United States Merit Systems Protection Board

Case Report for December 18, 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: Charles Smith

Agency: United States Postal Service

Decision Number: 2009 MSPB 226

Docket Number: SF-0353-09-0202-I-1

Issuance Date: December 11, 2009

Appeal Type: Restoration to Duty

Miscellaneous Agency Actions
- Restoration to Duty

The appellant petitioned for review of an initial decision that denied his request for restoration as a partially recovered employee. The appellant received workers’ compensation benefits for 11 years as a result of a work-related injury, returning to work in 2006. His receipt of OWCP benefits resumed later that year as a result of aggravation to his pre-existing conditions. In early 2009, after not being selected for two positions for which he had applied, he filed an appeal asserting that the non-selections were arbitrary and capricious and violated his restoration rights as a partially recovered individual. The administrative judge (AJ) found that the appellant made a nonfrivolous allegation that the agency’s denial of his request for restoration was arbitrary and capricious, thus establishing Board jurisdiction over his appeal, but that he failed to prove his claim by preponderant evidence. In so finding, the AJ found that the appellant was not qualified for one of the positions. With respect to the second position, the AJ found that the initial posting was cancelled and re-posted under RIF avoidance procedures under which eligibility was limited to certain employees, not including the appellant, who would potentially be affected by the elimination of 28 positions in the district in question. He found that the agency’s decision in this regard was a “prudent step taken in anticipation of the inevitable adverse impact of the elimination of positions.”

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

1. OPM’s regulation at 5 C.F.R.  353.301(d) requires that agencies “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty,” and agencies are required to treat partially recovered employees substantially the same as an individual with a disability under the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). In appeals to the Board, individuals who have partially recovered from a compensable injury must show that the agency acted arbitrarily and capriciously in denying restoration. 5 C.F.R.  353.304(c).

2. Under the Rehabilitation Act and the ADA, an agency is required to afford reasonable accommodation to the known limitations of a qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

3. By relying solely on RIF avoidance to explain its failure to review the appellant’s application, the agency failed to demonstrate that accommodating him by restoring him to the position in question would have been an undue hardship.

Appellant: Elfreda M. Barachina

Agency: United States Postal Service

Decision Number: 2009 MSPB 227

Docket Number: SF-0353-09-0554-I-1

Issuance Date: December 14, 2009

Appeal Type: Restoration to Duty

Miscellaneous Agency Actions
- Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. The appellant suffered a work-related injury in 1998 and later accepted modified work assignments within her medical restrictions. In early 2009, the agency initiated its National Reassessment Process 2 Pilot Program (NRP 2) in 3 California districts, under which it conducted an evaluation to identify the necessary and productive work in each facility that was not already being performed through a funded position, and then assigned that work to employees with job-related injuries based on their medical restrictions. Employees who could not be provided with such work were sent home until such work could be identified or their medical restrictions changed. Pursuant to the NRP 2 process, the appellant’s work facility determined that there was no necessary work available in her facility and directed the appellant not to report to duty until further notice. In dismissing the appellant’s restoration appeal for lack of jurisdiction, the AJ found that the appellant failed to make a nonfrivolous allegation that the agency acted arbitrarily and capriciously in denying her restoration rights.

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

1. In the case of an employee who has partially recovered from a compensable injury, an agency must make every effort to restore the individual to a position within her medical restrictions and within her local commuting area, and such an employee may appeal to the Board for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration.

2. The dispositive jurisdictional issue in this case is whether the appellant made a nonfrivolous allegation that the agency’s denial or restoration was arbitrary and capricious.

3. The documentary evidence submitted by both parties indicates that the agency searched only the particular facility where the appellant had been employed for available work, and did not look elsewhere in the appellant’s local commuting area, as required by 5 C.F.R.  353.301(d). The agency’s failure to comply with that regulation is sufficient to render nonfrivolous her allegation that the agency acted arbitrarily and capriciously in denying her restoration. Accordingly, the appellant has established jurisdiction and is entitled to adjudication on the merits of her restoration appeal.

Appellant: Irma Urena

Agency: United States Postal Service

Decision Number: 2009 MSPB 228

Docket Number: SF-0353-09-0650-I-1

Issuance Date: December 14, 2009

Appeal Type: Restoration to Duty

Miscellaneous Agency Actions
- Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration rights appeal for lack of jurisdiction. As in the Barachina appeal, the appellant was directed not to return to work until further notice because, under its National Reassessment Process, it was determined that there were no operationally necessary tasks meeting her medical restrictions at her work facility. The AJ dismissed the appeal on the ground that the appellant failed to make a nonfrivolous allegation of facts supporting the assertion that the agency’s denial of restoration was arbitrary and capricious.

