MERIT SYSTEMS PROTECTION BOARD
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Case
Report for January 29, 2010 |
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BOARD DECISIONS
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Appellant: Jamie B. Swidecki Agency: Department of Commerce Decision
Number: 2010
MSPB 18 Docket
Number: SF-4324-09-0759-I-1 Issuance
Date: January 25, 2010 Appeal
Type: Uniformed Services
Employment and Reemployment Rights Act (USERRA) USERRA/VEOA/Veterans’
Rights The
appellant petitioned for review of an initial decision that dismissed his USERRA
appeal for lack of jurisdiction.
The appellant alleged, among other things, that he is a preference
eligible disabled veteran, that he had previously worked for a component of
the agency, the U.S. Census Bureau, and that the agency denied his application
for reemployment with the Census Bureau because of his uniformed
service. Without conducting the
requested hearing, the administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant’s statements that he was discriminated
against based on his veteran’s status were conclusory and unsupported. Holdings: The Board granted the appellant’s
petition for review (PFR), reversed the initial decision, and remanded the
case for further adjudication: 1. A claim of discrimination under
USERRA should be broadly and liberally construed. The weakness of the assertions in support of a claim is
not a basis to dismissed a USERRA appeal for lack of jurisdiction; rather, if
the appellant fails to develop his contentions, his USERRA claim should be
denied on the merits. An
appellant who raises a USERRA claim has an unconditional right to a hearing. 2. The appellant established Board
jurisdiction over his USERRA discrimination appeal, as he made nonfrivolous
allegations that: he performed
duty in a uniformed service of the United States; the agency was aware of his
prior uniformed service; that it denied him employment in a temporary census
position; and that this denial was, at least in part, due to his prior
uniformed service. 3. On remand, the appellant must prove
by preponderant evidence that his military status was at least a motivating
or substantial factor in the agency’s decision to deny him employment. Petitioner: Social Security Administration Respondent:
Decision
Number: 2010
MSPB 19 Docket
Number: CB-7521-08-0019-T-1 Issuance
Date: January 27, 2010 Appeal
Type: Actions Against ALJs Actions
Against ALJs The
petitioner (agency) filed a PFR of an initial decision in which the
administrative law judge (ALJ) assigned by the Board to hear this case
(presiding official) sustained one of the 2 specifications of the charge of
conduct unbecoming an ALJ that the agency brought against the respondent, an
ALJ with the agency’s Office of Disability, Adjudication and Review. The presiding official found good
cause to suspend the respondent for 45 days, rather than to remove him as requested
by the agency. The charge
related to an off-duty incident in which the respondent was alleged to have
“repeatedly struck, grabbed, and pushed” the woman with whom he lived, who
was the mother of their young child (specification 1), and to have struck
their child (specification 2).
(In the second specification, the allegation was that the respondent
accidentally hit the child, who was being held by her mother, in the course
of trying to strike the mother.)
The presiding official found that the agency proved the first
specification “in substance,” but that it did not prove the second
specification. The presiding
official also found that there was a nexus between the proven misconduct and
the respondent’s position as an ALJ, but concluded that there was good cause
for the imposition of a 45-day suspension, rather than removal as recommended
by the agency. The
agency filed a PFR contending that the presiding official erred in not
sustaining both charges, and that removal was the appropriate penalty. The respondent filed a cross-PFR in
which he argued that the presiding official erred in sustaining the first
specification, that there was an insufficient nexus between his alleged
off-duty misconduct and his position to find good cause for a disciplinary
action, and that the penalty was excessive. Holdings: The Board granted the agency’s PFR,
rejected the respondent’s cross-PFR,
and affirmed the initial decision as modified, finding good cause to
remove the respondent: 1. The Board denied the motion of the
Association of Administrative Law Judges to intervene in the appeal, but
considered its amicus brief. 2. The presiding official did not err in
denying the agency’s motion to amend its complaint after the hearing to add a
specification of false testimony in support of its charge against the
respondent. 3. The Board has original jurisdiction
to adjudicate actions against administrative law judges, and may take an
action against an ALJ only for “good cause” as determined after a hearing. The agency must prove good cause by a
preponderance of the evidence. 4. The Board found that the agency
proved both specifications of the charge of conduct unbecoming an ALJ by
preponderant evidence. In so finding,
the Board acknowledged that, when the judge’s findings are explicitly or
implicitly based on demeanor, the Board may make contrary determinations of
fact only where it articulates sound reasons, based on the record, for its
contrary evaluation of the evidence.
