U.S. Merit Systems Protection Board 
Case Report forJanuary 3, 2014

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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:  Kevin Cortez Bean
Agency:  United States Postal Service
Decision Number:  2013 MSPB 98
Docket Number:  AT-3443-13-0240-I-1
Issuance Date:  December 16, 2013

Dismissal - Administrative Efficiency

    The appellant petitioned for review of an initial decision that dismissed his constructive suspension appeal on grounds of administrative efficiency.  In November 2011, the appellant filed a Board appeal challenging an alleged constructive suspension and raising discrimination claims.  In November 2012, the administrative judge dismissed that appeal for lack of jurisdiction, and the appellant filed a petition for review.  While that petition was pending, the appellant filed the instant appeal, challenging the same alleged constructive suspension and raising the same discrimination claims.  The administrative judge dismissed this second appeal on grounds of adjudicatory efficiency, explaining that, if the appellant prevailed in the appeal already pending on review, he would receive all the relief that he could have received in the second appeal.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision.  When an appellant files an appeal that raises claims raised in an earlier appeal after the initial decision in the earlier appeal has been issued, but before the full Board has acted on the appellant's petition for review, it is appropriate to dismiss the subsequent appeal on grounds of adjudicatory efficiency.  



Appellant:  Algene L. Ott
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 99
Docket Number:  SF-844E-12-0334-I-1
Issuance Date:  December 30, 2013
Appeal Type:  FERS - Employee Filed Disability Retirement
Action Type:  Retirement/Benefit Matter

Retirement - Disability Retirement
 - OPM Failure to Consider All Medical Conditions

    The appellant petitioned for review of an initial decision that affirmed an OPM reconsideration decision that denied her application for disability retirement.  In her Statement of Disability on the application, the appellant listed her medical conditions as adrenal fatigue, low thyroid T3, hip pain, tight neck and shoulders, stress, and irritable bowel syndrome.  The appellant's supporting medical documentation also demonstrated that she has permanent hearing loss.  In both its original denial and and reconsideration decision, OPM concluded that the appellant failed to prove that the conditions listed in the Statement of Disability were of disabling severity, but neither decision made any findings related to the appellant's hearing loss.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the case to OPM for a new reconsideration decision that would address the appellant's hearing loss:

1. Generally, the Board has jurisdiction over retirement issues only once they have been the subject of an OPM reconsideration decision.  However, when OPM fails to adjudicate all the claims and dispositive issues before it, the Board has jurisdiction to consider the non-adjudicated claims and issues, and may remand the case for OPM to complete a full review of the matter.

2.  Remand is appropriate here for OPM to address the appellant's hearing loss as a potentially disabling medical condition.  



Appellant:  Robert E. Davis
Agency:  United States Postal Service
Decision Number:  2013 MSPB 100
Docket Number:  DA-0752-12-0306-I-1
Issuance Date:  December 31, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Penalty - Mitigation

    The appellant petitioned for review of an initial decision that sustained the appellant's removal.  The appellant was removed from his position as a Maintenance Mechanic on a single charge of unacceptable conduct in violation of the agency's zero tolerance policy and other rules and regulations.  The incident leading to the appellant's removal took place after his wife, who worked in a different agency office, called him on the telephone crying because of how her manager had spoken to her.  The appellant allegedly entered that manager's office, refused to sit down, invaded the manager's personal space, and yelled angrily at him, including that the manager "wasn't a man, that he had 'no [expletive],' and how his 'punk [expletive] could not talk to him like he talked to women.'"  The appellant also allegedly threatened that "it wouldn't be pretty" if he had to return to the station.  The agency alleged that the appellant's actions were threatening and made the employees in the room fearful.  The administrative judge sustained the charge of unacceptable conduct, found that the appellant failed to prove his affirmative defense of sex discrimination, that there was a nexus between the appellant's conduct and the efficiency of the service, and that the removal penalty was within the tolerable limits of reasonableness.  As to the reasonableness of the penalty, the judge found that the comparators identified by the appellant were not similarly situated.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision as modified:

1. The Board affirmed the administrative judge's findings with respect to the sustained charge, nexus, and the appellant's affirmative defense of sex discrimination.  

