U.S. Merit Systems Protection Board 
Case Report for June 21, 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

Petitioner:  Special Counsel
Respondent:  Cruz Salas
Decision Number:  2013 MSPB 43
Docket Number:  CB-1216-09-0010-A-1
Issuance Date:  June 14, 2013
Appeal Type:  Disciplinary Action - Hatch Act
Action Type:  Attorney Fee Request

Attorney Fees
 - Prevailing Party
 - Interest of Justice

    The respondent petitioned for review of an addendum initial decision that denied her motion for attorney fees.  In March 2009, OSC issued a complaint against the respondent alleging that she violated the Hatch Act when she forwarded a political email from her government computer to six individuals, two of whom were her subordinate team members, while on duty in a federal workplace.  After the respondent failed to answer, the administrative law judge deemed the allegations as admitted and ordered the respondent's removal.  The respondent secured representation and filed a petition for review.  The Board set aside the judgment and remanded the complaint for a hearing and decision on the merits.  Before a hearing took place, the parties reached a settlement agreement under which the respondent accepted a 30-day suspension.  The administrative law judge denied the respondent's subsequent petition for attorney fees on the ground that the respondent was not a prevailing party in the proceeding.  

Holdings:  The Board affirmed the initial decision as modified, finding that the respondent was a prevailing party but that she failed to establish that attorney fees were warranted in the interest of justice:

1.  The respondent is a prevailing party.  

a. An agency may be required to pay reasonable attorney fees if the employee was a prevailing party and the Board or adjudicating official determines that payment of such fees "is warranted in the interest of justice."

b. An employee is the "prevailing party" is she obtains an enforceable judgment against the agency or enforceable relief through a settlement agreement.  Here, the appellant achieved enforceable relief through a settlement agreement, in that the removal action mandated by the first initial decision was reduced to a 30-day suspension.  

2.  The respondent failed to establish that an award of attorney fees is warranted in the interest of justice.

a. In Allen v. U.S. Postal Service, 2 M.S.P.R. 420 (1980), the Board identified a non-exhaustive list of 5 situations in which an award of attorney fees is warranted in the interest of justice, including: where the agency engaged in a prohibited personnel practice; where the agency's action was "clearly without merit," "wholly unfounded," or the employee is "substantially innocent" of the charges; and where the agency "knew or should have known that it would not prevail on the merits."  

b. The respondent failed to establish any of these bases for an award of attorney fees.  For example, she was not "substantially innocent" of the charges, as she admitted in the settlement agreement that she engaged in the conduct underlying the charges.  



Appellant:  Melvin Y. Shibuya
Agency:  Department of Agriculture
Decision Number:  2013 MSPB 44
Docket Numbers:  DE-1221-09-0295-W-2, DE-0752-11-0097-I-1, DE-1221-10-0390-W-1
Issuance Date:  June 14, 2013
Appeal Type:  Individual Right of Action (IRA)
Action Type:  IRA "1221" Non-appealable Action

Adverse Action Charges
 - Notice of Charges
 - Poor Judgment
Nexus
Whistleblower Protection Act
 - Contributing Factor
 - Clear and Convincing Evidence

    The agency petitioned for review of an initial decision that reversed the agency's action demoting the appellant on misconduct charges and that ordered corrective action in the appellant's IRA appeals.  The appellant was a GS-14 Branch Chief of Employee Relations.  He alleged that, in April 2008, he disclosed to the Office of Special Counsel (OSC) that the Chief Financial Officer (CFO) of the Forest Service misused his government credit card and was delinquent in paying his government credit card bills.  He contended that, beginning in December 2008, in reprisal for making this disclosure to OSC, the agency investigated him for alleged misconduct concerning his advice to destroy emails that he believed were potentially discoverable in future litigation and, while the investigation was pending, relocated his office and significantly changed his duties.  In August 2009, the Office of Inspector General for the Agriculture Department issued a report of investigation that substantiated the appellant's allegations regarding the CFO and criticised the Department and the Forest Service for the delay in removing the CFO and for awarding the CFO a performance award and a salary increase during a period when the officials taking these actions knew that the CFO's removal was being proposed.  In December 2009, the agency proposed the appellant's demotion to a GS-13 position on two charges:  (1) poor judgment - soliciting the unauthorized destruction of government records; and (2) poor judgment - conduct unbecoming a federal employee, alleging that the appellant engaged an outside attorney contractor to "launder" case analyses drafted by agency employees to create the appearance that the analyses were subject to attorney-client or work-product privilege, thereby protecting the analyses from disclosure in third-party proceedings.  The demotion action was effected in June 2010.  

