U.S. Merit Systems Protection Board 
Case Report for January 6, 2012  

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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:  Colbert Allen Rittgers
Agency:  Department of the Army
Decision Number:  2011 MSPB 101
Docket Number:  DA-0752-11-0212-I-2
Issuance Date:  December 20, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Board Procedures - Dismissals Without Prejudice
 
     The appellant petitioned for review of an initial decision that dismissed his appeal without prejudice to refiling.  The agency had indefinitely suspended the appellant under the crime provision, 5 U.S.C. 7513(b)(1), stating that it had reason to believe that the appellant had committed a crime that could result in a sentence of imprisonment.  While the allegations of wrongdoing were being investigated by appropriate authorities (the appellant had not been arrested or indicted for a crime), the appeal was dismissed without prejudice once by mutual agreement.  It was dismissed without prejudice a second time over the appellant's objection, on the ground that dismissal was warranted to protect the appellant's due process rights and not interfere with the criminal investigation.   

Holdings:  The Board vacated the initial decision  and remanded the case to the regional office for adjudication on the merits:

1.  The Board emphasized the distinction between removal actions and suspension actions, noting that an indefinite suspension based on the crime exception does not generally involve a determination on the merits of the alleged misconduct or any criminal charge. 

2.  Where, as here, an appellant is represented by counsel and wants to proceed with his appeal of his indefinite suspension, he should be permitted to do so.



Appellant:  Carlos A. Rodriguez

Agency:  Department of Homeland Security
Decision Number:  2011 MSPB 103
Docket Number:  DE-0752-10-0404-I-1
Issuance Date:  December 23, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Failure to Report an Accident Involving a Government Vehicle

     The agency petitioned for review of an initial decision that mitigated a removal action to a 5-day suspension.  The removal action was based on two charges:  unauthorized use of a government vehicle; and failure to report an accident involving a government vehicle. The appellant had been assigned a government vehicle during a detail to another office. When he returned the vehicle after the end of the detail, agency personnel discovered that the vehicle appeared to have undergone major body repairs while in the appellant's possession.  Although the appellant initially denied any knowledge of the body work, he later admitted that he had had the car repaired at his own expense before returning it to the agency.  He said that he noticed damage to the passenger-side door and scratches on the rear door penel and fenders when he returned to the vehicle, which was parked on the street.  He said he did not know when the damage occurred, but he paid $650 to have the vehicle repaired because he "felt that [he] was in full care of the unit during the course of [his] detail."  Following a hearing, the administrative judge sustained the charge of unauthorized use of a government vehicle, but not the charge of failing to report an accident.  The judge construed the second charge as requiring proof that the appellant was in an accident with the vehicle.  Finding the appellant's account of what happened "not inherently improbable," the judge found that the agency failed to prove this element of the charge.  Based on the single sustained charge of unauthorized use of a government vehicle, the judge found that the maximum reasonable penalty was a 5-day suspension.
   
Holdings:  A majority of the Board, Member Rose dissenting, affirmed the initial decision as modified, still not sustaining the charge of failing to report an accident and finding the 5-day suspension to be an appropriate penalty for the sustained charge:

1.  When a charge is labeled, the label, and not something else, must be proven.

2.  The Board agreed with the agency that the charge did not not require it to prove that the appellant was in the vehicle when an accident occurred.  The charge label, however, still required that the vehicle have been involved in an accident.  

3.  The agency's table of offenses and penalties lists charges for both failure to report damage to a vehicle and failure to report an accident, and the latter charge is the more serious of the two.  The Board majority noted that the deciding official characterized an accident "as a collision that occurs when an agency employee is operating a motor vehicle," and that he would characterize other mishaps, such as parking lot "fenders benders," or discovery of damage to a parked and unattended vehicle, as "damage to a vehicle."  The  majority concluded that the agency failed to prove that the vehicle was in an accident, and the charge cannot be sustained.

      In her dissent, Member Rose observed that what occurred meets the dictionary definition of "accident," which means an unexpected and undesirable event or something that occurs unexpectedly or unintentionally.  She stated that the majority has imbued the word "accident" with a special meaning beyond its common definition based solely on the existence of two separate charges in the agency's table of offenses and penalties and the deciding official's testimony.  There is no evidence that the deciding official had any particular expertise in interpreting charges or penalties, and there is nothing in the record to suggest that the agency intended the word "accident" to be a term of art implying a collision.  She stated that, if this case turns on what the deciding official thought the word "accident" means, she felt compelled to point out that the deciding official found that the appellant failed to report an accident when he sustained the charge.  In other words, the appellant's conduct fit within the deciding official's definition of "accident."  



Appellant:  Marietta Reeves
Agency:  United States Postal Service
Decision Number:  2011 MSPB 102
Docket Number:  CH-0752-10-0864-I-1
Issuance Date:  December 23, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

     The appellant petitioned for review of an initial decision that sustained her demotion. The administrative judge determined that the agency had charged the appellant with three specifications of improper conduct.  Following a hearing, the judge found that the agency had proven all 3 specifications, that there was nexus between the charged behavior and the efficiency of the service, that the appellant failed to prove her affirmative defense of sex discrimination, and that the demotion from Manager, Customer Service, to part-time flexible Clerk did not exceed the bounds of reasonableness.
   
Holdings:  The Board affirmed the initial decision as modified, still sustaining the appellant's demotion:

1.  Although evidence submitted with the petition for review was new, it was not material, i.e., of sufficient weight to warrant an outcome different from that of the initial decision.

