United States Merit Systems Protection Board

Case Report for May 21, 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

 

Petitioner:  Special Counsel

Respondents:  Richard F. Lee, Diane L. Beatrez

Decision Number:  2010 MSPB 89

Docket Numbers:  CB-1215-08-0014-T-1, CB-1215-08-0015-T-1

Issuance Date:  May 14, 2010

Appeal Type:  Disciplinary Action - Prohibited Personnel Practice

Special Counsel Actions
 - Disciplinary Actions
Board Procedures/Authorities
 - Criteria for Board Review (Fact Findings)
Evidence – Credibility – Circumstantial/Direct
Penalty

       The Special Counsel petitioned for review of an initial decision issued by the administrative law judge that dismissed the Special Counsel’s complaints against the respondents for committing a prohibited personnel practice.  The Special Counsel alleged that the respondents, in their roles as Human Resource (HR) Specialists for the U.S. Coast Guard, violated 5 U.S.C. § 2302(b)(6) by granting a preference or advantage to Coast Guard Senior Legal Instrument Examiner Eric Woodson (GS-8) for the purpose of improving his prospects of obtaining a promotion to a GS-11 supervisory position. 

       When the supervisory position was first announced, parallel vacancy announcements were issued:  a delegated examining unit (DEU) announcement open to all qualified U.S. citizens; and a merit promotion announcement limited to “status eligibles.”  Both announcements sought candidates for the GS-11 level only, which had the effect of generally excluding applicants below the GS-9 level.  Woodson applied under the merit promotion announcement but was not referred because, as a GS-8 employee, he was ineligible for promotion to GS-11.  Commander (CMDR) Laura O’Hare contacted respondent Lee to inquire as to why Woodson had not been referred, and requested that HR “reopen” the DEU announcement and create a new list for referral.  Lee testified that CMDR O’Hare specifically wanted to reopen the DEU list so that Woodson’s nongovernmental experience could be considered.  In an e‑mail to Lee, another HR Specialist (House) instructed Lee to “have Commander O’Hare talk about lack of adequate candidates.”  The DEU referral certificate bears a handwritten notation by CMDR O’Hare, stating that she wanted to re-advertise the job “[b]ecause of a lack of sufficient, well-qualified candates.”  The vacancy was opened a second time, using both merit promotion and DEU announcements, but the position was still advertised only at the GS-11 level.  Beatrez notified Lee via email that she had been told “the reason the job was re-advertised was to try and reach Mr. Woodson,” and explained that she was unable to qualify Woodson at the GS-11 level.  Lee notified CMDR O’Hare:  “They did not find [Woodson] qualified for the position based on his résumé and how he responded to the KSAs.  My recommendation if you want to [consider] him is to cancel and advertise the position as a GS-9 with potential to GS‑11.”  CMDR O’Hare notified Lee that she wanted the position re-announced as a “GS‑9 with potential to GS-11.”  CMDR O’Hare further asked that the new solicitation be limited to the Los Angeles/Long Beach local area, and instructed Lee to advertise the vacancy “for the minimum amount of time.”  This was done, and Woodson was selected for the position.

       In analyzing the decision to re-advertise the position after the first set of vacancy announcements, the administrative law judge found that the email exchange between CMDR O’Hare and HR Specialists might have created the appearance that Lee was advising CMDR O’Hare on how to create a pretext for re-announcing the position, but he credited CMDR O’Hare’s testimony regarding her own motivations, which he found supported a different conclusion:  that CMDR O’Hare’s initial failure to understand the complexities of the federal personnel system caused her to be confused as to the best way in which to structure an announcement that would capture candidates with the most relevant experience.  Similarly, the administrative law judge found that the email messages regarding the decision to cancel the second set of vacancy announcements would certainly have aroused suspicions, but that the reason that these vacancy announcements were cancelled was a lack of sufficient qualified candidates in the selection pool.  Regarding the third vacancy announcement, the administrative law judge credited Lee’s testimony that he believed CMDR O’Hare was not just trying to reach Woodson but was seeking to consider internal candidates who may have had qualifications similar to those of Woodson.

Holdings:  The Board granted the Special Counsel’s petition for review, reversed the initial decision, and found that the respondents committed a prohibited personnel practice that warrants discipline:

1.  The Special Counsel proved by preponderant evidence that both respondents violated 5 U.S.C. § 2302(b)(6) when they intentionally assisted CMDR O’Hare in granting an illegal preference for employment to Woodson.

a.  Whether the respondents violated 5 U.S.C. § 2302(b)(6) turns on whether they intended to afford preferential treatment to Woodson.  It is not the action itself that violates the law, but, instead, the intent behind the action.

b.  The administrative law judge’s analysis of intent rests largely on credibility determinations.  Under Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002), the Board must normally defer to the judge’s credibility determinations when they are based upon the observation of the demeanor of witnesses testifying at a hearing.  Nevertheless, the Board may substitute its own determinations of fact for those of an administrative judge, even when his credibility findings are based in part on demeanor evidence, if the Board can articulate a sound reason, based on the record, for a contrary evaluation of the evidence.  The Board may overturn credibility determinations when the findings are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole.

