U.S. Merit Systems Protection Board 
Case Report for May 18, 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:  Cate Jenkins
Agency:  Environmental Protection Agency
Decision Number:  2012 MSPB 70
Docket Number:  DC-0752-11-0348-I-1
Issuance Date:  May 4, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process
Whistleblower Protection Act
 - Elements and Order of Proof
Mootness

    The appellant petitioned for review of an initial decision that sustained the agency's removal action and found that the appellant did not prove her affirmative defenses.  The agency removed the appellant on charges of threatening or attempting to inflict bodily harm and abusive or offensive language. Specifically, the agency charged that the appellant threatened to kill her second-level supervisor and used profanity in addressing the supervisor. Regarding the appellant's affirmative defense of retaliation for protected whistleblowing activity, the judge bifurcated the proceeding into two parts, with the first session limited to the agency's proof of the charges by preponderant evidence and its proof by clear and convincing evidence that it would have taken the same action in the absence of the appellant's whistleblowing activity. The judge stated that, if the agency failed to meet its burdens of proof, a second session would be held to hear evidence relating to the appellant's affirmative defenses. The administrative judge found that the agency proved both charges, and that it proved by clear and convincing evidence that it would have taken the same action in the absence of any whistleblowing disclosure.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the appeal to the regional office for adjudication regarding the appellant's affirmative defenses:

1.  The removal action must be reversed because the agency denied the appellant minimum due process of law.

a.  An agency's failure to give an employee notice of an aggravating factor used as a basis for imposing a penalty may constitute a constitutional due process violation because it potentially deprives the employee of notice of all the evidence being used against her and the opportunity to respond to it.  The issue is whether the information 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."

b.  The record shows that the deciding official relied on guidance in the table of penalties relating to the charge of "generally criminal, infamous, dishonest, immoral or notoriously disgraceful conduct," a charge not referenced in the notice of proposed removal. The deciding official testified that she relied on this part of the table of penalties because she believed the charge was of comparable gravity to those in the notice of proposed removal, and because it allowed for removal for the first offense.

c.  The agency violated the appellant's due process rights by denying her notice of the specific information considered and giving her an opportunity to respond.  The Board found in this regard that the agency's reliance on the recommended penalty for a charge other than those set forth in the notice of proposed removal cannot fairly be deemed cumulative or immaterial to the deciding official's decision.

2.  
The judge erred in bifurcating the proceeding. Although there are circumstances where it is appropriate to determine whether the agency has met its burden by clear and convincing evidence before proceeding to whether the appellant has established a prima facie case of reprisal for whistleblowing, such action is not appropriate when it is impossible to properly evaluate the existence and extent of any retaliatory motive without considering the evidence regarding the appellant's alleged disclosures and the extent to which the relevant management officials were aware of them.

3.  The appellant may be entitled to further relief if she prevails on one or more of her affirmative defenses.  In particular, she may be entitled to attorney fees and consequential damages if she prevails on her claim of retaliation for whistleblowing.  In addition, because the agency is not precluded from reinitiating the adverse action on the same charges, the appellant should be afforded the opportunity to prove her assertions that the agency retaliated against her in violation of 5 U.S.C. 2302(b)(9) and (12).  



Appellant:  John Gaitan
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 71
Docket Number:  DA-0752-10-0202-R-1
Issuance Date:  May 7, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Constitutional Issues - Due Process
Harmful Procedural Error
Indefinite Suspensions
Security Clearance Determinations


    This appeal has very similar facts to those in the Gargiulo decision, 2010 MSPB 64, summarized in the May 4 Case Report.  The appellant was a Federal Air Marshall required to hold a Top Secret security clearance, and he was indefinitely suspended pending a final determination after his clearance was suspended.  As in Gargiulo, the administrative judge sustained the action.

Holding:  The Board affirmed the initial decision as modified, making the same findings as in Gargiulo.  In particular, the appellant had an opportunity to respond to the security clearance determination before he was indefinitely suspended.  This distinguishes the case from McGriff, where it was unclear whether the deciding official on the indefinite suspension had authority to change the outcome of that adverse action.  Due process requires only that the appellant receive a meaningful opportunity to respond to someone with authority to change the outcome of the security clearance determination in either the security clearance proceeding or the adverse action proceeding.  





