U.S. Merit Systems Protection Board 
Case Report for November 1, 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:  William L. Mims
Agency:  Social Security Administration
Decision Number:  2013 MSPB 79
Docket Number:  SF-4324-12-0023-I-1
Issuance Date:  October 25, 2013

Jurisdiction - Involuntary Retirement
Restoration to Duty - Partially Recovered Employee

    The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.  The appellant was a Claims Authorizer, a sedentary position that requires no lifting, bending, or standing.  He sustained an on-the-job injury in 2003.  In December 2003, the appellant's treating physician cleared him to work 4 hours per day, "sit and stand at will," with no lifting or stair climbing, and the appellant returned to work on that basis that month.  After a short period, however, both the appellant's supervisor and the human resources office told him that he could not continue to work unless he could return to working 8 hours per day.  The appellant applied for disability retirement with OPM, and this application was approved in May 2004.  The appellant unsuccessfully sought to return to work in 2007.  In October 2011, he filed a Board appeal alleging that he was forced into retirement in 2004 and that the agency improperly denied his request to work in 2007.  He also raised USERRA and VEOA claims.  The administrative judge dismissed the appeal without the requested hearing, finding that the appellant failed to nonfrivolously allege that his retirement was involuntary or that the agency had arbitrarily and capriciously denied him restoration.  The judge also found that the appellant had failed to establish jurisdiction under USERRA or VEOA.

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

1. The appellant nonfrivolously alleged that his disability retirement was involuntary.

a. To establish that a disability retirement was involuntary, an appellant must make nonfrivolous allegations that:  (1) he indicated to the agency that he wished to continue working; (2) there was a reasonable accommodation available that would have allowed him to continue working; and (3) the agency unjustifiably failed to offer that accommodation.

b. The appellant made nonfrivolous allegations of all these elements.  He expressed his desire to continue working; the accommodation of working 4 hours per day would have permitted him to continue working; and the agency refused to accommodate him in that respect.  

2. The appellant nonfrivolous alleged that the agency arbitrarily and capriciously denied him restoration as a partially recovered employee.

a. To establish jurisdiction over a restoration appeal under 5 C.F.R. 353.301(d), an appellant must prove by preponderant evidence that:  (1) he was absent from his position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the agency's denial was arbitrary and capricious.

b. The appellant made nonfrivolous allegations as to all 4 of these elements with respect to each of the occasions on which the agency denied him restoration to employment.  Accordingly, he is entitled to a jurisdictional hearing.  

3. USERRA does not provide a basis for Board jurisdiction over this appeal.

4. The appellant failed to establish that he exhausted his administrative remedies with respect to a VEOA claim.



Appellant:  Deborah K. Massey
Agency:  Department of the Army
Decision Number:  2013 MSPB 80
Docket Number:  CH-0752-12-0362-I-3
Issuance Date:  October 25, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process

    The appellant petitioned for review of an initial decision that affirmed her removal and found that she failed to prove her affirmative defense of disability discrimination.  The agency removed the appellant from her position as a Nurse for medical inability to perform the duties of her position.  On appeal to the Board, the appellant did not dispute that she was unable to perform the essential functions of her position, but asserted that the agency should have tried harder to find her a position in which her chronic respiratory disorder triggered by the phenols in the cleaning solutions and solvents used in the hospital where she worked would not be disabling.  She also asserted that the agency violated her right to due process when it did not allow her to respond orally to the notice proposal.  The administrative judge sustained the agency's charge, found that the agency did not discriminate against the appellant, and rejected the appellant's due process argument.

Holdings:  The Board granted the appellant petition for review, vacated the initial decision in part, reversed the agency's removal action on the ground that it deprived the appellant of minimum due process of law, and affirmed the administrative judge's finding that the agency did not discriminate against the appellant based on disability:

1. Under the Supreme Court's decision in Loudermill, the "root requirement" of due process is for the employee to receive "an opportunity for a hearing before he is deprived of any significant property interest."  This requires an agency to offer the employee a "meaningful opportunity to invoke the discretion of the decision maker" before the agency effects the personnel action.  Minimum due process requires that the employee have oral or written notice fo the charges against her, and explanation of the employer's evidence, and the "opportunity to present reasons, either in person or in writing, why proposed action should not be taken."

