United States Merit Systems Protection Board

Case Report for September 4, 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: Pamela R. Smith

Agency: Department of the Interior

Decision Number: 2009 MSPB 165

Docket Number: DC-0752-09-0135-I-1

Issuance Date: August 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Absence-Related
- Lack of Candor
- Notice of Charges
Defenses and Miscellaneous Claims
- Family and Medical Leave
Discrimination – Physical/Mental Disability
Penalty

The appellant petitioned for review of an initial decision that affirmed the agency’s removal action on charges of lack of candor, unauthorized absence, and failure to follow leave-request procedures. The administrative judge (AJ) found that the agency proved each of its charges, that the appellant failed to prove any of her affirmative defenses, and that the removal penalty was within the bounds of reasonableness.

Holdings: The Board affirmed the initial decision in part and reversed it in part, still affirming the appellant’s removal:

1. The AJ erred in sustaining the charge of failure to follow leave-request procedures.

a. Under 5 U.S.C.  7513(b)(1), an employee must receive advance written notice stating the specific reasons for the proposed adverse action.

b. The only date mentioned in the agency’s proposal notice was April 3, 2008. The AJ sustained the charge based on the appellant’s behavior on April 14-15. It was improper to consider behavior that was not included in the proposal notice.

2. The AJ properly sustained the charge of unauthorized absence on April 14, 2008. The record does not support the appellant’s assertion that her absence that date should have been excused under the Family and Medical Leave Act.

3. The AJ properly sustained the charge of lack of candor, which was based on the appellant’s purported reasons for absences on April 14-15. The undisputed evidence demonstrates that, moments after the appellant left a voicemail message for her supervisor stating that she was unable to report for duty, background laughter ensured, and the appellant admitted that she “came up with” excuses for her absences on both dates. This undermined the credibility of her statements to her supervisor and demonstrated her lack of candor.

4. The appellant failed to prove her affirmative defense of disability discrimination, as she failed to establish that either of her illnesses limited one or more of her major life activities or impaired her ability to perform either a class of jobs or a broad range of jobs, or that the agency perceived her as disabled.

5. The removal penalty was within the bounds of reasonableness for the sustained charges.

Appellant: Cyril L. Edwards

Agency: United States Postal Service

Decision Number: 2009 MSPB 166

Docket Number: NY-0752-08-0344-I-1

Issuance Date: August 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Jurisdiction – Suspensions
Constitutional Issues/Due Process

The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged suspension for lack of jurisdiction. At the time the appellant filed his appeal on August 21, 2008, the record reflects that he was in a non-pay, non-duty status from July 3 through July 10 (a period of 8 days), and from August 1 through August 7 (a period of 7 days), but that he had been paid for the intervening period. While the appeal was pending, the agency retroactively amended the appellant’s time and attendance records and, as a result, the appellant was placed on LWOP during the week of July 12-18, and on administrative leave for the week of August 2-8. Therefore, as of September 11, the appellant was in a non-duty, non-pay status for 16 consecutive days, from July 3 through July 18, 2008.

The AJ dismissed the appeal for lack of jurisdiction, finding that the appellant had not been suspended for more than 14 days at the time he filed his appeal.

Holdings: The Board vacated the initial decision, reversed the appellant’s suspension, and remanded the appeal for adjudication of the appellant’s affirmative defense of retaliation for protected EEO activity:

1. The appellant was subjected to an appealable suspension.

a. A suspension exceeding 14 days is an adverse action within the Board’s jurisdiction.

b. Generally, the Board’s jurisdiction is determined by the nature of an agency’s action at the time an appeal is filed with the Board. At the time he filed his appeal, the appellant had been suspended for a total of 15 days, but these occurred in two non-consecutive segments.

c. The Board has not recognized nonconsecutive suspensions for purposes of finding jurisdiction, but has left open the possibility that non-consecutive suspensions may be combined when they are based on the same reason and there is evidence that the agency attempted to circumvent Board jurisdiction by imposing multiple suspensions of 14 days or less. Here, the evidence does not establish that the agency separated the appellant’s absences in order to circumvent jurisdiction.

d. Despite the above, as a result of the agency’s retroactive action of September 11, the appellant was in a non-duty, non-pay status for 16 consecutive days, from July 3 through July 18.

e. Although the Board generally looks only at the nature of an action at the time an appeal is filed to determine jurisdiction, the appellant could not have been expected to file a second appeal challenging his suspensions while the first such appeal was still pending. Accordingly, the Board found that it acquired jurisdiction over the appeal on September 11.

f. The agency amended its personnel action a second time in October so that the appellant would not have been suspended for 15 or more consecutive days, but an agency’s unilateral modification of its adverse action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents or the agency completely rescinds the action being appealed. Neither of these exceptions apply.

