U.S. Merit Systems Protection Board 
Case Report for September 21, 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:  Michael Anthony Mandarino
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 105
Docket Number:  NY-0831-12-0063-I-1
Issuance Date:  September 14, 2012
Action Type:  Retirement/Benefit Matter

Retirement
 - Jurisdiction - Final Decision

    The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.  The appellant, a GS-13 National Analysis Specialist with Customs and Border Protection, applied for retirement coverage under Public Law No. 110-161, which made customs and border protection officers (CBPOs) eligible for enhanced retirement benefits available to law enforcement officers.  He contended that he occupied a "secondary" position entitled to coverage as someone who supervises CBPOs or who holds an "administrative" position "for which experience in a primary [CBPO] position is a requisite."  By letter dated July 23, 2008, the Assistant Commissioner for Human Resources Management denied his request and advised him of his right to seek reconsideration.  The appellant submitted a timely request in February 2009, but has never received a reconsideration decision.  He filed an appeal with the Board in January 2012.  The agency argued that the appeal should be dismissed because it had not made a decision on the appellant's request for reconsideration, explaining that it could not make a decision without a delegation from the Secretary of the Department of Homeland Security.  The agency further stated that it "has not received a timeframe on when the authority will be delegated or what the composition of the delegat[ed] authority will be."  The administrative judge dismissed the appeal on the ground that the appellant had yet to receive a decision on his request for reconsideration.  The judge acknowledged that the Board may take jurisdiction in a retirement case in the absence of a reconsideration decision when there is evidence that the agency does not intend to issue one, but found that this is not the situation in this case.

Holdings:  The Board reversed the initial decision and remanded the case to the regional office for adjudication on the merits.  Noting that it has been over four years since the appellant first asserted his claim for a retirement benefit granted by statute, and that the agency admits that the timeframe for issuing a decision on his claim is unknown, the Board stated, "Under the unique circumstances of this case, we deem the Department of Homeland Security to have denied the appellant's request for CBPO retirement coverage and take jurisdiction under 5 U.S.C. 8347(d)(1)."  



Appellant:  William J. Clark
Agency:  United States Postal Service
Decision Number:  2012 MSPB 106
Docket Number:  PH-0752-12-0012-I-1
Issuance Date:  September 18, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction
 - "Employee" - Preference Eligible Status

    The appellant petitioned for review of an initial decision that dismissed his appeal of the removal action against him for lack of jurisdiction.  The dispositive issue in this appeal is whether the appellant is an "employee" within the meaning of 5 U.S.C. 7511(a)(1)(B)(ii) and 39 U.S.C. 1005(a).  The resolution of that question turned on whether the appellant is a "preference eligible" within the meaning of 5 U.S.C. 2108, i.e., an individual who served on active duty in the armed forces during one of several prescribed periods and who was discharged or released from active duty "under honorable conditions."  Here, the appellant served in the armed forces during two distinct periods:  one from 1973 to 1977, for which he received an honorable discharge; and one from 1978 to 1985, for which he received a discharge under other than honorable conditions.  The administrative judge determined that because the appellant's second discharge was under other than honorable conditions, the appellant did not qualify as a preference eligible, and as a result, was not an "employee" with appeal rights.  

Holdings:  The Board vacated the initial decision and remanded for further adjudication regarding the appellant's "preference eligible" status:  

1.  Under Board precedent, if an individual is separated from a qualifying period of military service under honorable conditions, a subsequent discharge under other than honorable conditions does not necessarily disqualify him from preference eligible status under section 2108, so long as the discharge was unconditional, i.e., a discharge that occurred at a time when the person has completed the service he was obligated to perform.

2.  The parties did not address applicable Board precedent or whether the appellant's 1977 discharge was conditional or unconditional.  Remand for further adjudication is therefore necessary.  



