United States Merit Systems Protection Board

Case Report for February 4, 2011

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.



Appellant: James M. Black

Agency: Department of Transportation

Decision Number: 2011 MSPB 13

Docket Number: AT-0752-09-0926-I-1

Issuance Date: February 2, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

- Last-Chance Agreements
- Validity - Consideration

The appellant petitioned for review of an initial decision that dismissed his removal appeal for lack of jurisdiction based upon his waiver of Board appeal rights in a last chance agreement (LCA). The appellant was an Air Traffic Control Specialist with the FAA. The FAA proposed his removal in January 2009 based on his positive alcohol test in violation of DOT policy. In his response to the removal notice, the appellant expressed his “exuberant willingness” to participate in a rehabilitation program. The FAA offered the appellant a Treatment/Rehabilitation Plan (TRP), which the appellant accepted. The FAA issued a decision notice finding that the appellant’s breach of DOT/FAA policy warranted his removal, but it offered him an LCA under which the removal action would be held in abeyance. The LCA contained a number of conditions, including not only the appellant’s successful completion of the TRP, but reinstatement of the removal and waiver of Board appeal rights should he breach the conditions of the agreement in the future. The appellant signed the LCA after he had begun rehabilitation under the TRP. In July 2009, the appellant tested positive for marijuana metabolite. Based upon the appellant’s alleged violation of the LCA, the FAA terminated the abeyance status of the removal action and removed him.

On appeal to the Board, the appellant challenged the validity of the LCA, arguing that he had no choice but to execute the LCA and completely waive his appeal rights in order to continue rehabilitation under his TRP, and that there was no consideration for his waiver of appeal rights. He also contended that the FAA lacked authority to issue the policy that mandated the LCA, and that the FAA policy was in conflict with a DOT-wide Order. The administrative judge found, among other things, that the appellant could have enforced his right to continued treatment under agency policy without signing the LCA and risking removal, and that the FAA has the authority to condition treatment upon the execution of an LCA that includes a waiver of appeal rights.

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. The FAA’s Human Resources Operating Instructions (HROI) conflict with the DOT-wide Order, DOT Order 3910.1C.

a. The HROI explicitly conditions the opportunity for rehabilitation on acceptance of an LCA that includes a waiver of appeal rights. By contrast, DOT Order 3910.1C provides that where there is a first determination of off-duty alcohol misuse, and the employee accepts the opportunity to participate in a TRP, the agency must hold the removal action in abeyance. Only if the employee refuses the opportunity for rehabilitation or fails to successfully complete the rehabilitation program may the agency effect the employee’s removal.

b. The HROI permits the FAA to renege on its offer of rehabilitation once the employee has begun treatment simply because the employee rejects its subsequent offer of an LCA. This is impermissible under DOT Order 3910.1C.

2. A question exists concerning the FAA’s authority to promulgate a policy that amends or conflicts with DOT Order 3910.1C.

a. 49 U.S.C.  40122(g) authorizes the FAA Administrator to “develop and implement . . . a personnel management system for the [FAA] that addresses the unique demands on the agency’s workforce.”

b. It is unclear under the current record whether the FAA’s authority under this provision includes the power to implement policies that amend or conflict with DOT Order 3910.1C. The Board noted in this regard that the HROI itself evinces no intent to amend or override DOT Order 3910.1C.

c. The Board remanded the case for the administrative judge to determine whether the FAA has the authority to promulgate a policy that conflicts with DOT Order 3910.1C. The judge must determine, among other things, who issued the HROI and whether that individual had the authority to do so, and get documentation from the FAA as to the authority under which the HROI was promulgated.

3. If DOT Order 3910.1C controls, the LCA is invalid.

a. An LCA is a contract. To have an enforceable contract, there must be consideration, i.e., a performance or a return promise that must be bargained for and does not involve performance of a pre-existing duty. The Board has found waivers of appeal rights unenforceable when there was no consideration for the employee’s waiver.

b. Under the FAA’s HROI, execution of an LCA with a waiver of appeal rights was mandatory. Under DOT Order 3910.1C, however, the FAA had a “pre-existing duty” to offer the appellant a rehabilitation plan and to hold the removal action in abeyance if he accepted the TRP. Accordingly, if DOT Order 3910.1C controls, there was no consideration for the appellant’s execution of the LCA and waiver of appeal rights.

