United States Merit Systems Protection Board

Case Report for February 11, 2011


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: Eric Williams

Agency: Department of the Air Force

Decision Number: 2011 MSPB 19

Docket Number: AT-3443-06-0118-P-2

Issuance Date: February 9, 2011

Action Type: Liquidated Damages

VEOA/Veterans’ Rights
- Liquidated Damages

The appellant petitioned for review of an initial decision that denied his request for damages under the Veterans Employment Opportunities Act (VEOA). In a 2008 decision, 108 M.S.P.R. 567, the Board found that the agency’s appointment of non-preference eligibles under the Outstanding Scholar Program violated the appellant’s veterans’ preference rights, ordered the agency to reconstruct the hiring process, and forwarded the appellant’s claims lost wages or benefits and liquidated damages to the regional office for adjudication. After the agency reconstructed the selection process and determined that the appellant would not have been selected, the appellant filed a petition for enforcement. On review, 110 M.S.P.R. 451, (2009) the Board concluded that the reconstructed selection process did not comport with the appellant’s veterans’ preference rights and its prior Opinion and Order, and again ordered the agency to reconstruct the selection process. In its second reconstruction process, the agency determined that it would have selected the appellant under a properly-reconstructed selection process and offered the appellant a position. After the appellant rejected the offer, the Board found, 111 M.S.P.R. 356 (2009), that the agency’s offer complied with the Board’s previous directive, and dismissed the enforcement matter as moot, but noted that there was still an outstanding issue regarding lost wages, benefits, and possible liquidated damages. The administrative judge then issued an initial decision that denied the appellant’s motion for liquidated damages but did not address the appellant’s claim for lost wages and benefits.

Holdings: The Board granted the appellant’s petition for review, affirmed the initial decision insofar as it determined that the appellant was not entitled to an award of liquidated damages for the agency’s violation of his veterans’ preference rights in its initial selection process, but vacated the remainder of the initial decision and remanded the case to the regional office to determine the appellant’s entitlement to lost wages, benefits, and liquidated damages:

1. “Liquidated damages” for willful violation of veterans’ preference rights are in addition to damages for lost wages or benefits. Where warranted, liquidated damages are in an amount equal to the award of lost wages or benefits.

a. The damages provision of the VEOA, 5 U.S.C.  3330c(a) provides: “If the Merit Systems Protection Board . . . determines that an agency has violated a right described in section 3330a, the Board . . . shall order the agency to comply with such provisions and award compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. If the Board . . . determines that such violation was willful, it shall award an amount equal to backpay as liquidated damages.”

b. As a remedial statute, VEOA should be “construed broadly in favor of those whom it was intended to protect, and to suppress the evil and advance the remedy of the legislation.”

c. Looking at similar damages provisions under the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and USERRA, the Board determined that  3330c(a) should be construed to provide that the amount of liquidated damages awarded is equal to an additional award of non-liquidated damages, which in this case means an amount equal to the award of lost wages or benefits.

2. The Board’s previous decisions specifically forwarded the appellant’s claims for lost wages, benefits, and liquidated damages to the regional office for adjudication. The administrative judge erred by not addressing the appellant’s claim for lost wages and benefits in the initial decision.

3. To be entitled to an award of lost wages or benefits under  3330c(a), an appellant must prove both that the agency violated the appellant’s veterans’ preference rights and that he lost wages or benefits as a results of the violation. The first requirement has been met here, as the Board has twice found that the agency violated the appellant’s preference rights. Where, as here, the agency conceded that it would have selected the appellant but for its violation of his veterans’ preference rights, the second requirement also may have been met if the appellant suffered lost wages or benefits.

3. The administrative judge correctly found that the agency’s violation of the appellant’s veterans’ preference rights during the initial selection process was not willful because, at the time of the selections in question, the agency was unaware of the Board’s decision regarding the Outstanding Scholar Program and the implications of that decision.

4. The case must be remanded to determine the amount of lost wages or benefits and to resolve whether the appellant is entitled to an award of liquidated damages.

