U.S. Merit Systems Protection Board 
Case Report for April 13, 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:  Carolyn Williams
Agency:  Department of Defense
Decision Number:  2012 MSPB 46
Docket Number:  CH-0752-11-0075-I-2
Issuance Date:  March 30, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Indefinite Suspensions
 - Eligibility to Hold Non-Critical Sensitive Position

    Both parties petitioned for review of an initial decision that affirmed the appellant's indefinite suspension.  The appellant held the position of Accounting Technician, which requires that the employee have access to sensitive information.  The agency's Central Adjudication Facility notified her that it had made a tentative determination to deny her eligibility to occupy a sensitive position because "[a]vailable information tends to show [she had] a history of not meeting [her] financial obligations" demonstrating she was "unable or unwilling to satisfy [her] debts."  Although the appellant responded that her financial difficulties were the product of circumstances beyond her control and that she was taking actions to deal with them, the agency indefinitely suspended her pending a decision by its Clearance Appeals Board.  In affirming the indefinite suspension, the administrative judge found that "preponderant evidence supports the agency's basis for terminating the appellant's eligibility to occupy a sensitive position," and that "there is a relationship between the appellant's conduct and her position and that a nexus exists between the agency's cause of action and the efficiency of the service."  

Holdings:  The Board reversed the initial decision and ordered the agency to cancel the appellant's indefinite suspension and reinstate her to her position:

1.  In Department of the Navy v. Egan, 484 U.S. 518 (198), the Supreme Court limited the scope of Board review in an appeal of an adverse action based on the revocation or denial of a security clearance; in such a case the Board may only review whether the employee's position required a security clearance, whether the clearance was denied or revoked, whether the employee was provided with the procedural protections specified in 5 U.S.C. 7513, and whether transfer to a nonsensitive position was feasible.

2.  In Conyers v. Department of Defense, 115 M.S.P.R. 572 (2010), the Board held that the rule limiting the scope of Board review when an adverse action apeal is based on loss of a "security clearance" was not applicable to an indefinite suspension based on the denial of an employee's eligibility to occupy a non-critical sensitive position which did not require that she have a security clearance or access to classified information.  

3.  One of the requirements for an indefinite suspension is that the agency show that it imposed the suspension for an authorized reason.  The Board and its reviewing court have approved indefinite suspensions under three limited circumstances:  (1) when an agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed; (2) when the agency has legitimate concerns that an employee's medical condition makes her continuted presence in the workplace dangerous or inappropriate; and (3) when an employee's access to classified information has been suspended.  

4.  None of the three limited circumstances that allow for an indefinite suspension exists in this case, and the Board found that the facts of this case do not present a basis for expanding the list.  

5.  Because the agency failed to prove by preponderant evidence tht it placed the appellant on an indefinite suspension for a proper reason, the action cannot be sustained.  



Appellant:  LaTonya Marie Hall
Agency:  Department of Defense
Decision Number:  2012 MSPB 47
Docket Number:  CH-0752-11-0260-I-1
Issuance Date:  April 2, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Indefinite Suspensions
 - Eligibility to Hold Non-Critical Sensitive Position

    This appeal concerned an indefinite suspension in circumstances similar to those in the Williams appeal described above.

Holding:  As in Williams, the Board reversed the agency's indefinite suspension and ordered the agency to reinstate the appellant to her position.



Appellant:  Jan S. Stasiuk
Agency:  Department of the Army
Decision Number:  2012 MSPB 48
Docket Number:  DC-0752-09-0342-C-1
Issuance Date:  April 4, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Compliance - Settlement-Related

    The appellant petitioned for review of an initial decision that denied his petition for enforcment.  The underlying appeal, in which the appellant alleged that his removal was effected for making whistleblowing disclosures, was resolved in a written settlement agreement in which the agency agreed to rescind the removal action and reinstate the appellant to his position.  The appellant alleged that the agency breached the settlement agreement by allowing his supervisor to treat him with hostility following his reinstatement.  He alleged that the supervisor took actions to force him to resign or to negatively impact his work performance in retaliation for achieving rescission of the removal action.  In denying the appellant's petition for enforcment, the administrative judge found that the appellant's allegations were insufficient to prove that the agency breached the settlement agreement.  

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

1.  An agency's obligation to implement a settlement term regarding reinstatement is not necessarily fully satisfied the moment it echnically and facially reinstates the employee to the position in question.  Every settlement agreement contains an implicit requirement that the parties fulfill their respective contractual obligations in good faith.  Even if an agreement does not specifically prohibit retaliation or harassment, an agency's post-settlement harassment and retaliation against an appellant may constitute bad faith in implementing a reinstatement term and thereby establish agency noncompliance with the settlement agreement.

2.  The judge failed to construe the appellant's claims of post-settlement retaliation and harassment as allegations of bad faith in implementing the reinstatement settlement term.  As a result of this error, the appellant was not apprised of the means to establish noncompliance based on bad faith, and a remand is required.



