United
States
Office of Personnel Management
New Developments in Employee
and Labor Relations
November 1998
TABLE OF CONTENTS
HIGHLIGHTS
Employee
Health Services and Employee Relations Websites
Date
Set for SOELR'99 Conference
Removal
for Improper Conduct Upheld
Transit
Subsidies
The
Federal Labor Relations Authority turned down agency exceptions to an award in which the
arbitrator awarded retroactive transit subsidies as a remedy for CBA violations. In ruling
that the award wasn't contrary to the Back Pay Act, the Authority noted that "transit
subsidies constitute pay, allowances, and differentials within the meaning of the Back Pay
Act." (See Transit Subsidies...Back Pay Act).
Adverse
Action in Disguise
Resignations
and retirements are normally voluntary actions, initiated by an employee for personal
reasons. However, employees sometimes claim that management forced them to leave through
coercion or misrepresentation. If a separation is forced by management, rather than
freely chosen by the employee, courts have long held that the action is actually an
adverse action. (See Constructive Discharge under Topical
Overview).
Moonlighting
While Requesting Sick Leave
The
Board found that it was reasonable for the appellant, a Postal Supervisor, to work an
outside job at a local tavern, while requesting sick leave. (See Leave).
Deficient
Award
The
Federal Labor Relations Authority set aside an award in which the arbitrator ruled that
the grievant, a union representative on 100% official time who was classified as a sheet
metal worker, was placed in an improper competitive level in connection with a Reduction
In Force.(See Deficient Award...Competitive Level...Personal
Qualifications).
ATTORNEY
FEES
In
an addendum initial decision, the administrative judge granted all the requested fees for
work done on the appellant's appeal except for fees incurred by an investigator. The
administrative judge held that the investigator's fees were not sufficiently similar to
those of a paralegal to warrant recovery under Merit Systems Protection Board (Board)
precedent and that there was no authority to recover investigator fees under 5 U.S.C. §
7701. The appellant filed an appeal arguing that the Board has held that the work of an
investigator, who performs duties similar to that of other law firm employees, should be
recoverable. On review, the full Board agreed with the appellant's arguments. The full
Board held that where an attorney-client relationship exists, fees charged for an
investigator may be recovered when the investigator performs tasks that an attorney or a
paralegal normally performs, and where the investigator's services would normally be
separately billed to the client. Accordingly, the Board found that the administrative
judge erred in holding that the investigator fees were not compensable under 5 U.S.C. §
7701. The appellant was awarded the fees incurred by an investigator. Shimotsukasa v.
Postal Service
, SE0752970010-A-1, July 23, 1998.
Contact: er@opm.gov or (202) 606-2920.
CHARGES AND PENALTIES
The Merit Systems Protection Board reversed its administrative judge (who mitigated the
agency's penalty) and found removal appropriate based, among other things, on the
appellant's physical and verbal abuse of his supervisor. The judge erroneously ruled that
the agency was required to prove the verbal abuse and the physical threat in order for
this charge to stand. The judge did not sustain the verbal abuse part of the charge and
thus refused to consider the appellant's actions in grabbing the supervisor's shirt and
tie and applying pressure to the supervisor's neck. The Board said the appellant's conduct
amounted to multiple acts of misconduct rather than a single act and thus the failure to
prove one was not fatal to the overall charge of physical and verbal abuse. Picariello v.
Postal Service
, BN0752970055-I-1, October 21, 1998.
The appellant was removed based on a number of charges including engaging in threatening
and retaliatory behavior (yelling, screaming, and confrontational behavior) and making
false and malicious statements. The Board upheld the threatening behavior charge, noting
in particular that one of the persons threatened considered obtaining a restraining order
against the appellant and did file a complaint with the agency's security police. Both of
those threatened felt intimidated. The Board did not uphold the false and malicious
statements charge because the agency failed to meet its obligation to show that the
statements (which the Board characterized as derogatory, offensive, and inappropriate)
were false and that the appellant made them with the intent to cause harm to agency
employees. The Board upheld the removal based on all the sustained charges. Shaw v. Air Force
, SF0752950678-I-1, October 20, 1998.
The Office of the Comptroller of the Currency removed the appellant from his computer
specialist position for improper conduct (trading national bank stock options based on
material and sensitive non-public information he received from his employment) and for
violating agency standards of conduct and conflict of interest policies. The Board
determined that the terms "material" and "sensitive" as used in the agency's proposal and
decision notices were descriptive in nature and thus not "terms of art" that the agency
had to prove in order to support its charges. Acree v. Treasury, DC0752920298-B-1,
September 30, 1998.
The agency demoted the appellant from her supervisory position to a much lower-graded
nonsupervisory position for failure to meet the requirements of the position and for
failure to follow instructions. A Merit Systems Protection Board administrative judge
mitigated the penalty to a 30-day suspension, but the full Board found demotion to the
highest-graded nonsupervisory in the appellant's employing facility area to be the maximum
reasonable penalty. The Board noted in such cases, "to show that it placed the appellant
in the proper [level] position, the agency must demonstrate that it evaluated all
available vacancies for which the appellant was qualified, or could have become qualified
without undue interruption to the agency's mission. . ." Simpkins v. Postal Service,
AT0752960266-I-3, September 30, 1998.
See also Schrodt v. Postal Service, CH0752960703-I-1, September 30, 1998 under Reasonable
Accommodation.
Contact: er@opm.gov or (202) 606-2920.
CORRECTIVE ACTIONS
In this corrective action case, the individual's nonselection for a position at the agency
in 1982 resulted in his subsequent reinstatement to a position at the agency in 1993 at
the direction of a United States Federal District Court and the Court of Appeals for the
District of Columbia Circuit. The courts determined that his nonselection was a prohibited
personnel practice based on the agency's violation of the appellant's First Amendment
rights. The courts awarded the individual "reinstated" in 1993 but declined to award "back
pay" for the period of time prior to his reinstatement. The Office of Special Counsel and
the individual requested that the Merit System Protection Board make this award under its
consequential damages authority arising out of corrective action circumstances. The Board
declined to do so, ruling that it did not have such authority until 1994 (after the
individual was reinstated) and that the individual was not covered by the Back Pay Act
prior to his reinstatement because he was not a Federal employee then. Special Counsel and Michael Hubbard v. EPA
, CB1214940031-T-1, September 23, 1998.
