U.S. Merit Systems Protection Board 
Case Report for January 15, 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:  Jeremy Forte
Agency:  Department of the Navy
Decision Number:  2016 MSPB 1
Docket Number:  SF-0752-14-0761-I-1
Issuance Date:  January 6, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Adverse Action Charges
 - Illegal Drug Use
Harmful Procedural Error
Disability Discrimination - Mixed Motive Analysis

    The agency filed a petition for review and the appellant filed a cross petition for review of an initial decision that reversed the appellant's 30-day suspension for illegal drug use and denied his affirmative defense of disability discrimination and his motion for sanctions.  The appellant is a Firefighter, a position subject to drug testing on a random basis.  The appellant was selected for a random drug test on May 8, 2014, testing positive for cocaine.  The agency proposed the appellant's removal for illegal drug use based on the test results.  With his written reply, the appellant provided the results of a hair follicle drug test that he privately obtained in June 2014, which indicated that he had tested negative for cocaine.  The deciding official sustained the charge, but mitigated the penalty to a 30-day suspension.  

     On appeal to the Board, the appellant asserted that he had never used cocaine and alleged that there were irregularities in the collection of his urine specimen.  In particular, he alleged that the individual who collected his urine specimen forgot to have him initial the two vials containing his specimen before he left the testing restroom and had to call him back to the restroom to initial the vials.  The appellant also raised a claim of disability discrimination based on disparate treatment.  During discovery, the parties became involve in a dispute regarding the appellant's request that the agency make a sample of the urine specimen at issue available for DNA testing so that he could determine whether the specimen was his.  The administrative judge granted the appellant's motion to compel production of the sample, but the agency moved to quash the subpoena on the ground that Guidelines issued by the Department of Health & Human Services prohibit DNA testing on urine specimens collected during drug testing programs.  Following a hearing, the administrative judge found that the agency failed to prove its charge by preponderant evidence.  The judge also found that the appellant failed to prove disability discrimination.  The judge granted the agency's motion to quash the subpoena ordering to produce the urine sample, finding that the issue of DNA testing was moot in light of her reversal of the adverse action.

Holdings:  The Board affirmed the initial decision as modified, still finding that the agency failed to prove its charge by preponderant evidence and that the appellant failed to prove his affirmative defense of disability discrimination:

1. When an agency relies on a positive drug test to take an adverse action against an employee, it must prove by preponderant evidence that the test was valid.  In particular, it must establish that the urine sample that tested positive was the appellant's by showing that the chain of custody of the sample was maintained and verifiable.

2. The appellant established that there was a procedural error in handling his urine specimen, but he failed to establish that this error was harmful, i.e., likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.  

3. The administrative judge properly considered the result of the hair follicle test.  When combined with the unavailability of the urine specimen for DNA testing, the administrative judge correctly found that the agency failed to prove its charge by preponderant evidence.  

4. A mixed-motive analysis applies to claims of disparate treatment based on disability.  Under a mixed-motive analysis, an employee is entitled to some relief if he proves that his disability was a "motivating factor" in the decision, "even though other factors also motivated the practice."  

5. Applying a mixed-motive analysis to the facts of this case, the Board found that the evidence cited by the appellant does not indicate that his disability was a motivating factor in the agency's decision to suspend him.  


Appellant:  Naval Station Norfolk Appellants
Agency:  Department of the Navy
Decision Number:  2016 MSPB 2
Docket Number:  DC-0752-16-0278-I-1
Issuance Date:  January 13, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Furlough (30 Days Or Less)

Furloughs of 30 Days or Less
 - Efficiency of the Service
Discrimination - Race

    The appellants petitioned for review of initial decisions that affirmed the agency's furlough actions.  The agency furloughed the appellants for 6 days from their GS-0083-8 Detective positions at the Naval Station Norfolk (NSN), stating that the furloughs were necessitated by the extraordinary and serious budgetary challenges facing the Department of Defense for the remainder of fiscal year 2013, resulting from the sequester that began on March 1, 2013.  The agency informed the appellants that, if other employees in their competitive level were not being furloughed, it was because those employees were in a position "whose duties have been determined to be of crucial importance to this agency's mission and responsibilities and cannot be curtailed."  On appeal to the Board, the appellants asserted that the agency improperly subjected them to the furlough and discriminated against them based on their race (Black).  The administrative judge affirmed the furlough actions, finding that the agency established cause for the furlough -- a shortage of funds -- and that the furlough promoted the efficiency of the service.  The judge held that the police officers and detectives at Little Creek, Oceana, and Norfolk Naval Shipyard were not similarly situated to the appellants because they were part of different organizational units and different competitive areas for purposes of the furlough.  The judge found that the appellants were not similarly situated to the classification series 0083 Police Officers at the NSN because they were not, like the police officers, first responders charged with direct responsibility for protecting the safety of life and property.  The administrative judge determined that the appellants did not prove that the decision to motivate them was motivated by race or sex, despite finding that the proposing official used "offensive, despicable, and racist language" when referring to various employees of color with the security department.  The judge found that the evidence did not establish that the proposing official influenced the deciding official's decision not to except the appellants from the furlough.  

