United
States
Office of Personnel Management
New Developments in Employee
and Labor Relations
June 1999
TABLE OF CONTENTS
Alternative Dispute Resolution
- The Office of Personnel Management is holding a public recognition ceremony on July 27,
1999, in Washington, DC for the winners of the first annual OPM Director's Award for
Outstanding ADR Programs.
- OPM's 1994 Alternative Dispute Resolution Resource Guide has been updated and is
scheduled for release on July 27, 1999.
- Effective May 24, 1999, the Merit Systems Protection Board amended its rules to provide
an automatic extension of up to 30 days of the time limit for filing an appeal with MSPB
where an appellant and agency mutually agree, prior to the timely filing of an appeal, to
attempt to resolve their dispute through an alternative dispute resolution process. (See Alternative Dispute Resolution).
Compensatory Damages
On June 14th, the Supreme Court issued its decision in West v. Gibson, 137 F.3d 992
(1999), and found that the Equal Employment Opportunity Commission has the authority to
grant compensatory damages in cases where a finding of discrimination has been made. This
case reached the Court following the Seventh Circuit's ruling that the Equal Employment
Opportunity Commission did not have the authority to grant compensatory damages. The Court
had granted certiorari because of the disagreement among the circuit courts regarding
EEOC's authority. (See Compensatory Damages).
Issuance of OPM Publications
To help Federal employees with child rearing responsibilities, OPM has issued the
following three publications: Child Care Resources Handbook for Federal Employees;
Establishing A Work-Site Parenting Support Group; and Establishing A Mothers Program - A
guide for the Federal Workplace. (See Family-Friendly Workplace Advocacy Office).
Federal Dispute Resolution Conference
The Federal Dispute Resolution Conference will be held in San Antonio, Texas on August
22-26, 1999. (See Employee/Labor
Relations Training).
Strategic Compensation Conference
Strategic Compensation:Improving Results Through Effective Pay, Classification, and
Performance Management will be held September 8-9, 1999, at the Hilton Alexandria Mark
Center in Alexandria, Virginia. (See Performance
Management).
Charges/Penalties
On May 20, 1999, the Court agreed (Devall v. Navy), with OPM and held that the Board lacks
independent authority to set penalties when it sustains some but not all of an agency's
disciplinary charges. (See Current
Interventions).
- In a case involving § 704 employees whose pre-FSLMRS bargaining on work jurisdiction
was preserved as a matter for mandatory bargaining by § 704 of the CSRA, FLRA turned down
agency exceptions to an award in which the arbitrator, finding that the agency violated
the agreement by assigning work performed by radio broadcast technicians to non-unit
employees in other locations, ordered the agency to cease and desist from this practice.
Although work jurisdiction proposals/provisions normally are nonnegotiable and
nonenforceable because they directly interfere with management's right to assign work,
USIA's radio broadcast technicians are an exception to that rule. The technicians are
"prevailing rate" employees who are covered by section 9(b) of the Prevailing
Rate Systems Act. Section 704(a) of the Civil Service Reform Act provides, in part, that
the terms and conditions of 9(b) employees that were negotiated prior to August 19, 1972,
continue to be negotiable without regard to the provisions of the FSLMRS. In 37 FLRA No.
113, the Authority found that a work jurisdiction proposal was negotiable because the
union had established that jurisdiction over work was a matter that had negotiated by the
parties before 1972 and thus was preserved as a matter for mandatory bargaining by § 704
of the CSRA. See, also, 49 FLRA No. 119 where, as a result of a court remand, FLRA
reaffirmed this holding. Interestingly, in its decision in the case at bar, FLRA provides
none of this history to the reader. U. S. Information Agency
and American Federation of State, County and Municipal Employees, Local 1418,
0-AR-3075, February 26, 1999, 55 FLRA No. 36.
Contact: cplmr@opm.gov or (202) 606-2930.
- The Office of Personnel Management (OPM) is holding a public recognition ceremony on
July 27, 1999, in Washington, DC for the winners of the first annual OPM Director's Award
for Outstanding ADR Programs. The award, recognizing outstanding programs for the
resolution of workplace disputes, is an initiative by OPM to help carry out President
Clinton's May 1998 memorandum encouraging agencies to use ADR. There were 49 award
nominations from agencies across the country.
- OPM's 1994 Alternative Dispute Resolution (ADR) Resource Guide has been updated and is
scheduled for release on July 27, 1999, at the ADR awards event. Among other things, the
Guide contains one-page descriptions of more than 80 working Federal ADR programs set up
to resolve workplace disputes. The updated Guide contains new information about some of
the shared neutrals programs that are operating as well as descriptions of what the
administrative appeals agencies such as the Merit Systems Protection Board are doing to
use ADR. Another new feature this year is a listing of selected Internet web sites. The
Guide will be available July 27th on OPM's web site at www.opm.gov/er.
- Effective May 24, 1999, the Merit Systems Protection Board (MSPB) amended its rules to
provide an automatic extension of up to 30 days of the time limit for filing an appeal
with MSPB where an appellant and agency mutually agree, prior to the timely filing of an
appeal, to attempt to resolve their dispute through an alternative dispute resolution
(ADR) process. [See 64 F.R. 27899.]
