U.S. Merit Systems Protection Board 
Case Report for February 17, 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:  Raymond H. Ryan
Agency:  Department of the Air Force
Decision Number:  2012 MSPB 15
Docket Number:  DA-1221-09-0045-B-1
Issuance Date:  February 10, 2012
Appeal Type:  Individual Right of Action (IRA)

Board Procedures
Mootness
Whistleblower Protection Act
 - Clear and Convincing Evidence

    The appellant petitioned for review of a remand initial decision that denied his request for corrective action in this IRA appeal.  The administrative judge found that the appellant had withdrawn his claims of retaliation with respect to 7 of the 16 personnel actions at issue in the case.  With respect to the remaining personnel actions, the judge assumed without finding that the appellant had proven that he made protected disclosures and that those disclosures were a contributing factor in the alleged personnel actions.  The judge found, however, that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant's disclosures.

Holdings:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1.  The Board found no abuse of discretion in the administrative judge's rulings concerning the date or location of the hearing, or the extent of oral argument permitted at the end of the hearing.

2.  The appellant did not validly withdraw his claims with respect to 6 of the 7 personnel actions the judge found to have been withdrawn.  

3.  The judge needs to make additional findings with respect to the appellant's remaining claims.

a.  An appellant makes out a prima facie case of retaliation for protected whistleblowing by proving that he made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him.  If an appellant makes out a prima facie claim of reprisal, the agency is given an opportunity to prove, by clear and convincing evidence, the affirmative defense that it would have taken the same action in the absence of the protected disclosure.

b.  The WPA does not mandate any particular sequence for trying the elements of a whistleblower case.  In appropriate cases, a judge may address the agency's affirmative defense and then, if necessary, turn to the question of whether the appellant established a prima facie whistleblower claim.

c.  In some cases, however, where the circumstantial evidence bearing on retaliatory motive includes the substance of the appellant's allegedly protected activity as well as the extent to which the deciding official was aware of it, it is necessary to determine whether the appellant's disclosures were protected. Because this is such a case, a remand is necessary.



Appellant:  Stephen W. Gingery
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 16
Docket Number:  CH-3330-09-0712-X-1
Issuance Date:  February 10, 2012
Appeal Type:  Veterans Employment Opportunities Act
Case Type:  Compliance Referral

Compliance

    This case was before the Board on the appellant's petition for enforcement of the Board's decision, 114 M.S.P.R. 175 (2010), finding that the agency's failure to consider him for the position of Accounting Technician violated his veterans' preference rights and ordering the agency to reconstruct the selection process.  Following that decision, the agency twice reconstructed the selection process, once during a regional office proceeding, and again following the administrative judge's Recommendation finding that the agency was not in compliance with its obligations.  The agency presented evidence that both the internal candidate for the position, who is not preference eligible, as well as an external candidate (W.R.) who is a preference eligible, were better qualified than the appellant, and again did not select the appellant.

Holdings:  The Board found that the agency is now in compliance and dismissed the petition for enforcement as moot:

1.  An agency's violation of an appellant's VEOA rights by failing to consider his application entitles him to a lawful selection process, not to an appointment.  

2.  An agency must show that it applied the same criteria to the appellant's application that it applied to the other candidates.  Here, the agency showed that it interviewed the appellant using the same questions that were asked the internal candidate and W.R.  The fact that the agency used a different interviewer during the second round of interviews was necessary because one of the original interviewers had left the agency did not prevent the same criteria from being applied to all candidates.

3.  The agency provided sufficient evidence to show that W.L. was a preference eligible veteran whose application was complete and that she was therefore properly considered.  

4.  There is no merit to the appellant's objections to the other two candidates' basic qualifications or to his challenge to the validity of the questions posed in the structured interviews of the candidates.

5.  That the agency did not clearly state which candidate it finally selected does not matter because the agency's selection criteria support selecting either of the other candidates over the appellant.



Appellant:  Maria Bair
Agency:  Department of Defense
Decision Number:  2012 MSPB 17
Docket Number:  DA-0752-10-0529-I-1
Issuance Date:  February 16, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Leave Related

    The appellant petitioned for review of an initial decision that affirmed her removal. The appellant has not worked since January 8, 2009, when she sustained a work-related injury.  The agency removed her effective May 29, 2010 on a charge of excessive absences.  The appellant acknowledged her inability to work, but contended that the agency could not discipline a disabled employee who was receiving workers' compensation benefits.  The administrative judge affirmed the removal action, finding that the agency proved its charge, that a nexus exists between the proven charge and the efficiency of the service, and that the penalty of removal was reasonable.  

Holdings:  The Board affirmed the initial decision as modified, still sustaining the appellant's removal:

1.  Although an adverse action generally cannot be based on an employee's use of approved leave, an agency may bring an adverse action against an employee for excessive approved absences if the following criteria have been met:  (1) The employee was absent for compelling reasons beyond her control so that the agency's approval or disapproval was immaterial because the employee could not be on the job; (2) the absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular, full-time or part-time basis; and (3) the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.  

2.  Although the administrative judge failed to analyze the charge under these criteria, the Board did so and found that they are satisfied in this case.

