United States Merit Systems Protection Board

Case Report for June 4, 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: Othel L. Bradshaw

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 97

Docket Number: SF-0752-09-0875-I-1

Issuance Date: May 28, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Timeliness – PFA

The appellant petitioned for review of an initial decision that dismissed his appeal as untimely filed with no good cause shown for the filing delay. In a decision issued in May 2007, the agency stated that it was removing the appellant from his position as a Housekeeping Aide effective June 3, 2007. The agency sent the decision to the address provided by the appellant on his written response to the proposal notice. The appellant filed this appeal with the Board on August 6, 2009. He alleged that he attempted to appeal his removal on August 20, 2007, but that the Board’s regional office returned his submission with instructions that he resubmit his appeal with a copy of the decision notice or an SF-50. The appellant further alleged that he did not receive a copy of the removal decision until July 7, 2009, when he received it as part of the agency’s response to a Freedom of Information Act request.

In dismissing the appeal as untimely, the administrative judge found that the appellant’s alleged failure to receive the removal decision mailed by the agency in May 2007 would have been due to the appellant’s own failure to inform the agency that he had changed his address. The judge further found that the appellant learned of the agency’s removal decision during the processing of his subsequent restoration appeal (filed in March 2008) and that the appellant had not demonstrated good cause for waiting nearly a year after the initial decision was issued in the restoration appeal to file this appeal.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1. The administrative judge noted, but did not attach particular significance to, the appellant’s representation that he had attempted to appeal his removal on August 20, 2007. This case must be remanded for analysis in accordance with the Board’s decision in Toombs v. Department of the Army, 69 M.S.P.R. 78 (1995). Toombs filed a timely appeal that the regional office rejected as deficient and was 1 day late in refiling her appeal. In reversing the dismissal on timeliness grounds, the Board explained that the administrative judge had effectively imposed the most severe sanction, dismissal for failure to prosecute, for a 1-day delay in responding to an order. The Board has held that the date an appellant files his original appeal is considered the date of filing, even if the appeal is deficient. In such cases, the appropriate inquiry is whether the appellant’s delay in correcting the deficiency demonstrated bad faith or the intent to abandon the appeal that could support a dismissal as a sanction for failure to prosecute.

2. The initial decision is inconsistent with other precedent. In Saddler v. Department of the Army, 68 F.3d 1357 (Fed. Cir. 1995), the court found that the appellant’s negligent failure to inform his agency of a change of address could not be a basis for deeming him to have constructively received the agency’s decision at an earlier date. The court stated that the Board could not dismiss an appeal as untimely “when it has been filed in compliance with the literal requirements of the regulation,” observing that the Board’s regulation “contains no requirement other than that tied to the employee’s receipt of the agency decision.” To the extent that Leslie v. U.S. Postal Service, 83 M.S.P.R. 361 (1999) and other decisions are inconsistent with this precedent, they are overruled.

Appellant: Joe Lewis, Jr.

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 98

Docket Number: AT-0752-08-0747-B-1

Issuance Date: May 28, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty

The appellant petitioned for review of a remand initial decision that affirmed the agency’s removal penalty. In a previous decision, 111 M.S.P.R. 388 (2009), the Board found that the administrative judge properly sustained the charge of violating a Nursing Service Policy that requires Health Technicians such as the appellant to provide one‑to‑one monitoring for potentially suicidal patients, but remanded the appeal for consideration of the appellant’s contention that 2 other employees were charged with similar offenses but were not removed. On remand, the administrative judge concluded that, although there were similarities between 1 of these employees and the appellant, they were not similarly situated for penalty determination purposes, and that the agency balanced the proper factors in its penalty determination.

Holdings: The Board granted the appellant’s petition for review, reversed the remand initial decision, and mitigated the removal penalty to a 30-day suspension:

1. The Board will review an agency-imposed penalty to determine if the agency considered all relevant factors and exercised management discretion with tolerable limits of reasonableness.

2. One of the factors is the consistency of the penalty with those imposed on other employees for the same or similar offenses. To establish disparate penalties, an appellant must show that the charges and circumstances surrounding the charged behavior are substantially similar. When an appellant has established that another employee was similarly situated but was punished less harshly, the agency must prove a legitimate reason for the difference in treatment.

3. Under the Board’s recent precedent, establishing that the charges and circumstances surrounding the charged behavior are substantially similar has included proof that the proffered comparator was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline. In the past, the Board has considered some of these factors as outcome determinative, e.g., if the “comparator” was not in the same work unit, there could be no determination that disparate penalties were imposed.

4. Consistent with the rationale of the Board’s reviewing court in Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009), the Board held that, to conclude that the agency has treated similarly-situated employees disparately, “there must be enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but we will not have hard and fast rules regarding the ‘outcome determinative’ nature of these factors.” To the extent that Fearon v. Department of Labor, 99 M.S.P.R. 428 (2005) and other decisions are inconsistent with this standard, they are modified.

