U.S. Merit Systems Protection Board 
Case Report for March 28, 2014

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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 E. Wren
Agency:  Department of the Army
Decision Number:  2014 MSPB 20
Docket Number:  DE-0752-12-0023-I-2
Issuance Date:  March 25, 2014
Appeal Type:  Removal
Action Type:  Medical Inability to Perform

Medical Inability to Perform
  -where post removal evidence presented
Rationale for Considering Post Removal Evidence
Assessing Probative Weight of Medical Evidence
Disability Discrimination
   -Sufficiency of search for suitable work to accommodate disability
Requirement to Adjudicate Disability Discrimination Claim
  
    The appellant was removed from the position of Information Technology Specialist based on a charge of medical inability to perform the duties of his position. The agency based this action on the conclusions of the appellant's physicians who uniformly restricted him from significant traveling because of his chronic obstructive pulmonary disorder (COPD).  A medical report submitted after the removal was effected indicated that the appellant was able to travel with certain restrictions on the duration of the out of town travel, the availability and use of supplemental oxygen at the work site, and the avoidance of travel in very cold climates and high elevations.  Based on this post removal medical report, the AJ concluded that the agency failed to show that the appellant was unable to perform the duties of his position.  Although the AJ did not make a specific finding whether the agency had engaged in disability discrimination, he concluded that the agency's reasonable accommodation search for other suitable work was inadequate.  In this regard, the AJ noted that if it was later determined that the agency failed to conduct a proper reasonable accommodation search, he would entertain that issue in the form of a compliance action if the appellant believed that the agency had not afforded him back pay retroactive to the effective date of the removal action without acceptable proof that a correct search for vacant positions would not have resulted in his reassignment to a vacant, funded position.   The agency asserted in its petition for review that the AJ erred in not sustaining the charge of medical inability to perform because the appellant was unable to engage in significant work related travel, that the AJ erred considering the post removal medical report because it was untimely, and that the AJ erred in failing to resolve the appellant's disability discrimination claim and, instead, erroneously left that matter to a possible future compliance proceeding. 

Holding:  The Board reversed the initial decision sustaining the agency's charge, and remanded the case for adjudication of the appellant's claim of disability discrimination and, if appropriate, the reasonableness of the penalty.      

1.  The Board's holdings in Street v. Department of the Army, 23 MSPR 335 (1984) and Morgan v. U.S. Postal Service, 38 MSPR 676 (1988) stand for the proposition that even when an agency proves by preponderant evidence that the appellant was physically unable to perform the duties of his position at the time he was removed, the removal action may be rescinded on the basis that such action would not promote the efficiency of the service, where, as the Board later clarified in Johnson v. U.S. Postal Service, 120 MSPR 87 (2013), such evidence clearly and unambiguously demonstrates that the appellant has recovered during the pendency of a Board appeal such that he is able to perform the essential duties of his position.

2.  The rationale for considering post removal evidence under Street and Morgan include:  1) that the Board has de novo review authority and may consider evidence that was not available to the agency when it made its decision; 2) that the efficiency of the service standard is the "ultimate criterion" for determining whether any discipline is warranted and whether a particular penalty may be sustained; 3) that inherent in an action effecting a removal for physical inability to perform is that such inability will be permanent, or at least long-enduring rather than temporary; and 4) that as the "last voice" in the Executive Branch, the Board must avoid the "manifest absurdity" of upholding a removal for physical incapacitation when intervening events show that the appellant is no longer incapacitated and, thus, removal cannot promote the efficiency of the service.    The Board's approach to admissibility and potential relevance of post-removal evidence was approved of in a related federal circuit opinion that emphasized the de novo nature of Board proceedings and, in particular, the Board's role in assessing the reasonableness of a penalty. See Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1356 (Fed. Cir. 2012).

3.  In assessing the probative weight of medical opinion, the Board considers whether the opinion was based on a medical examination, whether the opinion provided a reasoned explanation for its findings as distinct from mere conclusory assertions, the qualifications of the expert rendering the opinion, and the extent and duration of the expert's familiarity with the appellant's treatment.  Because the appellant's post removal medical evidence did not clearly and unambiguously establish that the appellant has in fact sufficiently recovered from the COPD condition, and prior medical evidence demonstrated that the appellant was not able to engage in the work-related travel necessary to his position, the Board concluded that the agency proved by preponderant evidence that the appellant was medically unable to perform the duties of his position.   

4.  Because the AJ did not make findings on the issue of whether the agency discriminated against the appellant by failing to provide him with a reasonable accommodation, and instead reserved the question for a possible future compliance proceeding, it was error for the AJ not to adjudicate the appellant's claim of disability discrimination.   The Board concluded that a remand was necessary because the present record was insufficient to make a determination as to whether the agency committed disability discrimination and whether it could have provided the appellant an effective accommodation.  

