United States Merit Systems Protection Board

Case Report for November 5, 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

 

Appellants: David Dean and Larry Evans

Agencies: Office of Personnel Management and Department of Veterans Affairs

Decision Number: 2010 MSPB 213

Docket Numbers: AT-3330-10-0534-I-1; AT-3330-09-0953-I-1

Issuance Date: November 2, 2010

Appeal Type: Veterans Employment Opportunities Act

VEOA/Veterans’ Rights
- Federal Career Intern Program

The appellants, both of whom are preference-eligible veterans, petitioned for review of initial decisions that denied their requests for relief in these VEOA appeals. Both appeals involve appointments under the Federal Career Intern Program (FCIP), which was created by Executive Order in 2000. Appointments under the FCIP are to positions in Schedule B of the excepted service, and are not to exceed 2 years unless extended by the employing agency with the concurrence of OPM. The Department of Veterans Affairs issued 3 different vacancy announcements for 9 Veterans Service Representative positions, with each announcement citing different hiring authorities. Evans applied under the Veterans Recruitment Authority only. Although the agency prepared separate certificates for applicants it found qualified under the various hiring authorities, if filled all 9 vacancies from the FCIP certificate. Appellant Dean alleged that FCIP systematically violates his right to compete for federal employment because FCIP vacancies are not considered subject to the statutory public notice requirement. He further alleged that federal agencies frequently post FCIP vacancy announcements on web sites that are accessible only to students and alumni of particular colleges, and that agencies send recruiters to college job fairs, who make appointments under FCIP “on the spot.” Dean alleged that as a result of such practices, he and other veterans are being shut out of job opportunities.

Holdings: The Board granted both appellants’ petitions for review, reversed the initial decisions, found a violation of their veterans’ preference rights, and ordered corrective action for both appellants:

1. The Board has jurisdiction over both appeals, as each appellant exhausted his remedy with the Department of Labor, nonfrivolously alleged that he is a preference eligible veteran, that the action(s) at issue took place after the enactment date of VEOA, and that the agency violated his rights under a statute or regulation relating to veterans’ preference.

2. Section 3302(1) of Title 5, U.S. Code, which provides that the “President may prescribe rules governing the competitive service, which shall provide, as nearly as conditions of good administration warrant, for – (1) necessary exceptions from the competitive service,” is a statute relating to veterans preference. By establishing competitive-service hiring as the norm, section 3302(1) is intrinsically connected to veterans’ preference rights in that it ensures that such rights are not circumvented or ignored.

3. Nothing in OPM’s rules for the FCIP prohibits an agency from deciding whether to fill a particular position with a competitive-service appointment or an excepted-service Schedule B appointment under FCIP on an ad hoc basis, after applications are received. Civil Service Rule 6.1(b), which provides that “OPM shall decide whether the duties of any particular position are such that it may be filled as an excepted position under the appropriate schedule,” clearly contemplates that a position must be classified as competitive-service or excepted-service even before a vacancy announcement is issued.

4. FCIP is inconsistent with the Civil Service rules that govern placement of positions in the excepted service under 5 U.S.C.  3302(1) because it allows an agency to invoke an appointing authority reserved for “positions . . . for which it is not practicable to hold a competitive examination” after the agency holds a competitive examination that yields highly-qualified preference-eligible candidates.

5. Neither the Executive Order that created the FCIP nor OPM’s implementing regulations except any particular position from the competitive service. Instead, OPM’s regulations governing the FCIP leave it to individual agencies to determine which positions will be filled under FCIP. Those regulations do not themselves find that excepting FCIP positions from the competitive service is “necessary” for “conditions of good administration,” nor do they require individual agencies to make such findings. As a result, the regulations violate section 3302(1).

6. The Board overruled the statement in Gingery v. Department of Defense, 105 M.S.P.R. 671,  9 (2007), that FCIP is “a valid exception to the competitive examination requirement” because it is “authorized by an Executive Order.”

7. The Board ordered corrective action with respect to both appellants. With respect to Appellant Evans, the Board ordered the Department of Veterans Affairs to reconstruct the hiring process for the positions in question. With respect to Appellant Dean, the Board ordered OPM to comply with section 3302(1) within 120 days.

Appellant: Gerald B. Wynn

Agency: United States Postal Service

Decision Number: 2010 MSPB 214

Docket Number: AT-0752-09-0869-I-1

Issuance Date: November 2, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures
- Preservation of Error
- Notice regarding Affirmative Defenses
Discrimination

The appellant petitioned for review of an initial decision that affirmed his removal on a charge of Unsatisfactory Work Performance. On his appeal form, the appellant checked boxes indicating that the agency discriminated against him on the basis of his marital status or political affiliation and his race. After holding a hearing, the administrative judge sustained the charge, found a nexus between the sustained charge and the efficiency of the service, that the agency considered the relevant Douglas factors, and that the penalty was reasonable. The initial decision did not address any claims of discrimination. In his petition for review, the appellant asserts, among other things, that his representative did not adequately represent him.

