U.S. Merit Systems Protection Board
Case Report for April 11, 2014

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Appellant:  Harry J. Conner  
Agency:  Office of Personnel Management
Decision Number:  2014 MSPB 26
Docket Number:  AT-0831-12-0138-I-2
Issuance Date:  April 10, 2014

Appeal Type:  Retirement 
Action Type:  Lump Sum Death Benefits

Jurisdiction to Review Accuracy and Completeness of Individual Retirement Record (IRR)

    The appellant applied for lump sum death benefits based on the service of his mother. OPM determined that he was entitled to be paid $2,761.59 as the beneficiary of the lump-sum credit representing his mother's retirement deductions, plus interest.  The appellant challenged OPM's IRR computation based on an assertion that his mother was in pay status even though the IRR relied on by OPM indicated that she was in a non-pay status due to a 1972 compensable injury.  OPM asserted that it was entitled to rely on the IRR exclusively and that the Board had no jurisdiction to review challenges to the accuracy and completeness of the IRR.   Although OPM asserted that it is entitled to rely on the information certified in the IRR by the employing agency, and the Board has held that its review of such appeals is limited to determining whether the agency properly relied on the IRR, the AJ concluded that the Board has jurisdiction to consider other claims and arguments to review the accuracy and completeness of IRRs in the context of appeals from OPM final decisions that rely on them.   The AJ then reviewed the additional claims and arguments challenging the IRR and concluded that OPM's computation was correct.  

Holding:   The Board denied the PFR and affirmed the AJ finding that OPM's determination on appellant's lump sum benefits was correct.  

1.   Although the Board has held that OPM is entitled to rely on the information contained in the IRR, unless and until the IRR is amended by the employing agency, the Federal Circuit has held in Lisanti v. Office of Personnel Management, 573 F3d 1334, 1340 (Fed. Cir. 2009) and Billinger v. Office of Personnel Management, 206 F.3d 1404 (Fed.Cir. 2000), that the Board and OPM have jurisdiction to entertain claims pertaining to the accuracy and completeness of the IRR certified by the agency to OPM.   To the extent that Board decisions such as Lee v. Office of Personnel Management, 108 MSPR 321 (2008), Rainone v. Office of Personnel Management, 104 MSPR 423  (2006), Maxwell v. Office of Personnel Management, 78 MSPR 350 (1998), Bacani v. Office of Personnel Management, 64 MSPR 588 (1994), and O'Connell v. Office of Personnel Management, 103 MSPR 579 (2006), are inconsistent with Lisanti and Billinger, they are overruled.    

Appellant:  Bridget Hooper

Agency:  Department of the Interior
Decision Number:  2014 MSPB 25
Docket Number:  DC-0752-12-0701-I-1
Issuance Date:  April 8, 2014
Appeal Type:  Adverse Action 
Action Type:  Removal

Differences in Comparator Proof/Discrimination and Disparate Penalty
    The appellant was removed from her position as an Administrative Assistant based on charges of AWOL, Falsification of Time and Attendance Records, Lack of Candor, and Improper Use of Government Property.  The AJ sustained the charged misconduct, found that the appellant failed to establish her affirmative defenses of prohibited discrimination, and found that the penalty of removal was reasonable.   On PFR, the appellant asserted that the AJ erred in analyzing comparator evidence she put forth in support of her discrimination claims and comparator evidence pertaining to the penalty finding.    
Holding:  The Board denied the petition for review as modified.       

1.  For employees to be deemed similarly situated for purposes of an affirmative defense of discrimination based on disparate treatment, a stricter standard of analysis is applied by considering all relevant aspects of the appellant's employment as nearly identical to those of the comparator employee, to the extent that the comparators must have reported to the same supervisor, been subjected to the same standards governing discipline, and engaged in conduct similar to the appellant's without differentiating or mitigating circumstances.   Here, the Board found that all relevant aspects of the appellant's situation were not "nearly identical" to the identified comparator employees.