Appellant: Stephen John Maibaum

Agency: Department of Veterans Affairs

Decision Number: 2011 MSPB 18

Docket Number: PH-315H-10-0275-I-1

Issuance Date: February 9, 2011

Jurisdiction – “Employee”

The appellant petitioned for review of an initial decision that dismissed his appeal of a termination of employment for lack of jurisdiction. Effective July 19, 2009, the appellant, a preference eligible veteran, received a temporary appointment to the position of Veterans Service Representative. Two months later, the appointment was converted to an excepted service appointment subject to a 1-year trial period. During this 1-year period, the agency (DVA) terminated the appellant’s employment for inappropriate use of a credit card. On appeal to the Board, the administrative judge informed the appellant of the requirements for establishing jurisdiction under 5 C.F.R.  307.105 (appeals by VRA appointees) and 315.806 (probationary appeals), and further stated that he could establish jurisdiction by showing that he was not, or should not have been, serving a probationary period, or that he met the definition of “employee” despite his probationary status. In response, the appellant presented evidence that he was previously employed by the U.S. Postal Service as a Sales Service Distribution Associate (Postal Service Clerk), and that he transferred to his position with the DVA without a break in service. The appellant asserted that his duties in the two positions were quite similar. The administrative judge issued a second jurisdictional order, this time stating that probationary employees are “specifically excluded” from the definition of “employee” under 5 U.S.C.  7511(a)(1), again set forth the requirements for establishing jurisdiction over a probationary termination under 5 C.F.R.  315.806, and further explained that under certain conditions prior service in the same line of work could be credited toward completion of a probationary period in a new position but only within the same agency. In response, the appellant provided job descriptions and again argued that the positions were similar. In the initial decision, the administrative judge considered (for the first time) whether the appellant satisfied the definition of “employee” at 5 U.S.C.  7511(a)(1)(B), i.e., whether he had completed 1 year of current continuous service in the same or similar positions, and concluded that the Postal Service and DVA positions were not similar because they required different qualifications and would be placed in different competitive levels.

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

1. An individual who meets the definition of “employee” at 5 U.S.C.  7511(a)(1)(B) generally has the right to challenge his removal from the federal service by filing an appeal with the Board.

a. An “employee” under this provision includes “a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions – (i) in an Executive agency; or (ii) in the United States Postal Service . . . .”

b. For a preference eligible in the excepted service, the absence or completion of a probationary or trial period is not determinative of “employee” status. Rather, the dispositive issue is whether the appellant satisfied the 1-year current continuous service requirement at the time of his separation. The inquiry in this case is whether the appellant’s prior employment as a Postal Service Clerk may be tacked on to his service with the DVA to meet that requirement.

2. The appellant’s service with the Postal Service may be tacked to his service with the DVA if it meets the “same or similar” requirement.

a. In Greene v. Defense Intelligence Agency, 100 M.S.P.R. 447 (2005), the Board held that the term “an Executive agency” as used in  7511(a)(1)(B) may refer to more than one agency, and that service in multiple agencies may be combined in order to satisfy the 1-year current continuous service requirement.

b. Although the Postal Service is not an Executive agency under 5 U.S.C.  105, and the Board did not decide in Greene whether service in an Executive agency can be combined with employment in the Postal Service to satisfy the current continuous service requirement, the Board found that the analysis in Greene applies equally to this case.

c. Nothing in the language of the original statute requires that the 1 year of current continuous service be performed entirely in an Executive agency or entirely in the Postal Service. Although the statute was amended by the Civil Service Due Process Amendments in 1990, the purpose of that legislation was to broaden the appeal rights for certain non-preference eligibles in the excepted service, not to eliminate appeal rights for any other class of employee.

d. OPM’s regulation at 5 C.F.R.  752.401(c)(3) allows for service in an Executive agency and the Postal Service to be combined to meet the required 1 year of current continuous service. OPM’s interpretation of the statute in this regulation is entitled to Chevron deference.

