U.S. Merit Systems Protection Board 
Case Report for September 28, 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:  Leroy Alford
Agency:  Department of Defense
Decision Number:  2012 MSPB 110
Docket Number:  DC-0752-09-0770-I-4
Issuance Date:  September 21, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process of Law
Board Procedures - Federal Witnesses

   The appellant petitioned for review of an initial decision that affirmed his removal.  In February 2009, the agency proposed the appellant's removal from his position as a Management Analysis Officer.  On June 26, 2009, after the appellant submitted both a written and oral response, the agency's deciding official issued an "Update: Notice of Proposed Removal," that notified the appellant that the deciding official was reviewing additional materials -- comprising 3 volumes of documents -- which had not been included with the original proposal notice.  The June 26 Update afforded the appellant 2 weeks from the date he received it in which to provide a written reply and/or request an oral reply relative to the additional materials.  Exactly 2 weeks after receiving the June 26 Update, the appellant sent a letter by certified mail requesting an oral reply.  By the time the designated official personally received the appellant's request for an oral reply, the agency had already issued a decision letter affecting the appellant's removal.  The appellant claimed that the agency's failure to afford him an oral response to the June 26 Update deprived him of due process.  The administrative judge found that it was "through no fault of the agency" that the appellant's request for a supplemental oral reply was received after the decision letter was issued.  The judge found, among other things, that the agency proved its charges, that the appellant failed to prove any of his affirmative defenses, and that the removal penalty was within the bounds of reasonableness.

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision as well as the agency's removal action, vacated the judge's findings as to the appellant's claim of disability discrimination, and remanded that matter to the regional office for further adjudication:

1.  The agency's failure to provide the appellant with a meaningful opportunity to respond to the proposed removal before issuing a decision constitutes a violation of minimum due process of law warranting reversal of the agency's action.

a. The Supreme Court has described "the root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest," which requires a "meaningful opportunity to invoke the discretion of the decisionmaker" before the personnel action is taken.  The Court stated that the "opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement."  An employee cannot be said to have had a meaningful opportunity to present his side of the story and invoke the discretion of the deciding official if that official did not hear the appellant's oral reply to the proposal notice before issuing a decision.  

b.  The Board rejected the judge's finding that the agency's failure to honor the appellant's request for a supplemental oral reply was "through no fault of the agency."  The agency's June 26 Update afforded the appellant 2 weeks from his receipt of the letter in which to file a written response and/or request an oral reply.  By providing the address to which the response and/or request should be sent, the agency indicated that the appellant could do either by mail and that, if he chose to do so, the timeliness of his response would be measured from the date he deposited his response in the mails.  The appellant did so, and the agency was obligated to wait a reasonable time for its delivery.  By failing to do so, the deciding official issued a decision without allowing the appellant to make an oral reply to the agency's updated proposal notice, thereby violating his right to minimum due process.  The agency's action must therefore be reversed.

2.  The appeal must be remanded for further proceedings and a new adjudication of the appellant's disability discrimination claim.  

a.  The appellant sought to present testimony from two of his treating doctors, who were employees of the Walter Reed Army Medical Center, in connection with his claim of disability discrimination.  The judge approved them as witnesses, but counsel for the Medical Center delayed and imposed restrictions, and the doctors did not appear at the hearing.  The appellant filed a motion to reopen the hearing so that he could call the two witnesses.  The judge denied the motion, reasoning that the appellant had failed to secure the attendance of the witnesses.

b.  The Board's regulations provide that every federal agency must make its employees available to furnish sworn statements or to appear as witnesses at a hearing when ordered by the judge to do so.  In light of the restrictions and delays imposed by Walter Reed Army Medical Center, the judge should have ordered the appearance of these witnesses at the hearing.  It was not the appellant's responsibility alone to ensure their appearance.  The Board directed the jduge to conduct a supplemental hearing to obtain testimony from the two doctors and make new findings on the appellant's claim that the agency failed to accommodate his disability.  



Appellant:  John A. Stolarczyk
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 112
Docket Number:  DC-1221-10-0875-W-1
Issuance Date:  September 26, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosure - When Made Through Normal Channels
Timeliness - PFR

     The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The appellant alleged, among other things, that his employment as a Deputy Director of the Business Management Office (BMO) was terminated during his probationary period in retaliation for making protected whistleblowing disclosures.  Specifically, the appellant alleged that he made protected disclosures when he:  (1) reported two employees' improper purchase card ("P-card") purchases to his supervisors, which he believed constituted a violation of law, rule, or regulation and a substantial and specific danger to public safety; and (2) reported to his second- and third-line supervisors his belief that his first-line supervisor abused her authority when she decided not to discipline these two employees.  In dismissing the appeal, the administrative judge found that the appellant failed to make a nonfrivolous allegation of a protected disclosure because the disclosures in question were made as part of the appellant's normal and required duties and through normal channels.  The initial decision informed the appellant that a petition for review must be filed no later than May 27, 2011.  The appellant filed his petition for review more than 3 weeks after that date, on June 21, 2011.  He argued that the filing delay was due to an error by a courier that caused the petition to be delivered to the Office of Special Counsel (OSC) rather than to the Board.