Appellant: Arthur J. Henderson

Agency: National Aeronautics and Space Administration

Decision Number: 2011 MSPB 12

Docket Number: AT-0432-08-0792-I-1

Issuance Date: February 2, 2011

Appeal Type: Performance

Action Type: Removal

Performance-Based Actions
- Opportunity to Demonstrate Acceptable Performance
- Performance Standards – Validity

The agency petitioned for review of an initial decision that reversed the appellant’s removal for unacceptable performance under 5 U.S.C. chapter 43. The appellant was a GS-13 Aerospace Engineer. During a mid-year performance review, his supervisor found that the appellant failed to demonstrate acceptable performance in 2 critical elements and placed him on a 90-day Performance Improvement Plan (PIP). The agency found the appellant’s performance unacceptable during the PIP and removed him under chapter 43. In summarizing a prehearing conference, the administrative judge stated that the appellant was not challenging the validity of his performance standards. In the initial decision, the administrative judge nevertheless addressed the validity of the performance standards and found them to be invalid on their face. The judge further found that the agency did not cure its facially invalid standards by informing the appellant through subsequent oral or written communications as to what level of performance was required to retain his position, and reversed the agency’s removal action.

Holdings: The Board affirmed the initial decision and ordered the agency to cancel its removal action and restore the appellant to employment:

1. The administrative judge did not commit prejudicial error by failing to apprise the parties prior to the initial decision that she would adjudicate the validity of the appellant’s performance standards.

a. An agency must give the employee a reasonable opportunity to demonstrate acceptable performance and must show by substantial evidence that the appellant’s performance standards are valid. The Board is obliged to consider the validity of an appellant’s performance standards regardless of whether this issue has been raised by the parties.

b. The agency has not shown on review that it was prejudiced by the administrative judge’s failure to provide specific notice and opportunity below to develop the validity issue. Although the appellant’s post-hearing brief and the initial decision properly informed the agency of its burden and the elements to prove the validity of the appellant’s performance standards, the agency has not identified on review what evidence it would have submitted below if it had been given specific notice.

2. The Board affirmed the administrative judge’s finding that the agency failed to prove that the appellant’s performance standards are valid.

a. The administrative judge correctly found that each element of the performance plan has 5 possible ratings: “fails to meet expectation[s], “needs improvement,” “meets expectations,” “exceeds expectation,” and “significantly exceeds expectations.” The performance standard for the appellant’s position, however, sets forth only 1 level of performance, i.e., what one must do to “meet” the standard.

b. Where an appellant is rated on a 5-tier system for his critical elements, the agency must inform him, at a minimum, of what he must do to perform at the “needs improvement” level to avoid a performance-based action. The agency’s performance plan in this case did not do this because it requires extrapolation more than 1 level above and below the written standard.

3. The agency did not cure the invalid written performance standards, either in communications with the appellant during the initial performance period, or during the PIP.

Appellant: Beverly Gorny

Agency: Department of the Interior

Decision Number: 2011 MSPB 14

Docket Number: DE-0752-08-0233-X-1

Issuance Date: February 3, 2011

Appeal Type: Adverse Action by Agency

Case Type: Compliance Referral


This case was before the Board based on the administrative judge’s Recommendation finding the agency in partial noncompliance with a final Board order. In the underlying appeal, the agency’s removal action was reversed and the agency was ordered to restore the appellant to employment retroactively. Because of a reorganization that had occurred in the interim, the appellant’s former position no longer existed, so the agency reassigned her to another position. The appellant filed a petition for enforcement alleging that the agency had not complied with its obligation to reassign her to a substantially equivalent position. In her Recommendation, the administrative judge found that the agency failed to fulfill its obligation to assign the appellant duties and responsibilities that are substantially equivalent in scope and status to those of her previous position. After the matter was referred to the Board for compliance, the agency submitted a statement that it has assigned the appellant to a “restored” Public Affairs Specialist position in the agency’s Office of Communications. The appellant concedes that her reassignment places her in the position she previously held except with respect to 3 matters: (1) the physical location of her office; (2) the topical focus of her public affairs duties; and (3) the lack of a provision in the position description to specify that she can act as chief in the absence of a superior.

Holdings: The Board found that the agency had brought itself into compliance with the administrative judge’s recommended order on all but one issue, and thus remains in partial noncompliance:

1. When the Board finds a personnel action unwarranted, the aim is to place the appellant as nearly as possible in the situation she would have been in had the wrongful personnel action not occurred. Where the agency has a compelling reason requiring reassignment to a different position, it must reassign the employee to a position that is substantially similar to the former position. In analyzing this issue, the Board must look beyond the title and grade of the positions involved and compare the scope of the actual duties and responsibilities of the new position with those of the former position.

2. The agency is in partial noncompliance with its obligations regarding the appellant’s physical office location.

a. The appellant has not shown how she has been harmed by not having a window office.

b. The appellant has demonstrated harm by being physically separated on a different floor from the Office of Communications. The administrative judge found that this resulted in the appellant’s isolation from all of the other Public Affairs Specialists who actually perform public affairs duties, and the agency has not disputed this finding.

3. The agency has complied with its obligation to reassign the appellant to duties and responsibilities that are substantially similar to those of her former position.

a. The topical focus of the appellant’s new position is substantially similar to that of her former position.

b. The appellant’s responsibilities are substantially similar to those of her former position despite the absence of an “acting chief” responsibility.