United States Merit Systems Protection Board

Case Report for August 14, 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: Linda D. Edwards

Agency: Department of Transportation

Decision Number: 2009 MSPB 148

Docket Number: SF-0752-08-0062-E-1

Issuance Date: August 3, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Discrimination
- Physical/Mental Disability - Accommodation

The EEOC referred this case to the Board for further consideration because it disagreed with the Board’s final order in this appeal. The Board’s final order reversed the agency’s removal action, but did not address her discrimination claims, which had not been raised in her petition for review. The Board stated in its final order that it was unable to award the appellant back pay because FAA employees are not covered by the Back Pay Act. On review, the EEOC found that the agency violated the Rehabilitation Act, in that it denied the appellant’s request for accommodation based on her “record of” disability.

Holdings: The Board concurred in and adopted the EEOC’s finding that the agency discriminated against the appellant on the basis of disability, and ordered the agency to provide her back pay under the Rehabilitation Act:

1. Under Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471 (Spec. Pan. 1986), the Board may not require Special Panel review of an EEOC decision merely because the Board disagrees on discrimination law, unless the EEOC decision depends upon civil service law for its support or is so unreasonable that it amounts to a violation of civil service law.

2. Here, the EEOC decision rests solely upon an interpretation of discrimination law. Accordingly, the Board found no proper basis on which to conclude that the EEOC decision is so unreasonable that it amounts to a violation of civil service law. Accordingly, the Board concurred in and adopted the EEOC’s finding that the agency discriminated against the appellant on the basis of disability.

3. Although the Board lacks authority to award back pay under the Back Pay Act, an award of back pay is authorized by the Rehabilitation Act.

4. The appellant may be entitled to compensatory damages, and the Board forwarded the appeal to the regional office for adjudication of that matter.

Appellant: George Bruton

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 149

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

Issuance Date: August 4, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance
- Dismissal on Proof

In a previous Opinion and Order, 2009 MSPB 110, the Board found that the agency failed to show that it was in compliance with a final Board order that required that the appellant be reinstated with back pay and other benefits.

Holdings: Based on the agency’s additional submissions since the previous Opinion and Order, the Board found that the agency is now in compliance with the final decision and therefore dismissed the petition for enforcement as moot:

1. The agency has submitted evidence showing that it properly canceled the removal action.

2. The agency has submitted evidence showing that it restored the appellant to his position of record and that there is a compelling reason for assigning him different duties after his reinstatement.

3. The agency has submitted evidence that it has provided the appellant with appropriate back pay and benefits.

Appellant: John H. Nahoney

Agency: United States Postal Service

Decision Number: 2009 MSPB 150

Docket Number: AT-0752-09-0330-I-1

Issuance Date: August 4, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFA
USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that dismissed his appeal of a removal action as untimely filed without good cause shown for the delay. The appellant withdrew a previous appeal of the removal action so that he could challenge the removal through arbitration. After the arbitrator denied his grievance, he filed this appeal. On the appeal form he indicated that he wanted to file a veterans’ preference claim under VEOA. In dismissing the appeal as untimely, the administrative judge (AJ) did not address the appellant’s VEOA claim.

Holdings: To the extent that the appellant is appealing his removal as an adverse action under 5 U.S.C. chapter 75, the Board dismissed the appeal as untimely filed, but the Board remanded the appeal to the regional office for further adjudication under VEOA and USERRA:

1. When an appellant files a second appeal after withdrawing his first one, it is generally appropriate to consider the second appeal as a new, late-filed appeal and to determine whether good cause has been established for waiving the filing deadline. Here, the appellant failed to show good cause for the substantial delay in filing. His election to pursue his grievance through negotiated grievance procedures does not constitute good cause, and he does not have the right to request that the Board review the final grievance decision.

2. The appellant has not established a basis for reopening or reinstating his first removal appeal.

3. A remand is required to address the appellant’s claims under VEOA and USERRA.

a. When an appellant raises VEOA or USERRA as an affirmative defense in an appeal of an adverse action that is either untimely or not within the Board’s jurisdiction, the Board considers the appellant’s VEOA or USERRA allegations as separate claims.

b. The AJ should have provided the appellant with adequate notice of what is required to establish the timeliness of and the Board’s jurisdiction over his allegation that the agency violated veterans’ preference laws as a ”stand-alone” claim.

c. The appellant may be attempting to raise a USERRA claim rather than a VEOA claim.

