United States Merit Systems Protection Board

Case Report for April 30, 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: Julia R. Anderson

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 73

Docket Number: CH-0752-09-0455-I-1

Issuance Date: April 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Defenses – Prohibited Personnel Practices

The appellant filed a petition for review (PFR) of an initial decision that affirmed the agency’s removal action. Following a hearing, the administrative judge found that the agency proved 1 of its 2 charges. Regarding the appellant’s affirmative defense that the removal was retaliation for filing an equal employment opportunity (EEO) complaint, the judge found that the agency proved that it would have removed the appellant despite her protected activity. The judge additionally found that the removal penalty was within the bounds of reasonableness.

Holdings: The Board granted the appellant’s PFR, affirmed the initial decision’s findings that the agency prove its charge, nexus, and the penalty, but vacated the initial decision findings regarding the appellant’s claim of retaliation for protected activity, and remanded the appeal for further adjudication of that claim:

1. The Board granted the appellant’s PFR for the sole purpose of addressing her argument that the agency’s action was retaliation for protected EEO activity, finding the remainder of her allegations to be without merit.

2. The administrative judge’s analysis of the retaliation claim was inadequate.

a. The initial decision merely found that “the Agency has established . . . that it would have removed Appellant absent knowledge of any protected activity,” and that “[t]herefore, I need not reach the issue of whether Appellant has proven a prima facie case of retaliation.”

b. Where, as here, a case has gone to a hearing and the evidentiary record is complete, the administrative judge should not inquire into whether the action could have been retaliatory or whether the appellant has made out a prima facie case of retaliation. The inquiry instead proceeds to the ultimate question, which is whether, upon weighing the evidence presented by both parties, the appellant has met her overall burden of proving retaliation.

c. Whether the agency retaliated against the appellant is a factual matter that may require the assessment of the credibility of witnesses. A remand is therefore necessary.

Appellant: Catherine M. Pacilli

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 74

Docket Numbers: SF-1221-09-0862-W-1 and SF-1221-05-0393-W-2

Issuance Date: April 23, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act – Timeliness
Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed her IRA appeal as untimely filed. In 2003, the appellant resigned from her position as a Registered Nurse. In an IRA appeal adjudicated in 2005, which the administrative judge characterized as alleging that the agency threatened to terminate the appellant in retaliation for a certain protected disclosure, the judge found that the appellant’s nonspecific claims before the Office of Special Counsel (OSC) were insufficient to exhaust any whistleblower reprisal claim. The initial decision in this appeal became the Board’s final decision. In the current appeal, filed in 2009, the appellant asked the Board to consider whistleblower reprisal allegations that she claims to have raised in her 2003 OSC complaint. In response to the administrative judge’s show‑cause order on timeliness, the appellant requested “an exception to time limits and jurisdiction” because the attorney who represented her was disbarred in 2008 for mishandling his clients’ funds. The agency objected, arguing in part that, rather than treating this filing as a new appeal, it should more properly be characterized as a request to reopen the previous appeal. The administrative judge issued an initial decision dismissing the 2009 appeal as untimely filed.

Holdings: The Board affirmed the initial decision as modified, still dismissing it as untimely filed. It also considered some aspects of the current appeal to be a petition for review of a 2005 initial decision, which it denied.

1. To the extent that the appellant was attempting to file a new IRA appeal, the Board affirmed the administrative judge’s finding that the appeal was untimely filed. The Board noted in this regard that the Board has no authority to waive the statutory time limit for filing an IRA appeal for good cause shown.

2. Insofar as the appellant’s submissions show that the appellant was seeking to reopen or reinstate her prior IRA appeal, the Board rejected this “petition for review” on the merits. The appellant failed to make any specific allegations of error in the 2005 initial decision, and she did not show a link between her former attorney’s disbarment, his personal problems, and the outcome of the previous appeal.