2. The agency's proposal notice gave her 14 days to respond, which was extended by 14 days at the appellant's request, to February 7, 2012.  The human resources specialist assisting the deciding official instructed the appellant's representative to "[p]lease ensure you are on [the deciding official's] calendar NLT COB on 7Feb12."  On February 3, the appellant informed the deciding official that she would be represented by an attorney.  On February 7, the attorney emailed the deciding official to ask for a member of the deciding official's staff to contact him to schedule an oral reply.  The deciding official did not do so, and instead issued a decision sustaining the charge and removing the appellant.  As the appellant had not submitted a written reply, the deciding official did not consider any response from her.

3. The Board found that this case was similar in all important respects to that in Alford v. Department of Defense, 118 M.S.P.R. 556 (2013), in which it found a due process violation.  There, as here, the appellant submitted a timely request for an oral reply, but did not receive one.  Because the agency violated the appellant's due process rights, she is entitled to a new constitutionally correct removal procedure.  

4. The Board affirmed the administrative judge's finding that the appellant failed to prove disability discrimination based on a failure to provide a reasonable accommodation.



Appellant:  Gladys C. Towne
Agency:  Department of the Air Force
Decision Number:  2013 MSPB 81
Docket Number:  SF-0432-11-0591-I-2
Issuance Date:  October 28, 2013
Appeal Type:  Performance
Action Type:  Removal

Performance-Based Actions
 - Opportunity to Demonstrate Acceptable Performance
 - Performance Standards - Objectivity/Reasonableness
Harmful Procedural Error

    The agency petitioned for review of an initial decision that reversed its action removing the appellant for unacceptable performance under 5 U.S.C. chapter 43.  The appellant was a Secretary at Travis Air Force Base.  The agency removed her based on her unacceptable performance in 5 of 6 critical elements of her performance standards.  The administrative judge found that the agency established that its performance appraisal system was approved by OPM, that the agency communicated the appellant's performance standards to her, and that the agency showed that the appellant's performance was deficient in at least one of her critical elements.  In reversing the agency's removal action, the judge found that the agency did not show that it afforded the appellant a reasonable opportunity to improve because her performance improvement plan (PIP) was not long enough for the appellant to demonstrate improved performance, she was not permitted by her standards to make mistakes, she was not afforded any assistance during the PIP, and the agency gave her a new assignment during the PIP that increased her workload.  

Holdings:  The Board granted the agency's petition for review, reversed the initial decision, and sustained the appellant's removal:

1. The agency did afford the appellant a reasonable opportunity to demonstrate acceptable performance.

a. The PIP was not unduly short.  The PIP was in place for approximately 7 weeks; the Board has found that a 30-day PIP can satisfy an agency's obligation to provide an employee with a reasonable opportunity to demonstrate acceptable performance.  

b. The Board found no support for the judge's conclusion that the scope of the PIP was "expansive" and included "myriad" tasks.  The appellant's duties were typical secretarial duties: preparing correspondence and finalizing documents prepared by others; handling mail and maintaining files; handling visitors and telephone calls; and doing other administrative tasks.  Contrary to the judge's characterization of two assignments during the PIP as outside the normal range of the appellant's duties, the Board found them to be routine clerical tasks consistent with the duties of the appellant's secretarial position.

c. The judge's finding that the agency provided the appellant with "minimal to nonexistent assistance" is not supported by the record, which reflects that the appellant's supervisor provided her with detailed written guidelines, including the PIP itself and numerous emails during the PIP about the appellant's performance on specific tasks, and that the supervisor met with the appellant and provided her written feedback at the beginning of the PIP and midway through the PIP.  The agency also offered the appellant internal training and gave her a course catalog for no-cost community college courses, which the appellant refused.  

