United States Merit Systems Protection Board

Case Report for June 17, 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:  Danny Vaughan

Agency:  Department of Agriculture

Decision Number:  2011 MSPB 61

Docket Number:  DA-0752-09-0427-I-1

Issuance Date:  June 13, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Constructive Adverse Action

Collateral Estoppel
Involuntary Disability Retirement

       The appellant petitioned for review of an initial decision that dismissed his appeal under the doctrine of collateral estoppel (issue preclusion).  In the current appeal, the appellant alleged that his disability retirement was involuntary, and he filed his appeal with the Board after receiving a final agency decision that rejected his claims that the agency had committed disability discrimination and that it created a hostile work environment.  In an earlier individual right of action (IRA) appeal, a different administrative judge ordered corrective action with regard to some of the personnel actions raised by the appellant, but found that he had failed to establish jurisdiction over his claim of involuntary disability retirement.  In dismissing the appeal under the doctrine of collateral estoppel, the administrative judge found that the appellant’s claim of an involuntary retirement was actually litigated in the IRA appeal, that the determination on this claim was necessary to the judgment in that appeal, and that the appellant had a full and fair opportunity to litigate this issue in the prior appeal.

Holdings:  The Board, member Rose dissenting, vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1.  In the narrow circumstances of this appeal, the requirements of collateral estoppel have not been met because the appellant did not have a full and fair opportunity to litigate his involuntary disability retirement claim under the correct legal standard.

a.  The law of retroactivity precludes the new legal principle governing alleged involuntary disability retirements announced in this decision from being applied to cases that are already closed.

b.  In the present appeal, the appellant filed a Board appeal challenging the final agency decision that decided his formal discrimination complaint alleging that his disability retirement was involuntary.  His involuntary retirement appeal is therefore plainly and properly pending before the Board as it issues this new, controlling interpretation of federal law. 

c.  Even if all requirements for collateral estoppel were satisfied, it would not be improper to decline to give collateral estoppel effect to the decision in the appellant’s earlier IRA appeal, which was based on standards for involuntary disability retirement that the Board now finds to be fundamentally flawed.

2.  The Board modified the legal standard governing involuntary disability retirement claims.

a.  In most claims of involuntary retirement, an appellant may overcome the presumption that a retirement is voluntary by showing that it resulted from misinformation or deception by the agency or was the product of coercion by the agency.  Under this framework, the Board will find a retirement to be involuntary where the employee demonstrates that the employer engaged in a course of action that made working conditions so difficult or unpleasant that a reasonable person in that employee’s position would have felt compelled to resign or retire.

b.  In the context of claims of involuntary disability retirements, however, the Board has required that an appellant must nonfrivolously allege that an accommodation was available between the time the appellant’s medical condition arose and the date of his separation that would have allowed him to continue his employment, that the appellant communicated to the agency his desire to continue working but that his medical limitations required a modification of his working conditions or duties, and that the agency failed to provide him that accommodation.

c.  While this standard is correct in most involuntary disability retirement appeals, there are unusual circumstances in which it is appropriate to apply the Board’s regular principles for determining jurisdiction.  Here, the appellant alleged that the agency created a discriminatory, hostile work environment, which not only led to intolerable working conditions, but which caused or exacerbated the medical conditions underlying his disability retirement.  In effect, he has alleged that he was coerced into retirement because the agency’s discriminatory conduct caused him to become disabled.  Under these limited circumstances, the appellant made nonfrivolous allegations casting doubt on the presumption of voluntariness, and he is entitled to a jurisdictional hearing. 

       In her dissent, member Rose expressed the view that the majority’s decision means that it will not apply collateral estoppel when it wishes to reach the underlying issues, particularly when it believes that the party’s arguments are persuasive, and that, whenever the law changes, parties whose cases were decided under the legal standard that existed prior to the change will not be precluded from relitigating their cases before the Board. 

Appellant:  Linda McCauley

Agency:  Department of the Interior

Decision Number:  2011 MSPB 59

Docket Number:  DC-0752-09-0694-I-1

Issuance Date:  June 10, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Adverse Action Charges
 - Absence-Related – Excessive Absences, AWOL

       The appellant petitioned for review of an initial decision affirming her removal on charges of excessive absences and absence without leave (AWOL).  The excessive absences charge was based on the appellant’s use of 136 days of approved leave during a 15-month period.  The AWOL period included 22 days. 

Holdings:  The Board reversed the initial decision with respect to the excessive absences charge, affirmed it with respect to the AWOL charge, and sustained the appellant’s removal:

1.  The appellant did not show that the administrative judge erred in finding that she received the notice of proposed removal, or that the judge abused her discretion by prohibiting the appellant from introducing certain evidence.

2.  An excessive absences charge may include sick leave, annual leave, leave without pay, and AWOL, but it may not include leave under the Family and Medical Leave Act.

3.  The excessive absences charge cannot be sustained because the agency failed to prove a required element of that charge.

a.  In order to prove a charge of excessive absences, the agency must prove that “the employee was absent for compelling reasons beyond his or her control so that agency approval or disapproval was immaterial because the employee could not be on the job.”

b.  In this case, the deciding official testified that because “there were big chunks of leave without pay that were granted to” the appellant while the supervisor “was waiting for medical documentation,” the deciding official was unable to “know” whether the appellant was able to report for work.