Appellant:  Robert Hoofman
Agency:  Department of the Army
Decision Number:  2012 MSPB 107
Docket Number:  SF-0752-11-0266-I-1
Issuance Date:  September 18, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Falsification versus Lack of Candor

    The agency petitioned for review of an initial decision that reversed its removal action.  The agency removed the appellant from his position as a GS-11 Construction Control Representative on misconduct charges that included:  (1) driving a government vehicle while under the influence of alcohol; (2) using a government passenger motor vehicle for other than official purposes; and (4) attempting to deceive his supervisor.  (The administrative judge did not sustain the third charge and the agency did not seek review of that finding.)  All three charges stemmed from events on October 23, 2010, when the appellant was arrested and charged under Alaska law with Refusal to Submit to a Chemical Test and Driving Under the Influence.  The agency's charges were based on the charging police officer's affidavit.  (The affidavit described the oral report of the police officer who first arrived on the scene, as well as the charging officer's own observations.)  According to this affidavit, the appellant's government-owned vehicle was stranded atop a sand pile when the police officer arrived.  The appellant was in the driver's seat with the motor running and two other individuals were in the back seat, one of whom reported that the appellant had driven the passengers from a local bar.  According to the affidavit, the appellant had bloodshot and watery eyes, slurred speech, a swaying stance, and a strong odor of consumed alcohol.  The appellant refused to submit to a chemical breath test.  The appellant was arrested and the government vehicle was impounded.  When the appellant called his immediate supervisor from jail to request 10 days of leave for a "family emergency," he failed to report his arrest or that the government-owned vehicle has been impounded.  The appellant pled guilty to Refusal of a Breath Test.  The appellant admitted that his government-owned vehicle became stuck on a sand pile, but claimed he was alone and sober when that occurred.  He said he then walked to his nearby apartment and consumed some alcohol, and that, when he was on his way back to the vehicle, he met two individuals who agreed to assist him in moving it in exchange for a ride.  The appellant said he then tried to "rock the car off the sand by engaging the drive and reverse gears alternatively," which is when the police arrived on the scene.

     The administrative judge ruled that the charging police officer's affidavit was double hearsay and thus had little probative value.  Although the judge found the appellant's story that he was sober and alone when he drove his government-owned vehicle onto the sand pile to be far-fetched, she also found that the agency failed to present any credible evidence to contradict the appellant's version of events.  She therefore found that the agency failed to prove its charges of driving under the influence of alcohol and using a government vehicle for other than official purposes.  The judge found that the agency failed to prove that the appellant attempted to deceive his supervisor by failing to report his arrest and the impoundment of his government vehicle.  Specifically, the judge found that the appellant had a limited ability to talk to others and to explain his situation while he was incarcerated, there was no evidence that any of the statements made to the supervisor were false, or that the appellant gained leave or anything else of value by not telling the supervisor of his arrest, the criminal charges, or the impounded vehicle.  The judge further noted that the appellant told his supervisor of his arrest and the impounded vehicle on his first day back at work.

Holdings: The Board granted the agency's petition for review, reversed the initial decision, and sustained the agency's removal action:

1.  The agency proved its charge that the appellant drove a government vehicle under the influence of alcohol.

a.  Under the relevant Alaska statute, a person can be guilty of driving under the influence without "driving" a car in the usual sense; the statute is violated whenever a person under the influence is in actual physical control of a motor vehicle.

b.  By his own admissions, the appellant was operating the government-owned vehicle within the meaning of the statute, as he did not dispute that he was in the driver's seat with the engine running when the police arrived, and was attempting to remove the vehicle from the sand pile after he had been drinking.

c.  There is preponderant evidence that the appellant was under the influence of alcohol when this occurred.

2.  The agency proved its charge that the appellant used a government passenger motor vehicle for other than official purposes.

a.  The agency's regulations provide that a government-owned vehicle may only be used for official purposes.

b.  By his own admission, the appellant offered to give a ride to two unidentified individuals in exchange for their assisting him in removing the vehicle from the sand pile.  The fact that he was unable to free the vehicle from the sand pile and complete the unauthorized trip did not disprove the charge.

