United States Merit Systems Protection Board

Case Report for May 14, 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: Fae Driscoll

Agency: United States Postal Service

Decision Number: 2010 MSPB 82

Docket Number: SF-0752-07-0409-X-1

Issuance Date: May 6, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance

In a previous decision, 112 M.S.P.R. 498 (2009), the Board found that the agency was not in compliance with a final decision that required the agency to mitigate a removal penalty to a demotion to a vacant non-supervisory position with the least reduction in grade and pay.

Holdings: The Board found that the agency has now demonstrated full compliance, and dismissed the petition for enforcement as moot.

Appellant: Delisa M. Terrell

Agency: United States Postal Service

Decision Number: 2010 MSPB 83

Docket Number: DE-0752-09-0481-I-1

Issuance Date: May 6, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

The appellant filed a petition for review (PFR) of an initial decision that dismissed her removal appeal as untimely filed without a showing of good cause for the filing delay.

Holdings: The Board dismissed the PFR as untimely filed by 42 days without a showing of good cause for the filing delay. The Board rejected the appellant’s contention that neither she nor her attorney timely received a copy of the initial decision. As both were e-filers, they were deemed per 5 C.F.R.  1201.14(m)(2) to have received the initial decision on the date it was issued. Moreover, the appellant delayed an additional 27 days after receiving a paper copy of the initial decision.

Appellant: Bradley Miller

Agency: Department of the Army

Decision Number: 2010 MSPB 84

Docket Number: CH-3443-08-0348-I-1

Issuance Date: May 6, 2010

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.

Holdings: The Board dismissed the PFR as untimely filed by 19 months without a showing of good cause for the filing delay. The Board also denied the appellant’s request to reopen the appeal under 5 C.F.R.  1201.118.

Appellant: Robert L. Woebcke

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 85

Docket Number: NY-0752-09-0128-I-1

Issuance Date: May 6, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty

The agency petitioned for review of an initial decision that mitigated the appellant’s removal to a 14-day suspension.

Holdings: The Board affirmed the initial decision as modified, still mitigating the removal penalty to a 14-day suspension. The Board found that the administrative judge properly analyzed the applicable Douglas factors in determining that the removal penalty exceeded the bounds of reasonableness, including the judge’s determination that the agency treated the appellant disparately compared to other similarly-situated employees. In so ruling, the Board relied on Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009), in which the court held that, although the fact that a comparator was supervised by a different individual may sometimes justify different penalties, an agency must explain why differing chains of command would justify different penalties.

Appellant: Harroll Ingram

Agency: Department of the Army

Decision Number: 2010 MSPB 86

Docket Number: AT-1221-09-0874-W-1

Issuance Date: May 7, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. As a Computer Engineer/Systems Engineer, the appellant provided engineering assistance to the Medical Simulation Training Center (MSTC) in Fort Carson, Colorado. In June 2008, a federal contractor requested permission to photograph and videotape solders while they used the contractor’s developmental training products. The appellant objected to the contractor taking photographs and videotaping soldiers because of the possibility that the contractor might improperly use the images. He shared his concerns with the Lieutenant Colonel (LTC) who was the Program Manager for the MSTC and with his first-level supervisor. He also contacted the legal department, which responded that no Department of Defense personnel could appear in any photographs or videos without violating Joint Ethics Regulations. Although the LTC commended the legal department’s view, he maintained that the event and testing could still take place within certain guidelines. The appellant continued to express concerns to his supervisors that the LTC’s plans were still contrary to regulations and other authorities. The appellant’s second-level supervisor came to share the appellant’s concerns, and after several meetings between the appellant’s supervisors and the LTC, the event was cancelled.

In his IRA appeal, the appellant alleged that he suffered a reduction in job responsibilities, the denial of transfers, and a punitively low performance appraisal in reprisal for protected whistleblowing disclosures. Although the administrative judge found that the appellant had exhausted his remedy before the Office of Special Counsel (OSC), and that he made a non-frivolous allegation that he was subjected to covered personnel actions, he concluded that the appellant failed to make a non-frivolous allegation that he made a protected disclosure because: (1) the appellant’s disclosures were part of his normal job duties; (2) he did not make the disclosures to anyone with authority to correct them; (3) the disclosures were made to the wrongdoers; and (4) the purported disclosures were simply disagreements with management.

Holdings: The Board granted the appellant’s PFR, reversed the initial decision, finding that the appellant established jurisdiction over his appeal, and remanded the case to the regional office for further adjudication:

1. The administrative judge applied an incorrect legal standard in requiring the appellant to make his disclosure to someone with actual authority to correct the wrong. Complaints to any supervisor who is not an alleged wrongdoer are sufficient to constitute a disclosure under the WPA. Thus, the appellant could make a protected disclosure regarding the LTC’s intentions to his first and second level supervisors, given they were not participants in the challenged wrongdoing.

