Case Report for October 8, 2010
Appellant: Richard Z. Sandoval
Agency: Department of Agriculture
Decision Number: 2010 MSPB 197
Docket Number: SF-315H-09-0967-I-1
Issuance Date: September 29, 2010
Appeal Type: Termination of Probationers
The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The dispositive issue was whether the appellant’s position as a Forestry Aid was in the “same line of work” as his position as a Forestry Technician such that the appellant’s service in the former position could be tacked to his service in the latter position so that he was an “employee” under 5 U.S.C. § 7511 with adverse action appeal rights, as distinguished from having the limited rights accorded probationary employees under 5 C.F.R. §§ 315.806-.806. Although the administrative judge found that the appellant made a nonfrivolous allegation that he was an employee, she ultimately found, after conducting a jurisdictional hearing, that there were significant differences between the two positions that compelled a finding that they were not in the same line of work.
Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and ordered the agency to cancel the appellant’s termination and restore him to his position as a Forestry Technician:
1. Although describing this as a “close case,” the Board ruled that the positions were in the same line of work under 5 C.F.R. § 315.802(b)(2), and the appellant’s service in the Aid position should be tacked to his service in the Technician position, such that he is an employee under 5 U.S.C. § 7511(a)(1)(A)(i).
2. The Board relied in part on an MSPB study emphasizing the purpose of probationary periods – to provide the government with an opportunity to evaluate an individual’s conduct and performance to determine if an appointment to the civil service should be final. Here, by the time the agency terminated the appellant, it had over 15 months to evaluate his fitness for continued federal employment.
3. The Board observed that, in both Mathis v. U.S. Postal Service, 865 F.2d 232 (Fed. Cir. 1988), and Coradeschi v. Department of Homeland Security, 439 F.3d 1329 (Fed. Cir. 2006), the Board’s reviewing court warned against a narrow interpretation of the relevant statutory provisions and against placing too much emphasis on job description dissimilarities, explaining that the focus should be on the skills and fundamental character of the positions in question.
Appellant: Carolyn Grant Mosby
Agency: Department of Housing and Urban Development
Decision Number: 2010 MSPB 198
Docket Number: DC-0752-10-0083-I-1
Issuance Date: September 29, 2010
Appeal Type: Adverse Action by Agency
Action Type: Removal
The appellant petitioned for review of an initial decision that affirmed her removal on a charge of Violent Behavior in the Workplace, which concerned an incident in which the appellant struck a co-worker in the face, causing her to bleed. The appellant pled guilty to a charge of assault in violation of the Code of the District of Columbia. On appeal to the Board, the appellant did not deny striking the co-worker, but contended that she acted out of self-defense. The appellant also alleged in her prehearing summary that she was “subject to a hostile work environment in direct violation of Title VII.” In her summary of the prehearing conference, however, the administrative judge did not include an affirmative defense of discrimination in the list of issues to be decided, indicating that the alleged hostile work environment would instead be considered as a possible mitigating (Douglas) factor when assessing the reasonableness of the penalty. The appellant did not file an objection to the judge’s summary. Following a hearing, the administrative judge sustained the charge based on collateral estoppel, and further found that the agency had established nexus and that the penalty was reasonable.
Holdings: The Board affirmed the initial decision as modified insofar as it sustained the agency’s charge, but vacated the portion that affirmed the removal penalty, remanding the appeal to the regional office for further adjudication:
1. The Board agreed with the administrative judge that the appellant’s assault conviction is conclusive proof of the agency’s charge, but found that the initial decision did not correctly analyze the doctrine of collateral estoppel as it applies to this case.
a. The judge relied on Graybill v. U.S. Postal Service, 782 F.2d 1567 (Fed. Cir. 1986). In Graybill, the court applied Maryland state law on collateral estoppel in determining the preclusive effect of the appellant’s conviction in Maryland state court. Here, it is appropriate to apply the common law of the District of Columbia on collateral estoppel.
b. Applying D.C. law, the Board found that all the criteria for applying collateral estoppel were satisfied here.
