U.S. Merit Systems Protection Board
Case Report for April 18, 2014

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Appellant:  Benoit Brookens  
Agency:  Department of Labor
Decision Number:  2014 MSPB 27
Docket Number:  CB-7121-13-0012-V-1
Issuance Date:  April 11, 2014

Appeal Type:  Appeal from Arbitration Award 
Action Type:  Removal

Jurisdiction Over Arbitrator's Decision under 5 USC 7121(d)
Standard of Review - Arbitrator's Decisions/Awards

    The appellant was removed for performance based reasons from his position as a GS-12 International Economist and appealed the removal through the negotiated grievance procedure through arbitration.   The arbitrator issued two decisions on grievances filed by the union.  In the first (2009 Award) he denied the grievance and found that the removal action was taken under Chapter 43 of the CSRS and not Chapter 75 of the CSRS.   He dismissed the second grievance (2012 Award) based on findings that the appellant's performance based removal was fully supported by the evidence and that the appellant failed to show retaliation for his union activities or discrimination on the bases of age and race.  

Holding:   The Board granted the request for review under 5 USC 7121(d) and forwarded the matter to the Washington Regional Office for further adjudication on the appellant's allegations of discrimination and reprisal. 

1.   The Board found that it had jurisdiction over the 2012 arbitrator's award, but not the 2009 arbitrator's award, because there was a question in the 2009 award as to whether the appellant raised an allegation of discrimination. The Board has jurisdiction to review an arbitrator's decision under 5 USC 7121(d) when the subject matter of the grievance is one over which the Board has jurisdiction, the appellant alleged in his grievance that the agency discriminated against him in connection with the underlying action, and a final arbitration decision has been issued.  

2.  Citing its opinion in Hollingsworth v. Department of Commerce, 115 MSPR 636 (2013), the Board set out the standard for review of an arbitrator's award. First, an arbitrator's award is entitled to a greater degree of deference than initial decisions issued by Board administrative judges.  Second, the Board will modify or set aside such an award only when the arbitrator has erred as a matter of law in interpreting a civil service law, rule or regulation.  Third, even if the Board disagrees with an arbitrator's decision, absent legal error, the Board cannot substitute its conclusions for those of the arbitrator.  Finally, The arbitrator's factual determinations are entitled to deference unless the arbitrator erred in his legal analysis such as by misallocating the burdens of proof or employing the wrong analytical framework.

3.  With respect to review of purely procedural issues, the Board cites its holding in Fanelli v. Department of Agriculture, 109 MSPR 115 (2008) for the proposition that under a collective bargaining agreement (CBA), the Board applies the same deferential review standard because the arbitrator is viewed as uniquely qualified to interpret a CBA, which is the source of the arbitrator's authority.

4.  The Board concluded that the arbitrator's factual and legal findings pertaining to the agency's performance based removal were correct, but that the arbitrator failed to provide a legal or factual analysis to support findings that the agency did not retaliate against the appellant for his union activities and that the agency did not discriminate against him because of his age and race.  Thus, the Board had no basis for deferring to the arbitrator on these two issues and forwarded the matter to the regional office for additional proceedings on these issues.  

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

Petitioner:  Thasha A. Boyd
Respondent:  Department of Labor
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3015
MSPB Docket No. AT-0752-12-0513-I-1

Issuance Date:  April 11, 2014
Appeal Type:  Involuntary Action 
Action Type:  Involuntary Resignation

Test for Evaluating Claim of Involuntary Resignation or Retirement
Credibility Determinations
Probative Evidence of Involuntariness

    The appellant filed an appeal alleging that her resignation from the position of Immigration Securities Officer was involuntary.  The court noted that throughout the appellant's tenure at the agency, the appellant filed several complaints with management regarding harassment by other employees and contractor staff, and her coworkers and the contract staff filed several complaints against her alleging assaultive behavior on the appellant's part.  When the agency initiated an investigation against the appellant regarding the allegations of assault and battery against coworkers and contractor staff, the appellant submitted her resignation.   The AJ concluded that the Board had no jurisdiction over the appeal because the appellant failed to establish that a reasonable person in her position would have felt compelled to resign.     