4.  The penalty of removal is reasonable given the nature and extent of the sustained AWOL charge.

Appellant:  Cathleen R. Sambrano

Agency:  Department of Defense

Decision Number:  2011 MSPB 60

Docket Number:  CH-0752-10-0648-I-1

Issuance Date:  June 10, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Adverse Action Charges
 - Absence-Related – AWOL, Leave Without Pay

       The appellant petitioned for review that affirmed her removal on a charge of absence without leave (AWOL).  Before the agency recorded the appellant as AWOL, it approved the appellant’s use of leave, advanced leave, donated leave, and leave under the Family and Medical Leave Act, over an extended period of time.  Thereafter, the agency denied the appellant’s request for leave without pay (LWOP) and recorded her absence as AWOL.  She was removed after being AWOL for more than 3 months. 

Holdings:  The Board affirmed the initial decision as modified, still sustaining the appellant’s removal:

1.  The agency was not required to approve the appellant’s request for leave without pay.

a.  Where an employee who is incapacitated for duty has exhausted all of her leave, it is not improper for an agency to deny LWOP where there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency.

b.  The agency’s Administrative Instruction No. 67 did not require that the agency authorize LWOP.  Although this policy authorizes officials to approve LWOP in a number of circumstances, including for a period of ill health or while an Office of Workers’ Compensation Programs (OWCP) claim is pending, it does not mandate LWOP in these situations.

2.  The existence of a pending claim for OWCP benefits did not preclude the agency from instituting an adverse action based on an AWOL charge.

a.  An adverse action based on AWOL cannot be sustained if OWCP determines that the individual was entitled to workers’ compensation benefits as a result of a work-related injury for the entire time period charged as AWOL.

b.  An agency that implements an adverse action predicated upon a charge of AWOL pending a final determination of the workers’ compensation claim does so at the risk that the AWOL charge may later be invalidated, but the agency is entitled to take that risk. 

Appellant:  Barron D. Thomas

Agency:  US Postal Service

Decision Number:  2011 MSPB 62

Docket Number:  PH-0752-10-0412-I-1

Issuance Date:  June 14, 2011

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Adverse Action Charges – Construction and Proof
Constitutional Issues – Due Process

       The appellant petitioned for review of an initial decision affirming his removal based upon a charge of “Improper Conduct/Violation of USPS Policy on Sexual Harassment.”  All 4 specifications involved the appellant’s action towards the same female employee during December 2009.  The appellant was accused of touching the woman’s buttocks on December 9, her chest areas on December 21, and her buttocks on December 27, as well as “continually subject[ing her] to demeaning, sexually derogative comments.”  Following a hearing, the administrative judge upheld the first, second, and fourth specifications, but not the third.  The judge also found that the appellant had failed to prove any of his affirmative defenses and that removal was an appropriate penalty for sustained specifications. 

       In his petition for review, the appellant alleged, among other things, that the deciding official saw and considered statements from 2 other women that alleged that the appellant engaged in similar conduct towards them.

Holdings:  The Board affirmed the initial decision in part, reversed it in part, and remanded the case to the regional office for a determination of whether the agency violated the appellant’s right to due process of law:

1.  The administrative judge acted within her discretion when she decided not to permit the appellant to submit new evidence at the hearing.

2.  The appellant did not show error in the judge’s credibility determinations.  The Board will defer to a judge’s credibility determinations when they are based, explicitly or implicitly, upon the observation of the demeanor of witnesses testifying at a hearing.  The Board upheld the judge’s findings with respect to the first two specifications.

3.  The agency did not prove its specification that the appellant continually subjected the female employee to demeaning, sexually derogative comments.

a.  The ordinary meaning of the word “continually” is that it continues indefinitely without interruption or in steady rapid succession.

b.  The female employee testified that the appellant’s inappropriate comments were not “an every day occurrence” and that they happened “maybe once a week.”  This would mean, at most, that the comments occurred 3 times during the period in question, which does not rise to the level of continual. 

4.  The case must be remanded to the regional office for a determination of whether the agency violated the appellant’s constitutional right to due process of law.

a.  The record reflects that the deciding official saw statements from 2 other women that alleged that the appellant had engaged in conduct towards them that was similar to the charged conduct, and the deciding official considered these statements to some degree.

b.  Prior to the recent issuance of Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), the Board had held that where an ex parte communication does not relate to the charge itself, but relates instead to the penalty, it would not consider the error to be a denial of the constitutional right to due process, and that the Board would remedy the error by doing its own analysis of the penalty factors.

c.  In Ward, the court expressly overruled this approach and held that if the employee has not been given “notice of any aggravating factors supporting an enhanced penalty,” an ex parte communication with the deciding official regarding such factors may constitute a due process violation.  If the ex parte communication introduced “new and material information” to the deciding official such that the communication “is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances,” then a due process violation will be found.

d.  Whether the ex parte communications in this case were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner cannot be determined from the existing record.  A remand is therefore necessary. 



Non-precedential Decisions

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

Swidecki v. Department of Commerce, No. 2011-3049 (June 10, 2011) (MSPB Docket No. SF-4324-09-0759-B-1) (affirming the Board’s decision, which found that the appellant failed to prove his USERRA discrimination claim)

Burroughs v. Merit Systems Protection Board, No. 2011-3021 (June 13, 2011) (MSPB Docket No. DA-3330-09-0583-I-1) (affirming the Board’s decision, 114 M.S.P.R. 647 (2010), which dismissed the appellant’s VEOA claim for lack of jurisdiction)

Rogriguez v. Merit Systems Protection Board, No. 2010-3149 (June 13, 2011) (MSPB Docket No. NY-0731-09-0060-B-1) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction)

Schaeffer v. Office of Personnel Management, No. 2011-3057 (June 13, 2011) (MSPB Docket No. DA-0831-10-0026-I-1) (affirming the Board’s decision, which sustained OPM’s decision reducing the amount of the appellant’s CSRS annuity)