United States Merit Systems Protection Board

Case Report for May 20, 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: Richard Brott

Agency: General Services Administration

Decision Number: 2011 MSPB 52

Docket Number: SF-0752-09-0867-I-1

Issuance Date: May 18, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Physical/Mental Disability

The agency petitioned for review of an initial decision that reversed its removal action. The agency removed the appellant from his position as a WG-1 Laborer based on 4 charges of misconduct. After a hearing, the administrative judge found that the agency failed to prove any of its charges, and that the appellant proved that the agency discriminated against him on the basis of his disability (mental retardation). The judge found in this regard that the appellant’s supervisor had called him a “retard,” and that this constituted direct evidence of a discriminatory attitude.

Holdings: The Board affirmed the initial decision as modified, still reversing the removal and finding that the appellant proved his claim of disability discrimination:

1. The administrative judge correctly found that the agency failed to prove its charges.

a. When an agency names a charge so that the label has more than one element, it must prove all of the elements for the overall charge to be sustained.

b. Where, as here, a single charge combines disorderly conduct and failure to follow instructions, or disorderly conduct and absence without leave, the agency must prove both elements for the charge to be sustained.

2. The appellant may not prevail on his claim of disability discrimination under a mixed-motive theory. The Board found persuasive the reasoning of the 7th Circuit in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), which held that, in disability discrimination cases arising before the January 1, 2009 amendments to the Americans with Disabilities Act (ADA), the claimant must prove by preponderant evidence that the agency took an adverse action “because of” his disability, and that the burden of persuasion does not shift to the agency to show that it would have taken the action regardless of disability, even when the appellant produced some evidence that disability was one motivating factor in the adverse employment action. Accordingly, analysis under a mixed-motive framework under Price Waterhouse is not appropriate. The Board reserved for a future decision the applicable analysis under the ADA Amendments Act of 2008.

3. The appellant proved his claim of disability discrimination by circumstantial evidence.

a. An appellant may meet his burden of persuasion in a disability discrimination case through direct or circumstantial evidence.

b. Direct evidence is composed of only the most blatant remarks whose intent could be nothing other than to discriminate on the basis of some impermissible factor. If an alleged discriminatory motive at best merely suggests a discriminatory motive, then it is only circumstantial evidence. Here, the judge incorrectly found that the appellant presented direct evidence of discrimination because of his supervisor’s remarks.

c. The appellant’s circumstantial evidence of disability discrimination is very strong. Before the removal action, the appellant’s supervisor called him a “retard” directly and repeated it in the presence of others. Further, there is no evidence that the supervisor counseled other employees to cease calling the appellant a “retard,” which happened on a recurring basis.

d. Although the appellant’s supervisor was not the proposing or deciding official in the removal action, the evidence established that this supervisor’s discriminatory attitude “permeated the entire action.”

Appellant: Bobbi R. Williams

Agency: United States Postal Service

Decision Number: 2011 MSPB 53

Docket Number: AT-3330-10-0475-I-1

Issuance Date: May 19, 2011

Appeal Type: Veterans Employment Opportunities Act

Board Procedures
- Dismissal – Failure to Prosecute

The appellant petitioned for review of an initial decision that dismissed her appeal of a nonselection under the Veterans Employment Opportunities Act for failure to prosecute under 5 C.F.R.  1201.43(b). After the appellant filed the appeal, the administrative judge issued two orders directing the appellant to show that the appeal was within the Board’s jurisdiction and was timely filed. The appellant did not respond to either order. The judge thereafter issued the appellant an order to show cause why he should not impose sanctions for her failure to respond to the earlier orders, and warned that, if she failed to respond to the show‑cause order, he might dismiss the appeal for failure to prosecute. Although she thereafter filed a pleading, she did not address the show‑cause order. The judge issued an initial decision dismissing the appeal for failure to prosecute, finding that imposition of the sanction was necessary to served the ends of justice based upon the appellant’s failure to respond to the 3 Board orders.

Holdings: The Board affirmed the initial decision as modified, stating that it was issuing an Opinion and Order to clarify the existing law regarding the imposition of the sanction of dismissal for failure to prosecute under 5 C.F.R.  1201.43(b):

1. The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal. The imposition of the severe sanction of dismissal is only appropriate when necessary to serve the ends of justice.

2. Under longstanding court and Board precedent, sanctions should only be imposed when a party has failed to exercise basic due diligence in complying with Board orders or has exhibited negligence or bad faith in its efforts to comply.

3. Recent Board decisions have omitted the language authorizing the imposition of the sanction of dismissal for failure to exercise basis due diligence and have stated that the sanction of dismissal may be imposed only when the appellant has exhibited bad faith or evidenced an intent to abandon the appeal.

