U.S. Merit Systems Protection Board 
Case Report for November 6, 2015

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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:  Sandra M. Ayers
Agency:  Department of the Army
Decision Number:  2015 MSPB 58
Docket Number:  DA-0752-12-0396-I-3
Issuance Date:  November 2, 2015
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Whistleblower Protection Act
 - Protected Disclosure
 - Abuse of Authority
 - Contributing Factor
 - Clear and Convincing Evidence

    The agency petitioned for review of an initial decision that reversed the appellant's removal based on a finding that the removal action constituted retaliation for protected disclosures under the Whistleblower Protection Act.  The appellant was employed as a Diagnostic Radiologic Technologist at an Army Community Hospital.  The agency removed her from employment based on a charge of Conduct Unbecoming a Federal Civilian Employee.  On appeal to the Board, the administrative judge found that the agency proved 9 of its 25 specifications, but reversed the removal action on the basis that the appellant established her claims of retaliation for whistleblowing and union activity.  

Holdings:  The Board affirmed the administrative judge's finding that the appellant established her whistleblowing reprisal claim and ordered the agency to restore the appellant to employment:

1. In a removal appeal, an appellant's claim of whistleblowing reprisal is treated as an affirmative defense.  Once the agency proves its initial case by a preponderance of the evidence, the appellant must show by a preponderance of the evidence that she made a protected disclosure and that the disclosure was a contributing factor in the agency's personnel action.  If the appellant establishes a prima facie case of whistleblowing reprisal, then the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action absent any protected activity.  

2. The appellant disclosed a reasonable belief to her agency's Inspector General that she was subject to harassment by her first-level supervisor.  Such harassment constitutes an abuse of authority.    

3. Although the appellant had a reasonable (albeit mistaken) belief that her first and second level supervisors had an intimate relationship, this did not constitute a reasonable belief of an abuse of authority because there was no allegation of preferential treatment associated with the relationship.

4. The appellant established via the knowledge/timing test that her protected activity was a contributing factor in her removal.  

5.  The agency failed to establish by clear and convincing evidence that it would have taken the same personnel action in the absence of the appellant's protected activity.


Appellant:  Colbert Allen Rittgers
Agency:  Department of the Army
Decision Number:  2015 MSPB 59
Docket Numbers:  DA-0752-11-0212-C-1; DC-0752-12-0595-C-1
Issuance Date:  November 4, 2015
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Compliance
 
    This matter was before the Board on the appellant's petition for review of a compliance initial decision, which found the agency in partial compliance with the Board's final order. In the merits proceeding, the Board ordered the agency to cancel two indefinite suspensions and pay the appellant the correct amount of back pay, interest on back pay, and other benefits.  The appellant alleged that the agency failed to comply with the final order by not fully restoring his annual leave, failing to make the appropriate contributions to his TSP account, and erroneously calculating his overtime back pay. During the compliance proceeding, the agency acknowledged that it had failed to properly process the appellant's TSP contributions and proposed to remedy the error by giving the appellant a lump-sum payment.  The agency said it could not make contributions to the appellant's TSP account because he was no longer an employee.  The administrative judge found that the agency was in compliance with the final order regarding the appellant's overtime back pay, but not in compliance regarding payment to the appellant for annual leave and contributions to his TSP account.  
 
Holdings:  The Board affirmed the finding that the agency is not in compliance concerning restoration of annual leave and contributions to the appellant's TSP account, modified the compliance initial decision regarding the appellant's entitlement to TSP contributions for the 6-month periods following each of his in-service withdrawals, and reversed the compliance initial decision regarding the method the agency used to calculate overtime back pay:

1. The appellant was not entitled to contribute to his TSP account during the 6-month periods following his in-service withdrawals, and his back pay award should have been calculated accordingly.  

a. Under 5 C.F.R.  1650.33(b), a participant who obtains a financial hardship in-service withdrawal may not contribute to the TSP for a period of 6 months after the withdrawal is processed.  

b. The Board's authority to make an aggrieved employee whole under the Back Pay Act extends back only to the effective date of the reversed adverse action. The Board has no authority to order that the appellant's back pay award include contributions to his TSP account for the 6-month period following his first in-service hardship withdrawal, which occurred prior to the effective date of his first indefinite suspension.  

c. Although the negative consequences of the second withdrawal could be related to the appellant's indefinite suspension and could represent damages, the instant appeal does not fall into one of the limited categories of cases in which the Board is authorized to award damages.  

2. The appellant is not entitled to restoration of the funds he withdrew from his TSP account.  Nevertheless, the Board affirmed the administrative judge's finding that the agency has not demonstrated that it is in compliance with the Board's final order regarding the appellant's TSP contributions.  

3.  The appellant is not entitled to overtime back pay for the periods of administrative leave prior to his indefinite suspensions.  

4.  The agency should have calculated the appellant's overtime back pay according to his overtime history, instead of averaging the overtime worked by employees
who held the same position in the same directorate.  The Board directed the agency to file evidence of compliance with the Clerk of the Board.  




COURT DECISIONS


The U.S. Court of Appeals for the Federal Circuit issued a non-precedential decision in the following case:

Stoglin v. Merit Systems Protection Board, No. 2015-3141 (Oct. 27, 2015) (MSPB No. CH-4324-12-0389-M-1) (affirming the Board's decision, which dismissed Stoglin's petition for review as untimely filed without a showing of good cause for the delay)



FEDERAL REGISTER NOTICE

On October 30, 2015, the MSPB issued a Federal Register Notice announcing an interim final ruling to clarify that parties have a right to discovery under the MSPB's existing discovery procedures in compliance proceedings.  
     

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