Holdings: The Board granted the appellant’s petition for review, vacated the findings in the initial decision, and remanded the appeal for adjudication of the appellant’s affirmative defenses of discrimination on the bases of marital status, political affiliation, and race:

1. The appellant has failed to present persuasive evidence or argument that would warrant disturbing the administrative judge’s decision regarding the merits of the agency’s charges or to support a finding that the agency’s reliance on his prior discipline was improper.

2. The appellant’s claim of inadequate representation does not constitute a basis for reversing the initial decision. Even if true, the presence of inadequate counsel is not a basis for reversal, because the appellant is held responsible for the action or inaction of his counsel.

3. The Board has generally held that an appellant is deemed to have abandoned a discrimination claim if it is not included in the list of issues in a prehearing conference summary, and the party was afforded an opportunity to object to the conference summary. The Board clarified administrative judges responsibilities in this regard as follows:

a. When an appellant raises an affirmative defense by checking the appropriate box in an appeal form, identifying an affirmative defense by name such as “race discrimination,” “harmful procedural error,”, etc., or by alleging facts that reasonably raise such an affirmative defense, the administrative judge must address the affirmative defense(s) in any close of record order or prehearing conference summary and order.

b. If an appellant expresses the intention to withdraw such an affirmative defense, in the close of record order or prehearing conference order the judge must, at a minimum, identify the affirmative defense, explain that the Board will no longer consider it when deciding the appeal, and give the appellant an opportunity to object to withdrawal of the affirmative defense.

4. Administrative judges are required to apprise an appellant of the applicable burdens of proving a particular affirmative defense, as well as the kind of evidence the appellant is required to produce to meet his burden. Because the administrative judge did not apprise the appellant of these matters, and because the record does not establish that the appellant abandoned or withdrew his affirmative defenses, the case must be remanded to the regional office.

Appellant: Anthony Shelton

Agency: Environmental Protection Agency

Decision Number: 2010 MSPB 216

Docket Number: AT-0432-08-0722-A-1

Issuance Date: November 3, 2010

Appeal Type: Performance

Action Type: Attorney Fee Request

Attorney Fees – Prevailing Party
Compliance – Settlement-Related

The appellant petitioned for review of an addendum initial decision that denied his motion for an award of attorney fees relating to his petition for enforcement. The underlying appeal was resolved by a January 27, 2009 settlement agreement, which included a provision that the agency pay the appellant’s representative not more than $61,000 in documented attorney fees and costs, and stated that the agency would “endeavor to process all payments . . . within 30 days or as soon as practicable.” The appellant filed a petition for enforcement in March 2009 and the agency made the agreed payment on or about April 17, 2009. The administrative judge dismissed the petition for enforcement as moot, but advised the parties that the appellant might still prove that he was the “prevailing party” in the compliance proceeding so as to be entitled to an additional award of attorney fees relating to the petition for enforcement. The appellant filed a motion for attorney fees incurred because of the agency’s delay in complying with the settlement agreement. The administrative judge denied the motion, finding that, although the agency failed to pay the attorney fees and costs within 30 days, “the agency established that it endeavored to make the payment of these fees as soon as practicable and further established that it complied with the terms of the settlement agreement.”

Holdings: The Board affirmed the addendum initial decision as modified, still denying the motion for attorney fees:

1. In explaining the parties’ burdens of proof, the administrative judge stated that “the burden of proof is upon the agency to prove its compliance, rather than upon the appellant to prove what the agency would have done in the absence of the [petition for enforcement].” Although the judge correctly recited the holdings of the cases he cited, the case law itself is inconsistent, with some cases stating that the appellant bears the burden of proving that the agency breached the settlement agreement, whereas others state that the agency bears the burden of proving that it did not breach the settlement agreement.

2. The Board clarified the governing law as follows, overruling contrary precedent:

a. In order to show that he is the prevailing party in the compliance phase of the proceedings, an appellant must establish that the agency materially breached the Board enforceable order or settlement agreement at issue.

b. In cases where the agency complies with the settlement agreement during the pendency of the petition for enforcement, the appellant is not required to established that the agency’s eventual compliance was causally related to his petition for enforcement in order to establish that he is the prevailing party.

c. Although the appellant bears the ultimate burden of proving the agency’s noncompliance, the agency bears the burden of producing relevant, material, and credible evidence of its compliance.

3. The Board agreed with the administrative judge’s determination that the agency did not breach the settlement agreement by paying the attorney fees and costs 78 days after entering into the agreement. There were genuine legal and administrative concerns underlying the delay in funding the payment, and the length of the delay was not unreasonable. Because the appellant failed to establish that the agency breached the settlement agreement, he failed to establish that he was the prevailing party in the compliance phase of the proceedings.