Appellant: Stephen W. Gingery

Agency: Department of Defense

Decision Number: 2009 MSPB 151

Docket Number: CH-3443-06-0582-M-1

Issuance Date: August 4, 2009

USERRA/VEOA/Veterans’ Rights

This case was before the Board on remand from a decision by the Federal Circuit, 550 F.3d 1347, which reversed the Board’s previous decision, 105 M.S.P.R. 671. In its previous decision, the Board held that the agency did not violate the appellant’s veterans’ preference rights when it hired 2 non-preference eligible individuals for excepted service vacancies under the Federal Career Intern Program and did not hire him. In so ruling, the Board relied on OPM’s regulation at 5 C.F.R.  302.401, which provides that, when an agency passes over a preference eligible and selects a non-preference eligible in the excepted service, it need only record its reasons for doing so and furnish a copy of those reasons to the preference eligible on request, requirements that are much less stringent than the pass-over provisions that apply to competitive service selections under 5 U.S.C.  3318(b)(1). The court held that appointments to the excepted service must comply with the pass-over requirements of  3318(b)(1), because  3320 provides that selections in the excepted service shall be conducted “in the same manner and under the same conditions required for the competitive service by [5 U.S.C. ] 3308-3318.”

Holdings: On remand from the court’s decision, the Board found that the agency had violated the appellant’s rights as a preference eligible by failing to comply with the requirements of 5 U.S.C.  3318, but remanded the appeal to the regional office to determine whether the agency violated the appellant’s rights in placing positions for which he applied in the excepted service. Because appointment to a competitive service position could be regarded as more desirable than appointment to the same position in the excepted service, the Board found that it was necessary to address the issue raised in Judge Newman’s concurring opinion for the court: whether it was improper to hire auditors in the excepted service under the Federal Career Internship Program.

Appellant: Ralph R. Heidel

Agency: United States Postal Service

Decision Number: 2009 MSPB 152

Docket Number: SL-0353-93-0390-X-2

Issuance Date: August 5, 2009

Appeal Type: Restoration to Duty

Compliance

This case was before the Board based on the AJ’s Recommendation finding that the agency was not in compliance with a final decision. In two decisions issued in 1996 and 1998, the Board ordered the agency to restore the appellant to a position equivalent to the mail handler position he had performed prior to his military service, from which he had been discharged for “physical disability.” Suitable employment was arranged in 1998, but in November 2008, the agency informed the appellant of changes in his working conditions, which prompted the current petition for enforcement. The AJ found that, while the agency had a bona fide business reason for changing the appellant’s tour of duty, the agency failed to establish that it remained in compliance with the Board’s previous Opinions and Orders to assign the appellant to a position “for which he is qualified.”

In response to the AJ’s Recommendation, the appellant’s supervisor issued the appellant a new letter that set forth the appellant’s medical restrictions, articulated specific tasks that the appellant was not to perform, directed that the appellant was not to violate the medical restrictions under any circumstances, and stated that if a task exceeded the appellant’s restrictions he was to ask for help. The appellant objected that it was improper for the agency to assign him the responsibility not to violate his medical restrictions because the agency was ordered to place him in a position for which he was qualified, and he is not able to determine whether a task violates his restrictions because he is not a medical expert.

Holdings: The Board found that the agency is now in compliance with the final decision and dismissed the petition for enforcement as moot:

1. The appellant is not entitled to the position of his choice; to be in compliance with the Board’s final order, the agency need only assign him to a position for which he is qualified. The agency has restructured the appellant’s current position by instructing him not to perform the duties normally associated with the position that exceed his medical restrictions. Thus, the appellant has been assigned duties that are within his medical restrictions and, therefore, a position for which he is qualified.

2. The Board was not persuaded by the appellant’s contention that his is unable to determine whether a task violates his restrictions because he is not a medical expert. The appellant’s medical restrictions are such that they do not require medical expertise to understand.

