U.S. Merit Systems Protection Board 
Case Report for April 5, 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:  Isaac Freeborn
Agency:  Department of Justice
Decision Number:  2013 MSPB 23
Docket Number:  DA-0752-11-0643-I-1
Issuance Date:  March 29, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

Jurisdiction - Involuntary Resignation

    The appellant petitioned for review of an initial decision that dismissed for lack of jurisdiction his appeal of his alleged involuntary resignation.  The appellant was a GS-15 Director at the agency's Bureau of Prisons.  He claimed that, after he admitted during an Office of Inspector General investigation that he had permitted on two or three occasions "soft" contraband (tennis shoes) to enter the prison facility in which he previously worked, the warden of his current facility told him that he was going to suspend him for 10 days immediately and begin his own administrative investigation, or that the appellant could immediately resign.  The appellant asserted that he later learned that this was inaccurate information, in that what would have happened in the absence of his resignation was the issuance of a home duty status letter, which would not have been disciplinary in nature or have involved a nonpay status.  After conducting a hearing, the administrative judge found that the appellant's claim that the warden told him he would immediately serve a 10-day suspension lacked credibility.  

Holdings:  The Board granted the appellant's petition for review and reversed the initial decision, ordering the agency to reinstate the appellant to his former position:

1. The appellant established that his resignation was involuntary.

a. A desision to resign is presumed to be a voluntary act outside the Board's jurisdiction unless the appellant proves that his resignation was involuntary and therefore tantamount to a forced removal.  The touchstone of whether a resignation is voluntary is whether the employee made an informed choice.  An agency has an obligation in this regard to correct any erroneous information that it has reason to know an employee is relying on.

b. After reviewing the evidence, the Board concluded that the appellant erroneously believed that he was facing the choice of being immediately disciplined by means of a suspension for 10 days or resigning, and that the warden had reason to know of that erroneous belief but did not correct it.

2.  Inasmuch as the removal was taken without affording the appellant minimum due process of law, it cannot stand.

3. The Board remanded the case to the regional office to determine whether the appellant wishes to pursue a claim of retaliation for whistleblowing.  



Appellant:  Timothy Allen Downey
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 24
Docket Number:  PH-0752-11-0212-I-1
Issuance Date:  March 29, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Elements and Proof
Penalty - Reasonableness - Disparate Penalties

    The appellant petitioned for review of an initial decision that sustained the charge of sleeping on duty, did not sustain the charge of intimidating fellow employees, and affirmed the removal.  

Holdings:  The Board granted the appellant's petition for review, vacated the portions of the initial decision that sustained the sleeping on duty charge and affirmed the reasonableness of the penalty, and remanded those matters to the regional office for further adjudication:

1. When an agency names a charge so that the label has more than one element, the agency must prove all of the elements for the overall charge to be sustained.  Because the agency labeled its charge against the appellant as "sleeping on duty," it was required to prove both that the appellant was asleep while at work and that he was in a duty status at the time.

2.  Although it was undisputed that the appellant was found sleeping during his scheduled shift, It was disputed whether he was on break at the time and, if so, whether he exceeded his allotted break time.  The administrative judge did not make any findings on these issues or make any credibility determinations to resolve conflicting testimony.

3. Similarly, although the agency charged that the appellant's absence from the floor jeapordized the safety of the patients charged to his care, and compromised the organization's mission to deliver safe patient care, the judge made no explicit findings whether the appellant's sleeping endangered patients' safety.  

4. If on remand the judge sustains the agency's charge of sleeping on duty, she must conduct a new analysis of the reasonableness of the penalty, including an analysis of the appellant's disparate penalty claim.

a. The deciding official testified that he removed the appellant because he concluded that the appellant intended to sleep while on duty.  The appellant denied such intent, but the judge made no finding on this issue.  

b.  Additional findings are necessary regarding the appellant's claim that a similarly situated employee received a lesser punishment.  



Appellant:  Alethia Canary
Agency:  United States Postal Service
Decision Number:  2013 MSPB 25
Docket Number:  NY-0752-11-0145-I-1
Issuance Date:  April 2, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Harmful Procedural Error

    The appellant petitioned for review of an initial decision that affirmed her removal for unacceptable conduct and found that she failed to prove discrimination based on race.  The appellant was a Supervisor of Distribution Operations.  On June 7, 2010, she was involved in a violent altercation with a subordinate employee.  The subordinate employee had a history of aggressive and abusive behavior that was well known to Patty Edwards, the appellant's immediate supervisor, and to Carolyn Davis, the Plant Manager.  Following an investigation and report by the U.S. Postal Inspection Service, Edwards determined that the appellant acted in self-defense and therefore should not receive any discipline.  Although Davis agreed that the appellant acted in self-defense, she believed that a stronger message needed to be sent that anyone acting contrary to the agency's zero tolerance policy should be subject to discipline.  She drafted a letter of warning in lieu of a 14-day suspension for issuance to the appellant.  This draft letter was submitted to the agency's District Labor Department for its review and editing, and officials there raised concerns regarding the lack of severity of the proposed discipline.  As a result, Davis indicated that she would change the letter of warning to a proposed removed, but testfied that, as the deciding official, she had already determined that she would have reduced the action to a letter of warning in lieu of a 14-day suspension.  In the meantime, the Manager of Human Resources for the Northeast Area, reacting to an EEO pre-complaint counseling request from the subordinate employee involved in the altercation, determined that Davis could not be objective as a decision maker in the case.  She selected a Manager of Distribution Operations at a different work facility and a different higher official to serve as proposing and deciding officials.  These individuals proposed and effected the appellant's removal on a charge of unacceptable conduct for her involvement in the June 7, 2010 incident.  

     After conducting a hearing, the administrative judge issued an initial decision sustaining the charge, finding a nexus between the sustained charge and the efficiency of the service, and finding the removal penalty within the bounds of reasonableness.  The judge found that the appellant failed to prove her affirmative defenses of harmful procedural error regarding the replacement of the proposing and deciding officials and discrimination based on race.  

Holdings:  The Board reversed the initial decision in part, finding that the agency committed harmful procedural error in effecting the appellant's removal, and ordered the agency to reinstate the appellant to her position:

1. Under 5 U.S.C. 7701(c)(2)(A), an agency's decision may not be sustained if the appellant shows harmful error in the application of the agency's procedures in arriving at its decision.

2.  The Board rejected the appellant's contention that the agency violated ELM 651.75, which provides that the deciding official "must be higher in authority than the proposing official" and that the "installation head or designee usually makes the decision."  In this instance the deciding official was higher in authority than the proposing official.  The Board also found that the agency did not otherwise commit procedural error when it replaced deciding officials because the agency had not yet issued proposed disciplinary action to the appellant at the time of the replacement.

3. The agency violated ELM 651.73.

a. Section 651.73 of the ELM provides that, "Unless the circumstances of a particular case make it impractical, the employee's immediate supervisor issues a written notice of proposed adverse action."  

b. The judge found that it would not have been practical for Edwards to serve as the proposing official because she found that Edwards could not be objective given her prior experiences with the subordinate employee.  The Board found, however, that the record is devoid of any reason that would make it "impractical" for Edwards to serve as the proposing official.  The record reflects that the agency replaced Edwards because it did not agree with the chosen course of disciplinary action against the appellant.

4. The violation of ELM 651.73 was harmful, i.e., it caused the agency to reach a decision different from the one it would have reached in the absence of the error, because Edwards testified that she would not have issued the appellant any discipline based upon her belief that the appellant acted in self-defense.

     In a dissenting opinion, Member Robbins disagreed with the majority's conclusion that it was not impractical for Edwards to serve as the proposing official.  He pointed to evidence that, prior to the June 7, 2010 altercation between the appellant and the subordinate employee, Edwards had come to believe that this employee was "uncontrollable" and posed a danger to employees at her postal facility.  Edwards' belief was so strong that she sought the assistance of an agency Threat Assessment Team and tried to have the employee barred from agency premises.  Agency management needed to determine whether the appellant was culpable or had acted in self-defense during her June 7 encounter with the subordinate employee.  Because Edwards had already formed an opinion prior to that date that the employee presented a threat to other employees and had tried unsuccessfully to have her barred from agency premises, it is entirely understandable for agency officials to have doubted that Edwards or anyone else at the appellant's postal facility was in a good position to judge whether the appellant's actions on June 7 were justified.  This amounts to a determination that it was "impractical" for Edwards to serve as the proposing official.  Such a determination, which the Board is in no position to second-guess, was within the agency's discretion under agency regulations.  



Appellant:  Kenneth G. Voss
Agency:  United States Postal Service
Decision Number:  2013 MSPB 26
Docket Number:  DA-0752-12-0081-I-1
Issuance Date:  April 3, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Penalty - Disparate Penalties

    The appellant petitioned for review of an initial decision that sustained the agency's charge of unsatisfactory safety performance and affirmed the agency's removal.  In his petition for review, the appellant challenges the reasonableness of the removal penalty, including an assertion that the removal penalty is inconsistent with the penalty given another employee for a similar offense.

Holdings:  The Board affirmed the initial decision insofar as it sustained the agency's charge and found that the agency established a nexus between the charged behavior and the efficiency of the service, but vacated the initial decision regarding the reasonableness of the penalty and remanded the case to the regional office for further adjudication:

1. The consistency of an agency-imposed penalty with those imposed on other employees for the same or similar offenses is one factor the Board will consider in determining whether a penalty is within the bounds of reasonableness.

2. If an appellant shows that the charges and circumstances surrounding the charged behavior of another employee are substantially similar, then the agency must prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld.  To trigger the agency's burden, the appellant must show that there is enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently.

3. Here, the relatively small amount of record evidence shows a substantial similarity between the appellant's charged behavior and the comparator's charged behavior, which was sufficient to trigger the agency's burden to prove a legitimate reason for the difference in treatment.

4.  The limited evidence of record is insufficient to determine whether the agency met its burden.  A remand is therefore necessary.  

     In a separate opinion, Member Robbins stated that he concurred because the precedents cited are controlling and are being applied correctly.  He stated, however, that this cases illustrates concerns he has previously expressed that the Board's decisions in Villada and Lewis, which relaxed the long-established test for impermissible disparity in penalties, improperly inserts the Board into the minutia of basic management decisions regarding reasonable penalties for unacceptable conduct.  He stated that the facts of the present case would have been adequate prior to Villada and Lewis to sustain the initial decision and the reasonableness of the agency's penalty.  In Member Robbins view the additional time, energy, and resources of the Board devoted to developing the record and issuing a new penalty determination will have no corresponding benefit to the efficiency of the service.  



Appellant:  Mary A. Miller
Agency:  Department of the Interior
Decision Number:  2013 MSPB 27
Docket Number:  SF-0752-11-0766-I-1
Issuance Date:  April 3, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Refusal to Accept Directed Geographic Reassignment

    The appellant petitioned for review of an initial decision that affirmed her removal for failure to accept a management directed assignment.  The appellant was a Superintendent at the Sitka National Historical Park in Alaska.  She was removed when she refused to accept the newly created position of Alaska Native Affairs Liaison in Anchorage, Alaska, more than 500 miles from Sitka.  In her Board appeal, she asserted that she did not meet the minimum qualifications for the Liaison position and that her removal was "tainted by discrimination" based on her race, sex, and physical disability.  She also alleged that the action was taken in reprisal for protected EEO activity, that the agency committed harmful procedural error, that the penalty was unduly harsh, and that her removal did not promote the efficiency of the service.  The administrative judge found that the agency proved that its decision to reassign the appellant was based upon legitimate management reasons, that it gave the appellant adequate notice, and that she refused the assignment.  The judge further found that the appellant was qualified to perform the duties of the new position, that the appellant failed to prove any of her affirmative defenses, and that the penalty was reasonable and promoted the efficiency of the service.

Holdings:  The Board vacated the initial decision, reversed the appellant's removal, and ordered her reinstatement, finding that the agency's action did not promote the efficiency of the service:

1. In the past, the Board has used a 3-part framework to analyze adverse actions based on a refusal to accept a directed geographic reassignment:  (1) The agency must establish a prima facie case by demonstrating that its decision was a bona fide determination based on legitimate management considerations in the interests of the service, that the employee had adequate notice of the decision to transfer, and that she refused to accept the reassignment; (2) the burden of going forward with rebuttal evidence then shifted to the appellant, who could show that the reassignment had no solid or substantial basis in personnel practice or principle, but was instead either an improper effort to pressure the employee to resign or was at least an arbitrary and capricious action; and (3) if the appellant successfully rebutted the agency's prima facie case, the agency could come forward with further evidence relating the reassignment to the efficiency of the service.

2.  The Board stated that it was discontinuing this analytical framework for the same reasons that it has eschewed such a framework when analyzing claims of unlawful employment discrimination and retaliation, i.e., once the record is complete, it is irrelevant whether a prima facie case was established.  Instead, the Board weighs all the evidence and makes a finding on the ultimate issue of whether the agency action was discriminatory or retaliatory in nature.  In a directed geographic reassingment case, the ultimate issue is whether the agency has shown that its adverse action promotes the efficiency of the service.  All of the factors identified in previous Board decisions under the 3-step framework remain relevant in such cases, but are considered in terms of this ultimate issue.  

3.  Accepting as true the agency's assertions about its decisions in this case, its removal action did not promote the efficiency of the service.  It asserted that it had a high regard for the appellant's performance as the Superintendent in Sitka.  Indeed, agency witnesses testified that the agency relied upon the appellant's strengths and accomplishments as a Superintendent as the basis for directing her reassignment to the Liaison position.  Accepting this testimony as true, along with the agency's representations that it had independent and legitimate management reasons both for creating the Liaison position and for locating it in Anchorage, more than 500 miles from Sitka, it did not promote the efficiency of the service to direct the appellant to take the position in Anchorage against her will and to remove her from employment altogether when she declined the position.  As a result of the agency's actions, it lost an apparently valued and successful employee and created two vacancies that the agency had to fill after her removal.  



COURT DECISIONS

Petitioner:  Roksoliana Dachniwskyj
Respondent:  Office of Personnel Management
Intervenor:  Theresa Dachniwskyj
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3158
Issuance Date:  April 2, 2013

Retirement - Survivor Annuity 

    At issue in this case was who would receive survivor annuity benefits following the death of Myron Dachniwskyj (Myron).  When Myron retired from the federal service in 1989. he elected to receive a reduced annuity during his lifetime in order to provide a survivor annuity for his wife, Theresa Dachniwskyj (Theresa) should he predecease her.  Myron and Theresa divorced in 1998; weeks later, Myron married Roksoliana Dachniwskyj (Roksoliana).  During the years that followed, Myron received annual notices from OPM explaining that if he wanted to provide survivor annuity benefits to a spouse he married after retirement, he had to send a signed request to OPM within 2 years of the marriage.  Four years after marrying Roksoliana, Myron sent OPM a letter requesting survivor annuity benefits for Roksoliana.  In a subsequent letter to OPM, Myron reiterated his desire for Roksoliana to receive survivor annuity benefits and requested that OPM "remove" Theresa's name from having that status.  OPM approved the request.  After Myron died in 2009, Roksoliana applied for survivor annuity benefits.  OPM granted her application and began paying her benefits.  Theresa also applied for survivor annuity benefits, which OPM denied.  On appeal to the Board, the Board determined that Theresa was entitled to the survivor annuity benefits.  It found that the annual notices provided by OPM were insufficient to notify Myron of the effect of a divorce on the survivor annuity previously designated for Theresa, and that Myron intended for Theresa to receive the survivor annuity.  According to the Board, the communications between Myron and OPM in which he asked for survivor annuity benefits for Roksoliana did not contradict this intent, because those communications only discussed replacing Theresa with Roksoliana as the beneficiary, not removing Theresa.  

Holdings:  The court reversed the Board's decision as not supported by substantial evidence and directed that Roksoliana be awarded the survivor annuity benefits:

1.  Divorce generally terminates a prior election of spousal survivor benefits.  An annuitant who wishes to reinstate the survivor annuity for a former spouse following a divorce must re-elect a survivor annuity annuity within two years of the divorce.  An annuitant who remarries after divorce may elect a survivor annuity for the new spouse with two years of remarriage.  

2.  OPM is statutorily obligated to inform each annuitant annually of his right to elect a survivor annuity.  When this notice is inadequate, and the annuitant's conduct is consistent with his having made the election at issue, OPM should allow the annuitant to make the relevant election, even if would otherwise be untimely, or, if the annuitant is deceased, grant the survivor benefits as if the deceased has made a timely election.

3. Here, the notices sent to Myron failed to inform him that his divorce voided his prior election of spousal survivior benefits, and that he would need to make a new election if he was his former spouse Theresa to have some benefits.  The notices were also insufficient to inform Myron of his rights and obligations with respect to electing his new spouse Roksoliana to receive a survivor annuity.  That being the case, the proper disposition of the survivor annuity benefits is determined by analyzing the evidence of Myron's intent.

4. The Board improperly discounted the evidence and actions taken by Myron that demonstrate his intent to provide a survivor annuity for Roksoliana, not Theresa.  It is true, as the Board found, that an individual's continued acceptance of a reduced annuity following divorce, "standing alone," adequately demonstrates that individual's intent to provide a survivor annuity for the former spouse.  Here, however, Myron's continued acceptance of a reduced annuity does not stand alone.  He took multiple affirmative steps to replace his former spouse with his current spouse as beneficiary, and his actions are completely inconsistent with the intent to continue to provie benefits for his former spouse.  OPM's decisions to grant Roksoliana survivor annuity benefits and to deny Theresa survivor annuity benefits were correct.  



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

Bront v. Department of the Treasury, No. 2012-3121 (Apr. 2, 2013) (MSPB Docket No. SF-0752-11-0583-I-1) (affirming per Rule 36 the Board's decision, which sustained Bront's removal from employment)

McNeel v. Office of Personnel Management, No. 2013-3019 (Apr. 3, 2013) (MSPB Docket No. DE-0831-09-0175-X-1) (affirming the Board's decision, which found that OPM had complied with the Board's final decision requiring OPM to reinstate McNeel's disability retirement benefits)

Jones. v Environmental Protection Agency, No. 2012-3167 (Apr. 3, 2013) (FMCS
No. 11-58940) (affirming the arbitrator's decision that affirmed Jones' removal)

Prewitt v. Office of Personnel Management, No. 2013-3025 (Apr. 3, 2013) (MSPB Docket No. AT-0831-12-0444-I-1) (affirming the Board's decision, which affirmed OPM's denial of Prewitt's request for a deferred retirement)

Williams v. Department of the Air Force, No. 2013-3026 (Apr. 4, 2013) (MSPB Docket Nos. AT-3443-06-0118-B-1 and AT-3443-06-0118-C-2) (affirming the Board's decision which awarded a remedy for the violation of Williams’s rights under the VEOA)

Dice v. Department of Transportation, No. 2012-3139 (Apr. 4, 2013) (MSPB Docket No. DE-4324-11-0186-I-1) (affirming per Rule 36 the Board's decision, which denied Dice's request for corrective action in this USERRA appeal)

Council v. Department of Veterans Affairs, No. 2012-3168 (Apr. 4, 2013) (MSPB Docket No. AT-1221-12-0027-W-1) (affirming the Board's decision, which affirmed Council's removal; because this was not Council’s first adjudicated appeal of that removal decision, the court affirmed the Board’s determination that the appeal was barred by res judicata)

Finger v. Merit Systems Protection Board, No. 2012-3122 (Apr. 4, 2013) (MSPB Docket No. AT-3330-11-0522-I-1) (affirming per Rule 36 the Board's decision, which dismissed as untimely filed Finger's petition for review in this VEOA appeal)

FEDERAL REGISTER NOTICE

     On April 3, 2013, the Merit Systems Protection Board issued a Federal Register notice, 78 Fed. Reg. 20142, announcing that an Information Collection Request has forwarded to the Office of Management and Budget for review and approval of a revised Appeal Form (MSPB Form 185).  The public is invited to comment on the revised form, which is available at the MSPB website at http://www.mspb.gov/appeals/revisedappealform.htm.  Comments must be received on or before May 3, 2013.  

U.S. Merit Systems Protection Board | Case Reports