U.S. Merit Systems Protection Board 
Case Report for February 3, 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:  Glenda B. Arrington
Agency:  Department of the Navy
Decision Number:  2012 MSPB 6
Docket Number:  DC-0752-10-0638-I-1
Issuance Date:  January 24, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

 - Reduction in Grade/Pay

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  The appellant was a GS-14 Supervisory Management Analyst under the General Schedule until January 2007, when the law mandated that she be converted to the National Security Personnel System (NSPS).  Unlike the General Schedule system, the NSPS had broad pay bands instead of  grades, thus allowing agencies to move employees more freely between positions without being bound by narrowly described work definitions. While she was in the NSPS, the appellant was reassigned twice, from Supervisory Management Analyst to Management Analyst, and from that position to back to the Supervisory Management Analyst position.  In October 2009, the President signed into law an Act that repealed the NSPS and called for the conversion of all employees and positions back to the pay system and all other aspects of the personnel system that last applied before the NSPS applied, or that would have applied if the NSPS had never been established.  The agency determined that the appropriate placement for the appellant in the General Schedule was as a GS-13 Supervisory Management Analyst.  

      On appeal, the appellant claimed that she had been subjected to a reduction in grade, from GS-14 to GS-13, as well as a reduction in pay, under 5 U.S.C. 7512(3)-(4) & 7513(d). The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant had failed to make nonfrivolous allegations that she had been subjected to a reduction in pay or grade.  As to the former, the judge found it undisputed that the appellant's basic pay and adjusted basic pay never decreased.  Regarding the claim of a reduction in grade, the judge found that the agency made a classification determination that the position the appellant held at the time she was converted back to the General Schedule was GS-13, and the Board lacks jurisdiction to review classification decisions. The judge further found the appellant did not suffer a reduction in grade because a GS-13 position is within the NSPS pay band for the position the appellant held in that personnel system.  

Holdings:  The Board reversed the initial decision, finding that the appellant had been subjected to an appealable reduction in grade, and remanded the appeal for consideration of the appellant's discrimination claims:

1.  The appellant did not suffer an appealable reduction in pay.

2.  The appellant suffered an appealable reduction in grade from GS-14 to GS-13.

a.  Grade means "a level of classification under a personnel classification system."

b. The appellant was not reduced in grade from GS-14 to GS-13 while she was within the NSPS pay system.

c.  The appellant's conversion from her NSPS position to a GS-13 position did not, standing alone, result in an appealable reduction in grade.  Neither 5 U.S.C. chapter 75 nor OPM's implementing regulations indicates how a reduction in grade, i.e., a level of classification "under a classification system," is to be determined where, as here, there is movement with no reduction in pay across or between position classification systems.

d.  The crucial fact in this case, however, is that the appellant initially occupied a position at one level of classification within the General Schedule, GS-14, and was later placed involuntarily at a lower level, GS-13, under that same classification system. This sequence of events constitutes an appealable “reduction in grade” as the term is defined under chapter 75 and its implementing regulations. While it is true that this reduction in grade was not recorded on any one Standard Form 50, the cumulative effect of the personnel actions effected in this case was the appellant’s reduction in grade from a GS-14 position to a GS-13 position.

3.  Because the agency did not provide the appellant an opportunity to make a response in connection with the reduction in grade action, it denied her constitutional right to minimum due process of law, and the
reduction in grade is not sustained.    

Appellant:  Clarisa Hicks Henderson
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 11
Docket Number:  DC-831E-10-0812-I-1
Issuance Date:  January 31, 2012
Appeal Type:  CSRA - Employee Filed Disability Retirement

 - Disability Retirement

    The appellant petitioned for review of an initial decision that affirmed OPM's reconsideration decision denying her application for disability retirement benefits.  She was a long-time postal employee who worked as a Sales and Service Associate.  She based her application on her ongoing intolerance to heat.  She explained that she is unable to diffuse internal heat due to nerve damage throughout her body, and so can stand temperatures only in the low-to-mid 60s.  As it was Postal policy to keep the temperature in her work area at 78 degrees, she said could not work in that environment.  She had been to numerous physicians, who diagnosed her as suffering from autonomic nerve dysfunction and autonomic small fiber neuropathy of unknown cause.  In addition, she testified and offered evidence from others as to how her condition affected her.  After weighing the documentary and testimonial evidence, the administrative judge concluded that the appellant failed to meet her burden of establishing her entitlement to disability retirement benefits.  The judge acknowledged the appellant's subjective evidence of pain and suffering, but found that she had not presented competent medical evidence in support.  The judge referred to specific medical reports from the appellant's doctors, but found that none indicated how her impairments prevented her from doing her job.

