U.S. Merit Systems Protection Board 
Case Report for January 18, 2013

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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:  Shannon L. Brough
Agency:  Department of Commerce
Decision Number:  2013 MSPB 2
Docket Number:  CH-0752-11-0786-I-1
Issuance Date:  January 9, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Inappropriate Conduct
Penalty

    The appellant petitioned for review, and the agency cross petitioned for review, of an initial decision that mitigated the appellant's removal to a 14-day suspension.  The agency's removal action was based on charges of inappropriate conduct, absence without leave, and failure to follow proper call-in procedures.  The administrative judge merged the latter two charges because they concerned the same dates and did not involve different misconduct or elements of proof.  After holding a hearing, the judge sustained 3 of the 6 specifications of the inappropriate conduct charge and all of the specifications of the merged charge concerning leave, and mitigated the penalty to a 14-day suspension, finding that this was the maximum reasonable penalty for the sustained misconduct.  Two of the specifications of inappropriate conduct that the judge did not sustain were allegations that the appellant's second-line supervisor directed the appellant to return to his work area and that he refused to do so, and that he told the second-line supervisor that he "would no longer deal with [his first-line] supervisor," and that the supervisor "needed to stay 1,000 feet away from [him]," or 'she was going to get it' or words to that effect."

Holdings:  The Board denied the appellant's petition, granted the agency's cross-petition, and sustained the appellant's removal:

1.   The allegations of error in the appellant's petition for review did not meet any of the criteria of 5 C.F.R. 1201.115.  

2.  The Board found that the agency proved the two specifications of inappropriate conduct described above.

3.  Based on all the sustained charges and specifications of misconduct, the removal penalty was within the bounds of reasonableness.



Appellant:  Charmayne M. Kirkland
Agency:  Department of Homeland Security
Decision Number:  2013 MSPB 3
Docket Number:  CB-7121-12-0003-V-1
Issuance Date:  January 14, 2013
Appeal Type:  Arbitration Appeals/Grievances

Timeliness - Request for Arbitration Review

    The appellant requested Board review of an arbitrator's decision that denied her grievance concerning her removal.  The agency removed the appellant from her Management Program Specialist position based on charges of failure to perform and lack of candor.  The appellant elected to contest the removal through arbitration in accordance the provisions of a collective bargaining agreeement.  Following a hearing, the arbitrator issued an Opinion and Award denying the appellant's grievance, finding that the agency had proven the two charges by preponderant evidence and that the appellant's union failed to prove that the agency engaged in disability discrimination or retaliation for prior protected activity.  The appellant did not request Board review of the arbitration decision until more than two years after the deadline specified in the Board's regulation, which generally requires that a request for review must be filed within 35 days after the date of issuance of the decision.  The appellant contended that there was good cause for the delay in filing because neither the agency's removal decision nor the arbitrator's decision informed her of the right to file a request for review within 35 days of the arbitrator's decision and she exercised due diligence in filing her request for review within 30 days of the date that she became aware of her right to file a request with the Board.  

Holdings:  The Board found that the appellant established good cause for the untimely filing of her request for review and affirmed the arbitrator's decision on the merits:

1.  The appellant established good cause for the untimely filing of her request for review.  

a.  An agency's failure to notify an employee of her Board appeal rights when such notification is required generally constitutes good cause for late filing.  An agency's failure to provide such notice is not cured by attaching a copy of the Board regulations to the agency decision letter.

b.  Although the agency's removal decision did contain information regarding the appellant's immediate options to file a grievance, a Board appeal, or a discrimination claim in the EEO process, it did not inform the appellant, as explicitly required by 5 C.F.R. 1201.21, of her right to request Board review of an arbitration decision within 35 days from the date of issuance.  

c.  The Board rejected the agency's argument that the appellant's untimely filing should not be excused because she was represented by a union attorney in pursuing her grievance.  The critical and controlling fact is not the failure of the appellant's attorney to inform her of her Board appeal rights, but the agency's violation in failing to give the appellant notice of her appeal rights.

2.  The Board will modify or set aside an arbitration decision only when the arbitrator has erred in interpreting a civil service law, rule, or regulation.  The appellant did not establish any such error, and the appellant has not shown that new and material evidence supports reversal of the arbitrator's award.  

3.  The arbitrator used the correct standard of law to adjudicate the appellant's reasonable accommodation claim and made reasoned factual determinations in finding that the agency engaged in the interactive process to find a reasonable accommodation for the appellant's medical conditions.  



Appellant:  Lara Nelson
Agency:  Department of Health and Human Services
Decision Number:  2013 MSPB 4
Docket Number:  DE-3443-11-0109-B-1
Issuance Date:  January 15, 2013

Jurisdiction - "Employee"

    The appellant petitioned for review of a remand initial decision that found that she did not satisfy the definition of "employee" with Board appeal rights under 5 U.S.C. 7511(a)(1)(C)(i).  The appellant was appointed to a position with the Indian Health Service under 5 C.F.R. 213.3116(b)(8), which is a Schedule A excepted service hiring authority.  The agency terminated her employment on November 18, 2010, less than 2 years after the November 23, 2008 effective date of her appointment.  The issue was whether the appellant was an "employee" within the meaning of section 7511(a)(1)(C)(i), i.e., a nonpreference eligible individual in the excepted service "who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service."  It was undisputed that the appellant was a nonpreference eligible individual in the excepted service who was serving in an initial appointment pending conversion to the competitive service.  Accordingly, the dispositive issue was whether the appellant was serving a probationary or trial period at the time of the termination of her employment.  The administrative judge found that the appellant was serving a probationary period at the time of her termination because, as a matter of law, the entire time served in such appointments is a probationary or trial period within the meaning of subsection (a)(1)(C)(i), irrespective of the probationary requirement specifically imposed by the agency.  

Holdings:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction, but clarifying applicable law and overruling contrary precedent:

1.  The judge's ruling was in accordance with an OPM interim regulation and Board precedent in Lopez v. Department of the Navy, 103 M.S.P.R. 55 (2006), and Taylor v. Department of the Navy, 63 M.S.P.R. 99 (1994), but the Board found that a finding that the entire period of an appointment such as the appellant's was probationary was in conflict with the statute.  

2.  A statute should not be interpreted so as to render part of it meaningless.  If the entire period of an appointment pending conversion to the competitive service is a "probationary or trial period," then the statute should simply state that appeal rights attach if an individual "is not serving under an initial appointment pending conversion to the competitive service."  Instead, the statute adds the qualifying language "who is not serving a probationary or trial period."  This strongly suggests that whether an individual had the type of appointment covered by the section and whether the individual had completed a probationary or trial period are separate inquiries.  The Board concluded that the statute contemplates that appointments to an excepted service position pending conversion to the competitive service may include some period after completion of a probationary or trial period when the individual qualifies as an "employee."  

3.  Here, the record shows that the agency required nonpreference eligible employees hired under its Schedule A Indian Preference program to serve a 2-year probationary period, and the appellant was informed of this requirement.  Because the appellant served in her position for less than 2 years, the agency terminated her employment prior to the completion of her probationary period, and the appeal was properly dismissed for lack of jurisdiction.  



Appellant:  Alma B. Hinton
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 5
Docket Number:  AT-0752-11-0476-I-1
Issuance Date:  January 17, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Age Discrimination
Settlement

    The appellant petitioned for review of an initial decision that dismissed her removal appeal as settled.  The agency removed the appellant on improper conduct and she filed a Board appeal, which included a claim that the agency discriminated against her based on age.  The parties entered into a written settlement agreement.  After determining that the Board had jurisdiction over the appeal, the administrative judge found that the agreement was lawful on its face and freely reached  by the parties, and that they understood the terms and agreed that it was to be enforceable by the Board, and dismissed the appeal as settled.  On review, the appellant contended that the settlement agreement was unlawful or the result of fraud.  

Holdings:  The Board affirmed the initial decision to the extent that it dismissed the appellant's non-age discrimination claims as settled, but remanded the appeal for adjudication of her age discrimination claim:

1.  The Board found the appellant's contentions to be without merit and denied her petition for review.  

2.  Before accepting a settlement agreement in an appeal in which age discrimination has been alleged, the Board must first verify that the agency has complied with the provisions of the Older Workers Benefit Protect Act, 29 U.S.C. 626(f)(1).  Among other things, that law requires that a settlement agreement refer to waiver of claims arising out of the Age Discrimination in Employment Act and that the agency advise the appellant in writing to consult with an attorney prior to entering into the agreement.  There is no evidence that the agency complied with these requirements, and this failure invalidated the appellant's waiver of her age discrimination claim.  The Board therefore remanded the appeal to the regional office for adjudication of that claim.  



COURT DECISIONS

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

Harris v. Merit Systems Protection Board, No. 2011-3149 (Jan. 8, 2013) (MSPB Docket No. DC-0752-10-0086-I-2) (vacating and remanding the Board's decision, which dismissed Harris's petition for review as untimely filed)

Mason v. Merit Systems Protection Board, No. 2012-3178 (Jan. 10, 2013) (MSPB Docket No. AT-1221-09-0728-B-1) (affirming the Board's decision, which dismissed this IRA appeal for lack of jurisdiction)

Cummings v. Office of Personnel Management, No. 2012-3202 (Jan. 10, 2013) (MSPB Docket No. DA-0841-12-0100-I-1) (dismissing the appeal for lack of jurisdiction because the Board had not yet issued a final decision)

Holmes v. Department of Justice, No. 2012-3191 (Jan. 11, 2013) (MSPB Docket No. DA-4324-11-0661-I-1) (affirming the Board's decision, which dismissed this USERRA appeal for lack of jurisdiction)

Dunlap v. Department of the Navy, No. 2012-3137 (Jan. 11, 2013) (MSPB Docket No. AT-1221-10-0927-B-1) (affirming the Board's decision, which denied Dunlap's request for corrective action in this IRA appeal)

Jones v. U.S. Postal Service, No. 2012-3149 (Jan. 11, 2013) (MSPB Docket No. AT-0752-10-0788-I-1) (affirming the Board's decision, which affirmed Jones's demotion)

Brothers v. Merit Systems Protection Board, No. 2012-3180 (Jan. 15, 2013) (MSPB Docket No. SF-3151-11-0724-I-1) (affirming the Board's decision, which dismissed the appeal for lack of jurisdiction)

Ulrich et al. v. Merit Systems Protection Board, No. 2012-3035 (Jan. 15, 2013) (MSPB Docket Nos. PH-0752-10-0649-I-1, PH-0351-11-0034-I-1, PH-0351-11-0035-I-1, PH-0752-11-0036-I-1, PH-0752-11-0037-I-1, and SF-0752-11-0079-I-1) (affirming per Rule 36 the Board's decision, which dismissed for lack of jurisdiction the claims of alleged reductions in force and involuntary retirements and resignations)

Mosley v. U.S. Postal Service, No. 2012-3182 (Jan. 15, 2013) (MSPB Docket No. AT-0752-11-0939-I-1) (affirming the Board's decision, which sustained Mosley's removal from the federal service)

Payton v. Department of Homeland Security, No. 2012-3193 (Jan. 15, 2013) (MSPB Docket No. AT-1221-12-0080-W-1) (affirming the Board's decision, which dismissed Payton's appeal under the doctrine of claim preclusion)

Robbins v. Department of the Navy, No. 2012-3177 (Jan. 17, 2013) (MSPB Docket No. SF-0752-11-0788-I-1) (affirming the Board's decision, which dismissed the appeal on the ground that Robbins had waived his right to appeal in a valid settlement agreement)

Staranowicz v. Department of the Treasury, No. 2012-3197 (Jan. 17, 2013) (MSPB Docket No. PH-0752-11-0383-C-1) (affirming the Board's decision, which dismissed Staranowicz's challenge to the validity of a settlement agreement as barred by res judicata)
     
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