Appellant: Patrick W. Dooley

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 153

Docket Number: DA-0752-08-0126-M-1

Issuance Date: August 6, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Defenses and Miscellaneous Claims
- Res Judicata
Jurisdiction – “Employee”

This appeal was before the Board on remand from a decision by the U.S. Court of Appeals for the Federal Circuit, 306 F. App’x. 594, which vacated and remanded the Board’s decision that dismissed the appellant’s claim that the agency violated his First Amendment rights on the basis of res judicata. This is the third appeal in which the appellant has challenged the agency’s 1991 termination of a temporary appointment. In the first, an IRA appeal, the Board rejected the appellant’s claim that his termination was taken in retaliation for whistleblowing activity. A second IRA appeal was dismissed under the doctrine of res judicata. In the current appeal, the appellant claimed that his termination violated his First Amendment rights. The AJ dismissed the appeal under the doctrine of res judicata, reasoning that no new issues were raised that were not included, or that could not have been included, in his prior appeals to the Board. The court found that the application of res judicata was inapt because the Board lacks jurisdiction under the Whistleblower Protection Act to consider First Amendment claims. The court further found that, because the appellant was appointed to a temporary position, he was not an “employee” for purposes of 5 U.S.C.  7701(a), and that the Board therefore lacks jurisdiction to hear any appeal concerning the appellant’s termination, other than an IRA whistleblower claim.

Holdings: On remand, the Board dismissed the appeal for lack of jurisdiction, on the basis that, because the appellant was a temporary appointee whose service, although greater than 1 year, was under temporary appointments limited to 1 year or less, he was not an employee within the meaning of 5 U.S.C.  7511(a)(1).

Appellant: Albertha Carey

Agency: Department of Health and Human Services

Decision Number: 2009 MSPB 154

Docket Number: AT-0752-09-0009-I-1

Issuance Date: August 6, 2009

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Retirement

The appellant petitioned for review of an initial decision that dismissed her alleged involuntary retirement appeal for lack of jurisdiction. The appellant submitted an affidavit in which she alleged that her retirement was involuntary because the agency denied her request for an accommodation (telecommuting) that, according to her doctors, would have permitted her to continue to work despite her allergies, vertigo, and chemical sensitivity. Without conducting a hearing, the AJ dismissed the appeal for lack of jurisdiction.

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. An employee-initiated action, such as a resignation or retirement, is presumed to be voluntary, and thus outside the Board’s jurisdiction. An involuntary retirement, however, is equivalent to a forced removal and therefore within the Board’s jurisdiction.

2. To overcome the presumption that a retirement is voluntary, the employee must show that it was the result of the agency’s misinformation, deception, or coercion. If the employee claims that her retirement was coerced by the agency’s creating intolerable working conditions, she must show that a reasonable employee in her position would have found the working conditions so oppressive that she would have felt compelled to retire.

3. Once the appellant presents nonfrivolous allegations of Board jurisdiction, i.e., allegations of fact which, if proven, would establish the Board’s jurisdiction, she is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence.

4. The appellant’s affidavit contained nonfrivolous allegations that her retirement was involuntary. She is therefore entitled to a hearing.

Appellant: Ryan C. Spencer

Agency: United States Postal Service

Decision Number: 2009 MSPB 155

Docket Number: AT-0752-09-0193-I-1

Issuance Date: August 7, 2009

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Penalty

The appellant petitioned for review of an initial decision that sustained several misconduct charges against him, but changed the agency’s penalty of a reduction in grade/pay to a 30-day suspension.

Holdings: The Board granted the appellant’s petition for review and remanded the appeal for consideration of the appellant’s argument that a 30-day suspension was not a “mitigation” of the agency-imposed penalty. The appellant asserts that the demotion would result in a pay reduction of only $1,100 per year, whereas the 30-day suspension would result in an immediate pay reduction of $6,500.

Appellant: John M. Taber

Agency: Department of the Air Force

Decision Number: 2009 MSPB 156

Docket Number: DA-0752-09-0131-I-1

Issuance Date: August 7, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
- Resignation/Retirement

The appellant petitioned for review of an initial decision that sustained his removal. The appellant retired after the agency notified him of its decision to remove him for inability to perform the essential functions of his position. The appellant was scheduled to be removed effective October 29, 2009; the effective date of his retirement was November 3, 2008. Two events occurred on November 24, 2008: the appellant filed an appeal with the Board alleging that his separation was involuntary, and the agency notified the appellant that it was cancelling its Notice of Decision to Separate “[i]nasmuch as [he had] been approved for Voluntary Retirement.” While the appeal was pending below, the agency repeatedly urged that the appeal be dismissed for lack of jurisdiction because of its cancellation of the decision notice. The AJ found, however, that the agency’s cancellation of the removal decision did not affect the Board’s jurisdiction because “the record contains no evidence that the action was actually rescinded before the appellant filed his appeal with the Board.” She sustained the removal action without reaching the issue of whether the appellant’s retirement was involuntary.

