United States Merit Systems Protection Board

Case Report for July 23, 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: Brian Ellis

Agency: Department of Defense

Decision Number: 2010 MSPB 141

Docket Number: DE-0752-09-0439-I-1

Issuance Date: July 16, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Nexus
Penalty

The appellant petitioned for review of an initial decision that affirmed his removal. The agency removed the appellant from his position as a Quality Assurance Specialist based on charges of willfully forging or falsifying official government records and misuse of position. With regard to the first charge, the agency alleged that the appellant created 2 documents, including one produced on agency letterhead with an agency computer, falsely stating that he had been recalled to active military duty and would be relocating from Arizona to Florida. The agency further alleged that the appellant sent those documents to a property management company in an attempt to vacate his rental property before the end of the lease term. Under the misuse of position charge, the agency alleged that the appellant violated 5 C.F.R.  2635.702 by misusing official government stationery and modifying his orders from the Department of the Air Force. The appellant admitted that he had provided false information to the management company in an attempt to terminate his lease, but denied that he received any financial gain from his actions, and argued that his inappropriate use of government property was not related to the performance of his job duties. Based on the written record, the administrative judge found that the agency proved both of its charges, that the nexus between the appellant’s conduct and the efficiency of the service was obvious from the nature of the conduct, and that the agency considered the relevant Douglas factors and that the penalty of removal was within the tolerable limits of reasonableness.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, and affirmed the initial decision as modified, still affirming the appellant’s removal:

1. The appellant has not challenged the administrative judge’s findings with respect to the charges. The Board reopened the appeal to address the issues of nexus and penalty.

2. The agency established a nexus between the charged conduct and the efficiency of the service.

a. An agency may show a nexus between off-duty misconduct and the efficiency of the service by 3 means: (1) a rebuttable presumption in certain egregious circumstances; (2) preponderant evidence that the misconduct adversely affects the appellant’s or co-workers’ job performance or the agency’s trust and confidence in the appellant’s job performance; or (3) preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission.

b. The deciding official’s declaration established that the appellant’s conduct affected management’s trust and confidence in his job performance. The deciding official stated that the appellant performed his duties with little oversight and that the agency needed to have trust in his judgment and integrity. He also explained that the appellant’s position sometimes presented opportunities for an employee to put his own interests above those of the government, and he indicated that the appellant’s actions demonstrated a willingness to put his own interests first. Under the circumstances, he stated that he had lost confidence in the appellant’s integrity and judgment.

3. The removal penalty was within the bounds of reasonableness. The deciding official considered the relevant factors. The appellant engaged in serious and intentional misconduct that caused the agency to justifiably lose confidence in his integrity and judgment.

Appellant: Sabrina M. Beatty

Agency: United States Postal Service

Decision Number: 2010 MSPB 140

Docket Number: SF-0353-09-0542-I-1

Issuance Date: July 16, 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:

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.

Appellant: Phan V. Tram

Agency: United States Postal Service

Decision Number: 2010 MSPB 142

Docket Number: SF-0353-09-0549-I-1

Issuance Date: July 16, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Beatty, 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 arbitration decision cited by the appellant does not compel a finding for the appellant on her restoration claim because it involved a different issue and a different employee.

Appellant: Thien T. Le

Agency: United States Postal Service

Decision Number: 2010 MSPB 143

Docket Number: SF-0353-09-0556-I-1

Issuance Date: July 16, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Beatty, 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.

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.

Appellant: Teresa Marquez

Agency: United States Postal Service

Decision Number: 2010 MSPB 144

Docket Number: SF-0353-09-0540-I-1

Issuance Date: July 16, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Beatty, 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:

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.

Appellant: Arlene Smith In Re: Paul D. Marshall

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 145

Docket Number: AT-0831-10-0059-I-1

Issuance Date: July 16, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFA

The appellant petitioned for review of an initial decision that dismissed as untimely filed an appeal from an OPM final decision finding that she was not entitled to survivor annuity benefits. OPM issued a final decision in 2006 finding that the appellant was not entitled to survivor annuity benefits as the former spouse of Mr. Marshall. The appellant did not appeal that decision to the MSPB. In 2009, she wrote a letter to OPM requesting reconsideration of her entitlement to a survivor annuity. On September 15, 2009, OPM issued another final decision finding that the appellant was not entitled to survivor annuity benefits, and included a notice of appeal rights to the Board. The appellant filed an appeal with the Board’s regional office on October 14, 2009. The administrative judge dismissed the appeal as untimely filed by more than 2 years. The judge stated that OPM’s September 15, 2009 decision was not an appealable final decision, but merely a letter informing the appellant of its previous decision.

