jurisdiction to review either the appellant’s placement on LWOP for 14 calendar
days or his placement on administrative leave.
8
Holdings:
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. Retroactively limiting the appellant’s leave
without pay to 14 days did not completely rescind the agency’s action, and the
appellant did not consent to divesting the Board of jurisdiction.
2. An employee’s absence for more than 14 days that results in a loss of pay may be
a constructive suspension under 5 U.S.C. §§ 7512(2) and 7513(d). The dispositive
issue in determining whether a suspension occurred is who initiated the absence; if
the appellant voluntarily initiated the absence, then it is not a constructive
suspension. Because the AJ never informed the appellant of what he needed to
show in order to establish Board jurisdiction over his appeal as a constructive
suspension, the appeal must be remanded to provide the appellant with an
opportunity to establish that he was subjected to a constructive suspension.
► Petitioner: William D. Jones
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 255
Docket Number: CB-1205-07-0021-U-1
Issuance Date: October 26, 2007
Appeal Type: Request for Regulation Review
Miscellaneous Topics
- Regulation Review
The petitioner requested Board review of OPM’s regulations or rules that pertain to
uniformed service credit for the accrual of annual leave under 5 U.S.C. § 6303(a).
Specifically, the petitioner objects to OPM’s guidance in its Guide to Processing
Personnel Actions and in its VetGuide, which fail to provide service credit for annual
leave under section 6303(a) for the entire period of active military service that he
performed during the “Vietnam Era,” whether or not he was actually serving in the
Republic of Vietnam.
Holdings: The Board denied the petitioner’s request because:
1. The petitioner is not an “interested person” within the meaning of 5 U.S.C.
§ 1204(f)(1)(B) entitled to file a petition for regulation and/or rule review. OPM’s
guidance is inapplicable to the petitioner because he is a Postal employee, and
5 U.S.C. Chapter 63 does not apply to the Postal Service.
2. The petitioner has not alleged that the rules in question would, on their face or if
implemented by any agency, require any employee to engage in a prohibited
personnel practice as set forth by 5 U.S.C. § 2302(b).
3. The petitioner’s argument that OPM’s rules are contrary to the statute’s intent
is weak in light of precedent. The rules that the petitioner requests the Board to
9
review have already withstood scrutiny by the Board and the U.S. Court of Appeals
for the Federal Circuit.
► Appellant: Janice L. Stribling
Agency: Department of Education
Decision Number: 2007 MSPB 261
Docket Number: DC-0752-06-0291-I-1
Issuance Date: October 30, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
Discrimination
- Mixed Case Procedures
The appellant filed a petition for review of an initial decision that dismissed her
appeal without prejudice. The agency removed the appellant from her position as a
Secretary based on charges of misconduct. After filing an appeal with the Board, the
appellant submitted a request to withdraw the appeal, indicating that she wanted to have
her removal investigated by the agency’s Equal Employment Opportunity Group. On
March 15, 2006, the AJ dismissed the appeal without prejudice to refiling within 30
days after the agency issued a final decision on the EEO complaint, or after 120 days
had passed after the filing of the EEO complaint without resolution. On June 27, 2007,
the appellant filed a petition for review stating that she was medically unable to file her
PFR in a timely fashion.
Holdings:
1. The petition for review is untimely filed with no good cause shown for the delay.
The appellant’s medical documentation does not address her condition during the
period at issue, i.e., between the issuance of the initial decision in March 2006 and
the filing of the PFR in June 2007. In addition, the appellant demonstrated the
ability to actively participate in other legal proceedings during this period.
2. Although the appellant titled her June 2007 pleading as a petition for review, it
is possible that she is actually seeking to refile her removal appeal rather than to
challenge the dismissal of her earlier appeal without prejudice. Such a refiling
may be timely, depending on whether or when the agency acted on the appellant’s
EEO complaint. Accordingly, the Board forwarded the case to the regional office
for docketing as a refiled appeal of her removal.
10
► Appellant: Samuel E. Kile, Jr.
Agency: Department of the Air Force
Decision Number: 2007 MSPB 260
Docket Number: AT-0752-05-0931-B-1
Issuance Date: October 30, 2007
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Rank/Pay
Jurisdiction
- Reduction in Pay/Grade
The agency filed a petition for review of a remand initial decision that reversed the
agency’s action appointing him to a GS-7 position, and ordering the agency to restore
him to the WG-10 position he formerly held. Although a majority of the Board denied
the petition for review without issuing an Opinion and Order, Chairman McPhie issued
a dissent. He argued that the initial decision conflicted with the Board’s previous
Opinion and Order, reported at 104 M.S.P.R. 49 (2006), which had found that the
appellant had not be reduced in grade, and that the proper issue was whether the
appellant had suffered a reduction in pay, an issue that has still not been resolved.
► Appellant: Armanda E. Coles
Agency: United States Postal Service
Decision Number: 2007 MSPB 257
Docket Number: AT-0752-05-0486-X-2
Issuance Date: October 30, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Compliance
- Dismissal on Proof
The case was before the Board pursuant to the AJ’s recommendation finding the
agency in partial compliance with a final Board order.
Holding: The petition for enforcement was dismissed without prejudice in light of
the agency’s affirmation that it has taken the necessary actions for compliance.
11
► Appellant: James Ramos, Jr.
Agency: Department of Justice
Decision Number: 2007 MSPB 258
Docket Number: SF-315H-01-0499-X-1
Issuance Date: October 30, 2007
Appeal Type: Termination of Probationers
Compliance
- Dismissal on Proof
The case was before the Board pursuant to the AJ’s recommendation finding the
agency in partial compliance with a final Board order.
Holding: Because the agency is now in full compliance with the Board’s final
order, the petition for enforcement was dismissed as moot.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any precedential
decisions reviewing Board decisions since the previous Case Report. It has, however,
issued nonprecedential decisions, which can be accessed at the court’s website. | 24,924 | |
Case Report - October 26, 2007 | 10-26-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_26_2007_294937.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_26_2007_294937.pdf | CASE REPORT DATE: October 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
► Appellant: Kenneth M. Pedeleose
Agency: Department of Defense
Decision Number: 2007 MSPB 248
Docket Number: AT-0752-06-0350-I-1
Issuance Date: October 24, 2007
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
- Abuse of Authority
- Contributing Factor
- Clear and Convincing Evidence
The appellant petitioned for review of an initial decision that affirmed the
agency’s 30-day suspension for charges of refusing to cooperate in an agency
investigation, insubordination, and failure to follow instructions.
The appellant was an Industrial Engineer who, with other employees, developed
and submitted a May 16, 2005 report to the agency’s Inspector General (IG) and
Senator Grassley, that detailed safety problems and waste in connection with the C-130J
program (the C-130J is a tactical cargo and personnel transport aircraft). A month later,
the appellant helped Susan VanDerbeck, an engineer and probationary employee, file a
complaint with the IG regarding safety issues she had observed in her work in the
C-130J program. The appellant e-mailed a copy of VanDerbeck’s complaint to the IG,
with a copy to his supervisor, Colonel Nicole Plourde. On June 15, 2005, the appellant
received information that, in a meeting, Plourde discussed the safety issues that
VanDerbeck was raising and that Plourde was quoted as saying that “since Susan
VanDerbeck is a probationary employee all they have to do is fire her.” The appellant
2
e-mailed this information to the IG. The agency terminated VanDerbeck the following
day. On June 16, 2005, a former employee sent the appellant an e-mail message stating
that she had learned that VanDerbeck and two other employees were targeted by
Plourde for termination. Two days later, when it was known that VanDerbeck had been
fired, the appellant phoned one of these employees (Sawyer) at home and told her that
he had heard that she was “targeted to be fired.” Sawyer became very upset and
decided to retire to avoid removal, and she submitted paperwork for her retirement
when she returned to work on Monday. Supervisors met with Sawyer and told her the
rumor was false. Plourde asked Sawyer to reveal the name of the person who had told
her she was going to be fired, but Sawyer declined to do so.
Plourde decided to conduct an investigation into the source of the information
that Sawyer was about to be fired, and appointed Stacy Scantlebury to conduct the
investigation. Despite a number of directives, the appellant refused to cooperate with
Ms. Scantlebury’s investigation, stating his belief that the Scantlebury investigation
would interfere with the investigation of the same matters he believed would be
investigated by the IG.
In an appeal decided on the written record, the administrative judge (AJ)
sustained the three charges, and found that the appellant failed to prove his affirmative
defenses, which included retaliation for whistleblowing. The AJ found the penalty to
be within the bounds of reasonableness.
Holdings:
1. Although the general rule is that an employee must first comply with an order he
believes to be improper and register his complaint or grievance later, there are
exceptions to this rule. Two considerations underlie the “obey now, grieve later”
rule: (1) the agency and its mission may be harmed by the employee’s failure to
act; and (2) the employee may be mistaken in his belief.” Accordingly, cases where
employees are disciplined for breaking the rule usually involve investigations of
potential crimes and serious misconduct. None of these consideration are present
in this case. In addition, the appellant raised legitimate concerns about the
investigation, and sought the advice of the IG and did not get a definitive answer
about whether the investigation was lawful. He also supplied the information that
Plourde sought to the IG and informed Plourde and Scantlebury that he had done
so. Moreover, neither Plourde nor Scantlebury informed the appellant that they
had come to an accommodation with the IG that would ensure that the two
investigations did not conflict with one another. Under all these circumstances, a
majority of the Board found that the agency failed to prove its charges of
misconduct.
2. One of the appellant’s allegations of protected disclosures lies at the heart of this
appeal: that threatening to fire VanDerbeck, who had also made protected
disclosures regarding the safety of the C-130J program, was a violation of the WPA
and an abuse of authority. The Board stated in this regard that a supervisor’s “use
of his or her influence to denigrate other staff members in an abusive manner and
to threaten the careers of staff members with whom he or she disagrees constitutes
3
abuse of authority.” The Board found that Plourde know of VanDerbeck’s safety
disclosures and that VanDerbeck was a competent employee with knowledge of the
C-130J, and that the appellant had a reasonable belief that Plourde had been
correctly quoted regarding firing VanDerbeck and that Plourde’s statement
exhibited a violation of the WPA and an abuse of authority.
3. The appellant established by preponderant evidence that his protected discloure
was a contributing factor in his suspension, and the agency failed to show by clear
and convincing evidence that it would have taken the same action in the absence of
the disclosure. The Board ordered the agency to take corrective action.
Chairman McPhie issued a dissenting opinion. He would have found that the
agency proved its misconduct charges. He stated that he would not make an exception
to the obey-now-grieve-later principle, which the Board has recognized only in unusual
cases, e.g., when an employee would be required to obey an unlawful instruction, when
obeying the order would place him in danger of serious harm, or when obeying the
order would result in his surrender of a constitutionally-protected right. He found that
the present case is unlike any of the extreme situations. The Chairman did not agree
that the appellant made a protected disclosure under the Whistleblower Protection Act.
He characterized the appellant’s disclosure as consisting of “fourth-hand information
about what was said in a meeting that the appellant did not attend.”
► Appellant: Henry Heffernan
Agency: Department of Health and Human Services
Decision Number: 2007 MSPB 246
Docket Number: DC-0752-04-0756-P-1
Issuance Date: October 19, 2007
Appeal Type: Adverse Action by Agency
Action Type: Compensatory Damages
Miscellaneous Topics
- Compensatory Damages
The appellant petitioned for review of an addendum initial decision that awarded
him $3,000 in compensatory damages. In the merits appeal, the Board concurred in and
adopted the finding of the EEOC that the appellant had proved his claims of religious
discrimination and retaliation for protected EEO activity in connection with his removal
appeal.
Heffernan v. Department of Health & Human Services, 105 M.S.P.R. 41
(2007). In this addendum decision, the AJ determined that the appellant was entitled to
$3,000 in compensatory damages.
Holding: Based on awards made by the EEOC in similar circumstances, the Board
determined that $25,000 was the appropriate amount of compensatory damages for
the appellant’s non-pecuniary losses, which include emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, injury to character and
reputation, and loss of health. Based on the appellant’s own affidavit and that of
his sister, the appellant established that he suffered mental pain and anguish as a
result of the agency’s actions, and that his professional standing as a Jesuit priest
4
was severely damaged. The Board noted that the appellant had not presented
medical evidence in support of his compensatory damages claim, but observed that
such evidence is not required.
► Appellant: Joyce Branch Williams
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 247
Docket Number: PH-0752-06-0522-M-1
Issuance Date: October 23, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
This case was before the Board pursuant to a decision of our reviewing court,
which held that the Board lacked subject matter jurisdiction over this removal appeal
because the appellant had elected to pursue relief for the same claims in the United
States District Court for the District of Maryland, and that court had addressed the same
issues presented in the Board appeal.
Williams v. Department of Veterans Affairs,
No. 2007-3140 (Fed. Cir. July 13, 2007) (NP).
Holding: Pursuant to the Federal Circuit’s decision, the Board dismissed the
appeal for lack of subject matter jurisdiction.
COURT DECISIONS
► Appellant: David L. Gutkowski
Agency: United States Postal Service
Docket Number: 2007-3022
Issuance Date: October 23, 2007
Compliance
At issue in this enforcement proceeding was the agency’s compliance with a final
Board order that mitigated a removal action to a 90-day suspension and a demotion to
the “next-highest non-supervisory position.” Initially, the agency assigned Gutkowski
to a Part-Time Flexible PS-5 Distribution Clerk position. The agency later appointed
him to the non-supervisory, EAS-11 position of Postmaster, Shawanese, Pennsylvania.
In response to Gutkowski’s contention that he should have been considered for a
number of identified vacancies, the agency averred that offering him any of these
positions would have violated the applicable collective bargaining agreement. In the
initial decision that became the Board’s final decision, the AJ ruled that it would not
have been “reasonable to require the agency to violate the National Agreement in
seeking to place” Gutkowski following the final Board order.
5
Holding: The court agreed that an agency is not required, pursuant to the terms of
a Board order, to assign an employee to a particular position when that assignment
would violate the applicable collective bargaining agreement. The court stated that
it need not decide, however, whether the Board has the authority to order an
assignment that would violate the CBA because an agency’s interpretation of its
own orders is entitled to significant deference, and the Board reasonably construed
the term “next highest non-supervisory position” as excluding positions that were
unavailable under the CBA.
