U.S. Merit Systems Protection Board 
Case Report for November 17, 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.


Appellant:  Carol A. Moore
Agency:  United States Postal Service
Decision Number:  2011 MSPB 93
Docket Number:  CH-0752-10-0622-I-1
Issuance Date:  November 3, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

Jurisdiction – Constructive Suspension
    The appellant, a Postmaster in Diamond, Ohio, petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  She alleged that a customer was stalking her, and described an incident in which the customer approached her at work without attempting to conduct business, followed her to a retail establishment 15 miles away, moved his car to different parking spaces and was staring at her before driving away.  The appellant did not return to work at the Diamond Post Office after this incident.  She requested that she be assigned to another location because the Diamond Post Office is secluded and she was alone there for a major part of each day, and was in genuine fear for her safety.  The appellant provided medical documentation indicating that she suffered from post traumatic stress disorder.  Without conducting a hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. 

Holdings:  The Board vacated the initial decision and remanded the appeal for a jurisdictional hearing:

1.  An appellant is entitled to a jurisdictional hearing in a constructive suspension appeal based upon intolerable working conditions if the appellant sets forth allegations of fact which, if true, would show that her working conditions were so intolerable that a reasonable person in her position would have felt compelled to absent herself from the workplace.

2.  The appellant has made the requisite factual allegations and is entitled to a jurisdictional hearing on her constructive suspension claim at which she will have the
burden of establishing jurisdiction over her appeal.

Appellant:  Larry Van Prichard
Agency:  Department of Defense
Decision Number:  2011 MSPB 94
Docket Number:  SF-0432-10-0852-I-1
Issuance Date:  November 9, 2011
Appeal Type:  Performance
Action Type:  Removal

Performance-Based Actions
 - Performance Standards – Validity
Collateral Estoppel (Issue Preclusion)

      Both parties petitioned for review of an initial decision that reversed the appellant’s removal for unacceptable performance under 5 U.S.C. chapter 43.  The appellant was an Industrial Security Specialist.  After determining that the appellant’s performance was unacceptable on 3 critical elements in his Performance Plan, the agency placed him on a performance improvement plan (PIP).  At the conclusion of the PIP, the agency determined that his performance remained deficient and removed him on a charge of unacceptable performance.  On appeal to the Board, the administrative judge recognized that, under the agency’s 5-tiered performance appraisal system, the appellant could reach a marginally successful level of performance without falling to the level (unacceptable) that would support removal under 5 U.S.C. chapter 43.  The judge concluded that the agency failed to prove this its performance standards were valid, finding that the Performance Plan provided definitions for each of the five ratings, but did not describe with any clarity how an employee could attain a particular rating in any given element aside from the fully successful level.  Accordingly, the judge found that the agency failed to distinguish between marginally successful and unacceptable performance, and that the marginally successful standard was an invalid negative standard, as it described only what the appellant should not do and not what the appellant was required to do. 

Holdings:  The Board denied both parties’ petitions and affirmed the initial decision:
1.  The appellant is not barred by collateral estoppel from challenging the validity of his performance standards. 
a.  The agency asserted that the issue of the validity of its performance standards in this appeal is identical to the issue in a previous decision that upheld their validity.

b.  It is far from clear that the performance standards are identical in the two cases.  There is nothing in the earlier decision that indicates whether the performance plan in that case contained the same negative definition of the marginal level of performance on which the judge in this case based her decision that the standards are invalid.

c.  The Board could not conclude that the appellant’s interests were fully represented in the earlier action. 
2.  The agency failed to prove that its marginal performance standard is valid or that it otherwise advised the appellant of what he needed to do to reach the marginal level of performance in order to retain his position.
a.  The Board agreed with the administrative judge that the marginal performance is an invalid backwards standard because, although it is written at the “minimally successful” level, it fails to inform the appellant of what is necessary to obtain an acceptable level of performance, and instead describes what he should not do.
b.  The agency has failed to point to anything in the record that cures this deficiency by advising the appellant of what is necessary to obtain an acceptable level of performance, i.e., a marginal level of performance rather than a fully successful level.
3.  The appellant failed to identify any error by the administrative judge in finding that he failed to prove his claims of harmful procedural error and prohibited personnel practices. 


Petitioner:  Marisa E. Diggs
Respondent:  Department of Housing & Urban Development
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2010-3193
Issuance Date:  November 1, 2011

 - Retaliation for Protected EEO Activity
Jurisdiction – Mixed Cases

     The issue in this case was whether the court could exercise jurisdiction to review Ms. Diggs’ removal from employment on misconduct charges in light of her allegation that she was removed in retaliation for protected equal employment opportunity (EEO) activity.  If such retaliation constitutes unlawful discrimination under section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, the court could not hear the appeal because its jurisdiction does not include mixed cases under 5 U.S.C. 7702.

Holdings:  The court held that retaliation for protected EEO activity constitutes discrimination under section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16.  The court therefore dismissed the case for lack of jurisdiction. 

Nonprecedential decisions:

Berman v. Department of the Interior, No. 2010-3052 (Nov. 7, 2011) (MSPB Docket No. DC-0752-09-0294-I-1) (vacating and remanding the Board's decision, which denied the appellant's request for reconsideration of a decision affirming his removal from federal employment)

Himchak v. Merit Systems Protection Board, No. 2011-3102 (Nov. 10, 2011) (MSPB Docket No. DC-1221-10-0311-W-1) (affirming the Board's decision dismissing an IRA appeal for lack of jurisdiction)

Round v. Social Security Administration, No. 2011-3093 (Nov. 10, 2011) (MSPB Docket No. CB-7521-03-0012-M-1) (affirming the Board's decision, which found good cause to discipline the appellant for insubordination and imposing a 5-day suspension without pay)

Rosimo v. Office of Personnel Management, No. 2011-3090 (Nov. 10, 2011) (MSPB Docket No. SF-0831-10-0613-I-1) (affirming the Board's decision, which determined that the appellant was not eligible to make a deposit into the Civil Service Retirement System)

Schoenrogge v. Department of Justice, No. 2011- 3126 & 3143 (Nov. 14, 2011) (MSPB Docket Nos. DA-3330-09-0467-C-1, DA-1221-10-0611-W-1) (affirming two Board decisions, which denied his challenges to an adverse hiring decision)

Custodio v. Office of Personnel Management, No. 2011-3121 (Nov. 14, 2011) (MSPB Docket No. SF-0831-09-0810-B-1) (affirming the Board's decision, which dismissed the appellant's claim for disability retirement benefits under the Civil Service Retirement System)

Branch-Williams v. Merit Systems Protection Board, No. 2011-3112 (Nov. 14, 2011) (MSPB Docket No. PH-0752-10-0589-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction the appellant's claim of wrongful termination of employment)

Punongbayan v. Office of Personnel Management, No. 2011-3136 (Nov. 15, 2011) (MSPB Docket Nos. SF-0831-10-0634-I-1 and SF-0831-10-0635-I-1) (affirming the Board's decision, which affirmed a determination by OPM that the appellant was entitled to a retirement annuity under the Civil Service Retirement System and was not entitled to make a credit deposit into that system based on his service with the Department of the Navy)

Cox v. Office of Personnel Management, No. 2011-3147 (Nov. 15, 2011) (MSPB Docket No. CH-831E-11-0319-I-1) (affirming the Board's decision, which affirmed OPM's denial of an application for disability retirement on the ground that it was untimely filed)

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