U.S. Merit Systems Protection Board
Case Report for May 16, 2014

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BOARD DECISIONS

Appellant:  Patrick Phillip Arena, Jr.  
Agency:  United States Postal Service
Decision Number:  2014 MSPB 34
Docket Number:  AT-0752-13-0165-I-1
Issuance Date:  May 15, 2014
Appeal Type:  Adverse Action
Action Type:  Removal

Mitigation of Penalty for On Duty Drug Use
Douglas Factors In Priority of Importance
 

    The appellant was removed from the position of Maintenance Mechanic based on a charge of improper conduct, supported by three specifications:  (1) smoking marijuana on various dates while on duty; (2) failing to stay gainfully employed in that the appellant  was not working during periods of time in which he should have been working; and (3) failing to cooperate in a postal investigation.  The appellant stipulated to the first two specifications and the Administrative Judge (AJ) sustained the third specification.    The AJ mitigated the removal to a 120 day suspension based on findings that the agency did not take immediate action on what it characterized as serious misconduct; that the appellant admitted wrongdoing and sought counseling for his personal problems; that the appellant had good potential for rehabilitation; and that the appellant had no prior disciplinary record in his 18 years of service.  

Holding:   The Board granted the agency's petition for review (PFR), affirmed that portion of the initial decision sustaining the charge and accompanying specifications, but modified the initial decision by sustaining the penalty of removal.
  


1.  The Board restated the analysis followed in determining the reasonableness of a penalty.  Where the agency's charge is sustained, the Board will modify an agency -imposed penalty only when it finds that the agency failed to weigh the relevant Douglas factors, or the penalty imposed clearly exceeded the bounds of reasonableness. The Board will not assume the role of deciding what penalty it would impose, but, rather, whether the penalty selected by the agency exceeded the maximum reasonable penalty.   In evaluating the penalty, the Board will consider, first and foremost, the nature and seriousness of the misconduct and its relationship to the employee's duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated.

2.  Here, the Board found that the deciding official properly considered the following mitigating factors and reasonably exercised his management discretion to conclude that removal for repeated instances of on duty drug use was the maximum reasonable penalty:  (1) that the appellant's on duty drug use was particularly serious because the appellant was responsible for the maintenance and repair of heavy machinery and his impairment could have resulted in serious bodily harm to himself or others, or in significant damage to property; (2) that the appellant's failure to remain "gainfully employed" while on duty was in itself worthy of removal; and (3) that the appellant's repeated on duty drug use and his repeated lack of honesty concerning his drug use did not outweigh any of the mitigating factors.   Further, the Board found that the agency did not unreasonably delay the appellant's removal from the workplace because he was immediately removed from the workplace when the misconduct was brought to their attention.  

3.  The Board relied on 
Cole v. Department of the Air Force, 120 MSPR 640 (2014), Thomas v. U.S. Postal Service, 96 MSPR 179 (2004), Savage v. Department of the Air Force, 49 MSPR 77 (1991), and Huff v. Department of Navy, 21 MSPR 615 (1984), to support its finding that the agency's selection of the removal penalty was the proper exercise of managerial judgment and did not exceed the limits of reasonableness because the Board has frequently upheld removals for the illegal use of drugs at work, especially where the work performed under the influence of such substances could endanger the safety of others.

Petitioner:  Special Counsel  
Respondent:  Marcus Lewis
Decision Number:  2014 MSPR 33
Docket Number:  CB-1216-13-0063-T-1
Issuance Date:  May 15, 2014
Appeal Type:  Hatch Act
Action Type:  Removal

Hatch Act
Default Judgment
Penalty for Violation of Hatch Act
Hatch Act Modernization Act of 2012
 

    The Office of Special Counsel (OSC) filed a complaint charging the respondent, a federal employee with the U.S. Postal Service, with three separate violations of the Hatch Act, 39 USC 410(b)(1) and 5 USC 7323(a)(3), by running as an independent candidate for a seat in the U.S. House of Representatives on two separate occasions.  OSC noted that although the respondent ran as an independent, both elections included candidates from the Democratic and Republican parties and was thus a partisan election.  The OSC noted further that during both elections, the respondent maintained campaign website and a Face Book page soliciting financial contributions for his campaigns.   The record shows that OSC and the U.S. Postal Service directed four written warnings to the respondent notifying him that he was violating the Hatch Act and should withdraw from the elections. During the proceedings leading up the the Administrative Law Judge's (ALJ) initial decision, the ALJ granted OSC's motion for an entry of a default because the respondent had not filed an answer to OSC's complaint.