Non-Precedential Decisions
Additional, non-precedential decisions issued by the Court of Appeals for the
Federal Circuit that reviewed MSPB decisions can be found at the court’s website. | 10,996 | |
Case Report - October 19, 2007 | 10-19-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_19_2007_293704.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_19_2007_293704.pdf | CASE REPORT DATE: October 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
► Appellant: Daniel T. Mapstone
Agency: Department of the Interior
Decision Number: 2007 MSPB 243
Docket Number: AT-3443-07-0076-I-1
Issuance Date: October 11, 2007
Jurisdiction
Miscellaneous Agency Actions
- Employment Practices
The appellant petitioned for review of an initial decision that dismissed his
appeal for lack of jurisdiction. The appellant, a FS-0401-12 Fire Management Officer
with the National Park Service, applied for a FS-0401-13/14 Fire and Aviation
Management Officer position. When the agency notified the appellant of his
non-selection, the agency advised that he “did not meet the minimum qualification
requirements as stated in the vacancy announcement” and failed to “meet basic
requirements.” Responding to the appellant’s request for clarification, the agency
advised that, per OPM’s guidelines, one of the “basic requirements” was a “degree” in
the relevant fields of study, and that a “degree is identified as successful completion of
a full 4-year course of study in an accredited college degree leading to a bachelor’s
degree....” The appellant had attained two separate Associate’s Degrees, one in
Agriculture, and one in Forestry. In response to the Acknowledgment Order and the
agency’s motion to dismiss, the appellant argued that the Board has jurisdiction as an
employment practices appeal under 5 C.F.R. §§ 300.103 and 300.104.
Holdings:
1. The Board affirmed the initial decision insofar as it related to the appellant’s
non-selection. Although the AJ failed to provide the appellant with adequate
2
information about the evidence and arguments he must present in order to make a
non-frivolous allegation of jurisdiction, this was cured by the agency’s motion to
dismiss and the initial decision, and the appellant has not submitted additional
evidence and argument to make a non-frivolous allegation of jurisdiction.
2. The Board vacated the initial decision insofar as it related to an employment
practices appeal under 5 C.F.R. §§ 300.103 and 300.104. To establish jurisdiction
under these provisions, an appellant must show that: (1) The actions in question
constitute employment practices within the meaning of 5 C.F.R. Part 300,
Subpart A; (2) the employment practice violates the basic requirements of 5 C.F.R.
§ 300.103; and (3) OPM is involved in the administration of those practices. The
appellant has done that in this case, making a non-frivolous allegation that there is
no rational relationship between the minimum educational requirement set out in
the vacancy announcement (4-year Bachelor’s Degree) and performance in the
GS-14 position. The appellant also showed the requisite involvement by OPM.
The agency relied on OPM’s qualification standard in rejecting the appellant’s
application, and the appellant had alleged that OPM was involved with the
qualifications for this position through the Federal Fire and Aviation Leadership
Council.
► Appellant: Jerome N. Williams
Agency: Department of Agriculture
Decision Number: 2007 MSPB 244
Docket Number: DC-0752-07-0156-I-1
Issuance Date: October 11, 2007
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction
- Resignation
The appellant petitioned for review of an initial decision that dismissed his
appeal of his resignation from a GS-14 position for lack of jurisdiction. Following his
retirement in May 2005, the appellant filed an EEO complaint, alleging that he was
discriminated against on the basis of race, age, and disability, and alleging reprisal for
prior EEO activity. He contended that he was forced to retire because of intolerable
working conditions, including, inter alia: (1) he was directed to perform the duties of a
GS-15 supervisory position, even though he had applied for that position but was not
selected; (2) he was assigned to an office space and desk size that were not in
compliance with GSA standards; (3) that the work was tumultuous; and (4) the agency
denied his request to telecommute as a reasonable accommodation for his disability.
The agency accepted the first three of these issues for investigation, but dismissed the
appellant’s allegation of denial of reasonable accommodation on the basis that this
claim was the subject of another, on-going EEO complaint. After the agency issued a
final decision finding no discrimination, the appellant filed this appeal with the Board,
reiterating all of his discrimination claims, including the reasonable accommodation
3
claim dismissed by the agency. The agency moved to dismiss the appeal for lack of
jurisdiction, and as untimely filed.
The AJ dismissed the appeal for lack of jurisdiction, without ruling on the
timeliness issue. In his jurisdictional analysis the AJ limited the appellant’s
constructive discharge claim to the issues the agency accepted for investigation, and
found that the appellant’s allegations failed to reach the level or coercion necessary to
overcome the presumption of voluntariness associated with a retirement.
Holdings:
1. When an appellant alleges that intolerable working conditions led to his
retirement, the jurisdictional test is whether, under all the circumstances, working
conditions were made so difficult by the agency that a reasonable person in the
employee’s position would have felt compelled to retire. When allegations of
discrimination are made in connection with a claim of involuntariness, they may be
addressed only insofar as they relate to the issue of voluntariness. Here, the AJ
should have considered the appellant’s claim of denial of a reasonable
accommodation, in addition to the other allegations of involuntariness.
Considering all of these matters, the appellant made allegations of fact which, if
proven, could establish the Board’s jurisdiction over his retirement, and he is
therefore entitled to a jurisdictional hearing.
2. Because the appeal was filed within 30 days after the appellant received the
agency’s final decision on his discrimination complaint, it was timely filed under
5 C.F.R. § 1201.154(b)(1).
In his dissent, Chairman McPhie stated that the AJ’s show-cause order
reasonably construed the appeal as alleging that the appellant “was forced into
retirement because of discrimination based on his race, sex, and age,” and also “in
reprisal for his prior discrimination complaints,” and noted that the appellant responded
to this order by addressing the timeliness question only. In finding that the AJ should
have considered the alleged denial of reasonable accommodation, the majority relied on
5 pages in the agency’s 250-page Report of Investigation, but the appellant did not raise
these matters himself on appeal. Chairman McPhie wrote that “the lesson for
administrative judges is that they must plow through as many pages of documents as the
parties choose to submit to determine whether an argument that the appellant has not
raised in response to a show-cause order, but could have raised, might provide a basis
for relief.”
4
► Appellant: Jennifer A. Williams
Agency: Department of Housing and Urban Development
Decision Number: 2007 MSPB 245
Docket Number: CH-0752-95-0053-I-1
Issuance Date: October 11, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
The appellant petitioned for review of an initial decision, issued in 1995, that
dismissed her removal appeal pursuant to a settlement agreement. She did not submit
evidence or argument to excuse the 12-year delay in seeking review.
Holding: The Board dismissed the petition for review as untimely filed without
good cause shown.
COURT DECISIONS
► Appellant: James A. Lowder
Agency: Department of Homeland Security
Docket Number: 2006-3181
Issuance Date: October 16, 2007
Retirement
- Service Credit – Law Enforcement Provision
The issue was whether the appellant’s 1970-1978 service in the United States
Secret Service Uniformed Division qualified primary law enforcement officer service
such that he would be qualified for the more favorable retirement benefits associated
with that status. While at the Uniformed Division, the appellant’s regular duties
involved protecting the President of the United States, his family and the White House
grounds. The MSPB administrative judge ruled that the appellant did not qualify for
law enforcement officer coverage because his service in the Uniformed Division “was
not in a position which existed for the purpose of investigating, apprehending, or
detaining individuals suspected or convicted of violating the criminal laws of the
United States,” as required by law, and therefore did not constitute law enforcement
officer service.
Holdings:
1. In the “position-oriented approach” adopted by the court in Watson v.
Department of the Navy, 262 F.3d 1292, 1304 (Fed. Cir. 2001), the determination
whether a particular employee is a “law enforcement officer” emphasizes “the
official documentation of the postion” in evaluating whether “the ‘basic reasons for
the existence of the position’ was the investigation, apprehension, or detention of
5
criminals or suspects.” The Board correctly found that the appellant’s duties did
not meet this requirement. This finding is reinforced by the classification by OPM
of the appellant’s position in the 083 Police Series. In Watson, the court stated that
“the official documentation of the GS-083 series indicates that all officers in that
series in all departments of the federal government are presumptively not entitled
to [law enforcement officer] credit.” Nothing in the record overcame that
presumption.
2. That the Board’s decision did not explicitly discuss several of the appellant’s
contentions did not merit reversal or remand. The AJ “wrote a detailed opinion
that convincingly explained why Lowder’s service with the Uniformed Division was
not a a ‘law enforcement officer.’ No more detailed discussion was required.”
3. The AJ did not abuse his discretion in excluding the testimony of three witnesses
that the appellant wanted to present.
4. The appellant’s contention that his claim for law enforcement officer status
should have been determined under the Civil Service Retirement System, but under
the later-enacted Federal Employees’ Retirement System, was without merit.
Non-Precedential Decisions
Additional, non-precedential decisions issued by the Court of Appeals for the
Federal Circuit that reviewed MSPB decisions can be found at the court’s website. | 10,746 | |
Case Report - October 5, 2007 | 10-05-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_5_2007_291265.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_5_2007_291265.pdf | CASE REPORT DATE: October 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.
BOARD DECISIONS
► Appellant: Betty J. Haskins
Agency: Department of the Navy
Decision Number: 2007 MSPB 234
Docket Number: AT-3443-06-0730-I-1
Issuance Date: September 28, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied corrective
action with regard to certain actions in this USERRA claim, and dismissed the
remaining portion of her appeal as moot. The appellant claimed that the agency
improperly charged her military leave on non-workdays while she was performing
military service. During the processing of her appeal, she identified 15 non-workdays
on which she claimed she was mischarged military leave. The agency conceded that it
had improperly charged her with military leave on 11 of these 15 days, and promised to
reimburse the appellant for those dates. In his initial decision, the AJ found that the
agency’s representations that it intended to provide status quo ante relief were
sufficient to render the appeal moot as to the 11 dates for which the agency conceded
that it had improperly charged the appellant military leave, and that any contentions
that the appellant was not provided with status quo ante relief could be addressed in a
petition for enforcement. As to the 4 remaining dates, the AJ found that the appellant’s
affidavit was insufficient to establish that the agency had improperly charged military
leave because it was rebutted by agency records showing that she was not charged any
form of leave on those dates.
Holdings:
1.
The Board overruled Dombrowski v. Department of Veterans Affairs, 102
M.S.P.R. 160 (2006), in light of our reviewing court’s ruling in Pucilowski v.
Department of Justice, No. 2006-3388 (Fed. Cir. Aug. 29, 2007), which held that the
2
Board has the authority under USERRA to order a remedy for an agency’s
improper denial of military leave benefits by requiring agencies to correct the
employee’s leave record to reflect a proper accounting of military leave.
2. The AJ correctly denied corrective action as to the 4 disputed dates. The
agency’s records show that the agency did not charge her any leave on those dates.
3. The AJ erred in dismissing the appeal as moot because: (a) He did not make a
determination that the relief that the agency conceded was due to the appellant
constituted all the relief she could have received if the appeal had been adjudicated
and she had prevailed; and (b) assuming that the relief that the agency intends to
provide is sufficient to moot the appeal, he did not require the agency to submit
evidence establishing that it has actually afforded such relief. In this regard, the
Board overruled several previous decisions: Hill v. U.S. Postal Service, 69 M.S.P.R.
453, aff’d, 104 F.3d 376 (Fed. Cir. 1996) (Table); Hatler v. Department of the Air
Force, 3 M.S.P.R. 322 (1980); Cupp v. U.S. Postal Service, 66 M.S.P.R. 4 (1994); and
Dellera v. Department of Housing & Urban Development, 65 M.S.P.R. 636 (1994),
aff’d, 82 F.3d 434 (Fed. Cir. 1996) (Table).
► Appellant: Paula M. Shaver
Agency: Department of the Air Force
Decision Number: 2007 MSPB 229
Docket Number: DC-3443-07-0181-I-1
Issuance Date: September 27, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied her request
for corrective action under the Veterans Employment Opportunities Act. She alleged
that the agency’s practice of giving military spouses priority over veterans violated her
rights as a preference-eligible candidate for positions with the agency. Following a
number of procedural pleadings, Board issuances, and a status conference regarding
jurisdictional issues and exhaustion of administrative remedies, the AJ issued a decision
finding that the appellant established Board jurisdiction, but denied the appellant’s
request for corrective action on the grounds that the information the appellant supplied
as to the positions at issue was so vague as to make it impossible to determine what
positions the appellant actually applied for and whether she was found qualified for
those positions. The AJ declined to issue an advisory opinion as to whether the military
spouse preference abrogated veterans’ preference rights.
Holdings:
1. The appellant exhausted her remedy with the Secretary of Labor with respect to
one vacancy announcement, but it was unclear whether she did so with respect to
other agency actions. The appellant purposely avoided identifying specific agency
actions as the subject of her appeal, and instead sought a decision in the nature of
an advisory opinion concerning the agency’s use of military spouse preference.
The Board does not have the authority to issue advisory opinions.
3
2. On remand, the Board directed the AJ to issue an order requiring the appellant
to indicate the specific agency actions that she is attempting to appeal to the Board
and, to the extent that she has not already done so, to demonstrate that she has
exhausted her remedy with the Secretary of Labor regarding those actions.
► Appellant: Lester R. Mitchell
Agency: Department of Commerce
Decision Number: 2007 MSPB 235
Docket Number: AT-3443-07-0244-I-1
Issuance Date: September 28, 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. The appellant claimed that the agency failed to
consider his veterans’ preference status when it selected another employee for a
temporary position in January 2005. The AJ dismissed the appeal for lack of
jurisdiction on the basis that the appellant failed to submit a complaint with the
Department of Labor within 60 days of his nonselection, as required by 5 U.S.C.
§ 3330a(a)(2)(A). In his petition for review (PFR), the appellant argues that his
repeated attempts to file a VEOA complaint were unsuccessful because his multiple
telephone calls were redirected among various state and federal agencies.
Holding: The record shows that the appellant did not initiate his attempts to file a
complaint until August 2006, 19 months after the agency effected the appointment
of another employee to the vacancy in question.
Although our reviewing court has
found that the doctrine of equitable tolling may apply to VEOA appeals, Kirkendall
v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), this doctrine
generally applies where the claimant actively pursued his remedies by filing a
defective pleading during the statutory period, or where the complainant has been
induced or tricked by his adversary’s misconduct into allowing the filing deadline
to pass. Here, the appellant’s failure to file a timely complaint with DoL resulted
from his failure to exercise due diligence in preserving his legal rights.
► Appellant: Clarence R. Dunbar
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 230
Docket Number: DA-844E-06-0524-I-1
Issuance Date: September 27, 2007
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
- Disability Retirement
OPM petitioned for review of an initial decision that reversed its determination
that the appellant was not entitled to disability retirement benefits. The appellant, who
had resigned from his position as a WG-2 Housekeeping Aid, applied for disability
retirement on the basis of degenerative disc disease, radiculopathy, numbness in the
4
lower extremities, hypertension, and kidney disease. OPM denied the application,
determining that the appellant’s medical documentation did not establish that he was
unable to perform the duties of his position because of a disabling medical condition.
