U.S. Merit Systems Protection Board 
Case Report for March 23, 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:  Cody N. Seeler
Agency:  Department of the Interior
Decision Number:  2012 MSPB 36
Docket Number:  SF-0752-11-0288-I-1
Issuance Date:  March 16, 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 for refusal to attend manadatory training.  The appellant was appointed to a Park Ranger position in September 2008.  He was removed in January 2011 for refusing to attend mandatory Federal Law Enforcement Training, which made him no longer qualified for his position.  In his appeal to the Board, the appellant asserted that he was not aware of the training requirements at the time of his appointment.  He also objected to the deciding official's reliance on information that was not mentioned in the notice of proposed removal.  The decision letter referenced a comment that the appellant allegedly made to a supervisor that she should have lied to the agency about their conversation regarding the training requirements so that the agency would not have known that she had informed him of the training requirements at the time of his appointment.  According to the appellant, this alleged statement was "unfounded" and "slanderous."  The agency argued that this statement was merely cumulative of information already in the record regarding the timing of the appellant's knowledge.  In affirming the agency's removal action, the administrative judge found that it was undisputed that the agency offered the appellant the opportunity to attend the training and that he declined to do so.  The judge found that the appellant was clearly on notice of the requirement to attend the training and that his argument that he was not informed of the requirement at the time of his appointment was unavailing.  

Holdings:  A majority of the Board reversed the initial decision and ordered the agency to rescind the removal, finding that the agency had denied the appellant minimum due process in effecting his removal:

1.  As reflected in Stone v. Federal Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999), and Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), ex parte communications that introduce new and material information to the deciding official violate the due process guarantee of notice.  Ultimately, the inquiry is whether the ex parte communication was so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under the circumstances.  

2.  The ex parte communication between the deciding official and two of the appellant's supervisors was material and denied the appellant due process.

a.  In both her decision letter and her declaration, the deciding official distinguished the appellant's removal from other situations in which employees remained employed after failing to obtain the mandatory law enforcement commission, in that the other employees had attempted to complete the mandatory training and failed, whereas the appellant refused to attend training despite knowing that it was mandatory "upon accepting the position in 2008."  Ex parte communication is plainly material when the deciding official has admitted that the information influenced her penalty determination.  

b.  When an employee has been deprived of due process, the agency may not remove him unless and until he is afforded an entirely new and constitutionally correct removal proceeding.

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    In her dissent, Member Rose first noted that the administrative judge found that there was no due process violation and that the appellant did not challenge this finding on review.  She stated that it was inappropriate for the Board to raise this matter sua sponte.  Second, she would have found that the ex parte communication was not material.  It was undisputed that the appellant knew he was required to attend the training and that he refused to do so.  Member Rose described this case as a "classic example of merely cumulative information that does not rise to the level of a due process violation under Stone," and that this decision "makes it difficult to imagine any new information that the Board would find to be cumulative under Stone."  



Appellant:  Shawn Gregory McNeil
Agency:  Department of Justice
Decision Number:  2012 MSPB 38
Docket Number:  AT-0752-11-0058-I-1
Issuance Date:  March 21, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Testing Positive for Use of an Illegal Drug
Credibility Determinations
Nexus
Penalty

    The agency petitioned for review of an initial decision that reversed its removal action.  The agency removed the appellant from his position as a Correctional Officer based on a charge of providing a urine sample that tested positive for an illegal drug (marijuana).  The appellant did not challenge the agency's drug-testing procedures or the laboratory results.  He instead claimed that his estranged and pschologically-troubled wife tricked him into smoking a marijuana-laced cigar and then reported the drug use to the warden, and that his ingestion of marijuana was unintentional.  The administrative judge found that the agency was required to prove that the appellant's ingestion of marijuana was intentional to satisfy the efficiency of the service standard. Following a hearing, the judge found that the evidence corroborated the appellant's version of the events and reversed the agency's removal action.  

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

1.  The Board must give deference to an administrative judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has "sufficiently sound" reasons for doing so.  After a detailed examination of the evidence, the Board concluded that it must defer to the judge's credibility determinations and findings of fact, i.e., that the appellant ingested the marijuana unintentionally.  