Holdings:  The Board affirmed the initial decisions insofar as they found that the agency established that the furloughs promoted the efficiency of the service, but vacated the initial decisions' findings on the appellants' discrimination claims, remanding those claims to the regional office for further adjudication:

1. The agency proved by preponderant evidence that the appellants met the criteria for being subject to, and not excepted from, the furlough.  After reviewing the evidence, the Board concluded that the exception for "employees necessary to protect safety of life and property" was a narrow one, and that the agency had valid reasons for excepting police officers at NSN but not detectives.  

2. The agency proved by preponderant evidence that the furlough promoted the efficiency of the service.

a. The Board has held that RIF principles are instructive in determining the scope of its review of adverse action furloughs and what it means for a furlough of 30 days or less to be taken for the efficiency of the service.  An agency satisfies the efficiency of the service standard by showing, in general, that the furlough was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a "fair and even manner."

b. The appellants were not similarly situated to the police officers at the NSN.  

c. Similarly, the positions of supervisory police officer and detective are not similar enough that an agency may reassign the incumbent of one position to the other position without undue disruption, and therefore belong in separate competitive levels.  
d. The Board concurred with the administrative judge's determination that the detectives located at other installations are not similarly situated to the appellants, because they worked in different organizational units under separate administrations.  

3. The appellants' discrimination claims must be remanded for further adjudication:

a. In addressing the appellants' discrimination claims, the administrative judge applied the then-applicable Board case law, which used the McDonnell Douglas framework of shifting burdens of production and persuasion.  Subsequent to the initial decision, however, the Board adopted a new framework in which it will first inquire whether the appellant has shown that the prohibited consideration was a motivating factor in the contested personnel action.  The Board applies the new standard to pending appeals.

b. Remand is appropriate here because the appellants were not placed on notice of the evidentiary standards and burdens of proof for proving their discrimination claims.  On remand, the administrative judge should consider case law that an individual's role in the decision-making process
(such as the proposing official in this case) cannot be ignored in considering a claim of discrimination and may taint the process.  



Appellant:  Christine Ann Runstrom
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 3
Docket Number:  DC-1221-15-0102-W-1
Issuance Date:  January 14, 2016
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Clear and Convincing Evidence

    The appellant petitioned for review of an initial decision that denied her request for corrective action in this IRA appeal.  The appellant is a Learning Resource Officer in Strategic Learning Services (SLS), a division of the Office of Employee Development and Training (ED&T).  ED&T also includes a division of Technical Training and Evaluation (TT&E).  During fiscals years 2012 and 2013, the appellant served as Project Manager for SLS's development of "competency models" for various occupations.  However, TT&E was responsible for the agency's related competency-based training program.  In July 2013, a decision was made to set up a "matrix relationship" including members of both SLS and TT&E, intended to merge all competency efforts into a single program, and the appellant was designated Program Manager for the joint competencies project.  On or about October 24, 2013, the appellant disclosed to her supervisor what she believed to be violations of the Federal Acquisition Regulations.  The focus of her disclosures was a TT&E employee acting as a Contracting Officer's Representative on a particular contract.  On October 30, the appellant's supervisor notified her that the matrix organization was "not working and should be discontinued.  Effectively immediately, we will return to the working relationship in place for our two organizations in July."  The appellant contended that this action, as well as a lowered performance rating for fiscal year 2013 compared with that for fiscal year 2012, were in retaliation for her protected disclosures.  The administrative judge found that the appellant had made protected disclosures, and that these were a contributing factor in both the appellant's change of duties and her lowered performance appraisal.  She found, however, that the agency established by clear and convincing evidence that it would have taken the same actions in the absence of her whistleblowing activity.  

Holdings:  The Board affirmed the initial decision insofar as it found that the appellant made protected disclosures and that these were a contributing factor in the two personnel actions.  It affirmed the administrative judge's clear and convincing evidence determination with respect to the lowered performance appraisal, but reversed the finding with respect to the change in duties, and remanded the case for a determination of the appropriate corrective action:

1. Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations to be established.  Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate, considering all the pertinent evidence in the record, and despite the evidence that detracts from that conclusion.  

2. The Board agreed with the administrative judge that the agency met its burden concerning the lowered performance appraisal.  The appellant's FY 2013 was based on her own self-assessment, which listed markedly fewer achievements than those listed in her FY 2012 appraisal.  Further, the description of the activities performed in FY 2012 are more detailed and reflect a greater level of involvement in the work performed.  