2.  The appellant did not show any reversible error in the administrative judge's evidentiary rulings.  

3.  The judge properly affirmed the charge of improper conduct.

4.  The judge properly found that the appellant failed to prove her claim of sex discrimination.

5.  The demotion penalty did not exceed the bounds of reasonableness.



COURT DECISIONS

Petitioner:  Victoria Salmon
Respondent:  Social Security Administration
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3029
Issuance Date:  December 9, 2011

Performance-Based Actions
 - Performance Standards - Objectivity
 - OPM approval of Performance Appraisal Systems

    Salmon petitioned for review of the Board's decision, which affirmed her removal for unacceptable performance under 5 U.S.C. chapter 43.

Holdings:  The court affirmed the Board 's decision.  

1.  In rejecting Salmon's argument that her performance standards were insufficiently based on "objective criteria," the court stated that a standard "should be sufficiently precise and specific as to invoke a general consensus as to its meaning and content," and noted that the analysis of the sufficiency of a performance standard is not confined to the written standard; the efforts of a supervisor to instruct the employee on how best to satisfy the standard also matter. 

2.  Regarding Salmon's contention that OPM had not approved the particular performance appraisal system under which she was judged, the court noted that the system that the agency gave OPM in 1995 was a framework-type review, not a detailed implementation, and found that Salmon had not shown any area in which the current performance appraisal system was materially inconsistent with the framework approved in 1995.




The court issued nonprecedential decisions in the following cases:

Graves v. Department of the Navy, No. 2011-3150 (Dec. 9, 2011) (MSPB Docket Nos. SF-3330-09-0786-I-1 & SF-300A-10-0062-I-1) (affirming the Board's decision, which denied certain claims and dismissed others for lack of jurisdiction)

Machulas v. Department of the Air Force, No. 2011-3161 (Dec. 12, 2011) (MSPB Docket No. PH-3443-11-0008-I-1) (affirming the Board's decision, which dismissed claims for lack of jurisdiction or on res judicata grounds)

Mann v. Department of the Army, No. 2011-3182 (Dec. 12, 2011) (MSPB Docket No. AT-3330-10-1108-I-1) (affirming the Board's decision, which denied the appellant's request for corrective action in connection with his nonselection)

Kopp v. Office of Personnel Management, No. 2011-3181 (Dec. 12, 2011) (MSPB Docket No. DC-831M-10-0653-I-1 ) (affirming the Board's decision, which affirmed OPM's decision denying the appellant's request for a waiver of overpayment of annuity benefits under the Civil Service Retirement System)

D'Alonzo v. Office of Personnel Management, No. 2011-3169 (Dec. 12, 2011) (MSPB Docket No. NY-0831-10-0245-I-1) (affirming the Board's decision, which affirmed OPM's decision denying the appellant's application for lump-sum benefits)

Aquino v. Office of Personnel Management, No. 2011-3092 (Dec. 12, 2011) (MSPB Docket No. SF-0831-10-0937-I-1) (affirming the Board 's decision, which found the appellant ineligible for deferred annuity benefits under the Civil Service Retirement System and also ineligible to make a retroactive deposit to the CSRS)

Brown v. Merit Systems Protection Board, No. 2011-3109 (Dec. 13, 2011) (MSPB Docket No. SF-0752-09-0881-I-1) (affirming the Board's decision, 115 M.S.P.R. 69 (2011), which dismissed for lack of jurisdiction an appeal alleging that a retirement was involuntary)

Daniel v. Office of Personnel Management, No. 2011-3097 (Dec. 13, 2011) (MSPB Docket No. DA-0841-09-0711-B-1) (affirming the Board's decision regarding the calculation of the appellant's disability retirement annuity upon reinstatement)

Pearson v. Department of Veterans Affairs, No. 2011-3104 (Dec. 13, 2011) (MSPB Docket No. CH-1221-09-0692-I-1) (affirming the Board's decision, which dismissed an IRA appeal as withdrawn)

Harding v. Department of Veterans Affairs, No. 2011-3091 (Dec. 13, 2011) (MSPB Docket No. DA-0752-10-0064-I-1) (affirming the Board's decision, which sustained an indefinite suspension action)

Kennington v. Merit Systems Protection Board, No. 2011-3192 (Dec. 13, 2011) (MSPB Docket No. DE-1221-10-0502-W-1) (affirming the Board's decision, which dismissed an IRA appeal for lack of jurisdiction)

Katz-Pueschel v. Department of Transportation, No. 2011-3081 (Dec. 13, 2011) (MSPB Docket No. DC-0752-81-1049-B-1) (affirming per Rule 36 a Board decision dismissing the appellant’s petition for enforcement of a 1984 settlement agreement as barred by the doctrine of laches)

Cullinan v. U.S. Postal Service, No. 2011-3186 (Dec. 14, 2011) (MSPB Docket No. DE-0752-03-0500-C-1) (affirming the Board's decision, which found that the agency did not breach a 2004 settlement agreement when it reduced the appellant's work schedule from 38 hours per week to 12 hours per week)

Campbell v. Merit Systems Protection Board, No. 2011-3148 (Dec. 16, 2011) (MSPB Docket No. SF-0752-10-0331-I-1) (affirming in part, vacating in part, and remanding for further proceedings;  while the Board correctly held that it lacked jurisdiction over Campbell’s constructive suspension claim and properly dismissed his VEOA appeal, the Board failed to consider whether Campbell established jurisdiction based on a furlough of 30 days or less)

Brown v. Merit Systems Protection Board, No. 2011-3044 (Dec. 22, 2011) (MSPB Docket No. CH-0752-10-0037-I-1) (affirming the Board's decision, which dismissed an appeal for failure to prosecute)

Johnson v. Merit Systems Protection Board, No. 2011-3130 (Jan. 4, 2012) (MSPB Docket No. DE-0353-10-0501-I-1) (per the Board's request, vacating and remanding a case in which the Board had found that a restoration appeal was barred by claim preclusion and issue preclusion)


U.S. Merit Systems Protection Board | Case Reports