Appellant: Julius L. Phillips

Agency: Department of the Navy

Decision Number: 2010 MSPB 75

Docket Number: DC-3443-08-0249-C-1

Issuance Date: April 23, 2010

Appeal Type: Veterans Employment Opportunities Act (VEOA)

Compliance
USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of a compliance initial decision which found the agency in compliance with an earlier decision. This is the third decision issued by the Board related to the appellant’s applications for higher-grade police officer positions. In the first, 110 M.S.P.R. 184 (2008), the Board concluded that the agency violated the appellant’s right to compete under merit promotion procedures, and it directed the administrative judge to order the agency to reconstruct the selection process for certain vacancies. In the second decision, 111 M.S.P.R. 557 (2009), which occurred after the agency had reconstructed the selection process and again did not select the appellant, the Board forwarded the appellant’s allegations of noncompliance to the regional office for docketing and adjudication as a petition for enforcement (PFE). Following a hearing, the administrative judge denied the PFE, finding that the agency properly considered the appellant for the positions in question during the reconstructed selection process.

Holdings: The Board granted the appellant’s PFR and reversed the initial decision, finding that the agency was not in compliance with its obligations. The Board ordered the agency to again reconstruct the selection process for the police officer positions.

1. In order to comply with prior orders, the agency had to show that its reconstruction of the selection process was in accordance with applicable veterans’ preference laws and that any subsequent appointment to the police officer positions was the result of fair and lawful consideration of the pool of applicants.

2. The appellant was not given an opportunity to compete, consistent with VEOA, during the reconstructed selection process.

a. The agency did not remove the original selectees from their positions during the reconstructed selection process. The Board rejected the administrative judge’s determination that the agency was not required to do so because there had not been a violation of pass over requirements, as occurred in Endres v. Department of Veterans Affairs, 107 M.S.P.R. 455 (2007). The agency’s obligation to remove the selectee during a reconstructed selection process is not triggered by the pass over requirements, but rather, by the Board’s order to reconstruct the selection process consistent with applicable law.

b. The reconstructed selection process was conducted in such a manner that the Board could not conclude that the appellant actually competed with the original selectees. The members of the reconstructed selection board were not the original selection board members, it does not appear that any members of the new board discussed the original selectee’s interviews with any of the original selection board members, that the original selectees were re-interviewed, or that the original selectees’ scores or score sheets were compared to the appellant’s score or score sheet during the reconstructed selection process.

c. It is unclear from the record how many positions were originally filled under the relevant vacancy announcement.

Appellant: Patrick K. Harellson

Agency: United States Postal Service

Decision Number: 2010 MSPB 76

Docket Number: SF-4324-09-0406-I-1; SF-3330-09-0295-I-1

Issuance Date: April 26, 2010

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA); Veterans Employment Opportunities Act (VEOA)

USERRA/VEOA/Veterans’ Rights

The appellant, a 10-point preference eligible veteran, petitioned for review of the initial decisions that denied his requests for corrective action in these VEOA and USERRA appeals. Both appeals related to the appellant’s non-selection for Custodian positions. In the VEOA appeal, the appellant contended that his veterans’ preference rights were violated in that, after he was initially considered for 2 vacant positions, the agency determined to fill those positions by reassigning career employees whose positions had been excessed. The administrative judge found that the appellant failed to show that he had a right to compete for the positions in question under the statutory authority on which he relied. In the USERRA appeal, the appellant contended that, in the past, the agency had reserved Custodian positions for preference eligible veterans, but that the agency had recently decided to exempt its non-maintenance employees from having to take and pass the examination for Custodian positions, and that the effect of the new policy was a discriminatory “end run” around veterans’ preference in hiring. The administrative judge found that the suspension of the Custodian examination requirement applies equally to all employees, regardless of military service.

Holdings: The Board affirmed the initial decision as modified in the VEOA appeal, still denying the appellant’s request for corrective action. In the USERRA appeal, the Board vacated the initial decision and remanded the case for further adjudication.

1. The agency did not violate the appellant’s right to compete when it considered and selected 2 internal employees to fill those positions.

a. Under 5 U.S.C.  3304(f)(1), preference eligibles may not be denied the opportunity to compete for vacancies in which the agency will accept applications outside of its own workforce, and this provision applies to preference eligible applicants of the Postal Service, notwithstanding that Postal Service positions are in the excepted service.

b. No legal authority requires that the veteran or preference eligible be considered at every stage of the selection process, up to that process’s final stage. The law requires only that the individual be permitted to compete on the same basis as other candidates. The agency satisfied this obligation to the appellant under the facts of this case.

