United States Merit Systems Protection Board

Case Report for July 10, 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: Hugh E. Lee, Jr.

Agency: United States Postal Service

Decision Number: 2009 MSPB 121

Docket Number: AT-0752-09-0156-I-1

Issuance Date: June 26, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Settlement – Waiver of Rights

The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged constructive suspension for lack of jurisdiction. The agency moved to dismiss the appeal as settled by an agreement, reached after the issuance of the initial decision, that resolved the appellant’s equal employment opportunity (EEO) complaint. That settlement agreement released the agency “from all claims of any nature ever arising from [the appellant’s] employment with the Postal Service up to an including the date of full execution of this agreement.” The appellant does not dispute the validity of the March 2009 agreement; he instead contends that it “has nothing to do with [his] MSPB appeal.”

Holdings: By its terms, the settlement agreement applies to the appellant’s December 2008 Board appeal, and constitutes a waiver of his right to appeal his alleged November 2008 constructive suspension to the Board. That the appellant and/or his representative may have made a unilateral mistake as to the scope of the settlement agreement does not provide a basis for not applying it in this case. Accordingly, the Board dismissed the appeal as settled.

Appellant: Julius L. Phillips

Agency: Department of the Navy

Decision Number: 2009 MSPB 122

Docket Number: DC-3443-08-0249-B-1

Issuance Date: June 30, 2009

USERRA/VEOA/Veterans’ Rights
Compliance

Both parties petitioned for review of a remand initial decision in this VEOA appeal that granted in part the appellant’s request for corrective action. The appellant, a GS‑6 police officer, alleged that his veterans’ preference rights were violated in connection with his non-selection for GS-7 and GS-8 police officer positions. In its previous decision, 2008 MSPB 235, 110 M.S.P.R. 184, the Board concluded that the agency violated the appellant’s veterans’ preference rights and directed the administrative judge (AJ) to order the agency to reconstruct the selection process for the GS-7 positions, and remanded for further adjudication regarding the GS-8 positions. On remand, the AJ ordered the agency to reconstruct the selection process for the GS-7 positions, and denied the appellant’s request for corrective action with respect to the GS‑8 positions.

Holdings: The Board denied both parties’ petitions for review. It noted, however, that the appellant raised questions about the agency’s reconstruction process for the GS-7 positions. He complained, among other things, that the agency’s reconstructed internal certificates showing that he was not selected for either of the positions were dated 8 days before his interview date. The Board also noted that it was unclear whether the individuals hired were removed as selectees from their respective positions during the reconstructed selection process. Because questions such as these are properly first addressed by the AJ, the Board forwarded the matter to the regional office for docketing as a compliance proceeding.

Appellant: John Yeressian

Agency: Department of the Army

Decision Number: 2009 MSPB 123

Docket Number: SF-0752-09-0049-I-1

Issuance Date: July 2, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction – “Employee”

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. In 2005, the appellant was appointed to an excepted service position in the Student Career Experience Program (SCEP). After serving more than 2 years in this position, he accepted a new SCEP excepted service appointment. The agency terminated his employment about 6 months later for unsatisfactory performance. The AJ ruled that the appellant failed to establish that he is an “employee” within the meaning of 5 U.S.C.  7511(a)(1)(C), and therefore was not entitled to appeal the termination of his employment as an adverse action.

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

1. The Board affirmed the AJ’s findings that the appellant did not meet the definition of “employee” under either  7511(a)(1)(C)(i) or  7511(a)(1)(C)(ii) with respect to his second SCEP appointment.

2. Nevertheless, the appellant had completed 2 years of continuous service in his first SCEP appointment, thereby acquiring adverse action appeal rights in that position. When an employee moves between positions within the same agency, and forfeits his appeal rights as a result of accepting the new appointment, the agency must inform the employee of the effect the move will have on his appeal rights. If the agency fails to do so, and if the appellant would not have accepted the new position had he been properly informed, the appellant retains the appeal rights he possessed prior to accepting the new position.

3. It is undisputed that the agency failed to inform the appellant that his acceptance of the second SCEP appointment would result in the loss of his appeal rights. There is no evidence, however, whether the appellant would have accepted the second SCEP appointment had he been properly informed. A remand is therefore necessary.

Appellant: James Brewer

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 124

Docket Number: PH-3330-08-0514-I-1

Issuance Date: July 2, 2009

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veterans’ Preference Rights

The appellant petitioned for review of an initial decision that dismissed his VEOA appeal for lack of jurisdiction. The agency posted a vacancy announcement for the position of Patient Representative, both under its Delegated Examining Unit (DEU) authority, and under merit promotion procedures. The latter vacancy announcement was limited to “Agency Employees Only.” The appellant applied under the DEU vacancy announcement only. The agency made its selection from the merit promotion certificate.

