U.S. Merit Systems Protection Board 
Case Report for May 4, 2012

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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:  Joseph T. Gargiulo
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 64
Docket Number:  SF-0752-09-0370-I-1
Issuance Date:  April 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Constitutional Issues - Due Process
Harmful Procedural Error
Indefinite Suspensions
Security Clearance Determinations

    The appellant petitioned for review of an initial decision that sustained his indefinite suspension.  As a Federal Air Marshal, the appellant is required to hold a Top Secret security clearance.  In an August 1, 2008 letter, the agency's Office of Security informed the appellant that it had suspended his security clearance with the intent to revoke his access to classified information.  Because the agency mailed the letter to an incorrect address, the appellant first received it as an attachment to an August 28 notice proposing his indefinite suspension based on his security clearance suspension.  After receiving the appellant's response to that proposal notice, the agency issued a decision sustaining the indefinite suspension, which was to remain in effect pending resolution of the revocation of the appellant's clearance or until there was evidence sufficient to either return him to duty or take administrative action against him.  In affirming the suspension, the administrative judge found that the agency had complied with required procedures, that there was an ascertainable end to the suspension, that there was a nexus between the charges and the efficiency of the service, and that the penalty was reasonable.  

Holdings:  The Board affirmed the initial decision as modified, still sustaining the indefinite suspension:

1.  This appeal concerns due process issues similar to those recently addressed in McGriff v. Department of the Navy, 2012 MSPB 62, which held, among other things, that:  

a.  When a suspension is based on restriction of the employee's security access, the agency is required to provide the employee a meaningful opportunity to respond to the reasons for the suspension by ensuring that, either in the advance notice of that action or in the earlier access determination, the employee has been notified of the cause that led to the access determination;

b.  The Board will apply the balancing test of Gilbert v. Homar, 520 U.S. 924 (1997), to determine whether an indefinite suspension satisfies due process requirements:  (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest.  In the context of an indefinite suspension, due process may not necessarily encompass a right to have such notice and opportunity prior to the deprivation; because due process relates to time, place and circumstances, its parameters in any given case will be a function of the demands of the particular situation.

c.  The second Homar factor requires that the deciding official have the authority to change the outcome of a proposed indefinite suspension.  

2.  As in McGriff, the Board determined that the timing of the notice of proposed suspension did not render the process constitutionally defective because the appellant was afforded notice and an opportunity to respond prior to the imposition of the suspension.  Similarly, this fact rendered the third factor inconsequential to the ultimate issue as to whether the appellant received due process.  

3.  The second Homar factor focuses on the need to ensure that the procedures used provide adequate assurance that the agency had reasonable grounds to support the adverse action.  Here, the Board found that the agency had adequate grounds, which involved allegations involving the appellant's personal conduct and sexual behavior during his prior employment in two law enforcement positions.  

4.  The Board rejected the appellant's argument that the agency should not have indefinitely suspended him until issuance of the November 2009 decision upholding the initial determination to revoke his security clearance.  An agency may indefinitely suspend an employee pending a determination on the security clearance issue, and such a suspension, in and of itself, does not violate an employee's right to minimum due process.  

5.  The agency did not deny the appellant due process by failing to provide him with the August 1, 2008 decision to suspend his security clearance before issuing the August 28 notice proposing his suspension.  The proposal notice referred to the agency's report of investigation and the appellant did not avail himself of the opportunity to review this report.  The administrative judge did not err in finding that the notice of proposed suspension, coupled with the notice of the suspension of his security clearance, gave the appellant enough information to enable him to respond meaningfuly to the agency's proposed indefinite suspension.  

6.  The Board found unpersuasive the appellant's argument that he was denied due process because he was unable to argue the merits of the security clearance suspension in the indefinite suspension proceedings because the deciding official in the latter had no authority to entertain such arguments.  The agency claims that the deciding official had the authority to impose any other penalty deemed appropriate.  Even if the deciding official lacked the authority to change the outcome of the indefinite suspension, the appellant could have requested an opportunity to respond to the security clearance determination before his indefinite suspension was effected, and there is no indication that the official in the security clearance determination lacked the authority to change the outcome of the security clearance determination.  This distinguishes the present case from McGriff, where it was unclear whether the deciding official on the indefinite suspension had authority to change the outcome of that adverse action.

7.  The appellant did not establish that the agency committed harmful procedural error in effecting the indefinite suspension.  




Appellant:  Nellie M. Ingram
Agency:  Department of Defense
Decision Number:  2012 MSPB 66
Docket Number:  DC-0752-10-0264-I-4
Issuance Date:  April 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade/Rank/Pay

Demotions
 - Eligibility to Hold Non-Critical Sensitive Position


    The agency petitioned for review of an initial decision that reversed the appellant's demotion from her noncritical-sensitive Supervisory Store Associate position to a Lead Store Associate position based upon the loss of her eligibility for access to classified information and occupancy of a sensitive position.  The agency's notice of proposed demotion did not state the reasons for the loss of eligibility.  In reversing the demotion, the administrative judge found that she need not reach the merits of the demotion action because the agency's failure to provide the appellant with the specific reasons for the adverse action deprived the appellant of due process.  In reaching this conclusion, the judge recognized the evidence showing that the agency previously provided the appellant with the detailed information that led its Central Adjudication Facility to revoke the appellant's access during that prior proceeding, but concluded that the appellant's opportunity to review this information during the prior proceeding did not "cure the fatal flaw" in the agency's demotion proceeding.  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision, and remanded the appeal for adjudication on the merits:  

1.  During the eligibility proceeding, the agency both informed the appellant of the reasons it was examining whether to end her eligibility, specifically identifying her financial problems, and afforded the appellant the opportunity to respond to those reasons and to appeal its decision.

