United States Merit Systems Protection Board

Case Report for December 3, 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: Gerald R. Boutin

Agency: US Postal Service

Decision Number: 2010 MSPB 229

Docket Number: PH-0752-09-0574-I-1

Issuance Date: November 23, 2010

Jurisdiction
- Restoration to Duty
- Constructive Suspension

The appellant petitioned for review of an initial decision that dismissed his restoration to duty appeal and alleged constructive suspension claim for lack of Board jurisdiction. The appellant, a Mail Handler in Providence, Rhode Island, suffered a compensable injury in 1984 and reached maximum medical improvement in 1994. Starting in 2007, he worked as a Mail Handler with modified duties. In June 2009 the agency informed the appellant that, pursuant to its National Reassessment Process (NRP), it had searched for work within his medical restrictions but found no operationally necessary work was available. This search included postal facilities within a 50-mile radius of the appellant’s duty station. The agency directed the appellant to leave work and not to report back unless contacted. The appellant thereafter submitted a new set of medical restrictions, and the agency located an assignment for him working 4 hours per day. Although the appellant was originally placed in a leave without pay status, the agency retroactively converted his status to paid administrative leave for the period until his assignment to the part‑time position. On appeal to the Board, the appellant claimed that he had been placed on enforced leave, that he was denied restoration to duty, and that he was subjected to disability discrimination in that he was denied reasonable accommodation. The administrative judge dismissed the appeal for lack of jurisdiction, both as to the construction suspension and restoration claims, and ruled that, because the Board lacks jurisdiction over the appeal, it may not decide the appellant’s pendent claim of disability discrimination.

Holdings: The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. The appellant’s petition for review failed to show that the initial decision was incorrectly decided.

a. The appellant’s arguments that his modified duties were operationally necessary is a repetition of the arguments that he made below which the administrative judge found unpersuasive.

b. The administrative judge was correct in finding that, in the absence of jurisdiction over the appeal as a constructive suspension or restoration appeal, the Board may not address the appellant’s claim of disability discrimination.

2. The appellant failed to make nonfrivolous allegations sufficient to establish jurisdiction over a restoration claim.

a. An Agency must make every effort to restore a partially recovered employee such as the appellant to a position within his medical restrictions and within the local commuting area.

b. The appellant satisfied the jurisdictional requirement that he make a nonfrivolous allegation that the agency denied his request for restoration. The agency’s elimination of the appellant’s limited duty assignment satisfies this criterion. Moreover, the provision of part-time work, i.e., where an agency has partially eliminated previously afforded limited duty work pursuant to the NRP, constitutes a nonfrivolous allegation of denial of restoration.

c. The appellant failed to make a nonfrivolous allegation that the agency acted in an arbitrary and capricious way. This requirement is satisfied 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). Here, however, the appellant has neither asserted nor proffered any evidence that the agency’s search did not encompass the local commuting area.

3. As the Board ruled in Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473 (2010), in circumstances such as those involved in an appeal such as this, an appellant’s constructive suspension claim is subsumed by the restoration claim.

Appellant: Joan M. Djeridi

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 230

Docket Number: AT-0831-10-0001-I-1

Issuance Date: November 24, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Former Spouse Survivor Annuity

The appellant petitioned for review of an initial decision that affirmed OPM’s determination that she is not entitled to a survivor annuity benefit. When the appellant’s former husband retired from federal service in 1996, he chose to receive a reduced annuity in order to provide a maximum survivor annuity for her. When the appellant and Mr. Djeridi divorced in 1999, the divorce decree divided marital property, providing that the appellant would receive 50% of Mr. Djeridi’s retirement annuity, but did not mention a survivor annuity. Following the divorce, OPM sent letters to Mr. Djeridi and the appellant which stated that the divorce decree did not award survivor benefits, but which did not explain that their divorce decree automatically nullified Mr. Djeridi’s prior election to provide a survivor annuity for the appellant. In November 2000, the appellant asked OPM to consider her entitlement to a survivor annuity based on a Qualified Court Order issued by a Florida state court in June 2000. OPM denied the request, but again did not explain that the appellant was no longer entitled to a survivor annuity based on Mr. Djeridi’s pre-divorce election, or that Mr. Djeridi could or should submit a new voluntary election to provide such a benefit. Subsequently, there was correspondence between Mr. Djeridi and OPM concerning a possible election to provide the appellant a former spouse survivor annuity, but he did not submit a completed form to effect such an election. It was undisputed that the reduction in Mr. Djeridi’s gross annuity to pay for the costs of a maximum survivor annuity for the appellant continued from his election in 1996 until his death in 2009. On appeal, the administrative judge affirmed OPM’s determination that the appellant was not entitled to a former spouse survivor annuity.

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion, reversed the initial decision, and found that the appellant is entitled to a former spouse survivor annuity:

1. The appellant’s entitlement to a survivor annuity based on Mr. Djeridi’s pre-divorce election to provide such benefits terminated by operation of law when Mr. Djeridi and the appellant divorced in 1999.