3. The Board reversed the administrative judge's finding that the agency met its burden regarding the agency's decision to relieve the appellant of her duties as Program Manager for the competencies matrix relationship.  The judge erred in finding that the agency had a "plan" to reassign that project, which "was well underway" before the appellant made her disclosures.  Moreover, the only evidence explaining the agency's decision was the vague statement by the appellant's supervisor that the matrix relationship "is not working and should be discontinued."  




COURT DECISIONS

Petitioner:  Timothy Reddick
Respondent:  Federal Deposit Insurance Corporation
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3188
Issuance Date:  January 8, 2016

Jurisdiction
 - Removal - "Employee" Status

    This was an appeal from an arbitrator's decision that found that Reddick had not been subjected to an appealable removal.  In 2010, Reddick received a two-year term appointment to the position of "investigation Specialist," which was to expire in September 2012.  In April 2012, the agency offered Reddick an extension of the initial term for an additional two-year term.  The offer stated that the extended appointment would be "effective [September], 2012" and that the "extended appointment is subject to the conditions of employment [included in the initial appointment offer] and subject to your continued successful performance."  Reddick accepted the offer several days after receipt.  The agency revoked the extension offer in August 2012, after the appellant's acceptance but prior to the beginning of the extension term.  The issue was whether the revocation constituted a "removal" under 5 U.S.C.  7512.  The arbitrator resolved this issue in the negative, finding that Reddick had not been subjected to an appealable removal.

Holdings: The court affirmed the arbitrator's decision:

1. Judicial review of an arbitrator's decision is limited to those adverse actions covered by section 7512.

2. the jurisdictional issue depends on whether Reddick's employment was terminated at the end of his term appointment, as the FDIC contended, or during his extended term, as he argued.  The answer to that question depended on the narrow issue of whether, under the facts of this case, Reddick's term appointment was irrevocably extended by his acceptance of the FDIC's offer, or whether the FDIC could revoke that offer prior to the effective date.

3. The FDIC could and did revoke its offer prior to the effective date.

a. The terms of the extension offer, particularly that it was not to become effective until September 2012, suggest that it was not intended to become irrevocably effective upon acceptance.  

b. The court considered the lack of execution of formal documentation of the term extension, particularly the absence of an SF-52, Request for Personnel Action, to have considerable weight in determining whether the FDIC actually extended Reddick's appointment.




Petitioner:  Robert J. McCarthy
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3072
Issuance Date:  January 14, 2016

Appellate Review - Requests for Reopening
Whistleblower Protection Act
 - Exhaustion of OSC Remedy

    McCarthy sought review from the Federal Circuit of the Board's denial of his request to reopen an appeal.  This case involved McCarthy's termination of employment from the United States International Boundary and Water Commission.  He had alleged in his IRA appeal that the termination was retaliation for protected whistleblowing.  Between June and July 2009, McCarthy prepared four legal memoranda challenging certain activities at the Commission as "gross mismanagement" and contrary to existing law.  On July 28, 2009,  McCarthy submitted a report titled "Disclosures of Alleged Fraud, Waste and Abuse" to the State Department Office of Inspector General.  McCarthy's complaint to OSC identified the Report to the Inspector General, but not any of the legal memoranda, as protected activity.  In a supplemental statement to OSC, McCarthy discussed his whistleblowing complaint in more detail, but did not explicitly identify the legal memoranda, but discussed similar topics.  The Board's administrative judge issued an initial decision concluding that McCarthy had not been retaliated against.  The Board affirmed the initial decision, and the Federal Circuit affirmed the Board's final decision.  While McCarthy's petition for rehearing was pending with the Court, Congress enacted the Whistleblower Protection Enhancement Act of 2012 (WPEA).  Both parties recognized that, under the WPEA, McCarthy's four legal memoranda from June and July 2009 could be protected disclosures, and the Board held that section 101 of the WPEA could be applied retroactively to pending cases.  Nevertheless, the court denied the petition for rehearing.  McCarthy subsequently filed a motion to reopen his appeal with the Board, which was denied in a letter issued by the Clerk of the Board.  McCarthy sought review with the Federal Circuit of that denial.  

Holdings: The court affirmed the Board's denial of McCarthy's motion to reopen his appeal:

1. Under the particular circumstances of this case, where the Clerk of the Board denied a first request to reopen that involved an intervening change in governing law, the Clerk's letter denying reopening constituted a "final order or final decision" that is reviewable by the Federal Circuit.  

2. The court rejected the Board's argument that 5 U.S.C.  701(a)(2) precludes judicial review because "agency action is committed to agency discretion by law."  This is a very narrow exception; the Supreme Court has ruled that there is a "strong presumption favoring judicial review of administrative action."  Under the facts of this case, where the motion to reopen is premised on a change of law, the court has jurisdiction to review, generally applying the "arbitrary, capricious, an abuse of discretion, other otherwise not in accordance with law" standard of 5 U.S.C.  706(2)(A).  

