United States Merit Systems Protection Board

Case Report for May 13, 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:  Floyd J. Adamsen

Agency:  Department of Agriculture

Decision Number:  2011 MSPB 49

Docket Number:  DE-0432-07-0345-M-1

Issuance Date:  April 5, 2011

Appeal Type:  Performance

Action Type:  Removal

Performance-Based Actions
 - OPM Approval of Performance Appraisal Systems
Evidence
 - Substantial Evidence
 - Hearsay

       The appellant petitioned for review of an initial decision that affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43.  It was undisputed that OPM had approved 3 USDA performance appraisal systems in 1986, but that significant changes were made to them in November 1995, when the agency issued Personnel Bulletin No. 430-1.  The dispositive issue was whether the agency proved by substantial evidence that OPM had approved the revised appraisal system under which the appellant was removed.  The agency failed to produce a letter from OPM approving the changes set forth in the Bulletin or any other direct evidence that the agency obtained the requisite approval.  The agency’s indirect evidence consisted of a December 1996 letter from an OPM official to a Department of Agriculture official that related to the USDA’s approved performance appraisal systems, and an unsworn declaration from a USDA Human Resources Specialist that she reviewed “available files” and concluded that OPM had approved the performance appraisal system in question. 

Holdings:  A majority of the Board held that the agency failed to prove by substantial evidence that OPM had approved the performance appraisal system under which the appellant was removed, and therefore did not sustain the removal action:

1.  In a chapter 43 action, an agency must request and obtain approval from OPM when it makes significant changes to a previously approved performance appraisal system. 

2.  An agency must prove such approval by OPM by “substantial evidence,” which is defined as “the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.”  The Board’s reviewing court has described substantial evidence as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

3.  While it may be possible to infer from the December 1996 letter from the OPM official that OPM approved a performance appraisal system of some kind in January 1996, the letter creates nothing more than a suspicion that OPM approved the November 1995 appraisal system applicable to the appellant. 

4.  The unsworn declaration from the agency’s Human Resources Specialist similarly did not constitute substantial evidence of OPM approval of the applicable performance appraisal system.  This official did not become responsible for the agency’s performance management policy until 2006, and she was not personally involved in the relevant events of 1995 and 1996.  She stated that she reviewed “available files,” but she did not identify what files were or were not available, she did not assert that she personally saw or examined the alleged OPM approval letter, nor did she explain the factual basis for asserting that OPM approved the agency’s performance management system in a letter dated January 31, 1996. 

5.  Although hearsay evidence such as the Human Resources Specialist’s unsworn declaration is admissible in Board proceedings, its probative value depends on the circumstances of each case.  After examining the relevant factors, the Board found that this unsworn declaration was entitled to little weight. 

       In her dissent, Member Rose expressed the view that the majority “misunderstands the substantial evidence standard.”  She would have found that the agency’s Personnel Bulletin No. 430-1, together with the December 1996 letter from the OPM official and the unsworn declaration from the Human Resources Specialist, constituted substantial evidence that OPM had approved the performance appraisal system applicable to the appellant. 

Appellant:  James A. Scott

Agency:  Office of Personnel Management

Decision Number:  2011 MSPB 50

Docket Number:  CH-0731-09-0578-I-1

Issuance Date:  May 9, 2011

Appeal Type:  Suitability

Suitability
Defenses – Not in Accordance with Law

       The appellant petitioned for review of an initial decision that affirmed OPM’s decision to direct the appellant’s removal from the Defense Finance Accounting Service and take other suitability actions pursuant to 5 C.F.R. part 731 on the basis of deception and fraud in connection with his involvement in writing a résumé for his wife.  It was undisputed that the appellant was an employee in the competitive service with adverse action appeal rights prior to the conduct that formed the basis of OPM’s negative suitability decision.  The initial decision upholding OPM’s suitability actions was issued prior to the issuance of Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64 (2011), in which the Board held that an OPM-directed suitability removal of a tenured employee is appealable under 5 U.S.C. § 7513(d), and subject to the “efficiency of the service” standard of 5 U.S.C. § 7513(a). 