Appellant:  Wardell Jackson
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 49
Docket Number:  AT-844E-11-0552-I-1
Issuance Date:  April 6, 2012
Appeal Type:  FERS - Employee Filed Disability Retirement

Disability Retirement

    The appellant petitioned for review of an initial decision that affirmed OPM's reconsideration decision denying his application for disability retirement benefits.  In so ruling, the administrative judge relied on Board precedent that held that the "general" rule in disability retirement cases is that the medical evidence must show how the employee's conditions affect his ability to perform specifc job duties and requirements, and the Mullins-Howard "exeption" in which medical evidence unambiguously and without contradiction indicates that the appellant cannot perform the particular duties of his position did not apply.

Holdings:  The Board vacated the initial decision and remanded the appeal for further adjudication.  In Henderson v. Office of Personnel Management, 117 M.S.P.R. 313 (2012), the Board overruled the precedent on which the administrative judge relied and established a new framework for analyzing claims for disability retirement.  The case was remanded to the regional office for analysis under the Henderson framework.  



Appellant:  Onme C. Pernell
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 50
Docket Number:  DA-0752-10-0174-C-1
Issuance Date:  April 6, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Compliance

    The appellant petitioned for review of an initial decision that denied her petition for enforcment.  In the underlying appeal, the administrative judge found that the appellant was an employee and that the agency removed her without minimum due process of law, and ordered the agency to reinstate her.  The agency did so, but restored her at the GS-9 level.  The appellant contended that she was entitled to be reinstated as a GS-11.  The dispositive issue was whether the appellant had received a fully successful rating in December 2009.  If she did, she was entitled to be reinstated at the GS-11 level.  The agency contended that the fully successful rating was issued as a result of administrative error, because the official who issued that rating was not the appellant's "rating supervisor," and the appellant's official rater rated her performance as unsuccessful.  In denying the appellant's petition for enforcment, the administrative judge agreed with the agency's contention.

Holdings:  The Board reversed the compliance initial decision and ordered the agency to restore the appellant at the GS-11 level:

1.  The fully successful rating on which the appellant relied met the requirements for an official rating of record under 5 C.F.R. part 430, in that it was prepared at the end of the appellant's appraisal period, it included the assignment of a summary level of "fully successful" within a pattern of 5 summary rating levels, and it was issued with all appropriate reviews and signatures.  There is no record that the agency ever took action to rescind that rating.

2.  It was undisputed that the agency granted the appellant a within-grade step increase upon reinstatement.  Such action would be permissible only if the appellant's most recent rating of record was "fully successful."



Appellant:  Colin R. Ford
Agency:  United States Postal Service
Decision Number:  2012 MSPB 51
Docket Number:  AT-0752-11-0694-I-1
Issuance Date:  April 6, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

Res Judicata - Collateral Estoppel

    The appellant petitioned for review of an initial decision that dismissed an appeal on the basis of res judicata (claim preclusion) and collateral estoppel (issue preclusion).  In March 2010, the agency proposed to remove the appellant from his position as a Mail Handler for unsatisfactory attendance.  The appellant's union filed a grievance on his behalf.  Shortly after a hearing before the arbitrator, the appellant filed a Board appeal challenging what he alleged was a removal, even though no decision letter had been issued.  In May 2011, the arbitrator issued a decision in which she sustained the grievance based on a procedural error.  The arbitrator ordered the agency to rescind the notice of proposed removal and reinstate the appellant without back pay to his status prior to the issuance of the notice.  The administrative judge issued an initial decision dismissing the appellant's "removal" appeal for lack of jurisdiction because the agency had not issued a decision on the appellant's proposed removal.  The judge docketed the present appeal as a constructive suspension appeal based upon the appellant's allegation that the agency stopped paying him in March 2010.  The judge issued an initial decision that dismissed the appeal as barred by res judicata on account of the arbitration decision.  In the alternative, he found that the appellant is precluded by collateral estoppel from relitigating the arbitrator's determination regarding back pay.  

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

1.  Res judicata does not bar the appellant's back pay claim.

a.  Res judicata precludes parties from relitigating claims that were, or could have been, raised in a prior action when certain conditions are met.  

b.  It is inappropriate to apply res judicata to arbitration decisions involving Postal Service employees who have Board appeal rights because such employees are permitted to file both a grievance and a Board appeal from the same adverse action.  Dismissal of the constructive suspension appeal was therefore inappropriate.  

2.  Collateral estoppel does not bar the appellant's back pay claim.

a.  A party is collaterally estopped from relitigating an issue when:  (1) The issue is identical to one in a prior action; (2) the issue was actually litigated in the prior action; (3) the previous determination of that issue was necessary to the resulting judgment; and (4) the party precluded by the doctrine had a full and fair opportunity to litigate the issue in the prior action.

b.  The Board found that neither of the first two elements of collateral estoppel were established here.  The action before the arbitrator -- the appellant's proposed removal -- is significantly different from the action at issue here, i.e., the appellant's constructive suspension following the issuance of the notice of proposed removal.  Furthermore, the appellant's entitlement to back pay depends on whether he was ready, willing, and able to perform duties during the period of the alleged constructive suspension.  The arbitrator made no findings regarding that issue.  Accordingly, the Board found that the issue of back pay was not actually litigated in the arbitration proceeding.  





