United States Merit Systems Protection Board

Case Report for June 18, 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: Patrick R. Massie

Agency: Department of Transportation

Decision Number: 2010 MSPB 106

Docket Number: DA-1221-09-0517-W-1

Issuance Date: June 10, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Election of Remedies
- Exhaustion of Remedy
- Protected Disclosure
Mootness

The appellant, an Aerospace Engineer for the Federal Aviation Administration (FAA), petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. On several occasions, the appellant entered the workplace late at night, despite instructions from his supervisor that he was not allowed to enter the workplace to do any work outside core hours without her permission. His supervisor issued a Written Admonishment stating that he had failed to follow her instructions. The following month, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the Written Admonishment was issued in retaliation for his protected whistleblowing disclosures. He stated that he had disclosed to the agency’s Inspector General that named management officials granted a particular company a Type Certificate even though it was not in compliance with various airworthiness regulations, and that accommodating the company in this manner essentially allowed it to show regulatory compliance at a future date, even though FAA orders require companies to show compliance before the Type Certificate is issued. The day after filing his OSC complaint, the appellant filed a grievance against his supervisor, claiming that, in issuing him the Written Admonishment, she had violated the collective bargaining agreement. The grievance was resolved by a settlement agreement under which the agency agreed to immediately expunge the Written Admonishment. The appellant filed his IRA appeal 4 days after the settlement agreement was executed.

The agency argued that the Board lacked jurisdiction over the appeal because the appellant had earlier elected to file a grievance in this matter, and under 5 U.S.C.  7121(g)(2), his election precluded a Board appeal regarding the same matter. The agency secondly argued that the Board lacked jurisdiction because the appellant’s activity was covered not by 5 U.S.C.  2302(b)(8), which prohibits retaliation for whistleblowing, but by 5 U.S.C.  2302(b)(9), which prohibits retaliation for lawfully assisting others in the exercise of any appeal, complaint, or grievance guaranteed by law, rule, or regulation. Additionally, the agency pointed out that, at the time the appellant filed his appeal, he was aware that the agency had already rescinded the Written Admonishment, the alleged retaliatory action cited in his appeal. In his initial decision dismissing the appeal for lack of jurisdiction, the administrative judge found that, at the time the appellant filed his Board appeal alleging that the agency had issued him a Written Admonishment in retaliation for his whistleblowing activity, the Admonishment had, in fact, been rescinded and destroyed, and that, therefore, he had failed to non-frivolously allege Board jurisdiction over his appeal “on any basis.”

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and remanded the appeal for further adjudication, including a hearing and decision on the merits:

1. The appellant established jurisdiction over his IRA appeal.

a. The record reflects that the appellant exhausted his administrative remedies before OSC.

b. The appellant made a non-frivolous allegation that he reasonably believed that the information he disclosed evidenced a violation of law, rule, or regulation and a substantial or specific danger to public safety. That the appellant’s actions may be protected by 5 U.S.C.  2302(b)(9) does not preclude his disclosures from being protected by 5 U.S.C.  2302(b)(8).

c. The appellant non-frivolously alleged that the agency subjected him to a covered personnel action, in this case an admonishment.

d. The appellant non-frivolously alleged that his disclosure was a contributing factor in the agency’s decision to issue him the Written Admonishment by satisfying the knowledge/timing test of 5 U.S.C.  1221(e)(1).

2. To the extent that the administrative judge considered the appeal to be moot, he erred.

a. Where an agency cancels an action after the appellant files a request for corrective action with OSC, but prior to the filing of his IRA appeal, that cancellation does not necessarily divest the Board of jurisdiction. Here, the settlement agreement between the appellant and the agency expressly provided that it did not constitute a waiver of any right guaranteed by law, rule, or regulation.

b. The appellant has made a non-frivolous claim that the agency has not completely rescinded the Written Admonishment.

c. An IRA appeal is not moot if the appellant has outstanding, viable claims for consequential damages or corrective action. The appellant has stated that he will seek consequential damages, as well as disciplinary actions against agency officials. The Board has the authority to order consequential damages and disciplinary actions as a result of an action brought by OSC at the request of an employee, and the Board may refer matters raised in an IRA appeal to OSC for further investigation.

