United States Merit Systems Protection Board

Case Report for January 14, 2011


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: Teresa C. Chambers

Agency: Department of the Interior

Decision Number: 2011 MSPB 7

Docket Number: DC-1221-04-0616-M-2

Issuance Date: January 11, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Protected Disclosure – Substantial Danger to Public Health or Safety
- Clear and Convincing Evidence

This litigation has a lengthy history, having previously being the subject of two decisions by the Board, 103 M.S.P.R. 375 (2006) and 110 M.S.P.R. 321 (2009), and two decisions by the U.S. Court of Appeals for the Federal Circuit, 515 F.3d 1362 (Fed. Cir. 2008) and 602 F.3d 1370 (Fed. Cir. 2010). The case was before the Board on remand from the latest Federal Circuit decision. The appellant was employed as Chief of the U.S. Park Police. On December 2, 2003, the Washington Post published an article quoting and otherwise describing statements the appellant allegedly made concerning her organization’s need for additional resources. On December 5, the agency placed her on administrative leave and, on December 17, proposed her removal based on 6 charges of misconduct. The removal was effected in July 2004. On appeal to the Board, the appellant contended that she was innocent of the charges and alleged that she was removed in retaliation for disclosing what she reasonably believed were substantial and specific dangers to the public health or safety. In its most recent decision, the Federal Circuit held that the Board properly sustained three of the charges of misconduct: improperly disclosing budget deliberations to a Washington Post reporter; failing to carry out a supervisor’s instructions (3 specifications); and failing to following the chain of command. The court found, however, that charge 2 – making public remarks regarding security on the federal mall, in parks, and on the parkways in the Washington, D.C. metropolitan area – could not be sustained because the sole specification for that charge was grounded in a protected disclosure of a substantial and specific danger to public health or safety. The court further held that this disclosure was a contributing factor in the agency’s decision to take adverse action against the appellant, and that the remaining issues in the case were whether removal remained a reasonable penalty in light of the dismissal of charge two, and whether the agency proved by clear and convincing evidence that it would have taken the same personnel actions against the appellant in the absence of the protected disclosures.

Holdings: The Board reversed the initial decision and granted the appellant’s request for corrective action, ordering the agency to cancel the appellant’s placement on administrative leave and removal and to restore her to employment with back pay and other benefits:

1. The Board found it unnecessary to remand the appeal to the administrative judge. The judge conducted a full hearing on all material issues, the record was well-developed, and the judge’s terse “clear and convincing” analysis did not rely on the demeanor of witnesses. In addition, this clear and convincing analysis was premised on the incorrect conclusion that the appellant had not engaged in protected whistleblowing activity.

2. The Board declined to revisit its previous determination that the restriction on the appellant’s media access following the Washington Post story was not a covered personnel action.

3. In finding that the appellant had made a protected disclosure, the court limited its analysis to a single disclosure, i.e., the appellant’s statement that traffic accidents have increased on the Baltimore-Washington Parkway as evidencing a substantial and specific danger to public health or safety. The court did not preclude the Board from determining on remand whether other disclosures relating to public health or safety were protected.

4. The Board analyzed 5 other statements made by the appellant to the Washington Post reporter and found that one of them – that the “U.S. Park Police had been forced to divert patrol officers to stand guard around major monuments,” resulting in “declining safety in parks and on parkways” – was also a protected disclosure. This disclosure described a specific consequence, an increase in drug dealing, which was an objectively significant and serious danger to public health and safety. The resulting peril was not merely speculative or imminent; it had already occurred. Given the appellant’s expertise in public safety, her belief that increased crime in the smaller national parks was attributable to a reduction in police patrols was reasonable. Similarly, the appellant’s statements in a December 2, 2003 email concerning the number of officers patrolling the GW Parkway, the consequent decision not to arrest suspected drunk drivers, and the resulting jeopardy to parkway travelers, were also protected. By contrast, the other statements were too vague, nonspecific, and speculative to qualify as protected disclosures.

5. The appellant established by preponderant evidence that her protected disclosures were a contributing factor in her placement on administrative leave and her removal.

