United States Merit Systems Protection Board

Case Report for April 23, 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: Thomas G. Jarrard

Agency: Department of Justice

Decision Number: 2010 MSPB 66

Docket Number: SF-3330-09-0446-I-1

Issuance Date: April 19, 2010

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veterans’ Rights

The appellant, a veteran with a service connected disability, filed a petition for review (PFR) of an initial decision that denied his request for corrective action under VEOA. At issue were 3 applications for Assistant U.S. Attorney (AUSA) positions, in which the vacancy announcements closed in December 2008 and January 2009. Each of the vacancy announcements noted that they were for excepted service positions, and they required that the applicant “have at least 2 years post-J.D. experience.” The appellant received his law degree in May 2007. The appellant filed a complaint with the Department of Labor, which issued a decision finding the appellant’s complaint to be without merit because, as of the application deadlines, he did not satisfy the advertised position requirement of having at least 2 years of post-J.D. experience.

On appeal to the Board, the Chief Administrative Judge Chief informed the parties that, if she determined that the Board had jurisdiction, she would schedule a hearing and adjudicate the appeal. The agency argued that the Judge should deny the appeal without a hearing because there was no dispute of material fact, in part because the appellant did not have the requisite 2 years of post-J.D. experience. Following the appellant’s response to the agency’s pleading, and without allowing for further development of the record, the Judge issued an initial decision denying the appellant’s request for corrective action on the merits. Although finding that the appellant established jurisdiction over his VEOA claim, the Judge found that the decision could be made on the merits without a hearing because there were no genuine issues of material fact. The Judge specifically found that the appellant failed to demonstrate that there was a genuine dispute regarding whether he was minimally qualified for the AUSA positions.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1. The Board may decide the merits of a VEOA appeal without a hearing where there is no genuine dispute of material fact and one party must prevail as a matter of law. Nevertheless, because the Chief Administrative Judge declined to hold a hearing as she indicated she would in the acknowledgment order, she was responsible for advising the parties that there would be no hearing, for setting a date on which the record would close, and for affording the parties an opportunity to make submissions regarding the merits of the appeal.

2. The Chief Administrative Judge’s failure to notify the parties of when the record would close prejudiced the appellant’s substantive rights because there remain issues of material fact regarding the appellant’s qualifications for the AUSA positions that cannot be resolved on the current record.

a. Although the appellant was facially unqualified for the AUSA positions under the terms of the vacancy announcements, he argues that the agency did not actually exclude him as unqualified at the time it made its decision not to hire him.

b. It is unclear whether any applicable agency or OPM policy or regulation required that the appellant needed to be qualified at the time of the application, at the time of the agency’s selection, or at the time the vacancies were filled.

c. The appellant’s argument that 5 U.S.C.  3311 required the agency to credit some of his pre-J.D. experience toward the post-J.D. experience requirement remains unresolved.

Appellant: Gary S. Schnell

Agency: Department of the Army

Decision Number: 2010 MSPB 67

Docket Number: CH-1221-07-0700-M-1

Issuance Date: April 20, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Exhaustion of Remedy
- Protected Disclosure – Violation of Law
- Personnel Actions
- Contributing Factor
- Clear and Convincing Evidence

The appellant petitioned for review of a remand initial decision that denied his request for corrective action in his IRA appeal. At the time he made the disclosures at issue, the appellant was a GS-11 Supervisory Quality Assurance Specialist. He was responsible for overseeing the Quality Assurance program for work performed on a $109 million contract. Indeed, he wrote the Quality Assurance Surveillance Plan (QASP) for this contract and revised it 17 times. He alleged that the agency retaliated against him for disclosing problems with the inspection process and other matters to the Army Audit Agency (AAA) and the local Inspector General (IG), among others. In the original Board proceeding, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that he engaged in whistleblowing by making a protected disclosure. On appeal to the U.S. Court of Appeals for the Federal Circuit, the court granted the agency’s request to remand the case to the Board for further proceedings.

