United States Merit Systems Protection Board

Case Report for August 19, 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: Robert John McCarthy

Agency: International Boundary and Water Comm: U.S. and Mexico

Decision Number: 2011 MSPB 74

Docket Numbers: DA-1221-09-0725-W-1; DA-1221-10-0078-W-1

Issuance Date: August 5, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Protected Disclosure
- Proof of Claim - Order of Proof
- Contributing Factor
- Clear and Convincing Evidence

The appellant petitioned for review of initial decisions that denied his requests for corrective action in these IRA appeals. On July 28, 2009, a little over a year after his appointment as a GS-15 Supervisory Attorney under an excepted service appointment, the appellant submitted a memorandum entitled “Disclosures of Fraud, Waste and Abuse” to several agencies and the White House. The same day, he sent an email to his supervisor, Chairman C.W. Ruth, stating that he had “report[ed] allegations of fraud, waste and abuse (and suspected criminal activity) directly to the State Department, the FBI, and/or other appropriate entities. . . . Having done so, I assert my rights as a whistleblower.” The email to Chairman Ruth did not include a copy of the memorandum or describe the “fraud, waste and abuse” that the appellant has reported. Two days later, Commissioner Ruth issued a termination notice stating that the appellant was unfit for continued employment with the agency because he displayed a “lack of cooperation to support [the Commissioner]” and a “continued failure to support [the Commissioner] or other members of the executive staff in a constructive and collegial manner.” Commissioner Ruth identified four specific memoranda prepared by the appellant as evidence to support his action.

The appellant filed two separate complaints with the Office of Special Counsel (OSC) alleging retaliation for making whistleblowing disclosures—one relating to the termination of his employment, and one relating to the termination of his health benefits coverage and the agency’s refusal to reimburse him for his moving expenses—and filed IRA appeals in each instance after OSC terminated its investigation. Following a consolidated hearing, the administrative judge issued decisions in each appeal denying the appellant’s request for corrective action. The judge found that the appellant established jurisdiction over both appeals. On the merits in the termination appeal, the judge assumed, without deciding, that the appellant established that he made protected disclosures and that his disclosures were a contributing factor in the agency’s action terminating his employment, but found that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosures. In the “health benefits” appeal, the judge again assumed that the appellant established that he made protected disclosures, but found that the appellant failed to prove that any protected disclosure was a contributing factor in the agency’s actions.

Holdings: The Board affirmed the initial decision as modified, still denying the appellant’s request for corrective action:

1. The administrative judge abused his discretion in failing to fully join the appellant’s IRA appeals, and the Board joined them for adjudication. Where, as here, the appellant filed more than one complaint with OSC in support of an overall claim of reprisal for whistleblowing activity, an administrative judge should not take a piecemeal approach by adjudicating separate but related personnel actions in separate appeals.

2. The appellant may not challenge the judge’s orders on his stay requests through the petition for review process; a request for an interlocutory appeal is the only option for Board review of such a denial.

3. The Board found against the appellant with respect to several contentions of error:

a. The judge did not abuse his discretion in his rulings on discovery matters.

b. The appellant failed to show reversible error in the judge’s hearing-related rulings.

c. The appellant’s other constitutional and statutory claims are not properly before the Board.

d. The appellant’s claim that the judge was biased against him is unsupported by the record.

4. This consolidated IRA appeal requires adjudication of the merits of both the appellant’s prima facie case and the agency’s affirmative defense.

a. In order to establish a prima facie case under the WPA, an appellant must prove that he made a protected disclosure and that the disclosure was a contributing factor in an adverse action against him. If the appellant proves his prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, the affirmative defense that it would have taken the same personnel action in the absence of the protected disclosure.

b. Because the WPA does not mandate any particular sequence for trying the elements of a whistleblower case, the Board may in appropriate cases first address the agency’s affirmative defense that it would have taken the same action in the absence of a disclosure, and then, if necessary, turn to the question of whether the appellant established a prima facie whistleblower claim.

c. Under the circumstances of this case, where the circumstantial evidence bearing on retaliatory motive includes the substance of the appellant’s allegedly protected activity as well as the extent to which the deciding official was aware of it, the Board found it necessary to adjudicate both the merits of the appellant’s prima facie case as well as the agency’s affirmative defense.

