United States Merit Systems Protection Board

Case Report for October 9, 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: Moises U. Cabarloc

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 196

Docket Number: SF-0752-08-0684-B-1

Issuance Date: October 2, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

The appellant petitioned for review of an initial decision that affirmed his removal. His petition for review (PFR) was filed 10 days after the deadline for timely filing. He did not respond to a notice directing him to file a motion to accept the filing as timely and/or to waive the time limit for good cause.

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

Appellant: Kyle A. Taylor

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 197

Docket Number: CH-0752-09-0258-I-1

Issuance Date: October 2, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty
- Disparate Penalties

The appellant petitioned for review of an initial decision that affirmed his removal on misconduct charges. He was a Claims Assistant responsible for processing veterans’ benefits claims. After conducting an audit, the agency had determined that veterans’ benefits claims documents were being placed in shredder bins. The agency ordered an immediate halt to the shredding of documents and ordered supervisors to inspect shredder bins to determine if there were any other claims-related materials placed in shredder bins. After the agency found claims-related documents in the appellant’s shred bin, it removed him on charges of (1) negligence that adversely affects veterans’ claims, (2) failure to follow supervisory instructions, and (3) destruction of claimant documents. On appeal to the Board, the administrative judge (AJ) found that the agency proved all 55 specifications of the first charge, and 28 of 55 specifications of the second charge, but found that the evidence was insufficient to prove the third charge. Although not all of the charges were sustained, the AJ found that the removal penalty was within the bounds of reasonableness.

Holdings: The Board affirmed the initial decision as to the merits of the agency’s charges, but mitigated the removal penalty to a 30-day suspension:

1. The consistency of a penalty compared to other employee is only one of the factors to be considered under Douglas in determining the reasonableness of an agency-imposed penalty. Moreover, where an imposed penalty is appropriate for the sustained charge(s), an allegation of disparate penalties is not a basis for reversal or mitigation of the penalty unless the agency knowingly and intentionally treated similarly-situated employees differently, or if the agency decides to begin levying a more severe penalty for a certain offense without giving notice of the change in policy.

2. The record showed that, prior to the appellant’s removal, the agency mitigated proposed removals of two similarly-situated employees to 15 and 30-day suspensions. The agency failed to explain its treatment of these two employees compared to the appellant. Under these circumstances, the Board found that a 30-day suspension is the maximum reasonable penalty.

Appellant: Gustavo B. Alvarez

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 198

Docket Number: SF-0731-09-0329-I-1

Issuance Date: October 2, 2009

Appeal Type: Suitability

Jurisdiction
Miscellaneous Agency Actions - Suitability

The appellant petitioned for review of an initial decision that affirmed the agency’s decision finding him unsuitable for employment as a Customs and Border Protection Officer and rescinding its conditional offer of employment in that position. The agency took its action as a result of information developed during a background investigation. On appeal to the Board, the AJ issued an initial decision finding jurisdiction under 5 C.F.R.  731.101(a) and affirming 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: Antonio J. Rodriguez

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 199

Docket Number: NY-0731-09-0060-I-1

Issuance Date: October 2, 2009

Appeal Type: Suitability

Jurisdiction
Miscellaneous Agency Actions – Suitability
Mootness

The appellant petitioned for review of an initial decision that dismissed his suitability appeal as moot. As in the Alvarez appeal, the appellant was tentatively offered a position, subject to a background investigation, but the offer was withdrawn as a result of information discovered in the background investigation. On appeal to the Board, the appellant alleged that the agency improperly relied upon a dishonest conduct issue in its negative suitability determination that was not previously raised in the proposal notice, thereby depriving him of his ability to defend himself against this unexplained issued. The agency then overturned its negative suitability determination and re-offered the appellant the position in question, which he accepted. The agency subsequently moved to dismiss the appeal as moot. Over the appellant’s objection, the AJ granted the agency’s motion.

