U.S. Merit Systems Protection Board 
Case Report for February 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.


Appellant:  Jessica M. Fox
Agency:  Department of the Army
Decision Number:  2014 MSPB 6
Docket Number:  DC-0752-11-0872-I-1
Issuance Date:  January 29, 2014
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

Adverse Action Charges
 - Inability to Perform
 - Excessive Absences
Removal Appeal versus Involuntary Retirement Appeal
Disability Discrimination
 - Reasonable Accommodation
 - Disparate Treatment

    The appellant petitioned for review of an initial decision that sustained the agency's removal action based on charges of inability to perform the duties of her position and work a regular schedule.  The appellant was a Program Manager in Washington, D.C.  She had not worked in the office for about two years prior to her removal in July 2011.  The agency denied the accommodation she requested -- telework status (working from home) on a full-time basis.  One day after the effective date of the removal action, the appellant applied for immediate retirement.  On appeal to the Board, the administrative judge found that she was adjudicating an adverse action appeal, not an involuntary retirement appeal.  The judge found that the agency proved both of its charges, that the appellant failed to establish her discrimination claims, and that the appellant's removal promoted the efficiency of the service.  On review, the appellant contested virtually all of the judge's findings.

Holdings:  The Board affirmed the initial decision as modified, still sustaining the agency's removal action:

1. The judge correctly adjudicated the case as an appeal of the agency's removal action.  

a. 5 U.S.C. 7701(j) provides that "[i]n determining the appealability under [section 7701] of any case involving a removal from the service . . . , neither an individual's status under any retirement system . . . nor any election made by such individual under any such system may be taken into account."  

b. The essential occurrence in such cases is the timing of the action by the agency, rather than the timing of the grant of retirement by OPM.  As long as an agency effects an action prior to the grant of retirement by OPM, the Board has jurisdiction over the action, regardless of the effective date of the retirement.  Where, as here, the agency's removal action occurs first, it is error to adjudicate an appellant's involuntary retirement claim as a matter distinct from a removal action.  

2. The agency proved the charge of inability to perform.

a. Where, as here, the appellant does not occupy a position with medical standards or physical requirements or subject to medical evaluation programs,  a charge of physical inability to perform requires the agency to prove a nexus between the employee's medical condition and observed deficiencies in her performance or conduct, or a high probability, given the nature of the work involved, that her condition may result in injury to herself or others.  In other words, the agency must establish that the appellant's medical condition prevents her from being able to safely and efficiently perform the core duties of her position.  In determining whether the agency has met is burden, the Board will consider whether a reasonable accommodation exists that would enable the appellant to safely and efficiently perform those core duties.  

b. The Board found that, with one possible exception, that the duties listed in the proposal notice are in fact essential functions of the appellant's position, which included at least some travel and face-to-face interaction, and the agency is not required to modify or eliminate duties that are an essential function of the position.  Permanent full-time telework would therefore not be a reasonable accommodation.  

c. The agency established a nexus between the appellant's medical condition and observed deficiencies in performance.   The appellant's absences had a negative effect not only on her own performance, but also on the operations of her work unit as a whole.  This charge must be sustained because the agency showed that the appellant's medical condition rendered her unable to safely and efficiently perform all the core duties of her position.  

3. The agency failed to prove the charge of excessive absences.

a. Among other things, a charge of excessive absences requires the agency to prove that the absences continued beyond a reasonable time, and that the agency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular full-time or part-time basis.  

b. The agency failed to prove this required element of the charge.  Although the agency notified the appellant on multiple occasions that her failure to return to work or submit acceptable medical documentation in support of her leave requests would result in her being AWOL, the agency did not notify the appellant that her failure to return to work could lead to discipline even if her absences were approved.  

4. The appellant failed to establish her claims of discrimination.

a. The agency did not fail to prove a reasonable accommodation.  Although it is undisputed and amply clear from the record that the appellant is a person with a disability, she cannot perform all essential functions of her position even with reasonable accommodation.  

b. The appellant failed to prove disability discrimination on the basis of disparate treatment, in that she failed to show that she was treated more harshly than similarly-situated employees.  Nor did the appellant establish that she suffered retaliation for having filed EEO complaints.  

5. The appellant's removal promotes the efficiency of the service.  

Appellant:  Mimosa P. Calixto
Agency:  Department of Defense
Decision Number:  2014 MSPB 7
Docket Number:  SF-315H-12-0284-I-1
Issuance Date:  January 29, 2014
Appeal Type:  Termination of Probationers

 - "Employees"
 - Probationers

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction because she is not an employee with appeal rights to the Board.  Effective January 31, 2011, the appellant received a career-conditional appointment to the competitive service position of Contract Price/Cost Analyst.  The legal authority for the appointment was a statutory direct-hire under 10 U.S.C. 1705(g), and the Standard Form 50 memorializing the appellant's hiring stated that her appointment was subject to the completion of a 1-year probationary period.  The agency terminated the appellant's employment for unacceptable performance effective January 28, 2012.  In dismissing the appeal for lack of jurisdiction, the administrative judge found that the statutory hiring authority pursuant to which the agency appointed the appellant qualified as a special appointing authority under 5 C.F.R. 315.801(e), and that the appellant was therefore required to serve a 1-year probationary period.  The judge further found that the Board lacked jurisdiction over the appellant's whistleblower reprisal claim as an IRA appeal because she failed to exhaust her administrative remedies with the Office of Special Counsel.  

Holdings:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. The appellant was not required to serve a probationary period pursuant to 5 C.F.R. 315.801, because the agency made no showing that she was selected from a list of eligible candidates, and the appellant was not appointed under Subpart F or Subpart G of Part 315.

2. The hiring authority itself is silent as to whether appointees are required to serve a 1-year probationary period, and OPM has not issued regulations addressing whether such appointees must serve a probationary period.  Nevertheless, the Board concluded that the agency was permitted to impose a 1-year probationary period in connection with the appellant's appointment.  This requirement brings her in line with the overwhelming majority of first-time career-conditional competitive service selectees who are required to serve probationary period, and is historically consistent with the nature of federal civil service appointments.  The Board also relied on guidance from the former Federal Personnel Manual.  

3. The appellant did not meet the length of service requirement under 5 U.S.C. 7511(a)(1)(A)(ii) to have adverse action appeal rights to the Board, and she failed to allege any other basis for Board jurisdiction over her appeal.  


     The Department of Homeland Security has filed a petition for a writ of certiorari with the U.S. Supreme Court, seeking review of the decision by the U.S. Court of Appeals for the Federal Circuit in MacLean v. Department of Homeland Security, 714 F.3d 1301 (Fed. Cir. 2013).  One of the issues before the Federal Circuit was whether MacLean's alleged whistleblowing disclosure was "specifically prohibited by law," which would exclude it from protection under 5 U.S.C. 2302(b)(8)(A).  The Board had answered that question in the affirmative.  116 M.S.P.R. 562 (2011).  The Federal Circuit held that the Aviation and Transportation Security Act, 49 U.S.C. 40119(b)(1) did not specifically prohibit the disclosure at issue.  In petitioning the Supreme Court for review, the Department of Homeland Security stated that the question was "whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a dislosure 'specifically prohibited by law,' can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information."  

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