United States Merit Systems Protection Board

Case Report for April 16, 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: Delvin L. Baldwin

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 62

Docket Number: AT-1221-09-0670-W-1

Issuance Date: April 12, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Exhaustion of Remedy
- Protected Disclosure
- Contributing Factor

The appellant filed a petition for review (PFR) of an initial decision that dismissed his IRA appeal for lack of jurisdiction. He alleged that he was terminated from employment during his probationary period for having made 5 whistleblowing disclosures. Without conducting a hearing, the administrative judge dismissed the appeal for lack of jurisdiction. The judge found that, with respected to 3 of the alleged disclosures, the appellant had failed to exhaust his remedy with the Office of Special Counsel (OSC) as required by 5 U.S.C.  1214(a)(3). The judge found that the appellant had exhausted his OSC remedy with respect to the remaining 2 disclosures – that his supervisor violated his First Amendment Rights when he challenged her instructions, and that 2 co-workers threatened him with physical harm – but that the appellant failed to make a nonfrivolous allegation of a whistleblowing disclosure in these instances.

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

1. The appellant exhausted his OSC remedies with respect to all of his alleged disclosures.

a. An appellant may demonstrate exhaustion of his OSC remedies through his initial OSC complaint as well as evidence that he amended or supplemented his initial OSC complaint.

b. Here, the appellant presented evidence that he brought all 5 of his alleged disclosures to OSC’s attention.

2. The appellant failed to nonfrivolously allege that 4 his alleged disclosures were protected by 5 U.S.C.  2302(b)(8).

a. The administrative judge correctly determined that the appellant’s disclosure of an alleged violation of his First Amendment rights did not constitute a whistleblowing disclosure. He failed to nonfrivolously allege that the supervisor’s telling him, “[w]atch your tone young man,” evidenced a reasonable belief of any of the wrongs listed in subsection (b)(8).

b. Although the appellant quoted the language of 5 U.S.C.  2302(b)(2), which makes it a prohibited personnel practice to solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics, and the Board has held that some allegations of violations of subsection (b)(2) can constitute whistleblowing, the appellant did not adduce any facts that would constitute a nonfrivolous allegation of a violation of this provision.

c. The appellant failed to make nonfrivolous allegations that his disclosures reflecting his belief that his supervisor was “thwarting orders” from higher management officials or that her directives destabilized agency objectives were protected under 5 U.S.C.  2302(b)(8).

3. The appellant made a nonfrivolous allegation of a whistleblowing disclosure regarding a co-worker who waved a box cutter at him in a threatening manner.

a. The appellant’s disclosure clearly implies that he feared his co-worker was trying to physically injure or attack him when the co-worker waved a box cutter at him.

b. A disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the co-worker’s actions evidenced a violation of law, in this instance a criminal “assault,” which entails the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harm or offensive contact.

4. The appellant made a nonfrivolous allegation that the physical threat disclosure was a contributing factor in the agency’s decision to terminate his probationary employment.

a. Although the appellant did not specifically allege that the deciding official had knowledge of this disclosure, he can show that his disclosure was a contributing factor by proving that the deciding official was influenced by an individual with actual knowledge of the disclosure.

b. The appellant has alleged facts to support a nonfrivolous allegation that agency decision makers had imputed knowledge of the physical violence disclosure.

c. The termination action occurred within a period of time (4 months) after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in his termination.

5. The administrative judge failed to provide the appellant with proper jurisdictional notice as to a probationary termination separate from his IRA appeal.

Appellant: Reginald B. Day

Agency: United States Postal Service

Decision Number: 2010 MSPB 63

Docket Number: AT-0752-09-0163-X-1

Issuance Date: April 13, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Compliance