5. Because the agency took its appealable action without giving the appellant notice of the reason(s) for the suspension and an opportunity to respond, it deprived him of the minimum due process to which he was entitled under the Constitution. The suspension must therefore be reversed.

6. The appeal must be remanded for adjudication of the appellant’s claim of retaliation for prior EEO activity.

Appellant: Andrew Clark

Agency: Department of the Air Force

Decision Number: 2009 MSPB 167

Docket Number: SF-0752-06-0817-X-1

Issuance Date: August 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Compliance

In a previous decision, 2009 MSPB 98, 111 M.S.P.R. 477, the Board found that the agency was not in compliance with its obligations under a final order, which mitigated his suspension and demotion to a 30-day suspension. Following that decision, the agency has submitted evidence of further compliance with its obligations.

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

1. The appellant is not entitled to an Exemplary Performance Award. The evidence shows that the agency has never provided such an award to an employee, such as the appellant, who has been found to have engaged in serious misconduct that went to the very core of his supervisory duties, during the period for which an award is being given.

2. The agency demonstrated compliance with all other aspects of its obligations that had been in question.

Appellant: Nia T. Harris

Agency: United States Postal Service

Decision Number: 2009 MSPB 168

Docket Number: CH-0752-09-0497-I-1

Issuance Date: August 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction

The appellant petitioned for review of an initial decision that dismissed her appeal as untimely filed. In a previous appeal, the appellant challenged her removal for violating the terms of a last‑chance agreement. That appeal was dismissed as untimely filed without good cause shown for the delay, and the initial decision became the Board’s final decision. In the current appeal, the appellant asserted that agency management and her union violated the collective bargaining agreement by denying her an arbitration hearing on her grievance. Although the agency moved to dismiss the appeal for lack of jurisdiction, the AJ dismissed the appeal as an untimely filed challenge to the removal action.

Holdings: The Board dismissed the appeal for lack of jurisdiction:

1. AJs lack the authority to reopen or reinstate appeals in which there has been a final Board decision; that authority is reserved to the Board. Therefore, even assuming the appellant had again appealed her removal, as the AJ determined she had, it was improper to adjudicate it.

2. An examination of the appeal and narrative shows that the appellant was raising a claim of breach of the union’s duty of fair representation or other claim regarding the operation of the grievance process under the collective bargaining agreement. It is well settled that the Board lacks jurisdiction over such claims.

Appellant: Georgene C. Small

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 169

Docket Number: DE-315I-08-0204-I-1

Issuance Date: August 28, 2009

Appeal Type: Termination of Supervisory Employee

Action Type: Probationary Termination

Timeliness – PFA
Board Procedures/Authorities
- Withdrawal of Appeal

In June 2009, the appellant petitioned for review of an April 2008 initial decision that dismissed her appeal as withdrawn.

Holdings: The Board dismissed the petition for review as an untimely filed appeal, and declined to reopen the appeal on its own motion:

1. An appellant’s withdrawal of her appeal is an act of finality that removes the appeal from the Board’s jurisdiction, and the Board will not reopen such an appeal absent unusual circumstances, such as misinformation or new and material evidence.

2. The Board has found it appropriate to consider a PFR of an appellant-initiated dismissal of an appeal as a late-filed appeal or as a request to reopen and reinstate the prior appeal. Considered as a late-filed appeal the Board dismissed as untimely without good cause shown for the delay. Even if the appellant’s withdrawal was based on misinformation, as she asserted, she waited almost 5 months after discovery to file her request to reinstate the appeal.

Appellant: Gilberto Mancha, Jr.

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 170

Docket Number: DA-0752-09-0263-I-1

Issuance Date: August 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
- “Employee”
- Probationary Employees

The appellant petitioned for review of an initial decision that dismissed his appeal of his termination from employment for lack of jurisdiction. The agency terminated the appellant’s appointment to an excepted service position during his probationary period based upon pre-appointment reasons. The appellant contended that the Board should have jurisdiction under 5 C.F.R.  315.806, because the agency terminated him for pre-appointment reasons but did not give him the procedural protections of 5 C.F.R.  315.805. He also asserted jurisdiction under 5 C.F.R.  9701.704(c). In dismissing the appeal for lack of jurisdiction, the AJ found that the appellant was not an “employee” under 5 U.S.C.  7511(a) with adverse action appeal rights, and that the appellant’s reliance on 5C.F.R.  315.806 and 9701.704(c) was misplaced because those regulations only pertain to probationary employees in the competitive service.