In his initial decision, the ALJ first entered a default against the respondent and found that the respondent violated the Hatch Act as set forth in OSC's compliant by running for partisan political office on two separate occasions and knowingly soliciting political contributions. The ALJ order the respondent removed based on the following factors:   (1) that the respondent's Hatch Act violations were conspicuous and unequivocal; (2) that the respondent ignored frequent warnings by both OSC and his employing agency; and (3) that the respondent had several disciplinary actions of varying severity during his employment with the U.S. Postal Service.

Holding:  The board denied the respondent's petition for review, affirmed as modified the ALJ's initial decision, and ordered the respondent removed from the federal service. 

1.  The Board first found that a respondent who fails to file an answer to an OSC complaint is deemed to have admitted the facts plead in the complaint unless the respondent establishes good cause for his failure to respond. See 5 CFR 1201.124(c), Special Counsel v. Fields, 57 MSPR 60, 62 (1993), and Mendoza v. Merit Systems Protection Board, 966 F.2d 650, 653-54 (Fed. Cir. 1992).   Here, the respondent did not establish good cause for his failure to respond to OSC's complaint due to his attorney's alleged inaction or negligence, because the respondent never designated a representative in the proceeding, and there was no showing that the respondent proved that his diligent efforts to prosecute his case were thwarted by his attorney's decision and negligence such that his inactions should be excused.  The Board also noted that the respondent was familiar with the Board's procedures as he personally registered as an e-filer.  Finally, notwithstanding the effect of the respondent's default, the undisputed record establishes the Hatch Act violations.  See Special Counsel v. Briggs, 110 MSPR 1 (2008), aff'd sub nom Briggs v. Merit Systems Protection Board, 322 F. App'x 983 (Fed. Cir. 2009).

2.   On the merits of the OSC complaint, the Board agreed with the ALJ findings that the respondent violated the Hatch Act by running for political office on two occasions and knowingly soliciting political contributions, and notwithstanding that the respondent ran as an independent the office to which the respondent sought election qualifies as a partisan political office.  See 5 USC
7322(2), 7323(a)(2), and 7323(a)(3), and Special Counsel v Mark, 114 MSPR 516 (2010).

3.  The Hatch Act Modernization Act provides the Board with more flexibility with respect to penalties imposed on federal employees for Hatch Act Violations so that removal is no longer the presumptive penalty and the penalty may now include a removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.

4.  Because removal is no longer a presumptive penalty for violations of the Hatch Act under the Hatch Act Modernization Act, a more extensive independent penalty analysis determination must be conducted that includes not only the prior factors set forth in Special Counsel v. Purnell, 37 MSPR 184 (1988), aff'd sub nom. Fela v. Merit Systems Protection Board, 730 F. Supp 779 (N.D. Ohio 1989):  (1) the nature of the offense and the extent of the employee's participation; (2) the employee's motive and intent; (3) whether the employee received advice of counsel regarding the activity at issue; (4) whether the employee ceased the activities; (5) the employee's past employment record; and (6) the political coloring of the employee's activities), but also the relevant aggravating or mitigating factors set forth by the Board in Douglas v. Veterans Administration, 5 MSPR 280, 305 (1981).  The Board noted that several of the Douglas and Purnell factors overlap, and that the Purnell factors continue to be relevant guidance in the Board's Douglas factor analysis insofar as they address the nature and seriousness of the offense and whether there are any mitigating circumstances, such as the respondent's reliance on the advice of counsel or his change in conduct once notified that his conduct violates the Hatch Act.     

