U.S. Merit Systems Protection Board 
Case Report for August 2, 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:  Peter A. McMillan
Agency:  Department of Justice
Decision Number:  2013 MSPB 53
Docket Number:  DC-4324-11-0726-I-2
Issuance Date:  July 16, 2013
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Veterans' Rights/USERRA
 - Discrimination

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this USERRA appeal.  The appellant, an officer in the United States Army Reserves, is employed as a Special Agent with the Drug Enforcement Administration (DEA).  He began a tour of duty at the DEA's Lima, Peru Country Office, in 2007.  During that tour of duty, he was called to active duty for a period of 4 weeks.  The appellant's military supervisors tasked him with conducting an intelligence assessment on "how DEA's expulsion from [Bolivia] has affected drug trafficking in [Bolivia], with additional discussion on any political (corruption), or societal effects."  In the course of performing his military duties, there was conflict and friction between the appellant and civilian officials in the DEA.  The appellant's subsequent request for an extension of his tour of duty was denied.  In his USERRA appeal, the appellant contended that his tour of duty would have been renewed but for his run-ins with his managers over his military assignments.  Following a hearing, the administrative judge denied the appellant's request for corrective action, finding "no evidence that the appellant's status or obligations as a military reservist played any part whatsoever" in the agency's decision.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1. USERRA prohibits discrimination based on the content and performance of specific military obligations.

a. Title 38 U.S.C. 4301(a) provides that a covered employee may not be denied any benefit of employment on the basis of membership, performance, or obligation to perform service in a uniformed service.  This section protects both military status, e.g., membership in the reserves, and military activity, e.g., performance of service.

b. Although Congress was concerned primarily with acts of discrimination and reprisal based on the fact of an employee's military service and the absences such service entails, the Board concluded that USERRA should be read to prohibit adverse employment actions based on the content and performance of any military assignment, general or specific.  

c. USERRA does not prohibit an employer from taking action against an employee for gratuitous misconduct in the course of performing military duties, and the protection of 4311 is based upon the employee's compliance with the reasonable and ordinarily accepted standards of personal conduct and performance of all employees.  However, to the extent an employee's military duties are themselves at odds with the interests of the civilian employer, the employer may not take action action the employee on that basis.  

2.  Remand was required because the existing record was insufficient to determine whether the agency had discriminated against the appellant because of his military service.  The Board outlined the specific factual and credibility issues that must be resolved on remand.  



Appellant:  Anthony Hernandez
Agency:  Department of the Navy
Decision Number:  2013 MSPB 54
Docket Number:  SF-0752-12-0230-I-1
Issuance Date:  July 18, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Indefinite Suspensions
 - Reasonable Cause to Believe Appellant Committed Crime for Which Imprisonment may be      Imposed

    The appellant petitioned for review of an initial decision that affirmed his indefinite suspension.  The suspension was based on information from the San Diego County Superior Court thta the appellant had been charged with 6 misdemeanor counts, each of which was punishable by imprisonment, and was scheduled for a jury trial.  On appeal to the Board, the appellant contended that the agency lacked the requisite cause to supend him indefinitely without pay.  In sustaining the suspension, the judge found that the agency had reasonable cause to believe that the appellant had committed a crime for which a sentence of imprisonment could be imposed.  

Holdings:  The Board denied the appellant's petition for review and sustained the indefinite suspension:

1. One of the authorized circumstances for imposing an indefinite suspension is when the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment may be imposed -- pending the outcome of the criminal proceeding.

2. "Reasonable cause" in this context is virtually synonymous with "probable cause," which is necessary to support a grant jury indictment.  An arrest warrant alone is insufficient, as is an actual arrest.  On the other hand, a formal judicial determination following a preliminary hearing or an indictment following an investigation and grand jury proceedings is more than sufficient.  

3. Although an investigation by the agency is not always required, the agency must "take some affirmative action on its own to satisfy itself that there was reasonable cause to believe that a crime was committed for which imprisonment could be imposed."  

4. Here, the agency acted on the following evidence:  The appellant had been arrested, arraigned, and formally charged with 6 misdemeanor counts, each of which could have resulted in a penalty of at least 6 months' imprisonment; and the appellant had been released on a $10,000 bail and ordered to appear for a later-scheduled jury trial.

5. A formal judicial determination of reasonable cause is not always required.  At the time the agency imposed the indefinite suspension in this case, the California criminal prosecution was fully underway and the criminal justice process had moved beyond what would be addressed in a preliminary hearing.  Therefore, the absence of a preliminary hearing is irrelevant to consideration of this case.  

