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February 1999 - May 2000 ALTERNATIVE
DISPUTE RESOLUTION
Groeber v. USPS, 84 M.S.P.R. 646 (2000). Board sustained the agency charge and removal action for conduct of swinging tire chairs and brandishing a open knife at a supervisor and for informing a agency nurse that he would go after his supervisor, her, and the rest of the medical staff. Consideration of adverse factors not included in the notice of proposed action is error. However, when the improper factors were considered only in connection with penalty determination, the Board will independently assess the penalty without consideration of the improper factors. Also - disability discrimination statutes do not immunize disabled employees from being disciplined for misconduct in the workplace and an employee who is perceived as disabled may still be disciplined if the agency would discipline any other employee for the same misconduct. See also Laniewicz v. Veterans Affairs (below). Mancini v. Veterans Affairs, 84 M.S.P.R. 70 (2000). In determining whether statements made by employees in the workplace constitute threats, the Board must apply a reasonable person criterion, considering the listeners= reactions and apprehensions, the nature or working of the statements, the speaker=s intent, and the attendant circumstances. [ TOP ] Tackett v. Air Force, 80 M.S.P.R. 624 (1999). A charge of lying or falsification, requires the agency to prove that the employee knowingly supplied incorrect information with the intention of defrauding the agency. Blake v. Justice, 81 M.S.P.R. 394 (1999). The Board held that while intent is necessary to sustain a charge of falsification and that that intent can be established by direct or circumstantial evidence, that fact that the employee supplied incorrect information cannot by itself control the question of intent, and plausible explanations are to be considered in determining whether the incorrect information was supplied intentionally. Bryant v. Army, 84 M.S.P.R., 202 (1999). To sustain a charge of misrepresentation, the agency is required to prove that the employee in question supplied incorrect information and that he did so knowingly, and with an intent to deceive or mislead the agency. Fouquet v. Agriculture, 82 M.S.P.R. (1999). Where a charge has been identified as a criminal offense, the elements of that offense must be identified and enumerated so that an evidentiary framework is established for proof of the charges. If the elements of the criminal offense are not set out the administrative judge will look to the most closely analogous case precedent, or criminal law, rule of regulation as guidance and then examine the evidence to determine where the agency has met its burden of proof. In this case, the Board found the testimony of an undisputed sociopath and convicted felon credible as to the criminal behavior of his best friend. Jaramillo v. Army, 81 M.S.P.R. 469 (1999). The agency charge of stealing government property and aiding and abetting other in he stealing government property was not sustained in light of failure to show that the property taken was indeed government property. Els v. Army, 82 M.S.P.R. 27 (1999). The Board found that the administrative judge erred in characterizing misuse of government vehicle charge as a violation of the statutory provision regarding the misuse of a government vehicle when the proposal and decisions notices were not based on the statutory provision.
Haebe v. Justice, 81 M.S.P.R. 167 (1999). Agency not required to prove intent in order to establish that an employee failed to follow a lawful instruction. There is no de minimis exception to an otherwise proven charge of failure to follow instructions. In a second important holding the Board states that where an agency assigns an employee to different duties during a period of interim relief, but does not explicitly state an undue disruption determination, it satisfies its burden to make such a determination by showing that it had a strong overriding interest or compelling reason to assign the alternative duties. On May 24, 1999, the Board modified its regulations to reflect this second holding (see below under Jurisdiction section). Bennett v. Air Force, 84 M.S.P.R. 132 (1999). The agency established charge of insubordinate defiance of authority based on employees refusal to obey commanding officers order to summon her subordinates to a meeting, and publicly arguing with her commanding officer about whether she needed to obey his order before taking steps to get her workers. Agency employees are expected to respect authority and follow the order of supervisory officials. Employees do not have unfettered discretion to disobey or ignore agency orders. Gregory v. USPS, Fed. Cir. No. 00-3123, May 15, 2000. The court held that consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits. Because the appellant=s past record was a primary factor in determining the reasonableness of the penalty and that past record was the subject of an ongoing grievance, the Board abused its discretion in relying on the past record. The court noted to conclude otherwise would risk harming the legitimacy of the reasonable penalty analysis, by allowing the use of unreliable evidence (the ongoing prior actions) to support an agency action. Daigle v. Veterans Affairs, 84 M.S.P.R. 625 (1999). Disrespectful conduct charge could not be sustained on basis of disrespectful remark which employee made about supervisor during the course of an EEO counseling session because such sessions are a semi-confidential means through which employees complain about the conduct of other agency personnel, and the fact that employees are likely to be emotionally distraught when they are reporting perceived discrimination to an EEG counselor. In a second and equally important holding, the Board changed its policy on requiring evidence of OPM approval of agencies performance appraisal systems. Instead of OPM approval being a part of the agency=s burden of proof, the Board will only require proof of OPM approval if an appellant alleges that there is reason to believe that an agency is not in compliance with the law.