Contact: er@opm.gov or (202) 606-2920.
DEFICIENT AWARD ... COMPETITIVE LEVEL ... PERSONAL
QUALIFICATIONS
FLRA set aside an award in which the arbitrator ruled that the grievant, a union
representative on 100% official time who was classified as a sheet metal worker, was
placed in an improper competitive level in connection with a RIF.
The arbitrator had concluded that the grievant's union experience should have been taken
into account when determining the competitive level of the grievant.
FLRA disagreed, finding the award to be inconsistent with 5 CFR 351.403(a)(2), which
requires that competitive level determinations be based on each employee's
"official position, not the employee's personal qualifications."; American Federation of Government Employees, Local 1592 and Department of the Air Force, Hill AFB,
Utah
, 0-AR-2959, September 8, 1998, 54 FLRA No. 94.
Contact: cplmr@opm.gov or (202) 606-2930.
DISCRIMINATION
The agency moved to dismiss the appellant's appeal as moot since it had rescinded its
removal action and returned the appellant to duty. However, the full Merit Systems
Protection Board (Board) disagreed with the agency. The Board found that the agency's
recission of the removal action did not render the appeal moot because the removal may
have constituted sex discrimination that may entitle the appellant to compensatory
damages. The Board, therefore, remanded the appeal to give the appellant the opportunity
to raise a nonfrivolous claim of discrimination. On remand the administrative judge
dismissed the appeal finding that the appellant did not make a nonfrivolous claim of
discrimination and did not have a viable claim for compensatory damages.
On review, the full Board applied it holding in Currier v. Postal Service, (Docket No.
DC0351950631-B-1, July 29, 1998). It held that an appellant who has a right to a hearing
under Title 5 § 7701(a)(1) because he has filed an appealable action to the Board, has a
right under section 7702(a)(1), to have the Board decide any allegation of discrimination
raised in that appeal based on evidence presented at the hearing, without consideration of
whether the allegation is based on facts to support a prima facie case of discrimination,
or is nonfrivolous. Since the administrative judge did not allow the appellant a hearing,
the Board, accordingly, remanded the appeal for adjudication on the merits of the
appellant's claims of sex discrimination and compensatory damages. Hodge v. Veterans Affairs
, NY0432960039-B-1, September 29, 1998.
Contact: er@opm.gov or (202) 606-2920.
EMPLOYEE/LABOR RELATIONS TRAINING
The Office of Personnel Management's annual Symposium on Employee and Labor Relations
(SOELR '99) will be held March 2-5, 1999 at the renovated and expanded Hershey Lodge
and Convention Center in Hershey, Pennsylvania. This comprehensive conference is devoted
to recent developments and emerging issues in employee relations, labor relations, dispute
resolution, performance management, and partnership. The conference offers nine optional
all-day skills-building pre-conference workshops, several plenary sessions of general
interest, and concurrent breakout sessions on more than forty different topics. The
conference registration fee is $595 and optional pre-conference workshops cost $130. SOELR
'99 brochures containing registration information and registration forms were mailed
out in November. The registration form and other SOELR '99 information is also
available on the Office's home page at www.opm.gov under
EVENTS, March 1999.
Contact: soelr@opm.gov or (202) 606-4446.
The Federal Dispute Resolution Conference (FDR) will be held in San Antonio, Texas on
August 22-26, 1999. The program and costs for this conference, sponsored by FDR, Inc.,
have not been set. FDR, Inc. typically sends out brochures containing registration
information and registration forms sometime early in the year. Additional information
about FDR is located on the internet at www.shawbransford.com.
Contact: pforner@aol.com or (202) 463-8400, ext. 348.
FORMAL DISCUSSIONS ... MEDIATED/FACILITATED SETTLEMENT
MEETINGS... FORMAL EEO COMPLAINTS
FLRA found that the activity committed a "formal discussion" unfair labor
practice (ULP) when it didn't notify the union of a mediated meeting between the employee
and a representative of the agency concerning the employee's two formal Equal Employment
Opportunity (EEO) complaints. It found, among other things, that the union's right to be
represented at face-to-face negotiations of a grievance also applies to negotiations
conducted through the use of a mediator.
It rejected, in this connection, the agency's claim that since the negotiated grievance
procedure excluded EEO matters, the meeting didn't deal with a grievance within the
meaning of § 7114(a)(2)(A). The definition of grievance in 7103(a)(9), not the scope of
the NGP, is controlling for "formal discussion" purposes. FLRA also rejected the agency's
claim that the union had no right to be present because mediation procedures under the ADR
are intended to be confidential.
The focus of section 574 of the ADR Act is on the protection of confidentiality of
alternative dispute resolution proceedings and not on who may attend such proceedings.
Thus, the mere presence of a union representative at a dispute resolution proceeding where
all the elements of section 7114(a)(2)(A) were met, in and of itself, would not conflict
with those provisions of the ADR Act.
Although the Administrative Law Judge (ALJ) had found that the two agency employees
performing mediation were "representatives of the agency" for the purposes of §
7114(a)(2)(A), the Authority did not adopt (because not necessary) these ALJ findings. But
it also added that 16 FLRA No. 135, where an EEO official had been acting as a
facilitator, "will no longer be followed to the extent it implies that a discussion
conducted [in a nonconfrontational manner through a neutral third party] will never be
'formal' within the meaning of the Statute." Luke Air Force Base, Arizona and
American Federation of Government Employees, Local 1547
, DE-CA-50519, August 13, 1998, 54
FLRA No. 75.
Contact: cplmr@opm.gov or (202) 606-2930.