6. The agency failed to prove by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s protected disclosures. “In fact, we are simply not left with a ‘firm and definite conviction’ that the agency would have taken any action based on the sustained charges in the absence of her protected disclosures.”

a. Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. Clear and convincing evidence is an intentionally high standard of proof for the government to carry. In evaluating whether an agency has met this burden, the Board considers the strength of the agency’s evidence in support of its action, the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision, and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.

b. When examining the strength of the agency’s evidence, the Board will look at the evidence the agency had before it when it took the allegedly retaliatory action. If the agency fails to investigate a charge sufficiently before bringing an action, such a failure might indicate an improper motive. The Board found that the agency failed to investigate charges 3 and 5 adequately before bringing its removal action.

c. After examining in detail the evidence available to the agency at the time it proposed the appellant’s removal, the Board characterized the agency’s evidence with respect to all 3 sustained charges as “weak” and/or “not particularly strong.”

d. The Board found “ample evidence in the record suggesting that the acting officials were motivated to place the appellant on administrative leave and remove her in reprisal for her protected disclosures.” In particular, the Board found that agency officials were influenced by the negative reaction of Deborah Weatherly, a senior staff member of House of Representatives Interior Appropriations Subcommittee, to the Washington Post article. The Board concluded that “it appears that Ms. Weatherly believed that the appellant’s disclosures to the Washington Post were made in an ‘inappropriate’ forum and caused her and the committee ‘concern[]’ because the appellant had been inferring that Congress wasn’t ‘doing its job properly,’ and that Ms. Weatherly conveyed those concerns back to the appellant’s superiors at the agency, who ultimately shared those beliefs and acted to allay these concerns and protect the agency’s budget by placing the appellant on administrative leave and removing her, thereby demonstrating that it could ‘control [its] own staff.’”

e. The timing of the appellant’s placement on administrative leave and removal, shortly after the publication of the Washington Post article, suggests that the agency was motivated to retaliate against her based on those disclosures. Noting that the agency’s actions were taken approximately 6 months after the events underlying the earliest of the sustained charges and 3 months after the latest incident underlying these charges, the Board found “no indication that Mr. Murphy or anyone in the agency had been planning any discipline against the appellant based on any of the conduct underlying charge five or charge six before she made her protected disclosures.”

f. The agency did not present evidence showing that it took similar actions against employees who were not whistleblowers but who were otherwise similarly situated to the appellant.

Member Rose issued a concurring opinion in which she stated that “[c]learly the agency could have supported the appellant’s removal” for the sustained misconduct, but that the agency had not met its heavy burden to prove by clear and convincing evidence that it would have taken the same actions in the absence of the protected disclosures. She stated that she was writing separately “to address the anomaly at the heart of this case.” She observed that an employee whose position has been excepted from the competitive service because it is “of a confidential, policy-determining, policy-making, or policy-advocating character” is excluded from statutory tenure and appeal-rights coverage by 5 U.S.C.  7511(b)(2). For this exclusion to be effective as to a particular individual, however, the appropriate official must designate the position in question as confidential, policy-determining, policy-making, or policy-advocating before the individual is appointed. This was not done in the present case. Member Rose observed that the “discretionary judgment call” to give the appellant appeal rights “was made by others, not by the Board.”

Appellant: Ronald J. Herman

Agency: Department of Justice

Decision Number: 2011 MSPB 4

Docket Number: DC-1221-10-0164-W-1

Issuance Date: January 7, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure

The appellant, a GS-13 Human Resources Examiner, petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. He alleged that the agency reassigned him and took other actions in reprisal for 3 protected whistleblowing disclosures: (1) that a Deputing Assistant Director in his Division had violated the Privacy Act by informing the appellant’s second-level supervisor that a program review of administrative operations conducted by the appellant may have been unduly harsh and might have been motivated by the fact that the appellant’s daughter, who previously worked at the agency, had been suspended for misconduct; (2) that the appellant’s immediate supervisor abused her authority by taking several actions, including detailing him to another position, while indicating that if he applied for a position elsewhere she would make all of the actions go away; and (3) that during program reviews the appellant’s first and second level supervisors arrived late, were not interacting with the team, made sarcastic and inappropriate comments in front of the team, and delegated to an inmate orderly the handling of sensitive documents. Without conducting a hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous that any of his alleged disclosures were protected under the WPA.

