U.S. Merit Systems Protection Board 
Case Report for October 7, 2011  

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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 Southerland
Agency:  Department of Defense
Decision Number:  2011 MSPB 92
Docket Numbers:  SF-0752-09-0864-R-1, SF-0752-10-0111-R-1
Issuance Date:  October 5, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Removal/Suspension - More than 14 Days

Disability Discrimination – Regarded as Disabled


    The Board reopened and vacated the decision issued in this case on August 25, 2011, and substituted a new decision.  The primary reason for issuing the substitute Opinion and Order was to clarify the proper analysis of the appellant’s claim of disability discrimination on remand in light of recently issued regulations by the Equal Employment Opportunity Commission that implement the ADA Amendments Act of 2008 (ADAAA).  The Board’s other holdings—affirming the initial decision with respect to the charges of absence without leave and failure to request leave in accordance with established procedures, vacating the initial decision with respect to the charges of insubordination and the findings of disability discrimination and remanding those to the regional office for further adjudication—were unaffected.  Also unaffected was the Board’s holding that, to prove disability discrimination under the ADAAA, an appellant must prove by preponderant evidence that the agency would not have taken the adverse action “but for” his actual or perceived disability.  (Link to summary of August 25 decision, 2011 MSPB 78)

Holdings:  In remanding the disability discrimination claim to the regional office for further adjudication, the Board stated that:


1.  The administrative judge did not have the benefit of amended regulations implementing the ADAAA that became effective May 24, 2011, 76 Fed. Reg. 16,978


2.  In relevant part, the ADAAA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities” or “[b]eing regarded as having such an impairment.”  With respect to the “regarded as having such an impairment” provision, both the ADAAA and the amended regulations explain that “[t]his means that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that it not both ‘transitory and minor.’” 


3.  The amended regulations, 29 C.F.R. 1630.2(g)(3) provide that, “[w]here an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, it is generally unnecessary to proceed under the ‘actual disability’ or ‘record of’ prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.  In these cases, the evaluation of coverage can be made solely under the ‘regard as’ prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.”


4.  Here, the appellant has not asserted that the agency failed to accommodate him.  Rather, he has asserted that the agency removed him on the basis of his impairment.  Therefore, the judge’s analysis of the appellant’s discrimination claim should have focused on whether he meets the “regarded as” definition set forth in 29 C.F.R. 1630.2(g)(1)(iii) and as further explained in 1630.2(l). 



Appellant:  Mary C. Raco
Agency:  Social Security Administration
Decision Number:  2011 MSPB 87
Docket Number:  PH-0752-10-0543-I-1
Issuance Date:  September 29, 2011
Appeal Type:  Adverse Action by Agency

Adverse Action Charges – Absence-Related

Nexus
Penalty

    Both parties petitioned for review of an initial decision that mitigated the appellant’s removal to a 30-day suspension.  The agency removed the appellant from her position of Claims Examiner based on a charge of conduct unbecoming a federal employee.  It based its decision on 22 discrepancies over the course of a 1-month period between the time that she recorded on her credit hours forms and the time that she actually departed, alleging that the appellant departed work prior to the times she claimed on her credit hour forms.  Of the 22 discrepancies, 19 involved increments of time less than 5 minutes; the other 3 discrepancies ranged from 7 to 34 minutes.  The administrative judge sustained the charge based on the appellant’s departure on the 3 dates when the discrepancy exceeded 5 minutes, but did not sustain the other 19 specifications.  The judge further found that the agency did not establish nexus between the appellant’s misconduct and the efficiency of the service because it adduced no evidence that the appellant’s conduct adversely affected her performance or the agency’s mission.  Finally, the judge found that the penalty exceeded the bounds of reasonableness, and mitigated the penalty to a 30-day suspension. 

Holdings:  The Board vacated the initial decision’s findings regarding the charge and nexus, affirmed as modified the findings regarding the penalty, and mitigated the penalty to a 14-day suspension:

1.  The agency proved all 22 discrepancies supporting the charge of conduct unbecoming.  The agency did not, however, prove that the appellant intentionally falsified her time.