The Board found such “sound reasons” in this case. 5. The Board found that the respondent’s
misconduct constituted good cause for disciplinary action. a. In so finding, the Board noted that, because the
administrative law judge position is a “position of prominence, whose
incumbents usually engender great respect,” ALJs are required to conduct
themselves in a fitting matter.
At a minimum, ALJs must not violate generally accepted rules of conduct. b. The respondent’s actions constituted conduct unbecoming an
ALJ, i.e., conduct which was improper, unsuitable or detracting from one’s
character or reputation, and was inconsistent with maintaining respect for
the administrative adjudicatory process. c. The respondent’s argument that the agency was required to
prove the elements of a criminal charge under d. In a chapter 75 proceeding governed by 5 U.S.C.
§ 7513, an agency must prove 3 distinct elements, including that
there is a nexus between the charged conduct and the “efficiency of the service.” Actions against ALJs, however, are
authorized under a different statute, 5 U.S.C.
§ 7521, that requires a showing of “good cause,” and the good cause
standard is not equivalent to the efficiency of the service standard. In determining whether good cause
exists for disciplinary action against an ALJ, the Board does not undertake a
separate analysis of nexus. The
good cause standard has been met in this case. 6. In original jurisdiction cases under 5 U.S.C.
§ 7521, it is the Board, rather than the employing agency, which
selects the appropriate penalty.
After assessing the appropriate Appellant: Nancy R. Keys Agency: Office of Personnel Management Decision
Number: 2010
MSPB 20 Docket
Number: DC-0831-07-0325-B-1 Issuance
Date: January 27, 2010 Action
Type: Retirement/Benefit Matter Timeliness
– PFR The
appellant petitioned for review of an initial decision that affirmed OPM’s
determination that she was not entitled to a former spouse survivor
annuity. The deadline for timely
filing was April 3, 2008.
On that date, the appellant asked for an extension of time, which was
granted, with a new deadline of May 5, 2008. The appellant did not file a PFR until 17 months later, in
October 2009. The appellant
indicated that the filing was untimely because of sickness, stress, and the
illness and death of her sister.
Holdings: The Board dismissed the PFR as
untimely filed without good cause shown. It also rejected the appellant’s request for reopening and
reconsideration. Appellant: Gary Donnell Rhett Agency:
Decision
Number: 2010
MSPB 21 Docket
Number: AT-0752-09-0408-I-1;
AT-0752-09-0484-I-1 Issuance
Date: January 27, 2010 Appeal
Type: Adverse Action by Agency Action
Type: Removal Jurisdiction The
appellant petitioned for review of two initial decisions that dismissed his
appeals for lack of adverse action jurisdiction. Effective September 5, 2008, the agency removed the
appellant from his position based on alleged attendance-related misconduct. While a grievance of that action was
pending, the parties entered into a last‑chance settlement agreement (LCSA),
under which the appellant returned to work. The LCSA also provided that the appellant could be removed
for any attendance-related misconduct for a period of 18 months, and that he
waived his right to appeal to the Board for any action taken for such
misconduct. During the 18-month
period, the agency removed the appellant from his position for his alleged
breach of the LCSA. The
appellant filed appeals of both removal actions. As to the first removal, the administrative judge
considered and rejected the appellant’s arguments that the LCSA was invalid,
and found that the appellant could not appeal this removal because he had
settled it without expressly reserving his right to file a Board appeal of
the action. As to the second
removal, the administrative judge again found that the LCSA was valid and
enforceable, that the appellant breached the agreement when he was absent
from work on 5 occasions, and that the appellant could not appeal the second
removal because he had waived his appeal rights in the LCSA. Holdings: The Board denied the appellant’s PFR,
reopened the appeals on its own motion, and affirmed the initial decisions as
modified, still dismissing both appeals for lack of adverse action
jurisdiction. In agreeing with
the administrative judge’s conclusion that the last‑chance settlement
agreement was valid, the Board noted that the agency had failed to inform the
appellant in connection with the first removal action that, as a
