U.S. Merit Systems Protection Board 
Case Report for March 2, 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:  James C. Latham, et al.
Agency:  United States Postal Service
Decision Number:  2012 MSPB 20
Docket Numbers:  DA-0353-10-0408-I-1 et al.
Issuance Date:  February 24, 2012
Appeal Type:  Restoration to Duty After Recovery from Compensable Injury

Restoration to Duty
Jurisdiction - Burden of Proof
Regulations - Legal Construction

    In all of these appeals, the appellants suffered compensable (work-related) injuries that rendered them unable to perform essential functions of their positions.  The agency subsequently returned them to duty in modified assignments in which they performed tasks less physically demanding than those previously required of them.  The agency later discontinued the appellants’ limited duty assignments pursuant to its National Reassessment Process, informing them that there were no operationally necessary tasks available for them to perform within their medical restrictions.  They filed appeals under 5 C.F.R. 353.301(d) and 353.304(c), alleging that the agency had acted arbitrarily and capriciously in denying them restoration.  In a Federal Register notice inviting amicus briefs, the Board noted that these regulations do not require an agency to assign a partially recovered employee limited duties that do not comprise the essential functions of a complete and separate position, but that the agency’s Employee and Labor Relations Manual (ELM) may require such assignments.  The issue, then, was whether denial of restoration would be “arbitrary and capricious” within the meaning section 353.304(c) solely for being in violation of the ELM, i.e., whether the Board has jurisdiction over a restoration appeal merely on the basis that the denial of restoration violated the agency’s own internal rules.  The Board also asked the Office of Personnel Management (OPM) for an advisory opinion on the subject.  The Board reached its decision after considering OPM’s advisory opinion and briefs filed by parties and amici, and holding oral arguments. 

Holdings:  A majority of the Board, Member Rose dissenting, held that:

1.  The agency's internal rules requiring the return of partially recovered employees to duty in modified assignments are enforceable by the Board in a restoration appeal under 5 C.F.R. 353.304(c).  

a.  Consistent with a recent Federal Circuit decision, the Board ruled that appellants in partial recovery restoration appeals must prove jurisdictional elements by preponderant evidence, and overruled contrary MSPB precedent.  

b.  OPM's regulation at 353.301(d) provides that, in "mak[ing] every effort" to restore employees who have partially recovered from a compensable injury, agencies must, "at a minimum," treat the employees substantially the same as individuals under the Rehabilitation Act of 1973.

c.  OPM's advisory opinion stated that, if the Postal Service established a rule that provided partially recovered employees with greater restoration rights than the "minimum" described in the regulation, "the Postal Service is required to meticulously follow that rule.  To do otherwise would be arbitrary and capricious within the meaning of OPM's regulation conferring jurisdiction on the Board at section 353.304(c)."

d. OPM's interpretation of its own regulation — both as to the scope of the Board's jurisdiction and as to the meaning of "arbitrary and capricious" as requiring "meticulous" adherence to the agency's internal rules — is controlling because it is consistent with the plain language of the regulation and is not clearly erroneous.  

e.  The Board rejected the agency's arguments that:  (1) the governing statute (5 U.S.C. 8151(b)) provides restoration rights only to fully recovered individuals and does not authorize OPM to provide restoration rights to partially recovered individuals; and (2) the governing statute provides restoration rights only to established "positions" and does not authorize OPM to provide restoration rights to modified assignments.

2.  The agency's modified duty rules provide that the agency may not discontinue a modified assignment unless the duties of that assignment no longer need to be performed by anyone or those duties need to be transferred to other employees who would otherwise lack sufficient work.

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 In her dissenting opinion, Member Rose expressed the following views:

1.  Contrary to arguments made by OPM and one of the postal unions filing amicus briefs, the Board has no independent or inherent authority to enforce internal agency rules that confer substantive rights or entitlements.

2.  OPM's regulations cannot reasonably be interpreted as including a grant of jurisdiction to the MSPB to adjudicate and enforce the substantive "restoration" entitlements conferred by the Postal Service's Employee and Labor Relations Manual and other internal directives.  

