U.S. Merit Systems Protection Board 
Case Report for December 6, 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:  Debra K. Mudd
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 90
Docket Number:  CH-1221-12-0297-W-1
Issuance Date:  November 19, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosure - Violation of Law, Rule, or Regulation
 - Exhaustion of OSC Remedy

    The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction.  The appellant alleged that the agency took several personnel actions against her in reprisal for disclosing that the agency's scheduling practices violated several statutory provisions and agency directives.  The administrative judge found that the appellant failed to nonfrivolously allege that she made a protected disclosure.

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

1. The appellant raised a nonfrivolous allegation that a person in her position, i.e., a mental health associate without any special expertise in legal matters or other experience in interpreting agency regulations, could reasonably conclude that she disclosed evidence of a violation of a law, rule, or regulation relating to the agency's scheduling practices.  

2. Under the knowledge/timing test, the appellant nonfrivolously alleged that her protected disclosures were a contributing factor in covered personnel actions.

3. The record does not whether the appellant met her jurisdictional burden of establishing that she exhausted her administrative remedy with OSC.  On remand, the administrative judge must determine whether the appellant satisfied this requirement.  



Appellant:  Derek G. Boudreault
Agency:  Department of Homeland Security
Decision Number:  2013 MSPB 91
Docket Number:  PH-0752-10-0405-B-1
Issuance Date:  December 2, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction
 - Appointment to New Position in Same Agency without Appeal Rights

    This matter was before the Board on interlocutory appeal of the administrative judge's ruling that the Board has jurisdiction to review the termination of the appellant's employment as a Federal Air Marshal.  The agency appointed the appellant to a Security Assistant position in November 2006.  The appellant later applied for and accepted a position as a Federal Air Marshal effective April 12, 2009.  Both positions were within the Transportation Security Administration.  The agency removed the appellant from his Federal Air Marshal position effective April 6, 2010 for alleged misconduct.  The appellant filed an appeal arguing that the agency erroneously deemed him to be serving in a probationary period and failed to notify him of his Board appeal rights.  After a jurisdictional hearing, the administrative judge found that the appellant acquired Board appeal rights during his service as a Security Assistant, and that the appellant did not knowingly consent to a loss of appeal rights when he became a Federal Air Marshal. The issue certified to the full Board on interlocutory appeal was whether to apply the rule in cases such as Yeressian v. Department of the Army, 112 M.S.P.R. 21 (2009), and Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344 (1994), under which an individual would retain appeal rights in circumstances like this one, or to apply the rule in Carrow v. Merit Systems Protection Board, 626 F.3d 1348 (Fed. Cir. 2010), under which the individual would not retain appeal rights.  Under Yeressian and Exum, when an employee moves to a new position within the same agency and forfeits his Board appeal rights as a result, the agency must inform the employee of the effect the move will have on his appeal rights and, if the employee was unaware of the loss of Board appeal rights and would not have accepted the position had he known of the loss of appeal rights, he is deemed not to have accepted the new appointment and to have retained the rights incident to his former appointment.  Carrow involved the same circumstances, except that the individual moved from one federal agency to a different federal agency.  The court ruled that the individual lacked appeal rights to the Board because he was not an "employee" within the meaning of 5 U.S.C. 7511, regardless of whether the individual knew of and consented to the loss of appeal rights.  The judge ruled that, per Yeressian and Exum, the appellant retained Board appeal rights.  

Holdings:  A majority of the Board, Member Robbins dissenting, affirmed the administrative judge's ruling and returned the case to the regional office for adjudication on the merits:

1. By its own terms, the Federal Circuit's decision in Carrow did not disturb the Board's holdings in Exum and Yeressian.  

2. The appellant's assertion that his removal appeal is now moot -- on the basis that he "is deemed not to have accepted the new appointment as a [Federal Air Marshal] and as a result "no longer encumbers the FAM position" -- is incorrect.  In circumstances such as this, the remedy for the agency's failure to warn the employee that he would be losing Board appeal rights by accepting the change of position is for the appellant to retain the appeal rights he possessed prior to accepting the new position and for the judge to adjudicate the merits of the removal appeal.  