On appeal to the Board’s regional office, the AJ found, after a hearing, that the
appellant is entitled to disability retirement benefits. In its PFR, OPM argued that the
AJ erred by relying almost exclusively on the appellant’s subjective evidence to the
exclusion of the objective medical evidence.
Holding: Although an employee’s own evidence concerning his medical condition
is entitled to weight when it is supported by competent medical evidence, the
medical evidence did not support the appellant’s assertions in this case, and he has
not established that he is unable to render useful and efficient service in his
position.
► Appellant: Lawson A. Rose
Agency: United States Postal Service
Decision Number: 2007 MSPB 231
Docket Number: CH-0752-07-0121-I-1
Issuance Date: September 27, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Board Procedures/Authorities
- Withdrawal of Appeal/PFR
The appellant petitioned for review of an initial decision that dismissed his
appeal of an indefinite suspension as withdrawn. The agency placed the appellant in an
off-duty status without pay and instructed him not to return to duty until notified. After
an appeal was filed with the Board’s regional office, the agency issued the appellant a
Notice of Proposed Removal, and agreed to pay the appellant back pay from
November 6, 2006, the effective date of his suspension, through December 27, 2006.
The agency paid the appellant a portion of this amount and notified him that he would
receive the remainder on January 26, 2007. According to the AJ’s summary of a
telephonic conference that occurred on January 29, 2007, the appellant stated that he
had received the payment and wished to withdraw his appeal, and the AJ issued an
initial decision dismissing the appeal.
In his PFR, the appellant asserts that the withdrawal of his appeal was
conditional on two acts that did not occur: his receipt of compensation for the entire
period of his suspension, which did not end until the close of business on January 31,
2007; and reimbursement for the annual leave he used during his suspension.
Holding: Ordinarily, an appellant’s withdrawal of an appeal is an act of finality,
but a relinquishment of appeal rights to the Board must be by clear, unequivocal,
and decisive action, and the Board may relieve an appellant of the consequences of
his decision when the decision was based on misleading or incorrect information
provided by the Board or the agency. Here, the record indicates that the
appellant’s agreement to withdraw his appeal was based on certain conditions that
5
do not appear to have been satisfied, and the Board concluded that the record did
not establish that the appellant relinquished his right to appeal by clear,
unequivocal, and decisive action.
The initial decision was vacated and the appeal remanded to the regional office
for adjudication.
► Appellant: Danny R. Jinks
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 232
Docket Number: AT-0752-06-1053-I-1
Issuance Date: September 28, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Defenses and Miscellaneous Claims
- Harmful Error
Penalty
- Insubordination/Failure to Follow Instructions
The appellant petitioned for review of an initial decision that sustained his
removal from a supervisory position based on charges of failure to follow instructions
and insubordination. Following a hearing, the AJ sustained the charges, found that the
appellant failed to prove his affirmative defenses of race discrimination, reprisal for
EEO activity, and harmful procedural error, and found that the removal penalty was
within the bounds of reasonableness.
Holding: The Board affirmed the AJ’s findings. With regard to the assertion of
harmful procedural error, there is nothing in the record indicating that, before the
hearing, the AJ apprised the appellant of the burden and elements of proof for
such a claim, but this was corrected during the hearing, and the appellant has not
identified any evidence that would show that the agency committed a procedural
error that likely had a harmful effect upon the outcome of his case before the
agency. With regard to the reasonableness of the penalty, the agency and the AJ
erred to the extent that they considered disciplinary actions that were not listed in
the proposal notice. Nevertheless, the Board found that removal was warranted
without consideration of those disciplinary actions.
6
► Appellant: Elizabeth A. Johnson
Agency: Department of the Army
Decision Number: 2007 MSPB 233
Docket Number: DC-0752-07-0338-I-1
Issuance Date: September 28, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
The appellant petitioned for review of an initial decision that dismissed her
appeal of a removal action for lack of jurisdiction. The issue was whether the appellant
fell within 5 U.S.C. § 7511(b)(8), which excludes from chapter 75 coverage an
employee “whose position is within... an intelligence component of the Department of
Defense (as defined in section 1614 of title 10), or an intelligence activity of a military
department covered under subchapter I of chapter 83 of title 10....” The AJ found
that the appellant, who was employed in the Indications and Warnings Branch,
Intelligence Operations Division, Directorate of Intelligence, Headquarters Joint
Special Operations Command, was employed in an intelligence component of the
Department of Defense, viz., an organization covered by 10 U.S.C. § 1614(2)(D).
Holdings:
1. The appellant was not employed in an intelligence component of the Department
of Defense.
2. The appellant was employed in an intelligence activity of a military department
covered under subchapter I of chapter 83 of title 10. She is therefore excluded
under 5 U.S.C. § 7511(b)(8) from coverage under the provisions of 5 U.S.C. chapter
75 that generally provide employees with the right to appeal their removals.
► Appellant: McTrena Davis
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 236
Docket Number: CH-0752-06-0724-I-1
Issuance Date: October 2, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures/Authorities
- Adjudicatory Error
Discrimination
- Physical/Mental Disability
Settlement
The appellant petitioned for review of an initial decision that affirmed her
removal on various misconduct charges.
7
Holdings:
1. The appellant’s challenges to the AJ’s procedural rulings, findings of fact, and
conclusions of law constitute mere disagreement with the explained findings of the
initial decision, which are supported by the record.
2. The AJ erred by failing to address the appellant’s affirmative defense of
disability discrimination, but remand is not necessary. The appellant failed to
establish that she was a disabled individual. The evidence indicates that she
suffered “work-related stress,” and that she attributed a significant portion of this
stress to her alleged harassment and mistreatment by her immediate supervisor,
but an appellant’s inability to work with a particular supervisor is not enough to
show that she is substantially limited in the major life activity of working.
3. The appellant’s assertion that the AJ erred by failing to “discuss the settlement”
in the initial decision is without merit. At the conclusion of the hearing, the agency
prepared a written settlement agreement for the appellant’s signature, but instead
of signing it, the appellant submitted a counter settlement offer, which the agency
did not accept. Accordingly, a binding settlement agreement was not reached.
COURT DECISIONS
The court has not issued any precedential decisions reviewing MSPB decisions
since the issuance of the last Case Report. It has issued some nonprecedential decisions
reviewing MSPB decisions, which can be found at the court’s website.
FEDERAL REGISTER NOTICE
72 Fed. Reg. 56883. On October 5, 2007, the Merit Systems Protection Board issued an
Interim Rule, to be effective November 5, 2007, revising its regulations to clarify the
procedures applicable to MSPB processing and adjudication of cases arising under the
Department of Homeland Security’s new human resources management system
estblished pursuant to the Homeland Security Act of 2002. As discussed in the notice,
these regulations are necessary to reconcile the Board’s regulations and procedures with
final regulations published by the Department of Homeland Security and the Office of
Personnel Management on February 1, 2005, at 70 Fed. Reg. 5272. | 16,570 | |
Case Report - September 14, 2007 | 09-14-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_14_2007_286643.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_14_2007_286643.pdf | CASE REPORT DATE: September 14, 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: Jennifer Marshall
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 209
Docket Number: CB-7121-07-0017-V-1
Issuance Date: September 7, 2007
Appeal Type: Arbitration Appeals/Grievances
Arbitration/Collective Bargaining-Related Issues
- Election of Remedy
- Review Authority of MSPB
The appellant sought review of an arbitrator’s award finding that her removal
was not subject to arbitration because she had filed an unfair labor practice (ULP)
charge with the FLRA challenging some of the “predicate facts” underlying the
removal. The agency removed the appellant from her position for failure to follow
instructions, charging that she failed to obey an instruction to return certain supervisory
notes she had inadvertently obtained while acting as a union representative. The
appellant filed a ULP with the FLRA on May 31, 2006, in which she raised the
propriety of the agency’s demand. The arbitrator concluded that it was impossible to
consider and decide the propriety of the removal without considering and deciding the
propriety of the predicate facts, an issue that was being considered by the FLRA. On
appeal to the Board, the appellant contended that the arbitrator erred as a matter of law
in dismissing the case because the FLRA does not have jurisdiction over a removal.
Holdings:
1. The Board has jurisdiction to review the arbitrator’s decision because the
subject matter of the grievance (a removal) is one over which the Board has
2
jurisdiction, the appellant has alleged discrimination under 5 U.S.C. § 2302(b)(1)
in connection with the underlying action, and a final decision has been issued.
2. Under the first sentence of 5 U.S.C. § 7116(d), the propriety of the appellant’s
removal, including “issues” relating to that removal, can properly be raised in an
appeal filed with the Board and may not, therefore, be raised as a ULP before the
FLRA. The arbitrator erred as a matter of civil service law in failing to apply this
provision to this case.
3. The arbitrator erred in interpreting the second sentence of § 7116(d), which
provides that the requirement that an employee choose between filing a grievance
or a ULP does not apply in matters, such as in the instant removal, that can be
raised in either the negotiated grievance or appeals procedures. The proper
question before the arbitrator should have been whether the removal fell within
the exception to the grievance-or-ULP election requirement of § 7116(d), not
whether the May 31, 2006 ULP charge fell within that exception.
4. Because arbitrators are in the best position to make credibility determinations,
and given the limited factual review the Board generally conducts in these types of
cases, remand to the arbitrator for the issuance of a new award is appropriate. If
the FLRA should have issued a decision on any issues raised in the ULP charge, the
doctrine of collateral estoppel might be applied to preclude those issues from being
relitigated.
► Appellant: Dennis H. Redmond
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 210
Docket Number: CH-844E-07-0259-I-1
Issuance Date: September 7, 2007
Appeal Type: FERS - Employee Filed Disability Retirement
Jurisdiction
OPM petitioned for review of an initial decision that reversed its reconsideration
decision, which had dismissed appellant’s disability retirement application as untimely
filed. During a status conference, OPM indicated that it would waive the filing time
limit and adjudicate the merits of the appellant’s application. The administrative judge
(AJ) issued an initial decision that reversed OPM’s reconsideration decision and
remanded the appeal to OPM for adjudication of the merits of the appellant’s
application. In its petition for review (PFR), OPM contends that the appeal should have
been dismissed for lack of jurisdiction.
Holding: OPM’s statement that it would waive the filing time limit and consider
the appellant’s disability retirement application on the merits, plus its clarification
of that statement on review, indicate that it has completely rescinded its
reconsideration decision. In such circumstances, the Board no longer retains
jurisdiction, and the appeal must be dismissed.
3
► Appellant: Carolyn A. Miller
Agency: Department of the Army
Decision Number: 2007 MSPB 211
Docket Number: AT-0752-05-0990-A-1
Issuance Date: September 7, 2007
Appeal Type: Adverse Action by Agency
Action Type: Attorney Fee Request
Attorney Fees
- Knew or Should Have Known
The appellant petitioned for review of an addendum initial decision that denied
her motion for attorney fees. In the initial appeal, the agency removed the appellant for
conduct unbecoming a federal employee based on her extramarital affair with an
unmarried employee in violation of Georgia law, and for falsely reporting to state
police that this employee had raped her. On appeal to the Board, the AJ sustained the
first charge, but not the second, and mitigated the penalty to a 60-day suspension. The
initial decision became the Board’s final decision when the full Board, Chairman
McPhie dissenting, denied the parties’ petitions for review.
Miller v. Department of the
Army, 102 M.S.P.R. 621 (2006). The AJ denied the appellant’s motion for attorney
fees. Although the AJ found that attorney fees fees were incurred pursuant to an
attorney-client relationship, and that the appellant was a prevailing party, he found that
fees were not warranted in the interest of justice under any of the applicable Allen
categories.
Holding: Attorney fees are warranted in the interest of justice under the 5th Allen
category: that the agency knew or should have known that it would not prevail on
the merits. Attorney fees are warranted under the 5th category where, as here, the
Board sustains the charge in an adverse action appeal, but mitigates the penalty
based on evidence that was before, or readily available to, the agency at the time it
took the action.
Chairman McPhie issued a dissenting opinion, stating that he would have found
that attorney fees were not warranted in the interest of justice.
► Appellant: Ronald A. Davis
Agency: Department of Defense
Decision Number: 2007 MSPB 212
Docket Number: PH-1221-07-0017-W-1
Issuance Date: September 10, 2007
Appeal Type: Individual Right of Action (IRA)
Whistleblower Protection Act
- Contributing Factor
- Jurisdiction
4
The appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction. The Board dismissed an earlier appeal because the
appellant had not exhausted his remedies with OSC as required by 5 U.S.C.
§ 1214(a)(3).
Davis v. Department of Defense, 103 M.S.P.R. 516 (2006). In the present
appeal, after filing a new complaint with OSC, the appellant alleged that 3 personnel
actions—a performance appraisal, a non-selection, and the denial of a cash award—
were taken in retaliation for his making whistleblowing disclosures. In dismissing the
appeal, the AJ found that the appellant failed to establish that he had a reasonable belief
that his disclosures evidenced an abuse of authority. She found in the alternative that
the appellant could not show that his disclosures were a contributing factor in a
personnel action because of the timing of the actions and his disclosures.
Holdings:
1. Because the performance appraisal and non-selection actions predate the
appellant’s disclosures, the disclosures could not have contributed to those
personnel actions.
2. The appellant’s claim that he was denied some sort of cash award between June
and August 2005 has never been fully explained. Based on the lack of specificity in
this claim, the Board found that the appellant failed to make a nonfrivolous
allegation in this regard.
► Appellant: Harold H. Mistelske
Agency: Department of Veterans Affairs
Decision Number: 2007 MSPB 213
Docket Number: CH-0752-07-0285-I-1
Issuance Date: September 10, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures/Authorities
- Withdrawal of Appeal/PFR
Timeliness
The appellant filed an appeal of his removal and designated a union official to
represent him. On March 16, 2007, the representative withdrew the appeal. The same
day, the AJ issued an initial decision dismissing the appeal as withdrawn, informing the
parties that the decision would become final on April 20, 2007, unless a petition for
review was filed by then or the Board reopened the case on its own motion. The
appellant filed a PFR more than a month later, on May 22, 2007.
Holdings: 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. As a
new appeal, the May 22, 2007 filing was 2½ late, without good cause shown, and the
Board found that the appellant did not exercise due diligence in seeking reopening.