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- The agency charged the appellant with "stealing government property" and
"aiding and abetting others in stealing government property." While the agency
was able to show that property was taken, it was not able to show that the property was,
in fact, owned by the Government ("new" electrical wire owned by the Government
vs. "old" electrical wire that was subject to removal by contractors). Since the
agency couldn't prove the first charge, the second failed. Since both charges failed, the
Merit Systems Protection Board reversed the appellant's removal. Jaramillo v. Army, DA0752980342-I-1, April 16, 1999.
- The agency removed the appellant for failing to report unauthorized absences from duty,
failure to follow leave procedures, and failure to follow other work rules. In essence,
the employee was requesting and being paid for work not performed. The Merit Systems
Protection Board agreed with the agency that one of the Board's administrative judges had
improperly substituted his own judgement for that of the agency in mitigating the removal
penalty to a 90-day suspension. In this case, the Board noted that the agency had
"conscientiously" considered mitigation factors and concluded that
"deference to the agency's primary discretion in managing its work force is warranted
and we will not substitute our judgment for that of the agency." Schoemer v. Army, PH0752970429-I-1, April 21, 1999.
- In this case, the agency removed the appellant for misuse of a Government vehicle
trailer (i.e., used trailer for personal business). The Merit Systems Protection Board
found that one of its administrative judges erred in characterizing the charge as an
alleged violation of the statutory prohibition against misuse of a Government vehicle.
Here, the Board noted that the agency in no way had characterized the charge in that
manner. The Board also found the judge erred in failing to accept the appellant's
stipulation that the conduct occurred as a basis for sustaining the charge. In reviewing
the agency's penalty, however, the Board opined that the misconduct is "not
egregious" and the mitigating circumstances were compelling, even though the employee
had previously been counseled about misusing a Government trailer. The Board noted that
the appellant "acted in compliance with the instructions of his supervisor" and
that "since the appellant was operating under the express authority of his superior,
this factor weighs heavily against a severe penalty for the misconduct." The Board
mitigated the agency's penalty to a 30-day suspension. Els v. Army,
SF0752980179-I-1, April 28, 1998.
- In a long-pending case ultimately decided by the Supreme Court, Lachance v. Erickson,
118 S. Ct. 753 (1998), the Merit Systems Protection Board sustains the agency's charges of
(1) making false statements in matters of official interest and (2) conduct unbecoming a
supervisor and lets stand the agency's removal penalty. As urged by the Office of
Personnel Management and the Department of Justice, the Supreme Court overturned the
Board's notion that an agency is prohibited from charging an employee with misconduct and
also with lying or providing false information about that misconduct. In this case, the
Board originally did not sustain the false statements charge and mitigated the removal
penalty to a 15-day suspension. Erickson v. Treasury,
DA0752930295-M-1, April 29, 1999.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- The Supreme Court held that the language of the Compensatory Damages Amendment of 1991
was broad enough to provide the Equal Employment Opportunity Commission with the authority
to order Federal agencies to pay compensatory damages in those cases where a finding of
discrimination had been made. The court, voting five to four in favor of the Commission's
authority to award compensatory damages, held that the law provided for "appropriate
remedies" to be made by the Commission and that the intent of that language was to
include compensatory damages. In the majority opinion, the Court rejected arguments that
the law intended to limit the litigation of a claim for compensatory damages to a judicial
trial, rather than an administrative proceeding as well as an argument that the law
intended to provide victims of discrimination to a jury trial. Finally, the majority
stated that the law provided a sufficient waiver of the Government's sovereign immunity, a
position which is vehemently rejected in the Court's dissenting opinion. West v. Gibson, 137 F.3d 992, vacated and remanded, (S.Ct., June
14, 1999).
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The Office of Personnel Management's annual Symposium on Employee and Labor Relations
(SOELR '99), held March 2-5, 1999 in Hershey, Pennsylvania was attended by about 940
individuals from agencies across the country and overseas. This comprehensive conference
is devoted to recent developments and emerging issues in employee relations, labor
relations, dispute resolution, performance management, and partnership. The location of
SOELR in 2000 is to be announced in the summer of 1999, with conference brochures mailed
out in early fall 1999. The brochure (including its enclosed registration form) and other
SOELR update information will also be available on the Office's home page at
www.opm.gov/er.
Contact: soelr@opm.gov or (202) 606-4446.
- The Federal Dispute Resolution Conference (FDR) will be held in San Antonio, TX on
August 22-26, 1999. The brochure for the conference was mailed out in April. It, along
with the conference registration form, was also placed on an Internet web site at
www.fdrconf@aol.com. The registration fee for both the Pre-Conference workshops and the
regular conference is $895. The fee for the conference program only is $795. The
registration deadline is July 23, 1999.
Contact: pforner@aol.com or (202) 463-8400, ext. 348.
- The first Federal Workers' Compensation Conference & Exposition addressing claims
covered under the Federal Employees' Compensation Act (FECA), sponsored by the Department
of Veterans Affairs, is being held at Disney's Coronado Springs Resort within Walt Disney
World in Orlando, Florida, August 29-September 1, 1999. Approximately 54 classes will
highlight the "Best Practices" utilized by the different Federal agencies and
private sector to effectively and efficiently manage workers' compensation cost, lost
workdays, and accident rates. Registration fee is $475.
