United States Merit Systems Protection Board

Case Report for January 29, 2010


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: Jamie B. Swidecki

Agency: Department of Commerce

Decision Number: 2010 MSPB 18

Docket Number: SF-4324-09-0759-I-1

Issuance Date: January 25, 2010

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

USERRA/VEOA/Veterans’ Rights
Jurisdiction

The appellant petitioned for review of an initial decision that dismissed his USERRA appeal for lack of jurisdiction. The appellant alleged, among other things, that he is a preference eligible disabled veteran, that he had previously worked for a component of the agency, the U.S. Census Bureau, and that the agency denied his application for reemployment with the Census Bureau because of his uniformed service. Without conducting the requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s statements that he was discriminated against based on his veteran’s status were conclusory and unsupported.

Holdings: The Board granted the appellant’s petition for review (PFR), reversed the initial decision, and remanded the case for further adjudication:

1. A claim of discrimination under USERRA should be broadly and liberally construed. The weakness of the assertions in support of a claim is not a basis to dismissed a USERRA appeal for lack of jurisdiction; rather, if the appellant fails to develop his contentions, his USERRA claim should be denied on the merits. An appellant who raises a USERRA claim has an unconditional right to a hearing.

2. The appellant established Board jurisdiction over his USERRA discrimination appeal, as he made nonfrivolous allegations that: he performed duty in a uniformed service of the United States; the agency was aware of his prior uniformed service; that it denied him employment in a temporary census position; and that this denial was, at least in part, due to his prior uniformed service.

3. On remand, the appellant must prove by preponderant evidence that his military status was at least a motivating or substantial factor in the agency’s decision to deny him employment.

Petitioner: Social Security Administration

Respondent: Danvers E. Long

Decision Number: 2010 MSPB 19

Docket Number: CB-7521-08-0019-T-1

Issuance Date: January 27, 2010

Appeal Type: Actions Against ALJs

Actions Against ALJs
Evidence - Credibility
Nexus

The petitioner (agency) filed a PFR of an initial decision in which the administrative law judge (ALJ) assigned by the Board to hear this case (presiding official) sustained one of the 2 specifications of the charge of conduct unbecoming an ALJ that the agency brought against the respondent, an ALJ with the agency’s Office of Disability, Adjudication and Review. The presiding official found good cause to suspend the respondent for 45 days, rather than to remove him as requested by the agency. The charge related to an off-duty incident in which the respondent was alleged to have “repeatedly struck, grabbed, and pushed” the woman with whom he lived, who was the mother of their young child (specification 1), and to have struck their child (specification 2). (In the second specification, the allegation was that the respondent accidentally hit the child, who was being held by her mother, in the course of trying to strike the mother.) The presiding official found that the agency proved the first specification “in substance,” but that it did not prove the second specification. The presiding official also found that there was a nexus between the proven misconduct and the respondent’s position as an ALJ, but concluded that there was good cause for the imposition of a 45-day suspension, rather than removal as recommended by the agency.

The agency filed a PFR contending that the presiding official erred in not sustaining both charges, and that removal was the appropriate penalty. The respondent filed a cross-PFR in which he argued that the presiding official erred in sustaining the first specification, that there was an insufficient nexus between his alleged off-duty misconduct and his position to find good cause for a disciplinary action, and that the penalty was excessive.

Holdings: The Board granted the agency’s PFR, rejected the respondent’s cross-PFR, and affirmed the initial decision as modified, finding good cause to remove the respondent:

1. The Board denied the motion of the Association of Administrative Law Judges to intervene in the appeal, but considered its amicus brief.

2. The presiding official did not err in denying the agency’s motion to amend its complaint after the hearing to add a specification of false testimony in support of its charge against the respondent.

3. The Board has original jurisdiction to adjudicate actions against administrative law judges, and may take an action against an ALJ only for “good cause” as determined after a hearing. The agency must prove good cause by a preponderance of the evidence.

4. The Board found that the agency proved both specifications of the charge of conduct unbecoming an ALJ by preponderant evidence. In so finding, the Board acknowledged that, when the judge’s findings are explicitly or implicitly based on demeanor, the Board may make contrary determinations of fact only where it articulates sound reasons, based on the record, for its contrary evaluation of the evidence. The Board found such “sound reasons” in this case.

5. The Board found that the respondent’s misconduct constituted good cause for disciplinary action.

a. In so finding, the Board noted that, because the administrative law judge position is a “position of prominence, whose incumbents usually engender great respect,” ALJs are required to conduct themselves in a fitting matter. At a minimum, ALJs must not violate generally accepted rules of conduct.

b. The respondent’s actions constituted conduct unbecoming an ALJ, i.e., conduct which was improper, unsuitable or detracting from one’s character or reputation, and was inconsistent with maintaining respect for the administrative adjudicatory process.

c. The respondent’s argument that the agency was required to prove the elements of a criminal charge under Florida law was incorrect. When an agency charges an employee with a crime, it must establish the elements of that offense, but the agency did not charge the respondent with criminal actions.

d. In a chapter 75 proceeding governed by 5 U.S.C.  7513, an agency must prove 3 distinct elements, including that there is a nexus between the charged conduct and the “efficiency of the service.” Actions against ALJs, however, are authorized under a different statute, 5 U.S.C.  7521, that requires a showing of “good cause,” and the good cause standard is not equivalent to the efficiency of the service standard. In determining whether good cause exists for disciplinary action against an ALJ, the Board does not undertake a separate analysis of nexus. The good cause standard has been met in this case.