2. The removal penalty was within the bounds of reasonableness, notwithstanding the appellant's claim of disparate penalties.

a. The Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness.  

b. Regarding the Douglas factor of the consistency of the penalty with those imposed on other employees for the same or similar offenses, an appellant must show that there is "enough similarity between both the nature of the misconduct and other factors to lead a reasonable to conclude that the agency treated similarly-situated people differently, but the Board will not have hard and fast rules regarding the 'outcome determinative' nature of these factors."  

c. The Board affirmed the administrative judge's finding that the appellant's wife, who had received a letter of warning for unacceptable behavior in violation of the agency's zero tolerance policy, was not similarly situated compared to the appellant.  

d. A Maintenance Manager who received a Letter of Warning for unacceptable conduct for his unprofessional behavior, which included harassment, coercion, and intimidation through verbal assault, was similarly situated to the appellant.  Arguably, the Maintenance Managaer's misconduct was more serious than the appellant's misconduct because the Maintenance Manager was a supervisory employee and his misconduct involved multiple incidents over the course of several months.

e. Nevertheless, the agency met its burden of proving that it had a legitimate reason for the difference in treatment.  The appellant's misconduct, unlike that of the Maintenance Manager, placed employees in fear for their safety.  In addition, the appellant's unacceptable conduct violated the agency's zero tolerance policy, unlike that of the Maintenance Manager, and the latter had many more years of service with the agency.  In addition, an agency is not foreclosed from proferring evidence that the penalty for a certain offense was too lenient in the past.  Here, the deciding official testified credibly that he was unfamiliar with the Maintenance Manager or the circumstances of his discipline when he issued a decision regarding the appellant's misconduct, and that he would have removed the Maintenance Manager if he had been the deciding official in that case.  



Appellant:  Richard Erickson
Agency:  United States Postal Service
Decision Number:  2013 MSPB 101
Docket Number:  AT-3443-07-0016-M-5
Issuance Date:  December 31, 2013

Veterans' Rights - USERRA - Discrimination
Interim Relief

    The agency petitioned for review of an initial decision that granted the appellant's request for corrective action in this USERRA appeal.  During his employment with the Postal Service from 1988 until 2000, the appellant was absent for lengthy periods while serving on active duty with the Army National Guard Reserve.  In 2000, the agency removed the appellant from employment for excessive use of military leave, alleging that the appellant no longer retained USERRA employment rights because he had been on military leave for more than 5 years.  

     This case was before the Board on remand from the U.S. Court of Appeals for the Federal Circuit for the second time.  The first time that the case was before the court, it reversed the Board's finding that the appellant's military service was not a motivating factor in the agency's decision to remove him, but remanded the case to the Board for a determination whether the appellant had waived his USERRA rights by abandoning his civilian career.  571 F.3d 1364 (2009). On remand, the Board answered this question in the affirmative.  On appeal to the Federal Circuit, the court vacated the Board's decision, finding that the appellant had not abandoned his civilian position, and remanded the case to the Board for further proceedings on the appellant's USERRA claim.  636 F.3d 1353 (2011).  On remand, the administrative judge issued an initial decision granting the appellant's request for corrective action.  The judge ordered the agency to cancel the removal, restore the appellant retroactive to the date of the removal, and compensate the appellant for any loss of wages or benefits suffered as a result of the agency's action.  The judge further directed that, in the event either party filed a petition for review, the agency should provide the appellant with interim relief pursuant to 5 U.S.C. 7701(b)(2)(A).  