2.  For comparator employees to be considered similarly-situated for purposes of a disparate penalty analysis, the Board applies a less comprehensive standard in that it does not require that all relevant aspects of the appellant's employment situation be "nearly identical" to those of the comparators.   Under the Board's opinions in Lewis v. Department of Veteran Affairs, 113 MSPB 657 (2010) and Boucher v. U.S. Postal Service, 118 MSPR 640 (2012), an appellant must show that there is enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently. This showing is first triggered by the appellant's initial claim that there is enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly situated employees differently.   Here, although the AJ incorrectly analyzed the disparate treatment discrimination claims in accordance with the more exacting standard for comparison under Title VII, the AJ's adjudicatory error in applying the lesser Lewis/Boucher penalty analysis was not not prejudicial to the appellant's substantive rights because the Board would have reached the same result under the more exacting Title VII comparator standard of analysis.

3.  The AJ correctly considered post-removal evidence bearing on appellant's potential for rehabilitation in conducting the Douglas penalty analysis in accordance with guidance from Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1357 (Fed. Cir. 2012), in which the Court ruled that new evidence relevant to potential mitigation of the penalty must be considered in determining whether the agency's imposed penalty was reasonable.   Here, no remand is required because the AJ correctly considered the post removal evidence bearing on the appellant's potential for rehabilitation.  The Board clarified that a determination that employees are not similarly situated for purposes of a discrimination claim under Title VII is not dispositive of whether those employees are similarly-situated for purposes of a disparate penalty claim.  

Appellant:  Carlos Aquino 
Agency:  Department of Homeland Security
Decision Number:  2014 MSPB 21
Docket Number:  NY-1221-12-0131-W-2
Issuance Date:  March 26, 2014

Appeal Type:  Individual Right of Action
Action Type:  Removal

Sanction of Dismissal of PFR for Interim Relief Violation
WPEA Retroactivity
Disclosure Under 5 USC 2302(b)(8)
    The appellant was removed from the position of Transportation Security Officer based on charges of failure to follow required security screening procedures and inattention to duty. The charges were based on the agency's allegation that the appellant failed to adequately review images of scanned items at one of the airport's screening checkpoints, and that he improperly engaged in conversations with other screeners.   The appellant initiated an internal appeal with the agency's Office of Professional Responsibility Board and that office sustained the second charge of inattention to duty, but not the charge of failure to follow required security procedures. Thereafter, the appellant filed an Individual Right of Action (IRA) appeal alleging that his removal was based on whistleblower retaliation.   As to his disclosure of a substantial and specific danger to public health and safety under 5 USC 2302(b)(8), the appellant asserted that he made a protected disclosure to his fourth-level supervisor concerning his immediate supervisor's removal of the line control stanchions. Six days after the appellant expressed his concerns about his supervisor's conduct, the appellant's supervisor notified higher-level management officials that he believed that the appellant was inattentive to his duties while screening baggage.

    In granting the appellant's request for corrective action, the AJ found: (1) that the appellant made a protected disclosure of a substantial and specific danger to public health or safety by disclosing his concerns about his supervisor's decision to remove the line control stanchions at the screening checkpoint; (2) that the disclosure was a contributing factor in his removal because the appellant's supervisor's report influenced both the proposing and deciding officials' decisions to propose, and ultimately effectuate the appellant's removal; and (3) that the agency failed to demonstrate by clear and  convincing evidence that it would have removed the appellant in the absence of his protected disclosure, primarily because the strength of the agency's removal action was weakened by the internal appellate board's decision not to sustain one of the charges, but also that the appellant presented evidence of other similar instances of employee misconduct that only resulted in suspensions.  

    In its PFR, the agency argued: (1) that the appellant's disclosure did not constitute a substantial and specific danger to public health or safety because it was too speculative, and because a reasonable person in the appellant's position would not have believed he was making a protected disclosure; (2) that the appellant's supervisor was not shown to have influenced the removal proceeding; and (3) that the agency demonstrated by clear and convincing evidence that it would have otherwise removed the appellant in the absence of his disclosure.       

Holdings:  The Board denied the agency's PFR and affirmed the AJ's initial decision reversing the appellant's removal.   