Holdings:  The Board granted the appellant’s petition for review, reversed the initial decision, and remanded the case for further adjudication of the appellant’s claim of prohibited discrimination:

1.  The Board need not decide whether the actions on appeal satisfy the efficiency of the service standard because OPM lacked any legal authority to take or direct the actions in question.  In particular, OPM does not have the authority under part 731 to make suitability determinations or to take or direct suitability actions against an individual based solely on conduct occurring after his admission into the competitive service. 

a.  OPM’s authority under part 731, though concerned with matters of character and conduct, extends only to those suitability determinations and actions pursuant to 5 U.S.C. § 3301 and Executive Order 10,577, in particular those portions codified at 5 C.F.R. §§ 1.1, 2.1(a), and 5.2.  After analyzing the text of each of these provisions, the Board found no indication that the scope of OPM’s authority extends beyond the examination process leading to admission into the competitive service.

b.  OPM’s interpretation of the statutes and other authorities is not entitled to deference. 

2.  Because OPM had no legal authority take the suitability actions on appeal, its decision cannot be sustained because its decision is “not in accordance with law” under 5 U.S.C. § 7701(c)(2)(C).

3.  Further adjudication is necessary to resolve the appellant’s claim of race and/or color discrimination.

Appellant:  Larry M. Dow

Agency:  General Services Administration

Decision Number:  2011 MSPB 51

Docket Number:  SF-3443-02-0159-X-2

Issuance Date:  May 10, 2011

Case Type:  Compliance Referral

Compliance

       This case was before the Board based on a Recommendation finding that the agency was not in compliance with a final Board order.  In the merits proceeding, the Board determined that the agency had violated the appellant’s rights under the Veterans Employment Opportunities Act (VEOA) by using the Outstanding Scholar Program to select at least one nonpreference eligible for the position of Chief People Officer (CPO) Intern for which the appellant had applied.  The primary issue before the Board was whether the agency’s tentative offer of retroactive placement in a Human Resources Specialist position, subject to his successful completion of pre-employment requirements contingent on a background investigation, is a proper remedy for the agency’s VEOA violation. 

Holdings:  The Board held that the agency’s tentative offer of retroactive placement in a Human Resources Specialist position, subject to his successful completion of pre-employment requirements contingent on a background investigation, is not a proper remedy for the agency’s VEOA violation, and that the agency remains in noncompliance:

1.  Although the agency has asserted that the CPO Intern position no longer exists, it has not indicated when it ceased to exist, and the record shows that one of the original selectees occupied the position until September 2002.  It is therefore possible for the agency to retroactively place the appellant in the CPO Intern position through the date the position ceased to exist.

2.  The agency has provided insufficient information for the Board to determine whether the appellant must undergo a background investigation prior to appointment. 

3.  The agency has provided insufficient information for the Board to determine whether the Human Resources Specialist position is substantially similar to the CPO Intern position.

4.  The appellant’s assertion that the agency’s violation of his veterans’ preference rights was willful is not ripe for adjudication.

COURT DECISIONS

Petitioner:  Roger Tudor

Respondent:  Department of the Treasury

Tribunal:  U.S. Court of Appeals for the Federal Circuit

Docket Number:  2009-3237

Issuance Date:  May 9, 2011

Substantial Evidence

       This case was on appeal to the court to review the initial decision issued by the Board’s administrative judge, which sustained the agency’s demotion penalty, after the two-member Board could not agree on a disposition.  The agency demoted Tudor from his position as a Supervisory Special Agent with the IRS Criminal Investigations office in Dallas, Texas based on 3 charges:  (1) failure to obtain appropriate approval authority for certain actions; (2) unauthorized disclosure of taxpayer information; and (3) repeated entry of false information into a government database.  The first charge included 28 specifications of improper referral of IRS investigations to U.S. Attorneys’ offices for prosecution.  In the MSPB proceeding, the administrative judge sustained the 28 referral specifications of the first charge and the second charge of unauthorized disclosure of taxpayer information, but found that the third charge of entry of false information was unsubstantiated.  Because the deciding official testified that he would have imposed the same penalty based on the first charge alone, the administrative judge found the penalty of demotion appropriate.