On remand, the administrative judge found that the appellant established jurisdiction by exhausting his remedy with OSC and making nonfrivolous allegations that he made protected disclosures, and that these disclosures were a contributing factor in covered personnel actions taken by the agency. The judge denied the appellant corrective action on the merits, however, finding that the appellant failed to show that the agency took a “personnel action” against him within the meaning of the WPA. The administrative judge also found that the appellant did not exhaust before OSC his allegation that the agency “divided his job into 3 jobs (in 2007) and singled out his job for elimination.”

Holdings: The Board granted the appellant’s PFR, reversed the remand initial decision, and granted the appellant’s request for corrective action:

1. The administrative judge erred in finding that the appellant did not apply for a temporary position, and that the appellant did not exhaust with OSC his allegation that the agency divided his position into 3 positions and singled out his position for elimination. Both the appellant’s non-selection for the temporary position and the threatened elimination of his positions are personnel actions under 5 U.S.C.  2302(a)(2)(A).

2. The appellant established that he made a protected disclosure and that the disclosure was a contributing factor in an agency personnel action.

a. The appellant disclosed to the AAA that problems existed with the inspection process and other matters, including the QASP, and disclosed to the IG that the agency blurred lines of authority, confused surveillance concepts, employed inexperienced and untrained personnel, failed to provide necessary standards, and overpaid for service. At a minimum, these disclosures implicated a violation of law, rule, or regulation under 5 U.S.C.  2302(b)(8)(A)(i). In particular, these disclosures exposed potential violations of the Federal Acquisition Regulations, 48 C.F.R., part 46, relating to quality assurance in government contracting.

b. The appellant established that his protected disclosures were a contributing factor in the personnel actions taken against him, under the knowledge/timing test of 5 U.S.C.  1221(e)(1).

3. The agency failed to prove by clear and convincing evidence that it would have taken the same personnel actions absent any protected disclosures.

4. The appellant is entitled to corrective action. Under the circumstances of this case, in which the appellant’s previous GS-11 position has been eliminated, and his earliest promotion opportunity may have been lost as a result of reprisal for his disclosures, the Board found that it was appropriate to order the agency to promote the appellant to the GS-12 grade level effective the date of his non-selection for the promotion.

Appellant: Melissa L. Burnett

Agency: Department of Housing and Urban Development

Decision Number: 2010 MSPB 68

Docket Number: CH-3443-09-0829-I-1

Issuance Date: April 20, 2010

Jurisdiction
- “Employee”

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. She had alleged that various agency actions and practices prevented her from advancing during her employment and from being selected for other positions after she was terminated. In dismissing the appeal, the administrative judge found that the appellant had not shown that any of the matters about which she complained were appealable to the Board. On PFR, the appellant argues, among other things, that she raised the propriety of her termination from the agency in 2008.

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 appellant has not shown error in the administrative judge’s finding that the Board lacks jurisdiction over the matters addressed in the initial decision. She is correct, however, that she did raise the propriety of her termination from employment, so the Board addressed that issue.

2. The appellant was not an “employee” with appeal rights under 5 U.S.C.  7511(a)(1)(C)(i), as she was appointed under the Student Temporary Employment Program, and such appointments are not eligible for non-competitive conversion to career or career-conditional appointments. Therefore, the appellant was not serving under an initial appointment pending conversion to the competitive service.

3. The appellant was not an “employee” with appeal rights under 5 U.S.C.  7511(a)(1)(C)(ii) because she lacked 2 years of current continuous service.

Appellants: Travis Canada and Matilde Torres

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 69

Docket Numbers: SF-0752-09-0460-I-1, SF-0752-09-0466-I-1

Issuance Date: April 20, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Defenses – Reprisal
Nexus
Penalty

The appellants petitioned for review of initial decisions that sustained the agency’s actions reducing them in grade and pay from their positions as Supervisory Border Patrol Agents. These personnel actions were taken on the basis of a charge of Conduct Unbecoming based on an incident in which the appellants consumed alcohol while on duty in a government vehicle. The administrative judge found that the agency proved the charge against both appellants, and found no merit to their claims that they were authorized to consume alcohol by their supervisor. The judge rejected their affirmative defense that the action was taken in reprisal for providing testimony favorable to their third-line supervisor in the latter’s Board appeal, found a nexus between the sustained charge and the efficiency of the service, and that the penalty imposed was within the bounds of reasonableness.