5
► Appellant: Marc A. Garcia
Agency: Department of State
Decision Number: 2007 MSPB 214
Docket Number: AT-3443-06-0635-I-1
Issuance Date: September 11, 2007
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 under USERRA. The appellant is employed in the
Foreign Service, and is also an officer in the Army Reserve. In August 2005, while
assigned to a position in Miami, Florida, the appellant submitted a “bid list,” i.e., a list
of positions for which he wished to be considered, and also requested that his Miami
assignment, scheduled to end in the summer of 2006, be extended for an additional
year. In October 2005, he began a period of active military duty for training purposes,
and on November 7, 2005, began a 1-year tour of active military duty. While the
appellant was on active military duty, the agency notified him that it had denied his
request for extension of his Miami assignment. During subsequent correspondence, the
agency advised the appellant that his August 2005 bid list was no longer active, and that
other bidders had been selected for the positions for which he had bid.
On appeal to the Board’s regional office, the appellant alleged that the agency
had violated his USERRA rights by denying him his right to bid on assignments based
on his military service, and by denying his request to have his Miami assignment
extended. The AJ found that the appellant had not established that his military service
was a substantial or motivating factor in the denial of his request for an extension of his
Miami assignment. The AJ further found, however, that the appellant was entitled
under USERRA to be considered for assignments for which he had bid in August 2005,
even if his scheduled military service would preclude him from serving in those
assignments at the time they became available. Because the agency improperly failed
to consider the appellant for those vacancies, the AJ ordered the agency to reconstruct
the assignment process for those positions. The AJ declined to order interim relief
pending the outcome of a PFR.
Holdings:
1. The AJ did not abuse his discretion in not ordering interim relief. The
appellant’s cross-petition for review was therefore denied.
2. The AJ erred in addressing the appellant’s reemployment rights under 38 U.S.C.
§ 4313, when the parties and the AJ in their pre-hearing pleadings and issuances
referred to 38 U.S.C. § 4311 as the applicable section of law. No claim under
§ 4313 would have been ripe for review when the appeal was filed, or even when
the hearing was held. The Board vacated that part of the initial decision in which
the AJ addressed rights under § 4313. The appellant may assert a claim under
§ 4313 on remand if he believes such a claim has become ripe for review.
6
3. While the agency’s PFR was pending before the Board, the Federal Circuit
issued a decision addressing an arguably similar claim, Tully v. Department of
Justice, 481 F.3d 1367 (Fed. Cir. 2007), in which the court held that USERRA did
not entitle an employee who was absent to military duty to preferential treatment.
Factors such as the length of an absence were “proper grounds for assessing
similarity,” and the difference between the expected duration of an employee’s
military leave and the expected duration of another kind of leave could be relevant
in determining whether an employee absent for military leave was entitled to a
certain benefit of employment. As applied to this case, if the agency considers the
assignment bids of employees on absences comparable to the appellant’s absence
for military duty, then the agency may have denied the appellant a benefit of
employment in violation of 38 U.S.C. § 4311.
► Appellant: Christian M. DeJohn
Agency: Department of the Army
Decision Number: 2007 MSPB 215
Docket Number: PH-3443-06-0336-I-1
Issuance Date: September 11, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
The appellant petitioned for review of an initial decision that denied his request
for corrective action under USERRA. In this appeal, the appellant alleged that the
agency discriminated against him on account of his military status when it failed to
select him for a GS-11 Historian position. The vacancy announcement for this position
was advertised in both an internal announcement and an external announcement. The
appellant applied under the external announcement, and was awarded 5 additional
points based on his veteran status, giving him a score of 103, the highest rank on the
external list. Douglas Murphy, a non-veteran who applied for the position under the
internal announcement, was ranked below the appellant with a score of 100. The
selecting official chose Murphy, who declined the job. The selecting official than
canceled the recruiting action in its entirety without making another selection. On
appeal to the Board, the AJ found it undisputed that the appellant had performed duty in
a uniformed service and that the agency did not select him for the position, but denied
corrective action, finding that the appellant failed to show that his non-selection was
based on his prior military service.
The Board granted the appellant’s petition for review, but affirmed the initial
decision as modified, still denying the appellant’s request for corrective action.
Holdings:
1. The AJ erred to the extent that he implied that the appellant’s USERRA claim
was weakened by his failure to apply for this Historian position under the internal
announcement. This was immaterial in determining whether he proved by
7
preponderant evidence that his military status was a substantial or motivating
factor in the agency action.
2. The AJ erred to the extent that he implied that the appellant’s USERRA claim
should be subjected to a higher standard because it was brought against an agency
that “supports the military” and is “made up, in good measure, [of] veterans.” A
USERRA claim against a civilian component of the armed forces is not subject to a
higher standard than one brought against some other agency.
3. The Board found shortcomings in the AJ’s determination that the selecting
official’s testimony was “believable” and “straightforward.” There were in fact
significant inconsistencies in that testimony. Nevertheless, the issue in this
USERRA case is whether he discriminated against the appellant based on the
appellant’s military status, and the evidence does not show that he did so.
► Appellant: James R. Dacus
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 216
Docket Number: DA-831M-06-0616-I-1
Issuance Date: September 11, 2007
Appeal Type: CSRA - Overpayment of Annuity
Action Type: Retirement/Benefit Matter
Timeliness
The appellant petitioned for review of an initial decision that affirmed OPM’s
determination that his request for reconsideration was untimely filed. In 4 letters,
starting in August 2004, and culminating in 2 letters dated April 1, 2005, OPM notified
the appellant that it was terminating his disability retirement benefit because he had
been restored to earning capacity, and that he had received an overpayment of
$17,457.72. More than a year later, on May 19, 2006, the appellant requested
reconsideration and waiver of the overpayment. OPM dismissed the request as
untimely. On appeal to the Board’s regional office, the AJ affirmed OPM’s action.
Holdings:
1. The Board affirmed the initial decision insofar as it upheld OPM’s rejection of
the appellant’s request for reconsideration of OPM’s determinations that the
appellant had been restored to earning capacity, that his disability benefits were
terminated, and that he had received an overpayment of $17,457.72, as untimely
filed under 5 C.F.R. § 831.109(e)(1). OPM may extend the 30-day time limit for
requesting reconsideration when the applicant can prove he was not notified of the
time limit and was not otherwise aware of it, or that he was prevented by
circumstances beyond his control from making a timely request. The appellant has
not established any of these conditions for excusing the time limit.
2. A request for reconsideration of a decision to collect a debt is governed by
5 C.F.R. § 831.1304. Although this regulation specifies a 30-day time limit, it also
specifies the contents of OPM’s notice, including the date on which full payment is
8
due, OPM’s policy on interest, penalties, and administrative charges, and the right
to a hearing before the Board on a waiver request. None of this information was
included in OPM’s letters. Per the Board’s decision in Rossini v. Office of
Personnel Management, 101 M.S.P.R. 289 (2006), a request for reconsideration
cannot be considered untimely when the notice provided to the appellant does not
meet the requirements of 5 C.F.R. § 831.1304(a). The Board remanded the appeal
to the regional office to adjudicate the merits of the appellant’s entitlement to a
waiver of the debt.
Chairman McPhie issued a dissenting opinion with respect to the second holding.
► Appellant: Jack D. Cosby
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 217
Docket Number: DA-844E-07-0006-I-1
Issuance Date: September 11, 2007
Appeal Type: FERS - Employee Filed Disability Retirement
Retirement
- Disability Retirement
OPM petitioned for review from an initial decision that reversed OPM’s denial of
the appellant application for disability retirement benefits. The appellant was removed
from his position with the Department of the Air Force for inability to perform the
essential duties of his position. The appellant filed a disability retirement application
with OPM, claiming that post-traumatic stress disorder, anxiety, panic attacks, and
depression made him unable to function at his former work site. OPM denied the
application, concluding that the medical evidence failed to substantiate a disabling
condition, but rather that he was only unable to perform his duties in the context of
what he perceived as a hostile work environment. On appeal to the Board, the AJ found
that OPM failed to rebut the Bruner presumption that an employee who has been
removed for physical inability to perform the essential duties of his position is entitled
to disability retirement.
Holding: The medical and other evidence fails to indicate that the appellant could
not perform the essential functions of his position in general, but instead indicates
that he could not perform them in what he perceived as a hostile environment, i.e.,
the evidence shows that the appellant’s disability is situational. He therefore does
not meet the requirements for disability retirement benefits.
9
► Appellant: Vivian J. Blaha
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 218
Docket Number: DA-0831-07-0068-N-1
Issuance Date: September 11, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Stay Requests
The Director of OPM asked the Board to stay its decision in Blaha v. Office of
Personnel Management, 106 M.S.P.R. 265 (July 16, 2007), while the Director’s request
for reconsideration of that decision is pending before the Board.
Holding: Whether to grant a stay pending reconsideration is a matter within the
Board discretion, in which the Board is guided by 4 factors: (1) whether the stay
applicant has made a strong showing that she is likely to prevail on the merits;
(2) whether the applicant will be irreparably harmed absent a stay; (3) whether the
issuance of a stay will substantially harm other parties interested in the
proceeding; and (4) where the public interest lies. The Board did not evaluate the
first factor “because OPM’s support for a stay based on the last three factors is not
even slight.” The Board denied the request for a stay.
COURT DECISIONS
The court has not issued any precedential decisions reviewing MSPB decisions
since the issuance of the last Case Report. It has issued some nonprecedential decisions
reviewing MSPB decisions, which can be found at the court’s website: | 21,229 | |
Case Report - August 24, 2007 | 08-24-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_24_2007_283703.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_24_2007_283703.pdf | CASE REPORT DATE: August 24, 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: Patsy R. Painter
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 189
Docket Number: DA-0831-06-0440-I-1
Issuance Date: August 16, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Retirement
- Former Spouse Survivor Annuity
The appellant and the decedent were married and divorced twice, the second
divorce occurring in December 1998. The court order dissolving the second marriage
did not award the appellant a former spouse annuity, and Mr. Painter did not take
affirmative steps to elect such an annuity before his death. OPM denied the appellant’s
application for a former spouse survivor annuity and for death benefits under CSRS.
On appeal to the Board, the administrative judge (AJ) issued an initial decision
affirming OPM’s reconsideration decision, finding that the 1998 divorce decree did not
award a former spouse survivor annuity to the appellant, that a subsequent
September 2006 court order awarding such an annuity was ineffective as it was issued
after Mr. Painter’s death, and that the appellant failed to prove that Mr. Painter intended
to provide a former spouse survivor annuity for the appellant. In her petition for review
(PFR), the appellant alleged that OPM failed to offer any evidence that Mr. Painter
received the annual notice of his right to elect a former spouse survivor annuity
required by law.
Holding: Because OPM provided no evidence to prove that it sent Mr. Painter the
annual notice required by 5 U.S.C. § 8339(j), a remand was necessary to determine
if this was done. A former spouse may receive survivor annuity benefits without an
affirmative election by the annuitant if (1) the annuitant did not receive the
2
required notice, and (2) there is evidence sufficient to show that the retiree
intended to provide a survivor annuity for the former spouse.
Appellant: George M. Cobb
Agency: Department of Defense
Decision Number: 2007 MSPB 188
Docket Number: AT-3443-06-0744-I-1
Issuance Date: August 16, 2007
Appeal Type: Miscellaneous
Miscellaneous Topics
- USERRA/VEOA
The appellant requested corrective action under USERRA, contending that the
agency improperly charged his military leave account for his absence on nonworkdays,
in violation of Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003).
In the initial decision, the AJ agreed, finding that the appellant had been improperly
forced to use 8 days of annual leave to fulfill his military obligations.
Holding: The agency’s evidence rebutted the appellant’s assertion that the agency
charged him military leave for nonworkdays. Accordingly, the appellant failed to
establish that it was more likely than not that the agency improperly charged him
military leave, and that as a result he used annual or other leave to account for the
remainder of his absences due to military service. The Board therefore reversed
the initial decision and denied the appellant’s request for corrective action.
Appellant: Roger S. Whitworth
Agency: Department of the Treasury
Decision Number: 2007 MSPB 190
Docket Number: CH-0432-99-0030-I-1
Issuance Date: August 21, 2007
Appeal Type: Performance
Action Type: Removal
Timeliness
The appellant sought review of a 1999 initial decision that was dismissed
pursuant to a settlement agreement, contending that the settlement agreement was
coerced.
Holding: The Board dismissed the PFR as untimely filed by more than 8 years
without good cause shown for the delay in filing.
3
Appellant: Jane K. Gates
Agency: Department of the Air Force
Decision Number: 2007 MSPB 191
Docket Number: DE-3443-07-0210-I-1
Issuance Date: August 21, 2007
Timeliness
The initial decision dismissed this appeal of the agency’s failure to reclassify the
appellant’s position for lack of jurisdiction. The deadline for filing a timely PFR was
April 18, 2007. The appellant filed an untimely petition 14 days later, on May 2, 2007.
The appellant did not respond to the Clerk’s acknowledgment letter regarding
timeliness.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown for the delay in filing.
Appellant: Mr. William Smith
Agency: United States Postal Service
Decision Number: 2007 MSPB 192
Docket Number: CH-0752-06-0507-I-1
Issuance Date: August 23, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
The December 5, 2006 initial decision dismissed the appeal as withdrawn, and
notified the appellant that the decision would become final on January 9, 2007, unless a
PFR was filed by that date. The appellant filed a pleading complaining about the
decision almost 5 months later, on June 4, 2007. The Clerk advised the appellant that
his petition appeared to be untimely and instructed him to submit a motion to accept the
filing as timely and/or to waive the time limit for good cause. Although the appellant
submitted an additional pleading, he did not address the timeliness of his petition.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown for the delay in filing.
4
Appellant: Lois Scali
Agency: Office of Personnel Management
Decision Number: 2007 MSPB 194
Docket Number: SF-0831-06-0027-I-1
Issuance Date: August 24, 2007
Appeal Type: CSRA Retirement - Other Than Initial
Action Type: Retirement/Benefit Matter
Timeliness
The appellant, the trustee for the deceased spouse of a former federal employee,
applied for death benefits under the CSRS. OPM issued a reconsideration decision
denying the requested benefits because neither the deceased spouse nor her conservator
or guardian applied for survivor benefits before her death as required by law. On
appeal, the AJ issued an initial decision dismissing the appeal for lack of jurisdiction.