     The administrative judge joined the appellant's IRA and adverse action appeals.  After holding a hearing, the judge reversed the chapter 75 demotion action and granted corrective action under the WPA in the IRA appeals.  In the chapter 75 action, the judge found that the agency failed to prove either of its charges.  Regarding the charge of poor judgment in soliciting the unauthorized destruction of government records, the judge determined that charge was impermissibly vague as to the meaning of the term "government records," and that the agency identified no law, rule, or regulation that the appellant violated in failing to preserve or maintain the emails at issue.  Regarding the charge of poor judgment - conduct unbecoming a federal employee - the judge found that the appellant's idea of having the contract attorney review the case analyses so that an attorney-client or work-product privilege would attach demonstrated poor judgment, but the practice was abandoned after less than a month, only one employee sent the attorney materials before the appellant rescinded the practice, and the appellant's advice did not rise to the level of actionable misconduct.  Regarding the appellant's claims of reprisal for whistleblowing, the judge found that the appellant established jurisdiction over the IRA appeals, that the appellant proved he made a protected disclosure to OSC regarding the CFO's misconduct, which was a contributing factor in the agency's decision to significantly change the appellant's duties, relocate his office, investigate him for misconduct, and propose and implement the demotion action.  The judge further determined that the agency failed to prove by clear and convincing evidence that it would have taken the same actions absent the appellant's whistleblowing.  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision, and remanded the case to the administrative judge for further adjudication:

1. The agency proved its charge of poor judgment for soliciting the unauthorized destruction of government records.

a. The agency's charge was not impermissibly vague.  The pertinent issue is whether the information provided in the proposal notice was sufficiently specific to permit the appellant to respond to the charge.  Here, the agency was clear that the "government records" to which it was referring were particular emails.  It is well recognized that official emails sent by federal employees are "government records."

b. As for whether the agency identified any law, rule, or regulation that the appellant violated, that is immaterial to whether the agency proved this charge.  This pertains instead to whether there is a nexus between the charge and the efficiency of the service.  The charge must be sustained here because it is undisputed that the appellant solicited the destruction of government records as described in the proposal notice.  

2. The agency proved the second charge of poor judgment - conduct unbecoming a federal employee.

a. As with the first charge, the Board found that the judge conflated nexus and penalty with proof of the charge itself.  That the appellant abandoned his scheme with the contract attorney in less than a month and that only one employee actually sent materials to the attorney, does not mean that the agency failed to prove its charge.  

b. The Board found that the agency proved that:  (1) The appellant engaged the attorney to review the office's case analyses; (2) the purpose of the arrangement was to create the appearance that the case analyses were privileged documents; and (3) the arrangement was nothing more than a "laundering" scheme to improperly protect the case analyses from discovery in future third-party proceedings.  

3.  On remand of the demotion action, the judge must address the issues of nexus and penalty.

4. Although the judge correctly determined that the appellant made a protected whistleblowing disclosure, and that this disclosure was a contributing factor in the demotion and other covered personnel actions, the claims of reprisal for whistleblowing must be remanded for further adjudication of the clear and convincing evidence issue in light of the Board sustaining the two charges in the demotion action.  