Holdings: The Board reversed the initial decision and remanded the case for further adjudication. As in Barachina, the undisputed evidence indicates that the agency limited its search for available work to the facility in which the appellant had been employed, and did not extend the search to the local commuting area, as required by 5 C.F.R.  353.301(d).

Appellant: Lonnie G. Robertson

Agency: Department of Transportation

Decision Number: 2009 MSPB 229

Docket Number: DE-0752-09-0072-I-1

Issuance Date: December 15, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Lack of Candor
Hearings
- Right to a Hearing

The appellant petitioned for review of an initial decision that affirmed his removal on charges of abuse of authority and lack of candor. The agency removed the appellant from his position as a Criminal Investigator based on 2 specifications of abuse of authority and 3 specifications of a lack of candor in providing information to agency investigators. After holding a hearing, the AJ sustained 1 specification of the abuse of authority charge and 2 specifications of the lack of candor charge. The sustained specification of abuse of authority related to the appellant’s alleged harassment of a neighbor based on an outstanding warrant issued by the State of Colorado for her arrest. The appellant maintained that his actions were appropriate because he was acting under state authority to assist a local police officer. The AJ rejected this contention, citing the officer’s testimony that he did not command the appellant to assist him in arresting the neighbor. One of the sustained specifications of lack of candor related to the appellant’s statements to investigators concerning the incident at the neighbor’s residence involved in the first charge. The second related to the appellant’s statements as to his whereabouts on a particular date.

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

1. The Board affirmed the initial decision with respect to the abuse of authority charge in several respects:

a. The AJ properly rejected the appellant’s defense under state law because the local police officer did not command or otherwise direct the appellant to assist him in arresting the neighbor.

b. The AJ properly found that the appellant was not authorized to display his agency badge to witnesses during the incident with the neighbor.

c. The Board affirmed the AJ’s finding that the appellant’s due process rights were not violated by the deciding official’s ex parte communication with the local police officer because this contact did not rise to the level of introducing new and material information into the removal process.

2. The Board vacated the AJ’s findings with respect to the specific actions of the appellant during his interaction with the neighbor to the extent those findings were based on the testimony of two sisters who were witnesses.

a. Under 5 U.S.C.  7701(a)(1), an appellant has a right to a hearing at which the AJ may observe the testimony of witnesses.

b. Although the Board has held that an AJ can satisfy this right by conducting a videoconference hearing, even if the appellant objects, the Board has not extended this holding to telephonic hearings, as an AJ’s ability to observe the demeanor of witnesses while they are testifying over the telephone would appear to be far more limited than it would be if those witnesses testified before properly functioning videoconference equipment.

c. Here, the AJ erred in allowing the sisters to testify by telephonic hearing despite the appellant’s objection.

3. The case must be remanded for further findings on the lack of candor charge.

a. Under Ludlum v. Department of Justice, 278 F.3d 1280 (Fed. Cir. 2002), a lack of candor charge may be proven by showing that the respondent failed “to disclose something that, in the circumstances, should have been disclosed in order to make the given statement accurate and complete.”

b. Because the agency’s summary of its investigatory interview does not include the questions asked of the appellant, it is not readily apparent from the documentary evidence what the appellant should or should not have been expected to disclose in response to the questions.

c. The AJ sustained the specification of this charge relating to the appellant’s whereabouts on a particular date on the basis that he gave incomplete, vague, or misleading responses to the agency investigators. That was not the basis of the specification, however; the agency essentially alleged that the appellant maintained that he arrived at the office at 8:30 a.m. that day when other evidence suggested that he did not. The AJ should have determined whether the appellant in fact arrived at work when he said he did.

Appellant: Rober L Michaels

Agency: Department of Defense

Decision Number: 2009 MSPB 230

Docket Number: AT-4324-09-0704-I-1

Issuance Date: December 16, 2009

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that dismissed his USERRA appeal for failure to state a claim upon which relief can be granted. The appellant filed an appeal against his current employer, the Department of Defense (DOD), seeking review of his leave record to determine if he had been improperly charged leave for the years 1982 to 1996 during times he performed military duty. It was undisputed that the appellant was not a DOD employee during this period, however; he was employed by the Department of the Army. The AJ found that the appellant had established jurisdiction, but that he had failed to state a claim upon which relief could be granted because DOD could not have improperly administered the military leave at issue.

Holdings: The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction. The appellant failed to make a nonfrivolous allegation of the jurisdictional requirement that the agency denied him a benefit of employment. The agency in question would be the Department of the Army. The appellant may file a new USERRA appeal against that agency.

Appellant: Fernando S. Eagleheart

Agency: United States Postal Service

Decision Number: 2009 MSPB 231

Docket Number: SF-0752-06-0167-B-1

Issuance Date: December 16, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance - Timeliness

The appellant petitioned for review of a remand initial decision that dismissed his petition for enforcement (PFE) as untimely filed. The underlying appeal of a removal was resolved by a settlement agreement in which the agency agreed to rescind the removal and the appellant agreed to resign. On petition for review (PFR), the appellant challenged the validity of the settlement agreement. Replying to the agency’s response to the PFR, the appellant also alleged that the agency had breached the settlement agreement by processing personnel forms that indicated he resigned pending an inspection service case. In an Opinion and Order, 102 M.S.P.R. 672 (2006), the Board dismissed the PFR as untimely filed without good cause shown, but advised the appellant that he should file a PFE if he wished to pursue his claim that the agency breached the settlement agreement. In May 2008, 21 months after the Board issued its decision denying the PFR, the appellant filed a PFE. The AJ issued an initial decision finding that the agency had not breached the agreement. In a second Opinion and Order, 110 M.S.P.R. 642 (2009), the Board vacated the initial decision, finding that the agency had materially breached the settlement agreement, but noted that there was an issue concerning the timeliness of the PFE, and remanded the case for resolution of that issue. On remand, the AJ found that the appellant did not exercise due diligence or ordinary prudence by waiting 2 years after he learned of the agency’s breach to file his PFE.

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

1. A petition for enforcement alleging a breach of a settlement agreement must be filed within a reasonable time after the petitioner becomes aware of the breach.

2. The record supports the AJ’s determination that the appellant first became aware of the alleged noncompliance in April 2006, during the processing of his first PFR. At that time, he requested the very action that he now seeks in his PFE – rescission of the agreement and reinstatement of his appeal. Under these circumstances, the Board found that the appellant acted diligently in attempting to use the Board’s appellate processes to seek a remedy for the agency’s alleged noncompliance with the settlement agreement, even though he delayed in filing a formal PFE.

3. After reiterating its previous determination that the agency had materially breached the agreement, the Board remanded the case to the regional office so that the appellant could make an informed choice between rescinding and enforcing the agreement.

COURT DECISIONS

Petitioner: Alice A. Dorsey

Respondent: Office of Personnel Management

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3071

Issuance Date: November 25, 2009

Retirement
- Survivor Annuity

At issue was whether the petitioner was entitled to a survivor annuity based on the federal service of her late spouse. It was undisputed that the decedent, who was unmarried when he retired, did not file the appropriate forms for electing a survivor annuity within 2 years of his marriage to the decedent. He instead filed a form for providing the petitioner a lump-sum benefit, plus a form for designating her for life insurance benefits.

Holdings: A majority of the court affirmed the Board’s decision, which affirmed OPM’s determination that the petitioner was not entitled to a survivor annuity, finding that the Board’s decision was supported by substantial evidence.

In a dissent, Judge Prost pointed to undisputed evidence that the decedent intended to and believed that he had elected a survivor annuity for the petitioner, but that OPM sent him the wrong forms for accomplishing that result.

Petitioner: Raymond Marshall

Respondent: Department of Health & Human Services

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3086

Issuance Date: December 1, 2009

USERRA/VEOA/Veterans’ Rights

The court reviewed the Board’s decision, 111 M.S.P.R. 1 (2008). It was undisputed that the agency violated the petitioner’s rights under the Veterans Employment Opportunities Act (VEOA) when it selected a non-veteran over him without obtaining approval from OPM. At issue was the proper remedy due the petitioner. The Board ultimately ordered the agency to reconstruct the selection process and subsequently held that the agency complied with its obligations by cancelling its previous selection, and then deciding not to make any selection for the position. The court stated that the issue was “whether reconstruction is the proper remedy under 5 U.S.C.  3330c when (1) an agency violates a veteran’s preference rights during selection in the competitive service and (2) it is undisputed that the agency would have selected the veteran.”

Holdings: The court held that reconstruction of the selection process was not an appropriate remedy under these circumstances. It stated that the agency must offer the petitioner the position for which he applied, and must compensate him for any loss of wages or benefits he suffered by reason of the agency’s VEOA violation. The court additionally found that the petitioner may renew his claim for liquidated damages on the ground that the agency’s violation was willful.