Case Report for November 19, 2010
Appellant: Byron R. Thomas
Agency: Department of the Treasury
Decision Number: 2010 MSPB 224
Docket Numbers: AT-0752-10-0054-I-2, AT-0752-10-0054-I-1
Issuance Date: November 12, 2010
Appeal Type: Adverse Action by Agency
Action Type: Removal
The appellant petitioned for review of an initial decision that dismissed his refiled appeal as prematurely filed. The appellant filed a timely appeal following his removal on misconduct charges. The administrative judge issued an initial decision dismissing the appeal without prejudice, stating that, during a prehearing conference, “the appellant stated that he was interested in filing a disability retirement application based on his removal for various conduct deficiencies that appear to be related to a medical condition.” The judge also indicated that the agency “may have some obligation to assist the appellant” under 5 C.F.R. § 844.202. The administrative judge ordered that the appellant could refile the appeal no later than 30 days after receipt of a final Board decision disallowing his application for disability retirement, and emphasized that the appellant could only refile his appeal if his application for disability retirement benefits was denied. When the appellant filed a request for review of this decision, it was forwarded to the regional office as a refiling of the original appeal, and the administrative judge issued an order directing the appellant to explain why his appeal should not be dismissed as premature and/or contrary to the instructions for refiling set for in the initial decision. The appellant responded that the agency was not being diligent in helping him file a disability retirement application and that the conditions set forth in the initial decision would prevent him from ever being heard on the merits of his removal appeal. He indicated that he wished to proceed on the merits of his removal appeal. The judge thereafter issued a new initial decision dismissing the refiled appeal as premature.
Holdings: The Board granted the appellant’s petition for review, vacated both initial decisions, and remanded the appeal to the regional office for further adjudication:
1. Although an administrative judge has wide discretion to dismiss an appeal without prejudice in the interests of fairness, due process, and administrative efficiency, the judge must exercise her discretion in a manner consistent with Board policy, including the policy that cases be adjudicated expeditiously. When an administrative judge dismisses a case without prejudice, she must set a date certain for refiling, rather than leaving the refiling date open or ambiguous.
2. A dismissal of the appeal without prejudice is error in this case because the record is not clear that the appellant intended to apply for a disability retirement or requested that his appeal be dismissed without prejudice. Moreover, the absence of a documented record of the matters discussed at the prehearing conference, in particular the appellant’s purported agreement to dismiss his appeal, deprived the appellant of any opportunity to object to the administrative judge’s conclusions from the prehearing conference.
3. The appellant’s filings suggest two possibilities that the administrative judge did not consider – that the appellant did not actually voluntarily agree to dismiss his case or that he did not understand (or was not informed of) the consequences of agreeing to dismiss his case. A dismissal without prejudice should not become a trap to deny an appellant the opportunity to have his case decided on the merits.
4. The administrative judge appears to have imposed an obligation on the agency to assist the appellant with preparing a disability retirement application without making any findings on whether the appellant’s situation met the conditions in 5 C.F.R. § 844.202(a).
Appellant: Guillermo Mojarro
Decision Number: 2010 MSPB 225
Docket Number: SF-0752-10-0222-I-1
Issuance Date: November 12, 2010
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
The appellant petitioned for review of an initial decision that dismissed his appeal of his alleged involuntary retirement without prejudice to refiling. After applying for and receiving a voluntary early retirement, the appellant filed an appeal alleging that his retirement was involuntary as a result of intolerable working conditions and that the agency had violated the Americans with Disabilities Act and Rehabilitation Act. After holding a prehearing conference call with the parties, the administrative judge issued an initial decision dismissing the appeal without prejudice to refiling. The judge found that the parties agreed that the appellant would apply for disability retirement benefits, and would refile his alleged involuntary retirement appeal only if his application for disability retirement benefits was denied by OPM, and his subsequent appeal of that decision was unsuccessful before the Board. On review, the appellant requested that the Board affirm his right to pursue an involuntary retirement complaint with the EEOC. The appellant later submitted a filing asserting that his physician of record will not provide him documentation supporting an application for disability retirement, so he will not be applying for disability retirement from OPM.
Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion and forwarded the appellant’s request for reinstatement of his appeal for docketing as a refiled appeal:
1. An administrative judge has wide discretion to control the proceedings before him and the dismissal of an appeal without prejudice to refiling is a procedural option committed to his sound discretion. Nevertheless, an administrative judge must exercise his discretion in a manner consistent with Board policy, and the Board disfavors dismissals without prejudice that do not contain a specific refiling date, especially where it is unclear when the matter underlying the dismissal will be resolved.
2. Here, the administrative judge did not set a date certain for refiling, but rather made the refiling date solely contingent on a final decision from the Board that would affirm an OPM decision to the appellant disability retirement benefits. The administrative judge thus abused his discretion by dismissing this appeal without prejudice without setting a date certain for refiling the appeal.
3. When an administrative judge has abused his discretion by failing to set a date certain for refiling, the Board has typically modified the initial decision by setting such a date. Such action would be unnecessary and inappropriate here, as the appellant has asserted that he will not be filing an application for disability retirement with OPM. Under these circumstances, the appropriate action is to reinstate the appellant’s involuntary retirement appeal.
Appellant: James H. Tarr
Agency: Department of Veterans Affairs
Decision Number: 2010 MSPB 223
Docket Number: DE-315H-09-0407-I-1
Issuance Date: November 12, 2010
Action Type: Probationary Termination
The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The agency terminated the appellant’s employment during his probationary period citing inappropriate behavior, and notified him that he could appeal to the Board if he believed the termination was based on discrimination because of marital status or partisan political reasons. On appeal to the Board, the appellant indicated that he was terminated for pre-appointment reasons and that the action was procedurally improper. Specifically, he alleged that, 18 months prior to his appointment, he had turned in the husband of an agency official for wearing awards and decorations on his Grand Valley Combined Honor Guard uniform that were not earned, and that his supervisors treated him as a troublemaker because of that action. In the initial decision dismissing the appeal, the administrative judge indicated that the appellant had stated during a telephonic status conference that he was not alleging that his termination was based on partisan political reasons or marital and that he therefore wanted to withdraw his appeal.
In a request to reopen his case, the appellant argued that he was not given advance notice of his proposed termination as required under 5 C.F.R. § 315.805(a), and that the administrative judge told him that his termination appeal was not within the Board’s jurisdiction.
Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:
1. A probationary employee in the competitive service who has not completed 1 year of current continuous service has no statutory right of appeal to the Board. Such an employee has a regulatory right of appeal, however, if he makes a nonfrivolous allegation that he was terminated due to discrimination based on marital status or for partisan political reasons, or because of conditions arising before appointment to the position in question. In the latter instance, the only ground for appeal is that the agency did not follow the procedural requirements of 5 C.F.R. § 315.805.
2. Even though the appellant had alleged that he was terminated for pre-appointment reasons and that he had not been provided required procedures, the administrative judge who conducted the status conference stated that the termination was for post-appointment reasons and that the Board would therefore only have jurisdiction over the appeal if the appellant alleged that the termination was based on partisan political reasons or marital status discrimination. The appellant withdrew his appeal based on that understanding of the Board’s jurisdiction.
3. Although an appellant’s withdrawal of an appeal is ordinarily an act of finality, the Board may relieve the appellant of the consequences of his decision to withdraw the appeal where the decision was based on incorrect or misleading information. Because the appellant’s withdrawal was based on misinformation, and because the appellant made nonfrivolous allegations that he was terminated because of conditions arising before his appointment, the Board granted the appellant’s request to reopen the appeal and remanded the case to the regional office for further adjudication.
