U.S. Merit Systems Protection Board 
Case Report for December 13, 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:  Mary A. Miller
Agencies:  Department of the Interior and Office of Personnel Management
Decision Number:  2013 MSPB 94
Docket Number:  SF-0752-11-0766-R-2
Issuance Date:  December 6, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Refusal to Accept Directed Geographic Assignment

    This case was before the Board pursuant to the OPM Director's petition asking the Board to reconsider its May 13, 2013 Opinion and Order, 119 M.S.P.R. 438, which reversed the agency's action removing the appellant based on a charge of failure to accept a management-directed geographic reassignment.  The appellant was a Superintendent at the Sitka National Historical Park in Alaska.  She was removed when she refused to accept the newly created position of Alaska Native Affairs Liaison in Anchorage, Alaska, more than 500 miles from Sitka.  In reversing the agency's action in its previous decision, the Board stated that it was abandoning the burden-shifting approach that it had previously applied in similar cases because that approach did not meaningfully aid the Board's adjudication.  Nevertheless, the Board indicated that it was not departing from any of the jurisprudential principles otherwise governing its review of an adverse action based on a refusal to accept a geographic reassignment.  The Board stated that it would simply weigh all of the evidence and make a finding on the ultimate issue of whether the agency proved by preponderant evidence that the misconduct occurred and that its action promoted the efficiency of the service.  The Board found that "the record evidence simply does not support a finding that the agency directed the appellant's geographic reassignment due to bona fide management considerations and that her ensuing removal promoted the efficiency of the service."    

Holdings:  The Board affirmed its previous decision as modified:

1. The Board rejected OPM's assertion that it had improperly replaced the statutorily prescribed standard for upholding an agency's action with a higher one that requires an agency to demonstrate that its directed reassignments are "necessary."

a. The Board's emphasis in this case has always been on the agency's failure to show that its reasons for the reassignment were bona fide and that its action promoted the efficiency of the service.  

b. To the extent that some of the language in the previous opinion suggested that an agency must prove that a geographic reassignment is "necessary," the Board modified its decision to find that the agency in this case failed to provide a "rational basis" for requiring the appellant to accept the geographic reassignment because, for example, it did not show that the Superintendent position had been eliminated or that the agency had no need for her continued performance in that position, there was no indication that the appellant had performance problems in the Superintendent position, and the agency did not proffer any evidence of a RIF or reorganization.  

c. The Board rejected OPM's argument, citing LaChance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999), that, if the Board must defer to an agency's determination that a penalty is for such cause as to promote the efficiency of the service, then it must also defer to the agency's determination that the underlying adverse action was for such cause as to promote the efficiency of the service.  In the Opinion and Order under review, the Board applied the same efficiency of the service standard that has been applied by both the Board and the Federal Circuit over the years; it simply abandoned the burden-shifting framework for analysis, a framework that is not set forth in the statute or regulation regarding an adverse action appeal such as this.  

2. The Board is not bound by the burden-shifting approach outlined in previous case law.  

a. OPM contended that the Board had effectively overruled its previous decisions that promulgated a burden-shifting framework for analyzing cases such as this, and which was "endorsed" by the Board's reviewing court in Frey v. Department of Labor, 359 F.3d 1355 (Fed. Cir. 2004), such that the burden-shifting framework is now binding on the Board.  

b. The Board has applied the general principles approved by the court in Frey in adjudicating this case.  As explained in the Board's previous decision, the burden-shifting apparatus is irrelevant once the record is complete, and the ultimate issue is whether the agency proved by preponderant evidence that the misconduct occurred and that its action promoted the efficiency of the service.  The abandonment of the burden-shifting framework is entirely consistent with the approach taken by the court in Frey.  

c. In any event, the court's decision in Frey was not a de novo interpretation of any statute applicable in that case.  Rather, the court held that the Board's manner of adjudicating the case was reasonable and therefore deferred to the Board.  In such circumstances, the Board is not bound to apply the burden-shifting framework in the same manner as that framework appeared to have been applied in Frey.  Moreover, there has been no codification of the burden-shifting framework in the Board's regulations so as to preclude a change in approach by the Board.  



