U.S. Merit Systems Protection Board 
Case Report for March 30, 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:  John Doe
Agency:  Pension Benefit Guaranty Corporation
Decision Number:  2012 MSPB 42
Docket Numbers:  DC-0752-09-0881-I-1; DC-0752-10-0223-I-1
Issuance Date:  March 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Fitness For Duty Examinations
Disability Discrimination
Requests for Anonymity

    These appeals involved two suspensions that the appellant alleged the agency improperly took against her.  In may 2009, the agency directed the appellant to undergo a psychiatric fitness for duty (FFD) examination based upon "unusual and inappropriate behavior" the appellant had exhibited in recent months.  In the first incident, the appellant suggested that a co-worker had been in her home on several occasions without her permission.  In the second, the appellant accused her supervisor of calling a transit officer of the Washington, D.C. Metro subway system and providing him the number of the train car on which the appellant was riding. In the third incident, the appellant accused her new supervisor and a higher management official of listening in on her conversations and stated that she knew about the "ear piece."  Shortly thereafter, the appellant emailed the supervisor stating, "Hope you presented yourself well before the hidden camera."  The psychiatrist who conducted the fitness-for-duty examination concluded that the appellant was experiencing a psychotic delusional disorder and was unfit to perform her duties.  He recommended that she "not be considered for potential return to the workplace until a treating practitioner advises that she is stable and has resources sufficient to perform her duties. At that time, she should be returned for follow-up [FFD] evaluation to objectively determine her emotional status and readiness to perform her duties."  Based on the FFD examination, the agency placed on enforced leave status.  This constituted the suspension in the 0881 appeal.  This suspension ended when the appellant submitted a medical report from her doctor which stated that the appellant "does not have a history of being a threat to others and is not a present danger to herself or others.  She is able to retur[n] to work without restriction."  The agency detemined that this report did not contain details and an explanation that would be needed to understand whether the appellant was able to return to work and ultimately placed her in a leave without pay status, which constituted the suspension in the 0223 appeal.  That suspension ended when the agency restored the appellant to administrative leave status.  In both appeals, the administrative judges reversed the suspensions on the basis that under OPM's regulations did not authorize the agency to order a FFD examination.  Absent such authority, the agency could not consider the psychiatrist's report and had no basis for the suspensions at issue.  The judges in both appeals found that the appellant failed to prove her claim of disability discrimination.

Holdings:  The Board affirmed the initial decisions insofar as they reversed the suspensions, but remanded the appeals to the regional office for further adjudication of the appellant's claims of disability discrimination:

1. The Board granted the appellant's request to proceed under a pseudonym because of its finding that the agency improperly ordered the appellant to undergo a FFD examination, and all of the sensitive medical information in both appeals stems from this initial improper order.

2.  The agency lacked authority to order the appellant to take a a fitness for duty examination.  

a.  Under 5 C.F.R. 339.301(b)-(d), an agency may order a medical examination only in three limited circumstances, none of which applies in this case.   An agency may offer, rather than order, a medical examination (including a psychiatric evaluation) in any situation where the agency needs additional medical documentation to make an informed management decision.  

b.  The agency did not have the authority to order the appellant to take an FFD examination under the EEOC regulations implementing the Americans with Disabilities Act.  Although an agency may defend a claim of disability discrimination on the basis that a medical examination is job-related and consistent with business necessity, this does not give an agency independent authority to order an examination that is prohibited under OPM's regulations.

c.  The terms of the collective bargaining agreeement could not authorize a FFD examination under the facts of this case because a collective bargaining agreeement cannot permit something that it prohibited by government-wide rules and regulations.

3.  The appellant's claims of disability discrimination must be remanded for further adjudication:

a.  Because EEOC's regulations implementing the American with Disabilities Amendments Act of 2008 were not issued until after the initial decisions in these appeals, the Board determined that it was appropriate to remand these claims for adjudication under those regulations.

b.  The Board did not find persuasive the appellant's argument that the agency's actions constituted direct evidence of discrimination.



Appellant:  Steve A. Miller
Agency:  United States Postal Service
Decision Number:  2012 MSPB 40
Docket Number:  PH-0752-10-0507-I-1
Issuance Date:  March 23, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade/Rank/Pay

Board Procedures
 - Adjudicatory Error
 - Evidence
 - Credibility Determinations

    The agency petitioned for review of an initial decision that reversed its demotion action, which was based on a charge of improper conduct.  The charge contained 3 specifications, all of which involved the appellant's actions with respect to a worman with whom he had an extramarital affair:  (1) that he accepted the woman as a transfer as a Temporary Rural Carrier and then hired her as a Temporary Employee, selecting her over 11 other candidates; (2) that he gave the woman preferential treatment in 3 specified ways; and (3) that the appellant's improper conduct exposed the agency to liability as a result of a sexual harassment claim that the woman filed after her affair with the appellant ended.  Following a hearing, the administrative judge found that the agency failed to prove its charge and reversed the demotion action.  