Contact: CHEP at (410) 642-1857 or Royce Britt at (202) 273-9830.
- OPM's Director Janice R. Lachance greeted over 250 attendees who participated in OPM's
first Child Care Summit held May 12-14, 1999, in Kansas City, Missouri. The audience
represented 42 Federal agencies, work and family coordinators, unions, educators, child
development specialists, private sector employers, child care providers, state agency
representatives, and public and private sector child care coordinators. The Summit
fulfilled President Clinton's directive to OPM to "...host a nationwide summit
designed to showcase model public and private sector solutions to child care needs."
The summit showcased some of the best examples of partnerships and programs related to
child care and affordability in the country. Sessions covered the gamut of issues
including safety, child care quality indicators, out-of-school care, adoption,
grandparents raising grandchildren, father involvement, nursing mothers and lactation
rooms, family-friendly workplace strategies, and union involvement. Evaluations and
comments indicated that all sessions were extremely well received.
- To help Federal employees with child rearing responsibilities, OPM has issued the
following three publications:
Child Care Resources Handbook for Federal Employees in May 1999. This publication
contains a comprehensive listing of services to help employees identify types of quality
and sources of child care across the country.
Establishing a Work-site Parenting Support Group in May 1999. This publication provides
agencies with another tool to help their employees manage a family, career, and other
personal demands. Establishing a support group is an inexpensive and relatively simple
initiative that agencies can implement.
Establishing A Nursing Mothers Program - A Guide for the Federal Workplace in May 1999.
This publication provides agencies and employees with practical information on how to
establish worksite nursing mothers program, lists Federal agencies who have programs, and
provides organizational resources for breast-feeding education, management and support.
- To help Federal employees and caregivers with elder care dependent care needs, OPM's
Family-Friendly Workplace Advocacy Office will be issuing The Elder Care Connection (ECC).
The ECC is a resource guide of elder care services and providers located in the
Washington, DC, Maryland and Northern Virginia areas. This publication promotes the
awareness and importance of elder care and aging services and programs by providing
referral information on topics as: caregiving management, community resources, Federal and
national organizations, financial assistance and mortgage services, health and wellness
services, home assistance and modification, insurance, legal matter, living options and
publications.
Contact: workandfamily@opm.gov or (202) 606-5520.
- In this case, the majority of the Merit Systems Protection Board imposed a new interim
relief requirement on agencies by stating that "an agency should be found in
compliance [with an interim relief order] if it can show that it had a strong and
overriding interest or compelling reason for assigning duties other than those assigned
prior to an appellant's termination" (emphasis supplied). Vice Chair Slavet's dissent
argues that the majority's position is contrary to the Federal Circuit's 1994 decision in
King v. Jerome, 42 F.3d 137, in which the Office of Personnel Management argued, and the
court agreed, that the Board has no authority to review the validity of an agency's undue
disruption determination. The Vice Chair stated that the majority's position
"implicitly requires an agency to justify its determination not to return an
appellant to his former position and duties under an interim relief appointment."
However, the facts cited and the Board's subsequent regulations seem to imply that the
test may be intended to apply only where the agency has not made an explicit undue
disruption determination. In the current case, the Board applied the test and determined
that the agency properly limited the appellant's duties as a Criminal Investigator. Haebe v. Justice, SF0752970426-I-1, March 9, 1999.
- Effective May 24, 1999, the Merit Systems Protection Board (MSPB) amended its
regulations on interim relief. It provides, among other things, that an agency filing a
petition for review must submit a certification it has complied with the interim relief
ordered or that it has made a determination that it would be unduly disruptive for the
appellant to return to his or her job. The regulations also provide that the Board will
afford an agency the opportunity to provide evidence of compliance with interim relief
when challenged by the appellant. The regulations note that "if there is no harm to
the appellant, dismissal of the agency's petition for review should not be required."
[See 64 Federal Register No. 27900.]
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- In a 5-4 decision, the Supreme Court held that an investigator from NASA's Office of
Inspector General is a "representative" of NASA within the meaning of 5 U.S.C.
§ 7114(a)(2)(B). Under the Statute, the union is afforded the right to represent an
employee during investigatory examinations conducted by an agency representative if the
employee (1) reasonably believes that the examination may result in disciplinary action,
and (2) the employee requests representation.
In response to information supplied by the FBI, NASA's Office of Inspector General
conducted an investigation of an employee of the George C. Marshall Space Flight Center, a
component of NASA. The investigator permitted the employee's lawyer and union
representative to attend. The union later filed an unfair labor practice charge alleging
that the investigator's conduct during the interview interfered with the union's rights
under section 7114(a)(2)(B). The Federal Labor Relations Authority (FLRA) ruled that the
investigator was a "representative" of NASA with the meaning of the Statute and
that NASA and NASA-OIG had committed an unfair labor practice. The U.S. Court of Appeals
for the Eleventh Circuit upheld the FLRA and granted enforcement. In view of a split in
the Circuits over the relationship of OIG investigators and section 7114(a)(2)(B), the
Supreme Court agreed to hear the case.
After an extensive review of the Inspector General Act (which was enacted by Congress
the day before Congress enacted the Civil Service Reform Act), the majority determined
that an agency's Inspector General is a representative of the agency: "In common
parlance, the investigators employed in NASA's OIG are unquestionably 'representatives' of
NASA when acting within the scope of their employment." National Aeronautics and Space
Administration, etc., et al. v. Federal Labor Relations Authority, et al., No. 98-369,
June 17, 1999.
Contact: cplmr@opm.gov or (202) 606-2930.
- Effective May 24, 1999, the Merit Systems Protection Board automatically extends appeals
deadlines when the parties to a potential appeal agree to use alternative dispute
resolution procedures to resolve the matter. (See Alternative Dispute Resolution.)
- The employee was placed against his will in an alternative "5-4-9" work
schedule by his supervisor. He protested that this was illegal under 5 U.S.C.
§§6120-6133, and the agency lifted the requirement, acknowledging that it was
"unwarranted." He then filed a claim with the Court of Federal Claims seeking
compensation under the Back Pay Act for the time he was improperly forced to work the
alternate schedule. The Court of Federal Claims dismissed the case for lack of
jurisdiction, claiming the MSPB had jurisdiction over the claim, and it therefore could
not. Upon review, the Court of Appeals for the Federal Circuit disagreed, and remanded.
The "unwarranted" personnel action was not one over which the Board had
jurisdiction, and it would therefore lack jurisdiction over the claim for Back Pay. A
claim under the Back Pay Act that is not based on an action within the Board's
jurisdiction fits within the terms of the Tucker Act, and is within the jurisdiction of
the Court of Federal Claims. Worthington v. United
States, Appeal No. 985160 (Fed. Cir. February 8, 1999).
- The appellants occupied GS-1811 series Criminal Investigator positions, but the agency
did not certify them as meeting the requirements for availability pay under the Law
Enforcement Availability Pay Act of 1994 (LEAPA) because their positions did not met the
statutory criteria to be Law Enforcement Officer (LEO) positions. They appealed, since the
LEAPA provides that "involuntary reduction in pay resulting from a denial of
certification...shall be a reduction in pay for purposes of section 7512(4) of this
title." The Board found it had no jurisdiction because the agency had not issued a
"specific denial of certification of availability pay for the appellants." It
cited Martinez v. Treasury, 71 M.S.P.R. 262 (1996), which dealt with jurisdiction when a
criminal investigator is reassigned to another job series. Gaffney, Tamburini, and Pace v. Army,
AT0752970173-I-1, AT0752970174-I-1, and AT0752970175-I-1, March 11, 1999.
- The appellant was reassigned from one WG-8 position to another. He appealed this as a
constructive demotion, claiming his original position was misclassified when he occupied
it, and was really worth a WG-10 classification. In fact, a classification advisory had
determined the position should be reclassified at the higher level, and the appellant had
successfully claimed back pay for the salary difference for the 2 years he had occupied it
up to that point. However, the agency never did upgrade the job. The appellant was told to
discontinue performing the higher graded duties instead. He continued to perform at the
higher level and filed a classification appeal. The agency then reassigned him and
abolished his prior position. The Board found this situation distinguishable from the
situations in its key cases on constructive demotion, Russell v. Navy, 6 M.S.P.R. 698
(1981), and Artmann v. Interior, 926 F.2d 1120 (Fed. Cir. 1991), which quotes Russell. In
those cases, and in other cited cases which apply them, the agency did take action to
upgrade the positions subsequent to the reassignment of the appellants. Here, neither the
agency nor OPM ever took an action to correct the classification of the position. The
Board notes, "we hereby clarify that the Board will exercise its jurisdiction to hear
appeals as constructive demotions only in situations in which the agency or the Office of
Personnel Management takes a classification action that is either a correction of a
classification action or an application of a new classification standard subsequent to the
appellant's reassignment." (Emphasis in original.) Hogan v.
Navy, AT0752980226-I-1, March 12, 1999.
- The appellant appealed his removal, and the process of discovery began. The agency
representative became aware that the appellant's representative was approaching some
agency employees directly rather than through her. She asked the administrative judge (AJ)
to advise opposing counsel that all requests for discovery must be through her. The AJ did
not agree that this was required. The agency representative cited an Army Litigation
Regulation, which she supplied, and also claimed a violation of the New Jersey Rules of
Professional Conduct for attorneys, which she also supplied. She requested that all
"information gained in this manner" be excluded from the record. The AJ issued
an order denying the motion for sanctions, and the agency requested a stay, and
certification of an interlocutory appeal on the following issues: "(1) Whether the
appellant may only obtain 'the disclosure of information' from the agency's employees
'through the Board's discovery process'; and (2) Whether the Board has the right to
enforce New Jersey's Rules of Professional Conduct." The Board sided with its AJ on
both issues, finding that an appellant may obtain relevant information "through any
lawful means other than the Board's discovery procedures," and that "the Board
has no authority to enforce New Jersey's Rules of Professional Conduct against an attorney
representative in proceedings before the Board." There are a number of cites provided
on both issues. Christofili v. Army, PH0752970216-I-3,
March 29, 1999.
- When the appellant appealed her removal for unacceptable performance under 5 U.S.C.
4303, she was initially unrepresented. At the prehearing conference she stipulated her
performance was unacceptable. Prior to the scheduled hearing, she retained an attorney who
objected to the stipulation, and also to the AJ's action in striking her client's
affirmative defenses for lack of evidence. The AJ refused to withdraw the stipulation, but
allowed the appellant to pursue her affirmative defense of disability discrimination
through testimony and legal argument on the evidence already submitted. He did not
reinstate her other claims of harmful error, race, or age, or permit the introduction of
new evidence on the disability claim. His initial decision upheld the agency action and
the appellant petitioned for Board review. The Board found it was error for the AJ to
strike her discrimination claims, and remand was necessary to allow full presentation of
evidence and argument on those affirmative defenses. However, it rejected the argument
that the stipulation must be withdrawn in the interests of justice. The attorney had
argued the stipulation went to an "ultimate issue in the appeal." The Board
found no authority for the proposition that it was therefore improper even if this were
true. The attorney also claimed the stipulation was improper because "the issue of
unacceptable performance was a question of law or a mixed question of law and fact."
The Board noted, "although the term 'unacceptable performance' is a term of art...,
whether a particular employee's performance meets this definition...is a question of
fact." The Board also rebutted additional arguments on bases limited to the facts of
the specific case. The AJ was wrong, however, to believe that the stipulation precluded
the appellant from introducing evidence that the standards were not reasonably attainable;
all the stipulation established was that she did not meet them. The discussion and cites
on stipulations are extremely useful reading. Wright v. Labor,
CH0432980134-I-1, May 12, 1999.
- The appellant prevailed before the U.S. Court of Appeals for the Sixth Circuit in a suit
claiming the agency's failure to hire him in 1987 was an act of discrimination on the
basis of a perceived handicap. The court remanded to the district court with instructions
to grant "the relief sought," which included retroactive employment. On remand,
the agency and the appellant settled. Under the settlement terms, the appellant received
retroactive employment, including back pay subject to normal deductions for taxes,
retirement, etc. The appellant also agreed that he would be separated for disability
within one month of being placed on the rolls, and would then apply for disability
retirement. The appellant agreed that these terms satisfied the relief ordered by the
court of appeals. OPM denied the appellant's application for disability retirement,
finding that the disability preceded his employment with the agency, and that he never
actually worked for the agency. OPM claimed that the settlement agreement created a
fictitious basis for title to a disability retirement, and was not binding on OPM. Neither
the AJ nor the Board agreed with this argument. The Board found, "the agreement
between the Postal Service and the appellant, to the extent that it provided for the
appellant's retroactive employment by the USPS, merely implemented the decision of the
court of appeals...The question is...whether issue preclusion or collateral estoppel
requires that the court's ruling concerning the appellant's entitlement to employment be
given effect by OPM and the Board...OPM argues that it is not collaterally estopped by the
Sixth Circuit's decision...because the issue there was not the same as the issue in this
disability retirement proceeding and because it was not a party to that case."
Agreeing that the "ultimate" issues were different in the two cases, the Board
nevertheless found that the Sixth Circuit ruled on whether the appellant should be deemed
to have been employed by the Postal Service. Since this was a necessary ruling in the
judgement of both that and the current proceeding, collateral estoppel applies.
Furthermore, the Board rejected the argument that OPM's absence as a party to the prior
case blocked application of collateral estoppel. "We find that OPM's position is
contrary to the general rule that there is privity between agencies or officers of the
same government so that a judgement on an issue in litigation between a party and one
federal agency is generally binding in relitigation of the same issue between that party
and another federal agency." Extensive discussion and cites on the concept of
"privity" follow. Taylor v. OPM, CH844E970689-I-1,
May 18, 1999.
- In his appeal of his demotion, the appellant claimed that written statements, affidavits
and deposition testimony taken by the agency in its investigation of his performance were
tainted by the agency representative's use of intimidation and coercion. He moved for
summary judgement on this issue, and the AJ granted his motion, taking a number of adverse
inferences against the agency as a sanction for the agency representative's "coercive
and intimidating communication with the witnesses." Based on the adverse inferences,
he found the agency did not make its case that the appellant's performance was
unacceptable. Upon review, the Board found the AJ's imposition of sanctions was an abuse
of his discretion. The Board noted, "in cases where an agency has imposed an adverse
action based on the charge of witness intimidation, the Board has not sustained that
charge in the absence of evidence showing that the appellant suggested that an employee
either not testify or not testify truthfully or that the appellant directed any personal
threats to an employee or intimated that adverse consequences would befall a particular
employee should testimony be unfavorable." It then looked at the allegedly
intimidating language in the representative's letter to the witnesses, and found
"that the AJ has read too much into the...letter." It remanded the case for
further adjudication on both the merits of the performance action and the appellant's
affirmative defenses. It went on to provide extensive instruction to the AJ about the
approach he was to take in determining whether any coercion had occurred and if so,
whether sanctions were warranted. In this regard, it reminded the AJ that, "an AJ's
sanctioning authority is limited to misconduct occurring during the appeal." The
misconduct alleged in this case took place during the agency's investigation, and if the
AJ finds it did occur, he may not impose sanctions, but must analyze whether it harmed the
appellant's substantive rights. The decision, read with Member Slavet's interesting
concurring opinion, provides good discussion and cites related to sanctions, and to the
evidentiary considerations when coercion is claimed by any party. Bernstein v. Army, CH0432980214-I-1, May 24, 1999.
- The agency removed the appellant for three reasons: (1) unavailability for duty; (2)
inability to carry firearms (a requirement of his job); and (3) failure to follow
regulations. At a prehearing conference, the agency withdrew the third charge. After the
hearing, the conviction which had caused his unavailability and inability to carry a gun
was reversed. The AJ entered the order vacating the conviction into the record, but found
the two remaining charges sustained and affirmed the removal. Upon review, the Board found
the charges were "inextricably intertwined with his criminal conviction, which has
now been vacated." It therefore reversed, finding the situation "analogous to
cases in which... an employee has been removed for physical inability to perform and fully
recovers during the pendency of the appeal." In two such cases, Morgan v. U.S. Postal
Service, 48 M.S.P.R. 607 (1991), and Street v. Army, 23 M.S.P.R. 335 (1984), the Board has
found removal does not promote the efficiency of the service if the underlying reasons no
longer exist when the Board exercises its de novo review authority in the appeal process,
regardless of whether the agency's action was proper when taken. Pawn v. Agriculture, SE0752960211-I-1, May 25, 1999.
- The appellant, who was an employee of the Defense Commissary Agency, was barred for six
years from entering the Army base where he worked. His employer, the Commissary Agency,
notified him that he would be in an absent without leave status until he reported for
duty. The appellant requested that his agency request a "limited bar" from the
Army Base Commander which would allow him access to the base only to work. The agency
informed the appellant that he could request a limited bar status which he did and, after
a five month absence, the appellant was allowed limited access so that he could work at
the commissary. He appealed, arguing that the agency had constructively suspended him
because it failed to follow the common practice of requesting a limited bar from the
Department of Army. The administrative judge agreed and found that the employee was not
absent by choice and that the agency had constructively suspended him. On review, the full
Board found that it would only have jurisdiction over the absence if the appellant can
demonstrate that the agency had a practice of requesting a limited bar from the Department
of Army to allow its employees to get to and from work. The case was remanded for
testimony on the existence of such a practice. Hollingsworth v. Defense Commissary
Agency, AT0752980210-I-1, June 2, 1999.
Contact: Linda Moody, er@opm.gov or (202) 606-2920.
- New Performance Management Web Pages. An abundance of performance management and
award-related information is now available on the Office of Personnel Management web site.
The new Performance Management Technical Assistance Center web pages contain material on
appraisal and awards issues, teams, measurement, and other performance-related topics.
Much of the material that is now electronically available was formerly published in our
bimonthly newsletter, Workforce Performance, or other performance management publications.
Also included on the web pages is a guide to legal citations that support the appraisal
and awards programs, as well as links to other web sites that provide related information.
The new web pages can be found at http://www.opm.gov/perform.
- Strategic Compensation Conference. (Yes, this is a conference for performance appraisal
and award specialists too!) STRATEGIC COMPENSATION: Improving Results Through Effective
Pay, Classification, and Performance Management will be held September 8-9, 1999, at the
Hilton Alexandria Mark Center (formerly the Radisson Mark Plaza Hotel) in Alexandria,
Virginia, seven miles south of Washington, DC. You will want to attend, especially if you
have attended the Performance Management Conference, Transformations, in previous years.
This conference will feature presentations on innovative compensation strategies and
related issues, including: performance appraisal, awards, measurement, classification,
broadbanding, current compensation strategies, and compensation experiences of non-title 5
agencies. The conference will focus on presenting information to help agencies improve the
performance management, compensation, and classification tools that support their
missions. The cost of the conference is $475, which includes two continental breakfasts,
luncheons, and coffee breaks.
The conference is designed to provide Federal managers and Human Resources
practitioners with updates, forecasts, and practical information about the total Federal
compensation environmental administration, performance management, and position
classification. The sessions will include both conceptual information for those who will
need to understand the issues and make decisions as well as practical applications and
lessons learned for those who will need to administer the new systems of the future.
For more information, please visit http:\www.opm.gov\strategicomp, call the Total
Compensation Policy Center at (202) 606-8486, email totalcomp@opm.gov, or fax your request
to (202) 606-2548.
- The activity was under agency instructions to change shift hours so that there would be
sufficient overlaps between shifts to provide incoming employees enough time to, e.g.,
pick up their equipment and arrive at their duty post in time to permit outgoing employees
to turn in their equipment by the end of the shift. When the union refused to consent to
changes of the agreement's provision on starting and quitting times, the activity
unilaterally implemented the agency directive about 75 days before the agreement was
scheduled to expire. The Authority held that the activity's action constituted a
repudiation of the agreement.
In discussing the termination of permissive subjects when the contract expires, the
Authority rejected the ALJ's recommendation that the notice to terminate must afford the
union an opportunity to bargain before the CBA's shift hours can be terminated. It said
the following:
A party's right to terminate unilaterally a permissive bargaining subject is not
contingent on first satisfying a bargaining obligation as to the substance, impact or
implementation of the change. No precedent to the contrary was cited by the Judge or the
parties. Moreover, this conclusion is supported by at least two policy reasons. First,
since the termination of the permissive subject can only become effective on the
expiration of an agreement, the Union would have the opportunity to bargain on the matter
as part of the renegotiation of the expired agreement. Second, attaching bargaining
obligations to termination of permissive bargaining provisions may discourage parties from
engaging in bargaining on permissive subjects.
Department of Justice,
Federal Bureau of Prisons, Danbury, CN and American Federation of Government
Employees, Council of Prison Locals, AFL-CIO, Local 1661, BN-CA-60527, February 26, 1999,
55 FLRA No. 37.
Contact: cplmr@opm.gov or (202) 606-2930.
- In this case, the employee received benefits from the Office of Workers' Compensation
Programs (OWCP) for an on-the-job injury that she sustained during her probationary
period. Before the completion of her probationary period, the agency removed her for
alleged unsatisfactory performance and lack of dependability. The employee filed an appeal
alleging that her removal was substantially related to her compensable injury. The full
Merit Systems Protection Board (MSPB) remanded the administrative judge's initial decision
ordering the administrative judge to find out whether the employee's removal was
substantially related to her compensable injury, whether the employee's restoration while
receiving OWCP benefits was so unreasonable as to amount to a denial of restoration, and
whether the employee was partially or fully recovered. On remand, the administrative judge
found that the employee was partially recovered and that her restoration was not so
unreasonable as to amount to a denial of restoration. The employee filed a petition for
review alleging that, on remand, the administrative judge failed to consider whether her
removal was substantially related to her compensable injury.
In the full Board's remand decision, the Board held that the administrative judge erred
in not providing the appellant with the specific information needed to establish Board
jurisdiction over a restoration appeal. Agreeing with the employee's allegations on
appeal, the Board held that the administrative judge erred by limiting the issues that
should have been developed on remand, and, therefore, denying the appellant a fair and
full adjudication of her appeal. Finding that the administrative judge failed to consider
whether the employee's compensable injury was the cause of or substantially related to her
removal, among other things, the full Board remanded the appeal so the record may be fully
developed. Walley v. Veterans Affairs,
DA0752960376-B-1, December 19, 1998.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- The appellant in this case alleged that his disability retirement was involuntary
because, among other things, the agency had failed in its obligation to accommodate his
disability. The administrative judge dismissed the appeal on the basis of the appellant's
statements in support of his disability retirement application and OPM's eventual approval
of the retirement. The full Board remanded the case for consideration of two recent
decisions, Nordhoff v. Navy, 78 MSPR 88 (1988) and Lamberson v. Veterans Affairs,
DE0752970456-I-1, January 20, 1999. With the Nordhoff decision, the Board allowed that if
an appellant can demonstrate that the agency failed to provide reasonable accommodation,
he or she may be able to demonstrate that the application for disability retirement was an
involuntary act. In Lamberson, the Board held that the approval by OPM of a disability
retirement does not prove that all avenues of possible reasonable accommodation were
considered by the agency, therefore, an appellant may still pursue a claim of disability
discrimination while in receipt of disability retirement benefits. Atkins v. Commerce, DC0752950806-I-2, March 12, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The Board held that the agency had erroneously considered the employee to be partially
recovered from his compensable injury rather than fully recovered. This confusion stemmed
from the medical information which accompanied his termination of benefits by the Office
of Workers' Compensation Program at the Department of Labor. The appellant's personal
physician had submitted documentation stating that the appellant could return to duty
part-time and suggested that the appellant should work somewhere other than with his
previous supervisors. The Office of Workers' Compensation Program ordered the appellant
examined by another physician who declared the appellant capable of working in his
previous job on a full-time basis but stated that the appellant needed to be assigned to a
different location. The agency, believing the medical statements indicated that the
appellant was only partially recovered, searched and found no position available in the
commuting area. On appeal, the Board found that, the agency should not have relied on the
statements from the medical personnel regarding the location of the appellant's placement
to determine the level of his recovery. The Board held that at the time the Office of
Workers' Compensation Policy determined him to be fully recovered, he became eligible for
consideration of positions agency-wide, regardless of the medical "suggestions"
regarding his placement. The case was remanded to the administrative judge to determine
whether or not the agency met its obligations to consider placement of an employee who
fully recovered after more than one year. Pugh v. Postal
Service, PH0353970019-1-2, April 7, 1999.
