U.S. Merit Systems Protection Board 
Case Report for January 20, 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.


Appellant:  Philip Ware Tullis
Agency:  Department of the Navy
Decision Number:  2012 MSPB 3
Docket Number:  DC-1221-10-0614-W-1
Issuance Date:  January 18, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The appellant, a Financial Management Analyst in charge of travel, alleged that the agency retaliated against him by changing his job duties and working conditions for questioning the travel practices of his command as being in violation of the agency's travel regulations and for cooperating with an Inspector General (IG) investigation regarding his command's travel program by responding to the IG's questions.  The administrative judge dismissed the appellant's IRA appeal for lack of jurisdiction on the basis that he failed to make a nonfrivolous allegation of a protected whistleblowing disclosure.  The judge found that the appellant's disclosures to management officials were not protected because they were made to the alleged wrongdoers.  The judge further found that the appellant's statements to the IG were not protected because he did not disclose the statements on his own initiative and alternately because his responses to the IG's inquiries were part of his normal job duties.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1.  The appellant made nonfrivolous allegations of protected disclosures to the IG.

a.  The WPA speaks in terms of "any disclosure," without making a distinction based on who initiated the conversation that led to the disclosures.  The fact that the appellant did not come forward of his own initiative to the IG is not dispositive, or even relevant, in determining whether his disclosures were protected.

b.  The disclosures to the IG were not part of the appellant 's normal job duties.  Although the appellant was obligated to cooperate with the IG and report wrongdoing to the same extent as any other employee, he did not occupy a position with any particular investigatory responsibilities.  The fact that information an employee disclosed is closely related to his day-to-day responsibilities does not remove the disclosure of that information  from protection.

2.  The appellant established that his disclosure was a contributing factor in the change of duties and working conditions pursuant to the knowledge/timing test of 5 U.S.C. 1221(e)(1).  

3.  The appeal is not moot despite the appellant's voluntary resignation.

a.  Because the appellant is no longer a federal employee, the Board is unable to return him to the status quo ante with regard to the agency's action of changing his duties and responsibilities and reassigning him.

b.  An appellant who prevails on an allegation of reprisal for protected whistleblowing is entitled to additional relief, including medical costs incurred, travel expenses, and any other reasonably foreseeable consequential damages.  Because the administrative judge did not inform the appellant that he could claim entitlement to any non-status quo ante relief, the Board could not determine on the current record whether the appeal is moot.  A remand is therefore necessary.

Appellant:  Albert White
Agency:  United States Postal Service
Decision Number:  2012 MSPB 4
Docket Number:  SF-0353-09-0895-I-2
Issuance Date:  January 19, 2012
Appeal Type:  Restoration to Duty After Recovery from Compensable Injury


    The appellant petitioned for review of an initial decision that dismissed his restoration appeal as moot.  The appellant was a full-time Mail Processing Clerk at the Los Angeles Processing and Distribution Center (P&DC).  After suffering an on-the-job injury, he began working a modified assignment as a Mail Processing Clerk in December 2008.  In February 2009, the agency notified him that he was being "excessed" in accordance with the terms of the national collective bargaining agreement, i.e., was being reassigned from his craft and/or bid installation.  In June 2009, the appellant's craft was changed to City Carrier and his duty location was changed to the Bakersfield Post Office.  This appeal concerned the appellant's claim that he was denied his restoration rights as a partially recovered employee during 3 separate periods in 2009.  During the course of the appeal, the agency provided the appellant with back pay and other benefits for all 3 periods in question, and moved for dismissal on the ground that the appeal was moot.  The appellant opposed the motion on the grounds that he should not have been reassigned from the Los Angeles P&DC, that status quo ante relief would include reassignment to that office, and that the agency's failure to do so amounted to a failure to provide him with reasonable accommodation under the Rehabilitation Act.  The administrative judge determined that, because the reassignment did not result in reduction in pay or grade, it was not appealable to the Board.  Regarding the disability discrimination claim, the judge founds that, even assuming the appellant established that he is an individual with a disability, it was undisputed that he could not perform his position with or without reasonable accommodation, and that he had not identified any other vacant funded position, the duties of which he could perform with or without reasonable accommodation.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision:

1.  For an appeal to be deemed moot, the employee must have received all of the relief he could have received if the matter had been adjudicated and he had prevailed.