Appellant:  Harold Harvey Clark
Intervenor:  Nancy I. Clark
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 95
Docket Number:  AT-0831-12-0485-I-1
Issuance Date:  December 6, 2013
Action Type:  Retirement/Benefit Matter

Retirement
 - Survivor Annuity
Statutory Interpretation

    OPM petitioned for review of an initial decision that reversed its denial of the intervenor's request to waive her future entitlement to a survivor annuity.  The appellant was unmarried in 1995, when he retired from federal service and started receiving an annuity under the Civil Service Retirement System.  When he married the intervenor in 2007, the appellant elected to receive a reduced annuity in order to provide the maximum survivor annuity benefit to his wife.  In 2010, the appellant requested that OPM terminate the survivor annuity annuity election based on financial hardship.  OPM denied that request on the basis that the appellant's 2007 election was irrevocable under 5 U.S.C. 8339(k)(2)(A).  On appeal, the Board affirmed that determination, but informed the appellant that the intervenor could irrevocably request waiver of her entitlement to a survivor annuity, and thus restore the appellant's full annuity under the Board's interpretation of the controlling statute, 5 U.S.C. 8345(d).  The intervenor submitted a letter to OPM stating that she wished to irrevocably waive her entitlement to a survivor annuity, but OPM issued a final decision denying that request.  On appeal, the administrative judge reversed OPM's decision and ordered OPM to grant the intervenor's request.  In its petition for review, OPM acknowledges that the initial decision was in accordance with Board precedent, but asked the Board to overrule that precedent.

Holdings:  The Board granted OPM's petition for review and reversed the initial decision, finding that the intervenor may not waive her entitlement to a survivor annuity so that the appellant can receive an unreduced retirement annuity:

1. Section 8339(k)(2)(A) provides that an individual who marries after retiring "may irrevocably elect" a reduction in his current annuity in order to provide a survivor annuity benefit to his spouse or former spouse.  Because of the irrevocable nature of this election, the law does not permit an individual such as the appellant to rescind his election and return to an unreduced annuity, regardless of whether the election causes him financial hardship.

2. Section 8345(d) provides that an "individual entitled to annuity from the Fund may decline to accept all or any part of the annuity by waiver," and that such waiver "may be revoked in writing at any time."  In several cases, the Board has construed this provision to allow indirectly what section 8339(k)(2)(A) does not allow to be done directly by having the person named as the beneficiary of the survivor annuity irrevocably waive her future entitlement to that benefit.

3. The Board agreed with OPM that it had erred in previous decisions in finding that section 8345(d) authorizes an individual to make an irrevocable waiver.  That provision expressly states that the waiver "may be revoked at any time."  

4. Even if one could find section 8345(d) to be ambiguous on this issue, it is apparent from the legislative history that Congress did not intend to authorize an irrevocable waiver.  That history shows that the problem to be fixed was a situation in which receipt of an annuity decreased an existing annuitant's total income.  This unintended and paradoxical result could be avoided if the law allowed the annuitant to waive all or part of his or her annuity.  However, it was also important that any such waiver be revocable.  



Appellant:  Kevin Cortez Bean
Agency:  United States Postal Service
Decision Number:  2013 MSPB 96
Docket Number:  AT-3443-12-0159-I-1
Issuance Date:  December 11, 2013