3.  The agency proved its charge that the appellant attempted to deceive his supervisor.

a.  The judge construed this charge as a falsification charge.  The Board found that the charge was more properly construed as a lack of candor charge.  Lack of candor is a broader and more flexible concept than falsification, in that it may involve a failure to disclose something that should have been disclosed to make the given statement accurate and complete.  The critical difference between falsification and lack of candor is that the latter does not require an affirmative misrepresentation.

b.  Here, the appellant was not charged with making an affirmative misrepresentation.  The appellant should have told his supervisor about his arrest and the impounding of his government-owned vehicle in order to make his stated reason for requesting leave "accurate and complete."  

4.  The removal penalty did not exceed the bounds of reasonableness for the sustained charges.  



Appellant:  Lonnie Pace
Agency:  Department of the Treasury
Decision Number:  2012 MSPB 108
Docket Number:  CB-7121-11-0010-V-1
Issuance Date:  September 19, 2012
Appeal Type:  Arbitration Appeals/Grievances

Arbitration

    The appellant sought review of an arbitration decision.  The agency removed the appellant from his GS-7 Tax Examining Technician position based on four charges of misconduct.  The appellant's union filed a grievance that proceeded to arbitration.  After a hearing, the arbitrator issued a decision finding that the agency failed to prove by a preponderance of the evidence that the removal was for such cause as will promote the efficiency of the service.  The arbitrator determined that the agency must reinstate the appellant with a one-time payment equivalent to 4 months of back pay.  Regarding the appellant's claims of discrimination and a hostile work environment, the arbitrator said he did "not see any reason to go to a lengthy discussion relative to discrimination on the part of the Agency in regard to disability and/or race.  In passing, and based upon the evidence, a case could be made that Pace's claims of discrimination could be viewed as arbitrable."  The arbitrator concluded that "the termination was inappropriate" and "an accommodation must be made which is workable for both the Agency and Pace," but that "no compensatory damages are appropriate."  In requesting Board review, the appellant claimed that the arbitrator failed to analyze his claims of discrimination, retaliation, and harassment, and asked the Board make findings on these claims.  He also asked the Board to rescind the removal action in its entirety and to order back pay and other benefits for the entire period of his removal, and to pay other "significant damages for the harm caused to appellant."  

Holdings:  The Board granted the appellant's request for review, vacated the arbitration decision with respect to the appellant's discrimination claims, the denial of compensatory damages, and the limitation of back pay to a 4-month period, and forwarded these matters to the Dallas Regional Office for further adjudication:

1.  An arbitrator's determinations are entitled to deference unless the arbitrator erred in his legal analysis, for example, by misallocating the burdens of proof or employing the wrong analytical framework.  The Board may make its own findings when the arbitrator has failed to set forth any legal standard governing his evaluation of the evidence.  

2.  The Board found that the arbitrator failed to analyze the appellant's discrimination claims under any recognizable legal standard or framework.  Similarly, the arbitrator did not state the standard he applied in deciding to limit the appellant's back pay to a 4-month period or in finding that no compensatory damages were appropriate.  Accordingly, the Board vacated these portions of the arbitration decision and forwarded the matter to the Board's Dallas Regional Office for assignment to an administrative judge to make recommended findings on these issues under the appropriate legal standards.  





COURT DECISIONS

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

Jones v. Merit Systems Protection Board, No. 2012-3114 (Sept. 7, 2012) (MSPB Docket No. DE-3330-10-0361-l-1) (affirming the Board's decision, which dismissed claims arising under the Veterans Employment Opportunities Act when the agency did not select him for a public health advisor position)

Bass v. Merit Systems Protection Board, No. 2012-3086 (Sept. 10, 2012) (MSPB Docket No. CB-7121-11-0022-V-1) (affirming the Board's decision, which dismissed for lack of jurisdiction a request for review of an arbitration decision)

Young v. U.S. Postal Service, No. 2012-3105 (Sept. 10, 2012) (MSPB Docket No. AT-0752-09-0177-X-1) (affirming the Board's decision, which found that the agency breached a settlement agreement and ordered specific performance)

Graves v. Department of the Air Force, No. 2012-3128 (Sept. 10, 2012) (MSPB Docket No. SF-3330-10-0696-I-3) (affirming the Board's decision, which found that the agency did not violate Graves' veterans' preference rights in connection with selections for various vacancies)


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