3. The Postal Service Clerk and Veterans Service Representatives are not the “same or similar” for purposes of  7511(a)(1)(B).

a. OPM’s regulations define “similar positions” as “positions in which the duties performed are similar in nature and character and require substantially the same or similar qualifications, so that the incumbent could be interchanged between the positions without significant training or undue interruption to the work.”

b. Although the positions are similar in that both involve customer service and claims processing, processing veterans benefit claims requires specialized knowledge, both legal and medical, not required for processing claims concerning insured mail and late overnight delivery.

4. Although the appellant received inconsistent and erroneous information concerning his burden of proof on jurisdiction, the initial decision was sufficient to place the appellant on notice of the dispositive jurisdictional issue in this case, i.e., whether the Postal Service Clerk and Veterans Service Representative positions are “similar” within the meaning of  7511(a)(1)(B).

Appellant: Pamela Ann Doran

Agency: Department of the Treasury

Decision Number: 2011 MSPB 17

Docket Number: CH-0752-10-0204-I-2

Issuance Date: February 9, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures
- Preservation of Error
- Notice regarding Affirmative Defenses

The appellant petitioned for review of an initial decision that affirmed her removal. On her Board appeal form the appellant indicated that she was raising claims of prohibited discrimination and reprisal for whistleblowing. The administrative judge issued a standard Acknowledgment Order informing the appellant that the Board would assert jurisdiction over her claim of reprisal for whistleblowing and that she was required to make a nonfrivolous allegation that she made one or more whistleblowing disclosures and that the disclosures were a contributing factor in the removal action. In its response to the appeal, the agency asserted that the appellant provided no factual allegations to support her discrimination claims and argued that the appellant’s whistleblower claim was without merit. After a prehearing conference, the administrative judge stated that the appellant “is challenging the merit[s] of the agency’s case in chief and did not raise any affirmative defenses.” Although the judge noted that any correction to his summary of the conference had to be entered into the record no later than the start of the hearing, neither party filed such a correction. After the hearing, the administrative judge affirmed the removal action, finding that the agency proved its charges, the action promoted the efficiency of the service, and the penalty was reasonable. The initial decision contained no discussion of affirmative defenses.

Holdings: The Board vacated the initial decision and remanded the case for adjudication of the appellant’s affirmative defenses of discrimination and reprisal for whistleblowing:

1. In accordance with its recent decision in Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010), the Board stated that, when an appellant raises an affirmative defense in an appeal, the administrative judge must address the affirmative defense(s) in any close of record order or prehearing conference summary and order.

2. In the absence of evidence establishing that the appellant had withdrawn or abandoned her affirmative defenses, the administrative judge should have advised the appellant of the applicable burdens of proving her particular affirmative defenses, as well as the kind of evidence she was required to produce to meet her burden. Neither the administrative judge nor the agency provided the appellant with such information relating to her discrimination claims.

Appellant: David C. Potter

Agency: Department of Veterans Affairs

Decision Number: 2011 MSPB 20

Docket Number: DA-0752-09-0059-B-2

Issuance Date: February 9, 2011

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Board Procedures
- Withdrawal of Appeal

The appellant petitioned for review of an initial decision that dismissed his appeal as withdrawn. The issue in this appeal was whether the appellant’s resignation from his position was voluntary. In addition to his assertion that the resignation was involuntary, the appellant raised disability discrimination and whistleblower reprisal claims. On review, the appellant contends that he withdrew his appeal only after the administrative judge informed him that he could not obtain damages from the agency in addition to reinstatement and back pay.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1. Although an appellant’s withdrawal of an appeal is ordinarily an act of finality, a relinquishment of one’s right to appeal to the Board must be by clear, unequivocal, and decisive action. The Board may relieve an appellant of the consequences of his decision to withdraw an appeal when the decision was based on misleading or incorrect information provided by the Board or the agency.

2. Because the appellant raised disability discrimination and whistleblower reprisal claims, a statement that no damages could be awarded in connection with this appeal would be incorrect, as the law provides for compensatory and consequential damages when an appellant prevails on such claims.

3. The record supports the appellant’s assertion that the administrative judge told him that no damages could be awarded in this appeal. Accordingly, the Board excused the appellant from the consequences of his decision to withdraw his appeal and remanded the case to the regional office for further adjudication.

