United States Merit Systems Protection Board

Case Report for December 10, 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: Thomas E. Warner

Agency: Department of the Interior

Decision Number: 2010 MSPB 233

Docket Number: SF-0752-09-0234-I-1

Issuance Date: December 6, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Discrimination
- Age Discrimination – Disparate Impact

The appellant petitioned for review of an initial decision that affirmed his 30-day suspension based on charges of interference with an official government investigation and carelessness in performing assigned work. Following a hearing, the administrative judge found that the agency proved its charges, that the appellant failed to prove his affirmative defenses – reprisal for whistleblowing, retaliation for prior grievance activity, and age discrimination – and that the suspension penalty was reasonable. Regarding the age discrimination claim, the appellant relied on both disparate impact and disparate treatment theories of recovery. Under the theory of disparate impact, he alleged that the agency “has a practice of forcing out older employees by proposing disciplinary action based on pretextual charges of misconduct.” In his prehearing conference summary, the administrative judge set forth the standard of proof for a claim of age discrimination based on disparate treatment, but did not set forth the burden and elements of proof with respect to the appellant’s disparate impact claim. In the initial decision, the administrative judge noted that a claim of age discrimination could be one of disparate treatment or disparate impact, but stated that the appellant “specified” that he was alleging disparate treatment. On review, the appellant reiterates his argument that the agency has a practice of forcing out older employees, contends this is a disparate impact claim, and asserts that the administrative judge improperly failed to evaluate the claim.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for adjudication of the appellant’s claim of age discrimination under a disparate impact theory:

1. An administrative judge must inform an appellant of the burdens and elements of proof on his discrimination claims.

2. Because the administrative judge failed to provide the required notice regarding the appellant’s disparate impact claim, the Board did so. To establish a prima facie case of a disparate impact violation, an employee must identify the specific employment practices that are allegedly responsible for any observed statistical disparities and offer statistical evidence of a kind and degree showing the practices at issue have caused the disparate impact. Unlike Title VII, the Age Discrimination in Employment Act significantly narrows coverage for disparate impact cases by precluding liability if the adverse impact was attributable to reasonable factors other than age.

3. The case was remanded to the regional office for further adjudication.

Appellant: Nyles Duncan

Agency: Department of the Air Force

Decision Number: 2010 MSPB 234

Docket Number: DA-4324-10-0072-I-1

Issuance Date: December 7, 2010

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

USERRA/Veterans’ Rights

The agency petitioned for review of an initial decision that granted the appellant’s request for corrective action under USERRA. The appellant had claimed that, as a result of the agency’s alleged denial of paid military leave benefits for military training, he was required to use 4 days of annual leave to fulfill his military obligations. In finding that the appellant established this claim, the administrative judge relied upon the appellant’s testimony, the military reserve point statement, the military time and attendance records obtained from the Defense and Finance Accounting Service (DFAS), and calendars and worksheets prepared by the office of the appellant’s representative, which calculated the dates the appellant exhausted his military leave and was required to use annual leave to fulfill his military obligations. On review, the agency contended that the administrative judge disregarded Board precedent in finding that the appellant met his burden of proof.

Holdings: The Board granted the agency’s petition for review and reversed the initial decision, denying the appellant’s request for corrective action:

1. An appellant is entitled to relief under USERRA if, as a result of the agency’s improper administration of military leave, he was forced to use annual leave or leave without pay in order to fulfill his military obligations.

2. The appellant neither submitted time and attendance records from his civilian employment, nor showed that he attempted to obtain these records from the National Personnel Records Center.

2. It is apparent that the dates on which the agency allegedly charged the appellant military leave on non-workdays and required him to use annual leave are based upon speculation arising from his review of the DFAS records showing his dates of military service and his understanding that the agency would have charged him military leave on non-workdays. Such speculation does not rise to the level of preponderant evidence. Further, the record does not contain documentary evidence that specifically identifies the dates the agency actually charged him military leave, let alone if and when the agency actually required him thereafter to use annual leave to cover his absence for military service.