2. The agency established the validity of the appellant's performance standards, i.e., to the maximum feasible extent, they permitted the accurate appraisal of performance based on objective criteria.  Any lack of specificity in the standards was cured by the agency's provision of clear guidance in the PIP letter and througout the PIP as to what was expected of the appellant.

3. The Board affirmed the judge's finding that the agency proved by substantial evidence that the appellant's performance was unacceptable in 5 of the 6 critical elements of her position.  
4. The Board stated that it need not determine whether the agency violated the statute that requires that an agency may not take a performance-based action unless it has been concurred in by an official at a higher level than that of the proposing official because there was no showing that a violation was harmful, i.e., that it caused the agency to reach a conclusion different from the one that it would have reached in the absence or cure of the error.  



Appellant:  Elissa  Rumsey
Agency:  Department of Justice
Decision Number:  2013 MSPB 82
Docket Number:  DC-1221-11-0466-W-1
Issuance Date:  October 28, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Covered Personnel Actions
 - Protected Disclosure
 - Clear and Convincing Evidence
Retroactive Effect of New Legislation

    The appellant petitioned for review of an initial decision that denied her request for corrective action in this IRA appeal.  The appellant is a Compliance Monitoring Coordinator in the Office of Juvenile Justice and Delinquency Prevention.  One of the functions of this Office is to award grants to organizations and then ensure that they use the grant money in compliance with the terms of the grant.  In 2007, the agency solicited grant applications and staff reviewed the applications, assigned ratings, and made recommendations regarding the awarding of grants.  Robert Flores, the Office Administrator, reviewed the recommendations but awarded grants to some lower-scoring organizations.  These awards led a number of employees, including the appellant, to protest the decisions.  The controversy was eventually publicized, first in a trade publication, and then on ABC's Nightline program and in congressional oversight hearings. The appellant contended that she engaged in protected whistleblowing by providing information about the purportedly improper grant practices to ABC News and Congress and by filing an Inspector General (IG) complaint concerning alleged grant fraud.  She further asserted that the agency perceived her as the source of the confidential information that formed the basis of the trade union publication, although she was not in fact the source.  The appellant alleged that the agency retaliated against her in a variety of personnel actions.  

     In denying corrective action, the administrative judge found, among other things, that:  the appellant failed to exhaust her administrative remedy before OSC as to some claims; the appellant failed to show that she was perceived as a whistleblower; the appellant's disclosures to ABC News and Congress were not protected because the appellant disclosed information that was already publicly known via the trade publication article; the appellant failed to show that these disclosures were a contributing factor to alleged retaliatory personnel actions because some of the disputed actions took place before the disclosures and because the appellant failed to show that the relevant manager knew she had made the disclosures; the appellant failed to show that her protected disclosures to the IG were a contributing factor because, although management knew that someone filed an IG complaint, the appellant did not show that the relevant managers knew that she was the one who filed the IG complaint; some of the claimed retaliatory actions were not covered personnel actions; and the agency proved by clear and convincing evidence that it would have taken the same actions absent any whistleblowing.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision and ordered corrective action with respect to the cancellation of the appellant's telework agreement and her 2007 performance rating, and affirmed the initial decision with respect to the appellant's remaining claims:

1. The appellant did not show that the administrative judge erred by finding that the appellant failed to prove that the agency perceived her to be a whistleblower.  The critical factor in such a determination is whether the agency official believed that the appellant engaged in whistleblowing activity.  

2. The appellant did not show that the judge erred by finding that the appellant's disclosures to ABC News and Congress were not a contributing factor in a "personnel action."  

a. The judge's finding that the appellant's disclosures were not protected because they were already publicly known was in accordance with applicable law at the time of the initial decision, but Congress has since passed the Whistleblower Protection Enhancement Act of 2012 (WPEA), which provides that a disclosure is not precluded from protection because the disclosure revealed information that was previously known.  The Board has ruled that this provision applies retroactively.

b. Despite this, the judge correctly found that the appellant failed to show that the relevant manager had any knowledge of her dislosures to ABC News and Congress.