COURT DECISIONS

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

Gingery v. Merit Systems Protection Board, No. 2011-3225 (May 9, 2012) (MSPB Docket No. CH-3330-10-1038-I-1) (affirming the Board's decision, which denied for lack of jurisdiction Gingery's petition for review of an agency’s failure to appoint him)

Bennington et al. v. Merit Systems Protection Board, No. 2011-3222 (May 9, 2012) (MSPB Docket Nos. CH-0351-10-0110-I-1 et al.) (the Board denied review of an initial decision which had dismissed the petitioners’ appeals as moot, but sua sponte dismissed their appeals for lack of subject-matter jurisdiction; because the court found that the issues raised in this appeal are moot, it dismissed the case on that basis)

Gage v. Merit Systems Protection Board, No. 2011-3219 (May 9, 2012) (MSPB Docket No. CH-0351-10-0802-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction  Gage's appeal alleging that he was furloughed, suspended without pay for more than 14 days, and/or suffered a reduction in pay or grade)

Tatum v. Merit Systems Protection Board, No. 2011-3233 (May 10, 2012) (MSPB Docket No. DA-0752-10-0569-I-1) (vacating and remanding a Board decision that dismissed Tatum's appeal as untimely filed)

Castroverde v. Office of Personnel Management, No. 2012-3012 (May 10, 2012) (MSPB Docket No. SF-0831-10-1038-I-1) (affirming the Board's decision, which affirmed OPM's denial of Castroverde's application for a retirement annuity and to make a service credit deposit under the Civil Service Retirement System)

Rivera v. Merit Systems Protection Board, No. 2012-3019 (May 11, 2012) (MSPB Docket No. AT-0752-11-0696-I-1) (affirming the Board's decision, which dismissed Rivera's appeal as untimely filed without good cause shown)

Fontilla v. Office of Personnel Management, No. 2012-3013 (May 11, 2012) (MSPB Docket No. SF-0831-11-0050-I-1) (affirming the Board's decision, which found that Fontilla is not eligible to make a deposit into the Civil Service Retirement and Disability Fund)

Gonzalez v. Department of Homeland Security, No. 2011-3238 (May 11, 2012) (MSPB Docket No. NY-0752-11-0080-I-1) (affirming the Board's decision, which affirmed the agency's removal action)

Franklin v. Merit Systems Protection Board, No. 2012-3015 (May 14, 2012) (MSPB Docket No. SF-0432-11-0103-I-1) (affirming the Board's decision, which dismissed Franklin's appeal as untimely filed)

Hill v. Merit Systems Protection Board, No. 2012-3024 (May 14, 2012) (MSPB Docket No. AT-3330-11-0408-I-1) (affirming the Board's decision, which dismissed Hill's claim for relief under the Veterans Employment Opportunities Act for lack of jurisdiction because he failed to exhaust the administrative remedy required by 5 U.S.C. 3330a(a)(2)(A))

Lush v. Merit Systems Protection Board, No. 2011-3131 (May 14, 2012) (MSPB Docket No. AT-3330-09-0169-I-1) (affirming the Board's decision, which dismissed Lush's petition for review as untimely filed)

Becker v. Department of Veterans Affairs, No. 2012-3052 (May 15, 2012) (MSPB Docket No. NY-4324-10-0278-I-1) (affirming the Board's decision, which denied Becker's claim under the Uniformed Services Employment and Reemployment Rights Act)

Becker v. Department of Veterans Affairs, No. 2011-3224 (May 15, 2012) (MSPB Docket No. NY-4324-10-0222-I-1) (affirming the Board's decision, which denied Becker's claim under the Uniformed Services Employment and Reemployment Rights Act)

Prichard v. Department of Defense, No. 2012-3045 (May 15, 2012) (MSPB Docket No. SF-0432-10-0852-I-1) (affirming the Board's decision, which refused to address Prichard’s affirmative defenses because they were rendered moot by his reinstatement and award of back pay and benefits)


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