Devingo, et al v. GSA, 82 M.S.P.R. 138 (1999) and Perrine v. GSA, 81 M.S.P.R. 155 (1999). The agency refused to allow several employees to revoke, prior to the effective date, separation agreements in which they agreed to retire and receive buyouts. The employees claimed that the agency improperly refused to allow them to withdraw their retirements and that their subsequent retirements were involuntary. On review, the Board found that the agency established that it had a valid reason (administrative disruption) for denying requests to withdraw buyout commitments unless an employee could establish extreme hardship or extraordinary circumstances. Stone v. FDIC, 179 F.3d 1368 (Fed. Cir.), June 11, 1999. Federal Circuit finds that ex parte communications to a deciding official of new and material evidence constitutes violations of constitutional due process. While noting that not every ex parte communication to a deciding official would violate the constitutional right to notice, the Court instructed the Board to consider the individual facts of each case to determine whether any alleged improper communication rose to the level of new and material information. Bodus v. Air Force, 82 M.S.P.R. 508 (1999). USERRA does not authorize the Board to adjudicate claims outside a USERRA complaint or order remedial action on any basis other than a USERRA violation. Thus, in USERRA cases involving personnel actions that are not otherwise appealable, the Board may not consider non-USERRA discrimination claims. Preyor v USPS, 83 M.S.P.R. 571 (1999). The one year of current continuous service in the same or similar positions required for a preference eligible claiming adverse action due process coverage must be in the year preceding the action. Van Wersch v. HHS, 197 F.3d 1144 (Fed.Cir. 1999). The Court holds that employees appointed under a Schedule A excepted service appointment [5 CFR 213.3102(u)] which permits but does not require conversion to the competitive service after two years, are covered by the adverse action procedures of Chapter 75 after they have completed two years of current continuous service, although the agency has chosen not to convert them to the competitive service. The Court=s decision, specifically its interpretation of 5 U.S.C. 7511(a)(1)(C), raises a number of issues regarding the longstanding application of Chapter 75 coverage provisions. Special Counsel v. Merrick Malone, Margie Utley, 84 M.S.P.R. 342 (1999). The Board denied OPM=s petition for reconsideration and restated its prior holding in Special Counsel v, DeMeo that the Hatch Act does not authorize the debarment of Federal employees removed for violating the Act. Hylick v. Air Force, 85 M.S.P.R. 145 (2000). Absent an explicit agency rule to the contrary, an employee who is subject to a non-custodial interrogation in connection with allegations of misconduct has no right to counsel. The appellant=s:; counsel argues unsuccessfully that: The appellant would not have lied to Wade during the interview if an attorney had been present during the interview. Stabile v. DOD, 85 M.S.P.R. 253 (2000). When the Board orders an agency to demote a managerial employee to a lower-graded nonmanagerial position, without specifying that the demotion should be accomplished with the least reduction in pay, the agency must set the employee=s pay at the step of the lower-graded position that results in the least reduction in pay unless the agency has pay-setting regulations concerning demotions for cause which require a different result. Mattern v. Treasury,
DC0752980264-A-1, March 28, 2000. While a criminal investigation of the
employee=s conduct was pending, the agency reassigned him to restricted
duties without any overtime or night duty. The agency subsequently removed
the employee and that action was reversed on appeal to the Board which
ordered backpay. In a subsequent enforcement decision, the Board granted
additional back pay to the employee for the period of time prior to his
removal
Von Zemensky v. Veterans
Affairs and OPM, PH0351980078-I-1, April 18, 2000. The Board rejects
OPM=s arguments and fails to overturn an earlier decision that held that
health care professionals hired under Title 38 who are separated due to
reductions in staff levels and/or resources, are entitled to 5 CFR Part
351 reduction in forces procedures. OPM argued that there is no reference
within the reduction in force statute or the implementing regulations that
would provide coverage for title 38 employees and that Congress excluded
these employees from coverage.