2.  The agency demonstrated nexus between the appellant’s conduct and the efficiency of the service by demonstrating that the appellant’s conduct affected management’s trust and confidence in her job performance.


3.  The agency failed to properly weigh the Douglas factors and imposed a penalty that exceeded the bounds of reasonableness.  After reviewing the applicable factors, the Board determined that a 14-day suspension was the maximum reasonable penalty.



Appellant:  John A. Somuk
Agency:  Department of the Navy
Decision Number:  20011 MSPB 89
Docket Number:  CH-0752-10-0351-I-1
Issuance Date:  September 30, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges – Absence-Related
Family and Medical Leave
Board Procedures – Notice of Material Issues

    The agency petitioned for review of an initial decision that mitigated the appellant’s removal penalty to a 30-day suspension.  The agency removed the appellant from his position as an Industrial Hygienist based on failure to follow leave procedures, absence without leave (AWOL), and inattention to duty.  With respect to the first charge, the agency’s proposal notice indicated that, although a supervisor approved the appellant’s request for leave under the Family and Medical Leave Act (FMLA), that did not negate the fact that the appellant “repeatedly failed to follow proper leave procedures which resulted in an unnecessary burden on management and your coworkers.”  The administrative judge found that the agency proved its AWOL and inattention to duty charges, but did not prove all of its AWOL specifications.  The judge found that the agency did not prove its charge of failure to follow proper leave procedures because the agency approved the appellant’s request for leave under the FMLA for the period in question.  Finally, the judge mitigated the removal to a 30-day suspension in light of the agency’s failure to prove one charge, its failure to prove all of the AWOL specifications, and several Douglas factors.

Holdings:  The Board granted the agency’s petition for review, vacated the initial decision’s findings regarding the charge of failure to follow proper leave procedures and the reasonableness of the penalty, and remanded the case to the regional office for further adjudication:

1.  The Board has held that, even though an agency eventually approved a request for leave covering the period of a charge of failing to request leave according to establish procedures, non-Postal Service agencies should be able to discipline employees for such behavior.  The Board noted that such action will encourage agencies to grant compelling leave requests even though proper leave-requesting procedures were not followed, while allowing agencies to hold employees accountable for their failure to follow such leave-requesting procedures. 


2.  The mere fact that the agency approved leave under the FMLA for a period of time during which the agency also charged the appellant with failure to follow proper leave procedures does not mean that the charge cannot be sustained. 


3.  The question is whether the agency interfered with the appellant’s rights under the FMLA in bringing this charge.  This question cannot be resolved under the current record because the administrative judge did not place the parties on notice of the material issues of fact and law in this regard.  Accordingly, the case must be remanded for further adjudication. 



Appellant:  Misty J. West
Agency:  Department of the Air Force
Decision Number:  2011 MSPB 88
Docket Number:  AT-4324-10-0736-I-1
Issuance Date:  September 30, 2011
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA – Reemployment Following Uniformed Service

    The appellant petitioned for review of an initial decision that denied her request for corrective action under USERRA.  At issue was whether the agency properly restored the appellant to duty following 3 years of active military duty when it returned her to the GS-11 IT Specialist position she held when she began her military duty.  The appellant contended that she should have been reemployed as a GS-12, arguing that the agency would have promoted her to that level had she not left on active duty.  She also argued that the agency realigned her position such that she was essentially made to take a step backward upon her return from active duty.  Applying the “escalator principle,” the administrative judge found that promotions from GS-11 to GS-12 were not a “perquisite of seniority” but instead depended on management discretion in filling a position, and that reemployment as a GS-11 was therefore appropriate.

Holdings:  The Board denied the appellant’s petition for review:

1.  Under 38 U.S.C. 4313(a)(2), an agency may comply with its reemployment duties by reemploying the employee either in the position the employee would have held had she not left for uniformed service, or a position of like seniority, status, and pay for which she is qualified.