2. The administrative judge misstated the nature of the appellant’s USERRA claim. The appellant argued below that, when the agency decided to waive the Custodian examination requirement for internal candidates, the effect was that more internal candidates would be available for consideration, allowing the agency to more readily hire such internal candidates, who might be non-veterans, instead of outside preference-eligible candidates like himself. He also argued that the agency specifically targeted the Custodian position for elimination from external hiring, well knowing that those positions were traditionally reserved for veterans. Because the administrative judge did not address these aspects of the appellant’s USERRA claim, it was appropriate to vacate the initial decision and remand for further adjudication.

Appellant: Patricia A. Rollins

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 77

Docket Number: PH-0831-09-0377-B-1

Issuance Date: April 27, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Survivor Annuity

OPM petitioned for review of a remand initial decision that reversed its reconsideration decision and ordered it to permit the appellant to make a new survivor annuity election. When the appellant’s husband (the annuitant) retired in 2003, he elected a reduced annuity with a partial survivor annuity – 55% of $2,069 per year (annuity of $94/month) – instead of a full survivor annuity – 55 % of $2,069 per month (annuity of $1,137/month). In the original proceeding, the administrative judge found that this election was a mistake, which could have been rectified during the 18-month period following the annuitant’s retirement, but that OPM failed to provide the annual notice of election rights required by law. He concluded that the appellant was entitled to a waiver of the 18-month deadline for changing an election, and ordered OPM to permit the appellant to make a new election. In a previous decision, 112 M.S.P.R. 557 (2009), the Board agreed that OPM failed to provide the required annual notice of election rights, but vacated the administrative judge’s remedy. The Board found that, before finding entitlement to a waiver, the judge should have considered whether the annuitant, with the benefit of the annual notices, would have intended to change his election.

Following a hearing on remand, the administrative judge found that the annuitant intended to provide the maximum monthly survivor annuity benefit, equal to 55% of $2,069 per month, thought he had done so, and that his intent remained the same during the 18-month period following his retirement. The administrative judge again ordered OPM to permit the appellant to make a new survivor annuity election. On PFR, OPM concedes that the annuitant intended to provide a maximum survivor annuity for the appellant and would have increased her annuity had he received notice of the opportunity to do so within 18 months of his retirement. OPM argues, however, that the administrative judge exceeded his authority in ordering it to allow the appellant to make a new survivor annuity election. OPM contends that the proper remedy is to pinpoint when, during the 18-month period provided, the annuitant would have increased the appellant’s survivor annuity, and to compute her survivor benefit accordingly.

Holdings: The Board granted OPM’s PFR and affirmed the initial decision as modified. It agreed with OPM that the election at issue belonged to the annuitant, not the appellant, and it was therefore necessary to determine the date on which the annuitant would have made the election. The Board accepted OPM’s stipulation, to which the appellant did not object, that if it had properly notified the annuitant of his rights, it would have received his request to increase his survivor annuity election to the maximum amount on December 5, 2003. The Board therefore found that the annuitant’s election should be deemed to be effective on that date.

Appellant: Richard A. Becker

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 78

Docket Number: NY-0330-10-0027-I-1

Issuance Date: April 27, 2010

Appeal Type: Reemployment Priority

USERRA/VEOA/Veterans’ Rights
- Exhaustion of Remedy

The appellant petitioned for review of an initial decision that dismissed his VEOA appeal on the basis that he failed to exhaust his remedy with the Secretary of Labor, as required by 5 U.S.C.  3330a(d).

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

1. Under 5 U.S.C.  3330a(d)(2), where the Secretary of Labor has not resolved a complaint within 60 days, an appeal to the Board under VEOA “may not be brought unless . . . the complainant first provides written notification to the Secretary of such complainant’s intention to bring such appeal” and provides the Board with evidence of compliance with this statutory requirement.

2. The record reflects that the appellant filed a complaint with the Secretary of Labor, but there is no evidence that the Department of Labor notified the appellant that it had completed its investigation, nor that the appellant provided written notification to the Secretary of his intent to bring a Board appeal. Because the appellant has not met the requirements of the statute, he has failed to establish Board jurisdiction over his VEOA appeal.

Appellant: Evelyn White-Jackson, et al.

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 79

Docket Numbers: AT-0831-08-0445-I-1, et al.