1.   Although the agency did not inform the appellant that his return or presence in the workplace would excessively, or in an unwarranted fashion, cause disorder or turmoil to the normal course of the agency's operations, the Board exercised its discretion in not dismissing the agency's PFR because the appellant was placed on paid administrative leave during the period of interim relief, and the issue of the agency's compliance was now moot because of the Board's final decision reinstating the appellant.  

2.  Because the Board has jurisdiction over the appellant's whistleblower reprisal claim under both the Memorandum of Agreement entered into by the TSA and the Board, which gave TSA employees the right to file IRA reprisal whistleblower appeals, and the WPEA now provides TSA employees with a statutory right to file an IRA whistleblower appeal with the Board, the Board did not decide the issue of whether the provisions of the WPEA governing appeals by TSA employees should apply retroatively in this case.  

3.  In analyzing whether a disclosed danger is sufficiently substantial and specific to warrant protection under the WPA, the Board cited Chambers v. Department of the Interior, 602 F.2d 1370, 1376 (Fed. Cir. 2010) in finding that such a determination depends on whether a substantial, specific harm was identified, and whether the allegations or evidence supported a finding that the harm had already been realized or was likely to result in the reasonably foreseeable future. Specific allegations or evidence of actual past harm or of detailed circumstances giving rise to a likelihood of impending harm are required to demonstrate that a disclosure evidences a substantial and specific danger to public health or safety. The Board concluded that the consequences of harm which could result from allowing individuals to bypass airport screening checkpoints are substantial given the concern over explosive devices and the appellant here was disclosing that removal of the line control stanctions by the appellant's supervisor increased chances of the flow passengers passing through security checkpoints without the requisite screening.  

4.  When assessing 
whether an employee reasonably believes that his disclosure evidences a substantial and specific risk to the public, the Board relies on Miller v. Department of Homeland Security, 111 MSPR 312 (2009) in analyzing whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the matters disclosed show a substantial and specific danger to public health or safety.  Here, proof that the public was actually being harmed at the time the appellant made the disclosures, or the fact that higher-level management officials did not perceive the change in the lane control stanctions in the same way as the appellant did not erode the reasonableness of the appellant's beliefs.    

5.  An appellant may 
establish an official's constructive knowledge of a protected disclosure by showing that the official with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action.   The Board adopted the Supreme Court's "cat's paw" theory for evaluating constructive knowledge of protected disclosures set forth in Staub v. Proctor Hospital, 131 S.Ct. 1186, 1190, 1193-94 (2011) to analyze such issues as in the instant case in which a particular management official, acting because of an improper animus, influences an agency official who is unaware of the improper animus when implementing a personnel action.  Unlike Staub, which was a USERRA case that analyzed constructive knowledge issues by the more stringent motivating factor standard, the analysis of a constructive knowledge issue in a whistleblower case applies the lesser causation standard of contributing factor set forth by the Federal Circuit in Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993).  Thus, under Staub and Marano, an appellant can demonstrate that a prohibited animus toward a whistleblower was a contributing factor in a personnel action by showing that an individual with knowledge of the appellant's protected disclosure influenced the deciding official accused of taking the personnel action.   Here, the Board found that the imputed or constructive knowledge standard was met based on the appellant's supervisor's report to higher-level officials about the appellant's alleged misconduct only days after the appellant made his protected disclosure about his supervisor's conduct.

6.   In determining 
whether the agency shows by clear and convincing evidence that it would have removed the appellant in the absence of his protected disclosure, the Board initially applies the criteria set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) and generally considers: (1) the agency's evidence in support of its action; (2) the existence and strength of any motive to retaliation on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but are otherwise similarly situated.  The Board also evaluates all of the pertinent evidence in determining whether an element of a claim or defense has been proven adequately in that a proper analysis of the clear and convincing evidence issue requires that all of the evidence be weighed together  -- both the evidence that supports the agency's case and the evidence that detracts from it.   Shibuya v. Department of Agriculture, 119 MSPR 537 (2013) citing to Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).   Here, the Board concluded that the following factors suggested a retaliatory motive:

