United States Merit Systems Protection Board

Case Report for October 16, 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: Elizabeth M. Beeler-Smith

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 203

Docket Number: DC-844E-09-0520-I-1

Issuance Date: October 9, 2009

Appeal Type: FERS - Employee Filed Disability Retirement

Retirement
- Disability Retirement

The appellant petitioned for review of an initial decision that affirmed OPM’s determination that she was not entitled to disability retirement benefits.

Holdings: The Board reversed the initial decision and ordered OPM to award the appellant disability retirement benefits:

1. The Board found unsupported the appellant’s claim that the administrative judge (AJ) was biased against her attorney.

2. After reviewing the evidence of record, including that the appellant’s osteoarthritis in both knees and hips had degenerated to the extent that she underwent bilateral hip replacement, precluded her from performing useful and efficient service in her position as a Rural Carrier with the U.S. Postal Service. That she did not also undergo the total knee replacement recommended by her physician does not disqualify her from entitlement to disability benefits.

Appellant: Richard A. Becker

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 204

Docket Number: NY-3330-09-0227-I-1

Issuance Date: October 15, 2009

Appeal Type: Veterans Employment Opportunities Act

Jurisdiction
USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that dismissed his VEOA appeal for lack of jurisdiction. The appellant alleged that the agency did not select him for a position in violation of his veterans’ preference rights. The record indicated that the appellant had submitted a complaint with the Department of Labor (DOL), but that 60 days had not elapsed since that filing or that DOL had taken any definitive action regarding the complaint. The AJ dismissed the appeal for lack of jurisdiction because the appellant had not exhausted his administrative remedy with DOL. With his petition for review (PFR), the appellant submitted evidence that DOL has issued a notice indicating that his complaint was being closed.

Holdings: The Board granted the appellant’s PFR and remanded his VEOA claim to the regional office for further adjudication. One of the jurisdictional requirements for a VEOA claim is that the appellant have received notice from DOL that the Secretary was unable to resolve the complaint within 60 days or has issued a written notification that the Secretary’s efforts have not resulted in resolution of the complaint. Although the record at the time of the initial decision did not show that this requirement had been met, it has now been met and jurisdiction has been established.

Appellant: Richard A. Becker

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 206

Docket Number: NY-1221-09-0226-W-1

Issuance Date: October 15, 2009

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Exhaustion of Remedies

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant alleged that the agency did not select him for a vacancy in retaliation for his whistleblowing activity, and stated that he had filed a complaint about the matter with the Office of Special Counsel (OSC). In dismissing the appeal for lack of jurisdiction, the AJ found that the appellant had not exhausted his remedy with OSC, as required by 5 U.S.C.  1214(a)(3), because 120 days had not expired since filing the OSC complaint, and OSC had not taken action on the complaint.

Holdings: The Board remanded the IRA appeal for to the regional office for further adjudication. Although the AJ appropriately found that the Board lacked jurisdiction over the appellant’s potential IRA appeal, it is the Board’s practice to adjudicate an appeal that was premature when it was filed but becomes ripe while pending with the Board. That is the case here.

Appellant: Fae Driscoll

Agency: United States Postal Service

Decision Number: 2009 MSPB 205

Docket Number: SF-0752-07-0409-X-1

Issuance Date: October 15, 2009

Appeal Type: Adverse Action by Agency

Compliance

This case was before the Board pursuant to a Recommendation by the AJ finding that the agency was not in compliance with its obligations under a final Board decision that mitigated a removal action to a demotion. The AJ found that the agency had not properly paid back pay and interest on back pay. Contrary to the appellant’s contention, the AJ found that the agency was in compliance regarding the crediting of the appellant’s annual leave. Finally, the AJ found that the agency properly excluded from the appellant’s back pay compensation an amount it previously paid the appellant.

With regard to the first finding, the matter in controversy was whether, as required by the agency’s Employee and Labor Relations Manual (ELM), the appellant had made “reasonable efforts to obtain other employment” during the back pay period. The agency found that she had not done so, based on her checking a “no” box in response to the following question on a Postal form: “Did you seek outside employment during the back pay period?” The appellant maintained that she had mistakenly checked the wrong box, and submitted evidence that she had in fact applied for employment with 34 employers during the period. Based on this evidence, the AJ concluded that the appellant had made reasonable efforts to obtain other employment and was entitled to back pay and interest for the period in question.