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and ordered OPM to grant the appellant's application for disability retirement:

1.  The Board overruled Bynum v. Office of Personnel Management, 89 M.S.P.R. 1 (2001), and it progeny insofar as these decisions indicated that there is a "general rule" that medical evidence must show that the appellant's medical condition affects specific job duties and requirements, and that, under an "exception" to this rule, where the Board is presented with the individual's position description and with medical evidence that unambiguously and without contradiction indicates that the appellant cannot perform the duties or meet the requirements of the position, the Board may link the medical evidence to the job duties and requirements and find that the appellant is entitled to disability retirement.

a.  The only rules governing entitlement to disability retirement are the ones set out in statute and regulation.  The statute provides that an applicant for disability retirement must be "unable, because of disease or injury, to render useful and efficient service in the employee's position."  OPM's regulation provides that the "individual must, while employed in a [covered] position . . . , have become disabled because of a medical condition, resulting in a service deficiency in performance, conduct, or attendance, or if there is no actual service deficiency, the disabling medical condition must be incompatible with either useful or efficient service or retention in the position."

b.  The regulation sets out two different ways to meet the statutory requirement:  (1) by showing that the medical condition caused a deficiency in performance, attendance, or conduct; or (2) by showing that the medical condition is incompatible with useful and efficient service or retention in the position.  Under the first method, an appellant can establish entitlement by showing that the medical condition affects her ability to perform specific work requirements, or prevented her from being regular in attendance, or caused her to act inappropriately. Under the second method, an appellant can establish entitlement by showing that the medical condition is inconsistent with working in general, working in a particular line of work, or working in a particular type of setting.

c.  Regardless of the particular method of establishing an inability to render useful and efficient service, the burden of proof in every case is by a preponderance of the evidence, i.e., more likely true than not.  To require medical evidence that is unambiguous and without contradiction is to impose a much higher burden of proof, one that is not authorized by law or regulation.  

d.  The source of confusion in the Board's case law is that what began as an observation about the probative value of expert opinion evidence -- medical opinion unsupported by medical evidence, e.g., a diagnosis, clinical findings, etc., is not very persuasive -- later came to be viewed as a substantive rule governing entitlement to disability retirement.

e.  The Board has always stated that it will consider all pertinent evidence in determining an appellant’s entitlement to disability retirement: objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence relating to the effect of the applicant’s condition on her ability to perform the duties of her position.  Nothing in the law mandates that a single health provider tie all of this evidence together.  The ultimate question, based on all relevant evidence, is: Do the employee’s medical impairments preclude her from rendering useful and efficient service in her position?  This question must be answered in the affirmative if the totality of the evidence makes that conclusion more likely to be true than not true.

2. After reviewing the record under the above standards, the Board concluded that the appellant is entitled to disability retirement benefits because she established that she cannot render useful and efficient service in her particular work environment.

Appellant:  Julius I. England
Agency:  United States Postal Service
Decision Number:  2012 MSPB 7
Docket Number:  AT-0752-10-0752-I-1
Issuance Date:  January 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Theft
Board Procedures
 - Defenses - Opportunity to Present

    The appellant petitioned for review of an initial decision that sustained his removal from his mail handler position.  After a customer complained that a priority mail package containing two $25 gift cards for Walgreens and Olive Gardens had not been delivered to its final destination, the agency contacted Walgreens and obtained video of the appellant using the Walgreens gift card.  The Olive Garden confirmed that its gift card was also used, but that it could not identify the individual who used the card.  The agency removed the appellant on a charge of "improper conduct," specifying that the appellant was seen on video using the Walgreens card and that someone used the Olive Garden card.  On appeal, the administrative judge found that the agency proved the charge by proving the specification with respect to the Walgreens gift card, that nexus existed, and that the penalty of removal was reasonable.  

Holdings:  The Board affirmed the administrative judge's findings concerning the charge and nexus, vacated the judge's finding concerning the penalty, and remanded the case to the regional office for further adjudication:

1.  The appellant did not show that the administrative judge erred in sustaining the charge or in finding nexus.

a.  The appellant asserts that the agency charged him with theft and failed to prove that charge.  When an agency specifically charges an employee with theft, it must prove the elements of that crime, namely, the taking and possession of another's property in a manner inconsistent with the owner's rights and benefits with an intent to permanently deprive the owner of the possession or use of his property.

b.  The Board found that, even if the agency charged the appellant with theft,  the judge properly sustained that charge.  The agency provided uncontroverted persuasive evidence that the appellant had the Walgreens gift card that was originally mailed to a different individual and that he used the card.  The Board deferred to the judge's finding that the appellant's explanation that he "found the gift card on the "ground" at a gas station "and pick[ed] it up" was implausible.  

