U.S. Merit Systems Protection Board 
Case Report for June 10, 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:  Monifah A. Hamilton
Agency:  United States Postal Service
Decision Number:  2016 MSPB 22
Docket Number:  DC-0353-15-0736-I-1
Issuance Date:  June 7, 2016
Appeal Type:  Restoration to Duty - After Recovery from Compensable Injury

Restoration to Duty - Partially Recovered Employee
Jurisdiction
 - Nonfrivolous Allegation Standard
 - Confidential Postal Service Employees 

    The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  While employed as a Postal Inspector, she suffered an on-the-job injury in March 2013, and was placed in a limited-duty status until approximately September 2014, when she was diagnosed with Idiopathic Angiodema, a condition characterized by symptoms of swelling and hives.  The Office of Workers' Compensation Programs (OWCP) denied the appellant's claim for compensation, finding that she failed to show that her medical condition arose during the course of her employment.  The appellant applied for disability retirement in September 2014.  She nonetheless accepted a limited-duty Postal Inspector assignment in October 2014.  Despite accepting this position, the appellant did not report for duty from approximately September 2014 until July 16, 2015, when she was separated from Federal service on disability retirement.  The appellant filed the instant appeal in May 2015, asserting a denial of restoration and asserting jurisdiction as a suspension as a confidential employee.  In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant failed to nonfrivolously allege that she was separated from her position due to a compensable injury, that she was denied restoration as a partially recovered employee, or that the agency acted arbitrarily and capriciously.  The administrative judge further found that the appellant failed to establish jurisdiction over a suspension, finding that she was not a confidential employee who could bring such a claim.  

Holdings:  The Board denied the petition for review and affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. The appellant failed to establish jurisdiction over her restoration claim under the nonfrivolous allegation standard.

a. The Board issued a new regulation effective March 30, 2015 (5 C.F.R. 1201.57(a)(4), (b)) which adopted a nonfrivolous jurisdictional standard for restoration appeals.  This replaced a preponderance of the evidence standard that had been required by Federal Circuit precedent.

b. The appellant failed to nonfrivolously allege that she was absent from her position due to a compensable injury.  The determination of whether an individual suffers from a compensable medical condition is within the exclusive purview of OWCP.  Because OWCP determined that the appellant's Idiopathic Anioedema was not job related, the appellant has no restoration rights under 5 C.F.R. part 353 based on this condition.  

2. The appellant failed to nonfrivolously allege that she was denied restoration as a partially recovered employee based on her compensable knee injury or that the agency acted arbitrarily and capriciously in that regard.

3. The appellant is not an employee with the right to appeal an adverse action under 5 U.S.C. chapter 75.

a. Among the categories of Postal Service employees who have a right to appeal an adverse action to the Board are preference eligibles, management or supervisory employees, and employees engaged in personnel work in other than a purely nonconfidential clerical capacity.  It was undisputed that the appellant did not fall within either of the first two categories. 

b. The appellant is not a confidential employee under 39 U.S.C.  1005(a)(4)(A)(ii), which includes employees who (1) assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policy in the field of labor relations, or (2) regularly have access to confidential information concerning anticipated changes which may result from collective-bargaining negotiations.  Although the appellant may have handled sensitive employee personnel information in the course of administrative investigations, mere access to personnel information is insufficient to establish confidential status.  Moreover, the appellant's position description does not indicate that her job duties involved those of an employee who acts in a confidential capacity.  



Appellant:  Kinsman Corthell
Agency:  Department of Homeland Security
Decision Number:  2016 MSPB 23
Docket Number:  PH-1221-15-0449-W-1
Issuance Date:  June 7, 2016
appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosures - Perceived
 - Election of Remedies

    The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The appellant retired from his position as a Supervisory Criminal Investigator in November 2014.  He subsequently filed a complaint with OSC in which he alleged that the agency retaliated against him for disclosing waste, fraud, and abuse.  He further alleged that management retaliated him based on its perception that he reported other matters to the agency's Office of Inspector General (OIG).  He alleged that the agency took numerous personnel actions against him because of his disclosures and because of its perception that he made additional disclosures to the OIG.  These personnel actions included his alleged coerced retirement. 

     On appeal to the Board, the administrative judge issued an order advising the appellant of the jurisdictional requirements for an IRA appeal based on a claim of retaliation for protected disclosures under 5 U.S.C.   2302(b)(8).  As to the appellant's claim of retaliation for his perceived involvement in an OIG investigation, the judge stated that the Board had not yet decided whether an individual alleging a violation of 5 U.S.C.   2302(b)(9) may gain protected status by claiming to have been perceived as having engaged in protected activity.  The appellant did not respond to the judge's order and, based on the written record, dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure under 5 U.S.C.   2302(b)(8).  

