United States Merit Systems Protection Board

Case Report for June 19, 2009


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: Alvern C. Weed

Agency: Social Security Administration

Decision Number: 2009 MSPB 108

Docket Number: DE-3443-05-0248-X-1

Issuance Date: June 11, 2009

Compliance
USERRA/VEOA/Veterans’ Rights

This case was before the Board based on the administrative judge’s (AJ’s) Recommendation finding that the agency was in noncompliance with a final Board order. In its decision on the merits, 107 M.S.P.R. 142 (2007), the Board found that the agency violated the appellant’s veterans’ preference rights under VEOA when it filled 2 positions using the Outstanding Scholar hiring authority instead of competitively filling the positions, and ordered the agency to reconstruct the selection process. In a later compliance proceeding, 110 M.S.P.R. 468 (2009), the Board held that the agency was not in compliance, both because an incumbent who had been selected in the original process had not been removed, and because the agency’s reconstruction of the selection process was merely “hypothetical,” in that it never contacted either of the individuals it said would have been selected to determine whether they would have accepted the position had it been offered at the time of the agency’s original selection.

Following the previous compliance decision, the agency submitted evidence that it had removed the incumbent who had been selected in the original process, and that it had contacted the other 2 individuals, who both stated that they would have accepted the positions had they been offered. The appellant contended that the agency was not in compliance because its reconstructed selection process did not result in a bona fide offer of employment and an appointment to the agency.

Holdings: The Board found that the agency is now in compliance and dismissed the petition for enforcement as moot. The agency did what it was directed to do: it removed the incumbent from the position, and determined that the 2 individuals would have accepted the position at the time of the agency’s original selection. That is all that was required.

Appellant: Rosemary Waters-Lindo

Agency: Department of Defense

Decision Number: 2009 MSPB 109

Docket Number: DC-3330-08-0780-I-1

Issuance Date: June 11, 2009

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veterans’ Rights
Hearings – Right to a Hearing

The appellant petitioned for review of an initial decision that denied her request for corrective action in this VEOA appeal. In the Acknowledgment Order, the AJ stated that the appellant had a right to a hearing if the case was within the Board’s jurisdiction, and directed the parties to present evidence on the jurisdictional issue. After considering the parties’ responses, the AJ issued a decision denying corrective action without conducting a hearing. The AJ found that the appellant had established jurisdiction, but that a hearing was not required because there was no genuine issue of material fact, as the evidence of record showed that the agency filled the position under merit promotion procedures and the veterans’ preference rules do not apply to such actions.

On petition for review (PFR), the appellant asserts that the AJ erred in adjudicating the appeal without affording her a hearing, and disputes the agency’s claim that the agency filled the position through merit promotion procedures.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and remanded the appeal for further adjudication:

1. The Board may decide a VEOA appeal on the merits without a hearing when there is no genuine issue of material fact and one party must prevail as a matter of law. The AJ erred by informing the appellant that she had a right to a hearing if the Board had jurisdiction over the appeal. The AJ further erred by not notifying the appellant of the requirement for showing a genuine dispute of material fact, and not explaining what constitutes a genuine dispute of material fact.

2. The appellant has raised a genuine dispute of material fact as to the agency’s claim that it filled the position at issue under merit promotion procedures.

Appellant: George Bruton

Agency: Department of Veterans Affair

Decision Number: 2009 MSPB 110

Docket Number: CH-0752-06-0580-X-1

Issuance Date: June 12, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance

This case was before the Board based on the AJ’s Recommendation finding that the agency was in noncompliance with a final Board order. In the merits proceeding, the Board reversed the removal action and ordered the agency to restore the appellant to employment with appropriate back pay and benefits. The appellant filed a petition for enforcement, asserting that the agency had not restored him to employment nor given him the required back pay and associated benefits. The agency conceded that the appellant had not been restored to employment or been provided back pay, but offered various justifications why it was unable to comply.

Holdings: The Board found that the agency remains in noncompliance and ordered the responsible agency official to appear before the General Counsel to show cause why sanctions should not be imposed:

1. The agency has failed to provide adequate evidence that it properly canceled the removal action.

2. The agency has failed to restore the appellant to his position of record or shown an appropriate reason for not doing so.