2.  The Board declined to make a determination whether there was a nexus between the grounds for its action and the efficiency of the service because, even assuming that such a nexus exists, the penalty of removal is unreasonable and the maximum reasonable penalty is no penalty at all.



Appellants:  David Dean and Larry Evans

Agencies: Office of Personnel Management and Department of Veterans Affairs
Decision Number:  2012 MSPB 39
Docket Numbers:  AT-3330-10-0534-C-2 & R-1; AT-3330-09-0953-R-1
Issuance Date:  March 22, 2012

OPM Request for Reconsideration
Compliance
Mootness

     OPM petitioned the Board for reconsideration of the decision in Dean v. Office of Personnel Management, 115 M.S.P.R. 157 (2010), in which the Board held that the Federal Career Intern Program (FCIP) was flawed because it was inconsistent with the Civil Service Rules that govern placement of positions in the excepted service and because it did not require a justification for placement of positions in the excepted service as required by statute.  Following the issuance of this decision, the President abolished the FCIP by Executive Order and instituted the new Pathways hiring program, ostensibly to replace the FCIP.  Appellant Dean filed a petition for enforcment of the Board's published decision in which he requested that the Board hold:  (1) that the Pathways Program is invalid; and (2) that all individuals appointed by the FCIP who are currently in a probationary period be terminated.  OPM responded that the Executive Order terminating the FCIP rendered Dean's petition for enforcment moot.  The administrative judge found OPM's argument in this regard persuasive.  OPM expressed its willingness to withdraw its request for reconsideration of the Board's previous decision in the event that the Board holds that the President's Executive Order ending the FCIP moots the Board's order for relief in that decision.  

Holdings:  The Board denied Appellant Dean's petition for review and dismissed OPM's petition for reconsideration as withdrawn:

1.  The Executive Order rescinding the FCIP moots OPM's obligations under the Board's order.  

a.  In a typical nonselection case under the Veterans Employment Opportunities Act (VEOA), the Board orders reconstruction of the hiring process consistent with the law to ascertain whether the appellant would have been selected for the position he sought.  In the case in chief, however, Appellant Dean did not claim that OPM had denied him any particular job.  

b.  Accordingly, the Board held that the relief to which Appellant Dean was entitled was to order OPM to comply with 5 U.S.C. 3302(1).  The complete rescission of the FCIP renders Appellant Dean's petition for enforcment moot.  In accordance with OPM's offer to withdraw its petition for reconsideration in the event of such a holding, the Board dismissed OPM's petition for reconsideration as withdrawn.

2.  The Board lacks jurisdiction over Appellant Dean's challenge to the Pathways hiring program.  
Any party may petition the Board for enforcement of a final decision or order issued puruant to the Board's appellate jurisdiction.  Appellant Dean is not seeking to enforce a final Board decision or order regarding the Pathways Program.  Rather, he essentially asks the Board to decide a new VEOA appeal, i.e., to determine that the Pathways Program violates his rights protected under the VEOA.  The Board lacks authority to do so pursuant to its jurisdiction to enforce its final decisions and orders.  The appellant must file a new appeal if he wishes to challenge the Pathways Program under the VEOA.  




Appellant:  Marguerite Pridgen
Agency:  Office of Management and Budget
Decision Number:  2012 MSPB 34
Docket Number:  DC-3443-11-0529-I-1
Issuance Date:  March 16, 2012

Jurisdiction

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  She had alleged that the Office of Management and Budget (OMB) added an experience requirement to the mandatory qualifications for a particular vacancy in order to disqualify all but the current detailed incumbent from consideration for the position.  She also alleged that OMB engaged in prohibited personnel practices by giving unauthorized preferential treatment to an employee or applicant, and by discriminating on the basis of personal conduct unrelated to performance.  In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant had failed to identify any law, rule, or regulation under which an employee could appeal a nonselection action and that prohibited personnel practice claims do not provide an independent source of Board jurisdiction.  On review, the appellant alleged that OMB tailored the vacancy announcement at issue in a manner that discriminated against her on the basis of age, race, and sex.  She also asserted that the Board has jurisdiction under the Presidential and Executive Office Accountability Act, 3 U.S.C. 401.   

