U.S. Merit Systems Protection Board 
Case Report for July 20, 2012 

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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:  Malaika Green-Brown
Agency:  Department of Defense
Decision Number:  2012 MSPB 84
Docket Number:  PH-315H-11-0480-I-1
Issuance Date:  July 13, 2012
Action Type:  Probationary Termination

Jurisdiction - Probationers

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  The agency terminated the appellant's employment during her probationary period, citing time and attendance problems.  On appeal, she claimed that her termination reflected discrimination on the basis of her marital status.  She alleged that on numerous occasions her supervisor threatened her employment standing while referencing her marital and parental status in an effort to get her to switch teams and/or organizations, to return to her previous employer, or to quit.  The appellant further asserted that, when those attempts failed, the supervisor moved to terminate her employment based "on bogus claims" in order to "cover up" his retaliatory actions.  She challenged the incidents on which her termination was based, noting that she received a performance bonus after they occurred.  She also described an incident in which she was working at home where she alleged she was subjected to conditions to which married employees with dependents were not subjected.  Based on the written record, the administrative judge found that, even accepting the appellant's allegations as true, the appellant failed to assert a nonfrivolous allegation of marital status discrimination.  

Holdings:  The Board vacated the initial decision and remanded the appeal for further adjudication:

1.  Establishing jurisdiction over a probationary termination is a two-step process.  First, the appellant must make nonfrivolous claims of jurisdiction, i.e., factual allegations that, if proven, would establish that her termination was based on partisan political reasons or marital status.  An appellant who makes such nonfrivolous claims is entitled to a jurisdictional hearing at which she must then prove the basis for jurisdiction, i.e., that her termination was based on partisan political reasons or marital status, by a preponderance of the evidence.  

2.  The appellant made nonfrivolous allegations of marital status discrimination that entitle her to a jurisdictional hearing.  



Appellant:  Kim Anne Farrington
Agency:  Department of Transportation
Decision Number:  2012 MSPB 85
Docket Number:  AT-1221-09-0543-W-2
Issuance Date:  July 16, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosure - Outside Normal Channels

    The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction.  The appellant was an Aviation Safety Inspector who alleged that the agency removed her and took or failed to take other alleged personnel actions in reprisal for making protected disclosures to Walker, her fourth level supervisor, and the National Transportation Safety Board (NTSB) concerning alleged inadequate funding for surveillance of AirTran airline's flight attendant training programs and deficiencies in Air Tran's flight attendant trainings.  A key finding in dismissing the appeal for lack of jurisdiction without a hearing was the administrative judge's determination that the appellant's disclosures to the NTSB and Walker were made during the course of her normal job duties through the normal channels, and therefore did not constitute nonfrivolous allegations of a protected disclosure.

Holdings:  The Board reversed the initial decision and remanded the appeal for adjudication on the merits:

1.  In Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), the court outlined three categories into which an employee's communications may fall: (1) disclosures made as part of normal duties through normal channels; (2) disclosures made as part of normal duties outside of normal channels, and (3) disclosures made outside of normal or assigned duties.  A communication can qualify as a protected disclosure only if it falls within the latter two categories.

2.  The appellant made a nonfrivolous allegation that her disclosures to Walker were made outside of normal channels.  

a.  Regarding the second category, the court has not explicitly defined the term "normal channels."  The Board concluded that the term should be given its commonly understood meaning, i.e., the employee conveyed duty-related information to a recipient, who in the course of his or her duties, customarily receives the same type of information from the employee and from other employees at the same or similar level in the organization as the employee.  The Board identified several factors that are relevant to this determination.

b.  The Board agreed with the appellant's contention that the administrative judge improperly expanded Huffman to hold that if the officials receiving the disclosures have sufficient "subject-matter expertise" to understand the disclosures, then the disclosures are made within normal channels of reporting and that she "convolute[d] the Huffman 'normal duties through normal reporting channels' exclusion into a rule that no disclosure is protected anywhere up the chain of command . . . ."  

c.  In concluding that the appellant made a nonfrivolous allegation that her disclosures were made outside of normal channels the Board found it significant that:  Walker was the appellant's fourth or fifth level supervisor; the appellant requested to meet with Walker only after her supervisor had been unresponsive to her concerns; she normally reported safety matters only to her first level supervisor; she was not authorized to report matters directly to Walker; and she had never previously taken a work-related matter to Walker, nor even spoken with him.

4.  The appellant failed to make a nonfrivolous allegation that her disclosures to the NTSB were not within her normal duties.