This case was before the Board pursuant to a recommendation of the administrative judge that the Board grant the appellant’s petition for enforcement (PFE) and enforce the terms of a final Board order. In the underlying appeal, the judge found that the agency’s placement of the appellant on enforced leave for more than 14 days constituted a constructive suspension. The judge reversed the agency action and ordered the agency to provide the appellant with back pay. The appellant later filed a PFE stating that the agency had failed to pay him back pay for the constructive suspension period. The agency argued that the appellant was not entitled to back pay for the period in question because he was not ready, willing, and able to work during the period. The administrative judge found the agency’s argument without merit and that the appellant was entitled to back pay. Accordingly, the judge recommended that the appellant’s PFE be granted, and the matter was referred to the Board. In his compliance recommendation, the judge informed the agency that, if it agreed with the recommendation, it had 15 days to submit to the Clerk of the Board evidence of its compliance, and that, if it decided not to take the actions required by the compliance recommendation, it had 30 days to file written arguments supporting its disagreement with the recommendation. The Clerk of the Board reiterated this information in an acknowledgment order. Despite the instructions of the compliance recommendation and the acknowledgment order, the agency has failed to inform the Clerk of the Board whether it agrees or disagrees with the compliance recommendation.

Holdings: The Board found the agency in noncompliance and ordered it to submit evidence and argument demonstrating compliance. The Board also identified the agency official responsible for compliance and stated that, if the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.

Appellant: Denise Lincoln

Agency: United States Postal Service

Decision Number: 2010 MSPB 64

Docket Number: SF-0353-09-0590-I-1

Issuance Date: April 14, 2010

Action Type: Restoration to Duty After Recovery from Compensable Injury

Board Procedures/Authorities
- Withdrawal of Appeal

The appellant petitioned for review of an initial decision that dismissed her appeal as withdrawn. The appellant, a non-preference eligible, is employed as a Postal Clerk. She suffered a job-related injury in 1995. By April 2008, the appellant had partially recovered and was working a modified light duty assignment. A year later, her supervisor informed her that the agency could not identify available operationally necessary tasks within her medical restrictions, and she filed an appeal with the Board alleging that the agency had arbitrarily and capriciously denied her restoration after a compensable injury and placed her on enforced leave. While the appeal was pending, the appellant returned to duty on a new modified assignment. In a status conference, the administrative judge informed the appellant that she could not pursue her constructive suspension claim because she lacked adverse action rights. The judge further stated that, because the appellant had been restored to duty, the appeal would likely be dismissed as moot, but that the appellant had made a nonfrivolous allegation of jurisdiction under 5 C.F.R.  353.304(c), and was entitled to a hearing. The parties later submitted a settlement agreement under which the appellant agreed to withdraw her Board appeal and the agency agreed that she could grieve the matter instead. The judge advised the parties that, since the appellant was already entitled to pursue a grievance, the agreement was unenforceable due to lack of consideration. The appellant subsequently filed a notice withdrawing her appeal and the judge issued a decision dismissing the appeal. On PFR, the appellant asserts that her withdrawal was “an act of frustration” and the result of “misinformation” by the administrative judge.

Holdings: The Board denied the appellant’s pleading, whether considered as a petition for review or as a request for reopening:

1. An appellant’s withdrawal of an appeal is an act of finality that removes the appeal from the Board’s jurisdiction. A voluntary withdrawal must be clear, decisive, and unequivocal.

2. The record reflects that the appellant unequivocally expressed her intent to withdraw the appeal, both in the agreement and in the withdrawal letter that followed. The appellant has not shown that her decision to withdraw the appeal was involuntary due to misinformation.

3. To the extent the appellant’s pleading may be construed as a request to reopen her withdrawn appeal, the Board denied the request. Absent unusual circumstances not present here, such as misinformation or new and material evidence, the Board will not reinstate an appeal once it has been withdrawn.

4. The Board clarified its case law as to when an attempt to reinstate an appeal that was dismissed as withdrawn will be treated as a new, late-filed appeal as well as a request to reopen the original appeal.

a. The origin of this doctrine stems from Duncan v. U.S. Postal Service, 29 M.S.P.R. 72 (1985), and Nabors v. U.S. Postal Service, 31 M.S.P.R. 656 (1986). These cases stand for the proposition that when an appellant whose initial appeal was withdrawn seeks to renew her appeal at the regional level, whether by requesting reopening or filing a second appeal, and the matter the appellant seeks to appeal is within the Board’s jurisdiction, the Board will treat the pleading below as a new appeal.

b. The Board has on several occasions extended the holding of Duncan and Nabors to cases where, as here, the appellant did not file an additional pleading at the regional level, but instead elected to petition the Board for review of the initial decision that dismissed her appeal as withdrawn. The rationale of Duncan and Nabors does not apply in this circumstance, and there is no basis for treating the appellant’s PFR as a new appeal. The Board overruled contrary precedent.