5. The appellant established that he was perceived as a whistleblower and that he made a protected disclosure.

a. One who is perceived as a whistleblower is entitled to the protection of the WPA, even if he has not made protected disclosures.

b. Commissioner Ruth testified that, when he made the decision to hire the appellant, he was aware that the appellant had previously filed whistleblower disclosures regarding his previous employer. Furthermore, the appellant “assert[ed his] rights as a protected whistleblower” in his July 28 email to Commissioner Ruth. Under these circumstances, the Board found that the appellant was perceived as a whistleblower.

c. The appellant established that he made at least one protected disclosure, in that he had a reasonable belief that the agency violated a law, rule, or regulation in connection with a bid solicitation for levee construction.

6. Under the circumstances of this case, the Board need not analyze each of the appellant’s 12 alleged disclosures to determine which were protected.

a. In appropriate cases, the Board should consider, with respect to each purported disclosure, whether the appellant has established by preponderant evidence that he made a disclosure that he reasonably believed evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety under 5 U.S.C. 2302(b)(8)(A). This is particularly appropriate in cases in which the substance of the appellant’s disclosures is also relevant to the deciding official’s motive to retaliate for having made them.

b. Because there is no evidence that Commissioner Ruth knew the details contained within the appellant’s written disclosures prior to the time that he terminated the appellant’s employment, the substance of the disclosures could have no bearing on whether the appellant was terminated in reprisal for whistleblowing activity. Rather, under these circumstances, the relevant consideration for the Board is whether the appellant has established by preponderant evidence that his perceived status as a whistleblower, including the agency’s knowledge of the fact that he made purported disclosures, was a contributing factor in the agency’s decision to terminate the appellant, and, if so, whether the agency met its burden of demonstrating by clear and convincing evidence that it would have taken the same action absent the appellant’s perceived status.

7. The appellant established that his protected disclosures were a contributing factor in the agency’s personnel action by meeting the knowledge/timing test of 5 U.S.C.  1221(e)(1).

8. The agency established by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing.

a. In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board considers the strength of the agency’s evidence in support of its action, the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision, and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.

b. The Board concurred with the judge’s finding, based on a detailed discussion of the evidence and a thorough and persuasively reasoned analysis, that Commissioner Ruth terminated the appellant because “he was frustrated with the appellant’s incorrect legal advice and his contentious, divisive memoranda,” and that “although the appellant’s whistleblowing disclosures coincided, either by chance or by design, with the end of the degenerating relationship between himself and Ruth, they did not cause the deterioration.”

Appellant: Reynaldo Alvara

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 75

Docket Number: DA-0752-10-0223-I-1

Issuance Date: August 17, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Physical Ability to Perform
Disability Discrimination
- Qualified Individual with a Disability

The appellant petitioned for review of an initial decision that affirmed his removal for physical inability to perform and found that the appellant did not prove his claim of disability discrimination. The appellant, a GS-11 Customs and Border Patrol Officer (CBPO), suffers from sleep apnea, a permanent condition that requires him to get 8 hours of nocturnal sleep and which thereby precludes him from working the graveyard shift or performing substantial amounts of overtime, both features of his position. Although the agency accommodated the appellant for a time by not requiring that he work the graveyard shift or substantial amounts of overtime, this accommodation ended after reassessment by a new Port Director. She determined that the appellant could not perform the full range of his duties, and found that not requiring him to work the graveyard shift and substantial overtime on a permanent basis was not a reasonable accommodation. The Port Director directed that the agency undertake a search for other suitable positions within the appellant’s commuting area that he could perform, but none were found. She offered to extend the search outside the appellant’s commuting area, but he declined. She then effected his removal for physical inability to perform. On appeal to the Board, the administrative judge found that the agency showed that the appellant is physically unable to meet the conditions of his employment due to his medical condition. Addressing the appellant’s claim of disability discrimination, the judge found that he is disabled, but that he did not establish that he is a qualified individual with a disability because he did not show that he can perform the essential functions of his position with or without accommodation.