2.  The administrative judge correctly determined that a reassignment action that does not result in a reduction in pay and grade, here resulting from being excessed to Bakersfield, is not appealable to the Board, even where the employee's duties may be changed.  

3.  Despite the above, the Board will not dismiss an appeal as moot when an appellant has an outstanding claim of discrimination and has raised what appears to be a further claim for compensatory damages.  If, however, the appellant's factual allegations in support of his discrimination claim cannot support an inference that the agency acted in a manner that would entitle him to an award of compensatory damages, the Board may properly dismiss the appeal as moot.  

4.  Because the appellant failed to identify a reasonable accommodation under which he could perform the essential duties of his position or of a vacant position to which he could be reassigned, he has not raised allegations that, if proven, could support an inference of discrimination, much less discrimination that would additionally support an award of compensatory damages.  

Appellant:  Mary Ann Muff
Agency:  Department of Commerce
Decision Number:  2012 MSPB 5
Docket Number:  DE-0432-11-0095-I-1
Issuance Date:  January 19, 2012
Appeal Type:  Performance
Action Type:  Removal

Performance-Based Actions
 - Opportunity to Demonstrate Acceptable Performance

    The agency petitioned for review of an initial decision that reversed the appellant's removal for failure to maintain acceptable performance after she successfully completed a performance improvement period (PIP).  The appellant, a GS-4 Field Representative, was placed on a PIP from July 1 through October 31, 2009, based on the agency's determination that her performance in a critical element, Interviewing/Response Rate/Listing/Sampling, was unacceptable.  After she successfully completed the PIP, the agency removed her for unacceptable performance on the same critical element during the month of May 2010.  On appeal to the Board, the administrative judge found that the agency failed to prove by substantial evidence that the appellant's performance of the critical element was unacceptable.  The judge concluded that the appellant's performance for only 1 month was an insufficient basis on which to remove her because the agency failed to consider her performance for any other month after her successful completion of the PIP.

Holdings:  The Board denied the agency's petition for review and affirmed the initial decision as modified, still reversing the agency's removal action:

1.  An agency may remove an employee for unsuccessful performance under chapter 43 after the successful completion of a PIP if:  (1) the instances of unacceptable performance are in the same critical elements involved in the PIP and (2) the agency's reliance for its action is limited to those instances of performance that occur with 1 year of the advance notice of the PIP.  Under the circumstances of this case, the issue is whether the agency may take an action within 1 year of the advance notice of the PIP based on 1 month of unacceptable performance in the same critical element without consideration of other months of successful performance during and after the successful PIP.  

2.  In answering the above question in the negative, the Board noted that, while the appellant's performance was measured monthly, it was evaluated on an annual basis.  The Board distinguished this case from another in which the employee's performance fell below the acceptable level only about 2 months after she completed the PIP and she continued to fail for 2 months in a row.  Here, the appellant performed acceptably during the 4-month PIP and for 6 months thereafter, and her performance was unacceptable for only 1 month.


Petitioner:  Thomas G. Jarrard
Respondents:  Department of Justice and Social Security Administration
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Numbers:  2011-3050, 2011-3051
Issuance Date:  January 13, 2012

Veterans' Rights - VEOA
 - Applicability of Passover Provisions to Attorneys

    The court reviewed two MSPB decisions in which the Board denied Jarrard's requests for corrective action under the Veterans Employment Opportunities Act (VEOA).  Jarrard is a preference eligible veteran who applied for attorney positions at the Social Security Administration and with the Department of Justice.  Both agencies selected other applicants, at least one of whom was a non-preference eligible.  Jarrard contended that 5 U.S.C. 3320 required that the agencies follow the passover provisions of 5 U.S.C. 3318 in excepted service hiring.  Section 3318, which applies in terms only to the competitive service, requires agencies to "file written reasons" and to receive permission from the Office of Personnel Management if they "pass over a preference eligible" who is among "the highest three eligibles available for appointment" on a certificate furnished by OPM under 5 U.S.C. 3317(a).  The agencies concluded that section 3320 does not require the application of section 3318 to attorney positions because those positions are exempt from passover procedures under 5 C.F.R. 302.101(c), and that Jarrard's preference eligible status was appropriately considered as only a "positive factor."  The Board agreed that section 3320 did not require application of the section 3318 passover procedures.  

Holdings:  The court affirmed the Board's determination that the agencies were not required to apply the section 3318 passover procedures:

1.  When agencies hire for the competitive service, the Veterans Preference Act requires them to give advantages to certain veterans and their families, who are referred to as "preference eligibles."  Among these advantages are the passover provisions of section 3318.  As a general matter, veterans preference procedures also apply to hiring in the excepted service through section 3320, which provides that the excepted service shall be filled "in the same manner and under the same conditions required for the competitive service by sections 3308-3318."

2.  Within the excepted service, certain positions, including attorney positions, are further exempted from the usual appointment procedures by 5 C.F.R. 302.101(c), which requires veterans' preference to be followed "as far as administratively feasible."  

3.  After reviewing the history of the relevant statutes and regulations, and their interpretation by the Department of Justice, the Civil Service Commission, and the Office of Personnel Management from the 1930's to the present, the court agreed that OPM is barred from imposing a rating or other examination system on the hiring of attorneys within the executive branch.  

4.  The court then considered whether the bar against examinations and ratings makes it not administratively feasible to apply the passover provisions of section 3318 to attorney hiring, and answered this question in the affirmative.  

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

Wright v. Merit Systems Protection Board, No. 2011-3202 (Jan. 18, 2012) (MSPB Docket No. AT-3443-11-0045-I-1) (affirming the Board's decision, which dismissed as untimely the appellant's challenge to the termination of her excepted service appointment as a Licensed Practical Nurse with the Veterans Affairs Medical Center)

Wade v. Office of Personnel Management, No. 2011-3199 (Jan. 18, 2012) (MSPB Docket No. SF-0831-11-0045-I-1 ) (affirming the Board' decision, which held that the appellant is ineligible to make a redeposit or receive an annuity under the Civil Service Retirement System)

Antes v. Office of Personnel Management, No. 2011-3152 (Jan. 18, 2012) (MSPB Docket No. SF-0831-10-0717-I-1 ) (same holding as in Wade)

Tyler v. Department of the Army, No. 2011-3098 (Jan. 17, 2012) (MSPB Docket No. DC-0752-10-0401-I-1) (affirming the Board's decision, which sustained a removal action based on misconduct charges)

Stanley v. Merit Systems Protection Board, No. 2011-3195 (Jan. 17, 2012) (MSPB Docket No. SF-0752-10-0806-I-1) (affirming the Board's decision, which dismissed an appeal as untimely filed)

Brown v. Department of Justice, No. 2011-3171 (Jan. 13, 2012) (MSPB Docket No. AT-0752-10-0609-I-1) (affirming the Board's decision, which sustained the employee's  removal from his position as a correctional officer because he tested positive for marijuana use)

Hernandez v. Department of Defense, No. 2011-3060 (Jan. 13, 2012) (MSPB Docket No. DA-3443-06-0531-X-1) (affirming per Rule 36 the Board's decision, 115 M.S.P.R. 445 (2010), which denied the appellant's petition for enforcement on the ground that the agency had complied with a settlement agreement that resolved a Board appeal)

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