Appellant:  Tanuvasa J. Moe
Agency:  Department of the Navy
Decision Number:  2013 MSPB 45
Docket Number:  SF-0752-12-0031-I-1
Issuance Date:  June 14, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Indefinite Suspensions
 - Agency Authority to Order Fitness for Duty Examination

     The appellant petitioned for review of an initial decision that sustained his indefinite suspension for the period from September 24, 2011, to October 11, 2011, and the agency cross-petitioned for review challenging the reversal of the indefinite suspension for the period from October 11, 2011, to November 4, 2011.  The appellant, a Rigger Apprentice at a Navy shipyard, was taken to a hospital on Friday, June 3, 2011, after he had been behaving oddly while on duty, i.e., he was crying, walking in the rain talking to himself, and was unresponsive when approached.  Medical personnel stabilized him with psychotropic medication.  The following Monday, June 6, the appellant's personal psychiatrist cleared him to return the following day without restriction.  The appellant apparently had no further problems after he returned to work on June 7.  On July 15, 2011, however, the agency ordered the appellant to report to a Naval Health Clinic for a fitness for duty (FFD) psychiatric examination.  The head of the clinic's occupational-medicine department performed the examination and issued a report on August 10, 2011, finding that the appellant was not fit for duty, that he was likely a risk to himself or others, and that he should be evaluated by a mental-health professional.  Upon receipt of this report, the agency placed the appellant on paid administrative leave, proposed to suspend him indefinitely, and ordered him to submit to a psychological evaluation by an independent psychologist.  The evaluation was not completed during the notice period as contemplated, and the appellant was indefinitely suspended on September 24, 2011.  In a report dated October 11, 2011, the independent psychologist concluded that, although the appellant was not unconditionally fit for duty, he could return to work immediately if certain specified conditions were met.  The following week, the appellant's personal psychiatrist again cleared the appellant to return to work immediately, but in a later certification form indicated that the appellant would be incapacitated until November 4 while he adjusted to a new treatment regimen.  The appellant was restored to duty effective November 7, 2011, the next workday after November 4.  

     On appeal to the Board, the administrative judge found that the agency had adequate grounds to indefinitely suspend the appellant on September 24, 2011, based on legitimate concerns that his medical condition made his continued presence in the workplace dangerous or inappropriate. The judge also found that the suspension had an ascertainable end, i.e., a determination that the appellant was fit for duty, and that there was a nexus between the appellant's fitness for duty and the efficiency of the service.  The judge determined, however, that the suspension should have ended on October 11, the date the agency received the independent psychologist's report, because it had all of the medical documentation it needed to return the appellant to work.
   
Holdings:  The Board granted the appellant's petition for review, denied the agency's cross petition, and reversed the indefinite suspension in its entirety:

1. At the time the initial decision in this case was issued, the judge did not have the benefit of the Board's decision in Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579 (2012), which considered the extent of an agency's authority to order an employee to undergo a FFD examination.  Under 5 C.F.R. 339.301(b)-(d), an agency may order a medical examination in only three limited circumstances.  In other situations, an agency may offer but not order a medical examination.

2. The agency did not establish that the appellant occupied a position which has medical standards or physical requirements or which is part of an established medical evaluation program, one of the situations in which a medical examination may be ordered, and neither of the other situations applied in this case.  

3. In Doe, the Board noted that both it and its reviewing court have recognized that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so.  Here, the record reflects that the appellant had received a medical release to return to work without restrictions from both the emergency room doctor on June 3 and from his personal psychiatrist on June 6, and there were no other incidents from the time the appellant returned to work on June 7 prior to the agency orderhim to a psychiatric FFD examination.  