2. Although the first and second level supervisors were listed as “wrongdoers” in the appellant’s OSC complaint, he did not list them as wrongdoers for purposes of the disclosure of the LTC’s intent to proceed with the event. Indeed, the appellant affirmatively alleged that the supervisors were helpful in getting the event cancelled. Thus, the appellant could make a protected disclosure to his supervisors because they were not wrongdoers for purposes of the subject of the disclosure.

3. The relevant disclosure was the appellant’s report to his supervisors that the LTC was taking action, against the advice of the legal department, which could violate the ethics regulations. This was not part of his normal job duties.

4. The appellant’s disclosures went beyond a simple disagreement with superiors about policy. The appellant obtained a legal opinion that the challenged conduct violated ethics regulations, and the agency has not disputed this conclusion. Further, the appellant, aided by other agency officials, succeeded in getting the disputed event cancelled.

Appellant: Juan A. Rivera, Jr.

Agency: Department of the Navy

Decision Number: 2010 MSPB 87

Docket Number: PH-315H-09-0459-I-1

Issuance Date: May 7, 2010

Action Type: Probationary Termination

Jurisdiction - Probationers

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of Board jurisdiction. The appellant was separated less than 6 months after he received a career-conditional appointment as a Police Officer, for the reason that he failed to secure approval for a government credit card. The administrative judge dismissed the appeal on the ground that the agency separated the appellant for post-appointment reasons and therefore was not entitled to the procedures of 5 C.F.R.  315.805 (which include advance notice of the action and an opportunity to respond), which apply to terminations for pre-appointment reasons. On PFR, the appellant contends that the agency separated him for pre-appointment reasons, and was therefore entitled to the procedural rights of  315.805.

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

1. The administrative judge did not determine whether the appellant made a non-frivolous allegation of jurisdiction. She instead weighed the persuasiveness of the appellant’s argument that having a government credit card was not a requirement of his position against the agency’s contrary evidence. This was a merits issue, which is not before the Board in an appeal filed under 5 C.F.R.  315.806.

2. Nevertheless, the appellant did not make a nonfrivolous allegation that he was terminated for pre-appointment reasons. Even if, as the appellant asserted, his failure to qualify for a credit card was attributable to his pre-appointment credit history, he was ultimately terminated for a post-appointment deficiency, i.e., his failure to obtain a government credit card.

Appellant: Sandra Sutton

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 88

Docket Number: CH-844E-09-0813-I-1

Issuance Date: May 7, 2010

Appeal Type: FERS - Employee Filed Disability Retirement

Timeliness – PFR

The appellant petitioned for review of an initial decision that affirmed OPM’s determination that she was not entitled to disability retirement benefits. The initial decision was issued on November 17, 2009, and specified that the deadline for timely filing a PFR was December 22, 2009. The appellant filed her PFR a month later, on January 22, 2010. In response to the Clerk of the Board’s notice regarding timeliness, the appellant asserted, among other things, that she did not retrieve the decision until December 1, 2009, and she did not read it until January 8, 2010.

Holdings: The Board dismissed the appellant’s PFR as untimely filed without a showing of good cause for the filing delay:

1. Even assuming that the appellant did not receive the initial decision until December 1, 2009, her PFR was still untimely filed by 22 days.

2. The Board found unpersuasive the appellant’s arguments that the delay should be excused on account of health problems or homelessness.

COURT DECISIONS

Nonprecedential Decisions

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

Evans v. U.S. Postal Service, No. 2010-3003 (May 5, 2010) ( MSPB Docket No. PH-0752-07-0419-I-1) (affirming the Board’s decision, which dismissed the appeal as settled)

Lizzio v. Department of the Army, No. 2009-3136 (May 6, 2010) (MSPB Docket No. PH-0752-06-0546-M-1, 110 M.S.P.R. 442 (2009)) (affirming the Board’s determination that Lizzio failed to prove that he did not engage in misconduct in violation of a last chance agreement)

Fitzgerald v. Office of Personnel Management, No. 2009-3109 (May 6, 2010) (MSPB Docket No. PH-0752-08-0268-I-1) (affirming per Rule 36 the Board’s final decision, which affirmed the appellant’s removal)

Ford v. Office of Personnel Management, No. 2010-3062 (May 10, 2010) (MSPB Docket No. AT-0831-09-0514-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant was not entitled to a disability retirement annuity)

Palczynski v. Department of Energy, No. 2010-3058 (May 10, 2010) (MSPB Docket No. CH-0752-09-0501-I-1) (affirming the Board’s decision, which dismissed an appeal as settled)

Head v. Office of Personnel Management, No. 2009-3265 (May 10, 2010) (MSPB Docket No. CH-0831-09-0200-I-1) (affirming per Rule 36 the Board’s final decision, which affirmed OPM’s determination that the appellant was not entitled to survivor annuity benefits)