3. The judge erred by finding that the appellant's 2008 performance appraisal was not a "personnel action."  The law specifically provides that a "performance appraisal" is a covered personnel action.  That the appellant's performance appraisal for 2008 was the same as her performance appraisal for 2007 does not mean that the later appraisal is not a covered personnel action.  

4. The judge erred by finding that the appellant's disclosures concerning the state of Wisconsin's alleged submission of fraudulent data to agency managers were not protected and were not a contributing factor in a personnel action.  

a. The judge had found that these disclosures were not protected because they concerned matters within her job duties and occurred in the normal course of her duties.  

b. The WPEA eliminated this rule, and the Board has ruled that the WPEA applies retroactively in this regard.  The Board concluded that these disclosures were protected.  

c. The appellant showed that her protected disclosures were a contributing factor in a manager's decision to cancel her telework agreement and in the appellant's performance evaluations in 2007 and 2008.  The appellant failed to show, however, that here disclosures were a contributing factor in her 2009 performance evaluation.

5. The appellant did not show that the judge erred by finding that she failed to show that the agency pressured her to accept a detail.  

6. Any error by the judge regarding the appropriate legal analysis of whether the appellant showed that a protected disclosure was a contributing factor to a personnel action is insignificant, because the personnel actions predated the disclosure in question.  

7. The agency did not show by clear and convincing evidence that it would have cancelled the appellant's telework agreement absent her protected disclosures.

a. Clear and convincing evidenceis "that measure of degree of proof that produces in the mind of a trier of fact a firm belief as to the allegations sought to be established."  Congress intended the clear and convincing evidence standard to be a heavy burden to meet.  

b. Even though there was little evidence that the relevant management official had a retaliatory motive, the agency did not present strong evidence in support of its reasons for cancelling the appellant's telework agreement, and its evidence did not rise to the clear and convincing level.  

8. The agency did not show by clear and convincing evidence that it would have rated the appellant's 2007 performance the same absent the appellant's protected disclosures.  As above, there was little evidence of retaliatory animus, but the agency's proof did not rise to the clear and convincing level.  

9.  The agency showed by clear and convincing evidence that it would have rated the appellant's 2008 performance the same absent her protected disclosures.  




Appellant:  Alma D. Chavez
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 83
Docket Number:  SF-1221-12-0330-W-1
Issuance Date:  October 30, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure
     - Violation of Law, Rule, or Regulation
     - Substantial and Specific Danger to Public Health or Safety
     - Abuse of Authority
 - Contributing Factor
 - Clear and Convincing Evidence

    The appellant petitioned for review of an initial decision that denied her request for corrective action in this IRA appeal, in which she alleged that her probationary termination from the position of Licensed Vocational Nurse was the result of whistleblowing retaliation.  The alleged protected disclosures were as follows:  (1) that other nurses were not cleaning and stocking med carts; (2) that patients' dressings were not being changed as ordered; (3) that her first-level supervisor made untrue accusations regarding the appellant harming a patient; (4) that a co-worker left a med cart with narcotics for several patients in a cup as well as pre-drawn insulin and another medication; (5) that the same co-worker refused to witness or verify an insulin draw; (6) that a Certified Nursing Assistant had borrowed money from a patient; and (7) that a patient was not cleaned for over 7 hours after a bowel movement.  The administrative judge found that disclosures (4), (6), and (7) were protected, but not the remainder, and that the appellant had established that the protected disclosures were a contributing factor in the agency's decision to terminate her employment.  The judge further found, however, that the agency had shown by clear and convincing evidence that it would have terminated her employment in the absence of her protected whistleblowing activity.  

