United States Merit Systems Protection Board

Case Report for February 26, 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: Michael K. Brown

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 34

Docket Number: DC-0842-01-0304-X-1; DC-0842-02-0233-X-1

Issuance Date: February 19, 2010

Action Type: Retirement/Benefit Matter

Compliance

This case was before the Board pursuant to an administrative judge’s Recommendation finding the agency in noncompliance with final Board orders in these appeals.

Holdings: Based on evidence submitted by the agency following the Recommendation, the Board found that the agency is now in compliance and dismissed the appeals as moot.

Appellant: Dennis K. Morris

Agency: Department of the Army

Decision Number: 2010 MSPB 35

Docket Number: SF-3443-09-0296-I-1

Issuance Date: February 19, 2010

USERRA/VEOA/Veterans’ Rights
Jurisdiction

The appellant petitioned for review of an initial decision that dismissed this appeal for lack of jurisdiction under the Veterans Employment Opportunities Act (VEOA). The agency filled a position by hiring a preference-eligible veteran using the Veterans Readjustment Appointment (VRA) authority of 38 U.S.C.  4214. In doing so, the agency did not issue a vacancy announcement; it instructed its personnel office to appoint a specific individual outside of its workforce to the position using the VRA appointment authority. The appellant asserted that he was qualified for a VRA appointment, that he would have applied for the position if the vacancy had been announced, and that he had a right to compete for the position. In an initial decision based on the written record, the administrative judge dismissed the appeal, finding that the appellant had failed to allege facts establishing jurisdiction under VEOA or any other basis.

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

1. The administrative judge erred in dismissing the appeal for failure to establish the Board’s VEOA jurisdiction without properly informing the appellant of the jurisdictional issue.

2. The Board has jurisdiction over this VEOA appeal.

a. The appellant showed that he exhausted his remedy with the Department of Labor.

b. The appellant made nonfrivolous allegations that he is a veteran within the meaning of 5 U.S.C.  3304(f)(1), that the action took place after the enactment of the Veterans’ Benefits Improvement Act of 2004, and that the agency denied him the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications outside its own workforce.

c. With regard to the last element, the Board broadly construed the appellant’s claim that the agency denied him the right to compete, noting that it had made no determination at this stage that the appellant in fact had a right to compete.

3. The appeal must be remanded for a finding on the question of whether the agency was required to use merit promotion competitive procedures and issue a vacancy announcement for the position in question.

a. Under 5 U.S.C.  3304(f)(1), preference eligibles and covered veterans “may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.”

b. There is nothing in this language on its face that requires agencies to use competitive promotion procedures when filling a vacancy, and the Board found no authority for interpreting it as doing so.

c. A VRA appointment is an excepted-service appointment to a position normally in the competitive service. The issue is whether the agency properly relied on the VRA to fill the position noncompetitively. If so, then the agency was not required to use competitive merit promotion procedures and  3304(f)(1) was never triggered. However, if the agency was otherwise required to use merit promotion procedures in filling the position, and failed to properly announce the position, the appellant may be entitled to relief.

d. Remand is necessary, as the parties were not placed on express notice as to the dispositive issue.

Appellant: Victor Galvan

Agency: Equal Employment Opportunity Commission

Decision Number: 2010 MSPB 36

Docket Number: DA-0432-09-0671-I-1

Issuance Date: February 19, 2010

Appeal Type: Performance

Action Type: Removal

Jurisdiction
Mixed Case Procedures

The appellant petitioned for review of an initial decision that dismissed his removal appeal as prematurely filed. The basis for this disposition was the administrative judge’s finding that the appellant elected the equal employment opportunity option of 5 U.S.C.  7702(a) before he filed his Board appeal, and that, since he had not received a final agency decision and 120 days had not elapsed since filing his discrimination complaint, the Board appeal was prematurely filed.

Holdings: The Board denied the appellant’s PFR, vacated the initial decision, and remanded the appeal for further adjudication. The Board concluded that it did not matter whether the appellant made a valid election to pursue the agency’s EEO procedure before he filed his Board appeal. Since more than 120 days have now elapsed, he is entitled to pursue his mixed case complaint before the Board.

