United States Merit Systems Protection Board

Case Report for March 11, 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: Milo D. Burroughs

Agency: Department of the Army

Decision Number: 2011 MSPB 31

Docket Number: DA-3330-10-0506-I-1

Issuance Date: March 4, 2011

Appeal Type: Veterans Employment Opportunities Act

Jurisdiction
VEOA/Veterans’ Rights – Exhaustion of DOL Remedy
Employment Practices

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The agency issued two vacancy announcements for a single Aerospace Engineer position, one under open competitive examining procedures and one under merit promotion procedures. The appellant, a 5-point preference eligible veteran, applied under both announcements. The agency placed his name on both registers but another applicant was selected. On appeal to the Board, the appellant filed a copy of an email he sent to the Department of Labor (DOL) complaining about the selection process, but he did not include any information about the outcome of his communication. The administrative judge issued an Acknowledgment Order and a show cause order ordering the appellant to establish that he exhausted his remedy with DOL. In response, the appellant alleged that the agency violated his veterans’ preference rights by prescribing a minimum educational requirement for the position in question, but did not produce any documents or information regarding the outcome of his complaint to DOL. In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant failed to establish that he exhausted his remedy with DOL as required by law. The initial decision did not address the employment practices claim raised by the appellant.

In his petition for review, the appellant argues that the Board has jurisdiction over his appeal pursuant to the Veterans’ Preference Act of 1944, irrespective of VEOA, and that the minimum educational requirement for the position constitutes an unlawful employment practice.

Holdings: The Board affirmed the initial decision as modified with respect to the VEOA appeal, still dismissing it for lack of jurisdiction, but remanding the appellant’s employment practices claim for further adjudication:

1. The appellant failed to establish that he exhausted his remedy with DOL, which is a jurisdictional requirement in a VEOA appeal:

a. To establish jurisdiction over a VEOA appeal, an appellant must, among other things, prove that he exhausted his administrative remedy with DOL. In addition to showing that he filed a complaint with DOL, an appellant must show either that he received written notification of the results of DOL’s investigation or, if DOL was unable to resolve the complaint within 60 days, that he provided written notification to DOL of his intention to bring a Board appeal.

b. Contrary to the findings of the administrative judge, the Board found that the appellant’s email to DOL was sufficient prove that he filed a complaint with DOL.

c. Despite a show cause order issued by the Clerk of the Board after the filing of the petition for review, the appellant has still failed to establish that he has received written notification of the results of DOL’s investigation, or that he provided written notification to DOL of his intention to bring a Board appeal.

2. Although the Veterans’ Preference Act of 1944 created many substantive rights for preference eligibles, it does not vest the Board with jurisdiction to adjudicate claims arising out of alleged violations of those rights. The Board’s authority to adjudicate veterans’ preference claims generally arises from VEOA.

3. The appellant’s employment practices claims must be remanded to the regional office for further adjudication.

a. The Board has jurisdiction over an employment practices claim under 5 C.F.R.  300.104(a) when two conditions are met: the appeal must concern an employment practice that OPM is involved in administering; and the appellant must make a nonfrivolous allegation that the employment practice violated one of the “basic requirements” for employment practices set forth in 5 C.F.R.  300.103.

b. The prescription of a minimum educational requirement is an “employment practice,” and it appears that OPM was involved in administering this employment practice.

c. Implicit in the first jurisdictional requirement is that the appeal concern an employment practice that was applied to the appellant. Here, the documentary evidence suggests that the appellant’s nonselection was not based on his failure to meet the minimum educational requirement.

d. Despite this apparent jurisdictional deficiency, the Board declined to dismiss this claim for lack of jurisdiction at this stage of the appeal, because the administrative judge failed to inform the appellant with specificity of his jurisdictional burdens. A remand is therefore appropriate.

Appellant: Arnold A. White

Agency: Department of the Army

Decision Number: 2011 MSPB 32

Docket Number: SF-0752-09-0303-X-1

Issuance Date: March 4, 2011

Appeal Type: Adverse Action by Agency

Case Type: Compliance Referral

Compliance
- Applicability of Back Pay Act to Military Departments

This petition for enforcement proceeding was before the Board on the recommendation of the administrative judge that the Board order the agency to pay the appellant interest on his award of back pay. In the underlying appeal, the Board did not sustain the agency’s action suspending the appellant without pay for 15 days and ordered to cancel the suspension and pay him the correct amount of back pay and interest on back pay. The agency provided back pay, but contended that it had good cause not to pay interest on the back pay because, as a “military department,” the Department of the Army is not subject to the Back Pay Act, which applies only to executive agencies.

