United States Merit Systems Protection Board

Case Report for July 16, 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: Manuel J. Gonzalez

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 132

Docket Number: NY-0752-09-0052-I-1

Issuance Date: July 12, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Adverse Action Charges
Indefinite Suspensions
Nexus

The appellant petitioned for review of an initial decision that affirmed his indefinite suspension. The agency indefinitely suspended the appellant from his position as a Criminal Investigator, labeling the “reason” for its action as “Indefinite Suspension Pending Agency Investigation” into allegations that he had committed off-duty acts of domestic violence. The proposal notice stated that, while the allegations raised the possibility of criminal prosecution, the “action it not being proposed based upon a reasonable cause to believe that you have committed a crime for which a sentence of imprisonment may be imposed.” In imposing the indefinite suspension, the agency’s deciding official found that the allegations against the appellant were “sufficiently credible” and, because the agency had provided the appellant with at least 30 days’ notice of its proposed action, “the only applicable standard is whether an indefinite suspension in this case promotes the efficiency of the service.” The decision letter indicated that the suspension would remain in effect until the allegations were resolved.

On appeal to the Board, the appellant asserted that the agency lacked “just cause” to suspend him, arguing that the mere existence of an open agency investigation into the allegations against him was not grounds for disciplinary action. He introduced evidence that a court had determined that there was no probable cause related to the criminal complaint against him. In affirming the indefinite suspension, the administrative judge found that the agency was investigating allegations that the appellant committed acts of domestic violence, that a nexus existed between the agency’s investigation and the efficiency of the service, that the suspension had an ascertainable end, and that an indefinite suspension was a reasonable “penalty” under the circumstances. The judge also concluded that the agency lawfully continued the appellant’s suspension after the dismissal of the criminal charges against him.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and ordered the agency to cancel the indefinite suspension:

1. The Board must review the agency’s decision solely on the ground invoked by the agency – an open investigation into allegations regarding the appellant’s off-duty conduct.

a. Despite the deciding official’s statement that he found the allegations against the appellant to be “sufficiently credible,” the proposal notice made clear that the agency was not charging the appellant with the underlying misconduct. The express basis for the agency’s action was that it has an open investigation into allegations regarding the appellant’s off-duty conduct.

b. The practical effect of the agency’s contention that it may suspend the appellant indefinitely while it investigates whether he actually engaged in misconduct is that the agency has subjected the appellant to a severe adverse action – a lengthy suspension without pay – while the agency conducts its investigation into whether any grounds exist for taking an adverse action against him.

2. The agency may not indefinitely suspend the appellant merely because it has a pending investigation into allegations regarding his conduct.

a. An agency may take an adverse action against a federal employee “only for such cause as will promote the efficiency of the service.” “Cause” under 5 U.S.C.  7513(a) generally connotes some specific act or omission on the part of the employee that warrants disciplinary action, and an agency charge that does not set forth actionable misconduct cannot be sustained.

b. Although chapter 75 contains no specific reference to “indefinite” suspensions, the requirements of subchapter II of chapter 75 apply to “a suspension for more than 14 days.” The law does not articulate the standard applicable to the decision to suspend, beyond requiring that it make be taken “only for such cause as will promote the efficiency of the service.”

c. The Board and its reviewing court have only approved of the use of indefinite suspensions in 3 limited circumstances: (1) when the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed – pending the outcome of the criminal proceeding; (2) when the agency has legitimate concerns that an employee’s medical condition makes his presence in the workplace dangerous or inappropriate – pending a determination that the employee is fit for duty; and (3) when an employee’s access to classified information has been suspended and the employee must have such access to perform his job – pending a final determination on the employee’s access to classified information. The indefinite suspension in this case is not based on any of these recognized bases.

d. The Board rejected the agency’s contention that its action fell within a standard applicable to indefinite suspensions contained in OPM regulations. The agency has not identified, and the Board is unaware of, any legal authority establishing that the mere existence of an agency investigation or inquiry into allegations of misconduct constitutes a circumstance justifying, or cause for imposing, a suspension under 5 U.S.C.  7513.

e. The Board rejected the agency’s argument that the suspension “promotes the efficiency of the service.” Before the Board can reach this issue, the agency must first establish that there is “cause” under  7513(a). Because the Board finds that the agency’s pending inquiry into allegations against the appellant is not actionable “cause,” the agency’s arguments regarding the efficiency of the service are immaterial.

f. In resolving this appeal, the Board holds only that the mere existence of the agency’s open investigation into allegations regarding the appellant’s conduct is not “cause” for taking an action under subchapter II of chapter 75. The Board gives no opinion on whether the agency could impose an indefinite suspension or other adverse action on some other ground.

Appellant: Gary L. Jacks

Agency: Department of the Air Force

Decision Number: 2010 MSPB 133

Docket Number: AT-0752-10-0015-I-1

Issuance Date: July 13, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

The appellant petitioned for review of an initial decision that affirmed his removal. The petition for review (PFR) was filed 14 days after the deadline for timely filing. In requesting that the delay be excused, the appellant asserted that his receipt was delayed because his mail was being rerouted from his Florida address to his California address during the period in question, and he did not receive the January 4 decision until January 23.

Holdings: The Board dismissed the appellant’s PFR as untimely filed without good cause shown for the delay:

1. An appellant is responsible for ensuring the timely forwarding of his own mail and is held responsible for any neglect in this regard. The appellant’s failure to fulfill these responsibilities caused a delay in his receipt of the initial decision and indicates a lack of due diligence on his part.