Appellant:  Robert Southerland
Agency:  Department of Defense
Decision Number:  2013 MSPB 46
Docket Numbers:  SF-0752-09-0864-B-1 and SF-0752-10-0111-B-1
Issuance Date:  June 18, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Discrimination - Disability
 - Mixed Motive Analysis

    The appellant petitioned for review of a remand initial decision that sustained three charges of misconduct against him, found that he did not prove his affirmative defense of disability discrimination, and affirmed the 30-day suspension and subsequent removal penalties.  The appellant was a long-term Distribution Process Worker who suffered a work-related injury in July 2008.  Upon his return to work in September 2008, he was asigned to perform administrative duties because his medical restrictions prohibited him from lifting more than 10 pounds. In January 2009, and again in March 2009, the agency requested medical information seeking clinicial findings, a diagnosis, and a prognosis, including whether the appellant's condition was permanent, whether there was an estimated date of full recovery, and an explanation of the impact of the condition on the activities of the appellant's job as Distribution Process Worker.  Although the appellant provided prescription slips from his physician ordering continuing light duty, the requested medical information was not provided.  On April 28, 2009, the agency proposed to suspend the appellant for 30 days on a charge of insubordination due to his failure to provide the requested medical information, and the agency issued a decision letter on June 22 effecting the suspension.  On August 12, 2009, the appellant provided the agency with some medical documentation, but on August 20 the agency found it insufficient and issued a third request for medical documentation.  The agency then proposed and effected a removal action on three charges, including a charge of insubordination for not providing the requested information.  

     On appeal to the Board, the administrative judge sustained the other two charges, but not the insubordination charge, and found that the appellant proved his affirmative defense of disability discrimination because the deciding official considered the appellant's disabled status when deciding to remove him and would not have taken the same action in the absence of the discriminatory motive.  The judge reversed both the suspension and removal actions.  On review, the Board affirmed the judge's findings with respect to the other two charges, but vacated the judge's findings with respect to the insubordination charges because he failed to make necessary credibility determinations.  117 M.S.P.R. 56 (2011).  The Board also remanded the appellant's claim of disability discrimination, finding that, under recently issued EEOC regulations implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the analysis should have focused on whether the appellant meets the "regarded as" definition of disability.  The Board also found that the judge's consideration of the appellant's disability discrimination claim should not employ a mixed-motive analysis, but should instead apply a "but-for" analysis, consistent with recent decisions in Gross v. FBL Financial Service, Inc., 557 U.S. 167 (2009), Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), and Brott v. General Services Administration, 116 M.S.P.R. 410 (2011).  On remand, the administrative judge sustained the insubordination charges and affirmed both the suspension and removal actions.  The judge found that the appellant failed to prove his affirmative defense of disability discrimination because, even though the deciding official considered the appellant's disabled status when deciding to remove him on other bases, and even though the appellant met the "regarded as" definition of disability, the appellant failed to show that the agency would not have taken its action but for his disability.

Holdings:  The Board affirmed the initial decision insofar as it sustained the charges against the appellant, but modified the analysis of disability discrimination defense and overruled previous precedent, still sustaining the suspension and removal actions:

1. The administrative judge properly sustained both insubordination charges.  

2. The judge properly concluded that the appellant meets the "regarded as" definition of disability.  

3. A mixed-motive analysis does apply to disability discrimination claims arising under the ADAAA.  

a. Since Southerland was issued, the EEOC has applied a mixed-motive analysis in a case involving a claim of reprisal for protected activity (seeking an accommodation) under the Rehabilitation Act.  Feder v. Holder, Appeal No. 0720110014 (2012). Although the in EEOC Feder did not mention Gross or Serwatka, it explicitly held that, in light of its finding that the complainant's removal was motivated by reprisal for protected activity, "this matter should be reviewed under a mixed-motive analysis because the deciding official also provided a non-retaliatory reason for removing Complainant."  