Holdings: The Board adopted the administrative judge’s recommendation, finding that the Department of the Army is subject to the Back Pay Act and is therefore required to pay the appellant interest on back pay:

1. The Department of the Army is a component of the Department of Defense, which is an Executive department.

2. Reviewing the text and legislative history of the National Security Act Amendments of 1949, which created the Department of Defense as an executive department and redesignated the former executive departments of the Army, the Navy, and the Air Force as military departments “within the Department of Defense,” the Board found that the focus of the 1949 Act was on the preservation of the military departments’ independent decision-making in hiring and management of employees, not on exempting them from the civil service laws.

3. Addressing a “virtually identical case” in Pervez v. Department of the Navy, 193 F.3d 1371 (1999), the Federal Circuit stated its agreement with the Board’s conclusion in Francis v. Department of the Navy, 53 M.S.P.R. 545 (1992), that the military departments were intended to continue functioning independently with respect to personnel matters, and it found that their separate treatment for these purposes was not inconsistent with the fact that these departments are also part of the Department of Defense.

Appellant: Jenee Ella Hunt-O'Neal

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 33

Docket Number: AT-0731-09-0240-I-1

Issuance Date: March 4, 2011

Appeal Type: Suitability

Jurisdiction
- Suitability
- “Employee”

The appellant petitioned for review of an initial decision that affirmed OPM’s decision to direct her removal from the IRS pursuant to 5 C.F.R. part 731 (Suitability). The appellant was appointed to a position with the IRS in January 2008, subject to a 1‑year probationary period. In a December 2008 letter, OPM informed her that it had found her unsuitable for any covered position based on charges of misconduct or negligence in her prior employment and making material, intentional false statements in connection with her application for an appointment to her position with the IRS. OPM directed the IRS to removal the appellant from employment, cancel any reinstatement eligibility, and debar her from competition for or appointment to any covered position for 3 years.

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

1. In Aguzie v. Office of Personnel Management, 2011 MSPB 10, the Board found that an OPM-directed suitability removal of a tenured employee is an adverse action appealable under 5 U.S.C.  7513(d) that is subject to the “efficiency of the service” standard of  7513(a).

2. The present record was insufficient to allow the Board to determine whether the appellant was an “employee” within the meaning of 5 U.S.C.  7511(a)(1). A remand is therefore required.

Appellant: Debra Becwar

Agency: Department of Labor

Decision Number: 2011 MSPB 34

Docket Number: CH-4324-08-0727-I-2

Issuance Date: March 4, 2011

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

USERRA/Veterans’ Rights
- Discrimination Claim

The appellant petitioned for review of an initial decision that denied her request for corrective action under USERRA. The appellant that the agency discriminated against her based on her obligation to perform military service. Although she identified 5 personnel actions as being covered by her USERRA appeal, including 2 denials of a career-ladder promotion to GS-12, the administrative judge determined that 2 actions were moot and that he would bifurcate the adjudication of the remaining USERRA claim to initially adjudicate whether the agency’s first decision to deny her promotion to GS-12 in 2003-2004 constituted discrimination based on her obligation to perform military service. The judge stated that he would hold in abeyance adjudication of the other allegedly discriminatory actions. Following a hearing, the administrative judge concluded that the appellant was unable to explain how she demonstrated her ability to perform at the GS-12 level or that her performance deficiencies were caused by her absences for military duty, finding that the appellant’s evidence of discriminatory animus was “outweighed” by the agency’s “voluminous documentary record,” which “showed the appellant demonstrated an inability to analyze data, accurately identify indicators of discrimination, and synthesize disparate data into relevant findings of fact,” and concluding that the appellant was not entitled to corrective action. On review, the appellant argues, among other things, that the administrative judge improperly increased her burden of proof by requiring her to prove her entitlement to the GS-12 position.

Holdings: The Board granted the appellant’s petition for review, vacated the portion of the initial decision that imposed an additional burden on the appellant to prove her entitlement to the GS-12 position as a threshold issue in her USERRA discrimination appeal, but affirmed the initial decision as modified, still finding that the appellant was not entitled to corrective action:

1. In a USERRA discrimination case under 38 U.S.C.  4311(a), there must be an initial showing by the employee, by preponderant evidence, that the employee’s military status was at least a motivating or substantial factor in the agency action, upon which the agency must prove, also by preponderant evidence, that the action would have been taken for a valid reason despite the protected status.