  • the agency would not have otherwise removed the appellant because the totality of the evidence, including the close proximity in time between the appellant's disclosure and his supervisor's report;
  • the absences of any factual predicate supporting the appellant's removal other than his supervisor's report;
  • the actual or constructive knowledge the appellant's supervisor communicated to higher management officials;
  • the fact that the inattention to duty charge was similar to the first charge that was not sustained by the internal review board; and
  • evidence demonstrating that the agency imposed lesser forms of discipline for similar offenses which did not involve whistleblowers 

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

Petitioner:  Eric D. Cunningham
Respondent:  United States
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-5055
Issuance Date:  April 9, 2014

Right to File Action for Monetary Relief With Court of Claims Based on Breach of Confidentiality Provision in MSPB settlement agreement.

Exception to Res Judicata Rule

    The appellant obtained an enforcement finding from the Board that the agency breached the confidentiality provision in a settlement agreement he entered into with his former employer, the Office of Personnel Management.  Although the Board advised the appellant of his right to rescind the settlement agreement and reinstate his appeal, the appellant elected not to pursue this remedy and the Board thereafter dismissed the enforcement action.  The appellant then filed a claim with the Court of Federal Claims seeking monetary damages for breach of contract resulting from OPM's breach of the confidentiality provision in the settlement agreement.   The Court ruled that although it had Tucker Act subject matter jurisdiction under 28 USC 1491(a)(1) over the claim, the suit was barred by res judicata because the Board had already issued a final judgment on the merits of the appellant's claim.   

Holding:   The Court reversed the decision of the Claims Court and remanded for further proceedings.  

1.  The Court of Claims has subject matter jurisdiction under the Tucker Act to entertain claims alleging breach of settlement agreements between a federal agency and one of the agency's employees if the settlement agreement can be fairly interpreted as contemplating monetary damages in the event of breach.   The Court found under Holmes v. United States, 657 F.3d 1301, 1309 (Fed. Cir. 2011) that even though Congress set out comprehensive statutory schemes in both Title VII and the Civil Service Reform Act, there is nothing to prevent a party from making a claim for money damages before the Court of Claims, particularly if the claim does not amount to a review of the personnel action but a review of a contract between the employing agency and the employee relating to a specific monetary breach.  Here, inasmuch as the settlement agreement can be fairly interpreted to relate to monetary compensation for damages to future employment prospects, the Court of Claims has subject matter jurisdiction to hear the appellant's breach of contract claim.

2.  The Court stated that under its opinion in Ammex, Inc. v. United States, 334 F3d 1052, 1055 (Fed. Cir. 2003), a claim is barred by res judicata when (1) the parties are identical or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of transactional facts as the first.   An exception to this rule is that res judicata should not bar a claim when the adjudicatory authority's remedial authority in the first action (here, the MSPB) prevented the plaintiff from seeking the relief sought before the Court of Claims.   It is the remedies available to the plaintiff in a forum of limited jurisdiction, not the remedies sought by the plaintiff, that determine whether res judicata bars a subsequent claim in a different forum.   Here, the remedy available in the Court of Claims -- monetary damages arising from OPM's breach of the clean record/confidentiality provision in the settlement agreement -- was not available from the MSPB because of its limited jurisdiction. Thus, the appellant's claim for monetary damages were not  barred by claim preclusion.

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

Petitioner:  Joseph A. O'Donnell
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3020
Issuance Date:  April 9, 2014

Reasonable Belief in Violation of Law, Rule, Regulation/Protective Disclosure Under 5 USC 2302(b)(8)
    The appellant was a Soil Conservationist with, among other duties, the responsibility for determining whether customers and their land meet certain agency eligibility criteria for government assistance programs.  During the course of his work, the appellant inspected a landowner's property and determined that the landowner was eligible for the benefits.  After the landowner's application was later approved and he began work on the project, the appellant's supervisor intervened and reversed the appellant's earlier eligibility determination.   The landowner then filed an administrative appeal, and at the hearing the appellant ignored his supervisor's assessment and testified that the landowner should prevail in his appeal.   The agency suspended the appellant for failure to respect his supervisor's decision and the appellant filed an IRA appeal alleging that the agency's disciplinary action amounted to retaliation because the WPA does not permit supervisors to punish employees for whistleblowing.   At issue was whether the appellant reasonably believed that his supervisor's eligibility determination was a violation of law, rule or regulation.