5. Under the Modernization Act, a respondent does not bear the burden of establishing why he should not be removed from federal service based on a Hatch Act violation, but now both the respondent and OSC may submit argument and evidence as to the severity of the violation and other aggravating and mitigating factors set forth in Douglas.   Thus, the Board's prior decisions, such as Special Counsel v. Ware, 114 MSPR 129 (2010), holding that the respondent bears the burden of establishing why the presumptive penalty of removal should not be observed are overruled.  

6.   Finally, the Board affirmed the ALJ's initial decision as modified by concluding that a separate analysis of the relevant Purnell and Douglas factors supports the same finding by the ALJ that removal was an appropriate penalty.  

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

Petitioners:  Manuel Lazaro
Respondent:  Department of Veterans Affairs
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Case Number:  2013-3057
MSPB Docket No. AT-3330-10-1005-M-1
Issuance Date:  May 13, 2014

VEOA

Timely Consideration of Additional Specialized Experience Pursuant to
5 CFR 302.302(d)
 

    The appellant was not selected for the position of Information Technology Specialist, GS-9, because the agency concluded that, even considering the appellant's veteran's preference right for consideration of his additional specialized experience afforded under 5 CFR 302.302(d), the appellant did not possess the requisite one year of specialized experience equivalent to at least a GS-9 level.  The position qualification required at least one year of specialized experience at the GS-9 level in the federal service or the equivalent education of a doctoral degree or three years of progressively higher graduate education.  The Court remanded the case to the Board on the merits after the AJ and the Board concluded that the Board lacked authority to review the merits of the agency's non-selection because, "[t]here [was] simply no way to analyze whether a veteran's preference rights were violated without examining the grounds upon which the veteran's non-selection was predicated."  Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1321 (Fed. Cir. 2012).   On remand, the Board determined, based on the submission of additional documentation in for the form of an agency declaration, the agency's subsequent review of the appellant's experience supported a finding that he did not possess the requisite experience for the GS-9 position.  The Board noted that any asserted prior experience that the appellant raised for the first time on appeal was irrelevant because this information was not included in the appellant's initial application for the position. 

Holding: The court affirmed the Board's remand decision.

1.  The court affirmed the Board's finding that pursuant to 5 CFR 302.302(d), the agency fully considered the appellant's specialized experience, including six months as a medical coder, experience as an assistant data processing coordinator, fifty-three credits of relevant educational experience, experience as a Computer Repair Technician, and the appellant's receipt of various performance awards, but that ultimately the appellant was unable to substitute education for experience.

2.  The court held further that neither the agency nor the Board was required to consider the appellant's 600 hours of work as a microcomputer technician because the appellant did not include this information in his application and the agency's decision not to hire him must be evaluated based on the information he provided to the agency.      

Petitioners:  Daryl Belter
Respondent:  Department of Homeland Security
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Case Number:  2014-3057
MSPB Docket No. DC-0842-13-0500-I-1

Issuance Date:  May 12, 2014


Individual Right of Action Appeal

Right to Consideration of Belatedly Requested FOIA Evidence Not New And Material
 

The appellant asserted that his removal from the position of Supervisory Logistics Management Specialist based on a charge of unauthorized use of a government issued credit card was predicated on retaliation for his whistleblowing disclosure pertaining to the cost of an office space lease.  The AJ and the Board found that the appellant's disclosure was not protected because it did not rise to the level of more than a debatable difference of opinion concerning the cost of the lease, and that the deciding official who removed the appellant had no knowledge of the appellant's disclosure.  In support of his request to have his case remanded to the Board, the appellant asserted that he had inadequate time to consider new information that he obtained through a FOIA request received just one day prior to issuance of the Board's Final Decision.  

Holding:   The court affirmed the Board's finding that the appellant failed to establish a whistleblower claim.

1.  The court's authority to review Board decisions is limited to final Board orders and decisions of the Board on the record, absent a showing that newly proffered evidence is new and material.