Appellant: Marilyn V. Bolton
Decision Number: 2010 MSPB 226
Docket Number: SF-0353-10-0033-I-1
Issuance Date: November 17, 2010
Appeal Type: Restoration to Duty
Action Type: Denial After Recovery from Compensable Injury
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.” The appellant suffered a work-related injury in 1998 and had been performing in a full-time limited position. As part of the NRP, the agency determined that the appellant’s tasks continued to be operationally necessary, but could be performed in 24 hours per week, and it reduced her work schedule to 3 days per week. On appeal to the Board, the administrative judge found that restoration to a limited duty position for 24 hours per week was not so unreasonable as to amount to a denial of restoration and dismissed the appeal for lack of jurisdiction.
Holdings: The Board vacated the initial decision and remanded the appeal to the regional office 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 nonfrivolously allege a denial of restoration, the Board has held that reducing an employee’s limited duty position to a part-time position where the agency has previously afforded full-time limited duty work constitutes a nonfrivolous allegation of denial of restoration.
3. The Board did not resolve the jurisdictional element of whether the appellant made a nonfrivolous allegation that the denial of restoration was arbitrary and capricious, remanding that matter for further adjudication.
a. An appellant may satisfy this jurisdictional element where the record shows that the agency did not examine the entire local commuting area in determining the available work under the NRP, as required under 5 C.F.R. § 353.301(d).
b. The agency established the local commuting area as a 50-mile radius surrounding the appellant’s work station. While the agency submitted evidence that no operationally necessary tasks exist within two postal districts, it failed to submit evidence confirming that a search of the entire local commuting area was actually conducted or that no operationally necessary tasks were found within the appellant’s medical restrictions in a third postal district.
c. On remand, the administrative judge should consider the agency’s potential failure to fully search the local commuting area and the limitation of its search to operationally necessary tasks in other facilities that are available on the two work days that the appellant is not currently scheduled to work, rather than also search for such tasks that would provide the appellant a 40-hour work week.
Appellant: Susan E. McDonald
Agency: Office of Personnel Management
Decision Number: 2010 MSPB 228
Docket Number: DC-0831-10-0297-I-1
Issuance Date: November 18, 2010
Action Type: Retirement/Benefit Matter
Retirement – Survivor Annuity
The appellant petitioned for review of an initial decision that affirmed OPM’s determination that she was not entitled to a survivor annuity. When the appellant’s husband applied for retirement in 1996, she signed a “Spouse’s Consent to Survivor Election” irrevocably waiving a survivor annuity, and he retired on disability with a life-only annuity. The appellant testified that the Postal Service induced her to consent to the waiver by telling her that her husband would be unable to receive a disability retirement annuity unless she signed the waiver. She also testified that she and her husband realized that she had mistakenly waived her right to a survivor annuity a week after signing the waiver, but a Postal Service employee told her husband there was no recourse. The administrative judge found that the appellant did not dispute that she signed the waiver of annuity consent form. She further found that, although the annuitant received notice from OPM that he could change his election of a life-only annuity to provide a survivor annuity for the appellant, the annuitant did not change his election. The administrative judge determined that OPM’s evidence that it sent the required notices created a presumption that it had done so in this case, and the appellant’s testimony that she had not seen the notices was insufficient to rebut the presumption. Regarding the appellant’s assertion that she and her husband received mistaken advice from a Postal Service employee at the time of his retirement, the judge found that the government was entitled to rely on a form voluntarily signed absent a showing of fraud, duress, or mental incompetence, and the appellant had failed to adduce such evidence.
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. Under the Civil Service Retirement System, the surviving spouse of a retired federal employee is entitled to a survivor annuity unless the spouse consented in writing to receive no such annuity at the time of the employee’s retirement. The law provides that a retiree may, within 18 months after retirement, choose to elect a survivor annuity for the spouse to whom he was married at the time of retirement, and OPM has a statutory obligation to notify annuitants annually of their election rights.
2. The appeal must be remanded for further adjudication regarding OPM’s required notices.
a. OPM bears the burden of proving that it sent the required notices. When an appellant makes a nonfrivolous allegation that OPM failed to send a required notice, the burden of production falls to OPM. If OPM can establish through credible evidence that it is more probable than not that it sent the notice, the burden of going forward falls upon the appellant to support her contention that the annuitant did not receive the notice.
b. The administrative judge did not inform the parties of their respective burdens.
c. If the administrative judge determines on remand that OPM failed to provide a required notice, she should then determine whether there is sufficient evidence that the appellant’s husband intended to provide her with a survivor annuity.
3. The appeal must be remanded for further adjudication regarding the allegation that an unnamed Postal Service employee misled her and her husband into believing that he could not elect a survivor annuity and receive a disability retirement annuity.
a. If the unnamed employee committed affirmative misconduct that caused the appellant’s husband to not elect a survivor annuity for her, the appellant might be entitled to waiver of the election requirement under the doctrine of equitable estoppel. The application of equitable estoppel under these circumstances would not result in the expenditure of appropriated funds in contravention of statute.
b. The parties were never informed regarding the correct standard for establishing equitable estoppel.
Appellant: Eloy J. Hernandez
Agency: Department of Defense
Decision Number: 2010 MSPB 227
Docket Number: DA-3443-06-0531-X-1
Issuance Date: November 17, 2010
Case Type: Compliance Referral
This case was before the Board on the administrative judge’s recommendation, which found that the agency had not fully complied with the parties’ settlement agreement. In the underlying appeal of a separation via reduction in force, the parties entered into a settlement agreement that provided that the appellant would be reconsidered for placement in the agency’s Priority Placement Program (PPP) for one year. In a petition for enforcement, the appellant alleged that the agency failed to comply with the agreement because it enrolled him in the PPP for only 4½ months. Although the Board denied the petition for enforcement, the Court of Appeals for the Federal Circuit reversed and remanded, 325 F. App’x. 905 (Fed. Cir. 2009, holding that the agency breached the agreement by placing him on the PPP for only 4½ months. On remand to the regional office, the agency reported that it retroactively enrolled the appellant in the PPP for the appropriate period of time, and that he would have been referred for two vacancies during that time period. It determined, however, that neither position could be offered to the appellant because he had not been deemed well-qualified by the registering human resources office. The appellant argued that the agency’s conclusion that he was not well-qualified for the positions was unsupported by any evidence. The administrative judge agreed and directed that, if the agency finds that the appellant is not well-qualified for either position, it must explain its findings in affidavits from the individuals who made that determination. After the case was forwarded to the Board for enforcement, the agency submitted an affidavit from a human resources specialist who averred that she analyzed the appellant’s qualifications and determined that he is not well-qualified for either vacancy. The appellant responded with his own detailed affidavit in which he listed his qualifications and argued that he is well-qualified for either position, and also alleged that the agency acted in bad faith.
Holdings: The Board found that the agency is now in compliance with the settlement agreement and denied the appellant’s petition for enforcement:
1. Because the agency submitted an affidavit from the human resources specialist who analyzed the appellant’s qualifications and determined that he is not well-qualified for either vacancy, it has complied with the administrative judge’s recommendation that it provide an explanation of its findings and support that explanation with affidavits from the individuals who made that determination.
2. The agency’s regulations provide procedures for reconsideration in situations where PPP registrants contend that mistakes were made in determining qualifications. If the appellant disagrees with the agency’s assessment of his qualifications, his remedy lies with the agency’s reconsideration procedures.
3. The appellant’s mere disagreement with the agency’s conclusions is not sufficient to show that the agency acted in bad faith.
Grandberry v. Department of Homeland Security, No. 2010-3091 (Nov. 16, 2010) (MSPB Docket Nos. DE-3443-06-0300-B-1 & DE-4324-09-0104-I-1) (affirming the Board’s decision, which held that the agency did not meet its USERRA obligations and ordered the agency to reconstruct the hiring policy; the court rejected the petitioner’s argument that the correct remedy was to award him the position with back pay)