Holdings: The Board granted the appellants’ PFRs, affirmed the initial decisions insofar as they sustained the charge against the appellants, found a nexus between the sustained charge and the efficiency of the service, and that the appellants’ failed to prove the affirmative defense of retaliation. The Board vacated the remainder of the initial decisions and remanded the appeals for further adjudication regarding the reasonableness of the penalties.

1. The administrative judge correctly found that the agency proved its Conduct Unbecoming charge and that there is a nexus between the sustained charge and the efficiency of the service.

2. The appellants failed to prove their affirmative defense that the adverse actions were taken in reprisal for providing testimony favorable to their third-line supervisor in the latter’s Board appeal.

a. Both appellants submitted affidavits in the supervisor’s appeal. They suggested that the fact that the agency reduced them in grade and pay, while holding in abeyance their immediate supervisor’s proposed reduction in grade and pay and suspension arising out of the same incident, is evidence of retaliation based on the content of the statements the appellants and their immediate supervisor made during the agency’s investigation of the third-line supervisor.

b. Considering that the immediate supervisor was in a rehabilitation treatment program for alcoholism, the mere fact that the action against him was held in abeyance does not establish retaliation for providing affidavits that were supposedly more favorable to their third-line supervisor.

c. Moreover, the evidence indicates that the appellants’ discipline was proposed by the agency’s Discipline Review Board rather than by any specific agency official, and the appellants failed to provide any evidence indicating a connection between the Discipline Review Board and their involvement in the agency’s investigation of the third-line supervisor and subsequent Board appeal.

3. In her penalty analysis, the administrative judge did not fully consider the appellants’ claim that their supervisors authorized or condoned their consumption of alcohol on the day in question. The appeal must be remanded for further consideration of this issue.

Appellant: Florentino L. Mata

Agency: Department of the Army

Decision Number: 2010 MSPB 70

Docket Numbers: DA-1221-09-0083-W-2; DA-0752-08-0352-I-4

Issuance Date: April 21, 2010

Appeal Type: Individual Right of Action (IRA)

Defenses and Miscellaneous Claims
- Reprisal
- Prohibited Personnel Practices

The appellant petitioned for review of an initial decision that sustained his removal in an adverse action appeal and denied his request for corrective action in an IRA appeal. Following a hearing, the administrative judge found that the agency proved its charges of failure to follow instructions and disrespect, and that the appellant failed to prove his affirmative defenses of discrimination on the basis of national origin, sex, and age. The judge found that an additional affirmative defense – retaliation for protected EEO activity – was untimely filed and precluded the appellant from presenting any evidence or argument on this issue. The judge found a nexus between the sustained charge and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness. With regard to the IRA appeal, the judge found that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of his protected disclosure.

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

1. With the exception of the affirmative defense of retaliation for protected EEO activity, the Board found the appellant’s arguments on PFR to be without merit and affirmed the initial decision.

2. The administrative judge erred in precluding the appellant from presenting any evidence and argument on his claim of retaliation for protected EEO activity.

a. Under 5 C.F.R.  1201.24(b), an appellant may raise a claim or defense at any time before the end of the conference(s) held to define the issues in the case.

b. The administrative judge’s finding that the appellant failed to raise this defense until after the prehearing conference was incorrect. The appellant had raised it in his prehearing submission.

3. The appeal must be remanded for adjudication of this affirmative defense.

Appellant: Curt L. Wheeler

Agency: Department of Defense

Decision Number: 2010 MSPB 71

Docket Number: CH-4324-08-0709-I-2

Issuance Date: April 21, 2010

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

Board Procedures/Authorities
Dismissals Without Prejudice

The appellant petitioned for review of an initial decision that dismissed his appeal without prejudice to refiling. The reason for this action was the administrative judge’s determination that resolution of an issue in the appellant’s related VEOA appeal, which was then pending before the Board members, would be relevant to the proper disposition of the USERRA appeal.