HATCH ACT
The Merit Systems Protection Board finds that an employee of the Department of Agriculture
violated provisions of the Hatch Act in effect in 1992 by: (1) discussing with other
employees the need for contributions to a political action committee (PAC) and (2)
soliciting, receiving, and obtaining contributions to the PAC. The Board ordered the
employee to be suspended without pay for 120 days. Special Counsel v. Bilberry,
CB1216970044-T-1, August 18, 1998.
Contact: er@opm.gov or (202) 606-2920.
JURISDICTION AND PROCEDURES
Medical Examination/Discovery. The Board's final order in this case is in response to an
interlocutory appeal of an administrative judge's ruling that an agency may not require an
appellant to undergo a mental examination as a part of discovery. After having his
demotion action reversed on appeal to the Board, the appellant filed a petition seeking
consequential damages under 5 USC § 1221(g)(1)(A)(ii). As a part of those damages, the
appellant requested $500,000 for emotional distress. The agency argued that damages for
distress were not authorized by the statute (a position endorsed by Vice Chair Slavet in
her dissenting opinion) but went on to subpoena the appellant's medical records and filed
a motion for a mental examination, citing Rule 35 of the Federal Rules of Civil Procedure
as the Board's authority for ordering the exam as a part of discovery. When the
administrative judge denied the request for the medical examination, the judge agreed to
issue an interlocutory appeal to the Board. The Board held that its "statutory authority
to prescribe rules of procedure" allowed it to authorize judges to use Rule 35
examinations in Board proceedings. This decision overruled Brumley v. Department of
Transportation, 46 MSPR 666 (1991). The Board also stated that it will follow the Supreme
Court's holding in Schlagenhauf v. Holder, 85 S.Ct. 234 (1964) in determining whether the
mental condition is "in controversy" and whether "good cause" for the examination exists.
NOTE: OPM will examine the initial decision in this case to review the Board's holding on
allowing a claim of emotional distress under consequential damages. Hasler v. Air Force,
AT0752951201-P-1, August 28, 1998. (See also Whistleblower Protection Act.)
When the agency removed the employee for medical inability to perform, the removal notice
informed him of his appeal rights to the Board, but did not inform him of his alternative
right to contest the action through a discrimination complaint. Therefore, when he filed
his appeal with the Board, it was not an "informed election," and it did not preclude his
later return to the Board with a new appeal after an EEOC administrative judge remanded
the complaint to the agency for proper mixed case processing. Gomez-Burgos v. Department of Defense
, No. NY0752980155-I-1, August 14, 1998. The issue of "informed election"
between forums came up in the grievance context in Delaney v. U.S. Agency for International Development
, DC0351971061-I-1, October 28, 1998. Mr. Delaney filed a
grievance claiming that the agency's system for ranking employees on the retention
register for a pending reduction in force (RIF) violated law and regulation. When that
grievance was dismissed as premature, he was never informed by the agency or by the
Foreign Service Grievance Board (FSGB) that the subject matter was outside the
jurisdiction of the grievance process, and in fact, he received a copy of an agency letter
which appeared to confirm that it was covered. He filed a second grievance, which the FSGB
formally accepted as within its jurisdiction. When that grievance was ultimately dismissed
in part as being beyond the FSGB's authority, he was referred to the MSPB. The Board
concluded that "the appellant did not make an informed election to grieve the agency's
decision" under all the circumstances, and accepted jurisdiction.
The other side of the coin is illustrated in Peltier v. Department of Justice,
DE0752970724-I-1, October 16, 1998. The appellant appealed her downgrade to the MSPB. The
parties requested a dismissal without prejudice to pursue settlement, and she did not
refile within the time specified in the administrative judge's instructions. When her late
refiling was dismissed as untimely, she pursued the EEO complaint process, and then
attempted to file another Board appeal after 120 days passed without a final agency
decision. The Board found, however, that the agency had been sufficiently clear in
explaining her mixed case alternatives in its decision notice. There was therefore no
basis for her claim that she had not made an informed election, and she had no right to
file a new MSPB appeal.
The Board was precluded by statute from considering the appellant's IRA claims of
reduction in grade and involuntary retirement, because at the relevant time he was a
National Guard technician. See 32 U.S.C. § 709(e)(4), (5), and Ockerhausen v. New Jersey
Department of Military and Veterans Affairs, 52 M.S.P.R. 484 (1992). The statute did not
prevent review of his non-selection for promotion, but the Board had already found, in
Melendez v. Puerto Rico National Guard, 70 M.S.P.R. 252 (1996), Ockerhausen, and Kostan v.
Arizona National Guard, 50 M.S.P.R. 182 (1991) that the mixed status of National Guard
technicians means the Board has no authority to enforce orders concerning them. Since the
Arkansas National Guard indicated it would not recognize the authority of a Board order,
there was no relief the Board could offer, and the appellant could not even be a
prevailing party for attorney fee purposes. To issue such a meaningless decision, the
Board found, would violate the statute that prohibits it from issuing advisory opinions.
The appeal was therefore dismissed for failure to state a claim upon which relief can be
granted. McVay v. Arkansas National Guard, No. DA1221970423-W-1, October 20, 1998.
The agency reassigned the GS-12 appellant and then upgraded his job to place a GS-13
employee whose own job had been upgraded and filled competitively. The first employee
appealed, claiming a constructive demotion had occurred. The Board did not agree. "To
establish a claim of constructive demotion, an appellant must show that, at the time of
his reassignment, his former position was misclassified and should have been upgraded
because of a classification error or a change in the classification standards, rather than
because of a planned management action." In this case, the evaluation statement reflected
that the position was properly classified at the GS-12, and was upgraded only to
accommodate the displaced employee. Even if this was improper, it does not prove that the
appellant was constructively demoted from the grade he should have held. McCollum v. Department of Veterans Affairs
, DE1221960501-B-1, October 28, 1998.
Contact: er@opm.gov or (202) 606-2920.
