United States Merit Systems Protection Board

Case Report for February 18, 2011

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: Raul Bencomo

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 22

Docket Number: DA-0752-09-0332-I-1

Issuance Date: February 11, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Defenses - Judicial Estoppel

The appellant petitioned for review of an initial decision that sustained his removal from the position of Criminal Investigator. The removal was based on 6 charges of misconduct, all of which related to the appellant’s actions with respect to a confidential informant used by the agency. After a hearing, the administrative judge found that the agency proved 5 of the charges, which included making a false statement in a written interview and intentionally misleading the agency by submitting a false document, and sustained the appellant’s removal. On review, the appellant challenged each of the sustained charges and argued that the agency should have been judicially estopped from bringing 3 of the charges because of its litigation stance in a court proceeding.

Holdings: The Board denied the appellant’s petition for review and affirmed the agency’s removal action:

1. The first 3 charges are not barred by judicial estoppel.

a. Judicial estoppel is an equitable doctrine that is used by courts to bar a party from adopting inconsistent positions in the same or related litigation. Here, the appellant asserted that the agency took a position in this appeal that was inconsistent with the position the Department of Justice took in defending a civil suit brought in U.S. district court under the Federal Tort Claims Act.

b. In the court proceeding, the estates and relatives of 6 decedents sought relief from the United States for murders committed by a Mexican drug cartel, alleging that, despite knowledge that the confidential informant involved in the MSPB appeal participated in a murder, the defendants allowed him to continue operating as a confidential informant, and that the confidential informant was subsequently involved in at least 12 other murders. The appellant argued that the agency took the position in the court proceeding that the appellant violated no agency rules or regulations in connection with the confidential informant, and then charged the appellant with misconduct in connection with the same confidential informant.

c. The dismissal of the court proceeding was not based on a determination that the appellant’s actions were proper. Instead, the court found that the plaintiffs failed to establish that the agency owed a duty of care to the decedents, or that any alleged negligence by agency employees (including the appellant) was the cause in fact of the decedents’ deaths. Accordingly, the agency’s position in the present case is not inconsistent with the position taken by the government and adopted by the court in the court proceeding.

2. The appellant’s claim of disparate treatment is not a defense against the charges.

a. The appellant argued that none of the first 3 charges should have been sustained because he established that similarly situated employees were not charged with the same conduct.

b. An employee’s allegation that the agency treated him disparately to another employee, without a claim of prohibited discrimination, is an allegation of disparate penalties that is considered by the Board in determining the reasonableness of the penalty, but it is not an affirmative defense.

3. The appellant judge properly sustained the charges.

a. Where, as here, an administrative judge’s credibility determinations are based on the observation of the demeanor of witnesses testifying at a hearing, the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so.

b. Here, the administrative judge considered that the appellant offered the results of polygraph examinations indicating that he did not intend to mislead the agency, but found that the polygraph evidence was not persuasive when weighed against the conflicting evidence in sustaining 3 of the charges.

4. The administrative judge properly affirmed the penalty of removal.

Appellant: Johnnie L. Brown

Agency: United States Postal Service

Decision Number: 2011 MSPB 23

Docket Number: SF-0752-09-0881-I-1

Issuance Date: February 11, 2011

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Timeliness – PFA
Jurisdiction – Involuntary Retirement

The appellant petitioned for review of an initial decision that dismissed her appeal of an allegedly involuntary retirement as untimely filed. The appellant alleged that her decision to retire in 2000 after 34 years of service was the result of a hostile, discriminatory work environment she endured for many years that caused her severe emotional distress, and which culminated in an incident in which she lost consciousness while meeting with her supervisor. After litigating a discrimination claim before the EEOC and in the federal courts, she filed her Board appeal in 2009. The administrative judge issued an initial decision dismissing the appeal as untimely filed by nearly 9 years with no good cause shown for the delay.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and dismissed the appeal for lack of jurisdiction:

1. The administrative judge erred by deciding the timeliness issue without first determining that the Board has jurisdiction over this appeal.

a. In an appropriate case, an administrative judge may assume that an appealable action occurred and may proceed to dismiss an appeal as untimely filed if the record on timeliness is sufficiently developed. Such an approach is not appropriate, however, if the jurisdictional and timeliness issues are inextricably intertwined, i.e., if resolution of the timeliness issue depends on whether the appellant was subjected to an appealable issue.

b. The issues of timeliness and jurisdiction are typically inextricably intertwined in an appeal based on an alleged involuntary retirement because if the agency has subjected the employee to an appealable action then the agency’s failure to inform an employee of her right to appeal may excuse an untimely filed Board appeal.