Holdings: The Board denied the appellant’s PFR, affirmed the initial decision as modified, and remanded the case to the regional office for adjudication on the merits:

1. Dismissal without prejudice is a procedural option that is left to the sound discretion of the administrative judge. Here, the judge correctly acknowledged that the 2 appeals shared a common issue. Under these circumstances, he did not err or abuse his discretion in dismissing the appellant’s USERRA appeal without prejudice.

2. Now that the Board has issued a final decision in the appellant’s VEOA appeal, 2010 MSPB 47, it is appropriate to remand the USERRA appeal for adjudication.

Appellant: Ramona Williams

Agency: Department of Health and Human Services

Decision Number: 2010 MSPB 72

Docket Number: DC-0752-08-0066-X-1

Issuance Date: April 22, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance

This case was before the Board on a recommendation of the administrative judge finding the appellant in noncompliance with a settlement agreement between the parties that had been entered into the record for enforcement purposes. The judge recommended that the Board order the appellant to return the monetary consideration provided to her pursuant to the terms of the settlement agreement.

Holdings: The Board agreed with the administrative judge’s finding that the appellant is in noncompliance with the terms of the settlement agreement, but disagreed with the judge’s recommended action. The agency must elect between enforcement of the terms of the settlement agreement and rescission of the settlement agreement.

 

COURT DECISIONS

Petitioner: Teresa C. Chambers

Respondent: Department of the Interior

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

Docket Number: 2009-3120

Issuance Date: April 21, 2010

Whistleblower Protection Act
- Protected Disclosure – Public Health or Safety
- Contributing Factor
Penalty

This case was before the court on appeal from an adverse decision of the Board, 110 M.S.P.R. 321 (2009), that sustained Chambers’ removal from her position as the Chief of United States Park Police. The Board’s decision followed an earlier decision by the court, 515 F.3d 1362 (Fed. Cir. 2008), which found that the Board had used an improper standard in evaluating whether Chambers made a disclosure which she reasonably believed evidenced a substantial and specific danger to the public health or safety, but affirmed the Board’s decision to sustain charges unrelated to WPA disclosures. In its decision after remand by the court, the 2-member Board agreed on a disposition – Chambers’ removal would be affirmed – but did not agree on the reasoning. Chairman McPhie indicated that he would find that Chambers made a protected whistleblowing disclosure, but that the agency presented clear and convincing evidence that it would have taken the same action in the absence of any protected disclosures. Vice Chairman Rose indicated that she did not find any of Chambers’ statements to constitute whistleblowing disclosures.

Holdings: The court affirmed the Board’s decision sustaining 3 charges against Chambers, but not the 4th, and remanded the case to the Board for further adjudication.

1. Two charges, which concern instances in which Chambers was found to have failed to follow a supervisor’s instructions and failed to properly follow the chain of command, do not involve any alleged WPA-protected disclosures. Because the court previously affirmed the Board’s decision on the merits with respect to all charges apart from the WPA issues, those charges are governed by the court’s previous opinion.

2. The court found that the charge accusing Chambers of improper disclosure of budget deliberations was not grounded in disclosures protected under the WPA. The court therefore held that the Board properly sustained this charge.

3. The court found that the remaining charge – “Making public remarks regarding security on the Federal mall, and in parks and on the Parkways in the Washington, D.C., Metropolitan area” – could not stand because it was based on a protected whistleblowing disclosure. Chambers’ statements to the Washington Post reporter regarding an increase in traffic accidents on the Baltimore-Washington Parkway constituted a protected whistleblowing disclosure as evidencing a substantial and specific danger to public health or safety.

4. Chambers established that the protected disclosure was a contributing factor in the agency’s decision to remove her.

5. The case must be remanded to the Board for reconsideration of whether removal remains a reasonable penalty and whether the agency has presented clear and convincing evidence that it would have taken the same personnel action against Chambers based on the sustained charges in the absence of her protected disclosures.

 

Nonprecedential Decisions

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

Boechler v. Department of the Interior, No. 2009-3062 (April 22, 2010) (MSPB Docket Nos. DE-0752-04-0295-I-1 and DE-0752-04-0458-I-4) (affirming per Rule 36 the Board’s decision, which affirmed the imposition of an indefinite suspension)