United States Merit Systems Protection Board

Case Report for October 2, 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: Irene M. Moore

Agency: Department of Justice

Decision Number: 2009 MSPB 190

Docket Number: DC-0752-09-0293-I-1

Issuance Date: September 25, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Discrimination
- Mixed Case Procedures
- Election of Remedies
Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata

The appellant petitioned for review of an initial decision that dismissed her appeal as barred by the election requirement for mixed cases under 5 U.S.C.  7702(a)(1)-(2). The agency proposed the appellant’s removal on misconduct charges in December 2007. The next month, she filed an EEO complaint alleging unlawful discrimination and retaliation for engaging in protected EEO activities. In February 2008, the agency issued a decision to remove the appellant, and on some later unspecified date, she amended her EEO complaint to add a claim of wrongful termination. In April 2008, the appellant appealed her removal to the MSPB. In what became a final Board decision, the administrative judge (AJ) dismissed the appeal as untimely filed. (Neither party informed the AJ of the appellant’s pending EEO complaint.) In January 2009, the agency issued a final decision on the appellant’s EEO complaint. Less than 30 days later, the appellant filed the instant appeal challenging the merits of her removal and alleging unlawful discrimination and retaliation. The AJ issued a decision dismissing the appeal as barred by the election requirement for mixed cases under 5 U.S.C.  7702(a)(1)-(2), on the ground that the agency’s removal decision letter properly informed the appellant about the consequences of electing the direct Board appeal procedure.

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

1. The appellant made a valid election to file a formal EEO complaint with her agency that included her removal before she appealed to the Board. Because the appellant has now exhausted the agency’s EEO procedure, she has a right to appeal from the agency’s final decision under 5 C.F.R.  1201.154(b)(1).

2. The appellant’s prior Board appeal was premature under 5 C.F.R.  1201.154(c). Accordingly, that appeal does not preclude her subsequent appeal from the final agency decision on her EEO complaint under 5 C.F.R.  1201.154(b)(1).

3. This appeal was timely filed under 5 C.F.R.  1201.154(b)(1) and is not barred under the doctrines of collateral estoppel or res judicata.

Appellant: Mohamad Kazan

Agency: Department of Justice

Decision Number: 2009 MSPB 191

Docket Number: DC-0731-09-0441-I-1

Issuance Date: September 29, 2009

Appeal Type: Suitability

Jurisdiction
Miscellaneous Agency Action
- Suitability

The appellant petitioned for review of an initial decision that affirmed the agency’s decision finding him unsuitable for employment and rescinding its tentative offer of employment. In May 2007, the agency tentatively selected the appellant for the position of Aviation Enforcement Officer with the U.S. Marshals Service, a position which required an OPM background investigation. Based on information revealed by that investigation, the agency proposed finding the appellant unsuitable for the position. After giving the appellant the opportunity to respond, the agency issued a decision letter stating that the appellant was “ineligible” for the position. On appeal to the Board, the AJ concluded that the Board had jurisdiction under 5 C.F.R.  731.401(a) and affirmed the agency’s suitability determination.

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

1. Under OPM’s suitability regulations, which were substantially revised effective June 16, 2008, only a “suitability action,” which includes a cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, and a debarment, may be appealed to the Board. A non-selection for a specific position is not a “suitability action,” even if it is based on the criteria for making suitability determinations. See 5 C.F.R.  731.202-.203. Here, the agency’s action appears to be a non-selection for a specific position, outside the Board’s jurisdiction.

2. Nevertheless, an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Because the appellant was never provided with such information, the case must be remanded to give the parties an opportunity to submit evidence and argument regarding jurisdiction.

Appellant: Thomas Tubesing

Agency: Department of Health and Human Services

Decision Number: 2009 MSPB 192

Docket Number: DA-315H-08-0168-X-1

Issuance Date: September 30, 2009

Compliance

This case was based on a the AJ’s Recommendation finding the agency in noncompliance with a final Board order that required the agency to cancel the appellant’s removal and provide him status quo ante relief.

Holdings: Based on the parties’ evidence of compliance following the issuance of the Recommendation, the Board found that the agency continued to be in noncompliance with its obligations:

1. The agency established a strong overriding interest or compelling reason for not reinstating the appellant to the position he held before the removal action.

a. The common element in cases where the Board has found the existence of an overriding interest or compelling reason for not returning an appellant to his previous position is “an outside event or determination [that] rendered the appellant incapable of performing the duties of his prior position.”

b. Here, the agency established an outside event or determination that rendered the appellant incapable of performing the duties of his prior position. The appellant had been assigned to work with a state agency, and business practice allowed state agencies to determine whether they wanted to work with a particular federal employee. Here, the state agency stated that it “elects not to accept [the appellant] as an assignee.”