Issuance Date: April 27, 2010

Action Type: Retirement/Benefit Matter

Jurisdiction
Timeliness – PFR

One of the 4 appellants filed a PFR of the initial decisions that dismissed these appeals for lack of jurisdiction. OPM originally denied the appellants’ requests for death benefits based upon the federal service of their brother on the ground that the benefits were payable to the decedent’s children. On appeal to the Board, however, OPM advised the administrative judge that it was rescinding those reconsideration decisions in order to make new determinations upon receipt of additional information. In initial decisions issued in May 2008, the judge dismissed the appeals, finding that the rescission had divested the Board of jurisdiction over them. In January 2010, appellant Keira, acting on his own behalf and purportedly as the representative of the other 3 appellants, filed a PFR of those decisions.

Holdings:

1. The Board dismissed the petition as deficient as to appellant White-Jackson, as there is no evidence that this appellant ever authorized appellant Keira to act on her behalf.

2. The Board dismissed the PFR as to the other 3 appellants as untimely filed without good cause shown for the delay in filing.

Appellant: John M. Knight

Agency: Department of the Treasury

Decision Number: 2010 MSPB 80

Docket Number: CH-0752-08-0824-C-1

Issuance Date: April 28, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance – Settlement-Related

The appellant petitioned for review of an initial decision that denied his petition for enforcement (PFE). In the underlying appeal, the removal action was resolved by written settlement agreement. Among other terms, the agreement provided that the SF‑50 reflecting the appellant’s removal would be replaced with one reflecting a retirement or resignation, and it specified the information that would be provided to prospective employers. In his PFE, the appellant alleged that the settlement was intended to provide him with a “clean record,” but that the agency’s Office of Professional Responsibility (OPR) denied his application for “enrolled agent” status because of negative information about him still contained in agency records. The administrative judge found that the appellant failed to establish that the agency was in breach of any of its obligations under the settlement agreement.

Holdings: The Board granted the appellant’s PFR and affirmed the initial decision as modified, finding that the agency did not breach the settlement agreement:

1. The appellant’s contention that the settlement agreement entitled him to further records adjustment beyond issuance of an SF-50 reflecting his voluntary retirement, including a “clean” employment record devoid of any reference to his removal or prior disciplinary record, is inconsistent with the express terms of the agreement. The Board found this case distinguishable in this regard from Conant v. Office of Personnel Management, 255 F.3d 1371 (Fed. Cir. 2001), and Principe v. U.S. Postal Service, 100 M.S.P.R. 66 (2005).

2. The Board rejected the appellant’s contention that the intent of the settlement agreement was to enable him to “get on with life” as an enrolled agent, and that the agency’s release of information to OPR was contrary to that intent. By its terms, the non-disclosure provision of the agreement was restricted to “future prospective employers,” and OPR was not a prospective employer.

3. The Board rejected the appellant’s contention that the administrative judge erred in failing to conduct a hearing. There is no indication in the record that the appellant requested a hearing, and hearings in compliance matters are discretionary.

Appellant: Paul A. Keller

Agency: Department of the Army

Decision Number: 2010 MSPB 81

Docket Number: CB-7121-10-0004-V-1

Issuance Date: April 29, 2010

Appeal Type: Arbitration Appeals/Grievances

Arbitration

The appellant requested review of an arbitrator’s decision that denied his grievance concerning his removal. The agency removed the appellant from his position as a GS‑7 Paramedic based on 6 charges. Following a hearing, the arbitrator denied the grievance, finding that the agency had proven all 6 charges, that there was a nexus between the sustained charges and the efficiency of the service, that the appellant had failed to establish either of his claims of harmful procedural error, and that removal was a reasonable penalty for the sustained charges.

Holdings: The Board granted the appellant’s request for review but affirmed the arbitrator’s decision:

1. The appellant filed a timely request for review over an action within the Board’s jurisdiction.

2. The appellant did not show that the arbitrator erred in interpreting civil service law, rule, or regulation.

3. The appellant did not show that the agency’s action was taken in retaliation for his prior equal employment opportunity activity.

4. The appellant did not show that the arbitrator erred as a matter of law in determining the penalty.

COURT DECISIONS

Nonprecedential Decisions

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

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)