Holdings:  A majority of the Board, Member Robbins dissenting, reversed the initial decision and remanded the appeal to the regional office for adjudication on the merits:

1.  The appellant timely filed his petition for review.

a.  A petition for review must be filed within 35 days of the issuance of an initial decision.  The Board will waive this time limit only upon a showing of good cause for the delay in filing.  

b.  Although the Board has previously held that relying on a courier service to mail or deliver a petition for review does not establish good cause for any delay, those decisions were issued prior to the MSPB amending its regulations in 1993 to specifically provide for service and filing of documents by commercial delivery.  Those regulations define the date of filing by commercial delivery as the date the document is delivered to the commercial delivery service.  

c.  The record indicates that the petition for review, which was addressed to the Merit Systems Protection Board, was given to a courier to be delivered to the Clerk of the Board, but the courier mistakenly delivered it to OSC on May 25, 2011.  Because the date the appellant delivered the petition for review to the courier constitutes the date of filing, the petition was timely filed.  

2.  The appellant made a nonfrivolous allegation that his alleged disclosures were protected under 5 U.S.C. 2302(b)(8).  

a.  In Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), the court outlined three categories into which a disclosure may fall, only the latter two of which constitute disclosures that are protected under the WPA: (1) disclosures made as part of normal duties through normal channels, (2) disclosures as part of normal duties outside of normal channels, and (3) disclosures outside of normal duties.  In other words, the court held in Huffman that reports made as part of an employee’s normal, assigned duties are not protected disclosures under the WPA when made through normal channels.

b.  The appellant nonfrivolously alleged that the typical, normal duties of a Deputy Director in BMO did not include any authority to conduct an investigation into employee misuse of P-cards and that the agency's policy specifically assigned oversight and investigation of P-card misuse to other individuals.  

c.  The appellant also nonfrivolously alleged that he was not assinged to perform an "investigation" of P-card misuse.  Rather, he asserted that the BMO Director only told him to gather facts about one employee's purchase of books using a P-card and that she later became angry and was displeased when she learned that he had conducted interviews, taken statements, and investigated a second employee involved in the P-card misuse.

d.  The appellant made a nonfrivolous allegation that his disclosures to his second- and third-level supervisors violated the agency's chain of command, and were therefore not made through normal channels.

3.  The appellant made a nonfrivolous allegation that his alleged protected disclosures were a contributing factor in a personnel action.  

     In his dissent, Member Robbins explained why he believed the appellant's petition for review should have been dismissed as untimely filed without good cause shown.  He found no evidence that the petition for review was "delivered to [a] commercial delivery service" as required by the regulation.  He expressed the view that the "more likely explanation" was that the "courier" was an employee of the law firm representing the appellant.  Member Robbins stated his disagreement with the majority's alternate finding that there is good cause for the late filing because, under Board case law, a mistake by an attorney's staff ordinarily does not excuse the attorney's failure to meet a filing deadline.  
 


Appellant:  Norma J. Wingate
Agency:  United States Postal Service
Decision Number:  2012 MSPB 113
Docket Number:  SF-0752-10-0714-I-2
Issuance Date:  September 27, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

Discrimination - Age Discrimination

     The appellant petitioned for review of an initial decision in which the administrative judge found that the agency had constructively suspended the appellant and reversed both that action and the appellant's subsequent removal.  The appellant objected to the judge's determination that she failed to prove any of her affirmative defenses, which include age discrimination.  

Holdings:  The Board affirmed the initial decision as modified, clarifying the standard for proving age discrimination:

1.  In adjudicating the appellant's claim under the Age Discrimination in Employment Act (ADEA), the judge applied Bowman v. Department of Agriculture, 113 M.S.P.R. 214 (2010), which in turn relied on Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2010), which held that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action."  

2.  The EEOC has ruled that the Gross "but-for" test does not apply to federal sector employees.  Gross was construing 29 U.S.C. 623a(a), which prohibits discrimination "because of" age, while 29 U.S.C. 633a(a), which governs employees in the federal sector, requires that personnel actions "shall be made free from any discrimination based on age."  Given the more expansive language applicable to federal employees, the EEOC found that a federal employee may prove age discrimination by establishing that age was a factor in the challenged personnel action, even if it was not the "but-for" cause of that action.  The Board overruled Bowman.  