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    In his dissenting opinion, Member Robbins made the following points in expressing the view that the Board should overrule the Exum/Yeressian line of cases:

1. The relevant statute provides that an individual is an "employee" with appeal rights if he has "completed 1 year of current continuous service in the same or similar position."  It is undisputed that the appellant did not complete 1 year of service as an Air Marshal and that his prior Security Assistant position was not "similar" to the Air Marshal position.

2. The statute contains no exception for employees who do not understand their circumstances.  Assuming arguendo that there is a statutory "gap" concerning employees with appeal rights who accept reassignments to positions without appeal rights, the agency with the authority under Chevron to promulgate regulations would be OPM, which has not filled the gap administratively.  

3. The Board has stated that "[a]ppointment, not contract law, is the central concept" in federal employment.  The Exum/Yeressian line of cases flies in the face of this prinicple by suggesting that the rights of a federal employee are not always determined by the statute that governs the employee's appointment but instead may depend upon whether there was a meeting of the minds between the employee and the agency at the time of appointment.  

4. Another problem with Exum and Yeressian is the confusion those decisions create.  If an employee with appeal rights is truly deemed not to have accepted a reassignment to a position without appeal rights and to have retained the rights incident to his first position, it is difficult to explain which position the employee is considered to have been removed from and the remedy if the Board appeal is successful.  Exum and Yeressian appear to be inconsistent in this regard.

5. The biggest obstacle to taking jurisdiction is the Federal Circuit's decision in Carrow, which held that the relevant inquiry was not what Mr. Carrow may or may not have known when he took the job at the VA but simply whether he met the plain terms of the statute at the time he was separated from the VA. It is true that, in Carrow, the court expressly declined to say whether Exum and Yeressian were correctly decided.  This was because it was "not necessary" for the court do do so.  Nonetheless, the logic of Carrow applies equally to the facts presented here.  



Appellant:  William C. Hugenberg, Jr.
Agency:  Department of Commerce
Decision Number:  2013 MSPB 92
Docket Number:  DE-1221-10-0530-W-3
Issuance Date:  December 4, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Contributing Factor
 - Clear and Convincing Evidence
Hearing - Witnesses


    The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal.  The appellant alleged that the agency terminated his employment, prior to the end of his term appointment, from his position as Local Census Office Manager in retaliation for making protected whistleblowing disclosures.  The appellant claimed that his first disclosure was a letter dated February 20, 2010, which he sent to the agency's Office of the Inspector General (OIG), with copies to the Census Bureau Director and members of Congress, in which he requested an investigation into poor prior planning and software defects noted in an OIG Quarterly Report, and asserted that, due to problems with the agency's payroll software, the office in which he worked was unable to meet hiring goals and certain employees were being underpaid.  The second claimed disclosure concerned complaints the appellant made to a Regional Manager regarding the Regional Technician in his office. The appellant indicated that he had observed the Regional Technician's disheveled and unkempt appearance and erratic behavior, and that the Technician had been involved in inappropriate relationships with females in the office, which violated sexual harassment rules, significantly interfered with hiring, and, in one instance, caused a safety issue.  

     The administrative judge found that the appellant made nonfrivolous allegations that both disclosures were protected.  The judge found that the appellant failed to show that the February 20, 2010 disclosure was a contributing factor in his termination because the letter "was not received and disseminated by the OIG (or any of the other recipients) prior to February 23, 2010, when the appellant's employment was terminated."  With regard to the second disclosure, the judge found that the appellant met his burden of establishing that it was a contributing factor in his termination, but that the agency proved by clear and convincing evidence that it would have terminated the appellant's employment in the absence of this disclosure.  

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. Further proceedings are required to determine whether the appellant's February 20, 2010 letter was a contributing factor in the termination of his employment.

a. The Board found merit to the appellant's assertion that the February 20 letter may have been received on February 23 and its contents relayed to the Bureau's Field Division and/or its Director, which then instructed the Regional Census Center to summarily terminate the appellant. The Board found no evidence showing when the agency received the February 20 letter and by whom it was received.  Without such evidence, it could not determine whether the letter was a contributing factor in the termination of the appellant's employment.

b. The judge failed to consider the possibility that information from the February 20 letter was disseminated to someone other than the appellant's first- or second-level supervisor, as the appellant asserts.  In addition, the judge improperly excluded as "irrelevant or repetitious" the testimony of 2 of the appellant's requested witnesses, which precluded the appellant from establishing whether either of them had any knowledge of the appellant's letter or the information therein prior to the appellant's termination.  