5 CFR 1208 - February 4, 2000 (65 FR 5410) - MSPB issued a new Part 1208 dealing with the processing of appeals filed under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans Employment Opportunities Act (VEOA). 5 CFR 1201 - May 3, 2000 (65 FR 25623) - MSPB amends its rules to require agencies, when taking an appealable action against an employee who has both a right to file an appeal to the MSPB and a right to file a grievance under a negotiated grievance procedure, to provide notice of their right to pursue either (or in the case of USPS employees) both avenues. 5 CFR 1201 - May 24, 1999 (64 FR 27900) - MSPB amended its regulations on interim relief, providing, among other things, that an agency filing a petition for review must submit a certification it has complied with the interim relief ordered or that it has made a determination that it would be unduly disruptive for the appellant to return to his or her job. The regulations also provide that the Board will afford an agency the opportunity to provide evidence of compliance with interim relief when challenged by the appellant. The regulations note that Aif there is no harm to the appellant, dismissal of the agency=s petition for review should not be required.@ Lachance v Devall, Federal Circuit No. 98-3213, May 20, 1999. The Court addressed the Board=s authority to mitigate agency penalty determinations when not all agency charges are sustained. The Board had held that when not all agency charges are sustained, it will independently determine a reasonable penalty. OPM argued that the Board must give due weight to the agency=s primary discretion in matters of employee discipline and that the Board=s function is not to displace management responsibility but to assure that managerial judgement has been exercised within tolerable limits of reasonableness. The Court agreed with OPM, holding that the Board may not independently determine penalties but must mitigate to the Amaximum reasonable penalty@ (the penalty relative to the agency=s that brings the agency=s penalty within tolerable limits of reasonableness). The only exception is where the agency indicates that it desires a lesser penalty to be imposed if fewer than all charges are sustained. On remand, Devall v. Navy, 83 M.S.P.R. 434 (1999), the Board holds that removal for sexual harassment was appropriate penalty where contact involved physical contact and employee was previously counseled on similar past complaints and his work involved constant contact with women. Cisneros v. Defense, 83 M.S.P.R. 390 (1999). Board found that it was inappropriate for the AJ to mitigate the penalty in view of serious nature of employee=s sexual misconduct, particularly its continual, unrelenting nature, its pervasiveness, its perpetration on several female employees. The Board also noted that the appellant occupied a supervisory position. The removal action was sustained. Special Counsel v. Veterans Affairs, 81 M.S.P.R. 601 (1999). The Board found that the agency had reprised against the employee for making a disclosure protected by the Whistleblower Protection Act. The nature of the reprisal was a geographic reassignment. After the reassignment, the employee asked for and received approval to be carried in a sick leave status and later workers compensation status prior to voluntarily retiring. As corrective action for the whistleblower reprisal, the Board ordered that the employee be provided back pay for the period of time he was on workers compensation and that his sick leave used after his reassignment be restored to him. Lachance v. White and MSPB, Federal Circuit No. 96-3249, May 14, 1999. The Court ruled that Board failed to apply the proper test in assessing whether an individual had a reasonable belief that his disclosures evidenced gross mismanagement by his agency. Such a reasonable belief is a key element in the determination of whether such disclosures are protected by the Whistleblower Protection Act. The Board had relied on the subjective perspective of the employee, particularly if such perspective was shared by other employees. The Court held that the proper test is Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence gross mismanagement. Roach v. Army, 82 M.S.P.R. 464 (1999). In October, 1998, MSPB invited amicus briefs on its authority to adjudicate whistleblower retaliation claims that involve revocation of security clearances. The issue was whether the 1994 amendments to the Whistleblower Protection Act which included Any other change in duties, responsibilities, or working conditions under the definition of a Apersonnel action,@ had the effect of overturning the 1988 Supreme Court decision in Navy v. Egan which held that the Board lacks the authority to review the substance of security clearance determinations. OPM, DOD, CIA, and the Justice Department all filed briefs arguing that the Board continues to lack authority over security clearance determinations, while the Office of Special Counsel argued that the 1994 amendments granted it such authority. In this final Board decision, it carefully examined the legislative history of the 1994 amendments and concluded that security clearance determinations, including the denial, revocation, or suspension of such clearances, are not Apersonnel actions@ under the Whistleblower Protection Act. Keefer, et al. v. Agriculture, 82 M.S.P.R. 687 (1999). The Board holds that neither statute nor caselaw contain a requirement that a whistleblower disclosure be made with such specificity as to enable the recipient of the disclosure to conduct an investigation without having to return to the employee for additional information. Yunus v. DVA, 84 M.S.P.R. 78 (1999). In determining whether an agency showed by clear and convincing evidence that it would have taken an action in the absence of protected disclosures, the Board states it will consider the weight of the evidence before the agency at the time it took the action, rather than any subsequently developed information. Ganski v. Interior, PH1221980111M-1, May 4, 2000. The Board overrules Thomas v. Treasury, 77 M.S. P.R. 13, holding that a violation of personnel rules is unprotected if it does not involve the type of waste, fraud, or abuse intended to be covered by the WPA. Under, 5 U.S.C.'2302(b)(A), the inquiry into whether a disclosure is protected under subsection (I) ends upon the determination that the appellant disclosed a violation of law, rule or regulation. Burge v. Air Force, 82 M.S.P.R. 75 (1999). Only the USPS and the private sector are subject to FMLA=s notice-posting requirement, but when a Federal employee requests leave under the law, the agency is required to provide Aguidance concerning the employee=s right and obligations.@ It may request administratively acceptable evidence but may not apply a more restrictive leave policy than does the law. Of particular significance, the Board adopted the same standard that applied to the private sector and the Postal Service in determining whether a federal employee=s untimely medical certification should be considered under the FMLA. Pursuant to that rule, untimely submission of medical documentation is allowed where a timely submission Ais not practicable under the particular circumstances...despite the employee=s diligent, good faith efforts.@ Fairley v. USPS, 82 M.S.P.R. 584 (1999). The Board held that where an appellant raises a nonfrivolous factual allegation reasonably relating to a FMLA claim, or the agency=s evidence or allegations otherwise show that FMLA qualifying leave was involved, the administrative judge has the responsibility to develop the record evidence as necessary and appropriate. The employee is not specifically required to invoke the FMLA in requesting covered leave. Landahl v. Commerce, 83 M.S.P.R. 40 (1999). The Board set forth the entitlement outlined in 5 U.S.C. ' 6382(a)(1). Under the law, an eligible employee of a covered employer is entitled to Aunpaid leave, or paid leave, if earned, for a period of 12 weeks in any 12-month period because of, inter alia, a serious health condition that renders the employee unable to perform his job. A Aserious health condition@ is defined as Aillness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.