Holdings:  The Board denied the agency's petition for review and affirmed the initial decision:

1. The Board denied the agency's motion for a stay of interim relief and the appellant's motion that the agency's petition for review be dismissed for failure to comply with the order for interim relief.  
The Board declined to resolve whether interim relief is available in USERRA cases.  Because the issuance of this Opinion and Order terminates the interim relief period, the agency's objections to the interim relief order are now moot.  

2. The appellant is entitled to reinstatement and lost wages and benefits as a remedy for the agency's violation of 38 U.S.C. 4311.  

a. The remedial statute, 38 U.S.C. 4324(c)(2), requires that the agency "compensate such person for any loss of wages or benefits suffered by such person by reason of such lack of compliance."  

b. In order to bring itself into compliance with section 4311, the agency must necessarily cancel the removal action it took in violation of that section.  The purpose of a Board order canceling an adverse personnel action is to place the appellant as nearly as possible in the status quo ante.  

c. The appellant's reinstatement is not precluded by the Federal Circuit's finding that his reemployment rights under section 4312 were not violated.

d. The appellant's post-removal military service does not limit the period of time for which the appellant must be reinstated.  Neither the court nor the Board has concluded that the appellant would have reenlisted in the military had he not been improperly removed.  Because a service member is expected to exercise reasonable diligence to mitigate economic damages suffered as a result of an employer's violation of USERRA, the award of lost wages and benefits must be offset by the amount the appellant should have reasonably earned during the relevant period.  



Appellant:  Maria Lavinia Jones
Agency:  Department of Energy
Decision Number:  2013 MSPB 102
Docket Number:  CB-7121-13-0111-V-1
Issuance Date:  December 31, 2013
Appeal Type:  Arbitration Appeals/Grievances

Jurisdiction - Review of Arbitration Decisions

    Pursuant to 5 U.S.C. 7121(d), the appellant requested review of an arbitration decision that affirmed her removal.  In her request for Board review, the appellant raised an EEO retaliation claim that she had not raised before the arbitrator.  

Holdings:  The Board dismissed the appellant's request for review for lack of jurisdiction:

1. Section 7121(d) empowers the Board to review arbitration decisions under certain circumstances when the employee alleges that an otherwise appealable personnel action involved discrimination prohibited by 5 U.S.C. 2302(b)(1).  

2.
Because of the highly deferential standard accorded to arbitration decisions, an appellant who is dissatisfied with an arbitrator's decision generally may not seek to set aside or modify that decision on a ground not raised before the arbitrator.  Prior to the Federal Circuit's decision in Jones v. Department of the Navy, 898 F.2d 133 (Fed. Cir. 1990), applied this principle to discrimination claims raised for the first time in an appellant's request for review of an arbitration decision.  Relying in part on the Board's regulations at that time, the court concluded in Jones that an employee did not have to raise a discrimination claim before an arbitrator in order to raise such a claim with the Board.  

3. Effective November 13, 2012, the Board amended its regulations governing review of arbitration decisions.  The revised regulation, 5 C.F.R. 1201.155(c), provides as follows:  "If the negotiated grievance procedure permits allegations of discrimination, the Board will review only those claims of discrimination that were raised in the negotiated grievance procedure.  If the negotiated grievance procedure does not permit allegations of discrimination to be raised, the appellant may raise such claims before the Board."  

4. Here, discrimination claims could be raised under the negotiated grievance procedure.

5. Applying its new regulation, the Board dismissed the request for review for lack of jurisdiction.  



COURT DECISIONS


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

Roman v. Office of Personnel Management, No. 2013-3095 (Dec. 13, 2013) (MSPB Docket No. CH-0841-12-0605-I-1) (affirming the Board's decision, which affirmed OPM's calulation of Roman's survivor benefits)

Kitt v. Department of the Navy, No. 2013-3100 (Dec. 23, 2013) (MSPB Docket No. AT-0752-11-0170-P-1) (affirming per Rule 36 the Board's decision, which denied Kitt's motion for compensatory damages)
     
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