Appellant: Anthony R. Pradier

Agency: United States Postal Service

Decision Number: 2010 MSPB 65

Docket Number: DC-0752-09-0674-I-1

Issuance Date: April 14, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
Board Procedures/Authorities
- Withdrawal of Appeal
Timeliness – PFA

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. In a previous appeal, the appellant challenged his removal from the position of Postal Police Officer. The administrative judge dismissed that appeal after the appellant withdrew it, and that initial decision became the Board’s final decision. About 7 months after the first decision became final, the appellant filed the present appeal, again challenging the same removal action as in the first appeal. The administrative judge issued a jurisdictional order, to which the appellant did not respond. Without holding the requested hearing, the judge dismissed the appeal for lack of jurisdiction, finding, among other things, that the appellant was not an “employee” under 5 U.S.C.  7511 or 39 U.S.C.  1005, and thus did not have the right to appeal his removal to the Board.

Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its own motion. Considering the PFR both as a request to reopen his first appeal that had been withdrawn, as well as a request to review the initial decision of his second appeal, the Board denied the request for reopening and dismissed the second appeal as untimely filed.

1. The Board denied the appellant’s PFR because the appellant failed to put forth any argument establishing error by the administrative judge or to present any new and material evidence that affects the outcome of the case.

2. The Board vacated the initial decision because it was based in part on the administrative judge’s determination that the appellant did not raise any factual allegations or produce any evidence to show that his prior appeal should be reinstated. Administrative judges lack the authority to reopen or reinstate appeals in which there has been a final Board decision; that authority is reserved to the Board.

3. The appellant did not establish a basis for reopening or reinstating his previously dismissed appeal.

4. The appellant did not establish good cause for the delay in filing the new appeal.

COURT DECISIONS

Nonprecedential Decisions

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

Galino v. U.S. Postal Service, No. 2010-3024 (April 8, 2010) (MSPB Docket No. SF-0752-09-0190-I-1) (affirming the Board’s decision, which sustained the appellant’s demotion)

Buenrostro v. Department of Justice, No. 2010-3013 (April 8, 2010) (MSPB Docket No. SF-0752-09-0072-I-1) (dismissing the appeal for lack of jurisdiction)

Trobovic v. General Services Administration, No. 2010-3004 (April 8, 2010) (MSPB Docket Nos. NY-0752-07-0202-C-1 et al.) (affirming the Board’s decision, which denied the appellant’s petition for enforcement of a settlement agreement)

Jenkins v. Smithsonian Institution, No. 2010-3046 (April 9, 2010) (MSPB Docket No. DC-315H-09-0764-I-1) (affirming the Board’s decision, which dismissed an appeal of a probationary termination for lack of jurisdiction)

Winlock v. Department of Homeland Security, No. 2009-3170 (April 9, 2010) (MSPB Docket No. DA-0752-08-0261-I-1) (affirming per Rule 36 the Board’s decision, which reversed the agency’s removal action)

Swink v. Merit Systems Protection Board, No. 2009-3249 (April 12, 2010) (MSPB Docket No. CH-752S-09-0328-I-1) (affirming the Board’s decision, 111 M.S.P.R. 620 (2009), which dismissed an appeal of an alleged suspension for lack of jurisdiction)

Gaghan v. Office of Personnel Management, No. 2009-3253 (April 12, 2010) (MSPB Docket No. PH-0831-08-0559-I-1) (affirming per Rule 36 the Board’s decision, 111 M.S.P.R. 397 (2009), which dismissed the appeal as settled)

Adams v. Department of Defense, No. 2010-3041 (April 13, 2010) (MSPB Docket No. DC-0752-09-0620-I-1) (affirming the Board’s decision, which sustained the appellant’s indefinite suspension based on a suspension of his security clearance)

Auston v. Merit Systems Protection Board, No. 2009-3214 (April 14, 2010) (MSPB Docket No. CH-1221-09-0041-W-1) (affirming the Board’s decision, which dismissed the appellant’s IRA appeal for lack of jurisdiction)