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

1. For the same reasons as in Alvarez, the Board found that the action appealed to the Board did not appear to be a suitability action within the Board’s jurisdiction, but that the matter must be remanded because the appellant was not given a Burgess notice as to jurisdictional requirements.

2. The AJ erred in dismissing the appeal as moot. For the matter to have been moot, the appellant must have obtained all the relief that he could have obtained if he had prevailed in his suitability appeal. Such relief would have required the agency to remove all references to that action from the employee’s personnel record. The appellant alleged that the agency did not do so here. Accordingly, should the AJ find on remand that the Board has jurisdiction over the appeal, she must determine whether the agency has failed to completely expunge the appellant’s personnel record of all references to the negative suitability determination.

Appellant: Anthony D. Cunningham

Agency: United States Postal Service

Decision Number: 2009 MSPB 200

Docket Number: CH-0752-07-0532-M-1

Issuance Date: October 8, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty
Defenses and Miscellaneous Claims
- Self-Defense

This case was before the Board on remand from the U.S. Court of Appeals for the Federal Circuit, 328 F. App’x. 646 (Fed. Cir. Apr. 22, 2009). The agency removed the appellant from his Mail Handler position on a charge of Improper Conduct/Violation of Zero Tolerance Policy after the appellant engaged in a physical altercation with a co-worker. The AJ found that the appellant engaged in the underlying misconduct, but further found that he acted in self-defense. The AJ also determined that the deciding official believed that the agency’s zero tolerance policy required removal for a sustained charge of violence in the workplace, and that the deciding official abused his discretion in imposing the removal penalty without weighing or considering the relevant mitigating factors. The AJ mitigated the penalty to a 30-day suspension. In its decision on the agency’s petition for review, 109 M.S.P.R. 402 (2008), the Board found that the AJ erred by accepting the appellant’s claim of self-defense. It further found that the AJ erred by rejecting the deciding official’s testimony that he did not base his penalty determination on the agency’s zero tolerance policy but on a consideration of the Douglas factors. The Board concluded that there was no basis for disturbing the agency’s decision to remove the appellant, an reinstated that penalty. On appeal to the Federal Circuit, the court found that the Board erred by overturning the AJ’s determination that the deciding official’s testimony was not credible, and that the Board erred by granting deference to the deciding official’s decision to remove the appellant.

Holdings: The Board mitigated the appellant’s removal to a 30-day suspension:

1. When an agency imposes removal under a zero tolerance policy without giving bona fide consideration to the appropriate Douglas factors, its penalty determination is not entitled to deference.

2. In light of the court’s finding that the AJ’s determination as to the credibility of the deciding official “must stand,” the Board determined that it must weigh the relevant Douglas factors to evaluate the reasonableness of the penalty. After doing so, it determined that a 30-day suspension is the maximum reasonable penalty.

Appellant: Ashley A.H. Yusuf

Agency: United States Postal Service

Decision Number: 2009 MSPB 201

Docket Number: NY-0752-09-0004-I-1

Issuance Date: October 8, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Jurisdiction - Suspensions

The appellant petitioned for review of an initial decision that dismissed his alleged constructive suspension appeal for lack of jurisdiction. The appellant is a Mail Processing Clerk who had been working in a limited duty capacity since at least 1998 because of a work-related injury. On September 13, 2008, the agency offered him a limited duty assignment that would have entailed a change to his duty hours. The appellant refused the offer. He alleged that when he reported for duty at his regular reporting time the next day, he was told that, since he had not accepted the limited duty offer, he would not be permitted to work. He further alleged that he was handcuffed and escorted off the work floor, that the agency confiscated his identification badge and electronic key, and that a manager told him to leave the facility and not return. In its motion for dismissal, the agency contended that, although it appears that the appellant is an “employee” with adverse action appeal rights, the appellant voluntarily initiated his absence from work and had not shown that he was constructively suspended. In response, the appellant alleged that the agency initiated his absence when it took his badge and key, sent him home, and told him not to return.

