U.S. Merit Systems Protection Board 
Case Report for December 2, 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:  Sigiefredo Sanchez
Agency:  Department of Energy
Decision Number:  2011 MSPB 95
Docket Numbers:  DE-0752-10-0137-I-1; DE-0752-09-0095-I-3
Issuance Date:  November 22, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Indefinite Suspension
Disability Discrimination - Reasonable Accommodation


     The appellant petitioned for review of an initial decision that sustained the agency's actions indefinitely suspending and removing him from his position as an Emergency Operations Specialist.  His duties involved the safe secure movement of nuclear materials and required certification under the agency's Human Reliability Program (HRP).  After his supervisors expressed concern about mistakes the appellant made during his oral reading of a morning shift brief, they sent him for evaluation by HRP psychologists, who diagnosed him with a disorder that "impacts his ability to read, express himself accurately in writing and understand material that is presented in an auditory fashion."  The agency then revoked the appellant's HRP certification on the basis that he had a psychological or physical disorder that impaired his performance of assigned duties, and suspended him pending final resolution of his HRP certification.  After the agency issued a final decision determining that the appellant would not be recertified into an HRP position, it proposed and effected his removal for failure to maintain a condition of employment (HRP certification).  On appeal to the Board, the appellant claimed, among other things, that the agency committed disability discrimination when it failed to provide him with the reasonable accommodation of reassignment.  The administrative judge sustained both the indefinite suspension and the removal action.  Regarding the disability discrimination claim, the judge found that the appellant established that he was disabled, but not that he was a qualified individual with a disability because he did not show that he was able to perform the essential functions of his position with or without accommodation.

Holdings:  The Board granted the appellant's petition for review and remanded the appeals for further adjudication:

1.  The record is insufficient to determine whether the administrative judge properly sustained the indefinite suspension.

a.  In order to establish that an indefinite suspension is reasonable, the agency must show that a lesser penalty such as reassignment would be ineffective under the circumstances.  

b.  The appellant identified at least one position for which he was allegedly qualified and that did not require HRP certification.  In addition, the agency conceded in a related EEO case that it had or continues to have positions similarly situated to the appellant's position available in the same area that do not require the person to have an HRP certification.

c.  Because the record indicates that positions may have been available that did not require HRP certification and for which the appellant may have been qualified, a remand is necessary to determine whether reassignment, rather than indefinite suspension, would have been effective under the circumstances of this case.

2.  The appellant was entitled to be considered for reassignment as a reasonable accommodation.

a.  Under the Rehabilitation Act, the appellant was entitled to be considered for reassignment to a vacant position for which he was otherwise qualified as a form of reasonable accommodation.

b.  Although the administrative judge correctly noted that reasonable accommodation may include reassignment to a vacant position, her discussion of whether the appellant was a qualified individual with a disability omitted any discussion of the appellant's qualifications for any positions other than the one from which the agency removed him.

c.  
Remand is necessary, considering the evidence that the agency may have had appropriate positions to which it could have reassigned the appellant as a reasonable accommodation.  



Appellant:  Special Counsel ex rel. Paul T. Hardy
Agency:  Department of Health and Human Services
Decision Number:  2011 MSPB 96
Docket Numbers:  CB-1208-12-0002-U-2; CB-1208-12-0002-U-3
Issuance Date:  November 23, 2011
Appeal Type:  Request for Stay (OSC Filed)

Whistleblower Protection Act
 - Special Counsel Stays  
 - Jurisdiction

     Hardy was a commissioned officer in the U.S. Public Health Service Corps (USPHSC) who was hired in April 2007 to work in the agency's Food & Drug Administration as a civilian Regulatory Review Officer.  The Office of Special Counsel (OSC) had previously sought a temporary stay of Mr. Hardy's performance evaluation, which OSC claimed was taken in reprisal for Hardy's whistleblowing disclosures.  That temporary stay went into effect by operation of law.  The agency moved to terminate the stay on the ground that the Board lacks jurisdiction over claims of reprisal for whistleblowing brought by individuals who do not meet the statutory definition of "employee."  OSC sought an extension of the stay.
     
Holdings:  The Board held that, because it lacks jurisdiction over claims of reprisal for whistleblowing brought by individuals who are in the commissioned corps of the Public Health Service, it was compelled to terminate the stay:

1.  Section 1221(a) provides a right to seek corrective action on behalf of "an employee, former employee, or applicant for employment" against whom a personnel action is taken, or proposed to be taken, as a result of the prohibited personnel practice of reprisal for protected whistleblowing.

2.  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 in relevant part as an officer and an individual who is appointed in the civil service by one of the types of individuals enumerated in the statute acting in their official capacity.  The "civil service" is defined in 5 U.S.C. 2101(1) as "all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services."  The "uniformed services" is defined as the "armed forces, the commissioned corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration."

3.  As a commissioned officer in the USPHSC at the time of the alleged retaliatory action, Hardy was a member of the uniformed services and thus explicitly excluded from the definition of "employee" in section 2105(a)(1).

