United States Merit Systems Protection Board

Case Report for August 6, 2010

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.



Appellant: Barbara A. Lambright

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 158

Docket Number: CH-0831-09-0922-I-1

Issuance Date: July 30, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFR

The appellant petitioned for review of an initial decision that affirmed OPM’s decision denying her claim for a survivor annuity. The petition for review (PFR) was filed almost 7 weeks after the deadline for timely filing. She asserted that her PFR was untimely because, having no money to hire an attorney, she provided documents for filing a PFR with “family and friends who knew people with a legal education,” and “by the time the documents were returned to [her], the time to appeal had expired.”

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

Petitioner: Special Counsel

Respondent: Phillip Mark

Decision Number: 2010 MSPB 159

Docket Number: CB-1216-09-0013-T-1

Issuance Date: August 2, 2010

Appeal Type: Disciplinary Action - Hatch Act

Special Counsel Actions
- Hatch Act

The respondent petitioned for review of an initial decision that found his removal was warranted for violating the Hatch Act. The petitioner filed a 4-count complaint charging that the respondent, an Internal Revenue Service Revenue Agent, violated the Hatch Act by forwarding one e‑mail to numerous individuals including co-workers. The e‑mail, from then-presidential candidate Barack Obama, solicited online contributions. The respondent added the following to the forwarded e‑mail: FYI . . . if you want to help out the campaign! PS . . . If you are tired of getting e‑mails from me, just let a brotha know!” The respondent sent the e‑mail while on duty from his government office. The respondent admitted to 3 of the 4 counts, including violations of 5 U.S.C.  7323 and 7324. The administrative law judge found it unnecessary to make a finding on the 4th count because he found that the 3 counts were sufficient to support removal.

Holdings: The Board granted the respondent’s petition for review, affirmed the initial decision’s findings that the respondent violated the Hatch Act, and ordered a 120-day suspension for the respondent:

1. Because the respondent had not challenged the administrative law judge’s factual findings and the Board perceived no error in that regard, the Board proceeded directly to a discussion of the appropriate penalty for the violations.

2. Removal must be imposed for an employee’s violation of 5 U.S.C.  7323 or 7324 unless the members of the Merit Systems Protection Board find “by unanimous vote” that a lesser penalty is warranted, and the respondent has the burden of showing why he should not be removed.

3. In considering whether removal is warranted for a Hatch Act violation, the Board considers 6 factors: the nature of the offense and the extent of the employee’s participation; the employee’s motive and intent; whether the employee had received advice of counsel regarding the activity at issue; whether the employee ceased the activities; the employee’s past employment record; and the political coloring of the employee’s activities.

4. After considering these factors, the Board unanimously determined that forwarding one political e‑mail, under the circumstances of this case, does not warrant removal.

a. The Board considers any Hatch Act violation by a federal employee, on duty and in government offices, to be a serious matter.

b. This case is distinguishable from the Board’s recent decision in Special Counsel v. Ware, 114 M.S.P.R. 128 (2010), where the Board ordered Ware’s removal for sending multiple partisan e‑mails from her government computer while on duty, and where the recipients included 3 contract employees over whom she had authority and influence. Here, the respondent forwarded just 1 e‑mail, and he did not solicit subordinates or other individuals subject to his control or authority.

Appellant: Cesar R. Ramirez

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 160

Docket Number: SF-831M-10-0302-I-1

Issuance Date: August 2, 2010

Appeal Type: CSRA - Overpayment of Annuity

Action Type: Retirement/Benefit Matter

- Annuity Overpayment

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction on the basis that OPM had not yet issued a final decision. OPM issued an initial decision recomputing the appellant’s annuity, stating that the appellant had received a net overpayment of about $8,000, and that it intended to collect the overpayment from future annuity payments. Although the appellant twice requested reconsideration and waiver of any overpayment (the first time in April 2009), and has filed 2 Board appeals, OPM has still not issued a reconsideration decision and has started collecting the alleged overpayment. In dismissing the present appeal, the administrative judge accepted OPM’s representation that it still intended to issue a reconsideration decision.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and remanded the appeal to the regional office for adjudication on the merits:

1. The Board generally lacks jurisdiction to hear an appeal of a retirement matter when OPM has not issued a reconsideration decision on the matter. The Board has recognized an exception to that general rule when an appellant has repeatedly requested such a decision and the evidence indicates that OPM does not intend to issue one.