Holdings: The Board affirmed the initial decision as modified, still dismissing the appeal as modified. It affirmed the AJ’s findings described above, and further found that the appellant’s reliance on 5 C.F.R.  9701.704(c) is misplaced because that regulation was rescinded prior to his termination.

Appellant: Albert J. Palumbo, Jr.

Agency: Department of the Interior

Decision Number: 2009 MSPB 171

Docket Number: PH-4324-09-0188-I-1

Issuance Date: August 28, 2009

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that dismissed his USERRA appeal for lack of jurisdiction. The appellant stated that he is a disabled veteran who had been serving in an intermittent status under term appointments and that the agency failed to consider him for any career conditional appointments during his period of employment. He further asserted that he had applied for a particular career conditional position, that the agency improperly determined that he was ineligible, and that the agency discriminated against him by selecting a non-veteran for the position. The AJ dismissed the appeal for lack of jurisdiction, finding, inter alia, that the appellant was required to initially show by preponderant evidence that his military status was at least a motivating or substantial factor in the agency action.

Holdings: The Board reversed the initial decision and remanded the appeal for a hearing on the merits:

1. An allegation that an employer took or failed to take certain actions based on an individual’s military status or obligations constitutes a nonfrivolous allegation entitling the appellant to Board consideration of his claim. Further, evidence that the agency hired a non-veteran instead of the appellant also constitutes a nonfrivolous allegation of discrimination sufficient to establish USERRA jurisdiction.

2. Once an appellant has established jurisdiction over his USERRA appeal, he has an unconditional right to a Board hearing.

Appellant: Sherry L. Barrand

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 172

Docket Number: CH-315H-09-0408-I-1

Issuance Date: August 28, 2009

Action Type: Probationary Termination

Jurisdiction
- “Employee”
- Probationers

The appellant petitioned for review of an initial decision that dismissed her appeal of the termination of her employment for lack of jurisdiction. The record reflects that the appellant was a non-preference eligible employee who was terminated after 5 months in her initial probationary employment. The record also reflected that the appellant’s career-conditional appointment was to the excepted service position of Medical Instrument Technician under the agency’s 38 U.S.C.  7401(3) appointing authority. In dismissing the appeal for lack of jurisdiction, the AJ found that the appellant’s appointment under  7401(3) was made “without regard to civil service law,” and that “the appellant is not an ‘employee’ under chapter 75 with appeal rights to the Board because the agency hired her under Title 38.”

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

1. Although appointments under 38 U.S.C.  7405(a)(1) are made without regard to civil service law, individuals such as the appellant who are appointed under 38 U.S.C.  7401(3) are entitled to the same appeal rights as those appointed under title 5.

2. Nevertheless, the appellant fails to meet the definition of “employee” under 5 U.S.C.  7511.

3. The appellant cannot meet the requirements for jurisdiction as a probationer under 5 C.F.R.  315.806 because that regulation applies only to individual in the competitive service.

Appellant: Thomas O. Ward

Agency: United States Postal Service

Decision Number: 2009 MSPB 173

Docket Number: PH-0752-09-0126-I-1

Issuance Date: August 31, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty
– Prior Record
- Ex Parte Contacts/Due Process

The appellant petitioned for review of an initial decision that affirmed his removal on the ground that he improperly acted in a menacing and violent manner towards his supervisor. After a hearing, the AJ found that the agency proved its charge by preponderant evidence, that the appellant failed to prove his affirmative defenses, and that the removal penalty was within the bounds of reasonableness. At the hearing, the deciding official stated that, in speaking with different managers and supervisors, he became aware that “the same issue kept coming up again, and again, and again,” where the appellant engaged in “loud, intimidating behavior” and “unacceptable conduct.” He described 5 other alleged incidents in which the appellant engaged in loud, intimidating, threatening, and belligerent behavior. The AJ found that, although the appellant had not been formally disciplined for these incidents, “non-disciplinary counselings and letters of warning may be used as a basis for imposing an enhanced penalty.” The AJ considered that the deciding official learned of the prior incidents through ex parte communications, but found that they were not of the type that resulted in undue pressure on the deciding official to rule in a particular manner.

Holdings: The Board affirmed the initial decision as modified, still affirming the appellant’s removal:

1. The Board agreed with the AJ’s finding that the agency proved its charge by a preponderance of the evidence.

2. In considering the appellant’s alleged acts of prior misconduct in his penalty analysis, the AJ erred in two respects.

a. Because these matters were not mentioned in the notice of proposed removal, but rather were mentioned for the first time during the Board appeal, it was improper for the deciding official to consider them as aggravating factors in favor of an enhanced penalty.

b. Where ex parte communications between the deciding official and other agency officials relate not to the charge itself, but to the penalty, the Board has not considered such error to be denial of due process of law to be analyzed under Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999); rather, the Board will remedy the error by doing its own analysis of the penalty factors.