4.  The Board rejected OSC's argument that it should apply the "joint employer" doctrine adopted by the NLRB and the EEOC to conclude that Hardy was an employee of both the USPHSC and the Department of Health and Human Services for purposes of the Whistleblower Protection Act.  Because the
NLRB and the EEOC were dealing with statutes that do not provide a specific definition of "employee," they resorted to common law doctrines.  In contrast, the issue in the instant case is whether Hardy is an "employee" as clearly defined under Title 5.

5.  The Board rejected the argument that the question of whether Hardy is an "employee" entitled to protection under the WPA is a merits question and is not jurisdictional.  Both the Board and the Federal Circuit have ruled that the Board lacks jurisdiction over individual right of action appeals filed by individuals who are not "employees" under 
5 U.S.C. 2105.  



Appellant:  Janice R. Smets
Agency:  Department of the Navy
Decision Number:  2011 MSPB 97
Docket Number:  SF-0432-10-0699-I-1
Issuance Date:  November 23, 2011
Appeal Type:  Performance
Action Type:  Removal

Board Procedures - Sanctions  

     The appellant petitioned for review of initial decisions that affirmed the agency's removal action and denied the appellant's requestion for corrective action in an individual right of action appeal.  On review, the appellant alleges that the administrative judge erred when she sanctioned the appellant on the day of the hearing "to testify on her own behalf as an approved hearing witness and . . . to present affirmative defense(s) of prehearing and supplmental prehearing submissions of record."

     On April 15, 2011, 11 days before the scheduled hearing, the administrative issued an order noting that the appellant and her representative did not appear for the appellant's scheduled deposition, indicated she could not attend the rescheduled deposition, and that the agency's representative had noticed the appellant's deposition for April 18.  The judge ordered the appellant to appear for that deposition and notified her that failure to appear "may result in sanctions including barring the appellant to present testimony at the hearing."  The appellant appeared for deposition without her representative on April 18 and asked that her representative be "teleconferenced in."  While the agency was exploring options for including the appellant's representative remotely, the appellant announced that she needed to go to the doctor and left.  The next day, the agency filed a pleading asking for sanctions, including that the appellant be prohibited from providing testimony at the hearing.  The agency noted that it had attempted to confer with the appellant's representative before filing the motion, but had been unsuccessful.  

     At the scheduled hearing on April 26, the appellant's representative withdrew  the appellant's request for a hearing and requested a decision based on the written record.  The agency then raised its pending motion for sanctions.  The judge approved the agency's request, holding that the appellant "can have a decision based on the record" but she "will not be able to provide any declaration or affidavit in respect to any further submission."  The judge noted that the appellant raised an affirmative defense of disability discrimination during the prehearing conference, but when asked to elaborate the basis for this defense, the appellant's representative could not even articulate what the disability was.  Considering that the appellant had not later provided such information, the administrative judge stated that the appellant "may not supplement the record in any way, shape, or form dealing with any allegation regarding discrimination based on disability."  The judge also admonished the appellant's representative for inappropriate and unprofessional behavior, in that the representative came to the scheduled hearing knowing that he was going to withdraw the request for a hearing and request a decision based on the written record.  

Holdings:  The Board affirmed the initial decision as modified, still affirming the removal action and denying the request for corrective action:

1.  An administrative judge may impose sanctions upon a party as necessary to serve the ends of justice.  When a party fails to comply with an order, the judge may "[p]rohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information."  The imposition of sanctions is a matter within the judge's sound discretion.

2.  The appellant has not shown that the administrative judge abused her discretion when she precluded the appellant from submitting additional evidence regarding her claim of disability discrimination after the appellant did not comply with the judge's order to appear for a deposition.  

3.  To the extent that the appellant claims that the judge precluded her from testifying, the appellant withdrew her request for a hearing and requested a decision based on the written record before the judge ruled on the motion for sanctions.

4.  The Board rejected the appellant's claim that the judge erred in imposing the sanction because she did not first provide written notice of an intent to impose a sanction and an opportunity to respond.  There is no Board regulation or other authority supporting such a requirement.

5.  The Board found that the judge's comments regarding the unprofessional and disrespectful actions by the appellant's representative did not show bias, but were reasonable, appropriate responses to the actions of the appellant's representative and within the judge's authority to control the proceedings.



Petitioner:  Special Counsel
Respondents:  Jon Greiner and Ogden City, Utah
Decision Number:  2011 MSPB 98
Docket Number:  CB-1216-08-0025-T-1
Issuance Date:  November 30, 2011
Appeal Type:  Disciplinary Action - Hatch Act

Special Counsel Actions - Hatch Act 

     The respondents petitioned for review of an initial decision in which the administrative law judge found that respondent Greiner committed the charged violation of the Hatch Act and that the violation warrants his removal.  The Special Counsel charged that Greiner violated the Hatch Act by running as a candidate in a partisan political election while employed in a local government executive agency in connection with programs that are financed, in whole or in part, by loans or grants made by the United States Department of Justice.  Greiner was employed as the Chief of Police for Ogden City Police Department (OPD) since at least 1995, and was a Republican candidate for election to the Utah State Senate between March 17, 2006 and November 2006.  During the period of Greiner's candidacy, the OPD received funding via six Department of Justice federal grants.  The Special Counsel alleged that Greiner was aware that his candidacy violated the Hatch Act, both from various grant-related documents that he signed and from the Special Counsel's warnings to him during his candidacy to either withdraw from the election or resign from employment with the OPD.  Despite these warnings, Greiner did neither.  He proceeded with his candidacy, won the general election, and was sworn into office.