Appellant: Warren L. Niemi

Agency: Department of the Interior

Decision Number: 2010 MSPB 107

Docket Number: DE-315H-09-0509-I-1

Issuance Date: June 10, 2010

Action Type: Probationary Termination

Jurisdiction
- “Employees”
- Probationers

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

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion to consider an anomaly in the record that cast doubt on whether the appellant might be an “employee” under 5 U.S.C.  7511 with adverse action appeal rights. After getting clarifying information on review, the Board concluded that the appellant is not an “employee” with appeal rights.

Appellant: Glinda M. Henderson

Agency: Department of the Treasury

Decision Number: 2010 MSPB 108

Docket Number: DA-315H-09-0700-I-1

Issuance Date: June 10, 2010

Action Type: Probationary Termination

Jurisdiction
- “Employees”
- Probationers

The appellant petitioned for review of an initial decision that dismissed her appeal of his termination during her probationary period for lack of jurisdiction.

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion to consider an anomaly in the record that cast doubt on whether the appellant might be an “employee” under 5 U.S.C.  7511 with adverse action appeal rights. After getting clarifying information on review, the Board concluded that the appellant is not an “employee” with appeal rights.

Appellant: Carla I. LaGreca

Agency: United States Postal Service

Decision Number: 2010 MSPB 109

Docket Number: NY-0353-09-0096-I-1

Issuance Date: June 14, 2010

Appeal Type: Restoration to Duty

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed her restoration appeal. The decision informed the appellant that it would become final on September 18, 2009, unless a petition for review (PFR) was filed by that date. The PFR was filed 5 days later, on September 23. The appellant argued that the PFR was timely filed because she did not receive the initial decision until September 4, when she retrieved it from her post office mailbox, and the PFR was filed within 30 days of receipt. She stated that she consulted with her representative, who agreed with the appellant’s interpretation of the language in the initial decision to mean that she had 30 days from September 4 to file a PFR.

Holdings: The Board dismissed the appellant’s petition for review as untimely filed with no showing of good cause for the delay:

1. The appeal was untimely failed.

a. At all times, the appellant had a representative of her choosing.

b. The Board’s regulation, 5 C.F.R.  1201.114(d), specifically provides that “if the petitioner is represented, the 30-day time period begins upon receipt of the initial decision by either the representative or the petitioner, whichever comes first.” The appellant’s representative was required to be familiar with the Board’s regulations.

c. The appellant has not asserted that her representative did not receive the initial decision or that the representative received the initial decision more than 5 days after its issuance. Board precedent and regulations recognize that documents placed in the mail are presumed to be received in 5 days.

2. The appellant failed to establish good cause for the delay in filing.

a. The appellant has presented no evidence of circumstances beyond her control that affected her ability to comply with the time limits.

b. To the extent that the appellant cites her representative’s agreement with her incorrect interpretation of the filing deadline as the reason for her delay, she has failed to establish good cause for her untimely filing.

Appellant: Jeffrey Thom

Agency: Department of the Army

Decision Number: 2010 MSPB 110

Docket Number: DA-0752-09-0367-I-1

Issuance Date: June 15, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Absence-Related
Penalty

The appellant petitioned for review of an initial decision that affirmed his removal based on a charge of absence without leave (AWOL). On review, the appellant does not appear to challenge the administrative judge’s decisions sustaining the AWOL charge and rejecting his affirmative defenses. He instead contends that the agency and the administrative judge did not properly consider his medical conditions as a mitigating factor in the penalty determination.

Holdings: The Board granted the appellant’s PFR and affirmed the initial decision as modified, still affirming the appellant’s removal:

1. The Board granted the PFR to address the evidence of the appellant’s medical conditions. The appellant correctly noted that the deciding official testified that he did not see any of the appellant’s medical documentation, nor was he even aware that the appellant had a relevant medical condition. And although the administrative judge discussed the appellant’s medical conditions in analyzing his claim of disability discrimination, the judge did not explicitly address them in his penalty analysis.