Appellant: Timothy C. Salazar

Agency: Department of the Army

Decision Number: 2010 MSPB 235

Docket Number: DE-0752-09-0415-I-1

Issuance Date: December 7, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Timeliness – PFR
Jurisdiction – Alleged Involuntary Retirement

The appellant petitioned for review of an initial decision that dismissed his alleged involuntary retirement appeal for lack of jurisdiction. The appellant alleged that his January 2009 retirement was involuntary due to misinformation as to whether he had paid the correct/full amount of his required deposit for post-1956 military service. The deposit was made during the appellant’s previous employment with the Immigration & Naturalization Service (INS). A Human Resource Specialist with the Army stated that, when she spoke to the appellant in November 2008, he indicated that he had submitted a copy of the form showing the deposit in the late 1990s, and that she advised him that his prior submission of the form was sufficient to complete his application for retirement, but that she did not discuss with him whether the amount of the deposit was correct. Following the appellant’s retirement, OPM notified the appellant that his military deposit had been erroneously calculated using the 3% amount applicable under the Federal Employees’ Retirement System rather than the correct 7% amount applicable under the Civil Service Retirement System, and that the appellant must pay the remaining balance in full. The appellant asserted that he would not have retired had he known that the INS had incorrectly calculated his post-1956 military deposit and the consequences of that error. In rejecting the appellant’s claim of an involuntary retirement, the administrative judge concluded that: (1) It was undisputed that the Army did not provide the appellant with misinformation because both the appellant and the Army assumed that his post-1956 deposit was correct; and (2) the Army officials were not negligent in failing to spot and correct the INS’s error.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and ordered the agency to reinstate the appellant to his former position:

1. The appellant established good cause for the untimely filing of his petition for review.

a. The appellant filed his petition for review almost 2 months after the filing deadline set forth in the initial decision.

b. The appellant created a petition for review prior to the filing deadline on the e‑filing section of the Board’s website.

c. Noting that it is possible to exit the Board’s e-filing website without receiving a clear warning that an appellant has not yet filed his pleading, the Board found good cause for the untimely filing because the appellant could reasonably have believed that he filed his pleading in a timely fashion.

2. The appellant established that his retirement was involuntary due to misinformation provided by the Army.

a. An involuntary retirement or resignation is tantamount to a removal, and, accordingly, is appealable to the Board. The presumption that a retirement is voluntary can be rebutted by evidence showing that the retirement was the result of agency misrepresentation, coercion, or duress.

b. Where there is a claim that an involuntary action resulted from misinformation, an appellant must show that the agency made misleading statements and that the appellant reasonably relied on the misinformation to his detriment. The appellant need not show that the agency intentionally misled him.

c. The Army’s retirement counselor based her estimates of the appellant’s retirement annuity on the proof of payment in full of a military deposit the appellant included in his retirement packet. The proof of payment information was wrong. Because the Army did not verify the accuracy of the appellant’s military deposit, the Army’s estimate of the appellant’s monthly annuity was incorrect. Thus, the Army provided the appellant with misinformation, albeit unintentionally.

d. Because the appellant has shown that the Army provided him misinformation and that he reasonably relied on it in deciding to retire, he has proven that his retirement was involuntary.

Appellant: Deidra R. Minor

Agency: United States Postal Service

Decision Number: 2010 MSPB 236

Docket Number: CH-0752-09-0620-I-1

Issuance Date: December 7, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Failure to Follow Instructions

The agency petitioned for review of an initial decision that found that it failed to prove either of its charges against the appellant and therefore reversed her removal. On July 6, 2008, the appellant, an EAS-17 Supervisor, notified her the Acting Manager, Distribution Operations (MDO) that she had injured herself while at work on June 17, 2008. An investigation by the agency’s Office of Inspector General (OIG) concluded that the appellant had submitted a false claim for an on-the-job knee injury that was a pre-existing condition and had made materially false statements regarding the matter to the OIG. The MDO proposed to remove the appellant based on two charges, Failure to Follow Instructions and Improper Conduct. The first charge was based on the appellant’s alleged failure to timely report her accident/injury as required by the agency’s Handbook Employee’s Guide to Safety. The charge of improper conduct alleged that the appellant attempted to receive pay and medical benefits to which she was not entitled by submitting a false claim of a work-related injury and that she knowingly provided false statements during an official investigation. After conducting a hearing, the administrative judge found that the agency failed to prove either charge and ordered the agency to restore the appellant to employment.