6. Under California law, while a felony complaint is a preliminary accusation that does not confer trial jurisdiction, a misdemeanor complaint is a formal charge that gives the court jurisdiction to proceed to trial.  Thus, under California law, a misdemeanor complaint is comparable to an indictment.  

7. Here, the facts presented to the agency at the time it imposed the appellant's indefinite suspension showed that the District Attorney of San Diego had assessed the evidence and filed a complaint alleging that the appellant committed criminal acts involving two named individuals on a specific date and the case against the appellant had proceeded to the point where the appellant had been ordered to appear for a jury trial.  These facts provided the agency with reasonable cause to believe that the appellant had committed a crime for which a term of imprisonment could be imposed.  



Appellant:  Svetlana Oulianova
Agency:  Pension Benefit Guaranty Corporation
Decision Number:  2013 MSPB 55
Docket Number:  DC-531D-11-0217-B-1
Issuance Date:  July 22, 2013
Appeal Type:  Acceptable Level of Competence

Acceptable Level of Competence
 - Denial of Within-Grade Increase


    The appellant petitioned for review of a remand initial decision that affirmed the agency's reconsideration decision that denied her a within-grade increase (WIGI).  The agency rated the appellant's overall performance as a GS-12 Actuary as "below expectations" for fiscal year 2010, which ended September 30, 2010.  The agency denied her WIGI scheduled for September 12, 2010, on the basis that her overall rating fell below the acceptable level of competence, i.e., the "meets expectations" level.  The administrative judge found that the agency proved that the appellant received a "below expectations" rating for Mission Objective 1 (Case Processing), based on her failure to timely and accurately complete two actuarial case reports, and thus properly received an overall rating of "below expectations."  

Holdings:  The Board granted the appellant's petition for review and reversed the remand initial decision, finding that the agency failed to support its WIGI denial by substantial evidence:

1. For purposes of granting a WIGI, "acceptable level of competence" means that the employee achieve a "fully successful" rating on her most recent rating of record.  

2. The agency's WIGI denial must be affirmed if it proved by substantial evidence that the appellant failed to perform at an acceptable level of competence based on the agency's performance appraisal requirements.

3.  The Board agreed with the appellant's contention that the agency did not take into consideration all of her work for the performance period in issuing her FY 2010 performance appraisal.  The Board found no evidence that the agency calculated the appellant's rating for Obective 1, Case Processing, based on numerical rating for each of the 5 underlying activities, as it was required to do.  Rather, it appears that the agency based its rating solely on 2 of the 5 activities under that objective and only with respect to some of the cases on which the appellant worked during the appraisal period.  Accordingly, the agency failed to provide substantial evidence supporting its evaluation of the appellant's performance on Objective 1 and its WIGI denial cannot be sustained.  

4.  The Board found that the appellant failed to prove her affirmative defense of retaliation for prior EEO activity.  



Appellant:  Carmelita S. Davis
Agency:  Department of Commerce
Decision Number:  2013 MSPB 56
Docket Number:  DC-0432-10-0873-I-2
Issuance Date:  July 24, 2013
Appeal Type:  Performance
Action Type:  Removal

Sanctions
 - Dismissal with Prejudice

    The appellant petitioned for review of an initial decision that dismissed her appeal with prejudice as a sanction for repeatedly ignoring or refusing to comply with the administrative judge's orders.  

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

1. The sanction of dismissal with prejudice is a severe sanction that is only appropriate when necessary to serve the ends of justice and should be imposed
only when:  (1) a party has failed to exercise basic due diligence in complying with Board orders; or (2) a party has exhibited negligence or bad faith in its efforts to comply.  The Board will not reverse an administrative judge's imposition of sanctions absent a showing of abuse of discretion.

2.  After considering the pertinent evidence, the Board agreed with the judge's assessment that the appellant, through her representative, showed bad faith in prosecuting her appeal because she repeatedly ignored the judge's orders.  She further exhibited bad faith when she pursued reconsideration of long-decided motions on the morning of the scheduled hearing and then withdrew her hearing request on the basis of the foreseeable result of this gambit. The motions involved and the appellant's decision to request a decision on the written record could and should have been made long before the parties went to the expense of preparing for an appearing at the hearing.  



