United States Merit Systems Protection Board

Case Report for October 30, 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: Robert L. King, Jr.

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 210

Docket Number: CH-844E-08-0637-I-1

Issuance Date: October 19, 2009

Appeal Type: FERS - Employee Filed Disability Retirement

Retirement
- Disability Retirement

The appellant petitioned for review of an initial decision that affirmed OPM’s final decision denying his application for disability retirement as untimely.

Holdings: The Board affirmed the initial decision as modified, still affirming OPM's action denying the application as untimely filed.

1. The Board reopened the appeal because the initial decision relied on provisions of law and regulation under the Civil Service Retirement System, when the claim was governed by the Federal Employees’ Retirement System, and because the appellant did not receive appropriate notice of the time period for which he was required to prove his incompetency. The Board additionally found that the initial decision mischaracterized the law by suggesting that, because the appellant was removed for disciplinary rather than medical reasons, the agency could not have been required to notify him of his possible eligibility for disability retirement.

3. Even if the agency was required to give of the appellant’s possible eligibility for disability retirement, the failure to provide it would not have constituted a basis for waiving the 1-year filing deadline.

Appellant: Teresa A. McClain

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 211

Docket Number: NY-844E-08-0351-X-1

Issuance Date: October 27, 2009

Compliance
- Dismissal on Proof

This case was before the Board pursuant to the AJ’s Recommendation finding the agency in noncompliance with a final Board decision. In the merits proceeding, the Board reversed OPM’s reconsideration decision and ordered OPM to grant the appellant’s application for disability retirement. In the Recommendation, issued more than 6 months after the deadline for compliance, the AJ found that OPM had not submitted evidence that it had granted the appellant’s disability retirement application.

Holdings: Based on evidence submitted by OPM after the Recommendation was issued, the Board found that OPM is now in compliance and dismissed the petition for enforcement as moot.

Appellant: Patricia A. Rollins

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 212

Docket Number: PH-0831-09-0377-I-1

Issuance Date: October 27, 2009

Action Type: Retirement/Benefit Matter

Retirement
- Survivor Annuity

OPM petitioned for review of an initial decision that reversed its reconsideration decision denying the appellant’s request to change her late husband’s survivor annuity election. When the appellant’s husband (the annuitant) retired in 2003, he elected a reduced annuity with a partial survivor annuity for his wife “equal to 55% of $2069 a year.” Following the annuitant’s death in 2008, OPM approved a survivor annuity of $105 per month for the appellant. On appeal, the AJ found that the annuitant “made an unfortunate mistake” electing a survivor annuity on a yearly basis and that, if the appellant and the annuitant had paid sufficient attention, they could have utilized the 18-month period following the date of retirement “to change his election to provide the maximum monthly survivor annuity for the appellant, which he no doubt had originally intended to do.” The AJ further found that OPM failed to establish that it sent the required annual notice of election rights to the annuitant in 2003 or 2004, and that the appellant was therefore entitled to a waiver of the 18-month deadline for changing the election.

Holdings: The Board affirmed the initial decision in part, vacated it in part, and remanded the appeal to the regional office for further adjudication:

1. Under 5 U.S.C.  8339(o)(1), the annuitant had an 18-month window after his retirement during which to make an election to increase his monthly annuity reduction to provide a greater survivor annuity for his spouse.

2. OPM was required to give annual notice to the annuitant of his right to make such an election and of the applicable procedures and deadlines. OPM does not dispute that it failed to do so in this instance.

3. When OPM fails to send the required notice and the annuitant is deceased, the next step is to ascertain whether there is evidence that the annuitant intended to change his election while he was still alive. Here, the AJ focused on what the annuitant “originally intended,” and failed to consider whether the annuitant intended to change his election during the 18-month period following his retirement. Because the record is unclear on this point, a remand is necessary.

Appellant: Lwanda Okello

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 213

Docket Number: SF-0845-09-0267-I-1

Issuance Date: October 27, 2009

Action Type: Retirement/Benefit Matter

Board Procedures/Authorities
- Withdrawal of Appeal/PFR

The appellant filed a request to reopen an appeal after the Board issued a Final Order granting his previous request to withdraw his earlier-filed petition for review.

Holdings: The Board denied the request, finding that the “new evidence” did not warrant such action.

Appellant: Joyce Rutherford

Agency: United States Postal Service

Decision Number: 2009 MSPB 214

Docket Number: AT-0752-09-0432-I-1

Issuance Date: October 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Jurisdiction
- Suspensions

The appellant petitioned for review of an initial decision that affirmed the agency’s decision to place her on enforced leave due to her medical restrictions. The appellant was placed on enforced leave because light duty work that had previously been given to her was no longer available. The AJ found jurisdiction over the appeal, sustained the agency’s decision to place the appellant on enforced leave, rejected her affirmative defenses, and affirmed the enforced leave “penalty.”

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

1. The termination of a light duty assignment is not, per se, an adverse action that is appealable to the Board. Such a termination resulting in an employee’s absence for more than 14 days and a loss of pay may be an appealable constructive suspension. If an employee who is absent due to medical restrictions requests work within those restrictions, and the agency is bound by policy, regulation, or contract to offer available light duty work, the employee’s continued absence due to the agency’s failure to offer available light duty work constitutes a constructive suspension. The dispositive issue is who initiated the absence.

2. The AJ did not provide an analysis of the constructive suspension jurisdictional issue. The appellant made a nonfrivolous allegation that the agency initiated her absence, but the record is insufficient to resolve whether jurisdiction has been established. A remand is therefore necessary.