Holdings: The Board granted the agency’s petition for review with respect to the charge of failure to follow instructions, finding that the agency proved this charge, denied the petition with respect to the charge of improper conduct, and remanded the appeal to the agency to determine a new penalty:

1. The administrative judge erred in not sustaining the charge of failure to follow instructions.

a. The charge specified that the appellant had failed to follow the agency’s Handbook, which states: “If you are injured or become ill from work-related causes, you must report immediately to your supervisor, even if the problem seems minor.” The appellant clearly did not follow the instructions in the Handbook in that she delayed 18 days before reporting her injury.

b. The administrative judge stated that, to prove this charge, “the agency must show that the appellant’s 18-day delay in filing her OWCP claim rose to the level of ‘failure to follow instructions’ . . . .” The judge erred by substituting a different specification for the one invoked by the agency.

2. The agency’s petition for review fails to provide a basis for reversing the administrative judge’s finding that it did not prove the charge of improper conduct.

3. In light of the deciding official’s testimony that he would not have decided to remove the appellant based solely on the charge of failure to follow instructions, the Board determined that it was appropriate to remand the case to the agency to select an appropriate penalty.

Appellant: Ricky Williams

Agency: United States Postal Service

Decision Number: 2010 MSPB 237

Docket Number: AT-0752-10-0284-I-1

Issuance Date: December 8, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFA
Mixed Case Procedures

The appellant petitioned for review of an initial decision that dismissed his appeal as untimely filed. After the agency removed the appellant from his position as a Mail Handler effective June 27, 2008, the appellant filed a complaint with the EEOC, which the EEOC construed as amending a previous discrimination complaint the appellant had filed regarding two previous disciplinary actions. In an order returning the case to the agency, the EEOC administrative judge stated that the parties “understood that if the removal claim was added . . . the case would become a mixed case complaint.” The agency issued its Final Agency Decision (FAD) finding no discrimination on November 18, 2008. The FAD advised the appellant that he “may appeal this decision to the Merit Systems Protection Board, not the Equal Employment Opportunity Commission,” within 30 days of receipt . . . .” On December 15, 2008, the appellant appealed the FAD to the EEOC’s Office of Federal Operations (OFO). The OFO later dismissed the appeal, finding that it lacked jurisdiction. After the OFO denied the appellant’s request for reconsideration, the appellant filed his appeal with the Board on December 29, 2009. In dismissing the appeal as untimely filed, the administrative judge stated that the appellant had been given clear instructions concerning his appeal rights, but nonetheless failed to heed the agency’s and the EEOC’s instruction to file an appeal with the Board.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for adjudication on the merits:

1. A mixed case appeal such as this must be filed within 30 days after the employee receives the agency’s FAD.

2. 5 U.S.C.  7702(f) provides that, when an employee files an action, appeal, or petition “with an agency other than the agency with which the action, appeal, or petition is to be filed,” the employee shall be treated as having timely filed the action, appeal, or petition with the proper agency.

3. Under  7702(f) and the circumstances of this case, the appellant’s submission of an appeal to the EEOC OFO on December 15, 2008 must be considered to be a timely filing with the Board of an appeal from the November 18, 2008 FAD.