2.  The appeal must be remanded for adjudication of the appellant's affirmative defenses.

a.  Administrative judges must apprise appellants of the applicable burdens of proving a particular affirmative defense, as well as the kind of evidence required to meet those burdens.  When an appellant raises affirmative defenses, the judge must address those defenses in any close of record order or prehearing conference summary and order.  

b.  The judge did not satisfy these obligations with respect to the appellant's affirmative defenses of due process violations and harmful procedural error.  A remand is therefore required.  

Appellant:  Terry Cummins
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 8
Docket Number:  CH-844E-10-0886-I-1
Issuance Date:  January 27, 2012
Appeal Type:  FERS - Employee Filed Disability Retirement

 - Disability Retirement
New and Material Evidence

    The appellant petitioned for review of an initial decision that sustained OPM's reconsideration decision denying her application for disability retirement benefits.  The appellant applied for disability retirement from her position as a rural letter carrier, claiming that she suffered from anxiety, depression, stress, hives, headaches, nausea, and a nervous breakdown.  In affirming OPM's reconsideration decision denying the application, the administrative judge found that the appellant failed to demonstrate that her depression and anxiety precluded her from performing useful and efficient service as a rural letter carrier, and that she failed to submit any medical evidence demonstrating that she was diagnosed with or treated for hives, headaches, and nausea, either separately or in conjunction with her treatment for depression and anxiety.  

Holdings:  The Board affirmed the initial decision as modified, still sustaining OPM's reconsideration decision:

1.  The Board rejected the appellant's argument that the administrative judge failed to give appropriate weight to the medical opinions of her primary care physician and therapist.  The judge thoroughly examined the record and made explained findings consistent with the evidence.

2.  The relevant question in this case is whether the appellant's medical condition is incompatible with either useful and efficient service or retention in the position.  After a review of the pertinent evidence, the Board concluded that the appellant failed to make the requisite showing.

3.  The appellant's additional documents on review are not new and material.

a.  In rare circumstances, the Board will reopen the record in a retirement appeal to consider documentation that was previously available below because the Board's primary consideration in such appeals is whether the appellant is entitled to the benefits she seeks.  Such circumstances do not exist here, where the appellant sought to introduce the primary care physician's treatment notes. The appellant was represented below and is represented on review by the same attorney.  

b.  Although some medical documents were not available prior to the close of the record, they are not material, i.e., they do not change the outcome of the appeal.

Appellant:  Sheri Lynn Denney
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 9
Docket Number:  DC-0842-10-0846-I-1
Issuance Date:  January 27, 2012
Appeal Type:  FERS - Regular Retirement Benefits

 - Calculation of Annuity
 - Part-Time Service
 - Law Enforcement Availability Pay

    OPM petitioned for review of an initial decision that reversed its calculation of the appellant's retirement annuity under the Federal Employees' Retirement System (FERS).  The appellant served as a criminal investigator from 1983 until her retirement under FERS in 2008.  The appellant's criminal investigator positions enabled her to receive "availability pay" under 5 U.S.C. 5545a until February 2001, when she began working part-time for the remainder of her federal service.  As a part-time employee, she could not satisfy the legal requirements for receiving availability pay.  The issue in this case was whether, in calculating the appellant's retirement annuity, OPM should have included availability pay in the basic pay she should have been deemed to have earned during her last 3 years of part-time service.  The administrative judge found that OPM's failure to include availability pay in its calculation was contrary to 5 U.S.C. 8415(f) and Board and judicial precedent.

Holdings:  The Board granted OPM's petition for review, reversed the initial decision, and sustained OPM's final decision:

1.  Calculating the annuity under section 8415(f) for an employee whose career included part-time service is a two-step process; the first step is to determine the average pay, and the second step is to prorate the annuity to reflect the employee's part-time service.

2.  Availability pay is not automatically part of the "annual rate of basic pay that would be payable for full-time service in the position" under 8415(f)(1)(A).  The purpose of availability pay "is to provide premium pay to criminal investigators to ensure the availability of criminal investigators for unscheduled duty in excess of a 40 hour week based on the needs of the employing agency."  The statute requires an annual certification to the head of the agency by the employee and a supervising officer that the employee has and will satisfy the availability pay eligibility requirements.  The appellant admits that she was not eligible to receive eligibility pay during her last 3 years of part-time service.  Accordingly, "basic pay" only includes availability pay thta was actually received by a criminal investigator in a given year.