Jurisdiction
 - Constructive Suspensions

    The appellant petitioned for review of an initial decision that dismissed his constructive suspension appeal for lack of jurisdiction.  The appellant is a Mail Handler.  Because his posttraumatic stress disorder is triggered by darkness, his psychologist recommended that the appellant be scheduled to work only during daylight hours.  The agency accommodated the appellant's condition for over 2 years by assigning him to tour 2, which runs from 6:30 a.m. to 3:00 p.m. In 2011, however, the agency reassigned him to work tour 3, which runs from 3:00 to 11:00 p.m.  Thereafter, the appellant began taking a large amount of sick leave, annual leave, and leave without pay in order to avoid working this shift.  It is not clear from the record exactly how much leave the appellant used, but it appears to have been well in excess of 14 days.  The appellant filed a Board appeal challenging the agency's decision to reschedule him to tour 3 and argued that it failed to provide him a reasonable accommodation.  The administrative judge dismissed the appeal for lack of jurisdiction without a hearing, finding that the appellant's choice between working after dark and requesting leave was perhaps unpleasant but nevertheless voluntary.  

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. Like involuntary resignations, removals, and reductions in pay or grade, involuntary leaves of absence may be appealable to the Board under chapter 75 as constructive suspensions.  The Board has found jurisdiction over 
constructive suspensions in a variety of situations, all of which have two things in common:  (1) the employee lacked a meaningful choice in the matter; and (2) it was the agency's wrongful actions that deprived the employee of that choice.  

2. The Board noted that its previous decisions have formulated legal tests that are not fully consistent with the principles just described.  For example, the Board has frequently stated that 
constructive suspensions arise in "two situations," which do not comprise all of the situations which meet the two tests described above.  The Board has also frequently stated that the dispositive issue in a constructive suspension appeal is whether the agency or the employee initiated the absence, but there are several instances, including this case, in which the employee initiated the absence and which meet the requirements of a constructive suspension.  In addition, the Board and the Federal Circuit have often emphasized the involuntariness aspect of constructive suspension adverse action claims to the detriment of the improper agency action aspect.  Accordingly, the Board overruled, clarified, or modified inconsistent case law.  

3. Here, the essence of the appellant's claim is that he was compelled to take leave because his only alternative was to work after dark, in violation of his doctor's orders, and that the agency forced him into this untenable position by improperly taking him off his daytime work shift and otherwise failing to accommodate his condition.  The appellant's allegations, if proven, could establish that he lacked a meaningful choice in the matter and that it was the agency's improper actions that deprived him of that choice.  He is therefore entitled to a jurisdictional hearing.  

4. The Board noted that the agency invoked the collective bargaining agreeement as its reason for moving the appellant from his daytime shift to tour 3, and that both Supreme Court precedent and EEOC guidance explain that an accommodation that would violate a collectively bargained seniority system would generally be unreasonable unless the employee can show that "special circumstances" exist.  Whether retaining the appellant on tour 2 would violate the collective bargaining agreeement is in dispute, and the record has not been fully developed as to whether there were reasonable accommodations other than retaining the appellant on tour 2.  



Appellant:  David B. White
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 97
Docket Number:  DA-0432-12-0484-I-1
Issuance Date:  December 12, 2013
Appeal Type:  Performance
Action Type:  Removal

Performance-Based Actions
 - Opportunity to Demonstrate Acceptable Performance
 - "Roller Coaster" Employees
Discrimination
 - Physical/Mental Disability - Accommodation

    The appellant petitioned for review of an initial decision that affirmed the agency's action reducing him in grade or unacceptable performance.  The appellant was a GS-9 Veterans Service Representative in Waco, Texas.  In February 2011, his supervisor advised him that he was failing to meet the Output critical element of his performance standards and placed him on a performance improvement plan (PIP).  Prior to the expiration of the 90 days, the agency notified the appellant that he had successfully completed the PIP, but warned him that he would need to maintain his successful performance for 1 year from the beginning of the PIP, and that failure to do so could result in an action to remove, reassign, or demote him without benefit of another PIP.  In April 2012, the agency proposed to demote the appellant based on his unacceptable performance on the Output critical element within 1 year of the inception of the PIP.  Four days later, the appellant filed a request for accommodation in which he cited several medical conditions and stated that he was seeking reassignment and a change in his work shift.  The agency responded that it lacked sufficient information to make a determination as to an accommodation and requested that the appellant provide medical and other information.  On May 18, 2012, the agency issued a decision demoting the appellant to a GS-5/6 Claim Assistant position.  