2. The circumstances of this appeal fall within the exception. Because OPM has failed to issue a reconsideration decision despite the appellant’s repeated requests and has commenced its collection of the alleged overpayment, its initial decision is tantamount to an appealable reconsideration decision that affects the appellant’s rights and interests under the retirement law.

Appellant: Annette Davis

Agency: Department of the Interior

Decision Number: 2010 MSPB 161

Docket Number: AT-0752-09-0860-I-1

Issuance Date: August 5, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Discrimination – Race and Sex

The appellant petitioned for review of an initial decision that affirmed her removal for misconduct. On appeal to the Board, the appellant alleged, among other things, that the agency’s action was based on prohibited discrimination (race and sex), and that it was taken in retaliation for filing an equal employment opportunity (EEO) complaint. The administrative judge issued an Affirmative Defenses Order that explained the parties’ burdens of proof regarding her claims of discrimination and retaliation, and directed the appellant to “specifically identify the factual bases for her claims on these matters,” including any information about persons she claimed were similarly situated but were treated differently. During the prehearing conference, and over the appellant’s objections, the judge struck the appellant’s affirmative defenses of race and sex discrimination, stating (in a single sentence) that the appellant “failed to allege facts which, if proven, would establish a prima facie case of either claim.” During the hearing, the parties presented evidence only on the charge and the appellant’s reprisal defense. In the initial decision, the administrative judge found that the agency proved its charge (including all 3 specifications), that the appellant did not prove her affirmative defenses of reprisal for EEO activity and harmful error, and affirming the removal penalty. The initial decision did not address the discrimination claims other than to note that they were struck during the prehearing conference.

Holdings: The Board granted the appellant’s petition for review, affirmed the initial decision as modified, sustaining the administrative judge’s findings with regard to the charge of misconduct and his conclusions regarding the appellant’s affirmative defenses of harmful error and reprisal, and remanding the appeal for further proceedings relating to the appellant’s affirmative defenses of race and sex discrimination:

1. The Board affirmed the administrative judge’s findings with regard to the misconduct charge and the affirmative defenses of harmful error and reprisal for protected EEO activity.

2. The administrative judge erred in his handling of the appellant’s affirmative defenses of race and sex discrimination.

a. The judge’s Affirmative Defense Order identified the following elements as defining her prima facie burden of proof on the discrimination claims: (1) that she is a member of a protected group; (2) that she was similarly situated to an individual who was not a member of the protected group; and (3) she was treated more harshly or disparately than the individual who was not a member of the protected group.

b. The judge erred in requiring the appellant to demonstrate that she was treated more harshly than a similarly situated individual who was not a member of her protected class. A prima facie case of disparate treatment discrimination can be established by any proof of actions taken by the employer that shows a “discriminatory animus,” where “in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations.”

c. An appellant does not have an unconditional right to an evidentiary hearing on discrimination; a hearing need not be conducted when there is no genuine dispute of material fact regarding discrimination. This standard mirrors the one governing summary judgment under Fed. R. Civ. P. 56. The administrative judge applied an incorrect standard when he dismissed the appellant’s discrimination claims for failure to allege fact that, if proven, would establish a prima facie case of discrimination. Moreover, the judge erred in dismissing the appellant’s discrimination claims without notifying her of the requisite standard for obtaining an evidentiary hearing on those claims.

d. The administrative judge also erred because he did not perform the requisite substantive analysis necessary to dispose of a discrimination claim without a hearing. An administrative judge must make findings of fact and conclusions of law on all material issues of fact and law presented in an appeal, and this duty extends to the dismissal of claims of prohibited discrimination. Accordingly, the appellant is entitled to a written decision on whether she has raised a genuine dispute of material fact regarding her affirmative defenses of race and sex discrimination.

3. Because the administrative judge prematurely dismissed the appellant’s affirmative defenses of race and sex discrimination without a hearing, the appeal must be remanded for further adjudication.


Non-precedential Decisions

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

Howard v. Merit Systems Protection Board, No. 2010-3130 (August 2, 2010) (MSPB Docket No. CH-0752-09-0777-I-1) (dismissing as untimely an appeal from a Board decision)

McGachey v. Department of the Air Force, No. 2009-3304 (August 3, 2010) (corrected August 4) (MSPB Docket No. DA-0752-08-0356-I-1) (affirming the Board’s decision sustaining the appellant’s removal)

Flood v. Department of the Army, No. 2010-3023 (August 5, 2010) (MSPB Docket No. PH-0752-09-0209-I-1) (affirming the Board’s decision sustaining the appellant’s removal)