Appellant: Brenda L. Blyther

Agency: United States Postal Service

Decision Number: 2009 MSPB 215

Docket Number: PH-0752-08-0437-I-2

Issuance Date: October 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Discrimination
- Sex, Age
- Reprisal for Protected EEO Activity

The appellant petitioned for review of an initial decision that did not sustain her claims of discrimination and reprisal for protected EEO activity. After placing the appellant on a performance improvement plan (PIP), the agency reduced her in grade based on a charge that she failed to perform her duties in a satisfactory manner. On appeal to the Board, the agency stated that it was rescinding the action and returning the appellant to the status quo ante. The AJ determined that the appeal was not moot because the appellant had raised claims of discrimination and reprisal for her filing of discrimination complaints. After holding a hearing, the AJ found that the appellant failed to establish either of her affirmative defenses.

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

1. In finding no discrimination, the AJ found the appellant’s situation “virtually identical” to that of a male supervisor. Neither that supervisor, however, nor any other employee discussed as a comparator, was ever placed on a PIP or reduced in grade. Nor did the initial decision discuss testimony relied on by the appellant as showing discriminatory animus. The initial decision thus did not, as required by well-established precedent, identify all material issues of fact and law, summarize evidence, resolve issues of credibility, and include the AJ’s conclusions of law and his legal reasoning.

2. The initial decision similarly did not analyze the pertinent evidence regarding the appellant’s claim of reprisal for protected EEO activity. A remand is therefore necessary.

Appellant: Antwon R. Walker

Agency: United States Postal Service

Decision Number: 2009 MSPB 216

Docket Number: AT-0752-09-0118-I-1

Issuance Date: October 28, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures/Authorities
- Adjudicatory Error
Penalty

The appellant petitioned for review of an initial decision that dismissed his claim of a constructive suspension for lack of jurisdiction and affirmed his removal on charges of being absent without leave (AWOL) and for failing to follow instructions.

Holdings: The Board denied the appellant’s petition for review as to the constructive suspension and affirmed the initial decision as modified with respect to the removal action, still affirming that action:

1. The AJ erred in defining the period of time at issue in the AWOL charge, but he did not err in finding that the agency proved the charge.

2. Although the AJ erred in analyzing the penalty, in that he found that the appellant “was AWOL for more than two months, a lengthy period of time,” he did not err in finding that removal was within the tolerable limits of reasonableness.

Appellant: Rodney G. Davis

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 217

Docket Number: DA-0831-09-0253-I-1

Issuance Date: October 29, 2009

Action Type: Retirement/Benefit Matter

Retirement
- Court/Domestic Relations Orders
- Survivor Annuity

The appellant petitioned for review of an initial decision affirming OPM’s determination that his former spouse is entitled to a maximum survivor annuity benefit. When he retired in 2008, the appellant elected a maximum survivor annuity for his current spouse. OPM informed him that it intended to award his former spouse a maximum survivor annuity under a 2005 divorce decree. OPM determined that, because the divorce decree did not specifically address the amount of the survivor annuity benefits to which the former spouse was entitled, she was entitled to a maximum survivor annuity. On appeal, the AJ affirmed on the same ground. In so ruling, the AJ declined to consider a new court decree issued in March 2009 which purported to clarify the divorce decree in favor of the appellant’s interpretation that the former spouse was only entitled to a 35% share of the maximum survivor annuity.

Holdings: The Board reversed the initial decision and directed OPM to correct its records to reflect that the appellant’s former spouse is entitled to 35% of a pro rata share of the maximum survivor annuity:

1. The AJ correctly declined to consider the March 2009 court order, which failed to meet the criteria of 5 C.F.R.  838.806(b).

2. The AJ erred in finding that the original divorce decree did not contain a provision stating that the appellant’s former spouse would be awarded less than the maximum former spouse survivor annuity. Both OPM and the AJ appear to have overlooked the clause stating that the former spouse’s “benefits shall be equal to thirty-five percent (35%) of the accumulation in said funds and plans during the parties’ marriage.” This language explicitly provides the appellant’s former spouse with less than the maximum former spouse survivor annuity.

Appellant: Matthew J. Nasuti

Agency: Department of State

Decision Number: 2009 MSPB 218

Docket Number: DC-1221-09-0356-W-1

Issuance Date: October 29, 2009

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. Less than a month after his appointment, the appellant was terminated from an excepted service position for “disruptive behavior during training.” The appellant asserted that the termination was taken in retaliation for protected whistleblowing disclosures. Without conducting a hearing, the AJ dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure.

Holdings: The Board vacated the initial decision, but still dismissed the appeal for lack of jurisdiction:

1. The Board rejected the appellant’s submission of “new” evidence submitted on petition for review, as this evidence either was not new or was not material.

2. Although the initial decision reached the correct result, it made findings of act and conclusions of law that went beyond those needed to dismiss the appeal for lack of IRA jurisdiction. The Board therefore made its own findings of fact and conclusions of law.

3. Under 5 U.S.C.  1214(a)(3), an appellant must first present his charges of whistleblowing before the Office of Special Counsel (OSC) before filing a Board appeal. The Board will consider only those charges of whistleblowing that the appellant asserted before OSC, and it will not consider any subsequent recharacterization of the charges. The appellant alleged only two protected disclosures to OSC.

4. The first alleged disclosure was not a protected disclosure because the alleged disclosure was made to the wrongdoer. The appellant’s contention that he also made the same disclosure to the other trainees in the class was not raised before OSC.

5. The second alleged disclosure could not have been a contributing factor in the appellant’s termination, as it was made after he was terminated from employment.

6. The Board rejected as unsupported the appellant’s allegations of bias on the AJ’s part.