Appellant: Tamela Futrell-Rawls

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 238

Docket Number: DC-0752-10-0268-I-1

Issuance Date: December 8, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Settlement

The appellant petitioned for review of an initial decision that dismissed her appeal as settled. During a telephone conference in this removal appeal, the administrative judge announced that the parties had reached an agreement to settle the case, and asked the agency representative to state the terms of the agency’s offer. The agency representative stated that the agency would allow the appellant to resign from her position effective the date of the removal, and would revise her SF-50 to reflect a resignation for personal reasons. The representative responded in the affirmative to the judge’s question as to whether the appellant’s Official Personnel File would be expunged of evidence of the removal action. The judge then asked the appellant if she had any questions for the agency representative and whether she understood and accepted the offer, and she answered that she accepted the offer and had no questions. The judge concluded the telephone conference by stating that she would place the recording in the file, that the case would be regarded as settled based on the tape-recorded terms, and that she would issue a decision indicating that the case was dismissed as settled. In an initial decision issued the next day, the administrative judge dismissed the appeal as settled, finding that she was satisfied that it was lawful on its face and freely reached by the parties, and that they understood its terms. The decision also stated that the judge determined that the agreement would be enforceable by the Board.

After the telephone conference, the agency prepared a written settlement agreement and sent a copy to the appellant for her signature. In a letter which may have been sent prior to the appellant’s receipt of the initial decision, the appellant advised the administrative judge that she had decided not to sign the agreement because there was no benefit to her in the agreement because there was no provision for compensatory damages, and requested that her case be reopened and the appeal continued. In her petition for review, the appellant raised a number of objections, including that there were terms in the written settlement agreement that the parties had not discussed during the telephone conference, and specifically mentioned that the agreement required her to “dismiss, waive and forfeit/forever discharge the agency” from claims she wished to pursue, including EEO matters and Privacy Act violations.

Holdings: The Board granted the appellant’s petition for review, found that there was insufficient evidence that the parties reached a settlement, and remanded the case to the regional office for adjudication on the merits:

1. Before dismissing an appeal based on a settlement agreement, an administrative judge must document for the record that the parties reached a settlement agreement, understood its terms, and agreed whether or not it was to be enforceable by the Board. These requirements apply equally to written agreements and oral agreements.

2. Although the appellant answered that she accepted the agency’s offer and had no questions, she never stated that she was withdrawing her Board appeal, and her actions shortly thereafter suggest that she did not understand the oral agreement and its implications.

3. Contrary to the agency representative’s statements in her affidavit, the written agreement she sent the appellant for her signature did not memorialize the terms of the agreement set forth during the telephone conference; the 6-page document imposed additional requirements on the appellant, and stated that it superseded all prior oral agreements and understandings.

4. The Board concluded that the administrative judge dismissed the appeal with insufficient evidence of the parties’ intent to enter into a settlement agreement. In sum, although an oral agreement is valid in Board proceedings, there is insufficient evidence to find that a settlement of any type was reached between these parties.

Appellant: Anthony D. Chacon

Agency: Department of Agriculture

Decision Number: 2010 MSPB 239

Docket Number: DE-0752-08-0493-X-1

Issuance Date: December 8, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Compliance

This case was before the Board pursuant to the administrative judge’s recommendation finding that the agency was in noncompliance with a Final Order directing the agency to cancel the appellant’s involuntary resignation and restore him to employment with back pay and benefits. There were two outstanding issues: (1) whether the appellant was provided with an explanation of how interest was calculated; and (2) whether he is entitled to overtime back pay.

Holdings: The Board found that the agency remains in partial noncompliance:

1. The law provides that back pay “shall be payable with interest.” The agency concedes that it has not provided the appellant with an explanation for the computation of interest on back pay. It must do so.

2. The agency has not shown compliance with its duty to provide overtime back pay.

a. A prevailing appellant is entitled to overtime that he normally would have earned had the unlawful personnel action not occurred.

b. The Board rejected the agency’s contention that the appellant is not entitled to overtime because any overtime assignments were not part of his normal duties and were associated with assignments that are not guaranteed and are voluntary. Whether or not the overtime was voluntary, the appellant demonstrated that he actually worked overtime prior to his involuntary resignation.

c. The appellant was eligible to work overtime during the relevant time period.

d. Overtime back pay may be computed based on either the appellant’s pre-removal overtime history or average overtime hours worked by similarly-situated employees during the removal period.