2. On remand, the administrative judge should make any necessary additional findings with respect to the appellant's disclosures concerning the second disclosure in order to comply with the Federal Circuit's decision in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), as to whether the agency proved by clear and convincing evidence that it would have taken the same action in the absence of a protected disclosure.  

3. The Board lacks jurisdiction in an IRA appeal to adjudicate the appellant's claims of harmful procedural error and denial of due process.  It similarly lacks jurisdiction to adjudicate a claim of a prohibited personnel practice under 5 U.S.C. 2302(b)(12).  


Appellant:  Milo D. Burroughs
Agency:  Department of the Army
Decision Number:  2013 MSPB 93
Docket Number:  DA-4324-12-0105-I-1
Issuance Date:  December 5, 2013
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Veterans' Rights/USERRA
 - Discrimination
 - Retaliation
 
    The appellant petitioned for review of an initial decision that denied his request for corrective action under USERRA.  In 2005, the agency advertised a Lead Aerospace Engineer position under two vacancy announcements.  The appellant applied but was not selected and filed a USERRA appeal with the Board.  The administrative judge issued an initial decision finding that the appellant failed to show that his uniformed service was a motivating factor in his nonselection.  

Holdings:  The Board granted the appellant's petition for review and remanded the appeal for further adjudication:

1. The appellant did not show that his uniformed service was a substantial or motivating factor in his nonselection.

2. The appeal must be remanded to afford the appellant the opportunity to prove his claim of retaliation under 38 U.S.C. 4311(b).

a. This statute provides that an employer may not discriminate in employment against any person because of any of four specific protected activities.  The appellant correctly argues on review that he raised a claim of retaliation under 4311(b) which the administrative judge failed to consider.

b. An administrative judge must inform an appellant of the USERRA burdens and methods of proof in a USERRA appeal.  Because this was not done, a remand is necessary.  




COURT DECISIONS


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

Caesar v. Department of Commerce, No. 2012-3125 (Nov. 8, 2013) (MSPB Docket No. DC-0752-10-0394-I-1) (affirming per Rule 36 the Board's decision, which sustained Caesar's removal from federal employment)

Fields v. Merit Systems Protection Board, No. 2013-3132 (Nov. 8, 2013) (MSPB Docket No. PH-0752-09-0568-B-2) (affirming the Board's decision, which dismissed Fields' claim of a constructive suspension for lack of jurisdiction)

Morrison v. Office of Personnel Management, No. 2013-3133 (Nov. 8, 2013) (MSPB Docket No. DE-0842-12-0298-I-1) (affirming the Board's decision, which affirmed OPM's determination that Morrison was not entitled to a deferred retirement annuity)

Alston v. Office of Personnel Management, No. 2013-3138 (Nov. 8, 2013) (MSPB Docket No. DE-844E-12-0276-I-1) (affirming the Board's decision, which affirmed OPM's determination that Alston was not entitled to disability retirement benefits)

Williams v. Merit Systems Protection Board, No. 2013-3110 (Nov. 12, 2013) (MSPB Docket No. NY-844E-13-0101-I-1) (affirming the Board's decision, which dismissed the appeal as untimely filed)

Vick v. Department of Transportation, No. 2013-3073 (Nov. 12, 2013) (MSPB Docket No. DA-1221-10-0725-B-1) (affirming the Board's decision, which denied Vick's request for corrective action in this IRA appeal)

Carrillo v. Department of Homeland Security, No. 2013-3105 (Nov. 13, 2013) (MSPB Docket No. DE-3330-12-0088-I-1) (affirming the Board's decision, which denied Carrillo's request for corrective action in this VEOA appeal)

Pashayev v. Merit Systems Protection Board, No. 2012-3214 (Nov. 26, 2013) (MSPB Docket No. DA-315H-11-0616-I-1) (affirming the Board's decision, which dismissed Pashayev's appeal of the termination of his probationary employment for lack of jurisdiction)

Fox v. Department of Defense, No. 2012-3078 (Nov. 27, 2013) (MSPB Docket No. CH-0752-11-0659-I-1) (affirming the Board's decision, which dismissed Fox's appeal for lack of jurisdiction)
     
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