     On appeal to the Board, the administrative judge issued an initial decision finding that the agency proved its case by substantial evidence.  The judge further found that the appellant failed to establish discrimination on the basis that the agency failed to accommodate his disability, that the agency violated his right to minimum due process of law, or that the action should be reversed because the agency committed harmful procedural error.  

Holdings:  The Board denied the appellant's petition for review and affirmed the agency's reduction in grade action:

1. The agency complied with OPM's regulations for addressing unacceptable performance by employees.

a. The agency established by substantial evidence that OPM approved its performance appraisal system, that the agency communicated to the appellant the performance standards and critical elements of his position, that the performance standards were valid, that the agency warned the appellant of the inadequacies of his performance during a appraisal period and gave him a reasonable opportunity to improve; and that the appellant's performance remained unacceptable in at least 1 critical element.

b. The agency complied with the requirements under Board case law and OPM regulations (5 C.F.R. 432.105(a)(1)-(3)) for providing a reasonable opportunity to improve to an employee whose performance is unacceptable until the PIP, improves during the PIP, but shortly thereafter deteriorates and again becomes unacceptable:  (1) once an employee has been afforded a reasonable opportunity to improve, an agency may propose a reduction grade or removal action if the employee's performance "during or following" the PIP is unacceptable in one or more of the critical elements involved in the PIP; (2) if an employee who has been placed on a PIP performs acceptably for 1 year, starting with the commencement of the PIP, he is entitled to a new PIP if his performance again becomes unacceptable; and (3) a proposed reduction grade or remvoal may be based on instances of unacceptable performance that occur within a 1-year period ending on the date of notice of proposed action.  

2. The appellant failed to show that the agency's performance-based action was improper on the basis that it was based on performance during a detail.  

3. The appellant failed to establish that the agency discriminated against him by failing to accommodate his disability.

a. In order to establish disability discrimination in cases such as this, an employee must show that:  (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the agency failed to provide a reasonable accommodation.  

b. The Board agreed with the administrative judge's determination that the appellant is an individual with a disability as defined by 29 C.F.R. 1630.2(g), i.e., a physical or mental impairment that substantially limits one or more of his major life activities.  The question of whether an individual's impairment is a covered disability should not demand extensive analysis.  

c. Assuming without deciding that the appellant also established that he is a qualified individual with a disability under 29 C.F.R. 1630.2(m), i.e., that he can perform the essential functions of his position with or without reasonable accommodation, the Board found that the appellant failed to establish that the agency violated its duty of reasonable accommodation because the appellant failed to fulfill his obligations in the interactive accommodation process.  

d. An accommodation is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases," i.e., if it appears to be "feasible" or "plausible."  A request for accommodation is the first step in an informal, interactive process between the employee and the employer.  The employer may ask the individual relevant questions that will enable it to make an informed decision about the request.  When the disability and/or the need for accommodation is not obvious, the employer may ask the individual questions that will enable it to make an informed decision about the request, which includes asking about the individual's disability and functional limitations, and what type of reasonable accommodation is needed.  Where the existence or nature of a reasonable accommodation is not obvious, and the employee fails to respond to the employer's request for medical information or documentation, an agency will not be found to have violated its duty to provide a reasonable accommodation.

e. The agency's response to the appellant's request for accommodation, which sought additional information and medical documentation, was reasonable and appropriate under the circumstances.  Whether and the degree to which the appellant's ability to perform the essential duties of his position was adversely affected by his medical conditions, and whether or how a modification to his work duties or schedule or a reassignment would have enabled him to better perform those duties were not obvious and had not been addressed in the medical documentation he provided with his request for accommodation.  Unless and until the appellant provided the requested information and documentation, the agency could not be expected to modify the appellant's work duties or schedule or to reassign him to another position.  

f. The appellant's three requests for a "hardship transfer" did not constitute requests for accommodation; they focused on the hardship caused to the appellant's family by their separation (the appellant was working in Waco, while his wife and children were living in San Antonio).  