3.  Excluding availability pay from the appellant's average pay does not contravene Congressional intent in enacting 5 U.S.C. 8415(f).  

Appellant:  Shirley Jones
Agency:  Department of Agriculture
Decision Number:  2012 MSPB 10
Docket Number:  PH-0752-09-0473-I-1
Issuance Date:  January 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

 - Constructive Reduction in Grade and Resignation

    The agency petitioned for review of an initial decision that reversed the appellant's reduction in grade and subsequent resignation as involuntary.  The appellant was a GS-6 Management Assistant in Beltsville, Maryland.  The agency notified her by letter that her position was being "abolished," and offered her the choice of two vacant positions:  a GS-6 Secretary position in Illinois, and a GS-5 Resource Management Assistant position in Beltsville.  The agency further advised her that, if she elected to resign or retire rather than accept either of the positions offered, she must do so no later than two weeks after the date of the letter.  The appellant accepted the GS-5 position in Beltsville, and resigned about a year later.  About 6 months after her resignation, she filed a Board appeal alleging that both her 2007 downgrade and her 2008 resignation were involuntary.  The administrative judge found that, by failing to place the appellant in a GS-6 vacancy that existed in her commuting area, the agency violated its own Word Reduction Procedures by improperly directing her reassignment to the GS-6 position in Illinois, which resulted in the appellant's involuntary acceptance of the GS-5 position.  The judge further found that, because the appellant's subsequent resignation was also obtained as a result of this improperly directed reassignment, it too was involuntary.  

      In its petition for review, the agency argued that, contrary to the judge's findings, the appellant was not issued a directed reassignment to the GS-6 position in Illinois.  The agency further argued that placement in the vacant GS-6 position in the appellant's local commuting area was prohibited by 5 C.F.R. 335.103(c)(iv).

Holdings:  The Board affirmed the initial decision as modified, still reversing the appellant's downgrade and resignation:

1.  The Board stated that it need not decide whether the agency directed the appellant's reassignment to Illinois, or whether an assignment to the position in the local commuting area would have violated section 335.103, because there was a more fundamental basis for finding that the appellant's downgrade was involuntary.

2.  Upon notifying the appellant that her GS-6 position in Beltsville was being abolished, the agency effectively offered her 4 options:  reassignment to the GS-6 position in Illinois; downgrade to the GS-5 position in Beltsville; resignation; or retirement.  The agency did not advise the appellant that she could refuse all 4 options, or what the consequences of such a refusal would be.  Given that the agency repeatedly characterized its Work Reduction Procedures as a mechanism for avoiding a reduction in force (RIF), the appellant's refusal of the positions offered might have resulted in her release from her competitive level pursuant to a RIF action.  Conversely, the appellant might have been subjected to an adverse action removal for refusing a directed reassignment to the GS-6 position in Illinois.  The agency additionally failed to advise the appellant of her Board appeal rights in the event of either of these outcomes.  

3.  An agency is required to provide an employee with information that is not only correct in nature, but adequate in scope to allow the employee to make an informed decision.  Because the agency did not comply with this obligation, the appellant's "acceptance" of the downgrade must be reversed as involuntary.  Because the appellant's ultimate decision to resign from the GS-5 position was proximately caused by the same lack of information, this action must also be reversed as involuntary.

Appellant:  Kimberly Hollingsworth
Agency:  Department of Commerce
Decision Number:  2012 MSPB 12
Docket Number:  CB-7121-10-0016-V-2
Issuance Date:  February 1, 2012
Appeal Type:  Arbitration Appeals/Grievances

Compensatory Damages

    In a previous decision, 115 M.S.P.R. 636 (2011), the Board affirmed the arbitrator's determination that the agency failed to accommodate the appellant's disability and reversed her removal.  Because the arbitrator denied the appellant's requests for compensatory damages without making any specific findings, the Board forwarded that claim to the regional office for further adjudication.  The appellant requested $7,209.95 in pecuniary damages and $150,000 in nonpecuniary damages.  The administrative judge recommended an award of $6,463.50 in pecuniary damages and $15,000 in nonpecuniary damages.  In making the latter recommendation, the judge stated that a "primary factor" in an award of $25,000 in a similar case was the fact that the agency's discrimination lasted for about 2 years, whereas the duration of the harm in this case was just over a year.  