5. Applying this standard to the facts of this case, the Board concluded that the appellant and the comparator were similarly situated, and that a 30-day suspension was the maximum reasonable penalty for the sustained misconduct.

Appellant: Dwight A. Suggs

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 99

Docket Number: SF-0752-09-0734-I-1

Issuance Date: June 1, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty

The appellant petitioned for review of an initial decision that affirmed his removal from the position of WG-3 Housekeeping Aide. Although the agency had brought 3 charges of misconduct, the administrative judge sustained only the charge of disrespectful conduct, finding that, during a meeting that included employees, supervisors, and union officials, the appellant had used the word “incompetent” to describe his supervisor, and that this constituted disrespectful conduct.

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion to address the reasonableness of the penalty, mitigating the penalty to a 30-day suspension:

1. When not all of the charges are sustained, the Board will consider carefully whether the sustained charges merited the penalty imposed by the agency, and the Board may mitigate the agency’s penalty to the maximum reasonable penalty so long as the agency has not indicated that it desires that a lesser penalty be imposed on fewer charges. In doing so, the Board may not disconnect its penalty determination from the agency’s managerial will and primary discretion in disciplining employees.

2. Although disrespectful conduct is a serious offense, and the appellant previously received a 3-day suspension for failure to follow instructions and inappropriate conduct, there are significant mitigating factors: After the effective date of the appellant’s removal, the agency informed him that he was selected for a promotion; his last performance appraisal was “outstanding”; and he had 8 years of service with the agency. In most cases where removal has been upheld based on a single charge of disrespectful conduct, the misconduct involved either multiple specifications, an allegation of abusive or obscene language and/or physical action. Under the circumstances of this case, the Board found that the maximum reasonable penalty was a 30-day suspension.

Appellant: Robert Pace

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 100

Docket Number: NY-831E-10-0017-I-1

Issuance Date: June 2, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFR

The agency filed a petition for review (PFR) of an initial decision that reversed its final decision denying the appellant’s disability retirement application. The initial decision, issued on February 12, 2010, stated that it would become the Board’s final decision unless a PFR was filed by March 19, 2010. The agency filed its PFR on March 25, 2010.

Holdings: The Board dismissed the agency’s petition for review as untimely filed without good cause shown for the filing delay:

1. The petition for review was not timely filed.

a. The Board’s regulation provides that a PFR must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the decision.

b. The agency apparently asserts that its PFR is timely by stating that it did not receive the initial decision until March 5, 2010.

c. Board precedent and regulations recognize that documents placed in the mail are presumed to be received in 5 days. The agency has submitted no evidence, or a sworn statement or affidavit, to support the agency representative’s statement that she did not receive the initial decision until March 5.

2. The agency failed to establish good cause for its delay in filing the petition for review.

a. The Board’s regulation requires that a PFR that is filed late must be accompanied by a motion that shows good cause for the untimely filing, and the motion must be accompanied by an affidavit or sworn statement, which includes the reasons for failing to request an extension before the deadline, and the circumstances causing the late filing. In acknowledging the receipt of the PFR, the Clerk of the Board informed the agency of these requirements, but the agency did not respond.

b. The agency failed to establish good cause because it did not file a motion for an extension of time or respond to the Clerk’s notice. The agency has not explained why it did not file such a motion or how its representative’s medical condition prevented it from filing such a motion.

c. Even if the Board were to consider the agency’s unsworn reasons for untimely filing, the agency has failed to provide a basis for waiving the filing deadline. The agency submitted no evidence showing the time period involved regarding the representative’s medical condition, and has not explained how this condition prevented the representative from timely filing a PFR.

Appellant: Sandra L. Mock Jundt

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 101

Docket Number: DA-1221-10-0108-W-1

Issuance Date: June 3, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Exhaustion of Remedy

The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction on the basis that it was prematurely filed. The appellant contended that the agency terminated her employment during her probationary period in retaliation for whistleblowing. She had not, however, sought corrective action from the Office of Special Counsel (OSC) before filing an appeal with the Board, as required by 5 U.S.C.  1214(a)(3). The appellant filed a complaint with OSC after filing her Board appeal. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction because OSC had not terminated its investigation of the appellant’s complaint and 120 days had not elapsed since the complaint was filed.

Holdings: The Board denied the appellant’s petition for review and affirmed the initial decision, but forwarded the appellant’s now ripe IRA appeal to the regional office for further adjudication:

1. The AJ correctly dismissed the IRA appeal for lack of jurisdiction because it was prematurely filed.

2. The Board’s practice is to adjudicate an IRA appeal that was premature when it was filed but has become ripe while pending with the Board. Because more than 120 days have elapsed since the appellant filed her complaint with OSC, the appeal is now ripe for adjudication.