2. The appellant failed to make a nonfrivolous allegation that her retirement was an involuntary action within the Board’s jurisdiction.

Appellant: Keith A. Bohannon

Agency: United States Postal Service

Decision Number: 2011 MSPB 24

Docket Number: SF-0752-09-0667-I-1

Issuance Date: February 15, 2011

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

- Constructive Suspension
- Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged constructive suspension as moot. The appellant suffered a work-related injury in 1998 while working as a letter carrier and was later reassigned to a mail processing clerk position. In April 2008, he accepted a modified clerk assignment in which he worked 4 hours per work day. In May 2009, the agency notified the appellant that, under its National Reassessment Process, it had determined that there was no operationally necessary work available for him within his medical restrictions and that he should not report for duty unless he was informed that such work was available. The appellant filed a Board appeal alleging that his placement off duty constituted a constructive suspension and that he was subjected to disability discrimination. The regional office docketed two separate appeals, an adverse action appeal (constructive suspension) and a denial of restoration rights under 5 U.S.C. part 353. Although the two appeals were originally joined, they were later severed and the restoration appeal was dismissed without prejudice pending the outcome of the constructive suspension appeal. The administrative judge dismissed the constructive suspension appeal as moot based on her determination that the agency had completely rescinded the action.

Holdings: The Board reversed the initial decision and remanded the appeal to the regional office for further adjudication:

1. In Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473 (2010) the Board held that circumstances similar to the present appeal do not give rise to a valid constructive suspension claim. Instead, the Board held that an appellant’s rights and remedies regarding the time when the agency failed to assign him work and required his absence from duty are subsumed in the restoration appeal process.

2. Under these circumstances, the administrative judge should deem the restoration appeal refiled and adjudicate it, including the appellant’s claim of disability discrimination.


Petitioner: Thomas O. Ward

Respondent: U.S. Postal Service

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2010-3021

Issuance Date: February 17, 2011

Constitutional Issues – Due Process
Defenses – Harmful Error

Ward appealed the Board’s decision, 112 M.S.P.R. 239 (2009), which affirmed the agency’s decision to remove him from employment based on a single charge of improper conduct arising out of an incident in which he allegedly shouted at a supervisor, acted in a manner that she perceived as threatening, and disobeyed her instructions to remain in her office. The agency’s notice of proposed removal did not reference any other misconduct by Ward. At the hearing before the Board’s administrative judge, the agency’s deciding official testified that before making his decision, he not only reviewed investigative documents regarding the charged incident but also spoke with 2 supervisors and a manager who discussed prior incidents in which Ward exhibited “loud, belligerent, [and] intimidating behavior.” The deciding official admitted that Ward’s “recurring pattern of behavior” affected his analysis of two Douglas factors – his confidence in Ward’s ability to satisfactorily perform his duties and Ward’s potential for rehabilitation. The administrative judge found that the deciding official properly considered Ward’s alleged past instances of misconduct because they “are precisely the types of non-disciplinary counselings a deciding official may use to enhance a penalty.” The judge further determined that the discussions were not improper ex parte communications because they were not “of the type that resulted in undue pressure upon [the deciding official] to rule in a particular manner.”

On petition for review, the Board found that the administrative judge had erred in two respects. First, the Board concluded that the administrative judge erred in finding that the deciding official was entitled to consider Ward’s alleged past misconduct in the penalty analysis. Second, the Board determined that the judge erred in analyzing whether the deciding official’s discussions regarding the alleged prior misconduct constituted improper ex parte communications. The Board reasoned that “[w]here an ex parte communication does not relate to the charge itself, but relates instead to the penalty, the Board has not considered such error to be [a] denial of due process of law . . . .” The Board explained that, in these circumstances, it would “remedy the error by doing its own analysis of the penalty factors” to determine whether “removal is within the bounds of reasonableness, considering the pertinent factors other than [Ward’s] past work record.” After doing this independent review, the Board concluded that the penalty of removal “does not exceed the tolerable limits of reasonableness.”