Appellant:  Patrick R. Massie
Agency:  Department of Transportation
Decision Number:  2012 MSPB 87
Docket Number:  DA-1221-11-0224-W-1
Issuance Date:  July 17, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Clear and Convincing Evidence

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal.  The appellant alleged that he received a negative performance appraisal that did not entitle him to receive a Superior Contribution Increase (SCI) in reprisal for having disclosed to the agency's Inspector General had engaged in dealings with Eclipse Aviation that resulted in that company not being held to proper safety standards.  In an initial decision issued after a hearing, the administrative judge found that the appellant had established the Board's jurisdiction over the appeal.  As to the merits, the judge determined that it would be most efficient to adjudicate the appeal by assuming arguendo that the appellant made protected disclosures and that they were a contributing factor in his performance appraisal and award determination, and then determining whether the agency showed by clear and convincing evidence that, absent any protected disclosures, it would have rated the appellant's performance as it did and determined that he was not eligible for an SCI.  The judge found that the agency proved by clear and convincing evidence that it would have taken the same actions absent the protected disclosures.

Holdings: The Board granted the appellant's petition for review, vacated the initial decision, and remanded for further adjudication:

1.  In determining whether an agency has proved by clear and convincing evidence that it would have taken the same actions against the appellant, even absent any protected disclosures, the Board considers  three factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.

2.  In Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), the court stated that "[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion."  The court further determined that "[i]t is error for the [Board] to not evaluate all the pertinent evidence in determining whether an element of a claim or defense has been proven adequately."  The concluded that the administrative judge had taken an unduly dismissive and restrictive view on the issue of the existence and strength of any motive to retaliate by the agency, and that remand for further fact finding was necessary.

3.  Here, the judge's analysis of the supervisor's (Merritt) motive to retaliate was similarly inadequate.  The judge failed to consider in his analysis the effect that the Eclipse Aviation investigation had upon Merritt or other agency managers. Rather, the administrative judge focused on the strength of Merritt’s testimony that she was unaware of any specific disclosure that the appellant may have made, her testimony that the appellant’s performance was merely adequate, and evidence that a similarly situated co-worker of the appellant who was a self-styled whistleblower, received a performance award from Merritt.  



Appellant:  Barry A. Ormond
Agency:  Department of Justice
Decision Number:  2012 MSPB 88
Docket Number:  DC-1221-11-0860-W-1
Issuance Date:  July 18, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The appellant, a Staffing Specialist with the Bureau of Prisons, alleged that he was not selected for a position in retaliation for his protected whistleblowing.  He alleged two protected disclosures.  In the first, he alleged that he disclosed to his Regional Director that management officials and human resources violated 5 U.S.C. 2302(b)(b), which prohibits granting an applicant for employment any unauthorized preference or advantage for the purpose of improving or injuring the prospects of any particular person for employment, in connection with filling a Press Foreman position.  He stated that he witnessed a conversaton between the Plant Manager and the Human Resources Manager in which the Plant Manager expressed that a particular applicant should be selected.  Thereafter, the Human Resources Manager selected only that individual for an interview, and that individual was selected for the position.  The second disclosure involved an allegation of misconduct by three employees who improperly certified that they attended a mandatory training when, in fact, they did not attend the training.  In dimissing the appeal for lack of jurisdiction, the administrative judge found that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure or that such a disclosure was a contributing factor in his nonselection.

Holdings:  The Board vacated the initial decision, found that the appellant established jurisdiction as to one of his disclosures, and remanded the case to the regional office for adjudication on the merits:

1.  To establish jurisdiction over an IRA appeal, an appellant must, among other things, make a nonfrivolous allegation that he engaged in whistleblowing by making a disclosure protected by 5 U.S.C. 2302(b)(8).  To meet the nonfrivolous standard, an appellant need only plead allegations of fact that, if proven, could show that he made a protected disclosure and that the disclosure was a contributing factor in a personnel action.  

2.  The appellant nonfrivolous alleged that he reasonably believed he was disclosing a violation of law, rule, or regulation when he disclosed hiring improprieties regarding the filling of the Press Foreman position.

3.  Given the 6-month timeframe between the disclosure to a management official and that officials's decision not to select the appellant for a position, the appellant satisfied the knowledge-timing test for establishing that the protected disclosure was a contributing factor in his nonselection.

4.  The appellant did not make a nonfrivolous allegation that the disclosure about employees falsely certifying that they attended mandatory training constituted gross mismanagement or any of the other categories of section 2302(b)(8).  



Appellant:  Gwenesther F. Manning
Agency:  United States Postal Service
Decision Number:  2012 MSPB 86
Docket Number:  CH-0353-11-0509-I-1
Issuance Date:  July 17, 2012
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Restoration - Partial Recovery from Compensable Injury

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  The appellant suffered a work-related injury in 1999 and was absent from work for a number of years.  In 2007 the Office of Workers' Compensation Programs (OWCP) terminated her benefits on the basis that she had refused to cooperate with its efforts to obtain current medical documentation.  In December 2009, the agency removed her from her City Carrier position based on a charge that she was unable to return to duty after a year's continuous absence without pay.  Meanwhile, the appellant pursued her OWCP claim through various appeals and submitted requests for reasonable accommodation to the agency.  The agency denied these requests because there was no evidence that her medical condition had changed such that she was capable of working.  On appeal to the Board, the administrative judge construed the appeal as involving a denial of restoration under 5 C.F.R. part 353.  The judge dismissed the appeal for lack of jurisdiction, implicitly finding that the appellant had been removed for misconduct and, therefore, her absence was not based on a compensable injury.  