Appellant: Socorro Ramirez-Evans

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 37

Docket Number: AT-315H-09-0681-I-1

Issuance Date: February 19, 2010

Action Type: Probationary Termination

Jurisdiction - Probationers

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. In her appeal, the appellant indicated that she was a non-preference eligible competitive service employee terminated during her initial probationary period and that the agency wrongfully terminated her based on her marital status. In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant is not an “employee” under 5 U.S.C.  7511 who is entitled to appeal her termination as an adverse action, and that she failed to make a nonfrivolous allegation under 5 C.F.R.  315.806 that her termination was based on marital status discrimination.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, and affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. The Board denied the appellant’s PFR because she failed to present new and material evidence or show that the initial decision was based on an erroneous interpretation of statute or regulation that should result in a different outcome.

2. The appeal must be dismissed for lack of jurisdiction.

a. The record shows that the agency appointed the appellant to the excepted service, not the competitive service.

b. The appellant did not meet the requirements for an excepted service employee under 5 U.S.C.  7511(a)(1)(C).

c. As an individual in the excepted service, the appellant has no regulatory right to appeal under 5 C.F.R.  315.806, which applies only to individuals in the competitive service.

Appellant: Rachel Simnitt

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 38

Docket Number: NY-1221-09-0347-W-1

Issuance Date: February 19, 2010

Appeal Type: Individual Right of Action (IRA)

Jurisdiction
- Probationers
- Whistleblower Protection Act

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. The agency terminated the appellant from her position as a Medical Supply Technician 2 days before the end of her probationary period for “conduct and performance” issues arising after her appointment. The appellant asserted that the agency terminated her in retaliation for whistleblowing, namely that she disclosed “an issue of medical instruments not being properly reprocessed” and “unclean items coming from decontamination.” She alleged that she filed a complaint with the Office of Special Counsel (OSC) on September 1, 2009, the same date her Board appeal was filed. The administrative judge issued a jurisdictional order directing the appellant to submit evidence and argument establishing jurisdiction over her IRA appeal. The appellant did not respond to the jurisdictional order; nor did she respond to the agency’s motion to dismiss the appeal on the ground that she had exhausted her OSC remedy. The administrative judge dismissed the appeal, finding that the appellant failed to show that the matter she was appealing was an otherwise appealable action, or that she had exhausted her remedies before OSC.

On PFR, the appellant submitted evidence that she filed a complaint with OSC on September 1, 2009.

Holdings: The Board granted the appellant’s PFR, affirmed the initial decision in part, vacated it in part, and remanded the case to the regional office for adjudication of the appellant’s IRA appeal:

1. The Board affirmed the initial decision insofar as it found that the Board lacks jurisdiction over a direct appeal of the appellant’s termination during her probationary period.

2. To meet the exhaustion requirement of 5 U.S.C.  1214(a)(3), an IRA appellant must show that she submitted a complaint with OSC and either that she has received notification that OSC has terminated its investigation or that 120 days have elapsed since the complaint was filed.

3. The administrative judge correctly dismissed the IRA appeal as prematurely filed, because 120 days had not elapsed since the complaint was filed.

4. Nevertheless, 120 days have now elapsed, and 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.

Appellant: Jeanne Mfotchou

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 39

Docket Number: DC-0752-09-0762-I-1

Issuance Date: February 19, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction – “Employee”

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. The appellant filed an appeal after tendering her resignation from her position as a registered nurse. The record indicated that the appellant had received an excepted appointment under 38 U.S.C.  7405(a)(1). In dismissing the appeal for lack of jurisdiction, the administrative judge found that, as an appointee under this statutory provision, the appellant was not an “employee” entitled to appeal a removal under 5 U.S.C. chapter 75.

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

1. The Board considered the appellant’s response to the administrative judge’s jurisdictional order, as it was unclear whether the judge had considered it.

2. The appellant’s position of registered nurse is listed in 5 U.S.C.  7401(1). Under 38 U.S.C.  7405 and 5 U.S.C.  7511(b)(1), that fact bars the Board from exercising jurisdiction over an involuntary resignation appeal.