4. The shift in language occurred because the Board tailored the standard to the particular circumstances of the cases. The Board made clear that it has neither overruled nor abandoned the two-prong standard under which the sanction of dismissal may be imposed when the party has failed to exercise basic due diligence in complying with Board orders or has exhibited negligence or bad faith in its efforts to comply.

5. Here, the appellant failed to exercise basic due diligence in complying with Board orders and the administrative judge did not abuse his discretion in imposing the sanction of dismissal.

Appellant: David Usharauli

Agency: Department of Health and Human Services

Decision Number: 2011 MSPB 54

Docket Number: DC-1221-10-0488-W-1

Issuance Date: May 19, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Covered Employees
- Protected Disclosure
- Contributing Factor

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. In January 2009, the appellant received an appointment, not to exceed February 20, 2010, to the National Institutes of Health as a Research Fellow. The appointment was made under 42 U.S.C.  209(g). In a December 11, 2009 email, the appellant’s third-level supervisor informed the appellant that, as discussed in a meeting on December 9, his appointment would not be extended, and that he was being placed on administrative leave and “banned from campus because of the way you conducted yourself.” The email further advised that, effective December 14, he would be allowed to work from home. The appellant’s appointment terminated on February 20, 2010. In his IRA appeal, the appellant alleged that he was placed on administrative leave and his term appointment was allowed to expire instead of being extended in reprisal for whistleblowing.

In dismissing the appeal for lack of jurisdiction, the administrative judge ruled that an individual appointed under 42 U.S.C.  209(g) may file an IRA appeal only if he was terminated for cause prior to the expiration of his appointment. The judge also concluded that the appellant’s purported placement on administrative leave was moot. In light of these determinations, the judge made no findings concerning whether the appellant was an “employee” in a “covered position” protected by the WPA, whether he had made a nonfrivolous allegation that he made a whistleblowing disclosure, or whether any such disclosure was a contributing factor in the agency’s decision to take or fail to take a covered personnel action.

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

1. The administrative judge erred in finding that the appellant could not bring an IRA appeal because appointments under 42 U.S.C.  209(g) are made “without regard to the civil-service laws.”

a. Because the Whistleblower Protection Act is a remedial statute, its terms should be liberally construed to embrace all cases fairly within it scope so as to effectuate its purpose. Absent exclusionary language, a cramped reading of the statute would be counter to that intent.

b. The Board agreed with the appellant that the “without regard to the civil-service laws” language of  209(g) does not affect his right to file an IRA appeal over the agency’s decision, whether it is characterized as a decision to not appoint him to a second term, to not re-appoint him, to not renew or extend his appointment, or to let his appointment expire. Both the Board and the Federal Circuit have consistently interpreted the statutory language to refer to matters concerning the method by which an applicant’s qualifications for appointment to a position should be determined.

2. The administrative judge erred in finding the appellant’s allegation concerning his placement on administrative leave moot.

a. Placement on administrative leave is a “personnel action” under 5 U.S.C.  2302(a)(2)(A) for purposes of an IRA appeal.

b. There is a dispute as to whether the appellant had actually been placed on administrative leave and/or whether the agency had completely rescinded its action.

c. In any event, the appellant requested consequential damages, and an appeal cannot be considered to be moot when an appellant has outstanding, viable claims for consequential damages or corrective action.

3. The administrative judge must determine whether the appellant is an “employee” under 5 U.S.C.  2105(a) entitled to bring an IRA appeal.

a. Under the WPA, an agency may not take or threaten to take certain personnel actions against “an employee” in a “covered position” because of a protected whistleblowing disclosure.

b. To be an “employee” under 5 U.S.C.  1221(a), an individual must meet the definition of “employee” under 5 U.S.C.  2105(a), which defines the term as an individual (1) appointed in the civil service by a named federal official acting in his official capacity, (2) engaged in the performance of a federal function under authority of law or an executive act, and (3) under the supervision of a named federal official in the performance of the duties of his position.

c. The Board found that the appellant was “appointed in the civil service,” but that there were questions about the other requirements that must be resolved on remand.

4. The appellant has otherwise established jurisdiction over his IRA appeal, i.e., exhausted his administrative remedy before OSC, made a nonfrivolous allegation that he made a protected disclosure, and that the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action.



Non-precedential Decision

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

Allen v. Department of Veterans Affairs, No. 2010-3088 (May 13, 2011) (MSPB Docket Nos. DC-0752-07-0694-C-3 & C-4) (affirming the Board’s decisions, which denied the appellant’s petitions for enforcement of a settlement agreement)