2. The appellant is not entitled to a former spouse survivor annuity based on the terms of divorce decree or court order.

a. The former spouse of a retired employee is entitled to a survivor annuity if the employee expressly provided for one in an election under 5 U.S.C.  8339(j)(3), or in the terms of any divorce decree, or in any court order or court-approved property settlement agreement issued in connection with the divorce decree.

b. To qualify, a court order must be issued on a day prior to the date of retirement or date of death of the employee, or be the first order dividing the marital property of the retiree and the former spouse.

c. The divorce decree did not provide for a survivor annuity, and the 2000 court order did not qualify because it was not the first order dividing marital property.

3. OPM has a statutory obligation to notify each annuitant annually of his right to elect a survivor annuity for a former spouse within 2 years of the divorce. A former spouse may receive survivor annuity benefits, even without an affirmative election by the annuitant, if the annuitant did not receive the required notice and there is sufficient evidence that the retiree intended to provide a survivor annuity for the former spouse.

4. The appellant is entitled to a survivor annuity because OPM’s notices to the annuitant were legally insufficient and the evidence establishes his intent to provide the appellant a survivor annuity.

a. OPM’s annual notices failed to inform Mr. Djeridi that his pre-divorce election of a maximum survivor annuity had been nullified by the intervening divorce, and that he was required to make a new election within 2 years if he still intended that his former spouse receive an annuity. These notices also failed to inform Mr. Djeridi that his continued receipt of a reduced annuity did not constitute an election to provide for a survivor annuity for his former spouse.

b. In the substantial correspondence between OPM and Mr. Djeridi prior to the expiration of the 2-year election period, OPM never expressly informed him that a pre-divorce election automatically terminates upon divorce and that an annuitant must make a new election to provide a survivor annuity for a former spouse.

c. The appellant showed by preponderant evidence that Mr. Djeridi intended that she receive a maximum survivor annuity, as he had elected prior to their divorce. Continued acceptance of a reduced annuity can be a strong indication that the annuitant intended to provide a survivor annuity for the former spouse.

Appellant: Andrew Searcy, Jr.

Agency: Department of Agriculture

Decision Number: 2010 MSPB 231

Docket Number: AT-4324-10-0356-I-1

Issuance Date: November 30, 2010

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

Jurisdiction
VEOA/USERRA/Veterans’ Rights
Constructive Removal

The appellant petitioned for review of an initial decision that dismissed his USERRA appeal for lack of jurisdiction. The appellant contended that he performed duty in a uniformed service of the United States, that the agency was aware of this service, that the agency denied him employment based on his prior military service when it filled vacancies for which he applied with nonveterans with less experience, and that it denied him a benefit of employment when it withdrew funds from his Civil Service retirement account. The administrative judge dismissed the appeal for lack of jurisdiction without holding the appellant’s requested hearing.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, remanded the appeal for further adjudication of the USERRA claim and for a determination of whether the appellant has established jurisdiction under the Veterans Employment Opportunities Act (VEOA). The Board also forwarded the appellant’s involuntary resignation claim to the regional office for docketing as a new appeal:

1. The appellant established Board jurisdiction over his USERRA appeal.

a. To establish jurisdiction over a USERRA discrimination appeal, an appellant must allege that: (1) he performed duty or has an obligation to perform duty in a uniformed service of the United States; (2) the agency denied him initial employment, reemployment, retention, promotion, or any benefit of employment; and (3) the denial was due to the performance of duty or obligation to perform duty in the uniformed service.

b. The Board takes a liberal approach to determining whether jurisdiction exists under USERRA. The weakness of the assertions in support of a claim is not a basis to dismiss for lack of jurisdiction; rather, if the appellant failed to develop his contentions, his USERRA claim should be denied on the merits.

c. An appellant who raises a USERRA claim has an unconditional right to a hearing.

d. Although the appellant’s allegations below are vague and lacking in specificity, he has established jurisdiction over his USERRA appeal.

2. On remand, the administrative judge must provide the appellant with the opportunity to establish VEOA jurisdiction over his claim.

3. The appellant’s claim of a constructive removal must be forwarded for docketing as a new appeal.

Appellant: Luis Fernando Villada

Agency: United States Postal Service

Decision Number: 2010 MSPB 232

Docket Number: AT-0752-10-0038-I-1

Issuance Date: December 2, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty
- Disparate Penalties

The appellant petitioned for review of an initial decision that affirmed his removal on a charge of improper conduct, i.e., possessing and consuming an illicit substance (marijuana) while attending a training course. The appellant was 1 of 5 agency employees who the agency’s Office of Inspector General found had used marijuana on the grounds of the hotel at the training facility. Following a hearing, the administrative judge sustained the charge, found that there was a nexus between the charge and the efficiency of the service, and found that the penalty of removal, “while harsh,” was not unreasonable. Regarding the appellant’s contention that he was treated disparately compared to 3 other individuals who participated in the same incident and were allegedly not removed, the administrative judge stated that he was required to review the penalty without reference to the comparators because they were not similarly situated to the appellant, in that they were not employed at the same work facility.

Holdings: The Board granted the appellant’s petition for review, affirmed the initial decision insofar as it sustained the charge of improper conduct, and remanded the case to the regional office for further proceedings on the appropriateness of the penalty:

1. To establish disparate penalties, an appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar. If he does so, the agency must prove a legitimate reason for the difference in treatment.

2. In the past, whether an appellant and a comparator were in the same work unit was an outcome determinative factor; if they were not, the Board would not find a disparate penalty. In Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), the Board stated that there must be enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but that the Board will not have hard and fast rules regarding the “outcome determinative” nature of these factors.

3. Here, there appears to be substantial similarity in the conduct in which the appellant and the comparators participated. The record is not fully developed, however, as to the circumstances of the discipline imposed on the comparators and why different chains of command or other factors might justify different penalties. A remand is therefore necessary.

COURT DECISIONS

Petitioner: Karen Johnson

Respondent: Department of Veterans Affairs

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3292

Issuance Date: November 24, 2010

Arbitration/Collective Bargaining-Related Issues

The issue in this case was whether the arbitrator had jurisdiction to review Johnson’s discharge. The letter informing Johnson of her discharge advised her that she had 3 appeal options: she could appeal to the Merit Systems Protection Board; resolve the dispute through an alternative dispute resolution (ADR) process by mutual agreement; or grieve the action under the negotiated grievance procedure under Article 42 of the collective bargaining agreement (CBA). In a letter dated May 20, 2008, Johnson informed the agency that “I do not agree with the reasoning behind the removal and I feel I was not given a fair and equitable disciplinary action prior to the proposed removal leading up to the removal,” and requested an ADR process through the union. On July 3, 2008, the agency informed the union by telephone that it did not intend to participate in the ADR process. On August 15, the union notified the agency that it considered the dispute to be a grievance between the union and the agency. When the matter reached the arbitrator, he concluded that Johnson’s May 20 letter was simply a request for ADR, not a grievance, and that August 15 “was in fact, the first time in this case, that the Union filed a formal appeal of the Agency’s action to remove [Johnson] from her employment.” The arbitrator concluded that the grievance appeal was untimely and dismissed it for lack of jurisdiction.

Holdings: The court reversed the arbitrator’s decision and remanded the matter to the arbitrator to adjudicate the merits of Johnson’s grievance:

1. The CBA defines a grievance as “any complaint by an employee(s) or Union concerning any matter relating to employment . . . .” The CBA does not include any mandatory requirements as to the form that a grievance must take, other than the fact that it must be in writing. Nor does it indicate that an employee must use certain words to constitute a grievance.

2. Giving Johnson’s May 20 letter a liberal reading, the court found as a matter of law that it adequately communicated her intent to grieve her removal under the CBA, i.e., the letter was a complaint concerning a matter of employment. The court concluded that the letter was both a grievance and a request for ADR proceedings to resolve the matter.

EEOC Decision

Complainant: Billy L. Chastain

Agency: Department of the Navy

Tribunal: EEOC Office of Federal Operations

Appeal Number: 0120102409 (no link available)

Issuance Date: November 17, 2010

Discrimination – Compensatory Damages

The EEOC administrative judge found that the complainant established that the agency subjected him to unlawful retaliation for participating in the agency’s internal investigation into a co-worker’s sexual harassment allegations by forcing him to resign. In addition to ordering the agency to reinstate the complainant to employment with back pay, the administrative judge awarded $15,000 in non-pecuniary compensatory damages. On appeal, the complainant contended that he was entitled to a non-pecuniary damage award of $180,000 for his pain and suffering as a result of the agency’s unlawful discrimination.

Holdings: The Commission ordered the agency to pay the complainant $115,000 in non-pecuniary compensatory damages:

1. When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination.

2. After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm, and should be consistent with amounts awarded in similar cases.

3. The administrative judge’s award is inconsistent with what the Commission has awarded or affirmed in cases where complainants have suffered emotional harm similar in severity and duration to the emotional harm the complainant suffered in the instant case. The evidence as to this harm included the following:

a. The complainant provided evidence that he suffered an inability to sleep, nightmares, significant weight gain, aggravation of physical injuries, stomach distress, change in personality, loss of enjoyment in life, withdrawal from family and friends, increased use of alcohol, lack of desire to socialize, isolation, and bouts of anger.

b. The complainant suffers from Major Depression as the result of the agency’s action and his prognosis for recovery without counseling and medication is only “fair.”

c. The agency’s discrimination resulted in a deterioration of the complainant’s relationship with his wife and daughter leading to separation and pending divorce.