LEAVE
The appellant, a Postal supervisor, was demoted from his position based on a charge of
improper conduct with two specifications: (1) falsification of time and attendance
records, and (2) working multiple shifts at a tavern, while requesting sick leave from his
Postal Service job. The administrative judge upheld the agency's action, finding that the
agency had proven both specifications by preponderant evidence. On review, however, the
Board disagreed that the second specification had been proven, finding that the
administrative judge did not properly consider all of the evidence. Specifically, the
Board disagreed with the administrative judge's finding that it was inherently
inconsistent for the appellant to claim sick leave at the Postal Service for a period when
he was performing any job duties at the tavern. Rather, the Board found that the appellant
was indeed sick for the period in question, but that due to circumstances beyond his
control, it was necessary for the appellant to perform minimal duties at the tavern. This
was in part due to the fact that the substitute employees, who the appellant procured to
fill-in for him at the tavern, could not perform all of the necessary duties. The Board
mitigated the penalty of demotion to a 30-day suspension. Vice Chair Slavet issued a
separate concurring and dissenting opinion. House v. Postal Service, AT0752970454-I-1,
October 27, 1998.
Contact: er@opm.gov or (202) 606-2920.
PAY
The petitioners in this appeal are attorneys at the Internal Revenue Service (IRS) and
have challenged their agency's compliance with the Office of Personnel Management's
(OPM's) regulation governing highest previous rate at 5 CFR 531.203 (c). Because the
petitioners believe that the IRS regulation governing highest previous rate does not
comply with OPM's regulations, petitioners have alleged that their agency committed a
prohibited personnel practice. All petitioners were temporarily promoted from a GS-12
grade level to a GS-13 grade level, with some petitioners placed at step 4 of the grade
and other petitioners placed at step 5 of the grade. After more than one year, their
promotions were terminated and the petitioners were placed at the GS 12, step 10 grade
level. Because the pay rate for GS-12, step 10 is less than the pay rates for GS-13, steps
4 and 5, the petitioners suffered a loss in pay. An agreement between the IRS and the
National Treasury Employees Union states that employees who are temporarily promoted for
one year or more will be paid upon conclusion of the temporary promotion, the maximum rate
under the highest previous rate rule at 5 CFR 531.203 (c)(1). The petitioners argued that
the regulation entitles them to receive the highest rate of pay received in the GS-13
position. Both the IRS and OPM responded to the appeal in opposition. Among other things,
IRS and OPM argued that because the petitioners are members of a collective bargaining
unit with an established negotiated grievance procedure, that this is the appropriate way
to seek a remedy, and that the Board has no jurisdiction over these appeals. The Board
assumed jurisdiction without actually making a determination, and declined to exercise its
discretionary review authority in this appeal. Manning, et al. v. Office of Personnel
Management and Internal Revenue Service
, CB1205970059-U-1, October 22, 1998.
Contact: er@opm.gov or (202) 606-2920.
REASONABLE ACCOMMODATION
In a case involving a charge of medical inability to perform, the Board found that the
agency failed to meet its burden of proving that the medical condition either caused
observed deficiencies in performance or conduct or created a high probability of hazard
resulting in injury to the appellant or others. The agency-ordered fitness for duty
examination was the basis for the removal action. The Board found that the testimony of
the physician revealed that he did not have specific knowledged of the appellant's
worksite although he was generally familiar with the duties of the position and had toured
the worksite at one time. The Board found the medical statement conclusory and lacking in
a specific analysis of which duties the employee was failing to perform. When the agency
witnesses testified about the lack of productivity from the appellant due to the
accommodations necessary for his medical condition, the Board found no documented
insufficient performance or deficiencies and, therefore, found the testimony unpersuasive.
On the issue of future risk of hazard, the agency witnesses testified that allowing the
appellant to continue working in a chair would pose a safety risk since the floor of the
workroom was often littered with strings, rubber bands and paper that might cause the
appellant to fall. The Board found this insufficient since it was only a subjective
assessment by a supervisor, with no supporting testimony or statements from safety experts
or medical personnel. Schrodt v. Postal Service, CH0752960703-I-1, September 30, 1998.
In a case referred to the Board by the Equal Employment Opportunity Commission, the Board
concurred with the Commission's finding that the agency discriminated against the
appellant. When this case was before the Board in 1997, the Board reversed the agency's
removal action but did not find discrimination. Since the Commission's recent decision
(Petition Number 03970123) was based solely on a matter of discrimination law, the Board
deferred to the Commission on the finding of discrimination. However, the Board noted that
a part of the Commission's finding appeared to conflict with the Board's holding in
Jackson v. US Postal Service, CH0752950898-R-1, (June 26, 1998) in which the Board found
that there was an ultimate burden on the appellant to demonstrate that a vacant, funded
position existed to which the appellant could have been reassigned. The Board avoided this
potential conflict by stating that the Commission's "primary finding was that the agency
discriminated against the appellant by denying her leave request." Patterson v. Air Force,
PH0752950427-E-1, October 28, 1998.
Contact: er@opm.gov or (202) 606-2920.
REPUDIATION OF CONTRACT ... UNENFORCEABLE
PROVISIONS
Under the terms of the agreement, the union was entitled to official time for lobbying.
However, when the union asked that a certain amount of official time be granted certain of
its representatives in order to lobby Congress, the agency denied its requests (it did
grant official time for training, however) on the ground, among other things, that the
contract provision violated section 8015 of the 1996 DOD Appropriations Act. The Authority
found that the DOD Appropriations Act applied to the National Guard and thus
rendered unenforceable this particular contract's provision on official time to lobby
members of Congress. It noted that it has held (see, e.g., GSA, 50 FLRA 136) that
agreement provisions that are contrary to law aren't enforceable under the Federal Service
Labor-Management Relations Statute. Consequently, an agency's refusal to comply with an
unlawful and therefore unenforceable provision does not constitute an unlawful repudiation
of the agreement. FLRA accordingly dismissed the ULP. Office of the Adjutant General,
Georgia Department of Defense and Georgia State Chapter, Association of Civilian
Technicians
, AT-CA-60432, July 31, 1998, 54 FLRA No. 70.