2.  Under the “escalator principle” that the Board has adopted, an employee returning from uniformed service should be reemployed at a higher grade than she held when she left civilian employment if advancement to the higher grade was a perquisite of seniority, a reward for length of service, or a benefit that would have accrued through the mere passage of time.  Here, the administrative judge correctly found that promotion to the GS-12 level did not meet any of these criteria, and the agency satisfied its legal obligation by placing her in the position she would have occupied (GS-11) had she not left for uniformed service.


3.  The appellant’s argument that the GS-11 position does not carry the same status as it did before she left for active duty does not change the correct result.  Evidence that a position is not of like seniority, status and pay may, in an appropriate case, be relevant to a determination of whether a position is the one the employee would have held but for her uniformed service.  Even assuming that her former job has changed in the manner the appellant alleges, it is the job she would have held absent her uniformed service. 



Appellant:  Nathan Gjovik
Agency:  Department of Health and Human Services
Decision Number:  2011 MSPB 90
Docket Number:  DE-4324-10-0548-I-1
Issuance Date:  September 30, 2011
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA – Applicability to Commissioned Corps of the Public Health Service

    At issue in this interlocutory appeal is whether a career member of the Commissioned Corps of the Public Health Service (PHS) may bring a USERRA discrimination claim based on his treatment by the PHS while serving as a career uniformed service member of the Corps.  The appellant served in the Commissioned Corps of the PHS for his entire federal career from 1988 to 2010.  He alleged that he was denied two promotions, reassigned to an undesirable location, subjected to a hostile work environment, and suffered a constructive removal (involuntary retirement) because of his membership in a uniformed service. 

Holdings:  The Board resolved this issue in the affirmative and returned the case to the regional office for further adjudication:

1.  Under 38 U.S.C. 4311(a), an employer may not deny a benefit of employment to a person who is a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service.  As a member of the Commissioned Corps of the Public Health Service, the appellant was a member of the uniformed service. 


2.  Although there may be policy reasons for not covering those who are still serving when the action is taken by the agency employing the appellant in his uniformed service capacity, the statute cannot reasonably be construed to contain such an exception.


    In a concurring opinion, Member Rose wrote that the same policy considerations underlying Congress’s decision to exclude Board jurisdiction over USERRA appeals brought by military officers against their military employers also apply to Commissioned Corps officers, but that Congress left a loophole in the statute that excludes military officers, but not Commissioned Corps officers, from USERRA coverage.  She stated that the Board must apply the statutes as enacted by Congress, but expressed the hope that an apparent mistake in the statute will be brought to Congress’s attention so that it can be corrected.


Appellant:  David J. Azolas
Agency:  United States Postal Service
Decision Number:  2011 MSPB 85
Docket Number:  SF-0752-10-1007-I-1
Issuance Date:  September 29, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction – Postal Supervisor

    The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.  Although his official position of record was City Carrier, the appellant served as an acting, or 204B, supervisor for 18 years before he was promoted to an EAS-17 Supervisor position.  Less than 6 months later, the agency removed him for alleged misconduct.  The jurisdictional issue was whether the appellant’s duties as a 204B supervisor should count towards completion of the 1-year current continuous service requirement of 39 U.S.C. 1005(a)(4)(A)(ii). 
   
In a nonprecedential Remand Order, a majority of the Board ruled that the appellant’s 18 years of service in an acting capacity does not constitute a detail; rather, it is akin to a temporary appointment, which may be counted toward the completion of the required 1 year of current continuous service.

    In a dissenting opinion, Member Rose expressed her view that the initial decision was correctly decided according to applicable law and precedent, and that a nonprecedential decision should not be used to change the law. 


Appellant:  Robert Pace
Agency:  Office of Personnel Management
Decision Number:  2011 MSPB 86
Docket Number:  NY-831E-10-0017-X-1
Issuance Date:  September 29, 2011
Appeal Type:  CSRA - Employee Filed Disability Retirement
Case Type:  Compliance Referral

Compliance

    This case was before the Board on the appellant’s petition to enforce a final decision that ordered OPM to grant the appellant’s application for disability retirement and provide him with benefits. 