Appellant: Genevieve J. Flores

Agency: United States Postal Service

Decision Number: 2010 MSPB 215

Docket Number: SF-0752-09-0308-C-1

Issuance Date: November 3, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance – Settlement-Related

The appellant petitioned for review of a compliance decision that denied her petition for enforcement of the parties’ settlement agreement. The underlying appeal was resolved by a settlement agreement in which the removal was “retroactively converted to a voluntary downgrade” to a particular position at a particular postal facility, “with Sunday and Tuesday off, and 8:00 A.M. – 5:00 P.M. reporting time.” At issue was whether the agreement provided for a full-time position, as the appellant claimed, or a part-time flexible position, with irregular hours and at different positions, as the agency claimed. The agency also claimed that the appellant’s construction of the agreement would require it to violate the applicable collective bargaining agreement (CBA). In finding that the agency was in compliance with its obligations under the settlement agreement, the administrative judge determined that a part-time flexible Clerk will work on an anticipated schedule, subject to change, and that despite the agreement’s terms used to describe the specific work schedule for the position and the appellant’s understanding of those terms, the settlement agreement is unambiguous. The judge further found that, to the extent that the agency could be found not to be in compliance with the position assignment terms of the settlement agreement, the agency had shown good cause for its failure to comply due to the provisions of the CBA and because the agency had offered the appellant other full-time positions, which she had declined to accept.

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

1. In construing the terms of a settlement agreement, the words of the agreement are of paramount importance. The Board has no authority to unilaterally modify the terms of the parties’ settlement agreement, or to read a nonexistent term into an agreement that is unambiguous.

2. The clear, specific, and unambiguous terms of the agreement provide that the appellant would be placed in a full-time position with a specific schedule and duty station.

a. The fact that the agreement does not use the terms part-time flexible or full-time regular does not mean that the agreement was ambiguous regarding the nature of the position specified in the agreement.

b. The settlement agreement describes a specific position, at a specific location, with specific duty hours providing for 8-hour days, and 2 specific days off per week. The plain meaning of these terms is that the appellant would be working a full-time position with a specific work schedule at the South Downey facility.

c. The agency’s asserted interpretation would violate the general rule of contract interpretation that terms of a contract should not be interpreted so as to render them ineffective or superfluous. The agency’s interpretation would render the terms providing for particular duty hours and days off ineffective and superfluous.

3. Because the agency’s obligation to downgrade the appellant to a full-time Clerk position was a matter of vital importance to the contract, its violation of that obligation constituted a material breach of the contract.

4. The Board has generally declined to order an agency to do something that would violate the terms of a collective bargaining agreement. Whether honoring the terms of the agreement in this case would require such a violation is inconclusive based on the present record. On remand, the administrative judge will determine whether specific performance is an available remedy for the appellant, keeping in mind that a Board order of specific performance need not mirror the performance contemplated by the settlement agreement; rather it should be drawn so as best to effectuate the purposes for which the contract was made and upon such terms as justice requires.

Appellant: Blanca G. Patino

Agency: United States Postal Service

Decision Number: 2010 MSPB 210

Docket Number: SF-0353-10-0183-I-1

Issuance Date: October 29, 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 her restoration appeal for lack of jurisdiction. This case involves the agency’s National Reassessment Process (NRP), under which supervisors and managers of employees performing limited duty review those employees’ assignments to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If the supervisor or manager is unable to identify any operationally necessary tasks within the employee’s work restrictions, the employee will be placed on leave until such work becomes available or her medical restrictions change. If there are operationally necessary tasks available with the employee’s work restrictions, but not enough to provide the employee with a full day’s work, the employee will be scheduled to work partial days, and be placed on leave for the remainder of the workday. This arrangement will continue until either the availability of work or the employee’s medical restrictions change.

The appellant in this case had partially recovered from a work-related injury and had worked in limited duty positions on a full-time basis. In November 2009, the agency notified the appellant that, pursuant to the NRP, it was providing her a modified assignment for 3 hours a day. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant was appealing the details or circumstances of her restoration to duty and that she therefore had not made a nonfrivolous allegation of denial of restoration.

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

1. In the case of a partially recovered employee, i.e., one who cannot resume the full range of regular duties but has recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements, an agency must make every effort to restore the individual to a position within her medical restrictions and within the local commuting area.

2. As to the jurisdictional requirement that an appellant nonfrivolous allege a denial of restoration, the Board has held that a provision of part-time work, i.e., where an agency has partially eliminated previously afforded limited duty pursuant to the NRP, constitutes a nonfrivolous allegation of denial of restoration.