3.  The Board considered the appellant's claims of harmful procedural error and found them to be without merit.

4.  Under the circumstances of this case, the agency could remove the appellant based on her absence during a period for which she was receiving workers' compensation benefits.

a.  Although the Board has long recognized that an adverse action based on an AWOL charge cannot be sustained if OWCP determines that the employee was entitled to compensation benefits as a result of a work-related injury for the entire time period charged as AWOL, the Board has never held that an agency is prohibited from implementing an adverse action predicated upon leave-related charges pending a final determination from OWCP.  Rather, the Board has said that the agency does so at the risk of having the action overturned if OWCP subsequently finds that the employee was entitled to compensation for the absent period, requiring the employee’s retroactive placement in a leave without pay (LWOP) status and the invalidation of the AWOL charge.

b.  The Board has long acknowledged that an agency need not carry an employee receiving workers’ compensation benefits on its employment rolls indefinitely. In reaffirming that principle, the Board recognized that, under 5 U.S.C. 8151(b)(1), a compensably injured employee who fully recovers within one year after the date of commencement of compensation has an unconditional right to return to his former or equivalent position. Congress did not provide job security to compensably injured employees who do not fully recover within the statutory one-year time frame.  

c.  Here, the agency did not effect the appellant's removal until she had been absent from work for over 16 months.



Appellant:  Otis Miller, Jr.
Agency:  Department of the Navy
Decision Number:  2012 MSPB 18
Docket Number:  AT-3443-11-0083-I-1
Issuance Date:  February 16, 2012

Jurisdiction - Reduction in Grade
Constitutional Issues - Due Process

    The appellant petitioned for review of an initial decision that sustained his reduction in grade from GS-12 to GS-11.  The facts in this appeal were very similar to those in Arrington v. Department of the Navy, 2012 MSPB 6, in that he was converted from the General Schedule to the National Security Personnel System (NSPS), and when the NSPS was abolished, was returned to the General Schedule one grade lower than he held when he was converted to the NSPS.  Unlike the case in Arrington, however, the administrative judge found that the appellant had been subjected to an appealable reduction in grade.  The judge further found that the agency proved by preponderant evidence that the action promoted the efficiency of the service and sustained the action.

Holdings:  The Board reversed the initial decision and ordered the agency to restore the appellant to the GS-12 grade with no reduction in pay:

1.  As in Arrington, the appellant suffered a reduction in grade.

2.  In sustaining the agency's action, the administrative judge did not consider whether the agency afforded the appellant minimum due process.  Here, there is nothing in the record to indicate that the agency gave the appellant an opportunity to respond to the reduction in grade before it took effect. Thus, because the agency reduced the appellant in grade without providing him with both prior notice and an opportunity to respond, its action must be reversed for failure to afford minimum due process.





COURT DECISIONS


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

Senyszyn v. Department of the Treasury, No. 2011-3226 (Feb. 10, 2012) (MSPB Docket No. PH-0752-08-0226-I-2) (affirming the Board's decision, which sustained the appellant's removal for misconduct)

Benton-El v. Department of the Air Force, No. 2011-3117 (Feb. 10, 2012) (MSPB Docket No. AT-0752-09-0709-I-2) (affirming the Board's decision, which sustained the appellant's removal for misconduct)

Wyeroski v. Department of Transportation, No. 2011-3227 (Feb. 13, 2012) (MSPB Docket No. NY-1221-11-0059-W-1) (affirming the Board's decision, which dismissed an appeal under the doctrine of res judicata)

Fuller v. Department of the Navy, No. 2011-3180 (Feb. 13, 2012) (MSPB Docket No. DC-0752-11-0275-I-1) (affirming the Board's decision, which upheld the appellant's  suspension after the agency suspended his access to classified information)

Torain v. Smithsonian Institution, No. 2011-3135 (Feb. 13, 2012) (MSPB Docket No. DC-0752-10-0533-I-1) (affirming the Board's decision, which denied a petition for review of an initial decision that dismissed an appeal as settled)

Davis v. Department of the Navy, No. 2011-3229 (Feb. 13, 2012) (MSPB Docket No. DC-0752-10-0830-I-1) (affirming the Board's decision, which sustained the appellant's removal for misconduct)

Veal v. Office of Personnel Management, No. 2011-3234 (Feb. 13, 2012) (MSPB Docket No. SF-0842-11-0041-I-1) (affirming the Board's decision, which affirmed a determination by OPM that Veal was ineligible to receive annuity benefits)

Sullivan v. U.S. Postal Service, No. 2011-3220 (Feb. 13, 2012) (MSPB Docket No. DA-0752-10-0348-I-1) (affirming the Board's decision, which affirmed the agency's removal action)

Marshall v. U.S. Postal Service, No. 2011-3201 (Feb. 14, 2012) (MSPB Docket No. NY-0353-10-0255-I-1) (affirming the Board's decision, which dismissed an appeal as settled)

Banks v. Office of Personnel Management, No. 2011-3203 (Feb. 14, 2012) (MSPB Docket No. CH-0841-10-0976-I-1) (affirming the Board's decision, which affirmed OPM's determination that the appellant was not entitled to a survivor annuity)

Detrich v. Department of the Navy, No. 2011-3191 (Feb. 14, 2012) (MSPB Docket No. SF-1221-10-0980-W-1) (affirming the Board's decision, which dismissed an IRA appeal under the doctrine of res judicata)

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