preference-eligible employee, he had the right to appeal his removal to the
Board. The record showed,
however, that the appellant knew or should have known that may have had Board
appeal rights at the time he entered into the agreement. Appellant: Sylvia M. Reilly Agency: Office of Personnel Management Decision
Number: 2010
MSPB 22 Docket
Number: DE-831E-07-0359-M-1 Issuance
Date: January 27, 2010 Appeal
Type: CSRA - Employee Filed
Disability Retirement Jurisdiction This
case was before the Board on remand from a decision of the U.S. Court of
Appeals for the Federal Circuit, 571 F.3d 1372,
which directed the Board to reconsider the appellant’s post-retirement
medical evidence in determining her entitlement to disability retirement
benefits. On remand, OPM stated
that it had reconsidered the medical evidence, determined that the appellant
is entitled to disability retirement benefits, and was therefore rescinding
its reconsideration decision and granting her a disability retirement
annuity. OPM asked the Board to
dismiss the appeal as moot. Holdings: Because OPM has completely rescinded
its reconsideration decision, the appeal must be dismissed for lack of
jurisdiction. The case cannot be
dismissed as moot, however, because the appellant has not yet received all of
the relief she could have received if the matter had been adjudicated and she
had prevailed. Appellant: Alvern C. Weed Agency: Social Security Administration Decision
Number: 2010
MSPB 23 Docket
Number: DE-1221-09-0320-W-1 Issuance
Date: January 28, 2010 Appeal
Type: Individual Right of Action
(IRA) Whistleblower
Protection Act The
appellant petitioned for review of an initial decision that dismissed his IRA
appeal for lack of jurisdiction.
In an appeal filed in 2005, the appellant asserted that his rights
under the Veterans Employment Opportunities Act of 1998 (VEOA) were violated
in connection with his non-selection for 2 vacancies because of the agency’s
improper use of the Outstanding Scholar Program. The Board agreed that a violation occurred and ordered
relief, 107
M.S.P.R. 142 (2007). The
appellant filed a second appeal in 2008 alleging that the agency violated
VEOA and the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) when it used the Federal Career Intern Program (FCIP) to non-competitively
fill 4 additional vacancies. The
Board found that the appellant had stated claims within its jurisdiction, 112
M.S.P.R. 320 (2009). In
addition to these Board appeals, the appellant filed 2 matters with the
Office of Special Counsel (OSC).
The first, filed in 2006, alleged that the agency’s use of the
Outstanding Scholar Program in connection with the vacancies involved in the
first Board appeal constituted a prohibited personnel practice. The second, a complaint filed in
January 2009, alleged that the agency’s action regarding the 4 positions
filled using the FCIP constituted retaliation for his disclosure of violations
of law, rule, and regulations in his 2006 disclosure to OSC. The appellant filed an IRA appeal
following OSC’s termination of its investigation of the complaint. In
dismissing the IRA appeal for lack of jurisdiction, the administrative judge
found that: (1) The
appellant lacked standing to file an IRA appeal because he was not an agency
employee or applicant for employment with the agency when he made his 2006
disclosures or when the agency allegedly took, or failed to take, a personnel
action with respect to him; and (2) the appellant’s allegation that the
agency used the FCIP process to retaliate against him failed to meet the
definition of a “personnel action” under the WPA. Holdings: The Board granted the appellant’s
PFR, reversed the initial decision, found that the Board has jurisdiction
over the appellant’s IRA appeal, and remanded that appeal for further
adjudication: 1. The appellant has shown that he was
an “employee” covered by the WPA when he made his 2006 disclosures to OSC. a. At the time of his 2006 disclosure, the appellant was a
GS-11 employee with the Department of the Air Force. b. The Board rejected the agency’s argument that the
appellant was not a covered employee because he was not employed by the
agency alleged to have taken the retaliatory personnel action. The language of the statute does not
impose such a limitation, and such a construction would be contrary to the
well-established principle that, as a remedial statute, the WPA should be
construed broadly. 2. The appellant was subjected to a
“personnel action” under the WPA.