@ Bracey and Wilson v. OPM, 83 M.S.P.R. 400 (1999). MSPB agrees with OPM that an employee assigned to light duty is not eligible for disability retirement so long as the employee retains the grade and pay previously held. Employees whose positions prevent them from performing in their positions of record would have to demonstrate that a light duty assignment would not continue in order to be eligible for disability retirement. Hall v. OPM, 85 M.S.P.R. 371 (2000). Building on prior caselaw, Carrillo v. Army, 82 M.S.P.R. 61 (1999), the Board continues to expand the agency duty to file for disability retirement on behalf of incompetent employees. In Carrillo, the Board held that an agency has a duty to file for disability retirement on behalf of an employee prior to issuing a decision to remove for cause when the agency concludes that the employee is incapable of deciding to file. In this more recent case, the Board modified Carrillo to provide that such a duty to file applies only after a decision to remove is issued and remanded the new case for a determination as to whether the agency was obligated to file for disability retirement on behalf of the employee. Veterans Affairs v. Gibson, U.S. Supreme Court No. 98-238, June 14, 1999. Resolving a conflict among several Circuit Courts, in a 5 to 4 decision, the Supreme Court holds that EEOC (and by implication, other administrative bodies such as the MSPB) have authority under the 1991 amendments to the Civil Rights Act, to award compensatory damages when Federal agencies are found to have discriminated in violation of Title VII of that statute. Sutton v. United Air Lines, Albertsons v. Kirkingburg, Inc., and Murphy v. USPS, 119 S.Ct. 2139, 2162, and 2133, all on June 22, 1999. The Supreme Court finds: 1.A determination under the ADA whether an individual is disabled should take into account mitigating measures (such as medication or eyeglasses) that overcome or lessen the individual=s impairment 2.A physical disqualification decision for a job does not, without more, establish that the individual is regarded as disabled for purposes of ADA coverage. 3. To prove limitation in the life activity of working, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. Laniewicz v. Veterans Affairs, 83 M.S.P.R. (1999).Even if an employee=s misconduct is a manifestation of a disability, neither the Rehabilitation Act nor the ADA immunize the employee from being disciplined for the misconduct, provided the agency would impose the same discipline on an employee without a disability. Browder v. Navy, 81 M.S.P.R. 71 (1999). Because a Asexual behavior disorder@ is specifically excluded from the definition of Aindividual with a disability@ by 29 C.F.R.(8)(F)(I), as amended by the American with Disabilities Act, an appellant who asserts such a condition fails to allege prohibited discrimination. Vyas v. Army, 83 M.S.P.R. 452 (1999). Inability to work for a particular supervisor or in a particular position does not constitute a disability under the Rehabilitation Act because it is not a barrier to employment and does not foreclose an employee generally from his line of work. EEOC Guidance - On March 1, 1999, the Equal Employment Opportunity Commission published comprehensive policy guidance entitled, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA). The guidance applies to Federal agencies as well as private sector employers and contains extensive information on reasonable accommodation issues such as medical documentation, the impact of the Family and Medical Leave Act (FMLA) on requests for leave as a form of reasonable accommodation, and undue hardship. Amendments to Executive Order 11478 - Equal Employment Opportunity in Federal Government, May 2, 2000 - prohibiting discrimination based an individual=s status as a parent. 29 CFR 1614.102(b)(2) - July 12, 1999 (64 FR 37644) New EEOC Regulations regarding processing of EEO complaints. 