Holding:   The court affirmed the Board's final decision sustaining the removal.

1.  As a general matter, the test for determining whether a resignation or retirement is involuntary is an objective one requiring the employee to "establish that a reasonable employee confronted with the same circumstances would feel coerced into resigning."  The court relied on its ruling in Shoaf v. Department of Agriculture, 260 F.3d 1336 (Fed. Cir. 2001) in setting forth the test for determining whether a resignation or retirement is involuntary:   (1) that the agency effectively imposed the terms of the employee's resignation or retirement; (2) that the employee had no realistic alternatives but to resign or retire; and (3) that the employee's resignation or retirement was the result of improper acts by the agency. Citing to Middleton v. Department of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999).

2. The criteria for making credibility determinations set forth in Hillen v. Department of the Army, 35 MSPR 453 (1987) does not require that reliable testimonial evidence be corroborated by documentary evidence.   Here, the cautions set forth by the court in Whitmore v. Department of Labor, 680 F.3d 1353, 1376 (Fed. Cir. 2012) that credibility findings cannot be made in the abstract and independent of the evidence which unreasonably detracts from the AJ's other findings, do not detract from the credibility findings in the present case.  Here, the court concluded that the AJ's credibility findings were supported by considerable countervailing evidence.  Moreover, there is no general requirement that the AJ identify every piece of record evidence he considered in reaching his decision.

3.  The most probative evidence of involuntariness will usually be evidence in which it is established that that there is a relatively short period of time between the employer's alleged coercive act and the employee's retirement or resignation.    

Petitioner:  Thasha A. Boyd
Respondent:  Department of Labor
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3022
MSPB Docket Nos.   AT-1221-12-0456-W-1 and AT-1221-12-0665-W-1
Issuance Date:  April 11, 2014
Appeal Type:  IRA Appeal 
Action Type:  Suspension

Credibility Determinations
Dismissal based on Adjudicatory Efficiency

In these two IRA appeals, the appellant (the same appellant who is the subject of the court's 2014-3015 opinion) asserted that she made several allegations of questionable hiring and compensation practices, as well as general allegations of misconduct by coworkers, in anonymous letters to the General Accounting Office FraudNet. The appellant alleged that her disclosures to FraudNet were contributing factors in her suspension based on a charge of a physical altercation with a coworker.  The AJ found that the Board had jurisdiction over the first IRA appeal but that the appellant failed to prove that her protected disclosures were a contributing factor in the personnel actions taken by the agency. Following the decision in the first IRA appeal, the AJ dismissed the second IRA appeal based on collateral estoppel.  The dismissal was based on the AJ's findings in the first appeal adverse to the appellant in the first appeal were necessary to findings in the appellant's favor in the second appeal.  The Board later vacated the AJ's collateral estoppal finding in the second appeal because the initial decision in the appellant's first IRA appeal was not final when the second IRA appeal was docketed.  The Board nonetheless dismissed the second appeal on the basis of adjudicatory efficiency.        

Holding:  The  court affirmed the Board's decisions: 1) dismissing the first IRA appeal based on a finding that the appellant failed to prove by preponderant evidence that her protecting disclosures were a contributing factor in the personnel actions taken by the agency and; 2) dismissing the second IRA appeal based on adjudicatory efficiency.

1.  The court rejected the appellant's challenges to the AJ's credibility determinations based on the same analysis set forth in 2014-3015.  

2.  The court found that the AJ was correct in dismissing the first IRA appeal and was correct in finding that the first appeal effectively resolved the claims at issue in the second appeal.  Thus, according to the court, the Board was correct in dismissing the second appeal for reasons of adjudicatory efficiency. The court noted that the only difference between the two IRA appeals was the personnel action in question:   the first appeal relates to the proposal of the ten-day suspension whereas the second appeal relates to the actual imposition of that same suspension.   