3. The Board did not err in denying McCarthy's request to reopen, because McCarthy had not exhausted his OSC remedies with respect to the four legal memoranda at issue.  The court stated that the "core substance of McCarthy's complaint has shifted from a single disclosure to the OIG (which, at best, was at least in part cumulative of a nebulous collection of previous disclosures) to four distinct legal memoranda provided to specific individuals at specific times."  


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

Jones v. Department of Health & Human Services, Nos. 2015-3189, 2015-3188 (Jan. 8, 2016) (MSPB Nos. DE-3330-14-0427-I-1, DE-3330-14-0430-I-1, DE-3330-14-0452-I-1) (affirming the Board's decision, which denied Jones' requests for corrective action)

Malone v. Merit Systems Protection Board, No. 2015-3197 (Jan. 8, 2016) (MSPB No. SF-0831-94-0834-I-1) (affirming the Board's decision, which dismissed Malone's petition for review as untimely filed)

Jones v. Department of Health & Human Services No. 2015-3188 (Jan. 8, 2016) (MSPB Nos. DE-3330-14-0427-I-1, DE-3330-14-0430-I-1, DE-3330-14-0452-I-1, No. DE-3330-15-0115-I-1) (affirming the Board's decisions, which denied Jones' requests for corrective action in these VEOA appeals)

Smith v. Department of Homeland Security, No. 2015-3065 (Jan. 8, 2016) (MSPB No. PH-0752-12-0506-I-2) (affirming per Rule 36 the Board's decision, which affirmed the agency's removal action)

Montelongo v. Department of Homeland Security, No. 2015-3063 (Jan. 11, 2016) (MSPB No. DA-0752-13-0403-I-2) (affirming per Rule 36 the Board's decision, which upheld Montelongo's removal for filing a false tax return)

Medina v. Department of Homeland Security, No. 2015-3063 (Jan. 11, 2016) (MSPB No. DA-0752-13-0393-I-1) (affirming per Rule 36 the Board's decision, which affirmed Medina's removal for misconduct)

Ayala v. Department of Homeland Security, No. 2015-3029 (Jan. 11) (MSPB No. DA-0752-13-0412-I-2) (affirming the Board's decision, which affirmed Ayala's removal)

Burton v. Office of Personnel Management, No. 2015-3222 (Jan. 11, 2016) (MSPB No. CH-0841-14-0691-I-1) (affirming the Board's decision, which affirming the denial
of Burton's application for disability annuity payments between 2012 and 2014)

Jolley v. Merit Systems Protection Board, No. 2015-3187 (Jan. 11, 2016) (MSPB Nos. SF-0752-13-0583-I-1, SF-0752-14-0286-I-1).  This court appeal involved two cases in which Jolley alleged that his retirement was involuntary and the result of agency retaliation for his veterans related activities and whistleblower disclosures.  The Board dismissed both appeals for lack of jurisdiction.  On appeal, the Federal Circuit affirmed the Board's determination that Jolley failed to prove that his retirement was involuntary, the only issue the Board considered.  But Jolley consistently maintained that his reassignment to Boise was a USERRA violation.  The court remanded that claim for adjudication.  

Howard v. Department of the Army, No. 2015-3024 (Jan. 11, 2016) (MSPB Nos. SF-0752-13-0360-I-2, SF-0752-13-1822-I-1) (affirming per Rule 36 the Board 's decision, which affirmed an initial decision dismissing Howard's removal and constructive removal appeals for lack of jurisdiction)

Dyson v. Department of Defense, No. 2015-3076 (Jan. 12, 2016) (MSPB No. DC-0752-13-1235-I-1) (affirming per Rule 36 the Board's decision, which affirmed Dyson's removal)

Calhoun v. General Services Administration, No. 2015-3198 (Jan. 12, 2016) (MSPB No. DC-1221-14-0758-W-1) (affirming the Board's decision, which dismissed Calhoun's IRA appeal for lack of jurisdiction)

Smith v. Department of the Air Force, No. 2015-3206 (Jan. 13, 2016) (MSPB Nos. SF-0752-13-1253-I-1, SF-0752-14-0283-I-1) (affirming the Board's decision, which affirmed the agency's decision to furlough Smith for six days in July and August 2013 as a result of
sequestration legislation)

Stoglin v. Merit Systems Protection Board, No. 2015-3215 (Jan. 13, 2016) (MSPB Nos. SF-3330-13-1464-B-1, SF-3330-13-1464-I-1) (affirming the Board's decision, which dismissed Stoglin's appeal for lack of jurisdiction)
 
    

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