29 CFR I614 - March 1, 2000 (65 FR 11019) New EEOC Regulations regarding reassignment under reasonable accommodation. Joyce v. Air Force and OPM, 83 M.S.P.R. 666 (1999). In a case in which OPM sought reconsideration, the Board agreed with OPM that a substantive jurisdictional finding is required in order to award attorney fees. Contrary to OPM=s arguments, the Board continued to hold that where an agency unilaterally rescinds an action and returns an employee to status quo ante, there is a refutable presumption that attorney fees are warranted so long as the appellant has set forth a prima facie case of jurisdiction and incurs attorney fees. 5 CFR 1201, April 26, 2000 (65 FR 24381) - MSPB issues new regulations with regard to attorney fee reimbursement to permit reimbursement to a prevailing appellant=s attorney at his customary billing rate if that rate is consistent with the prevailing community rate where the attorney ordinarily practices. Pagan v. Veterans Affairs, Federal Circuit No. 97-3395, March 16, 1999. The Court held that the agency breached a settlement agreement in which it had promised to provide the appellant with a Aclean record@ and to remove all charges and actions from his personnel file, when an agency official crossed out a portion of a questionnaire from another agency which asked that the appellant be ranked according to his attendance, performance, behavior, and attitude. The Court went on to express its concern with agency settlement agreements that Aallow an unsatisfactory employee to resign in exchange for a personnel record clear of all charges.@ It stated that such agreements force the employer to either lie or attempt some artful evasion which in fact fools no one. Anderson v. EPA, 81 M.S.P.R. 618 (1999). Where an appellant breaches a provision of a settlement agreement in which she agreed to resign, the agency is entitled to treat the agreement as her resignation and place appropriate papers in her personnel folder. In the course of an MSPB hearing, the agency agreed to reinstate the employee, place her in a leave without pay status for 90 days, and remove all references to the removal action from her personnel file. The employee agreed to withdraw her appeal, file for disability retirement, and submit her resignation for medical reasons. She subsequently refused to submit her resignation, but was unable to successfully challenge the validity of the settlement agreement. Board ordered the employee to submit her resignation and stated that it would authorize the agency to treat the settlement agreement as her resignation if she failed to comply. Russell v. Navy,85 M.S.P.R. 230 (2000). (1) A purported agreement with an agency is not binding unless the other party can show that the official with whom the agreement was made had the authority to bind the Government to the agreement; and (2) where the agency makes a nonfrivolous claim that its agent lacked authority to enter into a settlement agreement, the employee bears the burden of proving that agent had authority to bind the agency.
29 CFR I614.102(b)(2) - July 12, 1999 (64 FR 37644) New EEOC regulations mandate alternative dispute resolution in the processing of EEO complaints. 5 CFR 1201 - May 24, 1999 (64 FR 27899) - MSPB amended its rules to provide an automatic extension of up to 30 days of the time limit for filing an appeal with MSPB where an appellant and agency mutually agree, prior to the timely filing of an appeal, to attempt to resolve their dispute through an alternative dispute resolution (ADR) process. Director=s Award for Outstanding ADR Programs - Winners of the first annual OPM Director=s Award for Outstanding ADR Programs were recognized at a ceremony on July 27, 1999 in Washington, D.C.. The featured speaker was Attorney General Janice Reno. The award, recognizing outstanding programs for the resolution of workplace disputes, is an initiative by OPM to help carry out President Clinton=s May 1998 memorandum encouraging agencies to use ADR. There were 49 award nominations from agencies across the country. Winners of the 2000 Award will be recognized at a ceremony scheduled for the fall of 2000. Alternative Dispute
Resolution (ADR) Resource Guide -
this 1994 OPM issuance was substantially revised and updated and
was reisussed on July 27, 1999 at the above ADR awards event. Among other
things, the Guide contains one-page descriptions of more than 80 working
Federal ADR programs set up to resolve workplace disputes. The updated
Guide
contains
new information about some of the shared neutrals programs that are operating
as well as descriptions of what the administrative appeals agencies such
as the Merit Systems Protection Board are doing to use ADR. Another new
feature this year is a listing of selected Internet websites. The Guide
is
available on OPM=s website at www.opm.gov/er.
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