Holdings:  The Board found OPM to be in partial noncompliance with the Board’s final order.  Although OPM was now providing the appellant a disability retirement annuity, the Board found that it was not in compliance regarding funds withheld from that annuity for life insurance premiums, and ordered OPM to refund the money withheld.  In so finding, the Board found that OPM had improperly bypassed the appellant's representative on numerous occasions and ignored the representative's letters and phone calls, despite the fact that the Board had found the appellant to be mentally incompetent.

COURT DECISIONS

Petitioner:  Shirley J. Bledsoe
Respondent:  Merit Systems Protection Board
Intervenor:  United States Postal Service
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3054
Issuance Date:  October 3, 2011

Jurisdiction – Restoration to Duty

    Bledsoe appealed from a Board decision dismissing her restoration appeal for lack of jurisdiction.  Bledsoe is an Automation Mail Processing Clerk was suffered a work-related injury in 2005.  Following her partial recovery, the agency provided her with a modified light duty assignment in April 2008.  In June 2010, pursuant to its National Reassessment Process, the agency informed Bledsoe that work within her medical restrictions was no longer available within her local commuting area.  She filed an appeal with the Board.  The administrative judge issued an acknowledgment order informing Bledsoe that, as an employee who had partially recovered from a work-related injury, she had the burden to establish jurisdiction, which required her to provide an evidentiary basis to show that the agency arbitrarily and capriciously denied her restoration.  Bledsoe did not respond to this order and the agency moved to dismiss the appeal for lack of jurisdiction.  The administrative judge then conducted a status conference with the parties.  In an order summarizing the conference, the judge reiterated that, to establish jurisdiction, Bledsoe ultimately had to prove by preponderant evidence that the agency arbitrarily and capriciously denied her request for restoration.  The judge further explained that this required Bledsoe to “identify a vacant position, or positions,” within 50 miles of her workplace that she could perform within her medical restrictions.  The judge stated that a hearing would be held “only if the appellant establishes a nonfrivolous allegation of jurisdiction over her restoration appeal.”  Bledsoe responded to the order on the deadline for filing, but did not identify any vacant position.  About two weeks later, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction.  Three days after the issuance of the initial decision, Bledsoe filed an “Amended Jurisdictional Order” making reference to “three (3) Door Monitor positions which the [Postal Service] declared ‘Necessary Work.’”  She did not, however, filed a petition for review with the full Board.  She did file a timely appeal with the court after the initial decision became the Board’s final decision. 

Holdings:  A majority of the court, Judge Newman dissenting, affirmed the Board’s decision dismissing the appeal for lack of jurisdiction:

1.  The Board’s jurisdiction is limited to those matters specifically entrusted to it by statute or regulation.


2.  The Board’s regulation requires an appellant to prove jurisdiction by a preponderance of the evidence, and the court has upheld the validity of this regulation. 


3.  In Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (en banc), the court distinguished numerous cases regarding Article III jurisdiction as inapposite in rejecting the view that Board “jurisdiction attaches when an employee makes non-frivolous claims.”  Establishing jurisdiction at the Board is a two-step process.  First, an appellant must meet the threshold requirement of making non-frivolous allegations of fact which, if true, would be sufficient to establish the Board’s jurisdiction.  If an only if the appellant makes such allegations is she entitled to a jurisdictional hearing at which she must prove jurisdiction by preponderant evidence.  The Board may only reach the merits of an appeal if the appellant has proven jurisdiction by preponderant evidence. 


4.  To establish jurisdiction under 5 C.F.R. 353.304(c), an appellant must prove by preponderant evidence:  (1) absence due to a compensable injury; (2) sufficient recovery from the injury to return to duty on a part time basis or in a less physically demanding position; (3) agency denial of a request for restoration; and (4) denial of restoration rendered arbitrary and capricious by agency failure to perform its obligations under 5 C.F.R. 353.301(d) (to make “every effort to restore” them “in the local commuting area” and “according to the circumstances in each case.” 


5.  In the present case, the Board correctly found that Bledsoe carried her burden as to the first three elements, but not as to the fourth.  Her only factual averment potentially bearing on that argument is her pleading, filed after the close of the record and after the administrative judge issued an initial decision dismissing the appeal, that three door monitor positions were “Necessary Work.”  Bledsoe made no showing that this evidence was not readily available before the record closed.