b. Although the Feder case involved a claim of reprisal for engaging in the protected activity of requesting a reasonable accommodation for his disability, not a claim based on his disability, and the EEOC analyzed the mixed-motive issue in that context, this procedural difference does not require a separate analytical framework because the ADA and ADAAA contain a provision prohibiting retaliation for ADA or ADAAA-covered activity, and various circuit courts have concluded that a request for an accommodation constitutes such covered activity.  The Board therefore found it appropriate to defer to the EEOC's analysis in Feder and overruled its previous finding in Southerland that a "but-for" analysis should apply instead of a mixed-motive analysis.

c. Consistent with Feder, the Board found that the deciding official's statements in the decision letter constituted direct evidence of a discriminatory motive, in that he "consider[ed] the impact of the [appellant's] inability to fulfill the full range of [his] duties on the efficiency of this organization."  He also noted that the appellant occupied a full time position and stated that his "inability to fulfill the full range of [his] duties has a detrimental impact on the ability of this organization to efficiently accomplish its mission," and that it "also causes an unnecessary burden on [his] co-workers who must accomplish [his] duties in addition to their own while [he is] on light duty."

4. Under a mixed-motive analysis, an appellant's remedy is limited if the agency demonstrates by clear and convincing evidence that it would have taken the same action against him absent the discriminatory motive.  

a. Under the Rehabilitation Act, the remedies available to a federal employee who proves disability discrimination are defined by Title VII of the Civil Rights Act of 1964. Under a mixed-motive analysis under Title VII, an employee is entitled to some relief if he proves that his disability was "a motivating factor" in the decision, "even though other factors also motivated the practice."  An agency may limit the extent of the remedy if it demonstrates that it "would have taken the same action in the absence of the impermissible motivating factor."  If the agency meets this burden, the employee may be awarded declaratory relief, injunctive relief, and attorney fees and costs in limited circumstances, but would not be entitled to reinstatement, hiring, promotion, back pay, or damages.  

b. In Feder, the EEOC stated that a complainant's remedy would be so limited if the agency proved by clear and convincing evidence that it would have taken the same action absent the discriminatory motive.  The Board applied the clear and convincing evidence standard here, overruling previous decisions that applied a preponderant evidence standard in mixed-motive cases.  

5. The agency has proven by clear and convincing evidence that it would have removed the appellant absent consideration of a discriminatory motive.  Accordingly, the appellant is not entitled to damages, reinstatement, or back pay.  

     Member Robbins issued a separate opinion concurring with the disposition of the case, but expressing concern over the degree of the Board's deference to the Equal Employment Opportunity Commission.  The Board has long held that, under the mixed case system governed by 5 U.S.C. 7702, it should defer to the EEOC's interpretation of discrimination law.  As did Chairman McPhie, Member Robbins stated that this deference means that when the EEOC has reasonably interpreted a point of discrimination law, the Board cannot properly apply a different interpretation merely because the Board's interpretation is also reasonable.  Congress did not intend, however, that the Board defer to the EEOC's interpretation when it is unreasonable or, as in this case, out of context and contrary to the Board's application of controlling analysis.  Here, the Board had held that a mixed-motive theory cannot be applied to disability discrimination cases under the Supreme Court's decision in Gross, the Seventh Circuit's decision in Serwatka, and the Board's prior decision in Brott.  The EEOC gave no explanation for its holding in Feder applying a mixed-motive analysis; it simply cited the Supreme Court's decision in Price Waterhouse, a Title VII case whose mixed-motive analysis was later codified in amendments to Title VII, and applied this approach to federal sector disability discrimination cases when there is evidence that the employer had a mixture of legitimate and impermissible motives for its action. But context matters, and the Feder claim was based on reprisal for engaging in the protected activity of requesting a reasonable accommodation for his disability, not a claim based on disability discrimination, as in the present case.  Under these circumstances, Member Robbins saw no compelling reason to defer to the EEOC and adopt a mixed-motive analysis.  He would affirm the administrative judge's determination that the appellant failed to prove his disability discrimination claim because he failed to show that the agency would not have taken the action "but for" his disability.  