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

1. The only issue before the Board is whether the appellant presented a nonfrivolous allegation that he made a protected disclosure.

2. The appellant made a nonfrivolous allegation that his first disclosure – that a Deputy Assistant Director violated the Privacy Act by informing the appellant’s second-level supervisor that the appellant’s daughter, who previously worked at the agency, had been suspended – was protected, in that it evidenced a reasonable belief that he was disclosing a violation of law.

a. The administrative judge found that, under 5 U.S.C.  552a(b), the appellant’s allegation did not constitute a nonfrivolous allegation of law because the Privacy Act permits personal information maintained in agency records to be disclosed to any agency employee who requires the information for official purposes.

b. It was unclear whether Deputy Assistant Director’s revelation was permitted under the Privacy Act; conveying this official’s opinion that the appellant’s program review was unduly harsh did not require that he posit a motivation for the appellant’s review and did not require that he reveal that the appellant’s daughter had been disciplined.

c. The appellant is not a lawyer and there is no record evidence that his duties required him to be familiar with the intricacies of the Privacy Act. Under these circumstances, he could have a reasonable belief that the Deputy Assistant Director had violated the Privacy Act.

3. The appellant made a nonfrivolous allegation that both of his other disclosures reflected a reasonable belief of abuses of authority.

a. An abuse of authority occurs when there is an arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons. There is no de minimis standard for abuse of authority as a basis of a protected disclosure under the WPA.

b. A supervisor’s use of his influence to denigrate other staff members in an abuse manner and to threaten the careers of staff members with whom he disagrees constitutes abuse of authority. The appellant’s second and third disclosures constituted nonfrivolous allegations of an abuse of authority.

Appellant: Thomas Hoever

Agency: Department of the Navy

Decision Number: 2011 MSPB 5

Docket Number: PH-0752-10-0143-I-1

Issuance Date: January 7, 2011

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Pay

Jurisdiction
- Reduction in Pay

The agency petitioned for review of an initial decision that reversed the appellant’s reduction in pay on the basis that he was not provided with notice and an opportunity to respond before it was effected.

Holdings: The Board granted the agency’s petition for review and reversed the initial decision, dismissing the appeal for lack of jurisdiction:

1. In order to establish Board jurisdiction in an appeal from the cancellation of a promotion or an appointment, an appellant must show that: (1) the promotion or appointment actually occurred, i.e., that it was approved by an authorized appointing official aware that he or she was making the promotion or appointment; (2) the appellant took some action denoting acceptance of the promotion or appointment; and (3) the promotion or appointment was not revoked before the appellant actually performed in the position.

2. No appointment of a federal employee can occur in the absence of the “last act” required by the person or body vested with appointment power. In this regard, the Board has determined that rather than placing total reliance on the absence or presence of a Notice of Personnel Action, it will examine the totality of circumstances surrounding the appointment to determine whether the requisite “last act” of an official with appointment power has taken place.

3. The applicable agency policy and procedure documents contain the following provisions: (a) Management officials at Pay Band 2 or higher level will make all selections and be designated as selecting officials; (b) the next higher level manager in the chain of command will be the approving official; (c) while a selecting official determines and authorizes a pay action, that official cannot promise an employee any specific pay rate; (d) the “appointing official” takes formal action to set the proper rate of pay; and (e) all approvals must be obtained before a final or firm offer can be extended to an applicant.

4. Here, the testimony and documentary evidence indicate that there was never an effective appointment by an approving official that constituted a raise in pay. Accordingly, there was no cancellation of an effected promotion that would constitute an appealable reduction in pay.

Appellant: Jane L. Gallo

Agency: Department of Transportation

Decision Number: 2011 MSPB 6

Docket Number: AT-0353-00-0909-B-1

Issuance Date: January 7, 2011

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 appeal of an allegedly improper restoration for failure to state a claim upon which relief can be granted. In January 1995, while working as an operational Air Traffic Control Specialist (ATCS), the appellant suffered a compensable job-related injury. She returned to work in March 1995, but was limited to light duty work. The following year the agency’s Flight Surgeon determined that the appellant was “indefinitely incapacitated” and that she did not meet the meet the medical qualifications to perform the duties of an operational ATCS. In 1996, the appellant accepted a reassignment to an Automation Specialist position at the same GS-14 grade level as her ATCS position, but received wage compensation benefits from OWCP for the loss of night differential and Sunday premium pay she suffered because she was no longer able to work as an operational ATCS. In 2000, the Department of Labor determined that the appellant had recovered from her compensable injury and informed her of her right to restoration to duty. The appellant submitted a written request for priority consideration for a position as an operational ATCS or supervisory ATCS. The agency selected the appellant for a supervisory ATCS position. The appellant’s pay in that position is lower than it would have been if she had remained in her operational ATCS position between 1996 and 2000.