The initial decision informed the parties that it would become the Board’s final decision
on February 21, 2006, unless a PFR was filed by that date. The appellant filed a PFR
almost a year later, on February 8, 2007. She asked that the time limit be waived
because the case concerned an allegedly important, complex, and obscure legal issue
that took a significant period of time to discover. OPM filed a cross-PFR, contending
that the AJ erred in dismissing the appeal for lack of jurisdiction, and asking that the
appeal be remanded for a decision on the merits.
Holding: The Board dismissed the PFR as untimely filed without good cause
shown for the delay in filing. Because there is no timely PFR at issue, the Board
lacks any basis to consider OPM’s cross-PFR. OPM assumed the risk of having its
cross-PFR dismissed by not filing its own timely PFR. Chairman McPhie
concurred in the result only.
Appellant: Ross Milligan
Agency: United States Postal Service
Decision Number: 2007 MSPB 193
Docket Number: NY-0752-06-0016-I-1
Issuance Date: August 24, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Arbitration/Collective Bargaining Issues
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
The agency removed the appellant, a preference-eligible Mail Processing Clerk,
for improper conduct. The appellant’s union filed a grievance on his behalf, and the
arbitrator issued an award that sustained the charge but mitigated the penalty to a time
served suspension with reassignment. The appellant also filed a formal discrimination
complaint alleging religious and gender discrimination and retaliation for prior EEO
activity. The agency issued a final agency decision finding no discrimination or
5
retaliation. On appeal to the Board, the AJ issued an initial decision affirming the
agency’s action after conducting a hearing. The AJ accorded collateral estoppel effect
to the arbitrator’s finding sustaining the charge, and thus found that the agency proved
the charged misconduct. The AJ secondly found that the appellant failed to prove his
affirmative defenses. Finally, the AJ found that the arbitrator-imposed penalty was
reasonable. The appellant filed a timely PFR.
In an Opinion and Order, a majority of the Board denied the PFR, but reopened
on the Board’s own motion to affirm the initial decision with respect to the merits of
the charge and the appellant’s affirmative defenses, but remanded the appeal to the
regional office for adjudication of the reasonableness of the removal penalty.
Holdings:
1. The AJ’s discussion of the penalty was flawed because it relied on case law
related to the standard of Board review of arbitrator’s decisions under 5 U.S.C.
§ 7121(d). That section does not apply to Postal Service cases; a preference-eligible
Postal employee can file both a grievance under a collective bargaining agreement
and a Board appeal under 5 U.S.C. § 7513. The latter is a de novo proceeding, and
does not include review of an arbitrator’s findings under a deferential or any other
standard.
2. Although the requirements for collateral estoppel were met in this case as to the
arbitrator’s penalty selection, it was inappropriate to apply that doctrine here.
Under Montalvo v. U.S. Postal Service, 50 M.S.P.R. 48 (1991) and Fulks v.
Department of Defense, 100 M.S.P.R. 228 (2005), the Board has held that collateral
estoppel effect cannot be given to an arbitrator’s decision if the arbitrator
mitigated a removal to a time-served suspension without pay, because such a
penalty is arbitrary on its face.
3. Ordinarily, the Board would do its own penalty determination analyzing the
Douglas factors. Because the case was not litigated as a de novo appeal of the
removal action, however, and because the appellant was not aware of the
possibility that the removal action could be upheld, fairness dictates that the case
be remanded for the parties to litigate the propriety of the agency’s removal
penalty.
In a dissenting opinion, Chairman McPhie argued that that the appeal should
have been barred by res judicata.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any precedential
decisions involving MSPB decisions since the last Case Report. The court has,
however, issued some nonprecedential decisions involving MSPB decisions, which can
be accessed at the court’s website: http://www.fedcir.gov/dailylog.html | 10,526 | |
Case Report - August 16, 2007 | 08-16-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_16_2007_281719.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_16_2007_281719.pdf | CASE REPORT DATE: August 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
Appellants: Jacques E. Lamour and Scott Rosebery
Agency: Department of Justice
Decision Number: 2007 MSPB 185
Docket Numbers: NY-0752-06-0267-I-1; NY-0752-06-0266-I-1
Issuance Date: August 10, 2007
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Constitutional Issues/Due Process
Miscellaneous Agency Actions
- Indefinite Suspensions
Nexus
The appellants are Senior Officer Specialists at a federal prison. The agency
proposed their indefinite suspensions pending the results of an Office of Inspector
General investigation concerning the appellants’ alleged use of unnecessary force and
criminal assault against an inmate. In their response, the appellants explained that they
were involved in a physical altercation while helping other officers subdue and escort
an inmate to another unit, but “vigorously denied partaking in any physical assault
involving an inmate.” The agency imposed the indefinite suspensions.
On appeal to the Board, the appellants argued that the agency had failed to
establish a nexus between their suspensions and the efficiency of the service, that the
agency failed to establish reasonable cause to believe they had committed a crime for
which a sentence of imprisonment may be imposed, that the suspensions had no
ascertainable end, and that indefinite suspensions without pay would financially ruin
them. The agency replied that the allegation against the appellants was very serious in
light of their responsibilities as correctional officers, and that maintaining them in any
paid position until the final disposition of the investigation would be inappropriate, as
they would continue to have contact with inmates. The AJ issued an initial decision
2
reversing the indefinite suspensions, finding that the agency failed to establish
reasonable cause that either of the appellants committed a crime for which a sentence of
imprisonment may be imposed.
On petition for review, the agency contends there are two different kinds of
indefinite suspensions: those effected with a shortened notice period, for which the
agency must establish reasonable cause to believe that the employee committed a crime
for which a sentence of imprisonment may be imposed; and those in which the
employee is given 30 days advance notice, for which the agency must only establish
that the action was taken to promote the efficiency of the service.
Holdings:
1. After the PFR was filed, the Board’s reviewing court ruled that an agency that
provides an employee with 30 days advance notice may indefinitely suspend an
employee pending an investigation of the employee’s possible criminal conduct
without establishing reasonable cause to believe that the employee committed a
crime for which a sentence of imprisonment may be imposed.
Perez v. Department
of Justice, 480 F.3d 1309, 1311 (Fed. Cir. 2007). In light of Perez, the Board
granted the agency’s PFR and vacated the initial decision.
2. A majority of the Board held that the agency deprived the appellants of
Constitutional due process because its proposal notices noted only that the
appellants were being investigated for allegations of using unnecessary force and
criminal assault against an inmate, without offering any details concerning the
alleged assault, thereby denying them a meaningful opportunity to be heard.
3. The majority further held that the agency failed to establish that the suspension
promoted the efficiency of the service. While an agency may choose to investigate
incidents such as those alleged here, it cannot meet its burden of establishing that
suspending a correctional officer without pay during the course of such an
investigation promotes the efficiency of the service where the agency has failed to
establish any basis to believe that the employee’s actions were contrary to the
normal and proper execution of his duties. The majority noted that the agency had
an alternative to returning the employees to duty pending the outcome of the
investigation – leave with pay.
In his dissent, Chairman McPhie concurred in the first holding, but disagreed with the
second and third holdings, concluding that the appeals should be remanded for findings
and conclusions on whether the indefinite suspensions promoted the efficiency of the
service. He found that the existing record was insufficient to make definitive findings,
because the AJ did not permit development of the record based on the mistaken
assumption that the appellants must prevail as a matter of law.
3
Appellant: Robert P. Isabella
Agency: Department of State
Decision Number: 2007 MSPB 186
Docket Numbers: AT-3443-05-0550-B-1; AT-0330-05-0409-B-1
Issuance Date: August 10, 2007
Miscellaneous Topics
- USERRA/VEOA
This case concerns the agency’s handling of the appellant’s application for
employment as a Special Agent. The vacancy announcement for this position specified
a maximum age under 37. The appellant was 36 when he applied, but the agency
stopped processing his application after he turned 37. In his appeal to the Board, the
appellant made claims under both the Uniformed Services Employment and
Reemployment Rights Act (USERRA), which prohibits discrimination based on
uniformed service or application or obligation to perform uniformed service, and the
Veterans Employment Opportunities Act of 1998 (VEOA), which provides remedies
when an agency violates a person’s rights under any statute or regulation relating to
veterans’ preference. In the original appeal, the AJ dismissed both claims for lack of
jurisdiction, and the Board vacated and remanded.
See Isabella v. Department of State,
102 M.S.P.R. 259 (2006). On remand, the AJ issued two initial decisions in which he
denied corrective action under both laws on the merits, and the appellant petitioned for
review.
Holdings:
1. The Board found that the record established that the maximum entry age for the
position is not essential to the performance of the duties of the Special Agent
position, and that the agency’s failure to waive this age requirement violated the
appellant’s rights under statutes related to veterans’ preference, specifically
5 U.S.C. §§ 3312(a)(1) and 3320. As a remedy for this VEOA violation, the Board
ordered the agency to waive the maximum entry age requirement and to
reconstruct the selection process, including affording the appellant any other
advantage to which his status as a preference eligible might entitle him.
2. In light of its disposition of the appellant’s VEOA claim, the Board found that
the appellant’s USERRA claim had been rendered moot.
Chairman McPhie issued a separate opinion in which he concurred with the
result, but not the reasoning of the majority opinion.
4
Appellant: Gerald R. Elliott, Jr.
Agency: Department of the Army
Decision Number: 2007 MSPB 184
Docket Number: AT-0752-07-0780-R-1
Issuance Date: August 8, 2007
Appeal Type: Adverse Action by Agency
Action Type: Removal
Timeliness
When the appellant did not timely respond to his order concerning the timeliness
of his appeal, the administrative judge (AJ) issued an initial decision dismissing the
appeal as untimely filed without good cause shown. The following day, the agency
submitted evidence and argument showing that the appeal was, in fact, timely filed,
because the appellant had filed a complaint of discrimination concerning the removal,
on which the agency had not yet issued a final decision. The Board reopened the appeal
on its own motion, vacated the initial decision, and remanded the appeal to the AJ for
adjudication.
Appellant: Adron Parker
Agency: Department of Housing and Urban Development
Decision Number: 2007 MSPB 187
Docket Number: DA-3443-07-0005-I-1
Issuance Date: August 10, 2007
Appeal Type: Miscellaneous
Jurisdiction
- Burgess Notice
The appellant, a GS-12 Realty Specialist, applied for the position of Relocation
Specialist, GS-13, but was not selected, and filed an appeal with the Board. In the
Acknowledgment Order, the AJ ordered the appellant to submit evidence and argument
to establish jurisdiction. In his response, the appellant cited 5 C.F.R. § 1201.3(a)(19),
which refers to employment practices administered by OPM, which cites 5 C.F.R.
§ 300.104. In dismissing the appeal for lack of jurisdiction, the AJ found that the
appellant’s nonselection did not fall within the Board’s jurisdiction because
“nonselections are not directly appealable to the Board and the appellant has raised no
other matter which is appealable.” In his petition for review, the appellant complains
that he was prevented from conducting discovery that might have helped establish
jurisdiction.
Holding: The Board vacated and remanded the appeal to the regional office for
further adjudication. Under Burgess v Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985), an appellant must receive explicit information on
what is required to establish an appealable jurisdictional issue. The appellant had
not been advised as to the requirements for establishing jurisdiction over an
employment practices claim under 5 C.F.R. § 300.104.
5
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any precedential
decisions involving MSPB decisions since the last Case Report. The court has,
however, issued some nonprecedential decisions involving MSPB decisions, which can
be accessed at the court’s website: http://www.fedcir.gov/dailylog.html | 9,754 | |
Case Report - July 20 2007 | 07-20-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_20_2007_277190.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_20_2007_277190.pdf | CASE REPORT DATE: July 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
Robinson v. Office of Personnel Management, 2007 MSPB 172
PH-0831-06-0659-I-1
July 13, 2007
Retirement
- Survivor Annuity
When the appellant retired under CSRS in 1995, he was not married and did
not elect a survivor annuity benefit. He married on May 26, 2001, and sometime
later that year, telephoned OPM to ask for information about leaving his
retirement pension to his wife. He was advised that he had two years from the
date of his marriage to elect a survivor annuity benefit for his spouse. In April
2003, the appellant again telephoned OPM and requested the proper forms for
making such an election. OPM sent the appellant an SF-2808 Designation of
Beneficiary form, which the appellant completed and signed on May 2, 2003,
which was received by OPM on May 13, 2003. After telephoning OPM several
times during the next 15 months to ascertain the status of his May 2003
submission, an OPM employee informed the appellant in September 2004 that he
had filed the wrong form for electing a survivor annuity benefit. The appellant
wrote letters to OPM in September and October 2004 seeking to correct the
situation. OPM considered the October letter as a request to provide survivor
annuity benefits for the appellant’s spouse, but denied the request because it was
not submitted within two years of the date of his marriage, as required by
5 U.S.C. § 8339(k)(2)(A).
On appeal to the Board, the administrative judge (AJ) found that the
appellant failed to make a timely election of a survivor annuity because: (1) To
make a timely election of a survivor annuity under § 8339(k)(2)(A), an annuitant
must submit a “signed writing” that “manifest[s] an unmistakable intent” to make
2
such an election; (2) an SF-2808 does not suffice to manifest such an
unmistakable intent.
Holding: The AJ correctly found that the submission of an SF-2808
Designation of Beneficiary form does not manifest an unmistakable
intent to elect a survivor annuity benefit. Nevertheless, OPM has an
obligation not only to provide accurate information in annual notices
to annuitants concerning their right to elect survivor annuity benefits,
but all communications to annuitants must provide accurate
information “so that the statutorily required notice is not diluted or
contradicted.” If OPM provides inaccurate information, and this
causes an annuitant to fail to elect a survivor annuity, the election
should be considered to have been made. In this case, OPM
misinformed the appellant that the SF-2808 was the correct form for
electing a survivor annuity, causing him not to complete the correct
form within the two-year period. The Board ordered OPM to grant
the appellant’s election of a reduced annuity with survivor benefits for
his spouse.
Brown v. Office of Personnel Management, 2007 MSPB 173
PH-844E-06-0577-I-1
July 13, 2007
Retirement
- Disability Retirement
Board Procedures/Authorities
- Pro Se Appellants
- Reopening and Reconsideration
The appellant, a Laborer Custodian with the U.S. Postal Service, applied for
disability retirement under FERS, identifying post-traumatic stress disorder as
his disabling condition. OPM denied the application, and on appeal to the
Board’s regional office, the AJ affirmed OPM’s final decision.
Holding: Although the Board denied the appellant’s petition for
review, it reopened the appeal on its own motion and remanded the
case to consider the medical evidence on which the Social Security
Administration and the Department of Veterans Affairs relied in
determining that the appellant is entitled to disability benefits.