Appellant:  Ernest J. Harris
Agency:  United States Postal Service
Decision Number:  2013 MSPB 47
Docket Number:  AT-0752-12-0017-I-2
Issuance Date:  June 19, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Furlough (30 Days Or Less)

Jurisdiction
 - Furlough of 30 Days or Less
Collateral Estoppel - Stare Decisis

    The appellant petitioned for review of an initial decision that dismissed for lack of jurisdiction his appeal of an alleged furlough.  The agency and one of its unions reached a Memorandum of Understanding (MOU) governing the conversion of Part-Time Regular (PTR) and Part-Time Flexible (PTF) positions to full-time positions.  Pursuant to the MOU, the agency created a number of Non-Traditional Full-Time (NTFT) positions.  On August 27, 2011, the agency reassigned the appellant from his PFT position to a NTFT position in which he was assigned to work something less than a traditional full-time schedule of five 8-hour days.  The appellant filed an appeal in which he contended that the agency furloughed him each time it gave him less than 8 hours of work in a day.  While the appeal was pending, the agency and the union submitted a dispute about the MOU to national arbitration.  The arbitrator ruled that the MOU permitted the agency to assign NTFT employees to less than full-time schedules.  The administrative judge ruled that the appellant was collaterally estopped from claiming that the agency breached the MOU when it did not give him a full-time schedule.  The judge also ruled that giving the appellant less than a full-time schedule did not constitute an appeable furlough.

Holdings:  The Board affirmed the initial decision as modified:

1. The appellant's placement in a NTFT position did not violate the MOU.  Although the arbitrator's ruling was not binding under the doctrine of collateral estoppel because the issues were not identical, the Board applies the doctrine of stare decisis to national-level arbitration decisins because those decisions are considered to be universally binding on other arbitrators and similarly situated or represented parties.

2. The appellant was not subjected to an appealable furlough.

a. A furlough of 30 days or less is an adverse action appealable to the Board.  

b. A furlough is the temporary placement of an employee in a nonduty, nonpay status because of lack of work or funds or for other nondisciplinary reasons.

c. An employee's tour of duty and the legal consequences flowing therefrom, such as regular periods of inactivity, are conditions of employment and determine whether the Board has jurisdiction over an appeal.  If, as here, the placement of the employee in a nonduty, nonpay status is in accordance with the terms of his appointment, he has not been subjected to an appealable furlough.  



COURT DECISIONS

Petitioner:  Timothy J. Tierney
Respondent:  Department of Justice
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3159
Issuance Date:  June 20, 2013

Veterans' Rights/USERRA
 - Butterbaugh Appeals

    This was a case governed by 5 U.S.C. 6323(a)(1) and Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003), under which it is a violation of USERRA for an agency to charge employees military leave on non-workdays on which they were performing military service.  In his Board appeal, Tierney alleged that he was improperly charged annual leave or leave without pay on 44 non-workdays while performing reserve military duties.  Personnel records introduced by the agency showed that some of the days for which Tierney claimed he was forced to use annual leave or leave without pay fell within pay periods in which Tierney was not charged with any annual leave or leave without pay.  Although the Board's administrative judge did not find that Tierney was entitled to relief for those days, she found that he had established entitlement to relief for 17 of the days in question.  On petition for review, the full Board found that the appellant had not established entitlement to relief on any of the days in question, finding that Tierney's testimony and documentary evidence were based solely on his military records and on the speculation that the agency improperly charged military leave on intervening non-workdays.  

Holdings: A majority of the court, Judge Bryson dissenting, held that Tierney had established entitlement to relief on the 17 days at issue, finding that the Board arbitrarily overruled the administrative judge's credibility determinations and ignored several pieces of relevant evidence.  Both the majority opinion and the dissent relied on the court's previous decision in Duncan v. Department of the Air Force, 674 F.3d 1359 (Fed. Cir. 2012), in which the court denied the claimant relief, in support of their divergent determinations.  

     
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