6.  Even if Bledsoe’s post initial decision pleading were viewed as a petition for review, it would not have entitled Bledsoe to reopen her appeal because she did not establish that new and material evidence is available that, despite due diligence, was not available when the record closed. 


7.  The court found no error in the Board’s conclusion that it lacked jurisdiction.  “The Board applied the correct legal standard in determining its own jurisdiction, and its factual determinations were supported by substantial evidence.  Bledsoe did not identify any vacant position which was available within her commuting area and which she was able to perform.  Nor did she in any other way make a non-frivolous allegations that the Postal Service acted arbitrarily and capriciously in not restoring her, even after the Board specifically ordered Bledsoe to make such a showing and afforded her the opportunity to do so.”


    In her dissenting opinion, Judge Newman stated that the issue is not whether the Board had authority to adjudicate Bledsoe’s claim, but whether her claim was properly denied on the merits.  She stated that the dismissal of the claim as outside the Board’s jurisdiction “obscures the issue, ” and that the Board “undoubtedly has jurisdiction to decide whether to sustain the agency’s denial of restoration, for the Board is assigned this jurisdiction by statute.”  Judge Newman also expressed the view that Bledsoe’s evidence about door monitor positions was properly before the Board, as it was submitted 32 days before the administrative judge’s initial decision became the Board’s final decision. 


Petitioner:  Wilfredo Romero
Respondent:  Department of Defense
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2010-3137
Issuance Date:  October 3, 2011

Security Clearances
Harmful Error

    This case was before the court for the second time.  In its previous decision, 527 F.3d 1324 (Fed. Cir. 2008), the court vacated the Board’s decision, which had affirmed Romero’s removal as an auditor for failing to maintain his Secret level security clearance, and remanded the case to the Board to determine whether Romero could show harmful error resulting from the agency’s failure to follow its own procedures.  On remand, the Board again affirmed the removal, finding that Romero failed to establish harmful error in the application of the agency’s procedures. 

    There were two different security clearances involved in this case.  The appellant had held a Secret security clearance for several years.  In 2004, he applied for a different kind of clearance, access to Sensitive Compartmented Information (SCI).  Although the eligibility standards for SCI access and Secret clearances are not identical, there are common guidelines and procedures that apply to both.  One of the differences is that, for SCI access, marriage to a non-citizen of the United States is disqualifying under the “foreign influence” factor.  For Secret security clearances, marriage to a non-citizen may be but is not necessarily a disqualifying factor.  This was relevant to Romero’s situation, as he had married a Honduran national who was an employee of the Honduran Embassy.  As an organizational matter, SCI access and Secret clearances are handled by different entities.  The Washington Headquarters Service Central Adjudication Facility (WHS-CAF) generally handles Secret security clearances, while the Defense Intelligence Agency Central Adjudication Facility (DIA-CAF) handles access to SCI.  Final decisions are made by the applicable CAF’s Security Appeals Board (SAB).  In this case, a final determination was made by the DIA-SAB, and the WHS-CAF accepted the DIA-SAB’s decision denying Romero’s eligibility for access to SCI, and in addition revoked Romero’s Secret security clearance.  Because that clearance was a condition of his employment, he was removed. 

    Romero contended that the DIA-SAB lacked the authority to revoke the Secret security clearance because it was the WHS-CAF that had issued this clearance, and that the DIA-SAB had not actually revoked the Secret clearance, leaving no revocation for the WHS-SAB to reciprocally accept.  The court stated that the central issues before it were twofold:  (1) whether the DIA-SAB made a final determination regarding Romero’s Secret security clearance; and (2) whether the DIA rather than the WHS had the authority to revoke Romero’s Secret clearance. 

Holdings:  The court found that the MSPB’s findings that DIA-SAB’s final decision did revoke Romero’s Secret clearance and that the DIA-CAF was authorized to revoke that clearance were correct as a matter of law and supported by substantial evidence.  The court therefore concluded that the agency complied with its internal procedures in revoking Romero’s Secret security clearance, and affirmed the Board’s decision sustaining his removal. 
 


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