4. The appellant failed to establish that the agency violated his right to minimum due process of law or engaged in harmful procedural error, or that the judge abused her discretion in refusing to approve witnesses.  
'


COURT DECISIONS

Petitioner:  Trong Q. Nguyen
Respondent:  Department of Homeland Security
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2013-3024
Issuance Date:  December 9, 2013

Double Punishment for Single Offense
Giglio Impairment
Constitutional Issues - Due Process

    The primary issue in this case was whether Nguyen's demotion should be reversed because it constituted a second punishment for a single offense.  In performing his duties as a Deportation Officer, Nguyen worked closely with the U.S. Attorney's Office (USAO), and was often required to testify as a witness during grand jury proceedings and criminal prosecutions.  In 2008, Nguyen was the subject of an Office of Professional Responsibility (OPR) investigation, in which he admitted making false statements during a police investigation.  Following the OPR investigation, the agency initiated a removal proceeding, ultimately imposing a 14-day suspension after 3 of 5 charges were sustained.  Two years later, the USAO determined that Nguyen's disciplinary history impaired his credibility as a witness pursuant to Giglio v. United States, 405 U.S. 150 (1972).  The agency initiated a second removal proceeding, this time charging "Inability to Perform Full Range of Duties."  The agency sustained the charge, but mitigated the proposed penalty and demoted Nguyen to the position of Detention and Removal Assistant, which would not require him to be a witness in criminal proceedings.  On appeal, the Merit Systems Protection Board found that the agency had not impermissibly subjected Nguyen to double punishment or violated Nguyen's due process rights.  

Holdings: The court affirmed the Board's decision:

1. The USAO had established procedures pursuant to Giglio and other cases requiring that Deportation Officers such as Nguyen must "be free of any findings or investigations that impair their credibility."  The USAO found that Nguyen was Giglio impaired based on his admission during the OPR investigation that he made false statements to the police.  

2. The agency lacked authority to force the USAO to allow Nguyen to testify or to otherwise challenge the USAO's Giglio determination.  The agency was therefore entitled to take action based on the undisputed effects of that finding -- that Nguyen could no longer testify as a witness during prosecutions or make declarations under oath.  These prohibitions made Nguyen unable to perform the full range of his duties.  

3.  The demotion action did not constitute a second punishment for a single offense.  The 2011 demotion was based on the USAO's Giglio determination, whereas the 2008 suspension was based on Nguyen's earlier miscondut.  

4. The court rejected Nguyen's contention that he was denied due process in that he had no opportunity to contest the determination of the U.S. Attorney's Office.  Despite this limitation, Nguyen was not deprived of due process; he had an opportunity to and did respond orally to the deciding official, who mitigated the proposed removal to a demotion.  



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

Steele v. Merit Systems Protection Board, No. 2013-3085 (Dec. 9, 2013) (MSPB Docket No. AT-0831-11-0758-A-1) (affirming the Board's decision, which dismissed Steele's motion for attorney fees as untimely)

Brison v. Department of Veterans Affairs, No. 2013-3067 (Dec. 9, 2013) (MSPB Docket No. CH-0752-10-0869-I-1) (affirming the Board's decision, which sustained Brison's removal)

Gipson v. Department of the Treasury, No. 2013-3157 (Dec. 9, 2013) (MSPB Docket No. AT-0752-12-0418-I-1) (affirming the Board's decision, which dismissed Gipson's appeal as settled)

Buckner v. U.S. Postal Service, No. 2013-3144 (Dec. 11, 2013) (MSPB Docket No. CH-0752-12-0230-I-1) (affirming the Board's decision, which sustained Buckner's removal)

Gomez v. Department of Veterans Affairs, No. 2013-3089 (Dec. 11, 2013) (MSPB Docket No. NY-0752-10-0238-M-1) (affirming the Board's decision, which dismissed Gomez's appeal for lack of jurisdiction)
    

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