Appellant: William E. Scull

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 40

Docket Number: SF-0752-09-0565-I-1

Issuance Date: February 19, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
- “Employee”
- Federal Career Internship Program

The appellant petitioned for review of an initial decision that dismissed his termination appeal for lack of jurisdiction without a hearing. The appellant was a preference eligible employee serving in a non-temporary appointment in the competitive service in the agency’s Bureau of Customs and Border Protection. Effective April 15, 2009, the agency converted the appellant under the Federal Career Intern Program (FCIP) to a position in the Immigration and Customs Enforcement. The FCIP appointment was an excepted service appointment expected to continue for 2 years, with a potential to convert to a career or career-conditional appointment in the competitive service upon satisfactory completion of the internship. On April 14, 2009, the agency issued a notice to the appellant captioned “Notification of Non-conversion,” stating that the FCIP appointment would expire the next day, citing the appellant’s alleged lack of candor regarding an accident in a government-owned vehicle. On April 15, the agency issued an SF-50 indicating that the appellant had been terminated effective April 14.

On appeal to the Board, the administrative judge found that it was undisputed that the appellant was an employee as defined in 5 U.S.C.  7511(a)(1)(B)(i) with the right to appeal an adverse action, but that the appellant failed to make a nonfrivolous allegation that he was subjected to an adverse action within the Board’s jurisdiction because he was separated pursuant to the terms of his FCIP appointment upon the expiration of that appointment, which was not to exceed 2 years.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1. The termination of an FCIP intern upon the expiration of his internship is generally not appealable to the Board.

a. Under the FCIP, created by Executive Order 13,162 (2000), and as implemented by 5 C.F.R.  213.3202(o), appointments are to positions in the excepted service and are not to exceed 2 years. An agency may effect the intern’s noncompetitive conversion to a position in the competitive service upon successful completion of the internship. But if the internship is not so converted, the appointment generally terminates with no further right to federal employment.

b. The termination of an appointment on the expiration date specified as a basic condition of employment at the time the appointment was made simply carries out the terms of the appointment; it does not constitute an adverse action appealable to the Board under 5 U.S.C. chapter 75.

c. It is undisputed that, at the time of his termination, the appellant was an employee with the right to appeal an adverse action. Nevertheless, the appellant’s status as an employee with adverse action appeal rights has no bearing on the question of whether he was actually subjected to an adverse action within the Board’s jurisdiction.

2. The agency took timely affirmative steps to terminate the appellant upon the expiration of his internship appointment.

3. Remand is necessary because it is unclear whether the agency was required to reinstate the appellant upon his non-conversion.

a. Although an FCIP intern’s non-conversion upon the expiration of his internship generally terminates his federal employment with no right to further employment, OPM’s regulation provides an exception where an employee who held a career or career-conditional appointment before entering the FCIP in the same agency fails to complete the FCIP “for reasons unrelated to misconduct or suitability.” In that event, the individual “shall be placed in a career or career-conditional position in the current agency at no lower grade or pay than the one the employee left to accept the position in the FCIP.”

b. Where an intern eligible for placement under this exception otherwise has adverse action appeal rights, the termination of his employment upon the expiration of his FCIP internship constitutes an adverse action within the Board’s jurisdiction.

c. An FCIP intern separated from service upon the expiration of his internship may establish Board jurisdiction by establishing that: (1) immediately prior to his FCIP appointment, he held a career or career-conditional appointment in the same agency; (2) his failure to complete the internship successfully was for reasons unrelated to misconduct or suitability; and (3) he is an “employee” within the meaning of 5 U.S.C.  7511.

d. The appellant clearly meets the third criterion, but it is not clear whether he meets the first or second.

Appellant: David P. Gessert

Agency: Department of the Treasury

Decision Number: 2010 MSPB 41

Docket Number: DC-0752-09-0149-I-2

Issuance Date: February 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Jurisdiction
- Reduction in Pay/Rank/Grade

The agency petitioned for review of an initial decision that reversed the appellant’s demotion. In 2005, the agency appointed the appellant to a GS-12 excepted service position not to exceed 2 years using the Presidential Management Fellows (PMF) program. In 2006, the agency promoted the appellant to the GS-13 level, the full performance level for his position. Later the same year, the agency reassigned the appellant to a different position at the GS-13 level, the full performance level for the new position. Upon the completion of the 2-year internship in 2007, the agency converted the appellant to a career appointment and simultaneously promoted him to the GS-14 level. The agency later took action to return the appellant to the GS-13 level on the basis that it lacked the legal authority to noncompetitively promote him to the GS-14 level. On appeal to the Board, the administrative judge found that the appellant had been improperly demoted, concluding that the agency failed to establish that the promotion was contrary to law or regulation. The administrative judge found that, under 5 C.F.R.  335.103(c)(3)(i), the agency had the discretion to noncompetitively promote an employee appointed into the competitive service by noncompetitive conversion or noncompetitive appointment.

