U.S. Merit Systems Protection Board
Case Report for June 20, 2014

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Appellant:  Michel R. Blanding
Agency:  United States Postal Service
Decision Number:  2014 MSPB 43
Docket Number:  DE-0752-13-0061-I-1
Issuance Date:  June 18, 2014
Appeal Type:  Adverse Action
Action Type:  Removal

Compliance with Older Workers Benefit Protection Act
Procedure for Invalid OWBPA Waiver 

The appellant, a preference-eligible employee, appealed his removal from the position of rural carrier based on unacceptable performance/failure to work in a safe manner. In his appeal, he included a claim of age discrimination, and sought back pay and reinstatement as remedies. The appellant also filed a union grievance challenging his removal.  While the Board appeal was pending, the appellant settled his union grievance. The settlement agreement stated the parties would "consider the case closed," and did not expressly reserve the right to pursue a Board appeal.  However, the agreement did not contain any  of the required OWBPA language. After the settlement, the AJ found that the settlement agreement divested the Board of jurisdiction over the appellant's appeal. The AJ further held that, because of the loss of jurisdiction, the Board could not adjudicate the appellant's age discrimination claim, even if the settlement did not contain the necessary OWBPA language.

Holding: The Board remanded the appeal for further adjudication on the appellant's age discrimination claim.

1.    A settlement agreement that does not comply with the OWBPA invalidates the waiver of age discrimination claims, but does not otherwise impact valid waivers of other claims, including challenges to the merits of underlying appealable adverse actions.  

2.    If a waiver of an age discrimination claim is invalidated for noncompliance with the OWBPA, but the waiver of the underlying appealable action remains valid, the Board retains jurisdiction solely to adjudicate the age discrimination claim as appropriate. 

Appellant:  Philip M. Modeste
Agency:  Department of Veterans Affairs
Decision Number:  2014 MSPB 44
Docket Number:  AT-3330-13-0146-I-1
Issuance Date:  June 19, 2014
Appeal Type:  VEOA
Action Type:  Non-Selection

Right to Compete Under Veterans Employment Opportunity Act
Applicable Positions Under VEOA
Process for Reconstituted Selection Process After VEOA Violation
Deference Accorded to OPM Website Guidance

The appellant, an honorably discharged veteran, applied for a position with the agency as a Medical Administrative Specialist. The vacancy announcement solicited applications from all United States citizens, and noted that the position was a full-time temporary position not to exceed two years. The agency selected a then-current agency employee over the appellant for the position.  On appeal, the agency stated that the agency's master labor agreement required the agency to separate all applicants for the position into three groups: 1) those who already worked at the facility where the position was located; 2) those who worked for the agency; and 3) all other applicants. Based on this process, the agency did not consider the appellant's application before hiring the selectee.  The AJ held the agency's master labor agreement did not excuse its failure to consider the appellant as required by VEOA, and ordered the agency to reconstruct its hiring process.  

Holding: The Board affirmed the AJ's decision granting the appellant's request for corrective action.

1.    An agency cannot rely on a master labor agreement to excuse its failure to adhere to VEOA in the hiring process.  

2.    VEOA applies to all vacant positions, not just permanent, competitive service positions.

3.    An appellant whose veterans' preference rights were violated in the selection process is entitled to a new selection process consistent with VEOA.  The new selection process requires that the previously selected employee be removed from the position at issue, but does not require the employee to be removed from the federal service altogether.

4.  Informal information and guidance contained on an OPM website that has not been issued under the notice-and-comment rulemaking procedures will not be entitled to the same deference given to regulations.

The U.S. Supreme Court Issued a Decision in the Following Case:

Petitioner: Edward Lane
Respondent: Steve Franks, et al.
Tribunal: U.S. Supreme Court
Case Number: 13-483
Issuance Date: June 19, 2014
Appeal Type: Termination of Public Employee
Action Type: Whistleblower Retaliation/Protected Speech

First Amendment Protected Speech of Public Employee
Qualified Immunity

The Court addressed the issue of whether the First Amendment protects a public employee who provides subpoenaed truthful sworn testimony outside the course of his job responsibilities. The appellant was a state employee director of a program operating through a state Community College. During the course of an internal audit, the appellant discovered the existence of an employee who was being paid a salary but never showed up for work. The employee also served as a state representative. The appellant fired the "no show" employee and later, a federal criminal investigation resulted in the employee's conviction for mail fraud and theft. The appellant testified under subpoena in the criminal proceeding. The appellant was later terminated based on the alleged reason that the organization was experiencing financial difficulties. The appellant sued the director in his individual and official capacities and alleged that the director had violated his First Amendment right to free speech by firing him in retaliation for testifying against the "no show" employee. The district court ruled against the appellant and the 11th Circuit affirmed, holding that the appellant's testimony was not entitled to First Amendment protection because the appellant's subpoenaed testimony amounted to employee speech, not citizen speech, because he acted pursuant to his official duties when he investigated and later terminated the "no show" employee. In a unanimous opinion by Justice Sotomayor (Justices Thomas, Scalia, and Alito in a separate concurrence), the Court held that the First Amendment protects a public employee who was fired in retaliation for testifying under oath about criminal fraud in the program which he administered, but that the individual who fired him was entitled to qualified immunity for his conduct.

Holding: A Public Employee's Testimony Outside of His Normal Duties is Protected by the First Amendment.   

1.  The Court concluded that the lower court's application of Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), regarding the regulation of public employee speech was applied too broadly, and that the appellant's sworn testimony outside the scope of his ordinary job duties was entitled to First Amendment protection. Under Pickering v. Board of Ed. of Township High School Dist. 205, 391 U.S. 563, 568 (1968), the First Amendment protection of a public employee's speech depends on a careful balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, and the employer, in promoting the efficiency of the public services it performs through its employees. Under the Pickering analysis, if the employee's speech is made pursuant to the employee's job duties, then Garcetti would require a finding that the employee is not speaking as a citizen for First Amendment purposes and entitled to no protection.
The Court found the 11th Circuit erred in relying too heavily on the fact that the information the appellant testified to was learned in the course of his employment; this does not automatically render it unprotected. If the substance of the employee's speech pertains to a matter of public concern and the government has no adequate justification for treating the employee differently, the speech is protected.

2.  The community college president who initiated the appellant's removal was entitled to qualified immunity for the claims against him in his individual capacity because it was unclear from the 11th Circuit precedent whether the college president reasonably believed at the time he fired the appellant that the appellant's speech was outside of his ordinary job responsibilities.  

The U.S. Court of Appeals for the Federal Circuit did not issue any decisions this week.


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