2. The AJ did not err in sustaining the AWOL charge.

a. An AWOL charge will not be sustained if an appellant presents administratively acceptable evidence showing that he was incapacitated for duty during the relevant time period, and the Board will consider evidence of incapacitation even if the appellant failed to provide it to the agency.

b. None of the appellant’s medical documentation indicated that he was incapacitated for duty during the relevant time period.

3. Having considered the relevant Douglas factors, including the appellant’s medical conditions as a mitigating factor, the Board concluded that removal is a reasonable penalty under the circumstances.

Appellant: Stephen W. Gingery

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 111

Docket Number: CH-3330-09-0712-I-1

Issuance Date: June 16, 2010

Appeal Type: Veterans Employment Opportunities Act

VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that denied his request for corrective action in this VEOA appeal. The agency issued vacancy announcements for an Accounting Technician position under both its open competitive process and its merit promotion process. Although the appellant submitted his application under the open competitive process, the agency accepted it for consideration under both announcements. The agency prepared a certificate of eligibles under the merit promotion vacancy announcement that contained only the name of an internal candidate, as its internal policy provided that outside applicants would be considered under the merit promotion process only if no internal candidate was selected, and the internal candidate was selected.

In denying the appellant’s request for corrective action, the administrative judge found that the agency properly followed its internal procedures for filling positions under merit promotion vacancy announcements, and that the agency had no duty to submit the appellant’s name to the selecting official under the internal procedure.

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

1. A violation of the opportunity to compete guaranteed by 5 U.S.C.  3304(f) is remediable under VEOA. Specifically, the statute provides that “[p]reference eligibles . . . may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.”

2. The merit promotion vacancy announcement was ambiguous in that, although it suggested that preference eligibles were only permitted to apply if the agency decided not to fill the position with an internal candidate, it is clear that the agency accepted applications from external candidates under merit promotion procedures while the vacancy announcement was open, and before it decided to select an internal candidate.

3. Accordingly, the Board found that the agency issued a vacancy announcement that was open to individuals outside its workforce, and that the agency in fact accepted applications from individuals (such as the appellant) from outside its workforce.

4. Because the agency accepted applications from individuals outside its own workforce, but considered only applications from internal candidates, the agency did not afford the appellant a bona fide opportunity to compete in violation of  3304(f)(1). The Board ordered the agency to reconstruct the selection process for Accounting Technician position, giving consideration to the appellant and any other qualified preference eligible or veteran.

COURT DECISIONS

Nonprecedential Decisions

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

Smith v. Office of Personnel Management, No. 2009-3248 (June 14, 2010) (MSPB Docket No. DA-831E-08-0476-I-1) (affirming the Board’s decision, which affirmed the denial of an application for disability retirement)

Montgomery v. Merit Systems Protection Board, No. 2009-3188 (June 14, 2010) (MSPB Docket No. DA-1221-08-0179-W-1) (affirming a Board decision that dismissed an IRA appeal for lack of jurisdiction)

Bynum v. U.S. Postal Service, No. 2010-3055 (June 14, 2010) (MSPB Docket No. DC-0752-09-0322-I-1, 112 M.S.P.R. 403 (2009)) (affirming the Board’s decision, which dismissed a removal claim for lack of jurisdiction, found jurisdiction over the appellant’s restoration claim, but found that the agency did not act arbitrarily or capriciously in denying restoration)

White v. U.S. Postal Service, No. 2010-3057 (June 14, 2010) (MSPB Docket No. CH-0752-08-0426-I-2) (affirming the Board’s decision that sustained the appellant’s removal)

Murray v. National Aeronautics & Space Administration, No. 2010-3073 (June 15, 2010) (errata) (MSPB Docket No. DC-4324-09-0240-I-1, 112 M.S.P.R. 680 (2009)) (affirming the Board’s denial of relief under USERRA)

Barela v. Department of the Navy, No. 2010-3069 (June 15, 2010) (MSPB Docket No. DC-0752-08-0046-C-3) (affirming the Board’s denial of the appellant’s petition for enforcement of a settlement agreement)

Steverson v. Social Security Administration, No. 2009-3287 (June 17, 2010) (MSPB Docket No. CB-7521-08-0017-T-1, 111 M.S.P.R. 649 (2009)) (affirming the Board’s decision terminating the petitioner’s position as an administrative law judge based on 4 sustained charges of misconduct)