     In a timely supplement to her petition for review, the appellant submitted a copy of an arbitrator's award, which ordered reversal of the removal action.  In addition, the record shows that OWCP reversed its 2007 determination and awarded her compensation benefits covering the time period at least from 2007 through January 24, 2011.

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the appeal for a jurisdictional hearing:

1.  To be entitled to any restoration rights under part 353, an employee must have been absent from her position as a result of a compensable injury.  An employee who was absent from work because the agency removed her for cause, rather than for reasons substantially related to her compensable injury, is not entitled to restoration.

2.  Given that an arbitrator has ordered reversal of the removal action, and OWCP has reversed its determination that the appellant was not entitled to workers' compensation benefits, the agency did not impose a valid removal for cause and it now appears that the appellant was absent for reasons substantially related to her compensable injury.  She is therefore entitled to a jurisdictional hearing to determine whether the agency arbitrarily and capriciously denied her restoration.  



Appellant:  Larry French Diehl
Agency:  Department of the Army
Decision Number:  2012 MSPB 89
Docket Number:  PH-0752-11-0214-I-1
Issuance Date:  July 18, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Constitutional Issues - Due Process
Security Clearances
Indefinite Suspensions

    The appellant petitioned for review of an initial decision that sustained an indefinite suspension action.  As an Intelligence Specialist, the appellant is required to hold a top secret security clearance as a condition of his employment.  In July 2010, he was notified that his access to classified information was suspended, pending final adjudication by the U.S. Army Central Personnel Security Clearance Facility.  The memorandum suspending access gave specific reasons for the action.  In August 2010, the agency proposed the appellant's indefinite suspension based on his ineligibility for access to classified information.  The appellant responded to the proposed indefinite suspension both orally and in writing.  In January 2011, the agency's deciding official issued a decision indefinitely suspending the appellant.  On appeal to the Board, the administrative judge sustained the action, finding, among other things, that the appellant had been provided with due process of law.

Holdings:  The Board reversed the initial decision and ordered the agency to cancel the indefinite suspension and restore the appellant to employment:

1.  Although the Board lacks the authority to review the merits of an agency's decision to suspend an employee's access to classified material, it may review whether the agency afforded him due process with respect to his constitutionally-protected property interest in his employment.  Due process requires notice of the reasons for the suspension and a meaningful opportunity to respond.

2.  Providing an appellant with a reasonable opportunity to reply that satisfies constitutional due process requires more than mere notice; the reply opportunity may not be an empty formality, and the deciding official should have authority to take or recommend agency action based on the reply.  The deciding official must have the authority to change the outcome of the indefinite suspension action by either reinstating the appellant’s access to classified information or reassigning him to a position not requiring access to classified information.

3.  Here, the record establishes that the deciding official lacked the authority to change the outcome of the indefinite suspension action.  The agency therefore violated the appellant's constitutional due process rights, and the indefinite suspension action must be cancelled.  



COURT DECISIONS


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

Wiggins v. Merit Systems Protection Board, No. 2011-3114 (July 13, 2012) (MSPB Docket No. CH-0752-10-0618-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction the appellant's claim that his resignation was involuntary)

Rogers v. Department of Veterans Affairs, No. 2012-3089 (July 13, 2012) (MSPB Docket No. DA-0752-11-0058-I-1) (affirming the Board's decision, which sustained Rogers' removal on misconduct charges)

Abiera v. Office of Personnel Management, No. 2011-3193 (July 13, 2012) (MSPB Docket No. SF-0831-10-0609-I-1) (affirming the Board's decision, which affirmed OPM's determination that Abiera was not entitled to a survivor annuity under the Civil Service Retirement System and is not eligible to make a deposit into that system to cover the period of her hus-band’s federal service)

Abruzzo v. Social Security Administration, No. 2011-3218 (July 16, 2012) (MSPB Docket No. CB-7521-10-0014-T-1) (affirming the Board's decision, which affirmed Abruzzo's removal for failure to follow instructions and conduct unbecoming an administrative law judge)

Oguma v. Merit Systems Protection Board, No. 2012-3053 (July 16, 2012) (MSPB Docket No. SF-3443-11-0113-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction a claim about the denial of a promotion)

Calimlim v. Office of Personnel Management, No. 2012-3097 (July 16, 2012) (MSPB Docket No. SF-0831-11-0412-I-1) (affirming the Board's decision, which affirmed OPM's determination that the appellant did not qualify for a Civil Service Retirement System annuity and was ineligible to make retroactive deposits into the CSRS fund)

Williams v. Office of Personnel Management, No. 2012-3051 (July 16, 2012) (MSPB Docket No. DC-0831-11-0366-I-1) (affirming the Board's decision, which affirmed OPM's determination that that Williams was ineligible for a deferred retirement annuity under the Civil Service Retirement System (“CSRS”))

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