Without holding a hearing, the AJ issued an initial decision dismissing the appeal for lack of jurisdiction, finding that the appellant failed to prove by preponderant evidence that the agency initiated his absence from work.

Holdings: The Board vacated the initial decision and remanded the appeal for a jurisdictional hearing:

1. An employee’s absence for more than 14 days that results in a loss of pay may be a constructive suspension appealable under 5 U.S.C.  7512(2) and 7513(d). The dispositive issue in determining whether a constructive suspension occurred is who initiated the absence. If the appellant voluntarily initiated the absence, then it is not a constructive suspension.

2. The AJ erred in dismissing the appeal without providing the appellant with explicit information concerning what was required to establish his entitlement to a jurisdictional hearing. The AJ further erred in finding that the Board lacks jurisdiction on the basis that the appellant failed to prove by preponderant evidence that he was affected by a constructive suspension. To obtain a jurisdictional hearing, an appellant need not prove jurisdiction by preponderant evidence; he need only make a nonfrivolous allegation of jurisdiction.

3. Here, the appellant made a nonfrivolous allegation that it was the agency that initiated his absence from the workplace. Accordingly, he is entitled to a jurisdictional hearing.

4. It is unclear whether the appellant may be attempting to raise a claim that his restoration rights under 5 C.F.R. part 353 were violated. This should be clarified on remand.

Appellant: Barbara J. Loggins

Agency: United States Postal Service

Decision Number: 2009 MSPB 202

Docket Number: DC-0752-09-0540-I-1

Issuance Date: October 8, 2009

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Reduction in Pay/Grade
USERRA/VEOA/Veterans’ Rights
Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. The appellant filed an occupational disease claim with OWCP in 2000 based on a her osteoarthritis. OWCP accepted the appellant’s claim, and in 2001 she accepted the agency’s offer of a limited duty position as a Grade 2 Carrier Technician. In 2009, the agency asked the appellant to provide medical documentation indicating that she had reached her maximum medical improvement or that she would be able to resume full duties of her bid assignment with the next 6 months. The agency further advised that it might “re-post the assignment for bid and [she would] become unassigned,” if she was unable to perform all the duties of her bid assignment within 6 months. The appellant provided two letters from her physician, which indicated that the appellant’s condition was chronic and incurable, and recommended specific permanent restrictions on her job duties. The appellant alleged that, upon receipt of her medical documentation, the agency said she was unable to perform her bid assignment and that it was going to re-post her assignment for bid. The appellant also alleged that the agency informed her that she was being removed from her bid assignment.

In her appeal to the Board, the appellant said she was challenging her “[r]emoval from assignment.” She also indicated that she was a preference eligible, and checked a box indicating that she was filing a veterans’ preference claim. After the appeal was filed, the agency offered the appellant another limited duty assignment as a Grade 1 Letter Carrier. The appellant accepted the agency’s offer, but wrote “I sign under protest” above her signature. The AJ dismissed the appeal for lack of jurisdiction based on the written record, finding that the appellant had failed to allege any facts or submit any evidence indicating that she was constructively suspended or reduced in grade or pay. The AJ also found that the appellant “did not allege that her rights as a preference eligible employee [were] violated.”

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

1. The AJ correctly found that the appellant offered no evidence or argument to establish Board jurisdiction over her appeal as a claim of constructive suspension.

2. The AJ erred in dismissing the appeal without informing the appellant of the elements required to establish Board jurisdiction over her claim of an involuntary reduction in grade or pay.

3. The AJ erred in dismissing the appeal without informing the appellant of her burdens and elements of proof under VEOA.

4. On remand, the AJ should inform the appellant of the elements required to establish jurisdiction over a restoration claim. In her response to the AJ’s jurisdictional order, the appellant alleged that the agency’s actions violated 5 C.F.R.  353.301(c), the federal regulation governing the restoration rights of physically disqualified employees.