3. The appellant has made a nonfrivolous allegation that the denial of restoration was arbitrary and capricious, in that the record fails to establish that the agency searched the entire local commuting area for vacant positions to which the appellant could be assigned.

a. For restoration purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to her usual duty station. The question of what constitutes a local commuting area is one of fact.

b. The initial decision does not define the local commuting area relevant to the appellant’s restoration claim. A remand for supplemental proceedings and issuance of a new initial decision is therefore necessary.

4. The administrative judge should address the appellant’s claim of disability discrimination on remand, taking into consideration the results of the interactive process required to determine an appropriate accommodation.

Appellant: Benjamin Agbaniyaka

Agency: Department of the Treasury

Decision Number: 2010 MSPB 211

Docket Number: CB-7121-10-0015-V-1

Issuance Date: October 29, 2010

Appeal Type: Arbitration Appeals/Grievances

Arbitration

The appellant, who was a Revenue Agent with the Internal Revenue Service, requested review of an arbitrator’s decision that denied his grievance concerning his removal for willfully understating his federal tax liability in violation of section 1203(b)(9) of the Restructuring Reform Act of 1998 (RRA), 26 U.S.C.  7804 note.

Holdings: The Board granted the appellant’s request for review, but affirmed the arbitrator’s decision:

1. Even though the appellant’s request for review did not meet the requirements of 5 C.F.R.  1201.154(d), the Board granted the request for review, as the appellant met the jurisdictional requirements for review under 5 U.S.C.  7121(d): the subject matter of the grievance (removal) is one over which the Board has jurisdiction; the appellant has alleged discrimination (race and national origin discrimination and retaliation for filing EEO complaints) in connection with the underlying action; and a final decision has been issued.

2. The Board’s standard of review of an arbitration decision is deferential; it will modify or set aside an arbitration decision only when the arbitrator has erred in interpreting a civil service law, rule, or regulation.

3. The appellant failed to show that the arbitrator erred in interpreting a civil service law, rule, or regulation.

4. The appellant failed to demonstrate that the agency discriminated against him on the bases of his race or national origin or that its action was in retaliation for protected EEO activity.

5. The arbitrator correctly found that the RRA “imposes mandatory termination for an employee found to have willfully violated his[] federal tax liability,” that only the agency’s Commissioner is statutorily authorized to mitigate the penalty of removal, and that, in this matter, the Commissioner decided not to mitigate the penalty. Both the Board and its reviewing court have held that the Board does not have the authority to mitigate removals imposed under section 1203 of the RRA.

Appellant: Marshall Lefavor

Agency: Department of the Navy

Decision Number: 2010 MSPB 212

Docket Number: SF-752S-10-0589-I-1

Issuance Date: October 29, 2010

Jurisdiction - Suspensions

The appellant petitioned for review of an initial decision that dismissed his suspension appeal for lack of jurisdiction. The agency issued a decision to suspend the appellant for 14 calendar days on a misconduct charge, but the decision notice told him to report back to duty on a date that would make the suspension 15 calendar days in length. Suspensions that exceed 14 calendar days are appealable to the Board. The administrative judge granted the agency’s motion to dismiss, in which the agency asserted that the date listed for reporting back to duty was a typographical error, and that it had granted the appellant administrative leave for the day on which he had been directed to report back to work.

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. This case is similar to Clark v. Department of State, 2 M.S.P.R. 575 (1980), and Karpovich v. Department of the Navy, 38 M.S.P.R. 330 (1988), in that the agency intended to impose a suspension of 14 days but erred in calculating the end date of the suspension. In both Clark and Karpovich, the Board found that the agency succeeded in timely amending its action to impose a non-appealable 14-day suspension.

2. In this case, unlike in Clark and Karpovich, the agency did not take action prior to the expiration of the 14-day calendar-day period. It did not issue SF-50’s correcting the error in decision later until the following month, and the agency did not inform the appellant that he should not report to work on the date specified in the decision notice. The record indicates that the agency modified its action retroactively in response to the appellant’s Board appeal.

COURT DECISIONS

Non-precedential Decisions

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

Jones v. Merit Systems Protection Board, No. 2010-3074 (Nov. 2, 2010) (MSPB Docket No. CH-0752-09-0905-I-1) (affirming per Rule 36 the Board’s decision, which the appeal for lack of jurisdiction)

Kavanaugh v. Department of Health & Human Services, No. 2010-3133 (Nov. 4, 2010) (MSPB Docket No. DC-0752-09-0253-I-2) (affirming the Board’s decision, which dismissed the appeal pursuant to a written settlement agreement)

Ozier v. Merit Systems Protection Board, No. 2010-3060 (Nov. 4, 2010) (MSPB Docket No. DC-300A-09-0367-I-1) (affirming the Board’s decision, which dismissed the appeal as untimely filed and for lack of jurisdiction, on the ground that the appeal was untimely filed)