Appellant:  Paul D. Jonson
Agency:  Federal Deposit Insurance Corporation
Decision Number:  2014 MSPB 22
Docket Number:  PH-0752-13-0236-W-1
Issuance Date:  March 28, 2014
Appeal Type:  Interlocutory Appeal
Action Type:  Removal

-Board Jurisdiction Over Removal of FDIC Employee
-Board Authority to Review FDIC Regulations Pertaining to Employee Conduct
-Promulgation of Regulations Exceeding Delegated Authority
-Circumvention of Board Jurisdiction by Agency Promulgated Regulations
-Claim of Disability Discrimination based on Association With Disabled Person


    The AJ certified six issues for interlocutory appeal relating to the removal of an employee of the Federal Deposit Insurance Corporation (FDIC) charged with failure to maintain the minimum standards of financial responsibility in regard to debts owed to insured depository institutions.  The internal agency regulation setting forth minimum standards for employment with the FDIC mandated that any violations of the financial responsibility standards would result in mandatory removal of the employee without further review.  The appellant asserted that the internal agency regulation upon which the charge is based was not properly promulgated and that the term to describe financial irresponsibility -- defalcation --- was defined too broadly in the regulation. Although the AJ certified six  issues for interlocutory appeal, the Board only addressed three and chose not to  reach the remaining three issues because the Board ultimately reversed the removal action in its entirety based on a finding that the FDIC exceeded its authority in promulgating the minimum standards without meeting the statutory requirement of obtaining concurrence from the Office of Government Ethics (OGE).

Holdings:  The Board affirmed the ruling on three of the certified issues:  (1) that the FDIC was authorized to promulgate regulations concerning employee conduct; (2) that the FDIC was required to obtain the concurrence of the OGE before promulgating such regulations, but such concurrence was not obtained; and (3) that the Board has jurisdiction to review the adverse action issued to the appellant.  The Board reversed the appellant's removal because it was based on regulations promulgated without the required OGE approval, vacated the order that stayed the processing of the appeal, and returned the case to the regional office for further adjudication on the issue of disability discrimination.      

1.  The Board has jurisdiction to review the removal of an FDIC employee for allegedly violating rules of minimum standards for employment based on a number of rationales, including: (1) that Congress passed the CSRA for the purpose of establishing a comprehensive and integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration; and (2) the Supreme Court recently ruled in Elgin v. Department of the Treasury, 132 S.Ct. 2126, 2137 (2012), that the Board's jurisdiction over an employee appeal is limited only by the nature of the employee status and the employment action at issue. 

2.  The Board's authority to review an employee's appeal is not limited by 19 of the Resolution Trust Corporation Completion Act (RTCCA) pertaining to its statutory authority to promulgate regulations governing an employee's minimum standards of competence, experience, integrity, and fitness -- 12 U.S.C. 1822(f)(2) pertaining to employees and 12 U.S.C. 1822(f)(4) pertaining to contractors -- because there is nothing in the legislative history or principles of statutory construction to suggest that Congress intended to circumscribe the reach of the CSRS.

3.  Pertinent rules of statutory construction support a finding that the authority of the FDIC to issue ethics and conflict of interest rules and regulations for its employees under subsections (f)(2) pertaining to employee conduct specifically requires concurrence by the OGE, and subsection (f)(4) pertaining to contractor contains no such requirement.

4.    Because the FDIC removed the appellant under (f)(2) and this regulation was promulgated without concurrence by the OGE, the FDIC impermissibly exceeded its delegated authority -- here, by purporting to have the rulemaking authority to remove an employee for financial irresponsibilty and not providing the employee the rights to further review under the CSRS -- and the removal cannot stand. A federal agency is not authorized to promulgate regulations that exceed its delegated authority and may not promulgate regulations that limit the statutory authority of other agencies.   

5.  The Board does not lack authority to review an agency's regulations with the context of an employment action that would otherwise fall within the Board's jurisdiction; an agency by its own action cannot confer or take away Board jurisdiction.  The FDIC's minimum standards of fitness regulations at issue here attempt to circumvent the jurisdiction of the Board by eliminating the requirement to obtain OGE aproval.  Inasmuch as the appellant's removal was based on invalidly promulgated regulations, it must be reversed as not in accordance with the law.

6.  Although the Board has not previously ruled on the issue of whether an individual may raise a claim of discrimination based on his or her association with an individual with a disability, it adopts the EEOC interpretation of the Americans With Disabilities Act Amendments that permits such a claim.  

Dissenting Opinion of Member Mark A. Robbins:    The dissent would find that the FDIC is not required to obtain prior approval before promulgating regulations governing employee fitness for duty.  Unlike ethics regulations, the dissent would hold that fitness-for-duty regulations are unencumbered by a statutory requirement to obtain OGE approval.  Further, the dissent would find that deference should be afforded the FDIC in the interpretation of its own regulations.  

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Mayfield v. United States Postal Service,
No. 2013-3154 (Mar. 27, 2014) (MSPB Docket No. DA-0752-12-0095-I-2) (agency motion to transfer mixed case to federal district court granted because Federal Circuit does not have jurisdiction to review cases involving discrimination allegations).

Nelson v. Office of Personnel Management, No. 2014-3054 (Mar. 27, 2014) (SF-0845-13-0347-I-1) (dismissal of appeal for lack of jurisdiction where appellant filed a petition with court before filing an appeal with MSPB).

Nesbary v. Treasury, No. 2014-3046 (Mar. 27, 2014) (CH-0752-13-0588-I-1) (petition filed with the court more than 60 calendar days after the date the initial decision becomes final dismissed as untimely).

Johnson v. Department of the Treasury, No-2012-3158 (Mar. 25, 2014) (PH-315H-12-0124-I-1) (petition dismissed following vacature of initial decision by the Board).

Cangemi v. Office of Personnel Management, No-2014-3039 (Mar. 25, 2014) (AT-0845-12-0495-I-2 (petition filed with court 88 days after final Board decision dismissed as untimely).

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