Holdings:  The Board granted the appellant's petition, reversed the initial decision, and granted the appellant's request for corrective action:

1. The appellant proved that she reasonably believed that disclosures (1), (2), (4), and (7) evidenced a violation of substantial and specific danger to public health or safety.

2. Disclosure (3) (that the appellant's supervisor falsely accused the appellant of improperly performed a test) did not constitute a disclosure of an abuse of authority by the supervisor.

3. The judge correctly found that disclosure (6) (that a co-worker refused to witness or verify an insulin draw) is not protected.

4. Disclosure (6) (that a Certified Nursing Assistant borrowed money from a patient) was protected as a disclosure of a violation of an agency rule.  

5. The appellant proved by preponderant evidence that her protected disclosures were a contributing factor in her probationary termination.

6. The agency failed to prove by clear and convincing evidence that it would have terminated the appellant's employment absent her whistleblowing disclosures.  In reaching this conclusion, the Board acknowledged that the appellant's supervisors were not directly implicated or harmed by the disclosures, but observed that the appellant's criticisms reflected on both in their capacity as managers and employees, which was sufficient to establish a substantial retaliatory motive.  Accordingly, the Board ordered the agency to restore the appellant to employment.  



Appellant:  Jerry J. Edwards
Agency:  Department of the Air Force
Decision Number:  2013 MSPB 84
Docket Number:  SF-0752-12-0553-I-1
Issuance Date:  October 30, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction - Term Appointment
Whistleblower Protection Act
 - Exhaustion of OSC Remedy
 - Election of Remedies

    The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.  The appellant was a Supervisory Bowling Facility Manager at the Yokota Air Base in Japan.  After receiving an initial 3-year appointment in 2007, his appointment was extended for an additional 2 years, ending on April 14, 2012.  He filed an appeal with the Board when his employment ended at that time.  He alleged that the agency terminated his employment for having made a whistleblowing disclosure.  The administrative judge dismissed the appeal for lack of jurisdiction on the ground that the expiration of his term appointment was not an adverse action appealable to the Board.  As for the appellant's claim of retaliation for protected whistleblowing, the judge dismissed it for lack of jurisdiction on the basis that the appellant had failed to exhaust his administrative remedy with OSC.  

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

1. The appellant made a nonfrivolous allegation of jurisdiction over an adverse action appeal.  

a. The expiration of a term appointment is not an adverse action appealable to the Board. The Board looks to the totality of the circumstances to determine the nature of an employee's appointment; an employee's SF-50 is not controlling.  The administrative judge relied on the Board's decision in Scott v. Department of the Air Force, 113 M.S.P.R. 434 (2010), for concluding that the totality of the circumstances evidenced that the appellant held a term appointment at the time of his separation.  

b. After considering the similarities and difference between the circumstances in Scott and this case, the Board concluded that the appellant had made a nonfrivolous allegation of Board jurisdiction entitling him to a jurisdictional hearing.

2. On remand, the administrative judge must first determine whether to consider the appeal under chapter 75 or as an IRA appeal.  

a. Pursuant to 5 U.S.C. 7121(g), an employee who has been subjected to an action appealable to the Board and who alleges he has been subjected to a prohibited personnel practice other than a claim of discrimination may elect to pursue one, and only one, of three remedial processes:  (1) a direct appeal to the Board under 5 U.S.C. 7701; (2) a grievance under a negotiated grievance procedure; or (3) a complaint following the procedures for seeking corrective action from OSC.  

b. Despite the preceding, the Board has held that an employee's election of remedies will not be binding if it is not knowing and informed.  The record does not reflect whether the appellant filed his whistleblower complaint with OSC before filing his Board appeal.  Even if the appellant's whistleblower complaint with OSC was filed first, it would not constitute a binding election because it was not a knowing and informed decision.

c. If the judge determines on remand that the Board has jurisdiction over the appellant's separation under chapter 75 and that this appeal was timely filed, the judge should provide the appellant the option of having his appeal adjudicated as a removal under chapter 75, treating his claim of whistleblower reprisal as an affirmative defense.  If, however, the judge concludes that the Board lacks jurisdiction over the appellant's separation, or that the appeal was untimely filed without good cause shown, the judge should then determine whether the appellant has established jurisdiction over his appeal as an IRA appeal.  