2. The administrative judge improperly placed the burden on the appellant to prove her entitlement to promotion to the GS-12 level as a threshold issue in her USERRA appeal. In a USERRA disability appeal, the Board does not consider whether the appellant was “entitled to” or “qualified for” the benefit in question. Rather, once jurisdiction is established, the Board analyzes whether the appellant has shown that her military service was a motivating or substantial factor in the agency’s action and whether the agency has shown that it would have taken the same action despite the appellant’s protected status.

3. Despite this error, remand is not necessary because the parties were given proper notice of their respective burdens and the record is fully developed on the issue of the appellant’s non-promotion during the 2003-2004 time frame. Moreover, the evidence improperly considered by the administrative judge as a threshold issue is entirely relevant to a correct analysis of the USERRA appeal.

4. The Board found that, even if the testimony of the appellant’s witnesses were credited, it could not conclude that their allegations demonstrate that the appellant’s military service was a motivating or substantial factor in the agency’s decision not to promote her.

5. Even if the Board were to conclude that the appellant proved by preponderant evidence that her military service was a motivating factor in the agency’s decision not to promote her, the agency met its burden to show, by preponderant evidence, that it would not have promoted her absent her military service. She is therefore not entitled to corrective action.

Appellant: Charlie Hamilton

Agency: Department of Veterans Affairs

Decision Number: 2011 MSPB 35

Docket Number: SF-0752-09-0156-I-2

Issuance Date: March 4, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges – Disrespectful Conduct
Whistleblower Protection Act
- Protected Disclosure
- Contributing Factor

The appellant petitioned for review of an initial decision that affirmed his removal. The appellant was employed at an agency medical center as a Nuclear Medicine Technologist. The appellant believed the facility had a host of serious safety and management problems. After raising them with his supervisors, he raised them to the facility’s Radiation Safety Officer (RSO) and with the National Health Physics Program (NHPP), the central office that oversees all medical radiation issues for the agency. Partially in response to the appellant’s concerns, the NHPP directed the agency to investigate certain issues. The agency removed the appellant on charges of disruptive behavior and/or disrespectful conduct (11 specifications) and inattention in the performance of his assigned duties. Following a hearing, the administrative judge sustained the first charge (all 11 specifications), but not the second charge, found that the appellant failed to prove his affirmative defenses, which included retaliation for protected whistleblowing disclosures, and concluded that removal was an appropriate penalty.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1. The Board rejected the appellant’s contention that the charge was improper because his actions were in the context of presenting a grievance and only particularly egregious conduct can be punished in that context.

a. The appellant is correct that certain intemperate employee comments that would otherwise support disciplinary action will not support such action if made in certain emotional, confrontational contexts, such as the grievance process or the equal employment opportunity counseling process. However, none of the appellant’s comments in the 11 specifications of misconduct were made in either of these contexts.

b. Nonetheless, the Board does consider the context in which purported inappropriate remarks were made and, in the context of whistleblowing, there may be more leeway for employee speech, as protection under the WPA is not removed “when protected subject matter is stated in a blunt manner.”

c. Contrary to the appellant’s asserts, the great majority of the incidents recounted in the 11 specifications did not occur in a whistleblowing context. One specification, however, related to a memorandum that could potentially be a protected disclosure. However, in addition to the potential disclosure, the memorandum criticizes management for “this western style range war” and implies that decisions were made for reasons of power and control. This criticism reflects lack of respect and is properly subject to punishment, even if a portion of the document is arguably protected whistleblowing.

2. All 11 specifications were supported by preponderant evidence.

3. Remand is necessary because of adjudicatory error in considering the appellant’s affirmative defense of retaliation for protected whistleblowing.

a. The sole basis for the administrative judge’s conclusion that the appellant failed to prove this affirmative defense was the finding that the disclosures could not have been a contributing factor because the deciding official had no knowledge of the appellant’s disclosures.

b. The judge’s finding is inconsistent with the basic, undisputed fact that the deciding official reviewed the charging materials and the hearing officer’s recommendation, which included portions of the appellant’s purported disclosures, and the appellant’s response, which also referred to his disclosures. Moreover, the deciding official conceded that he read “every page” of a report that repeatedly refers to the appellant and specifically notes his contacts with the RSO and NHPP regarding safety issues.

c. It is clear that the appellant made at least one protected disclosure in that the agency’s RSO testified that the errors in measuring samarium dosage reported by the appellant reflected a violation of the relevant nuclear safety regulations.

d. The appellant appears to have shown that this disclosure was a contributing factor in his removal.

e. The ultimate issue is whether the agency has proved that it would have taken the same action in the absence of the appellant’s whistleblowing disclosure by clear and convincing evidence. Because the administrative judge made no factual findings or credibility assessments regarding this issue, remand for further proceedings is required.