Contact: cplmr@opm.gov or (202) 606-2930.
RETIREMENT
Under 5 CFR 831.902, an employee may request a determination of whether Federal service
qualifies for law enforcement retirement credit. The regulations, which became effective
on January 19, 1988, required an individual to request by no later than September 30,
1989, a determination on whether past Federal service that preceded the request by more
than one year qualified for law enforcement service credit. In this case, the appellant
wrote a letter to his employing agency in August 1982, requesting that his past Federal
positions be certified as creditable service toward law enforcement retirement credit.
Shortly thereafter, the agency returned the appellant's letter indicating that supporting
documentation was needed in order for his past service to be credited. The appellant did
not pursue the matter further until he retired in 1994. The agency denied the request as
untimely, and, upon appeal before the Merit Systems Protection Board (MSPB), his case was
dismissed as untimely. The court disagreed with MSPB and found that the date of the
appellant's letter (1982) met the requirements of the regulation, regardless of the fact
that the appellant waited over 4 years (and past the regulatory deadline) to pursue the
matter. The court reversed MSPB's decision and remanded the case for further proceedings.
Henry v. Department of Justice, Federal Circuit Court of Appeals, No. 97-3403, September
18,1998.
Contact: er@opm.gov or (202) 606-2920.
SENIOR EXECUTIVE SERVICE
The appellant appealed his removal from the SES via reduction in force (RIF) arguing that
the agency violated statute and regulation when it amended its RIF plan to limit
competitive areas to individual bureaus, and the agency did not follow proper procedures
when it failed to place him in another SES position within the Department. The Federal
Circuit agreed with the MSPB in finding that agencies do not have to establish
department-wide competitive areas for SES RIFs. It also agreed with the Board's finding
that it was without jurisdiction to consider whether the agency took all reasonable steps
to place him in an SES position, rather than offering him a GS-15, as it did. Schmidt v. Department of Interior
, No. 97-3379 (Fed. Cir. August 20, 1998).
Contact: er@opm.gov or (202) 606-2920.
TIMELINESS
The appellant stated that an agency representative personally handed him the agency's
decision notice to remove him. Furthermore, he claimed that this was not done until almost
30 days after the removal became effective. The appellant argued that his appeal was
timely because he filed his appeal within thirty days of receiving the notice from the
agency representative. The administrative judge dismissed the appellant's appeal as
untimely filed without establishing good cause. On review, the full Merit Systems
Protection Board (Board) found that the administrative judge erred in not resolving the
conflict as to when the appellant received the agency's decision notice. However, the
Board held that since the record was well-developed and it was not basing its findings on
any witness demeanor, it could resolve the conflict on the timeliness issues without a
remand.
In response to the appellant's claim that he did not receive the agency's decision notice
until 30 days after the effective date, the agency submitted a copy of a receipt that
indicated the appellant signed for the decision notice on the same day it became
effective. However, the appellant argued that the signature on the return receipt was not
his. Applying Boyling v. Army,[6 MSPR 276,278 (1981)] which held that identification of
handwriting can be determined by the trier of fact, based upon lay or expert opinion or
upon comparison with other handwriting samples in evidence, the Board conducted its own
analysis and concluded that the two signatures were not the same and that someone other
than the appellant signed the return receipt. Therefore, the Board found the appellants
petition was timely filed. Starr v. Postal Service, AT0752980396-I-1, September 29, 1998.
In this case, the agency served only the appellant, not her attorney, with its decision
letter to remove which set forth the time limits for filing an appeal. Since the appellant
was unclear as to the contents of the decision notice, she forwarded the notice to her
attorney. On review of the initial decision that dismissed the appellants appeal as
untimely, the full Merit Systems Protection Board (Board) found the appellants appeal to
be timely filed for the following reasons: (1) the agency was on clear notice that the
appellant was being represented by an attorney, (2) a letter sent to the appellants
attorney by the agency did not state that it had issued the appellant a decision letter
and (3) an agency representative told the appellants attorney that the appellant had not
been terminated because there was no removal letter in her personnel file. For these
reasons, the Board found that the appellant established good cause for waiver of the
Board's time limit. Accordingly, the case was remanded to the regional office for an
adjudication on the merits. Pickens v. Postal Service, CH0752980275-I-1, September 29,
1998.
Contact: er@opm.gov or (202) 606-2920.
TRANSIT SUBSIDIES ... BACK PAY ACT
FLRA turned down agency exceptions to an award in which the arbitrator awarded retroactive
transit subsidies as a remedy for CBA violations. In ruling that the award wasn't contrary
to the Back Pay Act, the Authority noted that "transit subsidies constitute pay,
allowances, and differentials within the meaning of the Back Pay Act."
We conclude that transit subsidies offered under the Clean Air Incentives Act constitute
legitimate employee benefits in the nature of employment compensation or emoluments.
Consequently, because the Clean Air Incentives Act permits agencies to subsidize commuting
expenses and transit subsidies constitute legitimate employee benefits in the nature of
employment compensation or emoluments, this case is different from Customs [23 FLRA 366,
367-68]. Accordingly, we conclude that transit subsidies constitute pay, allowances, and
differentials within the meaning of the Back Pay Act.
Note: In Customs, which predated the Clean Air Incentives Act, FLRA held that personal
commuting expenses do not constitute pay, allowances or differentials. It reached the
opposite conclusion in the case at bar because of the Clean Air Incentives Act. Department of Health and Human Services and National Treasury Employees Union
, 0-AR-2766, September
30, 1988, 54 FLRA No. 106.
Contact: cplmr@opm.gov or (202) 606-2930.