3. After reviewing the applicable Douglas factors, the Board determined that the removal penalty was within the bounds of reasonableness.

Appellant: Gail M. Nohr

Agency: United States Postal Service

Decision Number: 2009 MSPB 174

Docket Number: CH-3443-08-0772-I-1

Issuance Date: August 31, 2009

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. The petition was filed more than 3 months after the deadline for timely filing.

Holdings: The Board dismissed the PFR as untimely filed without good cause shown for the delay, finding that the appellant failed to show that her medical conditions were severe enough to have prevented her from timely filing.

Appellant: William Calvin Little

Agency: Department of Transportation

Decision Number: 2009 MSPB 175

Docket Number: AT-0752-08-0640-I-1

Issuance Date: August 31, 2009

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Board Procedures/Authorities
- Criteria for Board Review (Fact Findings)
Evidence – Credibility
Discrimination – Race
Penalty

The appellant petitioned for review of an initial decision that sustained the misconduct charges against him, determined that the appellant failed to prove his claim of race discrimination, and affirmed the demotion penalty. The charges were absence without leave (1 specification), conduct unbecoming a manager (7 specifications), and lack of candor in connection with an official inquiry (2 specifications). The AJ did not sustain 2 of the 7 specifications of the second charge.

Holdings: The Board affirmed the initial decision as modified, still upholding the demotion action:

1. After a detailed examination of the evidence, the Board determined that the AJ properly sustained all 3 charges. The Board found, however, that one of the specifications for the second charge, and one of the specifications for the third charge, could not be sustained.

2. The Board agreed that the appellant failed to prove his claim of race discrimination, finding that the appellant was not similarly situated to the comparison employee, in that the appellant was charged with additional misconduct, and that the two situations involved different proposing and deciding officials.

3. The Board found that the demotion penalty was within the bounds of reasonableness.

Appellant: James M. Norton

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 176

Docket Number: PH-0752-08-0442-I-1

Issuance Date: August 31, 2009

Interim Relief

The agency petitioned for review of an initial decision that ordered the agency to reverse its removal action. The decision to remove the appellant was not effected because the appellant retired effective on the same date that the removal was to become effective. Nevertheless, under 5 U.S.C.  7701(j), the Board retained jurisdiction over the removal action. The AJ reversed the action, finding that the agency failed to prove its charges. The AJ also ordered the agency to provide the appellant with interim relief, to include reinstatement and back pay, if the agency filed a petition for review.

The agency’s petition for review did not include a certification that it had provided the interim relief ordered by the AJ. The agency instead argued that the AJ erred in ordering interim relief because the appellant is receiving a retirement annuity and is therefore not suffering any undue hardship by waiting for the final order of the Board. The appellant moved to dismiss the petition on the ground that the agency had not complied with the interim relief order.

Holdings: The Board dismissed the agency’s petition for review for failure to comply with interim relief order:

1. Under 5 C.F.R.  1201.115(b)(4), an agency’s failure to provide the required certification of compliance with an interim relief order “may result in the dismissal of the agency’s petition or cross petition for review.”

2. It is well established that the purpose of the statutory interim relief provision is not to make the appellant whole at the interim relief stage of the proceedings, but to protect the appellant from hardship during the pendency of his appeal if he prevails in the initial decision. An AJ’s exercise of her discretion to order interim relief is subject to challenge on PFR.

3. The agency has not shown that the AJ abused her discretion in ordering the appellant’s reinstatement with pay in the interim relief order.

a. One circumstance in which the Board has found it inappropriate to order interim relief is when such relief is clearly impractical or is outside the scope of the Board authority to provide. Here, the agency has failed to show that there are any practical impediments that would prevent it from restoring the appellant to his former position or that his restoration would have been beyond the scope of the Board’s ability to provide relief.

b. The second circumstance in which the Board has advised AJs that they should exercise caution in ordering interim relief is where appellants are receiving workers’ compensation benefits or are seeking an increase in retirement benefits, and the administrative costs required to prevent the appellants from receiving payment of monies in contravention of statutory authority would be unduly burdensome when weighed against the fact that the appellants are receiving some income. Here, the agency has failed to show that the administrative burden of ensuring that the appellant does not improperly receive retirement benefits after being restored to paid status outweighs the hardship that the appellant has experienced by continuing to receive only retirement pay, which is approximately one-half of his income while in paid status.