3. The agency has failed to provide adequate evidence that it has properly provided back pay and benefits.

4. The appellant is not entitled to attorney fees, damages as a result of the agency’s noncompliance, nor a public transportation subsidy.

Appellant: Patricia A. Bleidorn

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 111

Docket Number: CH-0831-08-0780-I-1

Issuance Date: June 15, 2009

Action Type: Retirement/Benefit Matter

Retirement
- Court/Domestic Relations Orders
- Survivor Annuity

The appellant petitioned for review of an initial decision that denied her claim for a former spouse survivor annuity. The appellant and her former husband were married when he retired from federal employment in 1992, at which time he elected maximum survivor annuity benefits for her. When the couple divorced in March 2005, the decree divided marital property, awarding the appellant a percentage of Mr. Bleidorn’s retirement annuity, but did not award her a former spouse annuity. In May 2005, the court entered a Qualified Domestic Relations Order (QDRO), but OPM informed the appellant that this QDRO did not comply with 5 C.F.R. Part 838, and was therefore not acceptable for processing. Mr. Bleidorn and the appellant returned to court and obtained an amended QDRO in December 2005, which awarded her the maximum possible former spouse annuity. In its reconsideration decision, OPM determined that it could not honor the QDRO because the March 2005 divorce decree was first order dividing marital property, and any subsequent order would not be acceptable for processing because it would modify or replace the first order dividing the marital property.

Holdings: The Board reversed the initial decision and ordered OPM take action effectuating Mr. Belidorn’s election of maximum survivor benefits for the appellant:

1. The AJ correctly determined that the December 2005 QDRO could not be processed as such.

a. The former spouse of a retired federal employee is entitled to a survivor annuity if the employee expressly provided for one in an election under 5 U.S.C.  8339(j)(3), or in the terms of any divorce decree, or in any court-approved property settlement agreement issued in connection with the divorce decree.

b. A modification of a divorce decree or court order is not effective if it is made after the retirement or death of the employee, to the extent that the modification involves a former spouse annuity. To qualify, a court order must be issued either prior to the date of retirement, or be the first order dividing the marital property of the retiree and the former spouse.

c. Here, the first order dividing the marital property was the March 2005 divorce decree, which was silent on the question of a former spouse survivor annuity. As a modification of this decree, the December QDRO was not acceptable for processing.

2. The December QDRO was acceptable for processing as an election, made within 2 years after the date of the divorce, to provide a former spouse survivor annuity, pursuant to 5 U.S.C.  8339(j)(3) and 5 C.F.R.  831.632(a).

Appellant: Rodger L. Jones

Agency: Social Security Administration

Decision Number: 2009 MSPB 112

Docket Numbers: PH-0752-06-0385-I-1
PH-0752-06-0588-I-1

Issuance Date: June 17, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

In March 2009, the appellant petitioned for review of 2 initial decisions, the first of which dismissed the appeal as moot after the agency rescinded its removal action, the second of which affirmed the appellant’s subsequent removal. The deadlines for seeking review with the full Board were in August 2006 and January 2007. The appellant claimed that he had not received information about his appeals because of mailing issues, and that he had become homeless in August 2007.

Holdings: The Board dismissed the appellant’s PFRs as untimely filed without good cause shown for the delay in filing. The record shows that the vast majority of pertinent documents, including both initial decisions, were served on the appellant’s residence of record and, by his own admission, he did not become homeless until after the deadline for filing a PFR had passed in both cases.

Appellant: Cheri W. Dodson

Agency: Department of the Navy

Decision Number: 2009 MSPB 113

Docket Number: AT-315H-08-0872-I-1

Issuance Date: June 17, 2009

Jurisdiction
- “Employee” Under  7511

The appellant petitioned for review of an initial decision that affirmed the agency’s termination of her employment during the first year of her employment with the Navy. When the appellant was appointed as a Legal Technician in May 2008, the SF-50 stated that the nature of the action was “[r]einstatement career” under the authority of 5 C.F.R.  9901.516, that her tenure was permanent, and that she was subject to the completion of a 1-year probationary period. The appellant had been previously employed with the federal government beginning in 1983, and transferred to the Federal Deposit Insurance Corporation in 1987. She resigned from the FDIC in 2005 to accept a buyout package.