2.  Here, that the appellant did not receive a response to his FOIA request in time to present the evidence to the Board is irrelevant because the appellant had available to him the Board' own discovery procedures for pursuing the information relevant to his case.   Further, the appellant' failure to obtain the information in discovery or request that the Board stay its proceedings pending his FOIA request, does not now grant him the right to collaterally request and belatedly present the information through FOIA

Petitioners:  Adonis Berle Whitby 
Respondent:  Office of Personnel Management
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Case Number:  2014-3057
MSPB Docket No. AT-3330-10-1005-M-1
Issuance Date:  May 12, 2014

Res Judicata
 
The Office of Personnel Management (OPM) denied the appellant's application for a FERS retirement annuity because he applied for and received a refund of his military deposit and his FERS annuity contributions.  The Board and the court affirmed OPM's denial.  Whitby v. Office of Personnel Management, 417 F.2d App'x 967, 969 (Fed.Cir. 2010). The appellant then filed an appeal in 2013 and argued that his most recent appeal was not based on the same cause of action and transactional facts as his 2010 appeal because of new evidence that was not available at the time of his hearing before the Board in the first appeal.   Specifically, the appellant argued that OPM and the Board did not have before it evidence of a 2011 VA Board of Veteran's Appeals finding that he was 100% disabled due to Post Traumatic Stress Disorder (PTSD) developed as a result of his service during the Vietnam War, and that OPM had made other errors in its negative determination on his annuity application.  The Board affirmed the AJ's finding that the appellant's second appeal was barred by the doctrine of res judicata.  Whitby v. Office of Personnel Management, MSPB Docket No. DC-0842-13-0500-I-1 (Dec. 30, 2013).    

Holding:  The court affirmed the Board's final order that the appellant's appeal was barred by the doctrine of res judicata.  

1.  The court affirmed the Board's finding that the appellant's appeal was properly dismissed based on the doctrine of res judicata.  The doctrine holds that a judgment on the merits in a prior suit bars a second suit involving the same parties based on the same cause of action, and also forecloses litigation of a matter that has never been litigated if the claim should have been raised in the earlier suit.  Citing to Jet, Inc. v. Sewage Aeration Systems, 223 F.3d 1360, 1362 (Fed. Cir. 2000), Carson v. Department of Energy, 398 F.3d 1369, 1375, n. 8 (Fed. Cir. 2005) and Migra v. Warren City School District Board of Education, 465 U.S. 75, 77, n. 1 (1984).  

2.   The court set forth the analytical framework for determining whether res judicata is applicable.   The doctrine of res judicata will bar a suit only if the litigant has had a full and fair opportunity to litigate his case and the following criteria are established:   (1)  that there is identify of parties; (2) that there has been an earlier final judgment on the merits of the claim; and (3) that the second claim is based on the same set of transactional facts as the first.   Citing to Poyner v. Murray, 508 U.S. 931, 933 (1993).

3.  Here, the appellant's current claim that he is entitled to a FERS retirement annuity for the period covered by the refund that he requested is the same claim that was adjudicated on the merits.   The appellant's attempt to distinguish this claim with the addition of evidence relating to his recently diagnosed PTSD is unavailing because the appellant did not raise this issue before the Board and this evidence and argument could have been raised during the prior appeal.  

4.  The appellant has not established that he is permitted to bring new evidence alleging mistakes made by OPM to justify a reopening request under 5 CRF 1201.115(d) because the evidence was not been shown to be new and material in that the proffered evidence would not warrant an outcome different from that of the initial decision.  Citing to Wright v. U.S. Postal Service, 183 F.3d 1328, 1332 (Fed. Cir. 1999).

5.  The court found no merit in the appellant's claim that he was denied due process because the hearing in his appeal only lasted 15 minutes and that the AJ made credibility findings without considering evidence of his PTSD or its effect on his mental capacity.  The court noted that the appellant did not contend that he was prevented from presenting any argument or evidence and made no attempt to raise the PTSD issue below.  

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