The appellant filed a Board appeal challenging her alleged improper restoration based upon allegations that she was entitled to the restoration of deficient Air Traffic Control pay. After an extended appeal and review process that included decisions by the Court of Federal Claims and the Court of Appeals for the Federal Circuit, the matter was returned to the administrative judge, who issued an initial decision dismissing the appeal for failure to state a claim upon which relief can be granted. He found that: (1) The appellant was an employee who fully recovered from a compensable injury more than 1 year and that she was therefore entitled to priority consideration for restoration to the position she left or an equivalent one; (2) the supervisory ATCS position to which she was appointed was not equivalent to the operational ATCS she previously occupied because the supervisory position was higher-graded and higher-paid, and that her assignment to the supervisory ATCS therefore did not constitute a “restoration” for purposes of 5 U.S.C. chapter 81 and 5 C.F.R. Part 353; and (3) because the appellant did not “resume employment” with the federal government as required by 5 U.S.C.  8151(a), she was not entitled to the protection of that statute.

Holdings: The Board, Vice Chairman Wagner dissenting, affirmed the initial decision as modified, denying the appellant’s request for corrective action:

1. The outcome of this appeal depends on the proper interpretation of  8151(a), which provides: In the event the individual resumes employment with the Federal Government, the entire time during which the employee was receiving compensation under this chapter shall be credited to the employee for the purposes of within-grade step increases, retention purposes, and other rights and benefits based upon length of service.

2. The Board agreed with the administrative judge that the appellant did not “resume employment” within the meaning of the statute because she continued working for the government throughout the period of her compensable injury. The Board acknowledged that the appellant would have a higher salary if she had never been injured and had remained in her operational ATCS position until the time of her promotion. It also stated that Congress may have intended, in a general sense, that someone in the appellant’s position be made whole upon recovery from her injury. Nevertheless, the Board concluded that the administrative judge correctly found that the plain meaning of the phrase “resumes employment with the Federal Government” does not encompass a situation in which an employee is continuously employed by the federal government, albeit in different positions.

3. The Board found that, even if the appellant had resumed employment with the federal government within the meaning of  8151(a), she would not be entitled to the increased compensation she seeks because such relief was not a right or benefit based upon length of service.

In her dissenting opinion, Vice Chairman Wagner explained why she disagreed with the majority’s conclusion that the appellant did not “resume employment with the Federal Government” when she was placed in the supervisory ATCS position. Not only did she not discern a plain meaning in the phrase “resumes employment with the Federal Government,” she found that the more contextually tenable construction of this language is that an employee who is restored within the meaning of  8151(b) is entitled to the benefits provided in  8151(a), and she would have found that the appellant was restored to duty within the meaning of  8151(b)(2).

COURT DECISIONS

 

Non-precedential Decisions

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

Wiley v. Merit Systems Protection Board, No. 2009-3151 (Jan. 11, 2011) (MSPB Docket No. SF-0831-09-0055-I-1) (vacating and remanding the Board’s decision, which dismissed this annuity case for lack of jurisdiction)

Pait v. Office of Personnel Management, No. 2010-3159 (Jan. 11, 2011) (MSPB Docket No. PH-0831-10-0241-I-1) (affirming the Board’s decision that affirmed OPM’s refusal to permit an annuitant to reduce his wife’s survivor annuity because he did not make a timely request)

Lemons v. Office of Personnel Management, No. 2010-3146 (Jan. 12, 2011) (MSPB Docket No. DA-831E-06-0462-I-1) (affirming the Board’s decision, which upheld OPM’s denial of the appellant’s application for disability retirement benefits)