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

1.  The Board found the agency's contentions that the judge improperly excluded evidence and testimony regarding specification 1 to be unpersuasive, both because the agency failed to object during the hearing and because it failed to show on review that the excluded evidence or testimony would have affected the outcome.  

2.  In specification 1, the agency alleged that the appellant acted improperly in two respects, but the judge only evaluated the evidence with respect to one of them.  On remand, the judge should make explained findings with respect to both aspects of this specification.  

3.  In specification 2, the agency alleged that the appellant gave the woman preferential treatment in three respects.  The judge only looked at the evidence regarding two of them.  In addition, the judge did not make credibility determinations as to conflicting testimony.  These matters must be resolved on remand.

4.  Specification 3, which alleged that the appellant's improper conduct exposed the agency to liability as a result of a sexual harassment claim that the woman filed, does not support the improper conduct charge, but rather is appropriate in considering the penalty if the charge is sustained.  The Board noted in this regard that the appellant could not control the actions of a third party, and the woman's decision to file a sexual harassment complaint cannot be considered misconduct by the appellant.



Appellants:  Modesta R. Blackhat et al.
Agency:  Department of Health and Human Services
Decision Number:  2012 MSPB 41
Docket Numbers:  DE-0351-11-0177-I-2 et al.
Issuance Date:  March 23, 2012
Appeal Type:  Reduction In Force

Jurisdiction - Reduction in Force

    The appellants petitioned for review of initial decisions that dismissed their reduction in force appeals for lack of jurisdiction.  The appellants were employed by the Indian Health Service (IHS), but their positions were abolished in 2002 when the Tuba City Regaional Health Care Corporation (TCRHCC) took over operations of the Tuba City Indian Hospital and all of its programs.  The appellants were provided employment with TCRHCC while remaining federal employees under the Intergovernmental Personnel Act (IPA).  They were informed that if their IPA assignments were terminated and they were not offered direct employment with TCRHCC, they could be subject to a RIF and possible termination if IHS positions were not available.  When the appellants' assignments with TCRHCC were terminated in the fall of 2010, they were removed from service by RIF and filed appeals with the Board.  The administrative judge dismissed the appeals for lack of jurisdiction.

Holdings:  The Board affirmed the initial decisions as modified:

1.  Because TCRHCC is not part of the federal government subject by statute to competitive or excepted service requirements, the Board lacks jurisdiction over the merits of the termination of the appellants' IPA assignments by TCRHCC.

2.  The negotiated grievance procedure is the exclusive available remedy regarding the RIF actions.  It does not matter whether TCRHCC recognized the union in question; the issue was whether a collective bargaining agreeement between the union and IHS provided for a negotiated grievance procedure with respect to RIFs conducted by IHS.  




Appellant:  Lavake Cowart
Agency:  United States Postal Service
Decision Number:  2012 MSPB 43
Docket Number:  SF-0752-11-0465-I-1
Issuance Date:  March 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Affirmative Defenses
Discrimination

    The appellant petitioned for review of an initial decision that reversed the agency's removal action, but did not adjudicate his affirmative affirmative defenses.  The agency removed the appellant from his position as an Electronic Technician.  On appeal, the appellant alleged marital status discrimination, prohibited personnel practices, and retaliation for whistleblowing and equal employment opportunity (EEO) activity.  After a hearing, the administrative judge found that the agency did not satisfy its burden of showing that it afforded the appellant procedural due process, and that it was therefore unnecessary to address the merits of the case or the appellant's affirmative defenses.  

Holdings:  The Board affirmed the initial decision's reversal of the removal action, but remanded the appeal to the regional office for adjudication of the appellant's affirmative defenses:

1.  Because the agency has not filed a petition for review, the portion of the initial decision wherein the administrative judge reversed the agency's removal action is unchallenged and remains the Board's final decision on that issue.  

2.  Under 5 U.S.C. 7702(a), an appellant has the right to a decision on a claim of discrimination even when the Board has already determined that the action must be reversed on other grounds.  The same is true of other prohibited personnel practices.  A claim of retaliation for protected EEO activity is a claim of discrimination under section 7702 as well as a prohibited personnel practice under 5 U.S.C. 2302(b)(9).  

3.  Some of the appellant's affirmative defense were not specifically identified by the judge in the Order and Summary of Prehearing Conference, and the appellant did not object to that Order. Nevertheless, the record does not establish that the appellant abandoned or withdrew the affirmative defenses not mentioned in the judge's Order.  Accordingly, all of the affirmative defenses must be adjudicated on remand.  