4. The administrative judge made an independent and thorough assessment of the Douglas factors in assessing the removal penalty, and the Board has upheld removal in circumstances like those present here. Nevertheless, the Board found that it must vacate the initial decision in its entirety so that the administrative judge can address the affirmative defense and its effect, if any, on the outcome of the appeal.

Appellant: Susan G. Roy

Agency: Department of Justice

Decision Number: 2011 MSPB 36

Docket Number: NY-0752-10-0199-I-1

Issuance Date: March 4, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction – “Employee”

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. Until March 1, 2008, the appellant held a permanent position with the Department of Homeland Security. Effective March 2, 2008, she received a temporary appointment, not to exceed September 1, 2009, in the excepted service with the Department of Justice. This appointment was converted to a permanent excepted service appointment effective November 9, 2008, subject to the completion of a 2-year initial trial period. Less than 18 months later, the agency terminated her for alleged misconduct.

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

1. To be an “employee” in the excepted service with adverse action appeal rights, the appellant had to meet the requirements of 5 U.S.C.  7511(a)(1)(C), i.e., and individual “(i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or (ii) 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[.]”

2. Because it is undisputed that the appellant was serving in a trial period, she cannot meet the criteria of paragraph (i).

3. For purposes of paragraph (ii), time spent in a temporary position in the excepted service does not qualify for tacking to a permanent position.

4. The appellant cannot tack her permanent service in the Department of Homeland Security – which ended on March 1, 2008 – to her permanent service with the Department of Justice – which began on November 9, 2008 – because the statute specifically requires that the appellant have “completed 2 years of current continuous service[.]” “Current continuous service” means service immediately prior to the action at issue without a break in service of a work day.

Appellant: Facundo S. Encarnado

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 37

Docket Number: SF-0831-10-0264-I-1

Issuance Date: March 9, 2011

Appeal Type: CSRA Retirement - Other Than Initial

Action Type: Retirement/Benefit Matter

Retirement – Annuity
Res Judicata
Collateral Estoppel

The appellant petitioned for review of an initial decision that denied his request to make a deposit under the Civil Service Retirement System (CSRS) for federal civilian service performed with the Department of the Navy from 1971 to 1985. In a final decision issued in 2002, the Board found that the appellant was not entitled to a CSRS retirement annuity based on his service with the Navy during the period from 1971 to 1985 because none of that service was “covered” service as required by applicable law and regulation. The current appeal concerned the appellant’s later application to make a deposit into the CSRS fund for the same service from 1971 to 1985. The administrative judge dismissed the current appeal based on the doctrine of res judicata.

Holdings: The Board dismissed the appeal based on res judicata and collateral estoppel:

1. The appellant’s federal service with the Navy from 1971 to 1985 was not “covered service” under the CSRS. To qualify for a retirement annuity, an individual must have completed 5 years of creditable service, ending with at least 1 of the last 2 years in a position covered by the CSRS.

2. Only an “employee” credited with civilian service for which CSRS deductions or deposits have not been made may make a deposit for that service. Under OPM’s regulations, an individual must be currently employed in a covered position, or eligible for a CSRS annuity based on covered service, to make a deposit into the CSRS fund. A retroactive deposit does not convert a non-covered position into a covered position.

3. The appellant’s current appeal is barred by the doctrine of res judicata.

a. Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties based on the same cause of action. Res judicata precludes parties from relitigating not only issues that were raised in the prior action, but issues that could have been raised in the prior action, as long as they involve the same cause of action.

b. The present appeal involves the same cause of action, as the appellant effectively acknowledges that his goal in bringing the present “deposit” claim is to receive a CSRS retirement annuity based on the same years of Navy service at issue in his prior appeal. Although the appellant may not have raised his entitlement to make a deposit to the CSRS fund in his earlier appeal, he could have done so.

4. Under the doctrine of collateral estoppel, the appellant is precluded from relitigating the Board’s determination in its 2002 final decision that his federal service with the Navy was not CSRS-covered service.