United States Merit Systems Protection Board

Case Report for September 17, 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: Paul Dean

Agency: United States Postal Service

Decision Number: 2010 MSPB 187

Docket Number: AT-0353-08-0838-I-2

Issuance Date: September 14, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed his restoration appeal for lack of jurisdiction. The appellant, an EAS-17 Supervisor of Distribution Operations, began suffering a psychological condition and absented himself from work in 2002, and the Office of Workers’ Compensation Programs (OWCP) ruled the condition compensable. It is undisputed that the appellant is capable of performing the full range of duties of his position in a location other than the Rochester, New York facility where he had previously worked. The appellant moved to Fort Myers, Florida in early 2004. In February 2004, the agency offered the appellant a position in Utica, New York, which the appellant declined. The appellant twice requested and was denied restoration in Florida. Following the second denial, he filed a Board appeal claiming that the agency had improperly denied him restoration. The administrative judge issued an initial decision dismissing the appeal on the basis that the appellant failed to establish Board jurisdiction over his appeal as an employee fully recovered after 1 year, finding that, because the appellant declined the job offer in Utica, he failed to make a nonfrivolous allegation that the agency violated his right to priority consideration by hiring another individual.

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 dismissing the appeal for lack of jurisdiction:

1. The administrative judge erred in analyzing this case as one involving an employee fully recovered after 1 year. “Fully recovered means compensation payments have been terminated on the basis that the employee is able to perform all the duties of the position he or she left or an equivalent one.” The appellant does not fit this definition because OWCP has not terminated his compensation payments.

2. Although the medical evidence does not indicate whether the appellant is “partially recovered” or “physically disqualified,” he is entitled to the restoration rights accorded partially recovered individuals under 5 C.F.R.  353.301(c) because he first requested restoration more than a year after the date his eligibility for compensation began.

3. Under the circumstances of this case, the dispositive jurisdictional issue is whether the appellant made a nonfrivolous allegation that the agency’s denial of restoration was “arbitrary and capricious.”

4. The appellant failed to make a nonfrivolous allegation that the agency’s denial of his requests for restoration was arbitrary and capricious.

a. OPM’s regulation at 5 C.F.R.  353.301(d) requires agencies to make every effort to restore partially recovered individuals “in the local commuting area.” The plain language of the regulation indicates that the “local commuting area” is determined by the location of the individual’s former duty station, rather than by the location of the individual’s current residence. The language of the regulation further suggests that there is only one local commuting area in a given case, thus implying a fixed location for that commuting area.

b. The above conclusion is reinforced by examination of the structure of the restoration regulations, which recognize a hierarchy of rights according to the extent of an employee’s recovery, with the most generous rights accorded to those who have fully recovered, and by reference to the definition of the local commuting area in the RIF regulations of Part 351 and the restoration rights of individuals in the excepted service under Part 302.

c. The Board acknowledged a disparity between OPM’s restoration regulations at 5 C.F.R.  353.301(d), where restoration is limited to the local commuting area, and the Department of Labor’s regulations at 20 C.F.R.  10.508, which states that “[i]f possible, the employer should offer suitable reemployment in the location where the employee currently resides.” Nevertheless, the latter regulation does not affect the geographic area in which an agency is required to attempt restoration under OPM’s regulation.

d. Because the agency was not required to attempt to restore the appellant in his new Florida commuting area, its denial of the appellant’s requests for restoration could not be considered arbitrary and capricious.

Appellant: Bernadette Hodge

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 190

Docket Number: DA-0752-09-0457-I-1

Issuance Date: September 15, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Adverse Action Charges
- Indefinite Suspensions
Nexus
Discrimination

The appellant petitioned for review of an initial decision that sustained her indefinite suspension, which was based on an incident of alleged off-duty misconduct. Although the appellant had been arrested on criminal charges in connection with the incident, the agency did not rely on the “crime provision” of 5 U.S.C.  7513(b)(1). The deciding official stated that, until the agency could conduct a thorough examination into the facts and circumstances surrounding the off-duty incident, an indefinite suspension would promote the efficiency of the service because the appellant’s retention in a duty status would be potentially detrimental to government interests or potentially injurious to the appellant, agency employees, or the public. On appeal to the Board, the administrative judge affirmed, finding that the indefinite suspension promotes the efficiency of the service because the agency showed a nexus between the charge, the appellant’s ability to perform in her position, and the agency’s ability to carry out its mission. The administrative judge found that the appellant failed to prove her affirmative defenses, which included a claim of discrimination based on national origin.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision insofar as it sustained the appellant’s suspension, affirmed the initial decision as modified with respect to the discrimination claim, and ordered the agency to cancel the indefinite suspension:

1. The agency may not indefinitely suspend the appellant merely because it has a pending investigation into allegations regarding her conduct. The Board found that the circumstances surrounding the indefinite suspension in this case were virtually identical to those in Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318 (2010), where the Board found that:

a. the Board and its reviewing court have approved indefinite suspensions in only 3 types of cases, none of which is present in this case;

b. OPM’s regulations do not provide support for the position that an agency may indefinitely suspend an employee merely because it has a pending investigation into allegations of misconduct;

c. an agency may take an adverse action against an employee only for “cause,” and it must prove the specific alleged “cause” by a preponderance of the evidence; and

d. there is no valid basis in statute, regulation, or case law for allowing an agency to preliminarily suspend the employee based on a lesser standard of proof while it gathers additional evidence to support an action based on the underlying alleged misconduct.

2. The appellant failed to establish that the agency discriminated against her on the basis of her national origin.

a. The appellant based her claim of discrimination on an allegation of disparate treatment vis--vis 3 comparators. The administrative judge found that the appellant failed to establish a prima facie case of discrimination because 1 comparator was not supervised by anyone involved in the agency action against the appellant, and there was no evidence that the same management officials were involved in the remaining 2 comparators.

b. Because this case had gone to hearing and the record was complete, the administrative judge should not have analyzed the appellant’s discrimination claim by determining whether she had established a prima facie case. The judge should have proceeded directly to the issue of whether the appellant demonstrated that the agency’s reason for its action was a pretext for discrimination.

c. Whether the same management officials were involved in the appellant’s and comparators’ cases is relevant to whether the appellant established discrimination based on disparate treatment, but other relevant factors must be considered, including the similarity of the comparators’ alleged misconduct to that of the appellant. The record shows that the appellant’s alleged misconduct differs materially from that of the comparators.

Appellant: Richard Martinez

Agency: Broadcasting Board of Governors

Decision Number: 2010 MSPB 186

Docket Number: AT-0351-10-0334-I-1

Issuance Date: September 10, 2010

Appeal Type: Reduction In Force

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal of his separation by reduction in force for lack of jurisdiction. The petition was filed almost 2 months after the deadline for timely filing. The appellant asserted that his petition was late because he did not receive the initial decision and was unaware that he could monitor the status of his appeal through the Board’s e-filing website.

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

1. The Board rejected the appellant’s contention that he did not receive the initial decision on a timely basis.

a. As a registered e-filer, the appellant consented to accept all documents issued by the MSPB in electronic form.

b. Under 5 C.F.R.  1201.14(m)(2), “MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission,” and when a law or regulation “deems” something to have been done, the event is considered to have occurred whether or not it actually did.

c. The Board’s e‑Appeal Online Document Distribution Log indicates that the initial decision was sent to the appellant’s email address of record on the date of issuance.

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

a. The initial decision clearly apprised the appellant of the deadline to file a petition for review.

b. The appellant’s stated expectation that he would receive the initial decision through the U.S. mail because he received a copy of an agency submission through the mail was not reasonable. The Board’s e-filing regulation provides that paper copies of MSPB documents issued to the parties “will not ordinarily be served on e-filers.”

c. The appellant presented no further explanation for the filing delay, and no evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limit.

Appellant: Melia Elizabeth Smirne

Agency: Department of the Army

Decision Number: 2010 MSPB 188

Docket Number: PH-315H-10-0101-I-1

Issuance Date: September 14, 2010

Action Type: Probationary Termination

Jurisdiction
- Probationers – Marital Status Discrimination

The appellant petitioned for review of an initial decision that dismissed her appeal of her probationary termination for lack of jurisdiction. The appellant received a career-conditional appointment to a competitive service position in October 2008, subject to a 1-year probationary period. The agency terminated her appointment during her probationary period, citing performance deficiencies. On appeal, she alleged discrimination based on marital status, i.e., because she was a single mother. In dismissing the appeal, the administrative judge concluded that the appellant failed to make a nonfrivolous allegation of marital status discrimination, finding that the appellant was terminated for unsatisfactory performance and that she failed to show that any other employee, married or single, with or without children, was treated less harshly for similar performance deficiencies.