3.  The appeals should be dismissed for failure to state a claim upon which relief can be granted because applicable law and regulation only provide restoration to duties that constitute the essential functions of a complete and separate position, and none of the appellants has claimed entitlement to such duties.  

4.  An agency need not be "meticulous" in its decision-making process to avoid being arbitrary and capricious.  Even if the Board's jurisdiction extended to enforcement of internal agency substantive entitlements, arbitrary and capricious review is a deferential standard of review, which means the agency's decision should be upheld if it is supported by substantial evidence.  If it would not have been arbitrary and capricious for the agency to have denied the original request for limited duty work, it cannot be arbitrary and capricious to terminate the limited duty assignment at a later point in time.

5.  Whether a denial of restoration was arbitrary and capricious is purely a merits issue, and is irrelevant to a determination of whether an appellant has established jurisdiction over a partial recovery restoration appeal.



Appellant:  Tyrone Hamilton
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 19
Docket Number:  DA-0752-11-0131-I-1
Issuance Date:  February 17, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Penalty

    The agency petitioned for review of an initial decision that mitigated the agency's removal action to a 15-day suspension.  The appellant was an Agricultural Specialist stationed at the Vancouver International Airport in Canada.  The agency's removal action was based on charges of improper conduct and failure to cooperate in an agency investigation.  Both charges related to the appellant's relationship with a Canadian female who had been denied entry into the United States.  The first specification to the second charge related to questioning by the agency's Office of Internal Affairs regarding an allegation that the appellant had sexually assaulted the Canadian female.  The appellant said that he had traveled to Houston, Texas over the weekend when the assault allegedly occurred.  The agency requested that the appellant provide documentation of his trip to Houston, but the appellant failed to provide it.  The second specification concerned the appellant's behavior during the oral reply to the notice of proposed removal, when he provided a copy of a boarding pass to substantiate his claimed trip to Houston.  The agency's efforts to authenticate this boarding pass showed that it was for a flight taken in 2009, rather than in 2008, which was the date in question.  

      Following a hearing, the administrative judge found that the agency failed to prove the improper conduct charge, but that the agency did prove both specifications of its charge of failure to cooperate in an agency investigation. In considering the appropriateness of the penalty for the sustained charge, the judge considered three other agency actions, noting that the agency had removed the employee in two cases, but mitigated the penalty to a 15-day suspension in the third.  Concluding that the agency does not always remove employees for this offense, the judge mitigated the penalty to a 15-day suspension.

Holdings:  The Board affirmed the initial decision as modified, sustaining the agency's removal penalty:

1.  The nature and seriousness of the appellant's offense is the most significant factor in a penalty determination.  Here, the sustained charge is a serious one, and both the courts and the Board have held that removal is an appropriate penalty for failure to cooperate with an investigation.

2.  To establish disparate penalties, an appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar.  The Board found that the circumstances surrounding the behavior of the employee who was suspended for 15 days was distinguishable from the appellant's conduct in this case, which was more serious.  The appellant's conduct was similar to the two instances in which the agency had removed the employees for this misconduct.  



Appellant:  Sarel Solis
Agency:  Department of Justice
Decision Number:  2012 MSPB 21
Docket Number:  DC-0752-11-0145-I-1
Issuance Date:  February 28, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process

    The appellant petitioned for review of an initial decision that affirmed his removal from the position of Criminal Investigator on misconduct charges.  In the agency's decision notice, the deciding official stated that the appellant's conduct would create problems for the agency under the Supreme Court's decision in Giglio v. United States, 405 U.S. 150 (1972), which requires investigative agencies to turn over to prosecutors any potential impeachment evidence concerning the agents involved in the case.  The Giglio concern had not been cited in the agency's proposal notice.  On appeal, the appellant raised this matter as a claim of harmful procedural error on the agency's part.  The administrative judge found that the agency proved its charges of misconduct, that the appellant failed to prove his affirmative defenses, including harmful procedural error, and that the penalty of removal was reasonable.

