U.S. Merit Systems Protection Board 
Case Report for January 8, 2016 

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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:  Anne M. Kent
Agency:  Office of Personnel Management
Decision Number:  2015 MSPB 66
Docket Number:  AT-844E-15-0640-I-1
Issuance Date:  December 31, 2015
Appeal Type:  FERS - Employee Filed Disability Retirement
Action Type:  Retirement/Benefit Matter

Retirement
 - Timeliness - Request for Reconsideration

   The appellant petitioned for review of an initial decision that affirmed OPM's reconsideration decision disallowing her continued receipt of disability benefits.  The appellant retired from Federal service and began receiving disability retirement benefits in 1999.  On May 18, 2011, OPM issued a decision informing the appellant that it had determined that she was not eligible for continued disability retirement payments.  The decision notified the appellant that a request for reconsideration "must be received by OPM within 30 days of the date of this letter."  The appellant requested reconsideration in a letter dated June 21, 2011, stating, in part, that she received OPM's decision on June 10, 2011.  Over 3 years later, on October 29, 2014, OPM informed the appellant that her reconsideration request was untimely filed outside of the 30-day time limit.  OPM's letter stated that it had the discretion to extend the time limit in limited circumstances, i.e., when an individual shows that she was not notified of the time limit and was not otherwise aware of it, or that circumstances beyond her control prevented her from making a timely request for reconsideration.  The letter instructed the appellant to submit evidence showing that she met one of the regulatory criteria for an extension of the 30-day time limit.  On June 3, 2015, OPM issued a reconsideration decision finding that the appellant's reconsideration request was untimely filed and that she had failed to present any evidence showing that she was unable to file a request for reconsideration within the regulatory time limit.  

     On appeal to the Board, the administrative judge ordered the appellant to provide evidence and argument as to why she believed OPM's determination of untimeliness was unreasonable or an abuse of discretion.  After considering the appellant's response, the administrative judge determined that the appellant had not met her burden and affirmed OPM's reconsideration decision.

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1. Pursuant to its regulation at 5 C.F.R.  841.306, OPM may extend the 30-day time limit for requesting reconsideration decision when the individual shows either that she was not notified of the time limit and was not otherwise aware of it, or was prevented by circumstances beyond her control from making the request within the time limit.  If an appellant shows that she qualified for an extension of the time limit under OPM's regulations, the Board then will consider whether OPM acted unreasonably or abused its discretion in refusing to extend the time limit.  

2. The administrative judge erred by failing to determine whether the appellant was eligible for an extension of the time limit under OPM's regulations before considering whether OPM acted unreasonably or abused its discretion.  

3. The administrative judge failed to give the appellant the correct notice of her jurisdictional burden by failing to notify her of her burden to show that she was eligible for an extension under OPM's regulations.



Appellant:  Kenneth G. Mastrullo
Agency:  Department of Labor
Decision Number:  2015 MSPB 67
Docket Number:  PH-1221-14-0327-W-1
Issuance Date:  December 31, 2015
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision in this IRA appeal that found that the Board lacked jurisdiction over some of his claims and denied corrective action regarding the claims that were within the Board's jurisdiction.  The appellant claimed that he was compelled to retire from his position as an Occupational Safety and Health Manager position, and that he suffered retaliatory treatment prior to his retirement, due to his disclosures relating to a co-worker who had allegedly stalked and harassed him.  On appeal to the Board, the administrative judge, relying on Covarrubias v. Social Security Administration, 113 M.S.P.R. 583 (2010), ruled that an alleged involuntary retirement or resignation claim was not an action within the scope of an IRA appeal.  The administrative judge that the appellant had elected the grievance procedure as to some matters under 5 U.S.C.  7121(g), which rendered those claims outside the Board's jurisdiction.  The judge ruled that the allegedly retaliatory comments made during the appellant's Spring 2012 midterm progress review could not be a covered personnel action, and any claim regarding those comments therefore "fails as a matter of law."  The administrative judge further found that the appellant failed to prove that any of his remaining alleged protected disclosures or activity was a contributing factor in the issues related to his time-off award, and he denied corrective action on that claim.  

Holdings:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1. The appellant is entitled to adjudication of his involuntary resignation/retirement claim in this IRA appeal.  After the record closed below, the Board overruled Covarrubias, finding that an involuntary resignation claim is cognizable in an IRA appeal.  

2. The appellant identified numerous alleged disclosures in his OSC complaint, but the initial decision addressed only the appellant's assertion that the agency retaliated against him in response to his August 2010 complaint.  Moreover, the administrative judge did not state whether the appellant made a nonfrivolous allegation of a protected disclosure.  These matters must be addressed on remand.  

3. The appellant's assertion that his August 2010 complaint was a contributing factor in the agency's decision not to give him a 40-hour time-off award must be remanded for further adjudication.

a. The appellant made a nonfrivolous allegation that  he reasonably believed that his August 2010 complaint disclosed a violation of law, rule, or regulation.

b. The Board reversed the administrative judge's finding that the appellant failed to establish that his disclosure was a contributing factor in the agency's failure to give him a 40-hour time-off award.  He was given only a $150 cash award, while similarly situated employees received a 40-hour time-off award, and the appellant met the knowledge/timing test for this disclosure.  Once the knowledge/timing test has been met, an administrative judge must find that the appellant has shown that his whistleblowing was a contributing factor in the personnel action at issue, even if after a complete analysis of all of the evidence a reasonable fact-finder could not conclude that the appellant's whistleblowing was a contributing factor in the personnel action.  

c. This claim must be remanded to the regional office for the administrative judge to evaluate whether the agency proved by clear and convincing evidence that it would not have given the appellant a 40-hour time-off award even he had not made a protected disclosure.  

4. On remand, the administrative judge must make findings and credibility determinations regarding the nature of supervisor J.M.'s statements to the appellant during the midterm progress review meeting and to determine whether the appellant proved that these statements constitute a threatened personnel action.  




COURT DECISIONS

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

Green v. Merit Systems Protection Board, No. 2015-3154 (Jan. 6, 2016) (MSPB No. PH-3443-15-0046-I-1) (affirming the Board's decision, which dismissed Green's appeal for lack of jurisdiction)

Littlejohn v. Office of Personnel Management, No. 2015-3059 (Jan. 7, 2016) (MSPB No. DC-844E-14-0524-I-1) (affirming per Rule 36 the Board's decision, which affirmed OPM's reconsideration decision denying Littlejohn's application for disability retirement)

Kaplan v. Merit Systems Protection Board, No. 2015-3091 (Jan. 7, 2016) (MSPB No. DC-0752-14-0708-I-1) (affirming the Board's decision, which dismissed Kaplan's appeal for lack of jurisdiction)

Luna v. Merit Systems Protection Board, No. 2015-3159 (Jan. 7, 2016) (MSPB No. DA-0752-14-0378-I-1) (affirming the Board's decision, which dismissed Luna's appeal for lack of jurisdiction)
   

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