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

1. The appeal was filed 29 days after OPM’s September 15 final decision, within the 30-day deadline set forth in the Board’s regulations.

2. OPM’s September 2009 decision stated that it was affirming an initial decision that the appellant was not entitled to benefits, referred to the 2006 decision as both the initial decision and the final decision, stated that the 2009 decision “constitutes the final decision of OPM,” and provided the appellant notice of her Board appeal rights.

3. The Board remanded the appeal to the regional office for adjudication on the merits.

Appellant: David P. Gessert

Agency: Department of the Treasury

Decision Number: 2010 MSPB 146

Docket Number: DC-0752-09-0149-N-1

Issuance Date: July 16, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Pay

Stays
Jurisdiction

The appellant filed a motion to stay the Board’s final decision in Gessert v. Department of the Treasury, 113 M.S.P.R. 329 (2010), pending the disposition of his appeal of that decision to the U.S. Court of Appeals for the Federal Circuit. At issue was the agency’s action returning the appellant to his prior GS-13 grade-level position, based on its determination that the appellant had been promoted to the GS-14 grade level due to an administrative error and without legal authority. The Board found that the appellant’s promotion was, in fact, an error contrary to law or regulation, and that it was therefore without jurisdiction over the agency’s action correcting that error.

Holdings: The Board dismissed the appellant’s motion for a stay. Once the Board has determined that it is without jurisdiction to entertain an appeal, it does not have jurisdiction to make any other determinations or grant any relief with regard to that appeal.

Appellant: Debra G. Langton

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 147

Docket Number: PH-831E-09-0554-I-1

Issuance Date: July 16, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Disability Retirement
- Restoration to Earning Capacity

The appellant petitioned for review of an initial decision that sustained OPM’s final decision discontinuing her disability retirement annuity on the basis that she had been restored to earning capacity as of December 31, 2006, because her income in 2006 was at least 80% of the current rate of basic pay for the position she occupied immediately before retirement. The dispositive issue was the proper method of computing the 2006 rate of basic pay for the EAS-16, step 05 position from which the appellant retired. This is normally determined based on the current annual rate of basic pay for the grade and step of the position from which the disability annuitant retired. This method was unavailable because the Postal Service changed the pay system after the appellant retired, eliminating the “step” system under which employees would receive pay increases bases on their length of service in a particular grade, and implementing a “Pay-for-Performance Program,” under which pay increases are based on performance evaluations. The question was which of the alternative methods of 5 C.F.R.  831.1209(b)(2)(i)-(v) was the proper one. OPM used subsection (v); the appellant argued that subsection (iii) was the correct method.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal to the regional office for further adjudication. It determined that subsection (iv) of  831.1209(b)(2) was the correct method of calculating the appellant’s rate of basic pay, and detailed the information that would be necessary for a proper computation.

Appellant: Deborah G. Harrison

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 148

Docket Number: DC-844E-10-0127-I-1

Issuance Date: July 21, 2010

Appeal Type: FERS - Employee Filed Disability Retirement

Timeliness – PFR

The appellant filed petition for review of an initial decision that dismissed her appeal of a disability retirement matter on the basis that it was barred by res judicata (claim preclusion), because the merits of the claim had been decided in an earlier appeal. The petition for review was filed more than a month 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. The appellant’s explanations about seeking legal advice did not establish good cause for the delay.