Holdings: The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction:

1. Under 5 U.S.C.  7701(j), “an individual’s status under any retirement system . . . may [not] be taken into account” in “determining the appealability” of a removal. The Board and its reviewing court have interpreted this to mean that, even when an employee retires on the scheduled date of his removal, the Board retains jurisdiction over the employee’s removal appeal. Accordingly, the appellant’s retirement after receiving a notice of decision to remove him does not deprive the Board of jurisdiction to adjudicate an appeal of his removal.

2. If an agency cancels or rescinds an action before the employee files an appeal of that action, the Board lacks jurisdiction over the appeal. The AJ erred in finding that there was no evidence that the removal action was rescinded before the appellant filed his appeal. The record indicates that the agency rescinded the Decision to Separate during regular business hours on November 24. The appellant’s electronic appeal was not filed until 10:29 p.m. the same date.

3. While the agency’s cancellation of its decision to remove the appellant precludes a finding of jurisdiction over the appellant’s appeal of the agency’s decision to remove him, it does not preclude a finding of jurisdiction over the appellant’s constructive removal appeal, i.e., his claim that his retirement was involuntary.

4. Where, as here, an appellant’s involuntariness claim is based solely on his objections to the agency’s finding that he was unable to perform the duties of his job, to its decision to remove him for that reason, and to its failure to accommodate his medical conditions, his retirement will not found to be involuntary if the agency is able to show that it properly decided to remove the appellant based on physical inability to perform.

5. The Board found no error in the AJ’s determination that the agency properly decided to remove the appellant based on his physical inability to perform.

Appellant: Eric A. Burton

Agency: United States Postal Service

Decision Number: 2009 MSPB 157

Docket Number: CH-0752-08-0679-I-1

Issuance Date: August 7, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Discrimination
- Race/Sex/Disability
- Burden of Proof/Prima Facie Case

The appellant petitioned for review of an initial decision that sustained his removal. The agency removed the appellant for 6 specifications of unauthorized removal of mail for personal use. Subsequent to his removal, the appellant pleaded guilty to 1 count of knowingly removing items from the mail with the intent to convert them to his own use, in violation of 18 U.S.C.  1709. After filing a formal EEO complaint and receiving a final agency decision finding no discrimination, the appellant filed his appeal with the Board. He did not challenge the merits of the charge against him, but claimed that the agency treated him more harshly than other employees, that it failed to accommodate his alcoholism and drug addiction, that the removal penalty was unreasonable, and that the agency discriminated against him. The AJ sustained the charge, found that the appellant failed to prove any of his affirmative defenses, and that the removal penalty was reasonable.

Holdings: The Board granted the appellant’s PFR to address issues he raised regarding the disposition of his discrimination claims, and affirmed the initial decision as modified, still sustaining the appellant’s removal:

1. The appellant failed to prove his claims of race and sex discrimination.

a. In addressing the appellant’s discrimination claims, the AJ noted that the agency had issued a final decision finding that the discrimination claims were unsubstantiated, and that, even if the appellant had established a prima facie case of discrimination, the agency had articulated a legitimate, nondiscriminatory reason for the removal action. An appellant is entitled to a de novo review of his discrimination claims in a Board appeal, regardless of whether his agency has found those claims unsubstantiated. Moreover, an agency’s articulation of a legitimate, nondiscriminatory reason for its personnel action does not end the analysis. The AJ erred in failing to address the evidence and argument the appellant provided in support of his claim.

b. When the record is complete and the agency has articulated a nondiscriminatory reason for its action, the issue of whether the appellant has made out a prima facie case of discrimination is no longer relevant, and the inquiry proceeds directly to the ultimate question of whether the agency discriminated against the appellant. Thus, the question to be resolved is whether the appellant has produced sufficient evidence to show that the agency’s proffered reason was not the actual reason and that the agency intentionally discriminated against him. Here, the appellant failed to do so; none of the 6 comparison employees were similarly situated.

2. The appellant failed to prove his claim of disability discrimination.

a. To establish the affirmative defense of disability discrimination, an appellant must first prove that he suffers from a disability and that it caused his misconduct or that the misconduct was entirely a manifestation of his disability. Even assuming that the appellant established that he was addicted to alcohol or drugs, and that his addiction caused his personality to change, and this in turn led him to engage in misconduct, he failed to establish that his misconduct was caused by, or entirely a manifestation of, his addiction.

b. Neither the Rehabilitation Act nor the Americans with Disabilities Act immunizes disabled employees from being disciplined for misconduct, provided the agency would impose the same discipline on an employee without a disability. As with the claims of race and sex discrimination, the appellant has not shown that comparison employees were similarly situated.