2. The appellant did not make an informed decision to abandon her Title VII claim.
a. The appellant’s failure to preserve a Title VII claim may have been the result of misleading statements by the administrative judge, who advised the parties that the Board reviews allegations of non-sexual hostile work environment as a mitigating factor under Douglas.
b. Title VII makes it unlawful for an employer to subject an employee to a hostile work environment based on any protected class, including not only sex, but also race, color, religion, and national origin.
c. The Board cannot discount the possibility that, but for the administrative judge’s misleading statement, the appellant would have pursued a claim that her removal was the result of a hostile work environment based on race, color, religion, or national origin, any of which would constitute a violation of Title VII and a prohibited personnel practice under 5 U.S.C. § 2302(b)(1)(A). The Board would be obliged to adjudicate such a discrimination claim on the merits.
d. Because the record does not show that the appellant made an informed decision to abandon her Title VII claim, the appeal must be remanded.
Appellant: Gaudencio L. Muyco
Agency: Office of Personnel Management
Decision Number: 2010 MSPB 199
Docket Number: SF-0831-09-0885-I-1
Issuance Date: September 30, 2010
Action Type: Retirement/Benefit Matter
The appellant petitioned for review of an initial decision that dismissed his appeal under the doctrine of res judicata. OPM denied the appellant’s application for an annuity under the Civil Service Retirement System (CSRS) in 2001. OPM subsequently denied the appellant’s request for reconsideration of that determination as untimely filed, and the Board affirmed OPM’s decisions in initial and final decisions in 2003. The present appeal stemmed from OPM’s denial of the appellant’s request to make a deposit to obtain service credit under CSRS for his civilian service with the Department of the Navy between 1966 and 1991. On appeal to the Board, the administrative judge ordered the appellant to show cause why his appeal should not be dismissed on the basis of res judicata (claim preclusion) or collateral estoppel (issue preclusion). The appellant argued in part that his entitlement to make a deposit had never been the subject of an initial or reconsideration decision from OPM, and that the issue of a deposit is separate from his entitlement to a CSRS retirement annuity. In dismissing the appeal, the administrative judge found that the matters raised in the present appeal could have been raised in his first Board appeal, and that the present appeal was therefore barred under the doctrine of res judicata.
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 present appeal is not barred by 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.
b. The prior decision to which the administrative judge gave preclusive effect was the Board’s 2003 decision affirming OPM’s dismissal of the appellant’s request for reconsideration as untimely. A decision concerning the timeliness of a request for reconsideration is not a decision on the merits.
2. The appellant is entitled to a hearing, but not necessarily an evidentiary hearing.
a. Under 5 U.S.C. § 8334(c), an individual generally may make a deposit into the CSRS Retirement and Disability Fund if he is currently an “employee.” Here, there is no indication that the appellant was ever employed in any capacity that would cause him to be an “employee.” Instead, the record shows that the appellant performed service that was excluded from retirement coverage.
b. In 5 C.F.R. § 831.112(a)(2), OPM has interpreted § 8334(c) to permit an individual who is no longer employed by the federal government to make a deposit if he “retains civil service retirement annuity rights based on a separation from a position in which retirement deductions were properly withheld . . . in the Civil Service Retirement and Disability Fund,” and if his “annuity has not been finally adjudicated.” The Federal Circuit has found that an individual may not make a deposit under § 8334 if he was not separated from a CSRS-covered position and a retroactive deposit does not convert a non-covered position to a covered position. Because the appellant does not allege that he was in a position in which he was subject to CSRS retirement contributions, it appears that he is not entitled to make a deposit under § 831.112(a)(2).
c. Although there do not appear to be any disputed material facts and the outcome of the appeal appears to be a matter of law, the Board is unable to resolve the appeal at this time because the appellant requested a hearing. In cases such as this, where there is no dispute of material fact and the outcome of the appeal is a matter of law, the hearing required under 5 U.S.C. § 7701(a)(1) may be limited to an opportunity to present oral argument on the dispositive legal issue.