Appellant:  Sonia G. Sapla
Agency:  Department of the Navy
Decision Number:  2012 MSPB 109
Docket Number:  SF-3443-12-0040-I-1
Issuance Date:  September 21, 2012

Jurisdiction - Cancellation of Appointment
   
   The appellant petitioned for review of an initial decision that dismissed for lack of jurisdiction her appeal challenging the agency's withdrawal of a job offer for a position in Guam.  In March 2011, the appellant, a Contract Specialist in Quantico, Virginia, applied for a Contract Specialist position in Guam.  She was selected and accepted the offer.  Shortly thereafter, the agency became aware that the appellant had been residing and working in Guam under a telework arrangement, which made her ineligible for a Permanent Change of Station (PCS) move.  The agency then informed the appellant of its decision to withdraw its job offer for the position, citing the appellant's lack of candor regarding her PCS eligibility.  On appeal to the Board, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege that her appointment to the position in Guam actually occurred and that, even if the appointment had actually occurred, the Board lacks jurisdiction because the agency rescinded the job offer prior to the appellant actually performing in the position.  

Holdings:  The Board denied the appellant's petition for review:

1.  With exceptions that are not relevant to this case, it is well settled that the Board does not have jurisdiction to review an agency's decision not to select a particular applicant for a vacant position.

2.  To establish Board jurisdiction over the cancellation of an appointment, the appellant must show that:  (1) The promotion or appointment actually occurred, that is, that it was approved by an authorized appointing official aware that he or she was making the promotion or appointment; (2) the appellant took some action denoting acceptance of the promotion or appointment; and (3) the promotion or appointment was not revoked before the appellant actually performed in the position.  The judge correctly found that the appellant failed to establish either item (1) or item (3).    



Appellant:  Michael C. Milner
Agency:  United States Postal Service
Decision Number:  2012 MSPB 111
Docket Number:  DC-0752-10-0120-C-1
Issuance Date:  September 25, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Compliance
Mootness
Disability Discrimination

     The appellant petitioned for review of a compliance initial decision that denied his petition for enforcement of a final Board order.  In the underlying appeal, the Board issued a final decision reversing the agency's action placing the appellant on enforced leave from his position as a City Letter Carrier at the Pocoshock Creek Station, and ordered the agency to return the appellant to duty with back pay.  The appellant submitted to a fitness-for-duty examination at the agency's direction, and once he was cleared for duty, the agency returned him to work in a limited duty assignment at a different location, the Richmond Main Post Office.  In his petition for enforcement, the appellant claimed that the agency was not in compliance with the Board's order in two respects.  First, he argued that the agency improperly required him to report for a fitness-for-duty examination before allowing him to return to work.  Second, he argued that the agency improperly placed him in a different position than the one he might have held if he were never suspended.  The administrative judge found that the agency was in compliance with its obligations.  
   
Holdings:  The Board found that the agency had not complied with its prior decision, and ordered the agency to establish its compliance:

1.  The appellant's contention of noncompliance regarding the fitness-for-duty examination is moot.  Because the appellant already reported for the fitness-for-duty examination and was found fit for duty, the Board can no longer grant the appellant any effective relief as to this matter.

2.  The agency has not shown compliance with respect to its action placing the appellant in a different position than to the one he held prior to the improper suspension.

a.  The agency justified its action by explaining that it could not return the appellant to his former bid assignment because his old route at Pocoshock no longer exists, and that, because the appellant's medical restrictions allow him to case, but not deliver mail, its best chance of finding him a full day's work was to place him in a limited duty assignment in the larger Richmond Main Post Office facility.  The appellant argued that, but for his suspension, he would have been entitled to bid on the junior Pocoshock carriers' routes after the agency abolished his former assignment.

b.  The Board agreed that the appellant had not been returned to the status quo ante.   The agency's decision to deny the appellant his contractual rights based on his medical condition violates the Americans with Disabilities Act's restrictions on preemployment disability-related inquiries.  Even if the appellant is ultimately unable to perform the essential functions of any of the junior Pocoschock Letter Carrier routes, he must be allowed to bid on other assignments in accordance with his seniority under the applicable collective bargaining agreeement.  If the appellant is the winning bidder on any of those assignments, only then will it be appropriate to determine whether the appellant will be able to perform the essential functions of the position at issue, with or without reasonable accommodation.  




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