United States Merit Systems Protection Board

Case Report for February 25, 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: Bonny Berkner

Agency: Department of Commerce

Decision Number: 2011 MSPB 27

Docket Number: DC-0752-09-0667-I-1

Issuance Date: February 18, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Defenses and Miscellaneous Claims
- Privileged Conduct

The appellant petitioned for review of an initial decision that affirmed her removal for making inappropriate statements. The basis for the charge was that, during a meeting with her union steward, the appellant made statements indicating that, if the agency were to remove her, she would kill herself and possibly other employees. The administrative judge heard the union steward’s testimony over the appellant’s objection, finding that there was no legitimate claim of privileged communications under the circumstances. The judge found that the agency proved its charge, that the appellant failed to prove her affirmative defense of disability discrimination, and that the penalty of removal was reasonable. On review, the appellant asserted that the Federal Labor Relations Authority (FLRA) has determined that communications between a union representative and a bargaining unit employee are privileged against disclosure to management for purposes of disciplining an employee, asked the Board to defer to the FLRA on this issue, and encouraged the Board to extend the FLRA’s reasoning to hold that the only party who may waive the privilege is the employee.

Holdings: The Board affirmed the initial decision as modified and sustained the appellant’s removal, finding that the appellant’s communications with her union representative were not privileged:

1. The appellant is correct that the FLRA has found that the “content or substance of statements made by an employee to [her] Union representative in the course of representing the employee in a disciplinary proceeding” is protected as privileged.

2. While the FLRA recognizes such a privilege, it limits the scope of protection. In a case with facts similar to this case, the FLRA found that an agency established an extraordinary need to conduct an investigation and question bargaining union employees regarding an alleged incident at a union meeting following the agency’s receipt of a sworn affidavit from an employee alleging that physical violence had been threatened by one employee against another on the premises.

3. The cases in which the FLRA recognized the privilege are factually distinguishable in that the agency was seeking, under threat of discipline, to require disclosure of confidential information and the union representatives objected to being interrogated. Here, the union representative voluntarily reported the appellant’s comments to the agency’s labor relations department.

4. The appellant’s communications are not protected under Board case law. The circumstances in this case are distinguishable from those in Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625 (1999), Larry v. Department of Justice, 76 M.S.P.R. 348 (1997), and Powell v. Department of Justice, 73 M.S.P.R. 29 (1997).

5. The appellant’s statements would not be protected under the high confidentiality standards imposed under the attorney-client privilege.

Appellant: Randall T. Stiles

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 28

Docket Number: DA-1221-08-0402-W-2

Issuance Date: February 18, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Protected Disclosures
- Contributing Factor

The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal. The appellant is a Supervisory Border Patrol Agent. He alleged that the agency took several actions in reprisal for what he claimed were whistleblowing disclosures: (1) that two border patrol agents fired their weapons on aliens who had illegally crossed the Rio Grande River; (2) a later disclosure regarding of the same matter when the agency took no action on this information; (3) that officials at the border patrol station engaged in procurement violations and conflicts of interest; and (4) that the Border Patrol Agent in Charge misused his official government vehicle by transporting a civilian employee of the county sheriff’s department.

In the initial decision, the administrative judge found that: (1) the appellant’s disclosure that border patrol agents had fired on illegal aliens was not protected because the agency was already aware of the misconduct when the appellant disclosed it; (2) the appellant’s disclosure of agency inaction regarding his first disclosure was not protected because it was a conclusory assumption not based in fact; (3) assuming without deciding that the appellant’s disclosure regarding procurement violations and conflicts of interest was protected, this disclosure was not a contributing factor in the alleged threatened disciplinary matter; and (4) the appellant’s disclosure regarding misuse of an official government vehicle was not protected because, like the first disclosure, the agency was aware of it when the appellant disclosed it.

Holdings: The Board affirmed the initial decision in part and reversed it in part, still denying the appellant’s request for corrective action:

1. The administrative judge did not abuse his discretion in handling discovery matters.

2. The appellant’s initial disclosure regarding border patrol agents firing at illegal aliens did not constitute a protected disclosure.

a. The administrative judge improperly relied on Meuwissen v. Department of the Interior, 234 F.3d 9 (Fed. Cir. 2000), for his determination that the disclosure was unprotected because the agency was already aware of the matter disclosed.

b. The Board distinguished Meuwissen in Askew v. Department of the Army, 88 M.S.P.R. 674 (2001), noting that a key aspect of the Meuwissen holding was the public nature of the information disclosed. The administrative judge did not specifically find that the disclosure was publicly known and the Board stated that it “would agree that it was not.”

c. The Board also observed in Askew that the court in Meuwissen had relied on legislative history relating to the passage of the Civil Service Reform Act in 1978. The legislative history of the Whistleblower Protection Act, passed 11 years later, firmly rejected the notion that an individual who communicates wrongdoing that is “not concealed” or “already known” should not be protected from retaliation.

d. Nevertheless, this disclosure was not protected because, under Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), the disclosure was made as part of the appellant’s normal duties and reported through normal channels.

3. The administrative judge erred in finding that the appellant’s report of the agency’s inaction following the incident involving border patrol agents firing at illegal aliens was not a protected disclosure. A disinterested observer who knew what the appellant knew about the shooting incident could reasonably have concluded that agency officials were abusing their authority by taking no action against the agents involved.