2. When the appellant allegedly received the initial decision, he still had 16 days remaining to file a PFR or request an extension of time. He has not offered any excuse for his failure to take either action.

Appellant: Robert Retzler

Agency: Department of the Navy

Decision Number: 2010 MSPB 134

Docket Number: PH-4324-09-0572-I-1

Issuance Date: July 13, 2010

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

Timeliness – PFR

The appellant petitioned for review of an initial decision that denied his request for corrective action in this USERRA appeal. The appellant filed his petition for review 2 months after the deadline for timely filing.

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

Appellant: Paula White

Agency: United States Postal Service

Decision Number: 2010 MSPB 135

Docket Number: SF-0353-09-0647-I-1

Issuance Date: July 15, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

This appeal involves the agency’s National Reassessment Process (NRP) Pilot Program, in which management reviews the assignments of those performing limited duty following partial recovery from a work-related injury to ensure that the assignments are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if management is unable to identify operationally necessary tasks available within the employee’s work restrictions, the employee is sent home until such work becomes available or her medical restrictions change. After the appellant was sent home under the NRP Pilot Program, she filed a Board appeal claiming that the agency violated her restoration rights as a partially recovered employee under 5 C.F.R. part 353, and that the agency had failed to accommodate her medical condition. The initial decision dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a non-frivolous allegation that the agency’s discontinuation of her limited duty assignment was an arbitrary and capricious denial of restoration. Absent jurisdiction over the restoration claim, the initial decision found that the Board was without jurisdiction to adjudicate the disability discrimination claim.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

2. On remand, the administrative judge must resolve whether the appeal was timely filed.

Appellant: David Hunt

Agency: United States Postal Service

Decision Number: 2010 MSPB 136

Docket Number: SF-0353-09-0586-I-1

Issuance Date: July 15, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in White, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions, and the initial decision dismissed his restoration appeal for lack of jurisdiction on the basis that he failed to make a non-frivolous allegation that the agency’s discontinuation of his limited duty assignment was an arbitrary and capricious denial of restoration.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

2. Although it appears that the appellant would be unable to establish jurisdiction over a constructive suspension appeal because he lacks veterans’ preference status, the appellant did not receive a jurisdictional notice, so this must be resolved on remand.

Appellant: Lois M. Johnson

Agency: United States Postal Service

Decision Number: 2010 MSPB 138

Docket Number: SF-0353-09-0587-I-1

Issuance Date: July 15, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in White, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions, and the initial decision dismissed her restoration appeal for lack of jurisdiction on the basis that she failed to make a non-frivolous allegation that the agency’s discontinuation of her limited duty assignment was an arbitrary and capricious denial of restoration.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

2. The fact that the agency restored the appellant to duty after the appeal was filed does not deprive the Board of jurisdiction, but this may be relevant to the merits of the restoration appeal.

Appellant: Dana R. Brunton

Agency: United States Postal Service

Decision Number: 2010 MSPB 139

Docket Number: SF-0353-09-0550-I-1

Issuance Date: July 15, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in White, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions, and the initial decision dismissed his restoration appeal for lack of jurisdiction on the basis that he failed to make a non-frivolous allegation that the agency’s discontinuation of his limited duty assignment was an arbitrary and capricious denial of restoration.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

2. The arbitration decision cited by the appellant does not compel a finding for the appellant on his restoration claim because it involved a different issue and a different employee.

3. The Board rejected the agency’s argument that the appellant’s disability discrimination claim should be held in abeyance because it is covered under McConnell v. Potter, a class complaint pending before the EEOC. This argument is unpersuasive because it presumes that McConnell is a mixed case, which it is not. Nothing in the EEOC’s certification of the class complaint discusses denial of restoration or any other action that may be otherwise appealable to the Board. The appellant’s alleged membership in the McConnell class therefore does not divest the Board of jurisdiction over any aspect of his Board appeal.

Petitioner: Special Counsel

Respondents: Richard F. Lee and Diane L. Beatrez

Decision Number: 2010 MSPB 137

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

Issuance Date: July 15, 2010

Appeal Type: Disciplinary Action - Non-Hatch Act

Stays

Respondent Lee filed a motion for a stay, pending judicial review, of the Board’s final decision in Special Counsel v. Lee and Beatrez, 2010 MSPB 89, which found that the respondents committed a prohibited personnel practice by granting a preference to an employee of the U.S. Coast Guard that improved his prospects for obtaining a promotion.

Holdings: The Board denied the motion for a stay, which was based entirely on the argument concerning the merits of her appeal. The motion made no effort to demonstrate that she will suffer irreparable harm in the absence of a stay, or that there is support for granting a stay based on any of the other 3 criteria for granting a stay.

COURT DECISIONS

Non-precedential Decisions

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

Barela v. Merit Systems Protection Board, No. 2010-3048 (July 13, 2010) (MSPB Docket No. DC-1221-09-0641-W-1) (affirming the Board’s decision, which dismissed this IRA appeal for lack of jurisdiction)

Schoenrogge v. Department of Justice, No. 2010-3100 (July 14, 2010) (MSPB Docket No. DA-3330-09-0467-I-1) (dismissing an appeal of the Board’s decision, which ordered the agency to reconstruct the selection process in this VEOA appeal, because the Board has not issued a final decision)