WHISTLEBLOWER PROTECTION ACT
Even though the appellant in this case acknowledged to the Office of Special Counsel and
to the Merit Systems Protection Board that her complaint about agency practices might not
constitute a "true" protected disclosure under the Whistleblower Protection Act, she
argued that she was protected because her agency perceived her as a whistleblower. The
Board agreed. Here, the Board determined that its administrative judge erred when, without
conducting a hearing, the judge accepted as persuasive a statement of the appellants
supervisor that he did not perceive the appellant as a whistleblower. The Board concluded
that the appellant had raised a nonfrivolous allegation of Board jurisdiction (i.e., she
was perceived as a whistleblower) and thus was entitled to a hearing before the Board.
Juffer v. United States Information Agency, DC1221971072-W-1, October 2, 1998.
An administrative judge of the Merit Systems Protection Board reversed the agency's
demotion of the appellant from her GM-14 position based on a finding that the demotion was
improperly based on the appellants protected whistle blowing activities. Because of the
whistle blowing reprisal finding, the appellant, among other things, requested $500,000 in
consequential damages under Section 1221(g)(1)(A)(ii) of Title 5 of the United States
Code. Since this was based on emotional distress (major depression), the agency requested
that the judge order a mental examination of the appellant in order to determine whether
the damages requested were based in fact. The judge, recognizing Board precedent, ruled
that the judge lacked authority to order such an exam but certified the issue to the full
Board in an interlocutory appeal. The Board, noting that "such examinations will serve
the interests of fairness and of accurate determination of the truth" in appropriate
cases, overruled its precedent in Brumley v. DOT, 46 M.S.P.R. 666 (1991). The found ruled
that it could, indeed, issue regulations that would permit so-called Rule 35 examinations
(under the Federal Rules of Civil Procedure). Finding that there was "good cause" for a
mental examination of the appellant, the Board remanded the case back to the
administrative judge for further proceedings. Vice Chair Slavet dissented. While agreeing
that Section 1221(g)(1)(A) noted above applies in this whistle blowing reprisal case, she
argued that the Board should not have reached the issue of examinations since, in her
opinion, this section does not authorize payment of consequential damages for nonpecuniary
harms such as the emotional or mental distress raised in this case. Hasler v. Air Force,
AT0752951201-P-1, August 28, 1998.
An administrative judge dismissed for lack of jurisdiction the appellant's individual
right of action appeal which argued that his probationary termination was in reprisal for
four protected disclosures under the Whistleblower Protection Act. The judge did not
consider three of the disclosures because only one was mentioned in the close out letter
from the Office of Special Counsel's investigation and the judge believed that the
appellant had failed to show that the other three had been properly raised before the OSC.
The full Board reviewed the record, however, and concluded that the appellant, "although
not in an artful fashion," had in fact sought corrective actions from the OSC regarding
all four of the disclosures. Accordingly, the Board remanded the case back to its
administrative judge to consider the case in view of the additional three disclosures.
Thorne v. HHS, DE1221960526-W-2, September 29, 1998.
In this individual right of action appeal, the appellant was terminated from his excepted
service temporary appointment in the Office of Independent Counsel for violating Federal
Criminal Procedure Rule 6(e) which prohibits disclosure of grand jury information. The
Merit Systems Protection Board noted that the Whistleblower Protection Act excludes
disclosures that are "specifically prohibited by law." The Board held that disclosures
prohibited by Rule 6(e) fall under this exclusion and cannot serve as protected
disclosures entitling an individual to whistleblower coverage under the Act. The Board
remanded the case back to one of its administrative judges to review in camera a key
document in question in the case to determine whether it is covered by
Rule 6(e). O'Brien
v. Office of Independent Counsel, DC0752940259-B-1, August 25, 1998.
The agency separated the appellant from her clinical psychologist position during
probation for continued resistance to participate in active child abuse cases as required
by her position. In reviewing a decision by the Merit Systems Protection Board rejecting
her individual right of action (IRA) appeal claim that her separation was in reprisal for
whistle blowing, the Court of Appeals for the Federal Circuit discussed in detail the
respective burdens of proof of an appellant and an agency. The court noted that an
appellant must initially show by a preponderance of the evidence that the disclosure
(here, complaints about how the agency provided health care) was a contributing factor in
the agency's decision to take a personnel action. Here, the court found that the
appellant's separation, just six weeks after the disclosure, met the appellant's
obligation to make a prima facie case that the disclosure was a contributing factor. The
court at this point stated that "we require the Board and its [administrative judges] to
weigh the deciding official's knowledge of the protected disclosure in combination with
the reasonable time period, without more, to determine whether that protected disclosure
is a contributing factor in the personnel action" (emphasis supplied). The court stated
that an agency's evidence of its responsiveness to issues raised in the whistle blowing
and the lack of animus against an employee is not relevant to the employee's prima facie
case but could be relevant to the agency's rebuttal case. That is, it could be introduced
when the agency attempts to meet its burden to show that it would have taken the action
absent the protected disclosure. The court concluded that the agency did met its burden
and upheld the appellant's separation. Kewley v. HHS, 153 F.3d 1357 (Fed. Cir. 1998).
Contact: er@opm.gov or (202) 606-2920.
WORK/LIFE PROGRAM CENTER
OPM recently sent out its call letter to Federal organizations to nominate their work/life
programs for the 1999 OPM Director's Award for Outstanding Work/Life Programs.
As we approach the new millennium, there is no doubt that the stress on Federal employees
caused by the struggle to manage both their work and personal responsibilities is
enormous. OPM recognizes that many agencies have made tremendous attempts to ease the
struggle through the wide use of current Federal personnel flexibilities and the
establishment of programs to help their employees meet their work/life obligations. This
award supports and recognizes those efforts and encourages expansion of such efforts.
Departments and agencies are encouraged to submit nominations to OPM's Work/Life Programs
Center, Room 7316, 1900 E Street, NW., Washington, DC 20415-2000. Nominations are due
March 12, 1999.