3. The Board ordered the agency to provide evidence of compliance within 15 calendar days and to identify the agency official charged with complying with the Board’s order.

Appellant: Cesar Lee

Agency: Environmental Protection Agency

Decision Number: 2010 MSPB 240

Docket Number: PH-0432-09-0413-I-1

Issuance Date: December 9, 2010

Appeal Type: Performance

Action Type: Removal

Performance-Based Actions
Board Procedures – Motion to Disqualify the Administrative Judge

The appellant petitioned for review of an initial decision that affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43.

Holdings: The Board affirmed the initial decision as modified, still affirming the agency’s removal action:

1. Although the administrative judge applied an incorrect legal standard in denying the appellant’s request that she withdraw as the presiding official, the judge correctly denied this motion, as well as the motion to certify an interlocutory appeal regarding the denial.

a. The basis for the motion was that the administrative judge and agency counsel were acquainted as former colleagues in the legal department of the U.S. Postal Service, and that this association, in combination with her adverse rulings, would cause a reasonable person to question her impartiality.

b. This case is unusual in that the appellant did not allege that the administrative judge was biased but rather that she was otherwise disqualified. In such circumstances, the Board’s policy is to follow the standard set out at 28 U.S.C.  455(a), that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The Board agreed with the appellant’s contention that the administrative judge considered matters that do not relate to the correct standard.

c. The Board agreed with the administrative judge that a reasonable, objective observer would not question her impartiality based on the unremarkable fact that she and the agency representative had been coworkers years before at an agency that is not a party to this appeal.

d. The administrative judge did not abuse her discretion in denying the appellant’s motion to certify this issue as an interlocutory appeal under 5 C.F.R.  1201.42(c).

2. The Board found without merit the appellant’s objections to the administrative judge’s other prehearing rulings and determinations relating to discovery, witnesses, and motions in limine and for subpoenas.

3. The Board found without merit the appellant’s objections to the administrative judge’s findings as to the merits of the case and her affirmative defenses of harmful procedural error and discrimination because of national origin.

Appellant: Sylvester E. Harding, III

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 241

Docket Number: DC-0752-10-0064-I-1

Issuance Date: December 9, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Indefinite Suspensions
Nexus
Penalty

The agency petitioned for review of an initial decision that reversed the appellant’s indefinite suspension. The agency indefinitely suspended the appellant from his position as a Housekeeping Aid based on his criminal indictment on two felony drug charges and two misdemeanors, as well as his being charged under a Special Indictment as a Habitual Felon. The agency stated that it had reasonable cause to believe he might be guilty of a crime for which a sentence of imprisonment may be imposed. The administrative judge issued an initial decision reversing the suspension on the basis that the suspension lacked an “ascertainable end.”

Holdings: The Board granted the agency’s petition for review and reversed the initial decision, sustaining the appellant’s indefinite suspension:

1. Based on the appellant’s indictments by a grand jury on multiple felony charges, the agency established that it had reasonable cause to believe the appellant might be guilty of a crime for which a sentence of imprisonment may be imposed, as required by 5 U.S.C.  7513(b)(1).

2. The appellant’s indefinite suspension has an ascertainable end.

a. The requirement that an indefinite suspension must have an ascertainable end derives from the statutory definition of a “suspension” – “the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.” An indefinite suspension must have a condition subsequent which will terminate the suspension.

b. As the Board stated in Rawls v. U.S. Postal Service, 98 M.S.P.R. 98 (2004), “while the better practice is for agencies to identify the conditions subsequent explicitly in their decision notices imposing indefinite suspension, the pertinent requirement for a valid indefinite suspension is that the suspension have a condition subsequent, rather than that the agency’s decision notice explicitly identify the condition subsequent.”

c. Although the agency in the present case failed to explicitly state the condition subsequent that would end the suspension, the Board found that the suspension has an ascertainable end, i.e., the resolution of the criminal proceedings that are the grounds for the suspension.