Appellant: John D. Hamilton

Intervenor: Jean Hamilton

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 149

Docket Number: DC-0831-10-0145-I-1

Issuance Date: July 21, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Court/Domestic Relations Orders
- Former Spouse Annuity

The appellant petitioned for review of an initial decision that affirmed in part and reversed in part OPM’s reconsideration decision relating to the intervenor’s entitlement to a share of the appellant’s lifetime annuity as well as former spouse survivor annuity benefits. The appellant and the intervenor separated in September 1992. In 1995, they executed a Separation and Property Settlement Agreement, which was subsequently incorporated into a 1996 divorce decree. Under the Agreement and divorce decree, the intervenor was entitled to: a share of the appellant’s CSRS retirement benefits as of the date of their separation; 55% of the appellant’s gross monthly annuity, with a reduction for a former spouse survivor annuity; and the maximum possible former spouse annuity. A controversy about the proper payment of annuity benefits arose after the appellant retired in 2006. OPM revised its determinations several times, and the divorce decree was amended twice subsequent to the appellant’s retirement. In its reconsideration decision, OPM determined that the intervenor remained entitled to a former spouse survivor annuity. With respect the intervenor’s entitlement to a portion of the appellant’s lifetime retirement annuity, OPM ultimately determined that the intervenor would receive 55% of the appellant’s gross monthly annuity benefits as of the parties’ separation in 1992, which would be deemed to award her a pro rata share of the appellant’s current gross annuity.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, and affirmed the initial decision as modified:

1. The intervenor is entitled to 30.59% of the appellant’s gross annuity, beginning on March 1, 2006, the date of his retirement.

a. Under 5 C.F.R.  831.621(c), a court order that awards a portion of an employee annuity as of a specified date before the employee’s retirement awards the former spouse a pro rata share of the annuity.

b. Under 5 C.F.R.  838.621(a), a pro rata share means one-half of the fraction whose numerator is the number of months of federal service that the employee performed during the marriage and whose denominator is the total number of months of the employee’s federal service.

c. As the appellant performed 456 months of total federal service, of which he performed 279 months while married to the intervenor, the intervenor is entitled to 30.59% of the appellant’s gross annuity.

2. The intervenor remains entitled to the maximum former spouse survivor annuity benefit, the costs of which are to be deducted from her share of the appellant’s lifetime annuity.

Appellant: James M. Helms

Agency: Department of the Army

Decision Number: 2010 MSPB 150

Docket Number: CH-0752-09-0251-I-1

Issuance Date: July 21, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Adverse Action Charges
- Security Clearance Determinations
Defenses – Harmful Error

The appellant petitioned for review of an initial decision affirming his indefinite suspension based on the suspension of his access to classified information. As an Intelligence Specialist, the appellant held a Top Secret security clearance, which was a condition of his employment. The agency indefinitely suspended the appellant when his access to information on the agency’s classified computer network was suspended, pending determination by the agency’s Central Personnel Security Clearance Facility on whether to reinstate his access to classified information. Following a hearing, the administrative judge issued a decision affirming the indefinite suspension.

Holdings: The Board granted the appellant’s petition for review and affirmed the initial decision as modified, still sustaining the indefinite suspension.

1. The Board granted the appellant’s petition for review for the purpose of addressing his arguments regarding harmful procedural error and disparate treatment, which were not discussed in the initial decision, finding that his other arguments lack merit.

2. The agency’s change in designation of deciding officials was not harmful procedural error.

a. An agency commits procedural error when it replaces a properly authorized deciding official who has already considered an employee’s reply to a proposed adverse action and arrived at a decision.

b. Here, there is no evidence that the Company Commander, rather than the Brigade Commander, was the properly authorized deciding official. The change was made to be in compliance with written agency policy. Moreover, there is no evidence that the Company Commander had considered the appellant’s reply and reached a decision before he was replaced.

3. The Board cannot decide the appellant’s claim of disparate treatment (sex discrimination). The Board is without authority to adjudicate a discrimination claim in an appeal from an action that was based on suspension or revocation of access to classified material, as this would involve an inquiry into the validity of the agency’s reasons for deciding to revoke the appellant’s access to classified information. This is impermissible under Department of the Navy v. Egan, 484 U.S. 518 (1988).