OPM's Work/Life Programs Center sponsored a seminar, Supporting Fatherhood: A Family
Value, Asset, and Need, on September 29, 1998. The seminar showcased experts and speakers
in the area of fatherhood who discussed the importance of supporting fathers in their
involvement with their families. The seminar was designed to continue the Federal
Government wide initiative to strengthen the role and interaction of fathers by providing
practical information on how agencies and communities can take an active role in
establishing programs and policies that strengthen fatherhood. For additional information
or copies of the handout materials, please contact LaTonya Brown at the address below.
Contact: workandfamily@opm.gov or (202)
606-5520.
CURRENT INTERVENTIONS
Listed below are decisions which currently are pending before a third-party and in which
the Office of Personnel Management has intervened, sought reconsideration or judicial
review, or filed an amicus curiae brief. Decisions received, as well as other developments
since the last report are highlighted in bold. Additional information on each case can be
obtained from the Office of Workforce Relations, Employee Relations Branch at er@opm.gov or (202) 606-2920.
1. Vesser v. Office of Personnel Management, AT300A910448-R-1, November 21, 1994.
On December 27, 1994, the Office of Personnel Management sought reconsideration of this
decision in which the Board reopened a case after the Federal Circuit had adjudicated it,
and prescribed a remedy for the appellant. The court had reversed an Office of Personnel
Management decision (sustained by the Board) which removed the appellant from the list of
candidates for Administrative Law Judge positions because he had retired, and reemployed
annuitant status was deemed incompatible with employment as an Administrative Law Judge.
The court provided no remedy, and the Office of Personnel Management believes the Board is
without authority to amend its decision in the absence of a remand order. Furthermore,
even if the Board had the authority to issue its Order, it would constitute an improper
remedy. Instead of providing for priority referrals equal to the number of considerations
the appellant actually lost, which would be a proper "make whole" remedy, it
provides him unlimited priority referral to the detriment of other candidates. Contact: er@opm.gov or (202) 606-2920.
2. White v. Air Force, Docket No. DE1221920491-B-1, August 25, 1994.
The Board refused to consider the Office of Personnel Management's arguments that the
appellant in this case did not have a "reasonable belief" that gross misconduct had
occurred at his agency and thus was not a whistleblower entitled to all the rights that
status provides, including the right to file an individual right of action appeal with the
Board. The Board's rejection of the Office's intervention was based on its belief that the
Office had not intervened "as soon as practicable" as required by Chapter 77 of the United
States Code. The Office believes that the Board erred in this regard. The Court of Appeals
for the Federal Circuit granted the Office's request for review of the case. Subsequently,
the Court of Appeals granted a request by the Merit Systems Protection Board that the
court remand the case back to the Board for further administrative adjudication. Following
remand, the Board on March 10, 1998, affirmed its prior decisions and conclusions on the
appeal, stating that the Office's arguments "improperly focus on isolated aspects of our
decision while overlooking the cumulative effect of the basis for our decision." Among
other things, the Board determined that the appellant's "fear" that gross mismanagement
and abuse of authority had taken place was a proper consideration in determining whether
the appellant had a "reasonable belief" that such misconduct took place. On June 5, 1998,
the Federal Circuit granted a request by the Office of Personnel Management to review the
Board's latest decision. The court rejected the employee's argument that the court could
not review the matter because it involved the Whistleblower Protection Act rather than a
civil service law, rule or regulation affecting personnel management. The court noted that
the issue of disagreement between the Office and the Board is the standard for determining
whether an appellant has established that he or she had a reasonable belief that improper
activity at the agency occurred. The Office filed its brief with the court on August 31,
1998. Contact: er@opm.gov or (202) 606-2920.
3. Devall v. Navy, DA0752950794-I-1, February 24, 1997.
The Board applied its earlier decision in White v. Postal Service (when all of an agency's
disciplinary charges are not sustained, the Board has the authority to set a reasonable
penalty) and ruled that the penalty for sexual harassment and unauthorized use of property
(a third and relatively minor charge of wasting time was not sustained) is a 90-day
suspension rather than removal. This was done despite an agency official's clear testimony
that he removed the employee based on the seriousness of the sexual harassment. The Office
of Personnel Management believes that the Merit Systems Protection Board erred as a matter
of law in both White and Devall by vesting itself with authority to independently select
disciplinary penalties (rather than defer to an agency's judgment). On January 26, 1998,
the Board rejected the Office's reconsideration request. The Office and the Department of
Justice sought review by the Court of Appeals for the Federal Circuit of the Board's
decision. On April 17, 1998, the Court, noting that the Office and the Board disagree
about the deference to be accorded an agency's penalty decision, determined that the
matter would have substantial impact on the administration of civil service laws and
accordingly granted the Office's petition for review. On July 21, 1998, the Department of
Justice and the Office filed their brief in support of the petition to the Federal Circuit
arguing that the Board's decisions in White and Devall impair Federal agencies rights to
remove and discipline employees under Chapter 75 and thus undermine the efficiency of the
civil service. Contact: er@opm.gov or (202) 606-2920.
4. Special Counsel v. Merrick Malone and Margie Utley, CB1216940015-T-1 &
CB1216940016-T-1, February 9, 1998.
This case involves two employees of the District of Columbia who were found to have
violated 5 USC 7324 (the Hatch Act). Prior to a decision by the Merit Systems Protection
Board, both employees resigned and the Office of Special Counsel requested that they be
debarred from future employment with the District of Columbia Government. At issue here is
whether the applicable statute prevents the Merit Systems Protection Board from debarring
employees who violate the Hatch Act and therefore limits the penalty to either removal or
suspension. In a February 9, 1998 decision, the Merit Systems Protection Board rejected
the recommended decision of its Chief Administrative Law Judge who had ordered that the
two employees be debarred for 10 and 5 years respectively. The Board held, contrary to the
meaning given this provision for nearly 50 years, that it lacked authority to order the
now former employees debarred from future employment. Since the employees had resigned and
the Board believed there was no other penalty that could be imposed, it determined that
the case was moot and must be dismissed. The Office of Personnel Management has sought
reconsideration of this decision, arguing that the Board erred in its analysis of the
applicable legislative history and prior case law. Decisions of both the Comptroller
General and the former Civil Service Commission held that debarment was authorized.