The AJ dismissed the appeal for lack of jurisdiction, finding that the appellant did not establish that she was an “employee” with adverse action appeal rights under 5 U.S.C.  7511, or that jurisdiction for a probationary termination was established under 5 C.F.R.  315.806.

Holdings: Because the appellant has made nonfrivolous allegations that she was an “employee” with adverse action appeal rights under 5 U.S.C.  7511(a)(1)(A)(i), the case must be remanded for further adjudication:

1. Under 5 U.S.C.  7511(a)(1)(A), an employee with a right to appeal to the Board includes an individual in the competitive service: (i) who is not serving a probationary or trial period under an initial appointment; or (ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.

2. The appellant does not meet the requirements of paragraph (ii) of  7511(a)(1)(A), as her prior service ended in 2005, and she lacked 1 year of current continuous service as a Legal Technician.

3. The agency’s reliance on 5 U.S.C.  9902 and 5C.F.R.  9901.512 and 9901.516 in imposing a probationary period are inapposite. As originally enacted,  9902 allowed the agency to waive the adverse action provisions (chapter 75) of Title 5 of the United States Code. But Congress amended  9902 prior to the appellant’s appointment, and the agency may no longer waive chapter 75. As a result of this amendment, the regulations in Part 9901 also became invalid prior to the appellant’s appointment. Her rights are therefore governed by Title 5 and government-wide regulations.

4. Under 5 C.F.R.  315.801(a)(2), the first year of service is a probationary period when an employee is reinstated, “unless during any period of service which affords a current basis for reinstatement, the employee completed a probationary period or served with competitive status under an appointment which did not require a probationary period.” It is unclear from the present record whether the appellant’s 2008 appointment met the criteria of this provision, thereby meeting the definition of “employee” under 5 U.S.C.  7511(a)(1)(A)(i). A remand is therefore necessary.

COURT DECISIONS

Petitioner: Kyle S. Fellhoelter

Respondent: Department of Agriculture

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2008-3244

Issuance Date: June 15, 2009

Whistleblower Protection Act
- Clear and Convincing Evidence

The petitioner sought review of a Board decision affirming his removal from a supervisory position in Knoxville, Tennessee. The agency closed the Knoxville office, offering many of the employees, including Fellhoelter, reassignment to its Louisville office. Fellhoelter declined the reassignment and was removed. On appeal to the Board, he asserted that the agency closed the Knoxville office in retaliation for his having made whistleblowing disclosures. The AJ reversed the normal order of proof in whistleblowing cases by holding a hearing on the agency’s affirmative defense that the Knoxville office would have been closed (and Mr. Fellhoelter reassigned) in the absence of any protected disclosures. At the conclusion of the hearing, the AJ found that the Knoxville office would have been closed regardless of Fellhoelter’s whistleblowing activity and upheld the removal action.

On appeal to the court, Fellhoelter’s primary contention was that the record for decision was incomplete because the AJ erroneously precluded the admission of evidence pertaining to his supervisor’s motive to retaliate against him because of his protected disclosures.

Holdings: The court affirmed the Board’s decision:

1. If an employee makes out a prima facie case under the WPA by establishing that he made a protected disclosure and that the disclosure was a contributing factor in an adverse action against him, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.

2. The court has tacitly approved of the Board’s practice, in appropriate cases, of first addressing the agency’s affirmative defense and then, if necessary, turning to the question whether the petitioner has made out a prima facie whistleblower claim.

3. In determining whether the agency would have taken the same personnel action in the absence of the protected disclosure, the Board considers 3 factors, one of which is the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision. The appellant contended that, by excluding evidence relevant to his prima facie case, the AJ prevented him from establishing that his supervisors had a strong motive to retaliate.

4. An AJ is not free to disregard evidence relevant to a material issue merely because it is also relevant to a separate issue that is not contested at the hearing. But Fellhoelter has not identified any evidence that was excluded solely on the ground that it related to the reasonableness of his belief that he had made whistleblowing disclosures. The court concluded that the AJ exercised sound discretion by excluding evidence on the grounds that it was nonprobative, cumulative, or likely to unduly delay the proceedings.