Citing
Lynum v. Office of Personnel Management, 103 M.S.P.R. 426 (2006),
the Board noted that the appellant was never specifically informed
that he should submit the medical evidence on which those agencies
relied. Chairman McPhie dissented, stating that reopening should be
reserved for unusual circumstances, not present here, where the
Board is firmly convinced that determining the appellant’s
entitlements on the record developed before the AJ would lead to the
3
wrong result and there is reason to believe the appellant should not be
held responsible for the deficiencies in that record.
Blaha v. Office of Personnel Management, 2007 MSPB 174
DA-0831-07-0068-I-1
July 16, 2007
Retirement
- Survivor Annuity
The initial decision affirmed a final OPM decision denying as untimely filed
a request to elect a reduced annuity with a survivor annuity for a person with an
insurable interest in the appellant. The parties stipulated that, at the time of her
retirement, the appellant asked an employee in her agency’s retirement section if
she could get a survivor annuity for her domestic partner of 15 years, and was
told that no such benefit was available. The AJ observed that section 8339(k)(1)
does not provide for an election beyond the time of retiring and found that, even
though the retirement counselor may have misinformed the appellant regarding
whether she could elect an insurable interest survivor annuity for her domestic
partner, and even if this misinformation caused the appellant to miss the deadline
for electing an insurable interest survivor annuity, the deadline cannot be
excused under Office of Personnel Management v. Richmond, 496 U.S. 414
(1990), which held that the government cannot be estopped from denying
benefits not otherwise permitted by law even if the claimant was denied
monetary benefits because of his reliance on the mistaken advice of a
government official.
Holding: The Board vacated the initial decision and remanded the
appeal for further adjudication. The principle set forth in Richmond
does not apply when a claim of equitable estoppel is raised and there
is no claim for payment of money from the U.S. Treasury. There are 3
separate bases for waiving a filing deadline prescribed by statute or
regulation: (1) where the statute or regulation provides for a waiver
under specified circumstances; (2) where an agency’s affirmative
misconduct may preclude enforcement of the deadline under the
doctrine of equitable estoppel; and (3) where an agency fails to give a
notice of rights and the applicable deadline when such notice is
required by law or regulation. The second basis is implicated in the
present case, and because it was not considered below, further
adjudication is necessary.
4
Arenal v. Office of Personnel Management, 2007 MSPB 175
SF-0831-07-0016-I-1
July 17, 2007
Retirement
- Disability Retirement
Board Procedures/Authorities
- Reopening and Reconsideration
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata/Law of the Case
In an earlier appeal adjudicated at the Board and before the Federal Circuit
in 1989-1991, it was determined that the appellant was not entitled to CSRS
retirement benefits because he lacked 5 years of creditable service. Thereafter,
the appellant asserted to OPM that his first term of service ran for a longer
period than was recognized in the first appeal, and that he otherwise met the
requirements for a retirement annuity. In an April 19, 2001 letter, OPM
informed the appellant that it had previously issued a reconsideration decision
that addressed the appellant’s request for benefits, and that could “no longer
respond or reply to your correspondence.” When OPM did not respond to the
appellant’s additional letters, the appellant filed the present appeal. The AJ
issued an initial decision dismissing the appeal on the basis of res judicata (claim
preclusion), because the issue of the appellant’s entitlement to CSRS benefits
had already been litigated by both the Board and the Federal Circuit, and the
appellant’s newly asserted basis for entitlement was or should have been raised
in the first appeal.
Holding: The Board denied the appellant’s PFR, declining to disturb
the AJ’s conclusion that the appellant’s appeal was barred by the
doctrine of res judicata. To the extent that the appellant’s petition
may be deemed as a request to reopen his previous appeal, the Board
denied the request, noting the limited circumstances in which such a
request will be granted.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit has not issued any
precedential decisions involving MSPB decisions since the last Case Report.
The court has, however, issued more than 20 nonprecedential decisions involving
MSPB decisions, which can be accessed at the court’s website:
http://www.fedcir.gov/dailylog.html | 8,756 | |
Case_Report_March_16_2007 | 03-16-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_16_2007_255142.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_16_2007_255142.pdf | CASE REPORT DATE: March 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
Simone v. Department of the Treasury, 2007 MSPB 69
MSPB Docket No. PH-1221-06-0128-W-1
March 12, 2007
Whistleblower Protection Act
- Contributing Factor
- Personnel Action
- Protected “Disclosure”
- Violation of Law
HOLDING: The Board remanded this IRA appeal for a hearing and
decision on the merits where the appellant made nonfrivolous allegations
that he reasonably believed that he made protected disclosures that
evidenced a violation of law, rule, or regulation, and that his disclosures
were a contributing factor in the agency’s decisions not to convert him to
a full-time permanent position and to deny him training.
The appellant petitioned for review of an initial decision that dismissed
his individual right of action (IRA) appeal for failure to state a claim upon
which relief could be granted. The Board found that the appellant made
nonfrivolous allegations that: He reasonably believed that he made protected
disclosures that evidenced a violation of law, rule, or regulation when he
disclosed to agency managers and an Inspector General that computer billing
problems were causing taxpayers to be overcharged on interest and penalties;
and his disclosures were a contributing factor in the agency’s decisions not to
convert him to a full-time permanent position and to deny him training. The
Board found that the appellant made a nonfrivolous allegation that there was a
moderate probability that the training would have resulted in some type of
personnel action, as required by the Whistleblower Protection Act.
Therefore, the Board vacated the initial decision and remanded the appeal for
a hearing and a decision on the merits of the appellant’s IRA appeal.
Price v. Department of Veterans Affairs, 2007 MSPB 70
MSPB Docket No. AT-0432-06-0899-I-1
March 12, 2007
Timeliness
- Mixed Cases
- Prematurity
- Miscellaneous
The AJ dismissed this mixed-case removal appeal without prejudice to
refiling because it was premature. The Board dismissed the appellant’s
petition for review as untimely filed (2-months late) without good cause
shown because her pleading was not responsive to the Clerk’s timeliness
acknowledgment order. The Board reopened the case and forwarded it to the
regional office for adjudication because after the initial decision was issued,
the agency apparently issued a final agency decision concerning the
appellant’s amended equal employment opportunity complaint or 120 days
has passed since the appellant filed that complaint.
DISMISSALS-SETTLEMENT/WITHDRAWN
Hammond v. Office of Personnel Management, CH-0845-06-0685-I-1 (3/13/07)
COURT DECISIONS
Toyama v. Merit Systems Protection Board
Fed. Cir. No. 2006-3281, MSPB Docket No. SE-0752-03-0358-I-2
March 13, 2007
Timeliness
- Mixed Cases
HOLDING: Where the agency failed to notify the appellant of her Board
appeal rights when it issued the final agency decision (FAD) on her
discrimination complaint, as required by 29 C.F.R. § 1614.302(d), she
showed good cause for the 20-month delay in refiling her mixed case
appeal; the notice requirements of § 1614.302(d) were not satisfied by the
notice of Board appeal rights provided by the AJ in the initial decision
dismissing the initial appeal without prejudice to refiling.
2
The appellant filed an equal employment opportunity (EEO) complaint
claiming that the agency discriminated against her when, among other actions,
it removed her. After the agency issued a final agency decision (FAD)
finding no discrimination, the appellant filed a Board appeal of her removal.
The administrative judge (AJ) dismissed the appeal without prejudice to
refiling so that she could pursue her discrimination claims before the agency
and the EEO Commission (EEOC). The dismissal advised the appellant that
she could refile her appeal with the Board within 30 days of a FAD on her
complaints.
Subsequently, the agency issued a FAD on March 15, 2004 (“2004
FAD”), finding no discrimination. This decision erroneously informed the
appellant that she could appeal the FAD to EEOC’s Office of Federal
Operations (“OFO”) or she could file a civil action in a United States district
court, and failed to inform her that she could appeal the decision to the Board.
After appealing the matter unsuccessfully to EEOC’s OFO and a district
court, the appellant filed her Board appeal on December 24, 2005, 20 months
after the 2004 FAD. The AJ dismissed her appeal as untimely filed and the
Board dismissed the appellant’s petition for review by Final Order.
On review, the court reversed the Board’s decision. The court found that
the 2004 FAD provided incorrect appeal rights when it stated that the
appellant’s options were to file with OFO or in district court, rather than that
her options were to file before the Board or in district court, as required by 29
C.F.R. § 1614.302(d). The court also found that the AJ’s instructions to refile
the Board appeal within 30 days of the FAD, while correct, did not satisfy the
agency’s obligation, under 29 C.F.R. § 1614.302(d), to notify the appellant of
her appeal rights when it issued the 2004 FAD. Finally, the court rejected the
agency’s argument that, because of the dismissal without prejudice of her
initial Board appeal, the Board’s regulations controlled the refiling of the
appeal. Because the appellant subsequently decided to pursue her case as an
EEO complaint, EEOC’s regulation governed the proceedings. Accordingly,
the court found that the appellant demonstrated good cause for the late filing
and remanded the case for adjudication.
Kelly v. Department of Agriculture (NP)
Fed. Cir. No. 2007-3012, MSPB Docket No. CH-0752-05-0040-I-1
March 12, 2007
Constitutional Issues/Due Process
- Due Process
Defenses and Miscellaneous Claims
- Harmful Error
HOLDING: The introduction of new and material information by means
of an ex parte communication with the deciding official violates the
appellant’s due process rights and cannot be dismissed as “harmless.”
3
Before the deciding official issued the removal decision, she contacted
two managers for an assessment of the appellant. Both of those managers
provided negative comments. The appellant was not notified of their
comments until receiving the decision letter. On appeal, the administrative
judge (AJ) affirmed the removal. The AJ dismissed the ex parte
communications as harmless. The Board denied the appellant’s petition for
review by Final Order.
On review, the court vacated the Board’s decision and remanded the case
for further proceedings.
The court reiterated its holding in Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999), that ex
parte communications rising to the level of a procedural due process violation
cannot be excused as “harmless.” Further, such communications to a deciding
official render that official’s claims of lack of influence unavailing. The
court concluded that, when the deciding official received negative comments
from the managers, she had a duty to notify the appellant and provide her an
opportunity to respond before reaching a decision. The deciding official’s
failure to do so overrides the agency’s contention that the appellant would
likely have been removed on the merits of the charge without this procedural
defect. The appellant’s opportunity to address the managers’ negative
comments before the Board on appeal does not render the error harmless.
Amend v. Merit Systems Protection Board (NP)
Fed. Cir. No. 2006-3420, MSPB Docket No. AT-315H-05-0799-I-1
March 8, 2007
Jurisdiction
- Excepted Service
HOLDING: The Board’s interpretation of 5 U.S.C. § 7511(a)(1)(B) in
Greene v. Defense Intelligence Agency, 100 M.S.P.R. 447, ¶ 12 (2005)
(prior service with a different agency can be tacked for purposes of the
one year current continuous service requirement) is an “open question”
in light of Illich v. Merit Systems Protection Board, 104 F. App'x 171 (Fed.
Cir. 2004) that need not be reached in this case.
The appellant, a preference eligible in the excepted service, appealed his
termination from his Inspector position with the Bureau of Alcohol, Tobacco,
Firearms & Explosives (ATF). The administrative judge (AJ) dismissed the
appeal for lack jurisdiction because the appellant had not completed 1 year of
current continuous service in the same or similar positions with the ATF. The
AJ found that the appellant’s prior service as an Immigration Inspector could
not be tacked because it occurred in a different agency—the Department of
Homeland Security.
In doing so, the AJ relied upon Illich v. Merit Systems
Protection Board, 104 F. App'x 171 (Fed. Cir. 2004), a non-precedential
decision, that held that prior service with a different agency cannot be tacked
for purposes of the one year current continuous service requirement.
4
After the AJ issued his initial decision, however, the Board issued
Greene v. Defense Intelligence Agency, 100 M.S.P.R. 447, ¶ 12 (2005),
finding that prior service in a different agency may be tacked under section
7511(a)(1)(B). Therefore, on petition for review, the Board found that the
appellant’s prior service as an Immigration Inspector could be tacked if his
Immigration Inspector and ATF Inspector positions were the “same or
similar.” Finding that they were not, the Board dismissed the appeal for lack
of jurisdiction.
On review, the court stated that the Board’s interpretation of the one year
current continuous service requirement in Greene is an “open question” in
light of Illich. However, the court did not reach this issue because it agreed
with the Board that the Immigration Inspector and ATF Inspector positions
were not the “same or similar.” Thus, the court affirmed the Board’s decision
dismissing the appeal for lack of jurisdiction.
Coleman v. U.S. Postal Service (NP)
Fed. Cir. No. 2006-3251, MSPB Docket No. DC-3443-04-0656-I-1
March 14, 2007
USERRA/VEOA/VETERANS’ Rights
HOLDING: Pursuant to Kirkendall v. Department of the Army, Fed. Cir.
No. 05-3077 (3/7/07), the court remanded this USERRA case to the Board
for a hearing on the USERRA claim.
The appellant, a preference eligible, filed a removal appeal in which he
claimed that the agency violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA) by discriminating against him on the basis of his past military
service. The administrative judge (AJ) dismissed the removal claim for lack
of Board jurisdiction because the appellant did not meet the one year current
continuous service requirement. The AJ denied the appellant’s request for a
hearing on his USERRA claim and denied the claim, finding that the agency
would have removed him for valid reasons despite his prior military service.
The Board denied the appellant’s petition for review by Final Order.
On
review, the court affirmed the jurisdictional determination but remanded the
appeal for a hearing on his USERRA claim pursuant to Kirkendall v.
Department of the Army, Fed. Cir. No. 05-3077 (3/7/07) (3/9/07 MSPB Case
Report) (veterans have a right to a hearing on a USERRA claim).