Holdings:  Affirmed the Board's jurisdictional dismissal.

1.  The definition of protected disclosure does not include communications concerning policy decisions that lawfully exercise discretionary authority because the WPA is not to be used as a weapon in arguments over policy or a shield for insubordinate conduct.   In relying on LaChance v. White, 1174 F.3d 1378, 1381 (Fed. Cir. 1999), the Court held further that policymakers and administrators have every right to expect loyal, professional service from subordinates who do not bear the burden of responsibility. Here, even assuming the eligibility determination made by the appellant's supervisor was incorrect, "an exercise of discretionary authority does not amount to a violation of law." O'Donnell, slip op. at 7.   The Court concluded that no reasonable person could think that exercising that authority in this instance amounts to a violation of law.  

2.  The Board's reliance on Meuwissen v. Department of Interior, 234 F.3d 9 (Fed. Cir. 2000) for the proposition that an employee's disagreement with an agency ruling or adjudication does not constitute a protected disclosure, even if other aspects of that ruling were legally incorrect, remains correct notwithstanding a later amendment to the WPA overruling Meuwissen on other grounds.   The legislative history of this amendment established that Congress intended to overrule only a portion of Meuwissen to the extent that it wished to clarify that the disclosure of information previously known can constitute a protective disclosure.   Congress went further to clarify that the Meuwissen proposition relied on by the Board in noting that an employee who discloses general philosophical or policy disagreements with agency decisions or actions should not be protected as a whistleblower, remains good law.

Petitioner:  Manjeet S. Khalsa
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3009
Issuance Date:  April 10, 2014

Board Jurisdiction over Restoration following Compensible Injury Under Arbitrary and Capricious Standard

The appellant suffered an on-the-job compensable back injury and partially recovered with medical restrictions on his ability to lift, bend, or stand for prolonged periods of time. The appellant was placed in modified positions until January, 2009, when the Postal Service's National Reassessment Process required all modified positions would be reassigned to determine continued need for the positions.   The appellant's position was later eliminated and he was advised that the Postal Service was unable to find any jobs for him within his physical restrictions in the commuting area.   The appellant asserts in his appeal that the Postal Service improperly denied him restoration to his duties.  The AJ dismissed the appeal for lack of jurisdiction based on finding that the decision to deny the restoration request was not shown to be arbitrary and capricious.  

Holding:   The Court affirmed the Board's jurisdictional dismissal.   

1.  The Federal Employees' Compensation Act, 5 USC 8101 et seq. and related regulations provide that federal employees who suffer on-the-job compensable injuries have limited rights to be restored to their positions.   In order to establish Board jurisdiction over an agency's decision to deny restoration, the employee must prove that the denial was arbitrary and capricious in that the agency failed to make every effort to restore the employee to a limited duty position consistent with physical limitations in the local commuting area.  Here, the Court affirmed the AJ's finding that the Board lacked jurisdiction over the appeal because the Postal Service conducted a sufficient search for available work with the appellant's medical restrictions in the local commuting area and thus did not act arbitrarily or capriciously in denying restoration.  


Proposed Rule/Practices and Procedures (April 3, 2014): Following an internal review of MSPB regulations, and after consideration of comments received from MSPB stakeholders, the Board proposed to amend its rules of practice and procedure by amending its regulations governing how jurisdiction is established over Board appeals.  Formal comments must be received by May 5, 2014.   Practice and Procedure Amendment

MSPB Notice and Request for Comments/Agency Information Collection Activities  Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery  (April 10, 2014):  
As part of its continuing effort to reduce paperwork and respondent burden, the Board invites the general public to comment on the referenced collections activities for approval under the Paperwork Reduction Act.    the referenced collection procedure was developed as part of an effort to streamline the process for seeking feedback from the public on service delivery. This notice announces the Board's intent to submit this proposed collection procedure to the Office of Management and Budget for approval and solicits comments on specific aspects of the proposal.    Information Collection Notice

U.S. Merit Systems Protection Board | Case Reports