Holdings: The Board found that the agency remained in noncompliance with its obligations under the Board’s final decision:

1. The AJ correctly determined that the appellant had made reasonable efforts to obtain other employment, and was therefore entitled to back pay and interest for the period excluded by the agency.

a. When the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. This authority to restore an individual to the status quo ante is broad and far reaching.

b. While the agency may ordinarily be within its rights not to accept an amended form from an employee, here the Board has the authority to determine whether the appellant has been properly restored to the status quo ante. In doing so, the AJ correctly weighed the conflicting evidence and determined which evidence she found more credible. The totality of the evidence leads to the conclusion that the appellant in fact sought employment during the back pay period.

2. The agency is in noncompliance because of its failure to credit the appellant with the annual leave she would have earned but for the agency’s wrongful removal action.

a. In refusing to credit the appellant with annual leave for this period, the agency relied on a provision of a Management Instruction which states that “[e]mployees do not earn annual and sick leave during the period of erroneous separation.”

b. Just as under the Back Pay Act, the overarching principle set forth in the ELM is to place the appellant in the position she would have been in had the wrongful personnel action not occurred. Clearly, the appellant would have earned annual leave had the agency not improperly removed her.

c. The Management Instruction cited by the agency has no application to the facts of this case; it addresses situations where an employee has been erroneously separated by optional retirement, not situations where an employee was erroneously removed by the agency.

3. The agency properly withheld from the appellant’s back pay award payment for a period of time for which it previously paid the appellant.

Appellant: James E. Harrell

Agency: United States Postal Service

Decision Number: 2009 MSPB 207

Docket Number: DA-3330-09-0397-I-1

Issuance Date: October 15, 2009

Jurisdiction

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant is a PS-6 employee at the Beeville, Texas Post Office. He filed an appeal contesting an alleged negative suitability determination and a position change “affected by excessing and RIF [reduction in force].” In addition, he appeared to assert that the actions violated a settlement agreement in a 1997 RIF action. The agency moved to dismiss the appeal for lack of jurisdiction on the bases that the appellant had not been subjected to a RIF, an appealable adverse action, a breach of a prior settlement agreement, or a negative suitability determination. The agency asserted that the appellant voluntarily sought and accepted a change in assignment from Denver to his current position in Beeville. The AJ thereafter issued a jurisdictional order stating that it was unclear whether the appellant had been effected by an action over which the Board has jurisdiction, and ordered the appellant to submit evidence and argument no later than May 17, 2009. In the initial decision dismissing the appeal, the AJ stated that the appellant did not respond to the jurisdictional order. On PFR, the appellant states that he did submit a timely response to the jurisdictional order.

Holdings: The Board granted the appellant’s PFR, but affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. The appellant did submit a timely response to the AJ’s jurisdictional order via e-Appeal Online. Because the AJ issued the initial decision without considering that response, the Board did so on petition for review.

2. The appellant has still failed to make a nonfrivolous allegation of facts that would support jurisdiction. In particular, he still has not provided a copy of the settlement agreement that he believes the agency violated; nor has he contested the agency’s assertion that his transfer to the Beeville position was voluntary.

Appellant: Scott L. Kroeger

Agency: United States Postal Service

Decision Number: 2009 MSPB 208

Docket Number: CH-752S-08-0819-I-1

Issuance Date: October 15, 2009

Action Type: Suspension - 14 Days or Less

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal of a 14-day suspension for lack of jurisdiction. The PFR was filed almost 5 months after the deadline for timely filing.

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

Appellant: Darrick J. Moore

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 209

Docket Number: DC-0731-09-0503-I-1

Issuance Date: October 15, 2009

Appeal Type: Suitability

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal of a suitability action by OPM that resulted in his removal from his employing agency. The PFR was filed 18 days after the deadline for timely filing. The appellant alleges that he did not receive the initial decision until after the deadline for timely filing and was otherwise unaware that it had been issued.

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

1. The initial decision was delivered to the appellant’s address of record. The reason that he did not timely receive it was his failure to provide the Board with a current address.

2. Under these circumstances, the appellant did not exercise due diligence or ordinary prudence, and has not established good cause for the delay in filing.