Holdings: The Board granted the agency’s PFR, vacated the initial decision, and dismissed the appeal for lack of jurisdiction:

1. Although the general rule is that a reduction in an employee’s rate of basic pay is appealable to the Board, an exception exists when an agency reduces an employee’s basic pay from a rate that is contrary to law or regulation. When an agency contends that it reduced an employee’s pay to correct what it believes was an error in setting pay, it bears the burden of showing that it set the employee’s pay at a rate contrary to law or regulation.

2. The Board agreed with the agency that the administrative judge misconstrued 5 C.F.R.  335.103(c)(3)(i), observing that the judge’s interpretation “would constitute a significant exception to the general requirement that promotions be subject to competitive procedures.” The Board also relied on OPM’s PMF Program Guide, which provides that “Fellows who meet agency requirements for the next grade level may be non-competitively promoted within their career ladders at the successful completion of the Program.” (emphasis added) Here, GS-13 was the top of the career ladder for the position in question. The Board concluded that the agency did not have the discretion to noncompetitively promote the appellant to the GS-14 level.

Appellant: Guillermo Mojarro

Agency: United States Postal Service

Decision Number: 2010 MSPB 42

Docket Number: SF-0752-09-0163-I-1

Issuance Date: February 25, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Constructive Suspension

The appellant petitioned for review of an initial decision that found that he was constructively suspended and ordered cancellation of that action. Although the appellant made a variety of claims in his appeal, the administrative judge found that only one – a constructive suspension claim – might be within the Board’s jurisdiction. Specifically, the appellant asserted that he had been constructively suspended for more than 14 days because the agency denied his December 9, 2008 request to return to work. At the commencement of a hearing, the administrative judge stated that the Board had jurisdiction over the appeal in that the appellant’s absence after December 9, 2008, constituted a constructive suspension, and that the hearing was primarily intended to address the appellant’s claim of disability discrimination. In the initial decision, the judge found that the appellant was suspended from December 9, 2008, until March 24, 2009, but that the appellant failed to prove that the agency discriminated against him on the basis of disability.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and remanded to the appeal to the regional office for further adjudication:

1. The Board denied the appellant’s PFR because it failed to meet the criteria of 5 C.F.R.  1201.115(d). The Board reopened the appeal on its own motion to address the administrative judge’s finding that the Board has jurisdiction over this appeal because the appellant raised a nonfrivolous allegation that he was constructively suspended for more than 14 days.

2. 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 key question for jurisdictional purposes is whether the employee or the agency initiated the absence; if the absence is involuntary, i.e., at the direction of the agency, then the employee has been constructively suspended.

3. In constructive adverse action appeals, nonfrivolous allegations do not establish jurisdiction; rather, the appellant must prove by preponderant evidence (more likely true than not) that the action was involuntary. The administrative judge erred in finding that the appellant established jurisdiction by making a nonfrivolous allegation of a constructive suspension.

4. Remand is necessary because the current record is insufficient to determine whether the appellant proved that he was constructively suspended from December 9, 2008, through March 24, 2009.

5. To ultimately prevail on his constructive suspension claim, the appellant must prove that he was able to perform the full duties of his position of record or that the agency improperly failed to accommodate him with a light-duty assignment.

COURT DECISIONS

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

Weed v. Social Security Administration, No. 2009-3255 (Feb. 19, 2010) (MSPB Docket No. DE-3443-05-0248-X-1, 111 M.S.P.R. 450 (2009)) (affirming the Board’s decision, which found that the agency was in compliance with its obligations and dismissed the appellant’s petition for enforcement as moot)

Brady v. U.S. Postal Service, No. 2008-3359 (Feb. 19, 2010) (MSPB Docket No. AT-0752-07-0324-I-1) (affirming without opinion the Board’s decision, which affirmed the appellant’s removal)