2. The agency failed to establish that the duties and responsibilities of the new position are substantially equivalent in scope and status to those of the position the appellant previously held. In a declaration made under penalty of perjury, the appellant stated that he has been placed in a full-time involuntary telework status, he has not been to his assigned duty station nor met face-to-face with an agency employee for a year and a half, and on an average day he speaks with his supervisor for about 5 minutes and does little or no work commensurate with his grade and position. The agency has offered nothing to rebut these assertions.

3. The agency has failed to demonstrate compliance with regard to back pay, interest on back pay, and benefits of employment.

4. The agency is in compliance with the appellant’s schedule and its failure to issue the appellant a government “Blackberry.”

Appellant: Margaret A. Turner-Thompson

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 193

Docket Number: DA-831E-08-0277-I-1

Issuance Date: October 1, 2009

Appeal Type: CSRA - Employee Filed Disability Retirement

Timeliness – PFR

The appellant petitioned for review of an initial decision that affirmed OPM’s decision to dismiss her application for disability retirement as untimely filed. The appellant petition for review was filed more than a year after the deadline for timely filing.

Holdings: The Board dismissed the appellant’s PFR as untimely filed without good cause shown for the filing delay.

Appellant: Jennifer C. Bynum

Agency: United States Postal Service

Decision Number: 2009 MSPB 194

Docket Number: DC-0752-09-0322-I-1

Issuance Date: October 1, 2009

Jurisdiction
Miscellaneous Agency Actions
- Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her removal and restoration appeals for lack of jurisdiction. The appellant was removed from her Flat Sorting Machine Operator position for failure to be regular in attendance, absence without leave, and failure to follow instructions. Following a work-related injury in 2003, the appellant was receiving compensation from the Office of Workers’ Compensation Programs (OWCP). In her response to the agency’s notice of proposed removal, the appellant requested that the agency “rescind the removal . . . , offer [her] a written job offer, and allow [her] a 30-day extension to reply so [her] physician [could] review the job offer.” On appeal, In response to the appellant’s claim that she should have been restored to a limited duty position, the agency relied on a November 7, 2008 OWCP letter that stated that the appellant’s physician indicated that she was able to return to work without restrictions.

The AJ found that the Board lacked jurisdiction over the appellant’s removal because she was not an “employee” as defined under 5 U.S.C.  7511 entitled to appeal an adverse action. In dismissing the restoration claim for lack of jurisdiction, the AJ found that the appellant failed to make a nonfrivolous allegation that she requested restoration as a partially recovered employee or that the agency arbitrarily and capriciously denied her request.

Holdings: The Board reversed the initial decision insofar as it found that the Board lacks jurisdiction over the appellant’s restoration claim, but rejected that claim on the merits:

1. The Board lacks jurisdiction to review the appellant’s removal because she does not satisfy the definition of “employee” in either 5 U.S.C.  7511(a)(1)(B)(ii) or 39 U.S.C.  1005(a)(4)(A).

2. The appellant alleged facts that establish the Board’s jurisdiction over her restoration claim.

a. To establish Board jurisdiction over a restoration claim as a partially recovered employee under 5 C.F.R.  353.304(c), an appellant must allege facts that would show, if proven, that: (1) She was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part‑time basis, or to return to work in a position with less demanding physical requirements than those previously required of her; (3) the agency denied her request for restoration; and (4) the denial was “arbitrary and capricious.”

b. The appellant submitted evidence that she continued to receive OWCP benefits after that agency’s November 7, 2008 letter. In fact, it is clear that OWCP never terminated the appellant’s benefits before her removal.

c. Relying on 5 U.S.C.  8128(b)(1), Board precedent establishes that an OWCP determination that an appellant is fully recovered from the work-related portion of her injury is considered final and conclusive for all purposes and with respect to all questions of law and fact. The Board is not bound by the statement in OWCP’s November 7, 2008 letter that the appellant could return to work without restrictions, as that letter did not propose to terminate or actually terminate her benefits and thus did not allow or deny payment under 5 U.S.C.  8128(b)(1).

d. The record reveals that the appellant recovered sufficiently to return to duty in a position with less demanding physical requirements.

e. The appellant’s response to the agency’s notice of proposed removal constituted a request for restoration.

f. The appellant made allegations of fact that, if proven, show that the agency denied her request for restoration and that the agency acted “arbitrarily and capriciously” in denying that request.

3. The Board found on the merits that the agency did not act arbitrarily and capriciously in denying restoration. This standard is not met where, as here, the agency was faced with conflicting assessments of the appellant’s abilities and restrictions.

Appellant: Frederick Goodman

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 195

Docket Number: CH-844E-08-0713-I-1

Issuance Date: October 1, 2009

Appeal Type: FERS - Employee Filed Disability Retirement

Timeliness – PFR
Board Procedures/Authorities
- Dismissals – With/Without Prejudice

The appellant petitioned for review of an initial decision that dismissed his appeal without prejudice to refiling.

Holdings: The Board dismissed the petition for review as untimely filed without good cause shown, but forwarded the pleading to the regional office for docketing as a refilled appeal.