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were affirmed:
Amend v. Merit Systems Protection Board, 06-3420, AT-315H-05-0799-I-1 (3/8/07)
Adamo v. Merit Systems Protection Board, 06-3184, DC-0752-05-0337-I-1 (3/8/07)
Cebula v. Department of Veterans Affairs, 06-3312, PH-0752-05-0531-I-1 (3/8/07)
5
Aguilar v. Merit Systems Protection Board, 06-3327, DA-0752-05-0706-B-1 (3/8/07)
Omelis v. Office of Personnel Management, 06-3421, SF-0831-06-0305-I-1 (3/8/07)
Brown v. Merit Systems Protection Board, 07-3025, DE-1221-06-0157-W-1 (3/8/07)
Velez v. Department of Homeland Security, 06-3305, DE-0752-04-0407-I-1 (3/12/07)
Gordon v. Merit Systems Protection Board, 06-3329, DE-0752-05-0759-I-1 (3/12/07)
King v. Department of Veterans Affairs, 07-3034, AT-1221-05-0790-W-1 (3/12/07)
Harris-Coleman v. Office of Personnel Management, 07-3047, AT-0831-06-0616-I-1 (3/12/07)
Wormely v. Department of the Treasury, 06-3413, PH-0752-06-0004-I-2 (3/12/07)
Zgonc v. Department of Defense, 07-3039, DC-1221-06-0306-W-1 (3/12/07)
The following appeals were dismissed:
Daniel v. Office of Personnel Management, 07-3118, DA-0841-06-0623-I-1 (3/12/07)
Bloom v. Department of the Army, 07-3102, DC-1221-05-0024-B-1 (3/12/07)
Bloom v. Department of the Army, 07-3102, DC-1221-05-0024-B-1 (3/14/07)
The court recalled the mandate and reinstated the appeal:
Gaghan v. Office of Personnel Management, 06-3286, DC-0432-05
0740-I-1 (3/12/07)
FEDERAL REGISTER NOTICES
72 Fed. Reg. 11380 (3/13/07)
The Board forwarded an Information Collection Request to OMB,
requesting approval to conduct surveys over the next 3 years to obtain insight
into employees’ current perspectives. The surveys will ask employees to
share their perceptions of the implementation of the merit system in the
workplace, including topics such as merit systems principles, prohibited
personnel practices, job satisfaction, performance management, training and
development, and leadership.
6 | 13,388 | |
Case_Report_March_2_2007 | 03-02-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_2_2007_255140.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_2_2007_255140.pdf | CASE REPORT DATE: March 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
Styslinger v. Department of the Army,
MSPB Docket No. DA-3443-06-0168-I-1
February 22, 2007
USERRA/VEOA/Veterans’ Rights
HOLDING: Even though the appellant lacks preference eligibility, the
Board has VEOA jurisdiction over his claim that, as a veteran employee
of another agency, he was denied the right to compete for a position that
the agency filled through merit promotion procedures after accepting
applications from individuals outside its own workforce; the Board set
forth the test for establishing VEOA jurisdiction over an appeal where a
complaint was filed under 5 U.S.C. § 3330a(a)(1)(B); the right to compete
granted by 5 U.S.C. § 3304(f)(1) covers an applicant who is a current
federal employee at the time he submits his application along with
applicants who are seeking initial federal appointments.
The appellant, an alleged employee of the Department of Energy, retired
at the rank of Major after serving on active duty in the U.S. Army for over 21
years. The agency issued a vacancy announcement for a GS-14 Assistant
Chief of Staff position, stating that the individuals eligible to apply for the
position were: “Veterans eligible under Veterans Employment Opportunities
Act of 1998. (VEOA) Veterans eligible as 30% Disabled Veterans.
Interagency Career Transition Assistance Plan (ICTAP) eligibles. Army
employees serving on career or career conditional appointments.
Reinstatement eligibles.” The agency denied the appellant’s application for
that position because he was not among the group of eligible applicants.
After exhausting his Department of Labor remedy, the appellant filed a Board
appeal claiming that the agency violated VEOA when it denied his
application. The AJ dismissed his appeal for lack of jurisdiction.
The Board denied the appellant’s petition for review, reopened the
appeal, and reversed the initial decision. The Board found that in order to
state a viable claim with respect to a complaint filed pursuant to 5 U.S.C.
§ 3330a(a)(1)(B), an appellant need only allege that he is a veteran described
in 5 U.S.C. § 3304(f)(1), and that the agency violated his rights under that
section. The Board also found that in a case in which the Secretary of Labor
has notified a complainant, in accordance with 5 U.S.C. § 3330a(c)(2), that
the Secretary’s efforts have not resulted in the resolution of the complaint, the
fact that the complainant did not notify the Secretary of his intent to file a
Board appeal does not deprive the Board of jurisdiction over the appeal.
The Board then found that it has jurisdiction to adjudicate an appeal filed
by a non-preference eligible veteran who alleges that an agency violated his
rights under 5 U.S.C. § 3304(f)(1), and who meets the definition of “veteran”
described in that section, i.e., he has been separated from the armed forces
under honorable conditions after 3 years or more of active service. The Board
next found that a retired member of the armed forces may qualify as a
“veteran” who “has been separated from the armed forces” for purposes of
sections 3304(f)(1) and 3330a(a)(1)(B). Here, the Board found that the
appellant, despite the fact that he maintains some connection to the U.S.
Army as a regular officer on its retired list, qualifies as such a veteran.
The Board then stated that, in order to establish the Board’s VEOA
jurisdiction over an appeal where a complaint was filed under 5 U.S.C.
§ 3330a(a)(1)(B), an appellant must establish that he exhausted his
Department of Labor remedy and make nonfrivolous allegations that: He is a
veteran described in 5 U.S.C. § 3304(f)(1); the agency denied him the
opportunity to compete under merit promotion procedures for a vacant
position for which the agency accepted applications from individuals outside
its own workforce; and the denial occurred on or after the December 10, 2004
enactment date of the Veterans’ Benefits Improvement Act of 2004, Pub. L.
No. 108-454 (Dec. 10, 2004) (VBIA). The appellant satisfied this test.
In Jolley v. Department of Homeland Security, MSPB Docket No. AT
3443-06-0447-I-1, 2007 MSPB 51, (Feb. 21, 2007) (Feb. 24, 2007 MSPB
Case Report), the Board held that the right to compete granted by 5 U.S.C.
§ 3304(f)(1) covers an applicant who is a current federal employee at the time
he submits his application along with applicants who are seeking initial
federal appointments. Thus, the agency could not rely on the appellant’s
status as a current federal employee to deny him the right to compete for the
Assistant Chief of Staff position. The Board therefore found that the agency
violated 5 U.S.C. § 3304(f)(1) by denying the appellant the right to compete
for the Assistant Chief of Staff position. The Board ordered the agency to
determine whether the appellant was qualified for the position, and, if he is
found qualified, to reconstruct the selection process for the position.
2
Vice Chairman Rose concurred in the result, but dissented consistent
with her dissent in Jolley.
Wiley v. Department of Veterans Affairs,
MSPB Docket No. CH-315H-04-0557-B-1
February 22, 2007
Miscellaneous Agency Actions - Suitability
HOLDING: The agency was required to obtain OPM’s prior approval to
make a negative suitability determination under 5 C.F.R. part 315, before
it decided to terminate the appellant’s probationary appointment on the
ground that he had omitted two criminal convictions on a pre
employment questionnaire; where the agency did not obtain such prior
approval, the Board lacks jurisdiction over the negative suitability
appeal.
The agency terminated the appellant during his probationary period for
omitting two criminal convictions on his pre-employment Form 306 after
giving him notice of the reason for his termination and 1 day to respond to the
notice. The AJ found that the appellant had made a written reply during the
notice period and failed to make a non-frivolous allegation that the agency
did not follow the procedures for terminating a probationary employee for
pre-employment reasons. The AJ therefore dismissed the appeal for lack of
jurisdiction. The Board remanded the appeal for further adjudication
concerning whether the Board lacks jurisdiction over this appeal as a negative
suitability determination made by an employing agency without delegated
authority from OPM.
Wiley v. Department of Veterans Affairs, 101 M.S.P.R.
207 (2006), 2006 MSPB 36.
On remand, the AJ found that the agency did not take a negative
suitability action against the appellant. She found no persuasive evidence
that OPM authorized the agency to take a negative suitability action against
the appellant. She thus found that the Board lacks jurisdiction over the
appellant’s removal as a negative suitability action. In contrast, she found
that the agency did have OPM approval to take action against the appellant
under 5 C.F.R. part 315. She concluded, however, that the Board lacks
jurisdiction over the appellant’s removal during his probationary period under
5 C.F.R. § 315.805.
The Board denied the appellant’s petition for review, but reopened this
appeal because it found that the AJ erred in determining that OPM had
delegated authority to the agency to take action against the appellant under
5 C.F.R. part 315. Contrary to the initial decision, the evidence did not show
that the agency received the required approval from OPM prior to terminating
the appellant. Therefore, the AJ should have dismissed this appeal for lack of
Board jurisdiction because the agency did not have delegated authority from
3
OPM to take action against the appellant under its own authority at 5 C.F.R.
part 315. Contrary to the concurring opinion, the agency was required to
obtain OPM’s prior approval before it decided to terminate the appellant’s
probationary appointment on the ground that he had omitted two criminal
convictions on a pre-employment questionnaire. The governing regulations
are not confusing and OPM’s proposed regulations are not controlling.
Vice Chairman Rose issued a concurring opinion, stating that, although
she agrees with the result of the decision, she would find that the agency had
authority to terminate the appellant under 5 C.F.R. part 315 without seeking
prior approval from OPM.
Wagner v. Department of Homeland Security,
MSPB Docket No. DA-0752-06-0098-I-1
February 26, 2007
Board Procedures/Authorities
- Discovery
- Sanctions
HOLDING: Where the appellant faxed his discovery responses to the
agency 81 minutes after the agency notified the AJ that the appellant had
not provided it with discovery responses by the “close of the record” that
day, the appellant substantially complied with the deadline for discovery
responses imposed by the AJ; deeming the agency to have proven its
charges because the appellant did not respond to the agency’s discovery
requests was an excessive sanction.
The appellant appealed his removal. The agency filed a motion to
compel discovery and later a motion for sanctions for the appellant’s failure
to comply with the administrative judge’s (AJ) order compelling discovery
responses. The AJ again ordered the appellant to respond to the agency’s
discovery requests no later than the “close of business” on February 3, 2006,
or he would be sanctioned by a finding that the agency proved its charges and
the disallowance of testimony at the hearing concerning the charges. At
approximately 5:00 p.m. on February 3, 2006, the agency faxed a notice of
non-compliance, informing the AJ that the appellant had not complied with
her discovery order. On February 6, 2006, the AJ issued an order granting the
agency’s motion for sanctions; she informed the parties that the agency’s
charges were sustained. Following a hearing limited to the issue of the
reasonableness of the penalty, the AJ affirmed the agency’s removal action.
On review, the appellant asserted, without rebuttal, that 81 minutes after
the agency notified the AJ that he had not provided it with discovery
responses, i.e., 6:18 p.m., he faxed his responses to the agency. Neither party
ever informed the AJ that the appellant had filed any discovery responses
before the initial decision was issued. Thus, the AJ did not abuse her
4
discretion in imposing a sanction because the record before her did not show
that the appellant had complied with her discovery order. However, the
Board reopened the appeal and found that the appellant substantially
complied with the deadline for discovery responses imposed by the AJ
because: 81 minutes after the agency notified the AJ that the appellant had
not provided it with discovery responses, he faxed his responses to the
agency; the AJ’s final warning did not explain what “close of business”
meant; and the agency did not allege prejudice.
In any event, deeming the agency to have proven its charges because the
appellant did not respond to the agency’s discovery requests was an excessive
sanction; a more appropriate sanction would have been to preclude the
appellant from presenting evidence related to the disputed discovery requests.
In light of the agency’s allegation that the appellant’s discovery responses
were incomplete, the Board remanded the appeal to determine whether the
appellant complied with the AJ’s discovery order and, if not, what sanction, if
any, is appropriate for his non-compliance.
Adams v. Department of the Army,
MSPB Docket No. CH-0752-06-0251-I-1
February 23, 2007
Adverse Action Charges
- Security Clearance Determinations
Board Procedures/Authorities
- Authority of Administrative Judges/Board
HOLDING: The Board has jurisdiction to review the agency’s
determination to suspend the appellant’s computer access that led to his
removal; the computer access determination was not a national security
clearance decision outside the Board’s jurisdiction; the appellant’s
removal for failure to maintain computer access was sustained based on
his refusal to pay his debts.
The agency suspended the appellant’s computer access because he had
refused to make repayments on over $50,000 of debt he owed to third parties,
evidencing a lack of integrity and responsibility. The agency then removed
the appellant for failure to maintain access to the computer system, a
requirement of his position. After first reviewing the merits of the agency’s
decision to suspend the appellant’s computer access, the administrative judge
(AJ) reversed the removal action.
First, the Board found that it has jurisdiction to review the computer
access decision as a qualification for the appellant’s position that led to his
removal. The Board then found that the computer access decision was not a
national security clearance determination outside the Board’s jurisdiction.
The Board sustained the removal, finding that the agency’s concerns about the
5
appellant’s integrity and responsibility, due to his refusal to pay his debts,
were legitimate reasons to suspend his computer access. Therefore, the
agency proved the charge of failure to maintain computer access, a nexus to
the efficiency of the service, and the reasonableness of its penalty of removal.
Member Sapin dissented, stating that she concurred with the AJ’s
decision that the agency failed to consider mitigating factors and that it failed
to show that the appellant’s refusal to pay his debts reflected adversely on his
integrity and responsibility.
McCarty v. Environmental Protection Agency,
MSPB Docket No. CH-1221-05-0902-W-1
February 28, 2007
Whistleblower Protection Act
- Election of Remedies
- Jurisdiction, Generally
HOLDING: Where the appellant’s claim was not grievable, she was not
precluded from filing an IRA appeal of her termination despite having
grieved her proposed termination through the negotiated grievance
procedure.
The agency terminated the appellant from her excepted service
appointment under the Federal Career Intern Program. The appellant filed an
informal written grievance of her termination before it was effective through
the negotiated grievance procedure in which she alleged, inter alia, that the
agency’s failure to convert her 2-year appointment to a permanent
appointment amounted to reprisal for whistleblowing. The appellant then
filed an individual right of action (IRA) appeal. Without first informing the
appellant of her jurisdictional burden or making a jurisdictional
determination, the administrative judge (AJ) proceeded to the merits of the
IRA appeal and determined that the appellant had not made any protected
disclosures. This was error. The Board therefore granted the appellant’s
petition for review, vacated the AJ’s initial decision, and remanded the appeal
to inform the appellant of her jurisdictional burden of proof and for a
jurisdictional determination.
In addition, the Board found that the appellant’s pursuit of relief through
the negotiated grievance procedure did not preclude her from filing this IRA
appeal because her claim was not grievable. That is so because, as an
employee serving an excepted service appointment that was subject to a trial
period, she was precluded from filing a grievance under the terms of the
applicable collective bargaining agreement.
DiCastro v. Office of Personnel Management,
MSPB Docket No. NY-0842-06-0142-I-1
6
February 23, 2007
Timeliness - Miscellaneous
HOLDING: The pro se appellant showed good cause for her 10-day delay
in filing her appeal because she was the primary caregiver of her
seriously ill husband and she understandably may have believed that her
Congressman was taking care of the matter appealed.