Appellant: Marisa E. Diggs

Agency: Department of Housing and Urban Development

Decision Number: 2010 MSPB 151

Docket Number: DC-0752-09-0594-I-1

Issuance Date: July 22, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Evidence – Credibility
Bias
Adjudicatory Errors

The appellant petitioned for review of an initial decision that affirmed her removal for misconduct. After a hearing, the administrative judge found that the agency proved its charges, that the appellant failed to prove her claim that the removal was taken in reprisal for prior EEO activity, and that the removal penalty was within the bounds of reasonableness.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion to consider the appellant’s arguments on review, and affirmed the initial decision:

1. The appellant failed to show that the administrative judge erred in limiting the issues, denying her witness requests, and limiting examination of witnesses at the hearing. These claims all pertain to the appellant’s insistence that she be allowed to litigate the issues underlying her prior EEO complaints. As the administrative judge explained below, these matters are not properly before the Board unless the appellant could show how they pertain to the merits of her appeal or her affirmative defense.

2. The administrative judge did not err in finding that the appellant failed to establish her EEO reprisal defense. The administrative judge thoroughly discussed and analyzed the testimonies surrounding the misconduct at issue and found the appellant’s version of the incidents incredible. The judge properly found that the agency witnesses’ credible testimony established that their decision to remove the appellant was based entirely on her misconduct and was unrelated to her prior EEO activity.

3. The appellant’s claim that the administrative judge was biased is without merit. She failed to overcome the presumption of honesty and integrity that accompanies administrative adjudicators.

4. The agency did not err in considering the appellant’s prior discipline in selecting the removal penalty.

Appellant: Mr. John Perez Peraza

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 152

Docket Number: DC-0831-09-0852-I-1

Issuance Date: July 22, 2010

Action Type: Retirement/Benefit Matter

Defenses – Equitable Estoppel

OPM petitioned for review of an initial decision that reversed its reconsideration decision denying the appellant’s request to revoke his election of a survivor annuity for his spouse. It is undisputed that, prior to electing a reduced annuity with the maximum survivor annuity for his wife when he retired, the appellant was informed verbally by a Benefits Specialist at his employing agency (the Social Security Administration (SSA)) and at least one OPM official that he could cancel his annuity election up to 18 months after retirement. In fact, the law and OPM’s regulations allow for such action no later than 30 days following the appellant’s receipt of his first monthly annuity. OPM denied the appellant’s request to revoke his election because the request was made more than a year after his receipt of his first monthly annuity. On appeal to the Board, the administrative judge reversed OPM’s final decision, applying the doctrine of equitable estoppel. The judge determined that OPM was estopped from enforcing the 30-day deadline because SSA and OPM officials engaged in affirmative misconduct, and the appellant reasonably relied on the information they provided.

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

1. One basis for waiving a filing deadline prescribed by statute or regulation is that an agency’s affirmative misconduct may preclude enforcement of the deadline under the doctrine of equitable estoppel.

2. There are two elements that must be shown to prove a claim of equitable estoppel, affirmative misconduct and reasonable reliance on this misconduct. The negligent provision of misinformation does not constitute affirmative misconduct.

3. Although the undisputed evidence establishes that the appellant was misinformed by SSA and OPM officials, the appellant did not allege or present evidence to show that the officials who provided misinformation to him knew that the statements they made were inaccurate.

4. A remand is necessary because the parties to this appeal were never informed of the correct standard for establishing equitable estoppel.

5. On remand, the parties should address whether the appellant acted reasonably given the information available to him, including the instructions accompanying his retirement application.

6. On remand, the administrative judge shall provide the appellant with a renewed opportunity for a hearing.

COURT DECISIONS

Non-precedential Decisions

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

Gingery v. Department of Defense, No. 2010-3094 (July 19, 2010) (MSPB Docket No. CH-3443-06-0582-M-1) (dismissing for lack of jurisdiction an appeal from an MSPB initial decision that ordered the agency to reconstruct the hiring process for specified positions on the basis that the Board has not issued a final decision)

Mancini v. Department of Veterans Affairs, No. 2010-3006 (July 21, 2010) (MSPB Docket No. CH-0752-09-0272-I-1) (affirming the Board’s decision, which affirmed the appellant’s removal for misconduct)

Eisele v. U.S. Postal Service, No. 2010-3002 (July 22, 2010) (MSPB Docket No. DC-0752-08-0626-C-2) (affirming the Board’s decision denying the appellant’s petition to enforce the Board’s order for back pay)