Appellant:  Herbert Russell
Agency:  Department of Health and Human Services
Decision Number:  2013 MSPB 57
Docket Number:  DC-3330-11-0405-C-1
Issuance Date:  July 24, 2013
Appeal Type:  Veterans Employment Opportunities Act

Compliance

    The appellant petitioned for review of an initial decision that denied his petition for enforcement.  In an Opinion and Order issued in 2012, the Board found that the agency had violated the appellant's rights under VEOA and ordered corrective action.  Specifically, the Board found that the agency had violated the appellant's right to a full 10-point preference in competing for a Social Science Analyst position and ordered the agency to reconstruct the selection process. Given the Board's finding that it appeared the appellant would have been the top-ranked applicant had he received the 10-point preference, the Board instructed the agency that it would need to go through the pass over procedures -- including giving the appellant notice and an opportunity to respond to OPM -- before selecting a lower-ranked nonpreference-eligible applicant through the reconstructed process.  When the agency reconstructed the selection process, a Human Resources (HR) Specialist and a Subject Matter Expert independently evaluated the appellant's application and concluded that he failed to meet the applicable OPM qualification standards and specialized experience requirements.  Because the agency found that the appellant was not minimally qualified for the position, it did not assign him a numerical score and therefore did not award him the 10-point preference.  The agency explained that the appellant's assigned score from the original selection process was only a preliminary score generated by the QuickHire system based upon the appellant's assessment of his experience and was not based on the review of his application by the HR Specialist or the Subject Matter Expert.  In denying the appellant's petition for enforcement, the administrative judge found that the record showed that the appellant did not meet the education and experience requirements of the position and that nothing in the VEOA mandates that veterans be considered for positions for which they are not qualified.  

Holdings:  A majority of the Board, Member Robbins' dissenting, granted the appellant's petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1. The Board agreed with the judge's findings that the Board's previous decision did not mandate assigning the appellant any particular score on review of his application and that the Board does not have the authority to order the agency to appoint the appellant to a position for which he is not qualified.  

2. The Board found, however, that a conflict exists in the record with respect to whether the appellant indeed was qualified for the position at issue.  In particular, although the agency claims that the appellant's preliminary score during the original selection process was only a "preliminary" score based upon his "self-assessment," the record shows that the 3 top-ranked applicants from the original selection process were forwarded to the selecting official based upon those same, so-called "preliminary" scores.  The Board found that it was necessary to remand the case to the regional office for further development of the record in this regard.  

    In a dissenting opinion, Member Robbins agreed that a remand might be warranted if there were a bona fide dispute over whether the appellant was qualified for the position, but the judge found that the appellant's education was in the wrong field and that he lacked the requisite work experience, and the appellant did not raise a serious challenge to this finding.  He would have found the agency's explanation of what happened understandable, i.e., that up until the Board issued its decision findings that the appellant was entitled to 10 veterans' points instead of 5 points, the agency had no reason to give the appellant's application special scrutiny.  



Appellant:  Carol A. Christopherson
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 58
Docket Number:  AT-844E-12-0025-I-1
Issuance Date:  July 29, 2013
Appeal Type:  FERS - Employee Filed Disability Retirement
Action Type:  Retirement/Benefit Matter

Retirement - Disability Retirement

    OPM petitioned for review of an initial decision that reversed its reconsideration decision denying the appellant's application for disability retirement benefits.  The appellant applied for disability retirement based on bilateral deafness, a left or right (unspecified) writst and shoulder injury, major depression with agoraphobia, a sleep disorder, and post-traumatic stress disorder (PTSD). In denying the appellant's application, OPM noted that, although the appellant submitted a letter from a Dr. Lepely opining that the appellant remained permanently disabled with a diagnosis of Major Depression Recurrent without Psychosis and PTSD, there was insuffient medical evidence to establish the diagnosis and current severity of the appellant's mental health condition.  On appeal, the administrative judge found that the appellant was entitled to a presumption of entitlement to disability retirement benefits because she had been removed from her position for medical inability to perform and that OPM failed to rebut this presumption.  

Holdings:  The Board granted OPM's petition for review, reversed the initial decision, and affirmed OPM's reconsideration decision denying disability retirement benefits:

1. The judge properly found that the appellant is entitled to a presumption of disability because she was removed based on her medical inability to perform her job duties.  

2. OPM can meet its burden of rebutting the presumption by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements.  

3. Here, although the record includes numerous references to medical reports concerning the appellant's mental health conditions, there are no such medical reports in the the record. The only medical document in the record relevant to the appellant's mental health conditions is Dr. Lepely's June 2011 letter in which he stated that the appellant remains permanently disabled and unable to be gainfully employed.  This letter referred to a 2007 medical report but did not include it.  That report was not submitted, even though the judge explicitly advised the appellant that this report would assist him in adjudicating the appeal.  

4. Because there is no competent medical evidence to support the appellant's testimony with regard to her mental health conditions, the appellant has failed to establish entitlement to disability retirement benefits.  