3. To the extent his appeal is adjudicated as an IRA appeal, the appellant has established that he satisfied the exhaustion requirement.

a. In ruling that the appellant had not exhausted his administrative remedy with OSC, the administrative judge relied on the fact that the appellant submitted a request for reconsideration with OSC, but that OSC had not acted on that request.

b. Once OSC has notified a complainant that it has terminated its investigation and that the complainant may file an appeal with the Board, a reconsideration request to OSC does not require a second period of administrative exhaustion before filing an IRA appeal with the Board.  


Appellant:  Nancy Lynn Schoenig
Agency:  Department of Justice
Decision Number:  2013 MSPB 85
Docket Number:  DC-1221-12-0693-W-1
Issuance Date:  October 30, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Exhaustion of OSC Remedy

    The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction on the basis that she failed to provide OSC a sufficient basis to pursue an investigation which might lead to corrective action.  The appellant's employment as an Emergency Preparedness Program Specialist was terminated before he completed his 1-year probationary period.  She contended that the termination was in reprisal for having disclosed various fire code and workplace safety violations in the building to her supervisors.  The administrative judge noted that the appellant provided only the OSC letter terminating its investigation into her complaint and no other response to his jurisdiction order.  The judge issued his order to submit evidence to prove jurisdiction on August 1, 2012, and gave the appellant 7 days to respond.  The appellant submitted documentation on August 14, 15, and 20, but the judge rejected those submissions as untimely filed without good cause shown.  On review, the appellant has provided a copy of her original OSC filing and a summary of her disclosures, which establish that she did exhaust her remedies before OSC.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and remanded the appeal to the regional office for adjudication on the merits:

1. The Board may consider evidence submitted for the first time on petition for review if it implicates the Board's jurisdiction and warrants an outcome different from that in the initial decision.  

2. The appellant made a nonfrivolous allegation that she made a protected disclosure and has otherwise satisfied jurisdictional requirements.  The Board therefore remanded the appeal to the regional office for adjudication on the merits.  



Appellant:  Igor M. Belyakov
Agency:  Department of Health and Human Services
Decision Number:  2013 MSPB 86
Docket Number:  DC-1221-10-0534-B-1
Issuance Date:  October 30, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Bifurcation of Merits Issues

    The appellant petitioned for review of a remand initial decision that denied his request for corrective action in this IRA appeal.  The appellant alleged that the agency terminated his appointment as a Staff Scientiest and took other personnel actions in retaliation for his making whistleblowing disclosures.  In a previous decision, the Board found that the agency's decision not to renew a Title 42 appointment is a personnel action under the WPA and remanded the appeal to the regional office for adjudication on the merits.  On remand, the administrative judge found it appropriate to bifurcate the hearing on the merits and to limit the hearing to whether the agency established by clear and convincing evidence that it would have taken the complained of personnel actions absent the appellant's disclosures.  The judge found that the agency met this burden and denied the appellant's request for corrective action.  

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

1. Athough there are times when it is appropriate to determine whether the agency has met its burden by clear and convincing evidence before proceeding to whether the appellant has established a prima facie case of reprisal, such an approach is not always appropriate.  Bifurcation is not appropriate where both the substance of the appellant's alleged protected disclosures, as well as the extent to which the deciding official was aware of them, were relevant to the issue of retaliatory motive.  
Bifurcation of the hearing was inappropriate in this case under these guidelines.  

2. On remand, the administrative judge shall allow the parties to further develop the record regarding the appellant's disclosures.  He shall also provide the appellant the opportunity to testify at the hearing on remand.  


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