Appellant:  Stephen Strausbaugh
Agency:  Government Printing Office
Decision Number:  2012 MSPB 44
Docket Number:  AT-4324-09-0264-I-4
Issuance Date:  March 27, 2012
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Timeliness - PFR
Veterans' Rights - USERRA

    The appellant petitioned for review of an initial decision that denied his request for corrective action under USERRA.  The agency terminated the appellant's employment during his probationary period citing his personal conduct and failure to follow instructions.  The alleged misconduct occurred while the appellant was on military reserve duty, but was on excused absence from that duty due to an imminent hurricane.  After a hearing, the administrative judge found that the agency terminated the appellant's employment because he failed to follow instructions and engaged in improper and disruptive conduct, and that the appellant failed to prove that his military service was a basis for his termination.  

Holdings:  The Board affirmed the initial decision:

1.  The Board considered the four pleadings submitted by the appellant prior to the deadline for filing a petition for review, but it did not consider his subsequent submissions, as he did not show that these submissions contain evidence or argument that was not readily available before the record closed.

2.  The Board did not consider the agency's response to the petition for review because it was untimely filed without good cause shown.

3.  The administrative judge properly denied corrective action under USERRA.  

a.  In USERRA actions, there must be an initial showing by the employee that the employee's military status was at least a motivating or substantial factor in the agency action.  If the employee makes that showing, the agency must prove that the action would have been taken for a valid reason despite the employee's protected status.

b.  Here, the judge correctly determined that the appellant presented no evidence to show that his military service was a motivating factor in his termination.  USERRA only prevents discrimination on account of service in the military; it does not prohibit an agency from considering events that occur during an employee's uniformed service.  



Appellant:  Diane Ontivero
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 45
Docket Number:  AT-1221-11-0597-W-1
Issuance Date:  March 28, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction.  The appellant's duties included responsibilty for making credit card purchases on behalf of the agency.  In a series of emails to agency employees and managers, she alleged that agency officials requested that she improperly use her government credit card in violation of agency rules and regulations.  She alleged that, at the end of the next performance evaluation period, she received only an "achieved expectations" rating, and that this rating was taken in retaliation for her disclosures.  On appeal to the Board, the administrative judge dismissed the appeal for lack of jurisdiction.  The judge found that the appellant's disclosures were not protected because they were made as part of her "normal duties" within "normal channels."  The judge further found that, even if the disclosures had been made outside of "normal channels," she failed to show that she reasonably believed that her disclosures concerned violations of law, rule, or regulation.  

Holdings:  The Board reversed the initial decision, finding that the appellant established jurisdiction, and remanded the appeal to the regional office for adjudication on the merits:

1.  The appellant made a nonfrivolous allegation that her disclosures were protected.

a.  As the appellant made her disclosures to agency officials in upper management, the disclosures cannot be considered to have been made within "normal channels."

b.  The appellant established that she had a reasonable belief that the information she disclosed showed a violation of the agency's government credit card rules and policy.  

2.  The appellant made a nonfrivolous allegation that her disclosures were a contributing factor in her performance evaluation by establishing that the official taking the action was aware of her disclosures, and the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.  



COURT DECISIONS

Petitioner:  Nyles Duncan
Respondent:  Department of the Air Force
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3053
Issuance Date:  March 29, 2012

Veterans' Rights - USERRA

    This case involved a "Butterbaugh" claim in which Duncan claimed that he was improperly forced to take annual leave for 6 days in 1996 and 1997 because the agency charged him with military leave for military duty served on non-workdays.  Duncan's testimony and recollection was the sole basis for his claim that he was required to use annual leave to cover leave for military duty served on non-workdays.  It was undisputed that his civilian pay and leave records no longer existed.  The Board found as a matter of law that Duncan failed to establish by preponderant evidence that the agency improperly charged military leave on non-workdays and that he was required to use annual leave to fulfill his military obligations on the dates specified.  

Holdings:  The court affirmed the Board's decision.  In so ruling, the court stated that it was not creating a blanket rule; rather, it was holding that determinations regarding the sufficiency of the evidence must be determined by the Board on a case-by-case basis, and would not foreclose the Board from relying on an appellant's testimony in appropriate circumstances.  



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

Dolinsky v. Department of Homeland Security, No. 2011-3140 (March 23, 2012) (MSPB Docket No. CH-1221-09-0173-M-1) (affirming the Board's decision, which denied corrective action under the Whistleblower Protection Act)

Hunt v. Merit Systems Protection Board, No. 2011-3001 (March 27, 2012) (MSPB Docket No. CH-0831-09-0791-C-1) (affirming the Board's decision on the basis that the court found no reversible error, but remanding for a determination whether any issues remain unresolved, particularly Ms. Hunt’s request to redeposit her retirement deductions)


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