4. The appellant’s disclosure regarding the agency’s inaction was not a contributing factor in the claimed personnel actions.

a. Regarding an alleged negative change to the appellant’s work situation, this could not have been retaliation for the disclosure because the disclosure was made months after the alleged personnel action.

b. With regard to the appellant’s claim that he was denied promotions in retaliation for his disclosure, he did not provide the name of the selecting official, and has not established that any such official was aware of his protected disclosure or that it was a factor in his not being selected. In the absence of any evidence that any of the selecting officials had a motive to retaliate against the appellant, the Board found that he failed to establish that his protected disclosure was a contributing factor in his being denied promotions.

5. The appellant’s disclosure regarding procurement violations and conflicts of interest was protected because the appellant could reasonably have believed he was disclosing a violation of law, rule, or regulation. The Board found, however, that the appellant failed to establish by preponderant evidence that the agency ever, in fact, threatened him with discipline or that he was the subject of a covered personnel action in connection with this protected disclosure.

6. The administrative judge correctly found that the appellant’s report that an agency official misused his official government vehicle did not constitute a protected disclosure. A disinterested observer could not reasonably have concluded that the official was violating agency policy by transporting a civilian employee of the county sheriff’s department.

Appellant: James W. Davison

Agency: Department of Veterans Affairs

Decision Number: 2011 MSPB 25

Docket Number: NY-0752-10-0133-I-1

Issuance Date: February 18, 2011

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- “Employee”
- USERRA – Discrimination Claim

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant was a physician in the Veterans Health Administration (VHA) who had been appointed under 38 U.S.C.  7401(1). He alleged that the agency constructively suspended or failed to restore him to his position after being in a leave without pay status. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant was not an “employee” with Board appeal rights under 5 U.S.C. chapter 75, and that the appellant failed to establish jurisdiction under the Uniformed Services Employment and Reemployment Rights Act (USERRA) in light of the appellant’s statement that he “admits he has no claim under USERRA.”

Holdings: The Board affirmed the determination that the appellant failed to establish jurisdiction over a constructive suspension, but vacated the determination that the appellant failed to establish jurisdiction over a USERRA claim, and remanded that claim for adjudication on the merits:

1. The administrative judge correctly concluded that the appellant is not an “employee” entitled to appeal a constructive suspension, which is an adverse action under subchapter II of chapter 75.

a. Pursuant to 38 U.S.C.  7405(a), appointments of physicians under  7401(1) are not subject to civil service or classification laws, and are excluded from the definition of “employee” under 5 U.S.C.  7511(b)(10).

b. The appellant’s reliance on Executive Order 5396, which requires that special leaves of absence be given disabled veterans in need of medical treatment, is misplaced because it is immaterial to the issue of whether  7511(b)(10) bars his constructive suspension appeal.

c. Similarly, the appellant’s status as a preference-eligible veteran and a “special disabled veteran” under 38 U.S.C.  4211(1) has no bearing on the jurisdictional issue.

2. The appellant made a nonfrivolous allegation of jurisdiction under USERRA.

a. There are two types of cases that arise under USERRA: reemployment cases, in which the appellant claims that an agency has not met its obligations under 38 U.S.C.  4312-4318 following the appellant’s absence from civilian employment to perform uniformed service; and “discrimination” cases in which the appellant claims that an agency took an action prohibited by 38 U.S.C.  4311.

b. The appellant’s “admission” that he had no USERRA claim appears to be based solely on the appellant’s belief that he had no reemployment claim under  4312. Neither the appellant nor the administrative judge appears to have considered whether the appellant made a nonfrivolous allegation of jurisdiction under  4311.

c. To establish jurisdiction under  4311(a), 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 a benefit of employment; and (3) the denial was due to the performance of duty or obligation to perform duty in the uniformed service.

d. The appellant made nonfrivolous allegations of all 3 jurisdictional elements. Regarding the third element, an allegation that an employer took or failed to take certain actions based on an individual’s military status or obligations in violation of USERRA constitutes a nonfrivolous allegation entitling the appellant to Board consideration of his claim. By contending that the agency retaliated against him for taking leave without pay under Executive Order 5396, the appellant has arguably alleged that the agency took into account a military-related absence in failing to promptly restore him to duty.

Appellant: Kimberly Hollingsworth

Agency: Department of Commerce

Decision Number: 2011 MSPB 26

Docket Number: CB-7121-10-0016-V-1

Issuance Date: February 18, 2011

Action Type: Arbitration

Arbitration – Compensatory Damages and Attorney Fees

The appellant requested review of an arbitration decision in which the arbitrator reversed the agency’s decision to remove the appellant but denied her request for attorney fees and compensatory damages. In reversing the agency’s removal action, the arbitrator found that the appellant was a qualified individual with a disability and that the agency failed to provide her with a reasonable accommodation, and ordered the agency to reinstate her with back pay. The arbitrator denied the appellant’s request for compensatory damages and attorney fees without describing or analyzing these claims.

Holdings: The Board affirmed the arbitrator’s findings on the merits of the case, but vacated the arbitrator’s denial of the appellant’s request for compensatory damages and attorney fees, forwarding the compensatory damages claim to the regional office for further adjudication:

1. Because the arbitrator made no specific findings on the issues of compensatory damages or attorney fees, his decision to deny those request is not entitled to deference. Further, because the arbitrator did not cite any legal standard or employ any analytical framework in denying the appellant’s requests, the arbitrator made a legal error that permits the Board to make its own findings.

2. Where, as here, there has been no prior proceeding before the Board on a request for compensatory damages, the Board may forward the request to a judge for hearing and a recommendation to the Board under 5 C.F.R.  1201.204(h)(3). If the appellant is the prevailing party in her request for arbitration review, she may then initiate an addendum proceeding for attorney fees after the conclusion of the compensatory damages matter.