Appellant: Margaret Ann Jordan
Agency: United States Postal Service
Decision Number: 2010 MSPB 200
Docket Number: PH-0353-09-0562-I-1
Issuance Date: September 30, 2010
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 restoration appeal for lack of jurisdiction. The appellant suffered an on-the-job injury in 1994 that resulted in permanent physical limitations. She worked in limited duty positions from 1996 until May 2009, at which time the agency notified her that, under his National Reassessment Process (NRP), it reviewed rehabilitation and limited duty employees’ assignments and medical restrictions and searched for operationally necessary work to determine if such work was available with the employees’ restrictions, and determined that there was no work available for her within the operational needs of the service and her medical restrictions and within the local commuting area. The notice defined the local commuting area as the 50 miles surrounding the appellant’s current work location. After placing the appellant on administrative leave and providing her an opportunity to challenge its determination that there was no work available within her restrictions and of the appropriate job search area, the agency issued a “Letter of Decision” in June 2009 stating that there was no work available within “the agreed upon search area,” her medical restrictions, and current operational needs.
On appeal to the Board, the administrative judge found that the appellant did not establish jurisdiction over her appeal because she made only conclusory allegations that work was available within her restrictions and did not make a nonfrivolous allegation that the agency’s actions were arbitrary and capricious.
Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and remanded the appeal to the regional office for further adjudication:
1. In the case of a partially recovered employee, an agency must make every effort to restore the individual to a position within her medical restrictions and within the local commuting area.
2. The dispositive jurisdictional issue in this case is whether the appellant made a nonfrivolous allegation that the agency’s denial of restoration was “arbitrary and capricious.”
3. For restoration rights purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. The question of what constitutes a local commuting area is one of fact.
4. The agency’s evidence indicates that it searched for a suitable position for the appellant within a 50-mile radius of her existing work location, but only with the Boston District. Because the agency’s search was apparently limited to a 50-mile radius and a single district, whether the agency searched the entire local commuting area remains an unanswered question of material fact.
5. The evidence of record is insufficient for the Board to determine the extent of the local commuting area. Accordingly, a remand is appropriate for further development of this issue, including the opportunity for further discovery.
6. Because the Board has jurisdiction to consider the merits of the restoration appeal, it also has jurisdiction to consider the appellant’s disability discrimination claim.
Appellant: Reginald E. Vance
Agency: Department of the Interior
Decision Number: 2010 MSPB 201
Docket Number: DC-0752-08-0733-C-1
Issuance Date: September 30, 2010
Appeal Type: Adverse Action by Agency
Action Type: Removal
The appellant petitioned for review of a compliance initial decision denying his petition for enforcement. The underlying removal appeal was resolved by a settlement agreement in which the agency agreed to rescind, expunge, and remove related documents from the appellant’s Official Personnel File and all of the agency’s electronic and paper files. The agency also agreed to issue a new SF-50 indicating that the appellant had resigned and to provide him a neutral employment reference. In his petition for enforcement, the appellant alleged that the agency breached the agreement by publishing a report on its Inspector General’s website that includes information about the appellant’s termination. The administrative judge denied the appellant’s petition for enforcement, finding that the appellant failed to prove that the agency breached the settlement agreement. The judge found that the Inspector General’s report did not breach the agreement because it was published prior to the date of the parties’ agreement. The judge further determined that, because the Office of the Inspector General was required by law to set forth the results of its investigations in its semiannual report to Congress, and “the parties contemplated and expressly permitted disclosure of the settled adverse action to a third party as required by law,” no breach occurred.
Holdings: The Board granted the appellant’s petition for review, vacated the 2008 initial decision dismissing the appeal as settled, and remanded the appeal to the regional office for further adjudication:
1. The essence of the parties’ settlement agreement was the appellant’s agreement to resign his position in exchange for a clean record.
2. The Inspector General Act requires the Inspector General to furnish the head of the agency with semiannual reports of its activities, and that individual must transmit the report to Congress.