2.  Because the appellant received the required notice of the specific charges against her in the eligibility proceeding, and given that the eligibility determination formed the basis of her demotion, the agency did not deny the appellant minimum due process in effecting her demotion.  

3.  The appeal must be remanded to the regional office for adjudication on the merits.  On remand, the judge should afford the appellant the opportunity to request a hearing.  



Appellant:  Wesley K. Brown
Agency:  Social Security Administration
Decision Number:  2012 MSPB 65
Docket Number:  NY-0752-10-0180-I-2
Issuance Date:  April 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Applicant Ineligible

Adverse Action Charges - Dishonest Conduct
Permissible Background Checks and Debarment

    The appellant petitioned for review of an initial decision tht sustained his removal and debarred him from employment with the agency for a period of 3 years.  The appellant was hired as a Contact/Teleservice Representative.  In that position, he had access to information on "virtually every citizen and large numbers of non-citizens," including social security numbers, dates and places of birth, parents' names, and Internal Revenue Service data.  If the individual were a Social Security beneficiary using direct deposit, he could also access bank account information and could make changes to Social Security records without supervisory approval.  After the appellant was hired, the agency request a background check by the Office of Personnel Management.  The background check revealed several items of negtive information, including that, while he was in graduate school, the appellant had obtained other students' identification information and used that information to obtain and use fraudulent credit cards.  The background check also disclosed that the appellant had engaged in shoplifting, and that he had lied about his indebtedness in affidavits and interviews.  The agency removed the appellant from his position for "dishonest conduct" and debarred him from employment with the agency for a period of 3 years.  The appellant asserted race and sex discrimination and that he was subjected to a more extensive background check than was warranted.  He asserted that, because he came to the Social Security Administration (SSA) from another federal agency, there was no need for the SSA to request OPM to do the background check.  The administrative judge found that the agency proved by preponderant evidence that the appellant was unsuitable for employment with the SSA and that the appellant failed to prove his affirmative defenses of race or sex discrimination.  The judge addressed whether the background investigation and report was discriminatory, but did not address whether the investigation and report were improper for other reasons.  

Holdings:  The Board affirmed the initial decision as modified, still sustaining the appellant's removal and debarment:

1.  A background check to determine the appellant's suitability was required by federal regulations and was therefore not improper.

2.  Because the agency was authorized by the appellant to obtain background information, its use of the information cannot constitute harmful procedural error.

3.  The judge did not err when she determined that the appellant failed to prove his discrimination claims.



Appellant:  Herman J. Gath
Agency:  United States Postal Service
Decision Number:  2012 MSPB 68
Docket Number:  DA-0752-10-0450-I-2
Issuance Date:  April 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Affirmative Defenses - Required Notice and Adjudication

    The appellant petitioned for review of an initial decision that affirmed his removal on misconduct charges and found that he failed to prove his affirmative defense of retaliation for equal employment opportunity (EEO) activity.  

Holdings:  The Board vacated the initial decision and remanded the appeal to consider the appellant's affirmative defense that the removal action was taken in retaliation for protected union activity:

1.  When an appellant raises an affirmative defense, the judge must address the affirmative defense in any close of record order or prehearing conference summary and order.

2.  The appellant clearly alleged below that the agency removed him in retaliation for
protected union activity as well as for engaging in protected EEO activity.  However, the judge did not consider the appellant's affirmative defense of retaliation for protected union activity in her initial decision, and there is no indication that the appellant withdrew or abandoned that affirmative defense.  

3.  Even though the Board found no error in any of the findings that the judge did make, the failure to address this affirmative defense requires that the initial decision be vacated in its entirety because the agency's decision is ultimately sustainable under 5 U.S.C. 7701(c)(2) only if the appellant cannot establish his affirmative defenses.  



Appellant:  Arturo Martinez, III
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 69
Docket Number:  DA-0752-10-0273-I-1
Issuance Date:  April 30, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction
"Employee" - Same or Similar Position

    The appellant petitioned for review of an initial decision that dismissed his termination apppeal for lack of jurisdiction without a hearing.  The appellant was hired in 2006 into the excepted service position of Border Patrol Agent under the Federal Career Intern Program (FCIP).  This appointment continued for 2 years, at which time it was converted to a career-conditional appointment in the competitive service as a Border Patrol Agent.  In December 2008, the appellant was converted to the excepted service as a Customs and Border Patrol Officer.  This FCIP appointment was expected to continue for 2 years, with a potential conversion to a career or career-conditional appointment in the competitive service upon satisfactory completion.  In January 2010, however, the agency terminated the appellant's employment for alleged misconduct.  On appeal to the Board, the administrative judge found that the appellant failed to make a nonfrivolous allegation that he was an employee with appeal rights and dismissed the appeal for lack of jurisdiction.  

Holdings:  The Board remanded the case to the regional office for a jurisdictional hearing:

1.  The dispositive issue for jurisdictional purposes is whether the Border Patrol Agent and Customs and Border Patrol Officer positions are the same or similar.  If they are, the appellant qualifies as an "employee" under 5 U.S.C. 7511(a)(1)(C).

2.  Based on the written record, the appellant has made a nonfrivolous allegation that the two positions are similar under the statute.  He is therefore entitled to a jurisdictional hearing.  





COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the followings case:

Gomez v. Merit Systems Protection Board, No. 2011-3205 (April 27, 2012) (MSPB Docket No. NY-0752-10-0238-I-1) (vacating and remanding the Board's final order dismissing Gomez's petition for review as untimely filed)


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