Petitioner:  Mary Lewis Butler 
Respondent:  Department of the Army
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2013-3171
MSPB Docket No. AT-0752-12-0838-I-2
Issuance Date:  April 11, 2014

Appeal Type:  Adverse Action 
Action Type:  Removal

Review of Dual Status Military Technician Removal
Discretionary Authority to Extend Separated Employee One Year of Employment

    The appellant was removed from her dual status Military Technician (MT) position after the military determined that her Selected Reserve (SR) status was no longer required.  The Board dismissed the appeal based on findings that the MT position from which the appellant was removed required, as a condition of employment, that the appellant maintain SR status and that the appellant was not a dual status appointee at the time of her removal.   The Board also concluded that the agency afforded the appellant the requisite level of due process required.  

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

1.  The Board lacks authority to review the merits of a military decision to separate an appellant from Selected Reserve status and is limited to (1) whether the employee's continued Selected Reserve status was a condition of that employee's employment as a Military Technician; and (2) whether the employee was provided with a minimum level of due process in the form of notice of the proposed action, the specific reasons for the proposed action, an opportunity to respond, and a written decision.  Here, the Court found that the appellant was afforded all due process requisites.

2.  The fact that the appellant's loss of SR membership was not a result of misconduct, military performance, or voluntary relinquishment, does not mean that the military is obligated under 10 USC 10216(e)(2) to provide an additional year of employment but may exercise the option of doing so.     

Petitioner:  Laura A. Hunt
Respondent:  Office of Personnel Management
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3041
MSPB Docket No. CH-0831-12-0753-I-1
Issuance Date:  April 11, 2014
Appeal Type:  Retirement
Action Type:  Redeposit

Redeposit of Refunded Retirement Contributions
Statutory Authority of Employee to Redeposit

In an earlier decision, the Court affirmed the decisions of OPM and the Board finding OPM's annuity calculations were correct but remanded to OPM the issue of the appellant's request to redeposit her contributions for a certain period of her service. OPM determined that the appellant was not entitled to make the redeposit and the Board affirmed that decision.    

Holding:   The court affirmed the Board's decision of OPM to deny the redeposit request.  

1.  Under 5 USC 8334(d)(1), an employee who has received a refund of retirement contributions may deposit the amount received if that employee qualifies as an "employee" within the meaning of 5 USC 8334(d)(2)(C), that is, (1) a person who is currently employed in a position subject to the civil service retirement law; or (2) a former employee whose annuity has not been finally adjudicated.    Inasmuch as the appellant was not currently employed with the Postal Service, and she had been receiving a finally adjudicated retirement annuity for over ten years before she made her redeposit request, she was not eligible to make the redeposit.  

Petitioner:  Christie Y. Herbert
Respondent:  Department of Health and Human Services
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3011  
MSPB Docket Number AT-0752-12-0776-I-1

Issuance Date:  April 14, 2014
Appeal Type:  Adverse Action 
Action Type:  Removal

Removal AWOL; Reasonableness of Penalty
    The appellant was removed from her position as a Health Insurance Specialist based on AWOL.   The appellant had been approved to work "episodic or scheduled flexiplace," so long as her performance was at an acceptable level and she was not the subject of any disciplinary actions.   The appellant was issued a warning letter, a leave restriction letter, and a 14 day suspension all relating to alleged violations of flexiplace policy.   The appellant explained the absences as having been affected by "unresolved work challenges and ongoing concerns."  The agency ultimately removed the appellant on a second AWOL charge.  The AJ affirmed the charged misconduct and concluded that the penalty of removal was appropriate.  She argued in her pro se petition before the Court that the action was due to unspecified unfair labor practices and that the removal penalty was too severe.  

Holding:   The court affirmed the Board's final decision sustaining the removal.

1.   The Court found that the appellant failed to substantiate any of her allegations that the agency's action removing her for AWOL was based on certain unspecified unfair labor practices, that her claims amount to nothing more than vague, unsupported assertions, and that the Board's finding regarding the removal penalty was in accordance with Douglas v. Veterans Administration, 5 MSPR 280 (1981).

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