United States Merit Systems Protection Board

Case Report for September 18, 2009

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.



Appellant: Wayne Adams

Agency: Department of Labor

Decision Number: 2009 MSPB 185

Docket Number: CB-7121-09-0017-V-1

Issuance Date: September 10, 2009

Action Type: Arbitration

Arbitration/Collective Bargaining-Related Issues
Discrimination – Race, Disability - Accommodation

The appellant requested review of an arbitrator’s decision that affirmed his removal. The arbitrator rejected the appellant’s affirmative defenses of race and disability discrimination (the appellant asserted that the agency failed to take his substance abuse into account).

Holdings: The Board affirmed the arbitration decision:

1. The Board has jurisdiction to review the arbitration decision, as the appellant has alleged discrimination under 5 U.S.C.  2302(b)(1), and a final decision has been issued.

2. The standard of the Board’s review of an arbitrator’s award is limited; the arbitrator’s factual determinations are entitled to deference unless the arbitrator erred in her legal analysis, for example, by misallocating the burdens of proof or employing the wrong analytical framework.

3. The agency established a nexus between the charges (failure to follow leave requesting procedures resulting in absence without leave) and the efficiency of the service.

4. The appellant failed to demonstrate that the agency discriminated against him on the basis of his race. He did dispute the violations charged in the agency’s notice of proposed removal and he failed to identify any similarly situated employees who received more favorable treatment.

5. The appellant failed to demonstrate that the agency discriminated against him on the basis of a disability.

a. Under the Rehabilitation Act, 42 U.S.C.  12114, “a qualified individual with a disability” does not include “any employee or applicant who is currently engaging in the illegal use of drugs.”

b. The appellant failed to meet his burden of proving that he was addicted to drugs that are not disqualifying under the law. Nor did the appellant show that he met any of the criteria covered by  12114(b), such as an individual who has been rehabilitated successfully and is no longer engaging in the illegal use of drugs.

c. Even assuming that the appellant was covered under the Rehabilitation Act, he failed to demonstrate that he was removed on the basis of his drug addiction rather than on the basis of the charged misconduct.

6. The penalty of removal is reasonable.

Appellant: Deborah S. Cameron

Agency: Department of the Navy

Decision Number: 2009 MSPB 186

Docket Number: SF-0752-07-0348-C-1

Issuance Date: September 10, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Compliance – Settlement-Related
Board Procedures/Authorities
- Reopening and Reconsideration
Timeliness – PFR

In May 2009, the appellant filed a pleading entitled “Request for Board Review.” In the merits proceeding, which concerned an indefinite suspension, an initial decision was issued in October 2007dismissing the appeal pursuant to a settlement agreement. The same settlement agreement resolved a separate appeal of the appellant’s removal. The appellant’s petition for review of the initial decision in the indefinite suspension appeal was denied in February 2008. In January 2009, she filed a petition for enforcement. In response to the AJ’s order directing her to explain what specific violations of the settlement agreement she alleged were committed by the agency, the appellant stated that neither party could comply with the provision that stated that she was “mentally and physically fit” to understand the settlement agreement and that she freely signed the agreement. She claimed that she “did not have the mental fortitude to freely sign, or make a free will signing of the Settlement Agreement.” In denying the petition for enforcement, the AJ found that the agency was in compliance with its obligations under the settlement agreement. He noted that the appellant’s claim appeared to be that the settlement agreement was invalid because she was not capable of understanding what she was signing, and advised that an attack on the agreement’s validity must be made through a petition for review of the initial decision dismissing the appeal as settled, not through a petition for enforcement.

Holdings: The Board denied the petition for enforcement for failure to meet the review criteria of 5 C.F.R.  1201.115(d). The Board also rejected the appellant’s request for review as a request to reopen the merits appeal, or as a late-filed petition for review of the initial decision that dismissed as settled an appeal of her removal.

Appellant: Clayton Hazelton

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 187

Docket Number: AT-0752-08-0669-I-1

Issuance Date: September 15, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Settlement – Validity
Timeliness – PFR

In a pleading filed with the regional office, the appellant alleged that the settlement agreement that resolved his removal appeal was invalid because it was based on misrepresentation by the agency. Under the agreement, the appellant agreed to resign from the agency. The appellant alleged that, during settlement negotiations, agency officials assured him he would be able to retire, and that these assurances induced him into entering into the agreement. He asserted that, when he subsequently attempted to retire, he learned that he was not eligible for retirement. The appellant’s pleading was forwarded to the Board as a petition for review of the initial decision.

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

1. An attack on the validity of a settlement agreement must be made in the form of a petition for review of the initial decision dismissing the case as settled. Because the appellant’s complaint filed with the regional office unmistakably challenged the validity of the settlement, it is proper to consider it as a PFR of the initial decision dismissing the appeal as settled, and it is deemed to have been filed on the date it was filed in the regional office.

2. The appellant has made nonfrivolous allegations of fact that, if proven, could establish that the agency misrepresented his eligibility for retirement, thereby misleading him into entering the settlement.

3. Although the PFR was untimely filed by 27 days, the appellant has established good cause for the delay, in that he has alleged that he did not learn of his ineligibility for retirement until after the filing deadline, and he acted promptly thereafter to challenge the validity of the settlement agreement.