U.S. Merit Systems Protection Board

Case Report
May 15, 2009
Note: These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant: Suzanne Pyun

Agency: Social Security Administration

Decision Number:
2009 MSPB 76
Docket Number: CB-7121-09-0004-V-1
Issuance Date: May 11, 2009

Action Type: Arbitration

Arbitration/Collective Bargaining-Related Issues
The appellant requested review of an arbitration decision that affirmed the agency's decision to remove her.

Holdings: The Board granted the request for review, but affirmed the arbitration decision:

1. The Board has jurisdiction under 5 U.S.C. § 7121 (d), as the subject matter of the grievance (a removal) is one over which the Board has jurisdiction, the appellant alleged discrimination (reprisal for protected EEOC activity) in connection with the underlying action, and a final decision has been issued.

2. The appellant failed to meet the high standard of review in arbitration cases, under which the Board requires a showing that the arbitrator erred as a matter of law in interpreting a civil service law, rule, or regulation.

a. Because the appellant failed to object to the arbitrator's ruling as to matters that would be heard in the arbitration proceeding, versus matters reserved for a concurrent EEOC proceeding, she may not object to those rulings before the Board.

b. Even if the Board were to address the reprisal issue on the merits, the record does not support a finding of reprisal by the agency. In light of the ongoing deficiencies in the appellant's performance and the consistency with which her supervisors described these deficiencies, as well as the appellant's resistance to improvement, the inadequacy of the appellant's performance substantially outweighs the intensity of any motive on the agency's part to retaliate.


Appellant: Robert I. Terry
Agency: Equal Employment Opportunity Commission
Decision Number:
2009 MSPB 77
Docket Number: DE-315H-08-0402-I-1
Issuance Date: May 11, 2009
Action Type: Probationary Termination

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant's request for review was filed almost 4 months after the deadline for timely filing.

Holding: The Board dismissed the petition for review (PFR) as untimely filed without good cause shown for the delay in filing. The appellant failed to show that his “new evidence” was not readily available before the close of the record below, and he did not explain how this evidence would warrant a different outcome than that in the initial decision.


Appellant: Sabinus I. Njoku
Agency: Department of Homeland Security

Decision Number:
2009 MSPB 78
Docket Number: SF-0752-06-0155-I-1
Issuance Date: May 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal

Timeliness – PFR

The appellant sought review of initial decision, issued in February 2006, that dismissed his removal appeal as settled. The PFR was filed more than 2 years and 8 months after the deadline for timely filing.

Holding: The Board dismissed the PFR as untimely filed without good cause shown for the delay. The appellant did not assert that he failed to receive the initial decision in a timely fashion or that he filed a PFR previous to the current untimely one.


Appellant: Sabinus I. Njoku
Agency: Department of Homeland Security
Decision Number
: 2009 MSPB 79
Docket Number: SF-0752-06-0155-C-2
Issuance Date: May 13, 2009
Appeal Type: Adverse Action by Agency
Action Type: Removal

Timeliness – PFR

The appellant petitioned for review of an initial decision that denied his petition for enforcement. The PFR was filed more than 3 months after the deadline for timely filing.

Holding: The Board dismissed the PFR as untimely filed without good cause shown for the delay in filing. Although the appellant asserted that he had previously faxed a PFR the same month the initial decision was issued, he provided no proof or evidence, such as a fax machine transaction report, to support this assertion, and his assertions were not accompanied by an affidavit or sworn statement.


Appellant: David Q. Tat
Agency: United States Postal Service
Decision Number:
2009 MSPB 80
Docket Number: DA-0353-08-0174-B-1
Issuance Date: May 13, 2009
Appeal Type: Restoration to Duty

Board Procedures/Authorities
- Forwards

The appellant petitioned for review of an initial decision that dismissed his appeal as settled. Among the allegations in the PFR was that the agency breached the terms of the settlement agreement. The appellant subsequently stated that he wished to withdraw his PFR and have it considered as a petition for enforcement.

Holding: The Board granted the appellant's request and forwarded his allegations of noncompliance to the administrative judge (AJ) as a timely filed petition for enforcement.


Appellant: Matthew R. Drake
Agency: Agency for International Development
Decision Number:
2009 MSPB 81
Docket Number: DC-1221-06-0128-M-1
Issuance Date: May 13, 2009
Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
Board Procedures/Authorities
- Remands

This case was before the Board pursuant to a remand by the U.S. Court of Appeals for the Federal Circuit, 543 F.3d 1377 (Fed. Cir. 2008), which reversed the AJ's determination that the appellant did not make a disclosure protected by 5 U.S.C. § 2302 (b)(8). The court noted that the AJ had found that the appellant otherwise established that he was entitled to relief, in that he established that his disclosure was a contributing factor in his reassignment, and that the agency failed to prove by clear and convincing evidence that it would have reassigned him absent his disclosure. The court remanded the case to the Board to determine the appropriate corrective action to which the appellant was entitled.

Holding: In accordance with the court's decision, the Board ordered the agency to cancel the appellant's reassignment and restore him to the status quo ante.


COURT DECISIONS

Petitioner: John Doe
Respondent: Department of Justice
Court: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2008-3139
Issuance Date: May 11, 2009

Nexus

This case was before the court on appeal from the Board's final decision, 107 M.S.P.R. 397 (2007), which held that there was a nexus between Mr. Doe's off-duty activity—videotaping sexual encounters with women without their consent—and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness.

Holdings: A majority of the court panel vacated the Board's decision and remanded the case to the Board for further adjudication. Judge Bryson issued a dissent stating that he would have reversed the Board outright on the ground that the agency failed to establish a nexus between the charged conduct and the efficiency of the service. The majority held that the Board's decision must be vacated, and that a remand is required, for two reasons:

1. The Board failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the “efficiency of the service.” The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI's policy on investigating personal relationships and its policies requiring their agents to act with integrity and honesty.

2. The Board failed to address the fact that the FBI's decisions to sustain the charge and to impose the penalty of removal were influenced in part by the assumed criminality of Doe's behavior. (Both the AJ and the Board found that the agency failed to establish a criminal violation.) Under these circumstances, the court found it appropriate to remand the case to the Board to determine, in the first instance, whether the FBI would have authority to discipline Doe for his action. But even if the FBI could impose discipline, the Board must determine whether the agency would have imposed the removal penalty absent the legal error, i.e., the assumed criminality of Doe's behavior.

 

 

 

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