In his petition for review, the appellant argued that the administrative judge erred in finding that the ability to work the graveyard shift and substantial overtime is an essential function of his position.

Holdings: The Board affirmed the initial decision as modified, still affirming the agency’s removal action, finding that the appellant failed to prove his claim of disability discrimination:

1. A qualified individual with a disability is a person with the skills, experience, education, and other job-related requirements of the position he holds and who, with or without reasonable accommodation, can perform the essential functions of his position. Evidence of whether a particular function is essential includes, but is not limited to: the employer’s judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement; the work experience of past incumbents in the job; and/or the current work experience of incumbents in similar jobs.

2. In finding that working the graveyard shift and substantial overtime was an essential function of the appellant’s position, the administrative judge considered the above factors, including testimony from several witnesses that CBPOs are assigned to work overtime to meet the needs of the agency on any shift, including the graveyard shift, that overtime is necessary in order for the agency to fulfill its mission, that no CBPO has ever been permanently exempted from working overtime or the graveyard shift, that morale would be adversely affected if certain CBPOs were never required to work overtime, that the requirement that CBPOs be able to work the graveyard shift and significant overtime was a factor in the classifying and grading of the position, and that the appellant’s requested accommodation would circumvent the collective bargaining agreement because it imposes limits on how much overtime each employee can be ordered to work.

3. The judge properly relied upon the EEOC’s decision in Bouffard v. Department of Homeland Security, Appeal No. 0120065257 (E.E.O.C. Jan. 16, 2008), which held that: (1) The ability to work rotational shifts and overtime is an essential function of the CBPO position; and (2) the accommodation of not having to work rotational shifts and overtime is in essence a request to change the essential function of the job, something the agency is not required to do. The Board generally defers to the EEOC on issues of substantive discrimination law unless the EEOC’s decision rests on civil service law for its support or is so unreasonable that it amounts to a violation of civil service law. Neither of those exceptions applies in this case.

Appellant: Thimmappayya Hasanadka

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 77

Docket Number: AT-0831-10-0929-I-1

Issuance Date: August 17, 2011

Action Type: Retirement/Benefit Matter

Res Judicata, Collateral Estoppel
Retirement - Jurisdiction

The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision concerning his Civil Service Retirement System (CSRS) retirement annuity. There were two separate matters in controversy: the cost of providing a survivor annuity to the appellant’s former spouse; and the apportionment of the appellant’s annuity for his post-divorce service. When the appellant and his first wife divorced in 2001, a state court order provided that she would entitled to 53% of the appellant’s gross annuity, and that she was entitled to “the maximum possible former spouse annuity under the [CSRS].” After the appellant retired in 2005, OPM informed him that it would pay his former spouse 53% of his gross annuity, and reiterated that it intended to honor the court’s former spouse survivor annuity award. After obtaining initial and reconsideration decisions from OPM, the appellant filed a Board appeal in 2006, in which he argued that the court order providing an annuity to his former spouse was inconsistent with OPM’s regulations because it awarded his former spouse a greater share of his annuity than him. In a final decision, which was affirmed on review by the U.S. Court of Appeals for the Federal Circuit, the Board rejected that argument and affirmed OPM’s reconsideration decision concerning the former spouse annuity. In a July 2010 reconsideration decision, OPM found that the divorce decree was acceptable for processing as providing the appellant’s former spouse with a maximum survivor annuity. OPM further found that the divorce decree did not specify who was to pay the cost to provide the survivor benefit, and that, pursuant to its regulations, it would therefore collect the annuity reduction from the appellant’s annuity.