6. In original jurisdiction cases under 5 U.S.C.  7521, it is the Board, rather than the employing agency, which selects the appropriate penalty. After assessing the appropriate Douglas factors, the Board determined that removal is the appropriate penalty.

Appellant: Nancy R. Keys

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 20

Docket Number: DC-0831-07-0325-B-1

Issuance Date: January 27, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFR

The appellant petitioned for review of an initial decision that affirmed OPM’s determination that she was not entitled to a former spouse survivor annuity. The deadline for timely filing was April 3, 2008. On that date, the appellant asked for an extension of time, which was granted, with a new deadline of May 5, 2008. The appellant did not file a PFR until 17 months later, in October 2009. The appellant indicated that the filing was untimely because of sickness, stress, and the illness and death of her sister.

Holdings: The Board dismissed the PFR as untimely filed without good cause shown. It also rejected the appellant’s request for reopening and reconsideration.

Appellant: Gary Donnell Rhett

Agency: United States Postal Service

Decision Number: 2010 MSPB 21

Docket Number: AT-0752-09-0408-I-1; AT-0752-09-0484-I-1

Issuance Date: January 27, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
Settlement
- Last-Chance Agreements
- Waiver of Rights

The appellant petitioned for review of two initial decisions that dismissed his appeals for lack of adverse action jurisdiction. Effective September 5, 2008, the agency removed the appellant from his position based on alleged attendance-related misconduct. While a grievance of that action was pending, the parties entered into a last‑chance settlement agreement (LCSA), under which the appellant returned to work. The LCSA also provided that the appellant could be removed for any attendance-related misconduct for a period of 18 months, and that he waived his right to appeal to the Board for any action taken for such misconduct. During the 18-month period, the agency removed the appellant from his position for his alleged breach of the LCSA. The appellant filed appeals of both removal actions. As to the first removal, the administrative judge considered and rejected the appellant’s arguments that the LCSA was invalid, and found that the appellant could not appeal this removal because he had settled it without expressly reserving his right to file a Board appeal of the action. As to the second removal, the administrative judge again found that the LCSA was valid and enforceable, that the appellant breached the agreement when he was absent from work on 5 occasions, and that the appellant could not appeal the second removal because he had waived his appeal rights in the LCSA.

Holdings: The Board denied the appellant’s PFR, reopened the appeals on its own motion, and affirmed the initial decisions as modified, still dismissing both appeals for lack of adverse action jurisdiction. In agreeing with the administrative judge’s conclusion that the last‑chance settlement agreement was valid, the Board noted that the agency had failed to inform the appellant in connection with the first removal action that, as a preference-eligible employee, he had the right to appeal his removal to the Board. The record showed, however, that the appellant knew or should have known that may have had Board appeal rights at the time he entered into the agreement.

Appellant: Sylvia M. Reilly

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 22

Docket Number: DE-831E-07-0359-M-1

Issuance Date: January 27, 2010

Appeal Type: CSRA - Employee Filed Disability Retirement

Jurisdiction
Mootness

This case was before the Board on remand from a decision of the U.S. Court of Appeals for the Federal Circuit, 571 F.3d 1372, which directed the Board to reconsider the appellant’s post-retirement medical evidence in determining her entitlement to disability retirement benefits. On remand, OPM stated that it had reconsidered the medical evidence, determined that the appellant is entitled to disability retirement benefits, and was therefore rescinding its reconsideration decision and granting her a disability retirement annuity. OPM asked the Board to dismiss the appeal as moot.

Holdings: Because OPM has completely rescinded its reconsideration decision, the appeal must be dismissed for lack of jurisdiction. The case cannot be dismissed as moot, however, because the appellant has not yet received all of the relief she could have received if the matter had been adjudicated and she had prevailed.

Appellant: Alvern C. Weed

Agency: Social Security Administration

Decision Number: 2010 MSPB 23

Docket Number: DE-1221-09-0320-W-1

Issuance Date: January 28, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Coverage
- Personnel Actions

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. In an appeal filed in 2005, the appellant asserted that his rights under the Veterans Employment Opportunities Act of 1998 (VEOA) were violated in connection with his non-selection for 2 vacancies because of the agency’s improper use of the Outstanding Scholar Program. The Board agreed that a violation occurred and ordered relief, 107 M.S.P.R. 142 (2007). The appellant filed a second appeal in 2008 alleging that the agency violated VEOA and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when it used the Federal Career Intern Program (FCIP) to non-competitively fill 4 additional vacancies. The Board found that the appellant had stated claims within its jurisdiction, 112 M.S.P.R. 320 (2009). In addition to these Board appeals, the appellant filed 2 matters with the Office of Special Counsel (OSC). The first, filed in 2006, alleged that the agency’s use of the Outstanding Scholar Program in connection with the vacancies involved in the first Board appeal constituted a prohibited personnel practice. The second, a complaint filed in January 2009, alleged that the agency’s action regarding the 4 positions filled using the FCIP constituted retaliation for his disclosure of violations of law, rule, and regulations in his 2006 disclosure to OSC. The appellant filed an IRA appeal following OSC’s termination of its investigation of the complaint.