COURT DECISIONS

Petitioner:  Chester A Wilder, Jr.
Repondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3105
Issuance Date:  April 9, 2012

Jurisdiction - "Employee"

    At issue in this case was whether Wilder was an "employee" within the meaning of 5 U.S.C. 7511(a)(1), and thus entitled to appeal his termination as a removal.  Following 26 years in the United States Army, he began working in a civil service position with the Department of the Navy.  Wilder had no previous federal civilian service.  The agency terminated Wilder's employment prior to the expiration of his one-year probationary period.  The dispositive issue was whether Wilder could combine his military service with his civilian service to meet the requirement under the statute that he have "1 year of current continuous service under other than a temporary appointment limited to 1 year or less . . . ."  

Holdings:  The court held that "current continuous service" is limited to "Federal civilian employment."  Although the court found that the statute was ambiguous, the Office of Personnel Management had issued a regulation interpreting the requirement as being limited to "Federal civilian employment."  OPM's interpretation was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  



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

Becker v. Department of Veterans Affairs, No. 2012-3008 (April 4, 2012) (MSPB Docket No. NY-4324-11-0071-I-1) (affirming the Board's decision, which denied Becker's claim for corrective action under the Uniformed Services Employment and Reemployment Rights Act)  

Ramey v. Merit Systems Protection Board, No. 2011-3183 (April 5, 2012) (MSPB Docket No. SF-0752-10-0735-I-1) (affirming the Board's decision, which dismissed Ramey's appeal as untimely filed)

Strader v. Department of Agriculture, No. 2011-3137 (April 5, 2012) (MSPB Docket Nos. SF-1221-09-0692-W-1 and SF-1221-09-0907-W-1) (affirming the Board's decision, which held that the agency did not violate the Whistleblower Protection Act when it allowed Strader's term appointment to expire)

Geiren v. Merit Systems Protection Board, No. 2011-3163 (April 6, 2012) (MSPB Docket No. CH-0752-10-0958-I-1) (affirming the Board's decision, which dismissed Geiren's appeal for lack of jurisdiction on the basis that she was not a preference-eligible veteran)

Baney v. Department of Justice, No. 2011-3212 (April 6, 2012) (MSPB Docket No. DA-4324-11-0135-I-1) (affirming the Board's decision, which found that Baney did not establish claims under USERRA and the Whistleblower Protection Act)

Boyd v. Department of Labor, No. 2012-3021 (April 9, 2012) (MSPB Docket No. AT-0752-10-0687-P-1 and AT-0752-10-0687-I-1) (affirming the Board's decision, which reversed the agency's action demoting Boyd from GS-12 to a GS-11 and denying her request for attorney’s fees)

Morales v. Department of Homeland Security, No. 2012-3004 (April 9, 2012) (MSPB Docket No. DA-3330-11-0112-I-1) (affirming the Board's decision, which denied Morales' request for corrective action under the Veterans Employment Opportunities Act)

Briggs v. Office of Personnel Management, No. 2012-3023 (April 9, 2012) (MSPB Docket No. PH-0843-11-0006-I-1) (affirming the Board's decision, which found that Briggs was not entitled to former spouse survivor annuity benefits under the Civil Service Retirement System)

Olszak v. Department of Homeland Security, No. 2012-3031 (April 10, 2012) (MSPB Docket No. DC-0842-10-0561-I-1) (affirming the Board's decision, which affirmed the agency's denial of Olszak's request for enhanced retirement benefits)

Ebron v. Department of Homeland Security, No. 3011-3173 (April 10, 2012) (MSPB Docket No. DC-0752-11-002-I-1) (affirming the Board's decision, which sustained Ebron's removal on misconduct charges)

Tawadrous v. Department of the Treasury, No. 2012-3028 (April 10, 2012) (MSPB Docket No. DA-0752-11-0106-I-1) (affirming the Board's decision, which sustained Tawadrous's removal on misconduct charges)

Becwar v. Department of Labor, No. 2011-3123 (April 10, 2012) (MSPB Docket No. CH-4324-08-0727-I-2) (affirming per Rule 36 the Board's decision, which found that Becwar was not entitled to corrective action under the Uniformed Services Employment and Reemployment Rights Act)

Siegel v. Department of State, No. 2012-3039 (April 10, 2012) (MSPB Docket No. DC-4324-11-0126-I-1) (affirming per Rule 36 the Board's decision, which denied Siegel's request for corrective action under the Uniformed Services Employment and Reemployment Rights Act)

Pedelose v. Department of Defense, No. 2012-3027 (April 12, 2012) (MSPB Docket No. AT-1221-10-0662-W-1) (affirming the Board's decision, which upheld the agency's decision suspending Pedelose for one day for making rude and disrespectful comments)

Ammons v. Department of Veterans Affairs, No. 2011-3156 (April 12, 2012) (MSPB Docket No. SF-0752-09-0897-I-1) (affirming the Board's decision, which found that the agency was in compliance with the terms of a settlement agreement)


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