The agency’s argument that the appellant’s allegation that it
improperly used FCIP to fill vacancies was not a “personnel action” covered
by the WPA is an unduly narrow and cramped reading of the scope of the
statute. Essentially, the
appellant alleged that the agency used FCIP as part of a scheme to deny him
an “appointment” within the meaning of the WPA. The term “appointment” covers an expansive range of acts
and failures to act by an agency, including the appellant’s allegations here. 3. The appellant has otherwise made a
nonfrivolous allegation of whistleblower retaliation, i.e., that he made a
protected disclosure and that the disclosure was a contributing factor in the
agency’s decision to take or fail to take a covered personnel action. It is also undisputed that the
appellant exhausted his OSC remedy. Appellant: Phillip M. Bowman, Jr. Agency: Department of Agriculture Decision
Number: 2010
MSPB 24 Docket
Number: PH-0432-09-0111-I-1 Issuance
Date: January 28, 2010 Appeal
Type: Performance Action
Type: Removal Discrimination The
appellant petitioned for review of an initial decision that affirmed his
removal for unsatisfactory performance.
In addition to finding that the agency met its burden of proof under
chapter 43, the administrative judge found that the appellant failed to prove
either of his affirmative defenses, age discrimination and reprisal for
protect equal employment opportunity activity. With respect to the former, the administrative judge found
that the appellant failed to establish a prima facie case. In addition, the administrative judge
declined to apply Gross v. FBL
Financial Services, Inc., 129 S.
Ct. 2343 (2009), because it was decided after the hearing in this appeal. Holdings: The Board denied the appellant’s PFR,
reopened the appeal on its own motion, and affirmed the initial decision as
modified, still affirming the appellant’s removal: 1. The Board reopened the appeal to
apply the appropriate standard to the appellant’s claim of age
discrimination. 2. The administrative judge’s analysis
was flawed to the extent that it analyzed whether the appellant established a
prima facie case. When, as here,
the record is complete and the agency has articulated a nondiscriminatory
reason for its action, the inquiry proceeds directly to the ultimate question
of whether the agency discriminated against the appellant, i.e., whether the
appellant produced sufficient evidence to show that the agency’s proffered
reason was not the actual reason and that the agency intentionally
discriminated against him. 3. The administrative judge erred in
failing to apply the standard announced in Gross – that a plaintiff claiming age discrimination must prove
by preponderant evidence that age was the “but-for” reason for the challenged
adverse action – solely because it was issued following the completion of the
hearing in this appeal. Under
applicable Supreme Court precedent, when the Court applies a rule of federal
law to the parties before it, that rule is the controlling interpretation and
must be given full retroactive effect in all cases still open on direct
review, regardless of whether the events predate or postdate the Court’s
announcement of the rule. 4. Applying the Gross rule to the facts of this case, the Board found that the
appellant failed to establish by preponderant evidence that his age was the
but-for reason for his removal. COURT DECISIONS The
U.S. Court of Appeals for the Federal Circuit issued nonprecedential
decisions in the following cases: Duboise v. Office of Personnel Management, No. 2009-3154
(Jan. 25, 2010) (MSPB Docket No. DE-0831-08-0403-I-1) (vacating and
remanding the Board’s decision, which affirmed OPM’s action denying the
appellant’s request for a survivor annuity based on the federal service of
her late former spouse) [ REFORMATTED BY PERMERICA.COM ] |