Holdings: The court vacated the Board’s decision and remanded for further proceedings:

1. The Board erred in failing to address the due process concerns arising out of the deciding official’s ex parte communications regarding Ward’s alleged prior instances of misconduct.

a. Where a public employee has a property interest in continued employment, the Due Process Clause of the Fifth Amendment requires that the employee be afforded notice “both of the charges and of the employer’s evidence” and an “opportunity to respond” before being removed from employment.

b. The ultimate inquiry, as set forth in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), is whether the ex parte communication is “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to the deprivation of property under such circumstances.” Not every ex parte communication is a procedural defect so substantial and likely to cause prejudice that it undermines due process. Instead, only ex parte communications that introduce new and material information to the deciding official violate due process.

c. If the deciding official received new and material information by means of ex parte communications, thereby violating the employee’s due process rights, the “violation is not subject to the harmless error test.” Instead, the employee is automatically entitled to an “entirely new” and “constitutionally correct” removal proceeding.

d. The court “reject[ed] as arbitrary and unsupportable the Board’s distinction between ex parte communications relating to the charge itself and ex parte communications relating to the penalty. Indeed, if ex parte communications influence a deciding official’s penalty determination, contributing to the enhancement of the penalty to removal, the communications impact the employee’s property interest in continued employment no less than if they relate to the underlying charge.”

e. Accordingly, the court remanded the case to the Board to analyze whether the ex parte communications between the deciding officials and various agency supervisors and managers undermined Ward’s procedural due rights under Stone. If so, Ward must be afforded a “constitutionally correct removal procedure.”

2. Even if the Board concludes on remand that the ex parte communications did not rise to the level of a due process violation, the agency’s consideration of Ward’s alleged past instances of misconduct, without referencing these incidents in the notice of proposed removal, was still a procedural error that requires analysis under the harmless error test.

a. The Civil Service Reform Act, 5 U.S.C.  7701(c)(2)(A), provides that the Board may not sustain an agency decision if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” The Board’s regulations define “harmful error” as an “[e]rror by the agency in the application of its procedures that is likely to have cause the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.”

b. 5 C.F.R.  752.404(f) provides that “[i]n arriving at its decision, the agency shall not consider any reasons for action other than those specified in the notice of proposed action.” It is a procedural error, in violation of this provision, for “an agency to rely on matters affecting the penalty it imposes without concluding those matters in the proposal notice.”

c. Despite recognizing this procedural error, the Board erred in concluding that it could “remedy the error” by performing an independent analysis of the Douglas factors to determine whether “removal is within the bounds of reasonableness.” Instead, the Board was required to run a harmless error analysis to determine whether the procedural error required reversal.

d. Arguably, the Board’s independent analysis of the Douglas factors was the Board’s attempt to perform a harmless error analysis. The focus of a harmless error analysis, however, is the agency and whether the agency is likely to have reached a different conclusion in the absence of the procedural error. The Board “own analysis” of Ward’s penalty did not focus on what the agency would have done in the absence of the procedural error and was therefore not a proper harmless error analysis. The Board must analyze whether “there is some indication that the agency would have regarded the sustained charges as insufficient to justify the penalty imposed.” If there is such an indication, the matter must be remanded “to the agency for redetermination of the appropriate penalty in the first instance.”


Non-precedential Decisions

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

Suggs v. Department of Veterans Affairs, No. 2010-3154 (Feb. 11, 2011) (MSPB Docket No. SF-0752-09-0734-I-1) (affirming the Board’s decision, 113 M.S.P.R. 671 (2010), which determined that the agency’s adverse action was not taken in reprisal for protected whistleblowing)

Schechner v. Department of Homeland Security, No. 2010-3122 (Feb. 11, 2011) (MSPB Docket No. DA-0752-09-0409-I-1) (affirming per Rule 36 the Board’s decision, which affirmed the agency’s removal action)

Lee v. Department of the Army, No. 2010-3176 (Feb. 14, 2011) (MSPB Docket No. DC-0752-10-0186-I-1) (affirming the Board’s decision, which affirmed the agency’s removal action)

Baney v. Merit Systems Protection Board, No. 2010-3184 (Feb. 15, 2011) (MSPB Docket No. DA-3443-10-0262-I-1) (affirming the Board’s decision, which dismissed an appeal for lack of jurisdiction)

Grayton v. Office of Personnel Management, No. 2010-3161 (Feb. 16, 2011) (MSPB Docket No. SF-0731-11-0446-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant was ineligible for a particular position with the ATF, as well as the appellant’s debarment from competition for or appointment to any position in the Federal service until October 2012)