c.  Although the administrative law judge did not ignore the evidence that would support a finding of preferential treatment, his findings and credibility determinations are nevertheless inconsistent with the weight of the documentary evidence and do not reflect the record as a whole.  In the Board’s view, the administrative law judge gave a sizable body of particularly telling circumstantial evidence too little weight in favor of some direct testimony that was inconsistent with that body of evidence.  As a result, he explained away serious contradictions between the testimony and the other less favorable evidence in the record, crafting an improbable account of the events leading up to Woodson’s appointment to the vacant position. 

d.  The Board acknowledged that the strongest evidence of intent points not to the respondents, but to CMDR O’Hare, who retired before a hearing could be held on a proposed disciplinary action against her.  Nevertheless, “given the rather blatant intention of granting a preference to Woodson that CMDR O’Hare’s communications express to the respondents,” the Board stated that it could not ignore the actions of the respondents, who are HR professionals, “in intentionally facilitating an obvious violation of section 2302(b)(6),” and interpreted that section as reaching conduct that aids and abets another who is violating the statute.

e.  The Board found the facts in this case distinguishable from the typical “obey now, grieve later” situation described in Board case law.  There is no evidence that CMDR O’Hare ordered the respondents to take actions that would ensure that Woodson appeared on the certificate of eligibles, and neither respondent was one of CMDR O’Hare’s subordinates.

2.  After reviewing the respondents’ relative involvement in the violation of § 2302(b)(6) under the relevant Douglas factors, the Board determined that the appropriate penalty for Lee was a 45-day suspension without pay, and a 10‑day suspension without pay for Beatrez. 

Appellant:  JoAnna Covarubias

Agency:  Social Security Administration

Decision Number:  2010 MSPB 90

Docket Numbers:  SF-1221-09-0133-W-1, SF-0752-09-0842-I-1

Issuance Date:  May 19, 2010

Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Contributing Factor
 - Protected Disclosure

       The appellant petitioned for review of an initial decision that denied her request for corrective action in her IRA appeal, and dismissed her claim of a constructive removal for lack of jurisdiction.  The appellant was formerly employed as a Teleservice Representative.  While working in the agency’s Hearing Impaired (TDD) unit, the appellant on two occasions e‑mailed the agency’s Awards Division, asking why her TDD calls were not counted toward the telephone time required for Recognition of Contribution and Quality Step Increase awards.  The same year, she prepared a statement for the benefit of the Federal Labor Relations Authority (FLRA) concerning security cameras that were installed at her workplace.  In the statement she related that her supervisor told employees that, although the cameras were installed for security reasons, they “could be used to keep track of employees, if needed, you never know!”  The appellant also speculated that the cameras were being used to monitor employee conversations and smoke breaks.  About a month after submitting the FLRA statement, the appellant was randomly selected for an unannounced service observation review, and was issued a formal reprimand concerning an incident that occurred during this review.  The appellant grieved this reprimand, which was expunged as part of a settlement during the step 2 processing of the grievance.  Two months later, the appellant retired as part of a Voluntary Early Retirement Authority opportunity.  The appellant later filed a complaint with the Office of Special Counsel (OSC), alleging that the reprimand was issued in retaliation for her e‑mails to the Awards Division and for her statement to the FLRA.  She further alleged that, following these disclosures, her supervisors were upset and began harassing her about personal phone calls and closely monitoring her whereabouts, even following her to the restroom.  She further claimed that one of her supervisors offered to expunge the reprimand in exchange for early retirement, and that she felt compelled to accept the offer because of the threat of further discipline.

       Based on the written record, the administrative judge found that the appellant had established jurisdiction over her IRA appeal, but was not entitled to corrective action because she failed to show that her disclosures were protected.  The administrative judge dismissed the constructive removal appeal for lack of jurisdiction, finding that the appellant failed to show that her retirement was involuntary.

Holdings:  The Board affirmed the initial decision insofar as it dismissed the constructive removal appeal for lack of jurisdiction, but vacated the initial decision regarding the IRA appeal, remanding that appeal to the regional office for further adjudication:

1.  The existing record does not establish Board jurisdiction over the appellant’s IRA appeal.

a.  The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations that she engaged in whistleblowing activity by making a protected disclosure, and that the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action.

b.  In finding jurisdiction over the IRA appeal, the administrative judge determined that the appellant had exhausted her remedies with OSC and non-frivolously alleged that she had made protected whistleblowing disclosures, but the judge failed to make a finding as to whether the appellant made a non-frivolous allegation that one or more of her disclosures was a contributing factor in a covered personnel action.  Although this was error, the Board determined that it need not decide the contributing factor issue because, contrary to the initial decision, the appellant has not made a non-frivolous allegation that she made protected disclosures.