Appellant: Blue N. Youngblood

Agency: United States Postal Service

Decision Number: 2009 MSPB 158

Docket Number: AT-0353-06-0266-I-2

Issuance Date: August 10, 2009

Timeliness – PFR

The appellant petitioned for review of an initial decision that denied his requests for corrective action under USERRA. The petition for review was filed more than 2 years after the deadline for timely filing.

Holdings: The Board dismissed the petition for review as untimely filed without good cause shown for the delay. The Board rejected the appellant’s argument that the petition was based on new evidence acquired after the initial decision was issued, finding that he failed to show that he exercised due diligence in acquiring the information at issue. The Board also declined the appellant’s request to reopen the appeal, noting that it will not normally reopen an appeal to cure an untimely petition for review.

Appellant: Alvern C. Weed

Agency: Social Security Administration

Decision Number: 2009 MSPB 159

Docket Number: DE-3330-08-0490-I-1
      DE-4324-09-0086-I-1

Issuance Date: August 10, 2009

Appeal Type: Veterans Employment Opportunities Act;
Uniformed Services Employment and Reemployment Rights Act

USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that dismissed his VEOA and USERRA appeals for lack of jurisdiction. In a previous decision, 107 M.S.P.R. 142 (2007), the Board held that the agency violated veterans’ preference rules when it made no selection from a competitive service vacancy announcement for 2 Claims Representative positions for which the appellant applied and instead selected 2 non-preference eligible applicants under the Outstanding Scholar Program. In the current appeal, the appellant asserted that, over a period of a little over 2 years, the agency filled vacancies for the same or comparable positions involved in the previous appeal under the noncompetitive authority of the Federal Career Intern Program (FCIP), without providing public notice of the vacancies or notice to him personally. The appellant alleged that the agency used the FCIP as an “intentional artifice” to exclude him from the opportunity to compete for the positions. The AJ dismissed both appeals for lack of jurisdiction, largely on the basis that the appellant did not apply for the positions in question. The appellant asserted on review that his failure to apply for the vacancies was due to the agency’s unlawful use of the FCIP to personally deny him public notice of the vacancies and thereby circumvent veterans’ preference laws.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, found that the Board has jurisdiction over both appeals, and remanded the appeals to the regional office for further adjudication:

1. The appellant established jurisdiction over his USERRA claim by alleging that he performed duty in a uniformed service, and that the agency denied him initial employment due to his uniformed service. Under the circumstances of this case, the fact that the appellant did not apply for the positions in question does not defeat his claim; his allegation that the agency deliberately used the FCIP as its method of hiring in order to avoid providing him with notice of the vacancies and his veterans’ preference rights constitutes a nonfrivolous allegation that the agency denied him initial employment based on his performance of duty in the uniformed services.

2. The appellant established jurisdiction over his VEOA claim by showing that he exhausted his remedy with the Department of Labor and by making nonfrivolous allegations that he is a preference eligible, the actions took place after enactment of VEOA, and that the agency violated his rights under a statute or regulation relating to veterans’ preference.

a. The appellant cited 5 U.S.C.  3318(b), which deals with pass-over requirements when an agency wants to hire a non-preference eligible instead of a preference eligible, as the statute the agency violated. Although the agency did not have occasion to request pass-over approval from OPM because the appellant’s name did not appear on any certificate used to fill the positions at issue, the appellant made a nonfrivolous allegation by asserting that the agency improperly used the FCIP to circumvent his veterans preference rights and challenging the agency’s authority to use the FCIP to fill these positions.

b. For the same reason as with the USERRA claim, the fact that the appellant did not apply for the positions in question does not deprive the Board of jurisdiction.

3. As to the merits of the VEOA claim, the appellant’s argument that the agency should not have been permitted to use the FCIP to circumvent his veterans’ preference rights directly implicates 5 U.S.C.  3302, specifically whether use of the FCIP meets the requirement of that section that exemptions from the competitive service be “necessary.” The Board has not squarely addressed the question whether  3302 qualifies as a statute relating to veterans’ preference. This issue must be addressed on remand. Also to be addressed is whether an agency other than OPM can identify positions for exemption from the competitive service.