Holdings:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1.  As the administrative judge correctly observed, a nonselection for an appointment is generally not appealable to the Board, and a claim of discrimination does change this general rule because prohibited personnel practices are not an independent source of Board jurisdiction.  

2.  The Presidential and Executive Office Accountability Act authorizes appeals to the Board by covered employees who allege violations of certain workplace laws, including the Family and Medical Leave Act and the Fair Labor Standards Act.  Even if the appellant is a covered employee, she has not alleged an action within the purview of this Act.  



Appellant:  Ollie Rucker
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 35
Docket Number:  CH-844E-11-0340-I-1
Issuance Date:  March 16, 2012
Appeal Type:  FERS - Employee Filed Disability Retirement
Action Type:  Retirement/Benefit Matter

Disability Retirement
 - Bruner Presumption

    OPM petitioned for review of an initial decision that reversed its reconsideration decision denying the appellant's application for disability retirement.  After the agency removed the appellant for "unacceptable performance," she filed an "expedited grievance," which was settled when the agency agreed to change the stated basis for the removal to "medical inability to perform."  When the appellant subsequently applied for disability retirement, she described her condition as congestive heart failure.  OPM denied the application, finding that the appellant failed to submit evidence showing that her condition was incompatible with her duties prior to removal.  On appeal, the administrative judge found that, under Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), the appellant's removal for inability to perform her duties established a prima facie case of entitlement to disability retirement benefits.  The judge acknowledged that the appellant failed to submit evidence from any medical professional showing that she was unable to provide useful and efficient service, but found that OPM failed to rebut the presumption of entitlement.

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

1.  The administrative judge properly found that the appellant was entitled to the Bruner presumption of disability because she was removed based on her physical inability to perform her job duties.

2.  Under Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995), and related Board case law, OPM can meet its burden of production by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements. OPM met that burden in this case.  

3.  Here, where the appellant failed to submit medical evidence showing that she was unable to render useful and efficient service in her position, OPM met its burden of rebutting the Bruner presumption.  

4.  A remand is necessary to adjudicate the appellant's entitlement to disability retirement under the principles recently announced in Henderson v. Office of Personnel Management, 117 M.S.P.R. 313 (2012).  



Appellant:  Muriel Smith
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 37
Docket Number:  PH-844E-11-0217-I-1
Issuance Date:  March 20, 2012
Appeal Type:  FERS - Employee Filed Disability Retirement
Action Type:  Retirement/Benefit Matter

Timeliness - PFA

    The appellant petitioned for review of an initial decision that dismissed her disability retirement appeal as untimely filed.  The appellant's Board appeal was filed more than 13 months after the deadline for timely filing following OPM's final decision denying her application for disability retirement benefits.  Her application was based on multiple medical conditions, including depression and panic disorder.  In response to the administrative judge's show cause order on timeliness, the appellant asserted that she had enormous difficulties understanding the correct procedures to file an appeal due to her mental health condictions, which she identified as "major depressive disorder, depression, agorphobia, and panic disorder," and she provided detailed medical reports that her psychiatrist prepared in July 2009 (OPM issued its final decision in November 2009) to support her claims.  The administrative judge faound that the appellant failed to establish good cause for waiving the time limit because OPM had provided instructions on how and when to appeal its decision and the appellant failed to meet her burden to show that her medical conditions impaired her ability to meet the deadline.  

Holdings:  The Board found that the appellant established good cause for her delay in filing and remanded the case to the regional office for adjudication on the merits:

1.  The Board will find good cause for a filing delay when an appellant has demonstrated that she suffered from an illness that affected her ability to file on time.  To establish than an untimely filing was the result of an illness, the party must:  (1) identify the time period during which she suffered from the illness; (2) submit medical evidence showing that she suffered from the alleged illness during that time period; and (3) explain how the illness prevented her from timely filing her appeal or a request for an extension of time.  

2.  According to the detailed medical reports submitted by the appellant's psychiatrist, he diagnosed her with major depressive disorder and panic disorder with agorphobia.  These conditions severely impaired her attention, concentration, and immediate and recent memory to the extent that she was unable to leave home or function independently.  Of particular relevance were the psychiatrist's findings that the appellant's abilities to focus on tasks and to complete any work were severely impaired.  



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