In dismissing the IRA appeal for lack of jurisdiction, the administrative judge found that: (1) The appellant lacked standing to file an IRA appeal because he was not an agency employee or applicant for employment with the agency when he made his 2006 disclosures or when the agency allegedly took, or failed to take, a personnel action with respect to him; and (2) the appellant’s allegation that the agency used the FCIP process to retaliate against him failed to meet the definition of a “personnel action” under the WPA.

Holdings: The Board granted the appellant’s PFR, reversed the initial decision, found that the Board has jurisdiction over the appellant’s IRA appeal, and remanded that appeal for further adjudication:

1. The appellant has shown that he was an “employee” covered by the WPA when he made his 2006 disclosures to OSC.

a. At the time of his 2006 disclosure, the appellant was a GS-11 employee with the Department of the Air Force.

b. The Board rejected the agency’s argument that the appellant was not a covered employee because he was not employed by the agency alleged to have taken the retaliatory personnel action. The language of the statute does not impose such a limitation, and such a construction would be contrary to the well-established principle that, as a remedial statute, the WPA should be construed broadly.

2. The appellant was subjected to a “personnel action” under the WPA. The agency’s argument that the appellant’s allegation that it improperly used FCIP to fill vacancies was not a “personnel action” covered by the WPA is an unduly narrow and cramped reading of the scope of the statute. Essentially, the appellant alleged that the agency used FCIP as part of a scheme to deny him an “appointment” within the meaning of the WPA. The term “appointment” covers an expansive range of acts and failures to act by an agency, including the appellant’s allegations here.

3. The appellant has otherwise made a nonfrivolous allegation of whistleblower retaliation, i.e., that he made a protected disclosure and that the disclosure was a contributing factor in the agency’s decision to take or fail to take a covered personnel action. It is also undisputed that the appellant exhausted his OSC remedy.

Appellant: Phillip M. Bowman, Jr.

Agency: Department of Agriculture

Decision Number: 2010 MSPB 24

Docket Number: PH-0432-09-0111-I-1

Issuance Date: January 28, 2010

Appeal Type: Performance

Action Type: Removal

Discrimination
- Age Discrimination

The appellant petitioned for review of an initial decision that affirmed his removal for unsatisfactory performance. In addition to finding that the agency met its burden of proof under chapter 43, the administrative judge found that the appellant failed to prove either of his affirmative defenses, age discrimination and reprisal for protect equal employment opportunity activity. With respect to the former, the administrative judge found that the appellant failed to establish a prima facie case. In addition, the administrative judge declined to apply Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), because it was decided after the hearing in this appeal.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, and affirmed the initial decision as modified, still affirming the appellant’s removal:

1. The Board reopened the appeal to apply the appropriate standard to the appellant’s claim of age discrimination.

2. The administrative judge’s analysis was flawed to the extent that it analyzed whether the appellant established a prima facie case. When, as here, the record is complete and the agency has articulated a nondiscriminatory reason for its action, the inquiry proceeds directly to the ultimate question of whether the agency discriminated against the appellant, i.e., whether the appellant produced sufficient evidence to show that the agency’s proffered reason was not the actual reason and that the agency intentionally discriminated against him.

3. The administrative judge erred in failing to apply the standard announced in Gross – that a plaintiff claiming age discrimination must prove by preponderant evidence that age was the “but-for” reason for the challenged adverse action – solely because it was issued following the completion of the hearing in this appeal. Under applicable Supreme Court precedent, when the Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation and must be given full retroactive effect in all cases still open on direct review, regardless of whether the events predate or postdate the Court’s announcement of the rule.

4. Applying the Gross rule to the facts of this case, the Board found that the appellant failed to establish by preponderant evidence that his age was the but-for reason for his removal.

COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Madison v. Department of Defense, No. 2009-3285 (Jan. 22, 2010) (MSPB Docket No. DA-0752-02-0095-C-3) (affirming the Board’s decision, 111 M.S.P.R. 614 (2009), which denied the appellant’s petition for enforcement)

Duboise v. Office of Personnel Management, No. 2009-3154 (Jan. 25, 2010) (MSPB Docket No. DE-0831-08-0403-I-1) (vacating and remanding the Board’s decision, which affirmed OPM’s action denying the appellant’s request for a survivor annuity based on the federal service of her late former spouse)