3. The Inspector General Report in question predated the parties’ settlement agreement. Accordingly, the Board agreed with the administrative judge that publication of the Inspector General’s semiannual report did not violate the parties’ subsequently executed settlement agreement.
4. The independence of the Office of the Inspector General precludes the head of the agency from changing the content of the semiannual reports. Accordingly, neither the Board nor the agency has the authority to order that the information either be corrected or excised from the report.
5. The parties’ settlement agreement was premised on the basic assumption that, by taking the steps outlined in the agreement, the appellant would have a clean employment record. The Inspector General’s semiannual report made that goal unachievable.
6. Whether the matter is viewed as a mutual mistake of fact, i.e., a mutual belief that it was possible at the time the parties executed their agreement to give the appellant a clean employment record, or as possible bad faith on the part of the agency, i.e., if the individuals who negotiated the agreement knew or had reason to know that the Inspector General would publish or had already published the details of the appellant’s removal, the settlement agreement must be set aside.
7. On remand, the administrative judge shall inquire whether the appellant wishes to reinstate his removal appeal or accept the parties’ settlement agreement notwithstanding the Inspector General’s publication of the details of his rescinded removal.
Federal Register Notice
The MSPB issued a Federal Register Notice, 75 Fed. Reg. 61321 (Oct. 5, 2010), to announce an interim rule that amends 5 C.F.R. § 1201.117 to “make clear that the Board may, in its discretion, include discussion of issues raised in an appeal in a nonprecedential Final Order.” Paragraph (c) of amended section 1201.117 now provides as follows:
The Board may issue a final decision in the form of a Final Order or an Opinion and Order. In the Board’s sole discretion, a Final Order may, but need not, include additional discussion of the issues raised in the appeal. All Final Orders are nonprecedential and may not be cited or referred to except by a party asserting issue preclusion, claim preclusion, collateral estoppel, res judicata, or law of the case. Only an Opinion and Order is a precedential decision of the Board, and an Opinion and Order may be appropriately cited or referred to by any party.
The Notice explained that this change “is intended to give the parties greater insight into the reasoning supporting the Board’s decision in a particular case without requiring the Board to issue a precedential decision. The Board believes that including more information in its nonprecedential decisions will be beneficial to both appellants and agencies because both parties will more fully understand the Board’s reasoning and have added assurance that the Board fully considered their arguments on appeal.”
The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:
Mancinelli v. Merit Systems Protection Board, No. 2010-3102 (Sept. 24, 2009) (MSPB Docket No. PH-3443-09-0434-I-1) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction)
Perrine v. Department of Veterans Affairs, No. 2010-3103 (Oct. 6, 2010) (MSPB Docket No. AT-0432-07-0421-M-1) (affirming per curiam the Board’s decision denying the appellant’s petition for enforcement of a settlement agreement)
Gingery v. Department of the Treasury, No. 2010-3093 (Oct. 7, 2010) (MSPB Docket No. CH-3330-09-0303-I-1, 113 M.S.P.R. 157) (affirming per curiam the Board’s decision denying the appellant’s request for corrective action in this VEOA appeal)
Keira v. Merit Systems Protection Board, No. 2010-3082 (Oct. 7, 2010) (MSPB Docket No. AT-3443-09-0686-I-1) (affirming per curiam the Board’s decision, which dismissed the appeal for lack of jurisdiction on the basis that OPM had not issued final decision on the matter at issue)
Payton v. Department of Homeland Security, No. 2010-3118 (Oct. 7, 2010) (MSPB Docket No. AT-0353-09-0770-I-1, 113 M.S.P.R. 463 (2010)) (affirming per curiam the Board’s decision, which dismissed the appellant’s restoration claim for lack of jurisdiction)
Strausbaugh v. Merit Systems Protection Board, No. 2010-3104 (Oct. 7, 2010) (MSPB Docket No. AT-315H-09-0034-B-1, AT-4324-09-0264-I-2) (dismissing for lack of jurisdiction two final MSPB decisions that dismissed appeals without prejudice on the ground that the MSPB has not issued an appealable final decision)