       The sole issue presented on appeal was whether there was adequate evidentiary support for the administrative judge’s findings related to the 28 specifications of the first charge dealing with improper referrals of investigations to U.S. Attorneys’ offices for prosecution.  Tudor argued that the testimony established that he was given verbal authorization by his superiors to directly refer investigations to U.S. Attorneys’ offices.  Although IRS policy prohibited Tudor from referring cases for prosecution, the deciding official testified that he would not have sustained the first charge if Tudor’s superiors had condoned his approval activities.

Holding:  The charge of failure to obtain appropriate approval authority must be set aside because the administrative judge’s finding that Tudor was not given verbal approval to refer cases for prosecution was not supported by substantial evidence.  The court therefore reversed the Board’s decision and remanded the case for further consideration of the first charge and the penalty determination. 

       In a separate opinion, Judge Clevenger dissented from the majority’s decision to expose Tudor to further litigation regarding the first charge.  He would have found that the evidence established that Tudor’s supervisors condoned the conduct covered by the first charge, and characterized Tudor as “the fall guy” “in a trap set for him by his supervisors.”  Judge Clevenger stated that the proper course of action would be to remand the case to let the agency decide the penalty it wishes to assess for the second charge of unauthorized disclosure of taxpayer information. 

 

Non-precedential Decisions

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

Cruz v. Office of Personnel Management, No. 2010-3165 (April 8, 2011) (MSPB Docket No. SF-0831-09-0823-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant was not entitled to CSRS retirement benefits)

Wall v. Office of Personnel Management, No. 2011-3006 (April 8, 2011) (MSPB Docket No. AT-0831-08-0779-M-1) (affirming the Board’s decision that the appellant was not entitled to disability retirement benefits)

Burroughs v. Merit Systems Protection Board, No. 2010-3180 (April 8, 2011) (MSPB Docket No. DA-4324-10-0311-I-1) (affirming the Board’s decision, which dismissed for lack of jurisdiction an appeal from a nonselection)

Whitby v. Office of Personnel Management, No. 2011-3009 (April 11, 2011) (MSPB Docket No. AT-0842-10-0562-I-1) (affirming the Board’s decision, which upheld OPM’s denial of retirement benefits)

Wickware v. Merit Systems Protection Board, No. 2011-3033 (April 11, 2011) (MSPB Docket No. DA-0752-10-0220-I-1) (affirming the Board’s decision, which dismissed the appellant’s petition for review as untimely filed)

Camilo v. Merit Systems Protection Board, No. 2011-3042 (April 12, 2011) (MSPB Docket No. SF-0831-05-0449-I-1) (affirming the Board’s decision, which dismissed an appeal as untimely filed)

Rodriguez v. Office of Personnel Management, No. 2011-3035 (April 12, 2011) (MSPB Docket No. DC-844E-09-0636-I-1) (affirming the Board’s decision, which upheld OPM’s decisions to terminate the appellant’s disability retirement annuity on the ground that she had been restored to earning capacity and that she was required to repay an overpayment of benefits)

Gingery v. Department of the Treasury, No. 2010-3123 (April 12, 2011) (MSPB Docket No. CH-3330-08-0673-I-2) (affirming per Rule 36 the Board’s decision, 111 M.S.P.R. 134 (2009), which dismissed an appeal without prejudice to refiling)

Woodson v. Office of Personnel Management, No. 2010-3141 (May 2, 2011) (MSPB Docket No. CH-0831-09-0822-I-1) (affirming the Board’s decision, which upheld OPM’s determination that the appellant was not entitled to survivor annuity benefits)

Rosado v. Merit Systems Protection Board, No. 2011-3003 (May 6, 2011) (MSPB Docket No. NY-3443-08-0345-B-1) (affirming the Board’s decisions, which dismissed two appeals challenging nonselections)

Brown v. Department of Veterans Affairs, No. 2010-3175 (May 10, 2011) (MSPB Docket No. DE-0432-09-0182-I-3) (affirming per Rule 36 the Board’s decision, which sustained the agency’s chapter 43 removal action)

Hawkins v. Merit Systems Protection Board, No. 2011-3013 (May 11, 2011) (MSPB Docket No. DC-0752-10-0663-I-1) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction)