U.S. Merit Systems Protection Board 
Case Report for May 17, 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:  Yong S. Kim
Agency:  Department of the Army
Decision Number:  2013 MSPB 34
Docket Number:  SF-0752-12-0274-I-1
Issuance Date:  May 3, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

Jurisdiction
 - Reduction in Grade
 - Cancellation of Promotion

    The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged reduction in grade for lack of jurisdiction.  The agency selected the appellant for promotion from his position as an Electrical Engineer to a position as a Supervisory Electrical Engineer.  Before the appellant could begin service in the supervisory position, he was deployed to Afghanistan on military duty.  Over 8 months later, the agency retroactively cancelled the appellant's promotion and returned him to his Electrical Engineer position, and he filed an appeal with the Board alleging that he had been improperly reduced in grade.  The issue was whether an employee has suffered an appealable reduction in grade when an otherwise properly effected promotion is cancelled before the employee actually served in the higher-graded position.  Relying on existing case law, the administrative judge resolved that issue in the negative and dismissed the appeal for lack of jurisdiction.

Holdings:  The Board vacated the initial decision and remanded the case to the regional office for further adjudication:

1.  A cancellation of an effected promotion constitutes an appealable reduction in grade.

2.  Under previous Board case law, a promotion was deemed not to have been effected if the employee had not actually performed in the higher-graded position.  The Board recently modified the jurisdictional requirements in such cases, however.  To establish jurisdiction in such a case, an appellant must establish that:  (1) the promotion actually occurred, i.e., it was approved by an authorized appointing official aware that he or she was making the promotion; (2) the appellant took some action denoting acceptance of the promotion; and (3) the promotion was not revoked before it became effective.  The appellant made nonfrivolous allegations of these elements.

3. There is an additional jurisdictional element in cases such as this one, as the law provides that an initial appointment as a supervisor in the competitive service does not become final until the appointee completes a period of supervisory probation.  Here, the facts suggest that the appellant may have been a probationary supervisor at the time of the alleged reduction in grade, and to establish jurisdiction the appellant must show that he was not required to serve a supervisory probationary period or that he completed such a probationary period before the reduction in grade.  Remand for a determination as to these matters is necessary.  



Appellant:  Mary A. Miller
Agency:  Department of the Interior
Decision Number:  2013 MSPB 35
Docket Number:  SF-0752-11-0766-R-1
Issuance Date:  May 13, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Refusal to Accept Directed Geographic Reassignment


    The Board reopened this appeal to vacate its April 3, 2013 Opinion and Order, 2013 MSPB 27, and to substitute a new decision.  

Holdings:  As before, the Board reversed the agency's removal action, finding that the agency failed to establish that removing the appellant for refusing to accept a directed reassignment to a new position more than 500 miles from her existing position promoted the efficiency of the service:

1.  The Board stated that it would no longer use an analytical framework that included a  prima facie case and shifting burdens of production.  Instead, the Board will weigh all of the evidence to determine whether the agency's action promotes the efficiency of the service.  

2. Here, the record evidence does not support a finding that the agency directed the appellant's geographic reassingment due to bona fide management considerations and that her ensuing removal promoted the efficiency of the service.  In reaching this conclusion, the Board noted, among other things, that:  there was no showing that the appellant's reassignment was necessary because her current Superintendent position was being eliminated or because the agency had no need for her continued presence in that position; there was no indication that reassignment was necessary because of any performance problems in the Superintendant position; there was no evidence that reassignment was necessary because of a reduction in force or reorganization; the appellant was not serving in a position with a mobility requirement; and the appellant's declination of the Liaison position did not impair the performance of that position's functions, as the agency had no trouble filling the Liaison position.  



Appellant:  Muhamad Sadiq
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 36
Docket Number:  CB-7121-12-0004-V-1
Issuance Date:  May 16, 2013
Appeal Type:  Arbitration Appeals/Grievances

Arbitration
 - Jurisdiction
 - Review Authority of MSPB
 - Interpretation of Contract

    The appellant sought review of an arbitration award that sustained his removal from his position as a Staff Pharmacist for making errors verifying physicians' medication orders.  The arbitrator found that the agency removed the appellant pursuant to 5 U.S.C. chapter 75 and that the action did not violate the collective bargaining agreeement (CBA).  The arbitrator further found that the agency proved the charges and established that the removal was for "just and sufficient cause," which promoted the efficiency of the service.  The appellant argued, among other things, that the arbitrator failed to properly interpret the CBA as requiring that the removal action be taken under chapter 43, that the arbitrator failed to address his disparate penalty evidence as well as the argument that the agency treated him disparately because of his religion.

Holdings:  The Board granted the appellant's request for review, affirmed the arbitration decision in part, and forwarded the matter to the Board's Northeastern Regional Office for further adjudication of the discrimination issue related to the allegation of disparate penalties:  

1.  The Board has jurisdiction to review the arbitrator's decision, as the subject matter of the grievance (a removal) is one over which the Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C. 2302(b)(1), and a final decision has been issued.  

2. The standard of the Board's review of an arbitrator's award is limited; such awards are entitled to a greater degree of deference than initial decisions issued by the Board's administrative judges.  The Board will modify or set aside such an award only when the arbitrator has erred as a matter of law in interpreting a civil service law, rule, or regulation.  An arbitrator is uniquely qualified to interpret a CBA, which is the source of the arbitrator's authority.  An arbitration award that "draws its essence" from the CBA is entitled to deference, and should only be vacated when it manifests an infidelity to this obligation.

3. The arbitrator's conclusion that the agency had the option to proceed under chapter 75 or under chapter 43 is a plausible interpretation of a purely procedural provisiion of the CBA and not so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the arbitrator's obligation.  

4.  The arbitrator did not set forth any analytical framework for adjudicating the appellant's claims of discrimination or disparate penalty and made no findings on these issues.  Accordingly, the Board has no basis upon which to defer to the arbitrator.  Accordingly, the Board vacated the arbitration decision as to the penalty and, pursuant to its authority in 5 C.F.R. 1201.155(e), forwarded that matter to the Northeastern Regional Office for assignment to an administrative judge to make recommended findings on those issues.  



Appellant:  Kelly L. Stephenson
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 37
Docket Number:  PH-0841-10-0307-M-1
Issuance Date:  May 16, 2013
Action Type:  Retirement/Benefit Matter

Statutory Construction
Disability Retirement Benefits
 - Offset for Social Security Disability Benefits


    This case was before the Board on remand from a decision of the Federal Circuit, 705 F.3d 1323 (Fed. Cir. Jan. 18, 2013), which had reversed the Board's decision.  This case presented an issue of statutory interpretation arising from 5 U.S.C. 8452 and section 223 of the Social Security Act, 42 U.S.C. 423.  Stephenson began receiving a FERS disability annuity in 2005.  He also applied for Social Security disability benefits, as he was required by law to do, and that application was approved.  As required by statute, OPM reduced Stephenson's FERS disability annuity to account for the SSA disability benefits to which he was entitled.  As permitted under the SSA, the appellant engaged in a "trial work period" for 9 months without losing his SSA benefits.  Following Stephenson's successful completion of this trial period, SSA notified him that because he was able to perform "substantial work," it had determined that his disability had ended, and that he was "not entitled to Social Security disability payments beginning September 2009."  SSA further informed him that he was getting an "extended period of eligibility" for 36 months, during which it could "restart payments for any month(s) your work is not substantial if your health problems still meet our rules."  Because Stephenson had stopped receiving SSA disability benefits, he requested that OPM terminate the offset in his FERS annuity.  OPM denied the request, stating that he remained eligible for Social Security benefits, making a distinction between eligibility and actual receipt of such benefits.  In a final decision, the Board, Vice Chairman Wagner dissenting, affirmed OPM's determination.  

     In reversing and vacating the Board's decision, the Federal Circuit stated that the "only dispute is whether Mr. Stephenson was 'entitled' to SSA disability benefits during his extended period of eligibility for any month in which he did not receive SSA disability benefits because he was working."  The court agreed with Stephenson's contention that, under the plain language of section 223, he was not "entitled" to SSA disability benefits during the period in question.

Holdings:  In accordance with the court's decision, the Board remanded the case to OPM to issue a new reconsideration decision recalculating the appellant's FERS disability retirement annuity to account for the cessation of his monthly SSA benefits.  



COURT DECISIONS


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

Willingham v. Department of the Navy, No. 2012-3152 (May 9, 2013) (MSPB Docket No. DC-3330-10-0370-I-1) (dismissing as untimely an appeal from a Board decision that denied corrective action in this VEOA appeal)

Hopson v. Merit Systems Protection Board, No. 2013-3042 (May 10, 2013) (MSPB Docket No. AT-0752-11-0783-I-1) (affirming the Board's decision, which dismissed Hopson's appeal as untimely filed)

Trujillo v. Department of Homeland Security, No. 2012-3192 (May 10, 2013) (MSPB Docket No. DA-0752-10-0436-I-2) (affirming per Rule 36 the Board's decision, which sustained Trujillo's removal)

Pinales-Garcia v. Department of Defense, No. 2013-3038 (May 13, 2013) (MSPB Docket No. AT-3330-12-0205-I-1) (affirming the Board's decision, which denied a request for corrective action in this VEOA appeal)

Levine v. Merit Systems Protection Board, No. 2012-3171 (May 13, 2013) (MSPB Docket Nos. DC-0752-10-0529-I-1 and DE-315H-11-0517-I-1) (affirming two final Board decisions dealing with Levine's termination from employment during his probationary period)

Asatov v. Merit Systems Protection Board, No. 2013-3020 (May 13, 2013) (MSPB Docket No. PH-1221-12-0263-W-1) (affirming the Board's decision, which determined that it lacked authority to grant relief as to Asatov's claim that he was not selected to technician positions with the Connecticut National Guard because of whistleblowing disclosures)

Hoofman v. Department of the Army, No. 2013-3029 (May 13, 2013) (MSPB Docket No. SF-0752-11-0266-I-1) (affirming the Board's decision, which sustained Hoofman's removal on misconduct charges)

Gossage v. Merit Systems Protection Board, No. 2012-3217 (May 13, 2013) (MSPB Docket No. SF-3330-11-0227-I-1) (affirming the Board's decision, which dismissed this VEOA appeal as untimely filed)

Kafele v. U.S. Postal Service, No. 2013-3041 (May 14, 2013) (MSPB Docket No. DA-0353-11-0390-B-1) (affirming the Board's decision, which dismissed this restoration appeal for lack of jurisdiction)

NEW MSPB APPEAL FORM

     After receiving public comment and OMB approval, the MSPB released a new Appeal Form that may be used for filing new appeals.  Among other things, the new Appeal Form:

  • Streamlines and reorganizes the instructions;
  • Updates appellant and agency information;
  • Provides information regarding affirmative defenses and particular classes of appeals; and
  • Provides full contact information for each Board regional and field office.

The new Appeal Form is posted at the Board's public website:  (http://www.mspb.gov/appeals/forms.htm).  The Board's electronic filing system at e-Appeal Online (https://e-appeal.mspb.gov/) has also been redesigned in accordance with the "paper" form.  

U.S. Merit Systems Protection Board | Case Reports