Without the potential penalty of debarment, individuals who violate the Hatch Act could
avoid serious punishment by simply resigning and then seeking immediate reemployment.
Contact: er@opm.gov or (202) 606-2920.
5. Joyce v. Department of the Air Force, PH0752950085-B-1, April 9, 1998.
On June 26, 1998, the Office of Personnel Management (OPM) intervened in a case involving
an award of attorney fees to an appellant who refused to come to work after being ordered
to do so, arguing that a lack of accommodation made it unsafe. On appeal, he argued that
he was either constructively suspended or removed from his position. Prior to an MSPB
hearing, the agency provided reasonable accommodation and gave the appellant back pay for
the period of time he had refused to work. The administrative judge (AJ) thereafter
dismissed the appeal. The AJ then dismissed the appellant's request for attorney fees,
finding that the Board lacked jurisdiction over the matter since the appellant had
voluntarily absented himself from work. The full Board reversed the initial decision and
held that: (1) it need not make a determination of jurisdiction in order to award fees,
but need only determine whether an appellant has set forth a prima facie case of
jurisdiction, and (2) it need not analyze the case to determine whether an award of fees
is warranted "in the interest of justice," but instead established a rebuttable
presumption that fees are warranted in cases where the appellant has established a prima
facie case of jurisdiction and the agency unilaterally rescinds its action. OPM sought
intervention of this case, arguing that the Board exceeded its authority and ignored the
requirement in 5 U.S.C. 1204 (a), which provides that the Board issue decisions only in
those cases in which it has jurisdiction. In Joyce, the Board held that no jurisdictional
determination was necessary. The Board further ignored the requirement in 5 U.S.C. 7701
that it can award fees only after a finding that the employee was a prevailing party and
that such an award would be in the interest of justice. Instead, it shifted the burden to
the agency to demonstrate that fees were not warranted in the interest of justice.
Contact: er@opm.gov or (202) 606-2920.
TOPICAL OVERVIEW
CONSTRUCTIVE DISCHARGE
Adverse Action in Disguise
Resignations and retirements are normally voluntary actions, initiated by an employee for
personal reasons. However, employees sometimes claim that management forced them to leave
through coercion or misrepresentation. If a separation is forced by management, rather
than freely chosen by the employee, courts have long held that the action is actually an
adverse action. Since the employee has not been afforded the due process required by
statute, the action is inherently invalid, and will be reversed upon third party review.
What is considered coercion?
In some instances, employees claim that management created or allowed such an abusive
environment they were forced to leave. Since Heining v. GSA, 68 M.S.P.R. 513 (1995), the
MSPB's test in these cases is "whether under all the circumstances working conditions were
made so difficult by the agency that a reasonable person in the employee's position would
have felt compelled to resign [or retire]." Cases still sometimes cite the Board's prior,
three-part test: (1) One side involuntarily accepted the terms of another; (2) the
circumstances permitted no other alternative; and (3) the circumstances were the result of
the coercive acts of the opposite party. Since Heining, the second prong does not
necessarily mean the appellant must have exhausted available administrative avenues for
seeking redress. See also Bates v. Justice, 70 M.S.P.R. 653 (1996).
When the employee's choice is the result of false information supplied by the agency, this
is also viewed as coercion, even if the misinformation was unintentional. See Scharf v.
Air Force, 710 F.2d 1572 (Fed. Cir. 1983) and Ogden v. Commerce, 61 M.S.P.R. 36 (1994). If
the agency threatens the employee with an action it cannot actually support, the
employee's resignation or retirement would be considered involuntary, since it resulted
from a false choice. See for instance Schultz v. Navy, 810 F.2d 1133 (Fed. Cir. 1987).
Refusal to allow withdrawal of a resignation or retirement also renders the action
involuntary unless the agency had a valid reason, as spelled out in Goodman v. United
States, 424 F.2d 914 (1970), Perlman v. United States, 490 F.2d 928, (Ct. Cl. 1974), and
McBeen v. Interior, 27 M.S.P.R. 207 (1985). An agency breach of settlement terms will make
the resignation or retirement agreed to in that settlement involuntary. See Carter v.
Navy, 6 M.S.P.R. 95 (1981). Finally, a resignation or retirement cannot be truly voluntary
where the employee was not mentally competent to make an informed choice. The agency's
knowledge of the employee's mental state is not relevant. See Manzi v. United States, 198
Ct. Cl. 489 (1972) and Paone v. Army, 10 M.S.P.R. 284 (1982).
What can you do?
Appellant claims of coercion do not usually prevail. However, it is relatively easy for
all but the most frivolous to meet the requirements for a jurisdictional hearing, which
uses scarce agency resources. More importantly, agencies have a broad interest in ensuring
that their employees are not abused, misinformed, or otherwise coerced. Therefore, it is
worthwhile to review the messages agency managers are receiving, through training,
communications from their superiors, and the firm and fair administration of discipline,
where warranted. Additionally, it is wise to tell supervisors and personnel staff that any
employee who makes veiled or explicit allegations that a pending resignation or retirement
is involuntary should be counseled immediately about rights and options, and a written
record of that counseling should be retained.
Contact: er@opm.gov or (202) 606-2920
INDEX OF CASES
Agencies having general questions concerning this publication,
including suggestions for improvement, are encouraged to call Callie Chandler or Ken
Bates on (202) 606-2920.
Other questions or comments may be mailed to the Employee Relations Division, U.S. Office of Personnel Management, Room 7425, Theodore Roosevelt Building, 1900 E Street,
NW., Washington, DC 20415-2000. You may call us at (202) 606-2920; fax (202)
606-0967; or email er@opm.gov.
Updated 24 April 2000
|