     Following a hearing, the administrative law judge issued an initial decision finding that Greiner committed the charged violation and that the violation warrants his removal.  She found that the respondent's connection to the grants was not de minimis.  She also found that the petitioner's complaint was not time barred by the applicable statute of limitations.

 
Holdings:  A majority of the Board, Vice Chairman Wagner dissenting, affirmed the initial decision and ordered respondent Ogden City to remove Greiner from his employment with the Ogden City Police Department:

1.  The administrative law judge did not abuse her discretion in denying Greiner's request for witnesses to testify at the hearing, or denying his motion to compel evidence regarding advisory opinions and settlements in similar cases.

2.  The judge correctly found that the Special Counsel's complaint was not time barred.

3.  Following an extensive analysis of the evidence and applicable case law and other authorities, the Board agreed with the administrative law judge that Greiner's connection with federal funding was not de minimis, and that he is therefore a "State or local officer or employee" with the meaning of the Hatch Act such that the Act's prohibition on candidacy to elective office applies to him.

4.  After examining the relevant factors, the Board agreed with the administrative law judge that removal in this case is warranted.

     In her dissenting opinion, Vice Chairman Wagner explained why she believed that Greiner's involvement with the Department of Justice grants was de minimis.  She also found that, even if Greiner had violated the Hatch Act, she would find removal unwarranted in light of the respondents' good faith efforts to bring him into compliance.




Appellant:  Mark Landers
Agency:  Department of the Air Force
Decision Number:  2011 MSPB 99
Docket Number:  CH-4324-11-0500-I-1
Issuance Date:  November 30, 2011
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Veterans' Rights - USERRA
 - Waiver of Rights in Settlement Agreement

     The appellant petitioned for review of an initial decision that dismissed his request for corrective action in this USERRA appeal on the basis that the appellant had waived his rights in a settlement agreement.  The appellant asserted that the agency improperly charged him with military leave on nonwork days between 1980 and 2001.  In response, the agency filed a motion to dismiss the appeal, arguing that, in a 2006 settlement agreement between the appellant and the agency, he had released any and all claims he had with the agency as of that time.  In reply, the appellant asserted that the claims and issues involved in the settlement agreement were unrelated to those in the current USERRA appeal and that, regardless, he did not have the ability to waive his substantive USERRA rights under 38 U.S.C. 4302(b), which provides:  "This chapter supersedes any State law . . . contract, agreement, policy, plan, practice or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter . . . ."  In dismissing the appeal, the administrative judge found that the legislative history of section 4302 indicated that Congress only sought to prohibit the limiting of USERRA's substantive rights by union contracts and collective bargaining agreements.  The judge found that the appellant's waiver of the right to appeal from an alleged violation of USERRA was enforceable.  

Holdings:  The Board affirmed the initial decision as modified:

1.  The Board will consider a settlement agreement reached outside of a Board proceeding to determine its effect on an action before the Board and any waiver of Board appeal rights.  

2.  The extent to which and the means by which an appellant may waive his rights under USERRA has not been extensively analyzed or considered by the Board or the Federal Circuit.  The Board found recent treatment of the question by the Fifth and Sixth Circuits persuasive.  In particular, in Wysocki v. International Business Machine Corp., 607 F.3d 1102 (6th Cir. 2010), the court found that the contractual agreement, which is similar in many ways to the settlement agreement in this appeal, "squarely implicates 4302" because it effectively eliminated Garrett's substantive rights under USERRA.  Nevertheless, the court found that the legislative history of section 4302 "clearly envisioned that veterans would be able to waive their inidividual USERRA rights by clear and unambiguous action."

3.  While the settlement agreement in this case did not explicitly state that it covered claims under USERRA or claims based on "veteran status," the Board concluded that the agreement clearly indicated that the appellant was waiving "all claims" arising under any federal law, and that the appellant validly waived his right to request corrective action for any alleged violation of USERRA by the agency.



COURT DECISIONS

The Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Armstrong v. Department of the Navy, No. 2011-3015 (Nov. 21, 2011) (MSPB Docket No. DC-0752-08-0188-M-1) (affirming per Rule 36 the Board's decision rejecting the appellant's contention that a settlement agreement was invalid)

Winchester v. Office of Personnel Management, No. 2011-3074 (Nov. 22, 2011) (MSPB Docket No. DE-831L-10-0176-I-1) (vacating the Board's decision affirming OPM's denial of an application for disability retirement benefits and remanding for determination of whether the one-year period for filing an application may be equitably tolled)     



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