Appellant: Sam B. Tawadrous

Agency: Department of the Treasury

Decision Number: 2011 MSPB 21

Docket Number: DA-0752-08-0227-X-2

Issuance Date: February 10, 2011

Appeal Type: Adverse Action by Agency

Case Type: Compliance Referral

Compliance

This case was before the Board on the administrative judge’s Recommendation finding that the agency was in noncompliance with its obligation to provide back pay because it had inappropriately deducted union dues from his back pay award. After that Recommendation, the agency submitted evidence that it paid the appellant a refund of the deducted union dues. In a nonprecedential Final Order, the Board found that the agency is now in compliance with its obligations and dismissed the appellant’s petition for enforcement as moot.

In a concurring opinion, Vice Chairman Wagner agreed that the appeal is now moot, but explained why she believe the agency was correct when it deducted the union dues from the back pay award. She would have found that the applicable law, 5 U.S.C.  7115(a), provides for a one-year period during which an employee’s written consent to an automatic pay deduction for union dues is not revocable, and pointed out that the appellant was a dues-paying member of the union on the date of his removal. Under these circumstances, she would find that deducting union dues from the back pay award was proper.

Appellant: Delisa Raymond

Agency: Department of the Navy

Decision Number: 2011 MSPB 15

Docket Number: DA-0752-09-0563-X-1

Issuance Date: February 8, 2011

Appeal Type: Adverse Action by Agency

Case Type: Compliance Referral

Compliance

This case was before the Board on the administrative judge’s Recommendation finding the agency in noncompliance with a settlement agreement in which the agency agreed to cancel a removal action and reinstate the appellant to her position with back pay and other benefits.

Holdings: The Board found that the agency remains in noncompliance, in that it has failed to provide acceptable evidence that it has provided the appellant the back pay and other benefits to which she is entitled. It ordered the agency to provide proof of compliance within 15 days. The Board warned that if the agency fails to provide adequate evidence of compliance, then the responsible agency official and the agency’s representative may be required to appear before the Board’s General Counsel to show cause why the Board should not impose sanctions for the agency’s noncompliance.

Appellant: Lisa A. Washington

Agency: Department of the Navy

Decision Number: 2011 MSPB 16

Docket Number: DA-0752-09-0575-X-1

Issuance Date: February 8, 2011

Appeal Type: Adverse Action by Agency

Case Type: Compliance Referral

Compliance

This case was before the Board on the administrative judge’s Recommendation finding the agency in noncompliance with a settlement agreement in which the agency agreed to cancel a removal action and reinstate the appellant to her position with back pay and other benefits. It involved the same settlement agreement as in the Raymond appeal just described.

Holdings: The Board found that the agency remains in noncompliance, in that it has failed to provide acceptable evidence that it has provided the appellant the back pay and other benefits to which she is entitled. It ordered the agency to provide proof of compliance within 15 days. The Board warned that if the agency fails to provide adequate evidence of compliance, then the responsible agency official and the agency’s representative may be required to appear before the Board’s General Counsel to show cause why the Board should not impose sanctions for the agency’s noncompliance.

COURT DECISIONS

 

Non-precedential Decisions

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

Simpkins v. Office of Personnel Management, No. 2011-3005 (Feb. 9, 2011) (MSPB Docket No. DC-844E-09-0623-B-1) (affirming the Board’s decision, which affirmed OPM’s denial of an application for disability retirement benefits)

Gessert v. Merit Systems Protection Board, No. 2010-3115 (Feb. 10, 2011) (MSPB Docket No. DC-0752-09-0149-I-2) (affirming per Rule 36 the Board’s decision, 113 M.S.P.R. 329 (2010), which dismissed the appellant’s appeal of an alleged demotion for lack of jurisdiction)

Miller v. Department of Homeland Security, No. 2010-3120 (Feb. 10, 2011) (MSPB Docket No. DC-1221-08-0274-B-1) (affirming per Rule 36 the Board’s decision, which denied the appellant’s request for corrective action in this IRA appeal)

 

 

 

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