c.  Regarding the e‑mails to the agency’s Awards Division, the appellant indicated on her OSC complaint form that these e‑mails did not disclose any of the categories of wrongdoing listed under 5 U.S.C. § 2302(b)(8).  In any event, the e‑mails amount to nothing more than requests for information, and do not constitute disclosures of any kind, protected or otherwise.

d.  The appellant’s statement to the FLRA would be protected under 5 U.S.C. § 2302(b)(9), which prohibits retaliation for exercising an appeal, complaint, or grievance right granted by any law, rule, or regulation, or testifying or otherwise assisting an individual who is exercising one of these rights.  The fact that an individual has engaged in activity protected under (b)(9) does not of itself disqualify the individual from seeking corrective action under (b)(8) if she made disclosures based upon the same operative facts outside of her (b)(9) activity.  Here, however, the appellant did not allege that she made disclosures regarding the security cameras to anyone other than her union or the FLRA. 

2.  Despite the above, the appeal must be remanded because the appellant did not receive proper notice of her burden of proof over her IRA appeal.  In particular, she was not advised that, while the Board’s jurisdiction over an IRA appeal is limited to the issues raised before OSC, she is not limited by the statements in her initial complaint, but may rely on subsequent correspondence with OSC.

Appellant:  Brian Smith

Agency:  Department of the Interior

Decision Number:  2010 MSPB 91

Docket Number:  SF-0752-09-0799-I-1

Issuance Date:  May 18, 2010

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Settlement
 - Last-Chance Agreements

       The appellant petitioned for review of an initial decision that dismissed his removal appeal for lack of jurisdiction based upon a finding that the agency properly removed him for violating the terms of a last-chance agreement (LCA) that included a waiver of his appeal rights.  In 2007, the agency proposed to remove the appellant from his position as a Senior Law Enforcement Ranger for misuse of a government-owned vehicle and for conduct prejudicial to the government.  The parties executed an LCA under which the proposed removal action was reduced to a 60-day suspension.  The LCA further provided that the appellant would be removed if he committed “any offense requiring discipline” in the next 3 years, and that if he did so, he waived his right to appeal his removal to the Board.  About 2 years later, the agency invoked the LCA, alleging that the appellant failed to use proper safety equipment, i.e., failing to wear his seat belt during his pursuit of a suspect, in violation of agency policy and procedures.  The initial decision dismissed the appeal for lack of jurisdiction, finding among other things that the failure to use proper safety equipment is an offense requiring discipline, that the appellant was guilty of the offense, and that the waiver provision in the LCA applies and deprives the Board of jurisdiction over the removal appeal.  On review, the appellant reiterated his argument that the agency could not properly invoke the LCA because the offense with which he was charged was not an “offense requiring discipline.”

Holdings:  The Board granted the appellant’s petition for review, reversed the initial decision, and ordered the agency to cancel the appellant’s removal and reinstate him to employment:

1.  The Board found no ambiguity in the term “requiring”; the agency could only remove the appellant under the LCA if the appellant committed an offense for which discipline is mandatory.

2.  The offense of failure to use proper safety equipment is not an offense requiring discipline.  Although agency policy and an Executive Order require seat belt use by operators of government owned vehicles, neither mandates disciplinary action for violations; the agency policy provides that an offense “may result in disciplinary action.”  Nor does the charged misconduct violate a statute that mandates discipline.

3.  As the alleged violation of the LCA was the sole basis for the agency’s action terminating the appellant’s employment and, absent the waiver of appeal rights associated with the LCA, the removal action was clearly within the Board’s adverse action jurisdiction, the Board found jurisdiction and that the agency improperly removed him pursuant to the LCA. 

Deadline for Amicus Briefs Extended

       In a Press Release issued May 20, the MSPB announced that the deadline for those interested in filing amicus briefs in the matter of Hyginus U. Aguzie v. Office of Personnel Management, MSPB Docket No. DC-0731-09-0261-R-1, has been extended from May 24 to June 7, 2010.  According to the Federal Register notice issued April 16, the legal issue to be briefed is as follows:

When the Office of Personnel Management (OPM) directs an agency to separate a tenured employee for suitability reasons, must the Board consider a subsequent appeal under 5 CFR part 731 as contemplated therein, or should the Board instead consider the appeal under 5 U.S.C. Chapter 75, given that the scope of a Chapter 75 appeal is broader than a part 731 appeal and that OPM generally lacks authority to issue regulations limiting statutory rights?

Briefs must be filed with the Office of the Clerk of the Board, 1615 M Street, NW, Washington, DC 20419.

COURT DECISIONS

Nonprecedential Decisions

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

Nasuti v. Merit Systems Protection Board, No. 2010-3028 (May 20, 2010) (MSPB Docket No. DC-1221-09-0356-W-1, 112 M.S.P.R. 587 (2009)) (affirming in part and vacating in part the Board’s decision dismissing an IRA appeal for lack of jurisdiction, and remanding the case to the Board for further adjudication)