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion to correct an error of law in the initial decision. It nevertheless dismissed the appeal for lack of jurisdiction.

1. The AJ dismissed the appeal for lack of jurisdiction solely on the basis that the appellant was not a preference eligible under 5 U.S.C.  2108(3). Preference eligible status is not the only basis for jurisdiction under 5U.S.C.  3330a(a)(1)(B) and 3304(f)(1). The latter provision applies to “veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service,” as well as to preference eligibles.

2. Nevertheless, based on the undisputed record, the appellant cannot meet his jurisdictional burden of showing that the agency denied him the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce in violation of 5 U.S.C.   3304(f)(1). The agency did not accept applications from individuals outside its own workforce for the merit promotion vacancy.

Appellant: Laura R. Boltz

Agency: Social Security Administration

Decision Number: 2009 MSPB 125

Docket Number: DE-0752-08-0436-I-1

Issuance Date: July 9, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Falsification/Fraud

Both parties petitioned for review of an initial decision that sustained the agency’s charge of inappropriate behavior, but mitigated the appellant’s removal to a letter of warning. The agency charged that, while serving as a Special Assistant U.S. Attorney, the appellant engaged in inappropriate behavior by making 3 false statements to a U.S. District Court to explain her need for an extension of time for a filing in an assigned case. The AJ determined that, although the agency used the term “false” in its account of the appellant’s misconduct, it was not required to prove the elements of a falsification charge because it used the general charge of inappropriate behavior. The AJ found that the agency proved this charge by proving that 2 of the 3 statements in question were unintentionally inaccurate. After further finding that the appellant failed to prove her affirmative defenses, the AJ determined that the maximum reasonable penalty was a letter of warning.

Holdings: The Board denied both parties’ petitions for review, but reopened the case on its own motion to find that the agency did not prove its charge. It therefore ordered the agency to cancel the removal action and reinstate the appellant to her former position with back pay and benefits.

1. A charge of falsification requires proof that an employee knowingly provided wrong information with the intention of defrauding, deceiving, or misleading an agency. The generic charge of “inappropriate behavior” does not require proof of intent.

2. Where, as here, an agency has employed a generic label for a charge, the Board must look to the specifications, and to the structure and language of the proposal and decision notices, to determine how a charge should be construed and what elements require proof. Here, the Board concluded that the agency had charged the appellant with making knowingly false statements and was required to prove specific intent.

3. The AJ has fully adjudicated this issue, finding that the appellant did not knowingly make false statements. Accordingly, the charge was not proved and the removal action cannot be sustained.

Appellant: Bryan D. Baldwin

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 126

Docket Number: CH-0752-08-0238-B-1

Issuance Date: July 9, 2009

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Resignation/Retirement/Separation

The appellant petitioned for review of a remand initial decision that dismissed his alleged involuntary resignation appeal for lack of jurisdiction. At issue was whether the appellant’s separation was involuntary because of agency misinformation. The agency issued a decision notice informing the appellant that he would be removed from his position for misconduct. After receiving this notice, the appellant met with agency officials and advised that he wished to retire from the agency and wanted to discuss the retirement options available to him. Two options were discussed and the appellant expressed his preference for one of them, a deferred retirement annuity. The agency prepared a Request for Personnel Action (SF-52) that contained the word “Retirement” in the “Nature of Action” box. The appellant then wrote “Constructive discharge” in the box titled “Reasons for Resignation/Retirement” and signed the form. The agency subsequently revised the SF‑52 to indicate that the nature of the action was a resignation rather than a retirement, and this document was approved by agency officials 4 days after the appellant’s separation became effective.

In the original Board proceeding, the AJ dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that his separation was involuntary. In a published decision, 2008 MSPB 169, 109 M.S.P.R. 392, the Board found that, by typing the word “Retirement” on the SF-52, the agency may have misled the appellant into believing that his separation was a retirement rather than a resignation. The Board remanded the case for a determination of whether the appellant’s resignation was the result of agency-supplied misinformation. Specifically, the AJ was to determine if the agency communicated to the appellant that he would have to resign in order to receive the deferred retirement annuity he wanted. In her remand initial decision, the AJ determined that the agency did not mislead the appellant into resigning and again dismissed the appeal for lack of jurisdiction.

Holdings: The Board reversed the remand initial decision and ordered the agency to reinstate the appellant to his former position:

1. The Board reversed the AJ’s factual determinations, finding that the appellant’s separation by resignation resulted from agency misinformation and was involuntary. Specifically, the Board found that “to the extent that the appellant ‘decided’ to resign by electing a postponed retirement annuity, which required that the appellant’s separation be recorded as a resignation, that decision was involuntary because it was made ‘with blinders on,’ that is, without adequate information that the agency should have given him.”