On appeal to the Board, the administrative judge found that the appellant was barred by collateral estoppel (issue preclusion) from arguing that the divorce decree was not “acceptable for processing” by OPM because that issue was fully litigated in the earlier appeal. The judge further found that the divorce decree did not provide that the appellant’s former spouse was responsible for the cost of the survivor annuity, and that OPM therefore properly reduced the appellant’s annuity in order to provide the survivor annuity. In his petition for review, the appellant argued that OPM’s regulations were not intended to provide a former spouse with an interest in the portion of a retirement annuity attributable to service after the end of the marriage, and that OPM’s regulation providing that the cost of providing a survivor annuity shall be deducted from the employee’s annuity unless the divorce decree specifies otherwise is an unconstitutional deprivation of property.

Holdings: The Board dismissed, as barred by res judicata, the appellant’s claim regarding the cost of providing a survivor annuity to his former spouse. The Board dismissed, for lack of jurisdiction, the appellant’s claim concerning the apportionment of his annuity for his post-divorce service, remanded that matter to OPM for further consideration.

1. The appellant’s claim regarding the cost of providing a survivor annuity is barred by res judicata (claim preclusion).

a. The administrative judge erred in applying collateral estoppel because the issue in the present appeal is not identical to that raised in the earlier appeal.

b. Res judicata precludes parties from relitigating issues that were, or could have been, raised in a prior action. Res judicata requires that both actions involve the same “cause of action,” i.e., that they be based on the same “core of operative facts.” As applied to this case, the question is whether the same cause of action is involved in both Board appeals and whether the issues in the present appeal could have been raised in the prior appeal.

c. The specific arguments raised by the appellant in the two appeals differ. His primary argument in the earlier appeal was that OPM regulations prohibited his former spouse from receiving a greater annuity payment than he did. His primary argument in the present appeal is that his former spouse should pay the full cost of providing a survivor annuity. In both cases the appellant’s goal is to increase the annuity he receives (and to decrease that of his former spouse). The Board concluded that the same cause of action is involved in both appeals.

d. The Board rejected the appellant’s contention that his current argument could not reasonably have been raised in the earlier appeal because OPM did not specifically inform him who would be paying the cost of a survivor annuity. One could not reasonably interpret OPM’s 2006 letter to the appellant as an indication that the appellant’s former spouse would pay the full cost of providing a survivor annuity.

2. The Board lacks jurisdiction over the issue of whether the appellant’s former spouse is entitled to a share of his entire annuity, or only to a share of the portion of the annuity earned during the marriage.

a. The Board generally has jurisdiction over an OPM determination on the merits of a matter affecting the rights or interests of an individual under CSRS only after OPM has issued a final decision, and the scope of a Board appeal is limited to those matters addressed in OPM’s reconsideration decision.

b. OPM has not issued a reconsideration decision specifically addressing whether the appellant’s former spouse is entitled to 53% of the entire annuity, or only 53% of the annuity that was earned during the marriage. The Board therefore lacks jurisdiction over that issue, which must be remanded to OPM for determination.

Appellant: Joseph Martinez

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 76

Docket Number: SF-0752-10-0884-I-1

Issuance Date: August 17, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures – Discovery

In a nonprecedential Final Order, the Board affirmed as modified an initial decision that affirmed the appellant’s removal. The Final Order found that the administrative judge properly sustained the charge of Conduct Unbecoming, that the judge properly found that the appellant failed to prove his affirmative defenses of disability discrimination and retaliation for protected EEO activity, and that the appellant’s evidence submitted on review, relating to emails sought in discovery, was not material.

In a concurring opinion, Vice Chairman Wagner wrote to explain her view that the administrative judge abused her discretion regarding discovery matters in dispute. She concluded, however, that this error would not require a remand because “the record evidence of the appellant’s misconduct amply supports the conclusion that the agency removed him based on his misconduct, and thus, any error with regard to discovery relating to his affirmative defenses did not affect his substantive rights.”