3. The agency established that the appellant’s indefinite suspension was taken for such cause as promotes the efficiency of the service and that the penalty was reasonable.

COURT DECISIONS

Petitioner: Rickey D. Carrow

Respondent: Merit Systems Protection Board

Intervenor: Department of Veterans Affairs

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

Docket Number: 2010-3061

Issuance Date: December 3, 2010

Jurisdiction – “Employee”

The issue in this case was whether Carrow was an “employee” under 5 U.S.C.  7511(a)(1)(C)(ii) such that the Merit Systems Protection Board would have jurisdiction to review the termination of his employment during his probationary period. Carrow had been employed for 5 years by the Department of the Army, where he had acquired appeal rights. In 2006, he applied for and received an appointment to an excepted service position with the Department of Veterans Affairs (DVA), which required the completion of a probationary period. His employment was terminated after 4 months for “unacceptable performance issues.” The Board’s administrative judge found that at the time Carrow left his position with the Army and entered into service with the DVA, he was informed that his new position was a temporary one in the excepted service pending his achieving board certification as an Orthotist-Prosthetist. The administrative judge further found, however, that Carrow was not specifically advised that his temporary appointment was limited to 13 months, i.e., that it was less than 2 years in length, which is the statutory trigger for him to qualify as an “employee” under  7511(a)(1)(C)(ii). Nonetheless, the administrative judge ruled that the DVA’s failure to advise Carrow that his temporary appointment was for less than 2 years did not render his decision to leave his position with the Army involuntary and did not give the Board jurisdiction over his appeal.

Holdings: The court affirmed the administrative judge’s determination that the Board lacked jurisdiction to review Carrow’s termination:

1. The court rejected Carrow’s claim that, because he was not informed that his DVA appointment would result in the loss of his Title 5 rights, his decision to accept the appointment was involuntary and thus ineffective.

a. The dispositive flaw in Carrow’s argument is that the Board’s jurisdiction over certain actions such as removals is limited to persons with the status of “employee” under 5 U.S.C.  7511.

b. An “employee” under 5 U.S.C.  7511(a)(1)(C)(ii) is an individual in the excepted service “who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.” Carrow did not qualify under this language because he was serving under a temporary appointment not to exceed 13 months.

2. This case does not come within a line of cases that hold that in certain circumstances an employee may appeal to the Board from a resignation or retirement if the employee can show that the resignation or retirement was involuntary.

a. The rationale underlying these cases is that a resignation or retirement that is involuntary because it was obtained by misleading or coercive conduct on the part of the agency amounts to a constructive removal action and thus falls within the provisions of subchapter II of chapter 75 allowing an appeal to the Board.

b. That line of cases has no application here because those cases all involve claims by persons who were statutory “employees” at the time of the action in question.

c. Carrow was not an “employee” at the time he was removed from his position at the DVA. Although he had previously been an “employee” with the Army, he is not seeking reinstatement to his position with the Army.

d. Any failure on the part of the DVA to provide full information to Carrow regarding the terms of his employment with the DVA did not give the Board jurisdiction over his appeal seeking reinstatement to his position at the DVA.

e. The court noted that it was not ruling on the correctness of the Board’s decisions in Park v. Department of Health & Human Services, 78 M.S.P.R. 527 (1998), and Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344 (1994).

 

Non-precedential Decisions

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

Schoenrogge v. Department of Justice, No. 2010-3168 (Dec. 8, 2010) (MSPB Docket No. DE-3330-10-0050-I-1) (affirming the Board’s determination that Schoenrogge was properly afforded preferential status as a veteran pursuant to the Veterans Employment Opportunities Act, that he did not meet the Board’s standard for establishing a claim of bias, and that there is no basis for reopening his removal appeal)