Appellant:  Katharine Jane Archer
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 59
Docket Number:  AT-0839-12-0717-I-1
Issuance Date:  July 31, 2013
Appeal Type:  FERCCA
Action Type:  Retirement/Benefit Matter

Retirement - FERCCA

    The appellant petitioned for review of an initial decision that denied her request for corrective action under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA). The appellant was a federal employee covered under CSRS from 1974 through 1980 and returned to federal service from June 1987 through June 1988 and again for a few months in 1993.  Upon her appointment as a Physician in 2003, the Department of Veterans Affairs (DVA) placed her in FERS.  It is undisputed that this was a mistake, and that DVA should have placed her in the CSRS Offset plan, with the option of electing FERS, because she had at least 5 years of service under CSRS.  Despite this erroneous action, the agency had the appellant sign an "Election of Coverage" form electing FERS coverage, and she initialed the box indicating that she understood that her election was irrevocable.  The appellant gave unrebutted testimony that DVA told her to sign the FERS election form in order to get started contributing to the Thrift Savings Plan, told her she did not have enough time in the civil service "for it to make a difference," and did not tell her anything about the CSRS Offset plan.  In December 2011, the appellant learned that she should have been given the option of electing CSRS Offset when she was rehired in 2003.  DVA denied her request for corrective action under FERCCA, and OPM denied the appellant's request for reconsideration, finding that although DVA erroneously placed the appellant in FERS upon her rehire, the appellant signed a FERS election form indicating that the election was irrevocable. OPM determined that this was therefore not a FERCCA case, but instead dealt with whether the appellant could revoke her FERS election and answered that question in the negative.  On appeal to the Board, the administrative judge agreed with OPM's analysis.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and ordered OPM to afford the appellant the opportunity to elect FERS or CSRS Offset coverage retroactive to the date on which the DVA erroneously determined that the appellant was covered under FERS:

1. Under FERCCA, an employee may seek relief if she experienced a "qualifying retirement coverage error."   

2. Under the applicable law, any individual who becomes reemployed by the federal government after June 30, 1987, "and who is then subject to subchapter III of chapter 83 of title 5, United States Code [FERS], may elect to become subject to chapter 84 of such title." Here, as far as DVA was concerned, the appellant was not "then subject to subchapter III of chapter 83 of title 5" when she made the election in 2003, because DVA had determined that the appellant was subject to FERS at that time and had no previous retirement coverage. Therefore, there was no legal authority for DVA to have offered the appellant the opportunity to make the election in question.  The government cannot have it both ways:  it cannot erroneously inform the appellant that she is covered by FERS and encourage her to sign a FERS election form to start a TSP account, but then rely on appeal, for purposes of deeming the FERS election irrevocable, that the appellant was really "subject to" CSRS after all.  

3. Because the appellant's election was invalid, she is entitled under FERCCA to correction of DVA's error in placing her in the wrong retirement system.  



COURT DECISIONS

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

Calilong v. Office of Personnel Management, No. 2012-3181 (July 12, 2013) (MSPB Docket No. SF-0831-11-0645-I-1) (affirming the Board's decision, which affirmed OPM's determination that Calilong was not eligible to make a deposit to the Civil Service Retirement and Disability Fund)

Salinas-Nix v. Department of the Army, No. 2012-3209 (July 15, 2013) (MSPB Docket No. DA-0752-10-0513-I-1) (affirming the Board's decision, which sustained the appellant's indefinite suspension)

Barber v. Department of the Navy, No. 2012-3134 (July 16, 2013) (MSPB Docket No. PH-0752-11-0180-I-1) (affirming per Rule 36 the Board's decision, which sustained Barber's removal from employment)

Taylor v. Merit Systems Protection Board, No. 2013-3037 (July 16, 2013) (MSPB Docket No. AT-1221-12-0255-W-1) (affirming the Board's decision, which dismissed this IRA appeal for lack of jurisdiction)

Nichols v. Merit Systems Protection Board, No. 2013-3027 (July 16, 2013) (MSPB Docket No. DA-0831-11-0519-I-1) (affirming the Board's decision, which dismissed this appeal as untimely filed)

Scheffler v. Department of the Army, No. 2012-3130 (July 17, 2013) (MSPB Docket No. AT-0752-10-1075-I-2) (affirming per Rule 36 the Board's decision, which sustained Scheffler's removal from employment)

Porter v. Department of the Navy, No. 2013-3013 (July 18, 2013) (MSPB Docket No. DC-0752-12-0092-I-1) (affirming per Rule 36 the Board's decision, which sustained Porter's demotion)

Galloway v. Merit Systems Protection Board, No. 2012-3203 (July 18, 2013) (MSPB Docket No. DC-300A-11-0607-I-1) (affirming the Board's decision, which dismissed Galloway's appeal for lack of jurisdiction)
     
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