Holdings:  The Board affirmed the finding that the appellant failed to make nonfrivolous allegations of retaliation for making protected disclosures, but otherwise vacated the initial decision and remanded the appeal to the regional office for further adjudication of whether the appellant suffered retaliation for being perceived as having engaged in protected activity under 5 U.S.C.   2302(b)(9).  The Board also ruled that the appellant had not made a binding election to pursue his claim of an involuntary retirement as part of his IRA appeal.  

1. The Board may consider a request for corrective action under 5 U.S.C.  1221 based on a claim that an agency took or failed to take a personnel action based on its perception that the appellant engaged in protected activity under 5 U.S.C.  2302(b)(9)(C).

a. Paragraph (b)(9)(C) of section 2302 forbids an agency from taking or failing to take, or threatening a covered personnel action, because of "cooperating with or disclosing information to the Inspector General of an agency."  Pursuant to the WPEA, such a prohibited personnel practice is now actionable in an IRA appeal.

b. Whether an appellant can seek corrective action under 5 U.S.C.  1221(a) based on a claim of reprisal for perceived protected activity under paragraph (b)(9)(C) is a question of first impression.  

c. The Board has recognized that corrective action is appropriate in IRA appeals based on a claim reprisal for perceived whistleblowing under 5 U.S.C.  2302(b)(8).  

d. The statute does not specify that an appellant actually must have engaged in the protected activity under paragraph (b)(9)(C) that motivated the agency.  There is nothing in the legislative history of the WPA, or the WPEA, which extended the protections of the WPA, to suggest that Congress intended a narrower reading for paragraph (b)(9)(C) than for paragraph (b)(8).

e. The same rationales that forbid retaliation for perceived whistleblowing under paragraph (b)(8) apply to to perceived protected activity under paragraph (b)(9).  Failure to protect employees perceived to have engaged in such activity would defeat the purpose of the statute by discouraging other employees from engaging in activity which Congress has found to be in the public interest.  

f. Remand on this claim is necessary because the appellant did not receive explicit information as to what was required to establish jurisdiction.

2. The appellant's decision to seek corrective action before OSC concerning his alleged involuntary retirement was not a binding election and does not preclude him from filing a separate constructive removal appeal.  

a. Under 5 U.S.C.  7121(g), an appellant who has been subjected to an action that is directly appealable to the Board and who alleges that he has been affected by a prohibited personnel practice other than a claim of discrimination must make an election among three options:  an appeal to the Board under 5 U.S.C.  7701; a grievance filed under the provisions of a negotiated grievance procedure; or (3) a complaint following the procedures for seeking corrective action from OSC under 5 U.S.C. chapter 12.  

b. Here, the appellant raised the matter of his alleged involuntary retirement with OSC before filing an IRA appeal with the Board.  Ordinarily, that would constitute a binding election, and the appellant would not be able to pursue his discrimination claim or any failure by the agency to provide him constitutional due processs.

c. An election under section 7121(g) is binding only if it was knowing and informed.  Here, the agency did not issue a letter of decision or otherwise provide the appellant with the required notice.  The Board therefore found that the appellant's decision to seek corrective action from OSC does not preclude him from filing an adverse action appeal under 5 U.S.C. chapters 75 and 77, while continuing to contest the remaining personnel actions in his IRA appeal.  



COURT DECISIONS

Petitioner:  Timothy Allen Rainey
Respondent:  Merit Systems Protection Board
Intervenor:  Department of State
Tribunal:  U.S. Court of appeals for the Federal Circuit
Docket Number:  2015-3234
Issuance Date:  June 7, 2016

Whistleblower Protection Act
 - Statutory Construction
 - Protected Activity

    In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor's order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C.  2302(b)(9)(D), which protects covered employees from retaliation "for refusing to obey an order that would require the individual to violate a law," applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word "law" in the "right-to-disclose" provision of the WPA, 5 U.S.C.   2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term "a law" in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).  

Holdings: The court affirmed the Board's decision, agreeing that the term "a law" in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.  



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

Allen v. Merit Systems Protection Board, No. 2015-3224 (June 7, 2016) (MSPB Docket No. DC-0752-07-0694-C-6) (affirming the Board's decision, which denied his fourth petition for enforcement of a settlement agreement with the agency)

Collica v. Department of the Army, No. 2015-3132 (June 8, 2016) (MSPB Docket No. DC-0752-12-0618-I-2) (affirming the Board's decision, which ruled that Collica's removal for refusing a directed reassignment was proper and not taken in retaliation for his whistleblower activity)

Adams v. Merit Systems Protection Board, No. 2016-1414 (June 9, 2016) (MSPB Docket No. DC-3443-15-0768-I-1) (affirming the Board's decision, which dismissed Adams' claims of improper reassignments for lack of jurisdiction)

Corbins v. Department of Justice, No. 2016-1193 (June 9, 2016) (MSPB Docket No. DC-4324-15-1023-I-1) (affriming the Board's decision, which denied Corbins' request for corrective action in this USERRA appeal)
     

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