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:

1. The appellant was not an “employee” within the meaning of 5 U.S.C.  7511(a)(1)(A) with adverse action appeal rights.

2. To make a nonfrivolous allegation of marital status discrimination under 5 C.F.R.  315.806(b), a person must allege facts to show that she was treated differently because of her marital status or that go to the essence of her status as a married, single, or divorced person. Such allegations must be “more than mere conjecture.”

3. In response to the judge’s show-cause order on jurisdiction, the appellant submitted a sworn statement that: (1) The agency’s assertions of poor performance were untrue; (2) she was the only one of 10 newly hired secretaries who was unmarried and pregnant during the time she was employed there and was the only one terminated; and (3) her supervisor’s failure to counsel her regarding her performance, promptly credit her with donated leave, or congratulate her on the birth of her son are corroboration that her termination was based on her marital status.

4. The appellant’s allegations concerning her supervisor’s statements and conduct do not reflect any animus or concern on the supervisor’s part about the appellant’s status as an unmarried person or single mother.

5. The appellant correctly asserts that the administrative judge improperly weighed the evidence in concluding that she failed to nonfrivolously allege jurisdiction. The appellant’s sworn statement that she did not have the performance problems asserted by the agency, taken together with her statements that she was the only single, pregnant, newly hired secretary, and the only one terminated, are sufficient to constitute nonfrivolous allegations that her termination was based on her marital status.

Appellant: Wilfredo Mercado

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 189

Docket Number: NY-844E-09-0134-X-1

Issuance Date: September 15, 2010

Appeal Type: FERS - Employee Filed Disability Retirement

Case Type: Compliance Referral

Compliance
Sanctions

This case was before the Board on the administrative judge’s Recommendation finding that OPM was not in compliance with a final Board decision ordering it to grant the appellant’s application for disability retirement. Although the evidence before the administrative judge showed that OPM had made interim payments to the appellant, the judge found that OPM had failed to explain why its interim payment commenced November 1, 2008, rather than September 29, 2007, the appellant’s last day in pay status.

Holdings: The Board found that the agency is now in compliance and dismissed the appellant’s petition for enforcement:

1. OPM has now provided evidence of several interim payments, including a payment that covers a period including the appellant’s last day in pay status, and that it has determined the appellant’s regular monthly annuity benefit.

2. To the extent that the appellant questions the calculation of the correct monthly annuity benefit, that issue is not properly before the Board in this compliance proceeding; the appellant should present that issue to OPM in the first instance.

3. Regarding the appellant’s argument that sanctions should be imposed against OPM for its dilatory responses, the Board stated that, because compliance has been demonstrated, it would be inappropriate to impose sanctions.

Appellant: Veronica Via

Intervenor: Gerald L. Via

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 191

Docket Number: DE-0831-09-0408-I-1

Issuance Date: September 15, 2010

Appeal Type: CSRA Retirement - Other Than Initial

Action Type: Retirement/Benefit Matter

Timeliness – PFR
Compliance

The intervenor petitioned for review of an initial decision that reversed OPM’s reconsideration decision denying the appellant’s request for a portion of the intervenor’s federal retirement annuity. The petition was filed in July 2010, almost 5 months after the deadline for timely filing. In response to the Clerk of the Board’s acknowledgment letter, the intervenor alleged that he had not received any notification about how OPM is going to proceed with compliance with the initial decision, and cited OPM’s failure as the reason for his delay in filing the petition for review.

Holdings: The Board dismissed the intervenor’s petition for review as untimely filed without good cause shown for the delay, but forwarded his apparent allegations of noncompliance to the regional office for docketing as a timely filed petition for enforcement:

COURT DECISIONS

Non-precedential Decisions

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

Taylor v. U.S. Postal Service, No. 2010-3090 (Sept. 9, 2010) (MSPB Docket No. DA-0752-09-0155-I-1) (affirming per curiam a Board decision that sustained the appellant’s removal)

Becker v. Department of Veterans Affairs, No. 2010-3109 (Sept. 14, 2010) (MSPB Docket No. NY-4324-09-0360-I-1) (affirming per curiam the Board’s decision, which denied the appellant’s claim for corrective action in this USERRA appeal)

Stevens v. Department of the Air Force, No. 2010-3053 (Sept. 14, 2010) (MSPB Docket No. DE-0752-09-0207-I-1) (affirming per curiam a Board decision that sustained the appellant’s removal)