Holdings:  The Board affirmed the administrative judge's determination that the appellant was entitled to $6,463.50 in pecuniary damages, and increased the award of nonpecuniary damages to $15,000:

1.  Section 102(a) of the Civil Rights Act of 1991, 42 U.S.C. 1981a, authorizes the award of compensatory damages from a federal agency that engaged in unlawful and intentional discrimination on the basis of an employee's disability.  Pecuniary damages are available for out-of-pocket expenses shown to be related to the discriminatory conduct.  Nonpecuniary damages are not subject to precise quantification, and include losses related to emotional pain, suffering, inconvenience, mental anguish, lost of enjoyment to life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health.  The EEOC has stated that the amount of a nonpecuniary damage award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases.

2.  After reviewing the relevant evidence, the Board affirmed the administrative judge's determination that the appellant was entitled to $6,463.50 in pecuniary damages.

3.  The duration of the harm is only one factor to be considered in determining the appropriate amount of nonpecuniary damages.  After an extensive review of the relevant evidence and of pertinent case law, the Board determined that the appropriate award of nonpecuniary damages in this case was $15,000.


Petitioner:  Manuel Lazaro
Respondent:  Department of Veterans Affairs
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3190
Issuance Date:  February 2, 2012

Veterans' Preference Rights/VEOA

    Lazaro appealed the Board's decision denying his claim for relief under the Veterans Employment Opportunities Act (VEOA).  Lazaro  applied for an IT Specialist position.  According to the vacancy announcement, the applicant needed one year of specialized experience equivalent to at least the GS-9 level in the federal service, but education could be used as a substitute for this experience.  The agency notified Lazaro that he was not considered for the position because he failed to meet the specialized experience requirement.  After exhausting his rights before the Department of Labor, Lazaro filed a VEOA appeal with the Board, asserting that the agency violated his rights under a statute or regulation relating to veteran's preference when it did not select him for the position of IT Specialist.  He argued that the agency violated his preference rights when it determined that he did not meet the experience requirements for the position.  Specifically, he claimed that, given his veteran's preference eligibility, the agency was required to consider those experiences specified in 5 C.F.R. 302.302(d).  The Board affirmed the administrative judge's denial of Lazaro's claims, concluding that "[w]e see no error in the administrative judge's analysis finding that the agency afforded the appellant consideration of all of his prior experience as required by 5 C.F.R. 302.302(d)."

Holdings:  The court vacated the Board's decision and remanded for further adjudication:

1.  One of the advantages received by preference eligible veterans is that an agency must comply with special statutes and regulations when it determines whether a veteran is qualified for a given position.  For example, under 38  4214(b), the number of years of education completed by the veteran is not relevant .

2.  When experience is a factor in determining qualification for a position, a preference eligible is entitled under 5 C.F.R. 302.302(d) to be credited for all valuable experience, including experience gained "in religious, civic, welfare, service, and organizational activities, regardless of whether pay was received therefor." Lazaro argued that the agency did not determine whether he was qualified in accordance with this regulation because it failed to consider some of his computer-related work experience.

3.  The administrative judge's only analysis with respect to the merits of Lazaro's non-selection considered whether the agency properly applied 38  4214(b) and not 5 C.F.R. 302.302(d).

4.  Section 302.302(d) is a regulation that clearly relates to veteran's preference, satisfying this jurisdictional requirement.  The administrative judge and the Board mistakenly concluded that they lacked jurisdiction over Lazaro's claims because they believed that addressing the merits of his claim would require the Board to address the "merits of his nonselection," which they believed fell outside the Board's jurisdiction.  

5.  The Board has jurisdiction to determine whether the agency properly afforded Lazaro the right to compete for the IT Specialist job and to determine, in accordance with
5 C.F.R. 302.302(d) whether he was qualified for the position.  Because the present record is insufficient for the court to make this determination, a remand to the Board is necessary.

Non-precedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:
Groseclose v. Department of the Navy, No. 2011-3078 (Jan. 20, 2012) (MSPB Docket No. SF-1221-08-0524-B-1 & SF-1221-08-0635-B-1) (affirming the Board's decision, which found that the appellant failed to establish a claim under the WPA) (Jan. 23 errata)
Irving v. Merit Systems Protection Board, No. 2011-3188 (Jan. 23, 2012) (MSPB Docket No. SF-0752-09-0637-I-1) (affirming the Board's decision, which dismissed a petition for review as untimely filed)

McDavis v. Merit Systems Protection Board, No. 2011-3132 (Jan. 25, 2012) (MSPB Docket No. CH-0752-11-0065-I-1) (affirming the Board's decision, which dismissed an appeal for failure to prosecute)

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