2. When an appellant prevails in an adverse action appeal, the Board normally issues a final order directing the agency to cancel the appellant’s separation and reinstate him to the status quo ante, i.e., to restore him to his former position with appropriate back pay and benefits retroactive to the date of separation. Here, however, even in the absence of the agency’s misinformation, the appellant likely would have been separated by the agency’s decided removal action. For that reason, the Board ordered the agency to cancel the appellant’s resignation and restore him retroactive to the date of separation, but further ordered the agency “to take such action as is necessary to ensure that the appellant’s retirement annuity is adjusted in accordance with whatever retirement annuity he elects, if any.”

Appellant: Edmond R. Rivera

Agency: Social Security Administration

Decision Number: 2009 MSPB 127

Docket Number: CH-0752-09-0029-I-1

Issuance Date: July 9, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal of a suspension for lack of jurisdiction. The decision informed the appellant that it would become the Board’s final decision on February 16, 2009, unless a petition for review was filed with the Board by that date. The appellant filed his petition on February 22. The appellant asserted that he did not receive the initial decision until February 20, and that he was unable to timely file his petition due to an ice storm that caused his electricity to be out from February 3 to February 20.

Holdings: The Board dismissed the PFR as untimely filed without good cause shown for the delay:

1. The Board rejected the appellant’s contention that he did not receive the initial decision until February 20. As an e-filer subject to 5 C.F.R.  1201.14, the appellant agreed to accept documents through electronic service, and he was required to monitor his case activity at the Repository at e‑Appeal Online. That regulation also provides that Board documents served electronically are deemed received on the date of electronic issuance. Accordingly, the appellant is deemed to have received the initial decision on the date of issuance, January 12, 2009.

2. The appellant failed to establish good cause for his failure to timely file or seek an extension of time. He had 21 days, from January 13 through February 2, to review the initial decision prior to the asserted ice storm. During the period February 3-17, he could have hand written and filed a petition for review or sought an extension of time.

Appellant: Robert Neil Slater

Agency: United States Postal Service

Decision Number: 2009 MSPB 128

Docket Number: AT-3330-08-0853-I-1

Issuance Date: July 9, 2009

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veterans’ Rights
Jurisdiction

The appellant petitioned for review of an initial decision that dismissed his VEOA appeal for lack of jurisdiction. The appellant complained of his non-selection for promotion. The agency responded with unrebutted evidence that the vacancy was filled using internal noncompetitive merit promotion procedures. The AJ dismissed the appeal for lack of jurisdiction based on her determination that the appellant failed to nonfrivolously alleged that the agency violated his rights under a statute or regulation relating to veterans’ preference-eligible.

Holdings: The Board reversed the initial decision’s finding that the Board lacks jurisdiction over this case and denied the appellant’s request for corrective action on the merits:

1. The appellant established jurisdiction over his VEOA appeal, as he showed that he exhausted his remedy with the Department of Labor, and made nonfrivolous allegations that he is a preference eligible, that the action took place after the effective date of the law, and that the agency violated his rights under a statute or regulation relating to veterans’ preference. Regarding the final jurisdictional requirement, an appellant need not state a claim upon which relief can be granted.

2. As a matter of law, the agency did not violate the appellant’s veterans’ preference rights, in that veterans’ preference does not apply when an employee seeks a promotion under an announcement limited to internal candidates, and the appellant has not disputed that the vacancy in question was so limited.

Appellant: Yolanda C. Gibson-Michaels

Agency: Federal Deposit Insurance Corporation

Decision Number: 2009 MSPB 129

Docket Number: DC-0731-09-0064-I-1

Issuance Date: July 9, 2009

Timeliness – PFA
Board Procedures/Authorities
- Reopening and Reconsideration
- Withdrawal of Appeal
Defenses and Miscellaneous Claims
- Res Judicata

The appellant petitioned for review of an initial decision that dismissed her appeal as barred by res judicata (claim preclusion). In March 2006, the appellant was removed from her position as an Information Specialist. She filed a timely appeal of that action to the Board, but pursuant to her written request, the AJ dismissed the appeal as withdrawn in July 2006. The appellant filed a new appeal in October 2008, again challenging her 2006 removal. The AJ dismissed the new appeal as barred by res judicata based on the appellant’s withdrawal of her prior removal appeal.

Holdings: The Board dismissed the appeal as untimely filed without good cause shown:

1. Where an appellant has filed a second appeal after withdrawing her first one, it is generally appropriate to consider the second appeal as a new, late-filed appeal and to determine whether good cause exists for the filing delay. Here, the appellant has not established good cause for her more than 2-year delay in filing.

2. The appellant has not established a basis for reopening or reinstating her previously dismissed appeal.