The appellant filed her appeal of OPM’s reconsideration decision
10-days late. The administrative judge dismissed the appeal as untimely filed
without good cause shown. On review, the Board denied the appellant’s PFR,
reopened the appeal on its own motion, vacated the initial decision, and
remanded the appeal for adjudication of the merits. The Board found that the
appellant did not intend to accept OPM’s reconsideration decision but, rather,
contacted her Congressman prior to the filing deadline and expressed a clear
objection to the decision. Because of her husband’s serious illness, her
extensive responsibilities as his primary caregiver, and the Congressman’s
prior assistance in responding to OPM’s initial decision regarding this
retirement matter, the pro se appellant may have understandably failed to
realize that her next step lay with the Board and not with her Congressman.
The Board therefore found that the appellant showed good cause for the
untimely filing of her appeal.
Heffernan v. Department of Health & Human Services,
MSPB Docket No. DC-0752-04-0756-E-1
February 23, 2007
Precedential Effect of Authority – Binding/Persuasive
- EEOC
HOLDING: The Board concurred in and adopted EEOC’s finding that
the agency discriminated against the appellant on the basis of religion
and retaliation for EEO activity.
In a January 24, 2007 decision, the EEOC found that the appellant
proved his claims of religious discrimination and reprisal for equal
employment opportunity activity and, thus, returned this case to the Board for
action. (Feb. 16, 2007 MSPB Case Report). The Board found that the EEOC
decision rests solely upon an interpretation of discrimination law and that
there was no proper basis on which to conclude that the EEOC decision was
so unreasonable that it amounts to a violation of civil service law. Thus, the
Board lacks authority to disagree with the EEOC decision. Accordingly, the
Board concurred in and adopted EEOC’s finding that the agency
discriminated against the appellant on the basis of religion and retaliation for
EEO activity.
7
Evans v. U.S. Postal Service,
MSPB Docket No. CH-315H-04-0557-B-1
February 23, 2007
Adverse Action Charges - Miscellaneous
The Board issued a Final Order denying the appellant’s petition for
review (PFR) and the agency’s cross-PFR of the initial decision that sustained
the charge of unacceptable conduct towards a craft employee (engaging in
“goosing” a subordinate employee and being aware of “goosing” being
performed in the office by his subordinates, but doing nothing to stop it), but
mitigated the removal penalty to a demotion to the next lower-graded,
nonsupervisory position with the least reduction in grade. Chairman McPhie
issued a dissenting opinion stating that he would have sustained the removal
penalty.
Mitchell v. Department of Homeland Security,
MSPB Docket No. NY-0353-05-0235-X-1
February 28, 2007
Back Pay
HOLDING: Because the FAA is not subject to the Back Pay Act and the
personnel provisions of the FAA do not provide for back pay or interest,
the Board lacks authority to order interest on back pay in an appeal filed
by a non-screener employee of the TSA.
In Mitchell v. Department of Homeland Security, 102 M.S.P.R. 636
(2006), the Board ordered the agency to amend the appellant’s personnel
record to reflect that his pay band is H retroactive to the date of his
restoration to duty, with the appropriate back pay. The appellant filed a
petition for enforcement claiming that he had not received back pay. The
Board ordered the agency to respond to the appellant’s compliance concerns.
Although the appellant worked for the Transportation Security
Administration (TSA), TSA is required by law to apply the Federal Aviation
Administration (FAA) personnel system under 49 U.S.C. § 40122, to
non-screener employees, like the appellant. The agency thus claimed that the
Board must apply the FAA’s personnel provisions, which do not provide for
back pay. Nevertheless, the agency filed evidence of compliance that showed
that it had paid the appellant back pay. The appellant responded, expressing
satisfaction with the agency’s evidence of compliance except for the agency’s
failure to pay interest on the back pay, as ordered by the administrative judge
in the Recommendation.
The Board found that 49 U.S.C.§ 40122(g)(2) had the effect of, among
other things, making the Back Pay Act inapplicable to FAA employees.
8
Because the TSA Administrator has not modified the FAA personnel system
for TSA’s non-screener employees with regard to the Back Pay Act, the Board
must apply the personnel provisions of the FAA, which do not provide for
back pay or interest. The Board, therefore, lacks authority to order interest in
this case. To the degree that the Recommendation provided for the payment
of interest, the Board does not accept that finding. Since the
Recommendation otherwise did not order the agency to comply with the Back
Pay Act, the Board found the agency in compliance.
Johnson v. Department of the Army,
MSPB Docket No. DA-0752-02-0258-I-1
February 28, 2007
Board Procedures/Authorities
- Reopening/Reconsideration
- Withdrawal of Appeal/PFR
Timeliness - Miscellaneous
Because the appellant withdrew his removal appeal, the Board treated his
petition for review (PFR) as a late-filed petition for appeal and a request to
reopen and reinstate his appeal. The Board dismissed the appellant’s petition
for appeal as untimely filed (4-years late) without good cause shown because
he failed to respond to the Clerk’s timeliness acknowledgment order and his
unsworn statement in his petition does not constitute good cause. The Board
denied the appellant’s request to reopen the appeal because more than a
reasonable time has passed since the appeal became final, and he did not show
the required unusual circumstances.
Cooper v. U.S. Postal Service,
MSPB Docket No. DA-0752-96-0212-I-1
February 28, 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 (10-years
late) without good cause shown because he failed to respond to the Clerk’s
timeliness acknowledgment order and he did not show how the circumstances
surrounding the settlement agreement interfered with his ability to file a
timely PFR.
COURT DECISIONS
Dean v. Consumer Product Safety Commision (NP)
Fed. Cir. No. 2007-3038, MSPB Docket Nos. AT-3443-05-0147-I-1, -0179-I-1
February 28, 2007
9
USERRA/VEOA/Veterans’ Rights
HOLDING: The court remanded the USERRA/VEOA case to the Board
to determine whether the agency’s hiring procedure, i.e., establishing two
separate lists of candidates (one a competitive list of ranked candidates
and the other a non-competitive list of candidates) and then selecting
from only one of the lists, is in accordance with law and merit principles.
The appellant responded to the agency’s advertisement for a Product
Safety Investigator, GS-7/9. The vacancy announcement set forth the
following policy:
“Status candidates and individuals who are eligible for special hiring
authorities, who wish to be considered under both merit promotion or
special hiring authority and competitive procedures, MUST submit two (2)
complete applications. If one application is received, it will only be
considered under the special hiring authority or the merit promotion
procedure.”
The appellant initially submitted only one application, in which he
identified himself as a 30% disabled, preference-eligible veteran, and
requested consideration for appointment under non-competitive hiring
authorities for disabled veterans. He alleged that he later mailed additional
applications, which the agency denied receiving. In accordance with the
vacancy announcement, the appellant was not considered under competitive
procedures. The agency selected a non-preference eligible from the
competitive list.
The appellant then filed an appeal under the Veterans Employment
Opportunities Act of 1998 (VEOA), claiming violation of his veterans’
preference rights, as well as an appeal under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301-4333) (USERRA), claiming discrimination based on his status as a
disabled veteran. The AJ took jurisdiction over both appeals. Based on the
documentary evidence, he found that the agency had only one application
from the appellant at the time it made its selection, and processed that single
application in accordance with the conditions set forth in the vacancy
announcement. The AJ dismissed both appeals for failure to state a claim
upon which relief can be granted.
The Board denied the appellant’s petitions for review by Final Order.
Chairman McPhie filed a separate opinion, concurring with respect to the
VEOA claim, and dissenting with respect the USERRA claim.
Dean v.
Consumer Product Safety Commision, 103 M.S.P.R. 272 (2006). The
Chairman raised concerns about the use of two lists and stated that the Board
has never ruled on whether this procedure is acceptable under federal
employment law. He also expressed concern that persons such as disabled
10
veterans must either submit multiple applications or encounter the possibility
of not even being considered for the announced position.
On review, the Federal Circuit concluded that the Board erred in
declining the appellant’s request to consider the validity of the agency’s
hiring procedure, i.e., establishing two separate lists of candidates (one a
competitive list of ranked candidates and the other a non-competitive list of
candidates) and then selecting from only one of the lists, discarding the other.
The agency did not explain the reasons for this procedure. In view of the
impact on the appellant and his veterans’ preference status, the procedure on
its face raises questions. Therefore, the court vacated the Board’s decision
and remanded the case for determination of whether the agency’s procedure is
in accordance with law and merit principles.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
The following appeals were dismissed:
Winters v. Office of Personnel Management, 07-1027, DA-844E-06-0188-I-1 (2/27/07)
Baxter v. Department of Veterans Affairs, 07-3103, AT-1221-06-0158-W-1 (2/27/07)
Starr v. U.S. Postal Service, 07-3105, PH-0752-05-0522-C-1 (2/27/07)
The court recalled the mandate and reinstated the appeal:
Cuellar v. Department of Homeland Security, 07-3074, DA-0752-06-0283-I-1 (2/26/07)
11 | 26,328 | |
Case_Report_February_23_2007 | 02-23-2007 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_23_2007_255137.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_23_2007_255137.pdf | CASE REPORT DATE: February 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
Jolley v. Department of Homeland Security,
MSPB Docket No. AT-3443-06-0447-I-1
February 21, 2007
Miscellaneous Topics
- USERRA/VEOA/Veterans’ Rights
- Statutory/Regulatory/Legal Construction
HOLDING: The plain language of 5 U.S.C. § 3304(f)(1) entitled any
veteran meeting the eligibility requirements therein to compete for any
vacancy opened to applicants outside of the announcing agency’s
workforce. Allowing the agency to limit its application by geographic
area or other such factors would eviscerate Section 3304(f)(1) and render
it meaningless
The appellant, a preference eligible veteran employed at the Department
of Housing & Urban Development (HUD) in Jacksonville, Florida, applied for
an announced position that the agency, the Department of Homeland Security
(DHS), opened to competitive service employees of the agency and its on-site
partner organizations at the Federal Law Enforcement Training Center
(FLETC) in Glynco, Georgia. The vacancy notice also stated that the agency
would accept applications from certain other categories of applicants,
including veterans with VEOA eligibility. The agency declined to consider
the appellant’s application because he was not within the area of
consideration specified in the announcement – he did not currently work at
FLETC. The appellant filed a VEOA complaint with the Department of Labor
(DOL), which found no merit to his complaint. He then appealed to the
Board.
The Board reversed the administrative judge’s denial of corrective
action, and ordered the agency to reconstruct the selection process and
consider the appellant’s application. Under 5 U.S.C. § 3304(f)(1), honorably
discharged preference eligible veterans, with 3 or more years of active duty
service, are entitled to compete for vacant positions that are opened to
individuals from outside the announcing agency’s workforce. It was
undisputed that the appellant was a VEOA eligible veteran. The Board found
that the agency’s vacancy announcement was opened to individuals outside of
its own workforce because it invited applicants from its on-site partner
organizations at FLETC, which included components of non-DHS agencies.
The agency argued that the geographic limitation in the announcement,
limiting it to applicants already employed at the FLETC location, disqualified
the appellant from consideration. Distinguishing the non-precedential
decision O’Brien v. Office of Personnel Management, 118 F. App’x 484 (Fed.
Cir. 2004), and declining to give deference to OPM’s VetGuide, the Board
found that the plain language of 5 U.S.C. § 3304(f)(1) entitled any veteran
meeting the eligibility requirements therein to compete for a vacancy opened
to outside applicants. Allowing the agency to limit its application by
geographic area or other such factor would eviscerate Section 3304(f)(1) and
render it meaningless. Therefore, under 5 U.S.C. § 3304(f)(1), the appellant
was entitled to compete for the position and the agency was required to
reconstruct the selection process.
Vice Chairman Rose dissented, stating that Section 3304(f) permits
certain veterans to apply and compete for vacancies, but otherwise receive no
special treatment. The Vice Chairman concurred with the Federal Circuit
decision in O’Brien that an agency may geographically limit a vacancy
announcement, so long as the area of consideration is sufficiently broad to
ensure the availability of high quality candidates, and would defer to OPM’s
VetGuide in this regard also. Accordingly, the Vice Chairman stated that a
geographic limitation should be treated as an eligibility criteria, applying to
all potential applicants, from which veterans covered by Section 3304(f) are
not exempt.
COURT DECISIONS
Kalil v. Department of Agriculture
Fed. Cir. No. 2006-3098; MSPB Docket No. DC-1221-02-0792-B-2
February 16, 2007
Whistleblower Protection Act
- Clear and Convincing Evidence
HOLDING: The appellant’s ex parte contact with a court regarding on
going litigation was an outrageous offense and a legitimate basis for
disciplinary action, regardless of whether the ex parte communication
2
was a protected disclosure. The character of the disclosure itself
provided clear and convincing evidence that the agency would have taken
the disciplinary action absent any protected disclosure.
The agency suspended the appellant for contacting the clerk of a federal
district court judge and telling the clerk that the agency was attempting a
fraud on the court in litigation currently pending before that judge. The
appellant sought corrective action from the Office of Special Counsel (OSC)
and then filed an individual right of action (IRA) appeal with the Board,
characterizing his suspension as retaliation for whistleblowing. The Board
found that the agency established by clear and convincing evidence that it
would have suspended the appellant absent any whistleblowing.
The appellant sought judicial review and argued that if the appellant’s
statement to the clerk was a protected disclosure, then the character or nature
of that disclosure can never supply support for any disciplinary action. The
court disagreed, affirming the Board’s decision, finding that the appellant’s
ex parte contact with a court regarding on-going litigation, even if qualifying
as a protected disclosure, was “an outrageous offense, especially for an
attorney” and so a legitimate basis for the agency’s disciplinary action.
Therefore, the agency had provided clear and convincing evidence that it
would have taken the disciplinary action, regardless of the whistleblowing
contents or nature of the appellant’s disclosure.
FEDERAL CIRCUIT AFFIRMANCES/DISMISSALS (NP)
A petition for rehearing was denied in the following cases:
Zellars v. Department of the Air Force, 06-3321, DC-0752-05-0793-I-1 (2/15/07)
Fernand v. Department of the Treasury, 06-3082, AT-0432-03-0753-I-1 (2/15/07)
Roach v. Department of Defense, 06-3241, AT-0752-05-0285-I-1 (2/15/07)
Smart v. Merit Systems Protection Board, 06-3283, DE-1221-05-0505-W-1 (2/15/07)
3 | 6,394 |
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