Holdings:  The Board reversed the initial decision and ordered the agency to cancel the appellant's removal:

1.  When an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency's deciding official.  

2.  If the information in question is "so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances," the failure to include the information in the proposal notice constitutes a denial of due process under the Fifth Amendment, and the adverse action must be reversed.

3.  The Board found that the failure to list the Giglio consideration in the proposal notice constituted a denial of due process under the circumstances of this case.



Appellant:  Larry M. Dow
Agency:  General Services Administration
Decision Number:  2012 MSPB 22
Docket Number:  SF-3443-02-0159-X-2
Issuance Date:  March 1, 2012
Case Type:  Compliance Referral

Compliance

    This matter was before the Board to determine whether the agency is in compliance with a final Board order issued in 2007, which found that the appellant's veterans preference rights were violated in connection with the appellant's 2000 application for the position of Chief People Officer (CPO) Intern, and ordered the agency to reconstruct the selection process.  The Board has previously issued three decisions related to this matter.  In its most recent decision, 116 M.S.P.R. 369 (2011), the Board considered whether the agency's action tentatively selecting the appellant for the position of Human Relations (HR) Specialist pending completion of pre-employment requirements, including a mandatory security background investigation, constituted compliance.  The Board found that the agency was in partial noncompliance and gave the agency instructions on what it must do.  These instructions included explaining whether a security background investigation was required prior to appointment in the nonsensitive position of CPO Intern, and to explain how the duties and responsibilities of the HR Specialist position are the same as, or similar to those of the CPO Intern position.

Holdings:  The Board found that the agency remains in partial noncompliance and ordered the agency to take appropriate personnel actions:

1.  The agency's evidence does not show that a mandatory security background investigation was a condition of appointment to the CPO Intern position.

2.  The HR Specialist position is substantially similar to the CPO Intern position.

3.  The appellant is not entitled to retroactive promotions.

4.  The Board ordered the agency to retroactively place the appellant in the position of Chief People Officer Intern effective 2000 to 2006, and to place him in the position of HR Specialist retroactive to 2006.  



Appellant:  Alexander L. Cooper
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 23
Docket Number:  NY-0752-11-0003-I-1
Issuance Date:  March 1, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Settlement - Last-Chance Agreements

    At issue in this case was the validity of a last-chance settlement agreement in which the agency agreed to hold a removal action in abeyance for 24 months, subject to the appellant's agreement to accept a 60-day suspension for the sustained charges and to be subject to random testing for alcohol.  If the testing revealed that the appellant was under the influence of alcohol during the period of the agreement, the removal action would be effected based on the sustained charges and the appellant waived his right to appeal the removal action to the Board.  The appellant argued that the settlement agreement is invalid because it allows for a 60-day suspension and a removal based on the same misconduct.  

Holdings:  The Board found the settlement agreement to be valid and enforceable:

1.  Outside the context of a settlement agreement, the Board has long held that an agency cannot impose a disciplinary or adverse action more than once for the same misconduct.  It is well settled, however, that an employee can waive significant rights in a settlement agreement, including the statutory right to appeal the adverse action this is at issue in the agreement.

2.  A last-chance agreement that waives both the right of appeal and the right not to be disciplined twice for the same offense may be enforced if it meets other requirements for a valid settlement agreement.  The appellant may be judging that the certain benefit of escaping removal and accepting a lesser penalty exceeds the speculative benefit that he might prevail in the removal appeal, and the incorporation of some discipline into the last-chance settlement agreement makes it more likely that the agency will consider entering into the agreement because the employee will not escape all punishment for the charged offense.




COURT DECISIONS

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

Zadzielski v. Department of the Navy, No. 2011-3213 (Feb. 17, 2012) (MSPB Docket No. PH-0752-11-0188-I-1) (affirming the Board's decision, which upheld the Navy’s action suspending Mr. Zadzielski without pay from his position pending an investigation of his security clearance)

Fitzsimmons v. Department of the Treasury, No. 2011-3206 (Feb. 22, 2012) (MSPB Docket No. NY-0432-10-0212-I-1) (affirming the Board's decision, which affirmed Mr. Fitsimmons' removal for performance-based reasons)


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