- The appellant alleged that its agency had violated his restoration rights following
partial recovery from compensable injury when it offered him a position which he believed
was so unreasonable that it constituted a denial of restoration. The appellant argued that
the job offer made by the agency required him to work the night shift and he had a
pre-existing psychological condition that rendered him unable to work at night. In
examining his claim, the Board noted that the Office of Workers' Compensation Program at
Department of Labor had terminated the appellant's benefits after finding that he refused
a suitable job offer (the night shift position). The Board found itself unable to provide
the requested relief in this case (that the job offer was so unreasonable that it
constituted an illegal denial of restoration) because to do so would be to overrule the
determination by the Office of Workers' Compensation Program that the job offer had been
suitable. The Board noted that the Federal Circuit Court had made clear that such a
determination was beyond the authority of the Board (see New v. Veterans Affairs, 142 F.3d
1259 (Fed. Cir. 1998)). Miller v. Postal Service,
CH0353980521-I-1, May 11, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The Board reversed OPM's decision to deny the appellant's application for disability
retirement under the Federal Employees' Retirement System (FERS). The appellant, a letter
carrier with the U.S. Postal Service, applied for disability retirement based on emotional
illness including depression, anxiety, paranoia, stress, irregular sleep patterns, and
breathing. On appeal, OPM argued that the evidence did not establish that the appellant's
medical condition was the cause of the appellant's performance and attendance
deficiencies. On review, the full Board referred to its holding in Marczewski v. OPM,
CH0831970823-I-1, November 25, 1998, where it held that job related stress resulting in
ailments that prevent an employee from performing the duties necessary in his job can
warrant the granting of disability retirement. In this appeal, the Board held that there
was no support for OPM's finding that the appellant's severe mental illness was actually
just an adverse reaction to receiving disciplinary action from the agency. Further, the
Board found that there was some support for the appellant's claim that his illness caused
his discipline. The Board ordered OPM to award disability retirement benefits. Peterson v. OPM, CH844E980547-I-1, March 11, 1999.
- The agency denied the appellant's request for law enforcement officer (LEO) retirement
coverage under the Civil Service Retirement System (CSRS), arguing that the appellant's
position as a Police Officer did not constitute LEO duties and responsibilities. In the
initial decision, the administrative judge reversed the agency's decision and awarded LEO
retirement. On appeal, the full Board reviewed the statute and regulations governing LEO
entitlement and cited related case law. The Board noted that although specific duties and
activities are indicative of LEO status (i.e., being authorized to carry a firearm,
interrogating witnesses and suspects, giving Miranda warnings, and making arrests), they
alone are insufficient to qualify for primary LEO retirement coverage. After reviewing the
appellant's position description (PD), the Board found that the PD did not show what
portion of time on a daily basis could be attributed to law enforcement duties. Further,
the Board found that the hearing testimony and evidence did not show that a majority of
time was spent for law enforcement duties or that there was frequent contact with criminal
suspects. In summary, the Board held that the appellant did not make a showing that a
substantial portion of work was spent for law enforcement duties. The Board reversed the
initial decision and affirmed the agency's denial of LEO coverage for the appellant. Nelson v. Department of the Navy,
DC0831970879-I-1, April 16, 1999.
- See related appeal to Nelson v. Department of the Navy, described above, involving the
full Board's decision to affirm the agency's denial of LEO retirement coverage: Hamlett, Jr., et al. v. Department of
Defense, NY0831970190-I-2, April 22, 1999.
- In a series of decisions issued March through May, 1999, the Board examined an agency's
right to deny an employee's request to withdraw a voluntary retirement/resignation agreed
to in a Separation Agreement authorized under the Federal Workforce Restructuring Act of
1994. Under the Act, agencies could provide a voluntary separation incentive payment
(VSIP) of up to $25,000 if employees voluntarily separated from service. At the General
Services Administration, these agreements were reached with employees in 1994 and 1995,
however, employees had the option of separating up to two years after the agreements.
Appellants in the cases listed below entered into the Separation Agreements and then,
prior to the effective date of their scheduled separations, asked to withdraw their
voluntary retirements/resignations. The agency denied the requests and appeals followed.
In its analysis, the Board found that the agency demonstrated the need to hold most
employees to their buyout commitments in order to successfully lower the agency's FT level
to meet necessary staff reductions. The Board recognized the agency's "hardship
policy" which provided for circumstances, such as the unexpected death of a spouse,
under which employees would be released from their Separation Agreement. In adjudicating
the appeals listed below, the Board examined the level of hardship presented by the
appellant and carefully considered whether or not the circumstances were unforeseeable at
the time the appellant entered into the Separation Agreement.
Paranee v. General Services
Administration, DC0752970451-I-1, March 9, 1999
Ward-Ravenel v. General
Services Administration, DC0752970548-I-1, March 9, 1999
Doyle,
Illsely, Lee, Gomes v. General Services Administration, BN0752970117-I-1,
BN0752970124-I-1, BN-0752-97-0132-I-1, BN-0752-97-0134-I-1, April 26, 1999
Griffin v. General Services
Administration, DA0752970336-I-1, April 28, 1999
Fleury v. General Services Administration, BN0752970114-I-1, April 28, 1999
Waite v. General Services
Administration, BN752970116-I-1, April 29, 1999
Devingo, Walker,
Spiro v. General Services Administration, BN0752970139-I-1, BN0752970140-I-1,
BN07520141-I-1, May 4, 1999.
Contact: Sharon Snellings or Martha Hoehn, er@opm.gov or (202)
606-2920.
- Rejecting both the DC and the 4th Circuits' "absolute" treatments of the
labor-management relations statute, the Supreme Court, in a 5-4 decision, remanded the
case to the FLRA to decide "whether, when, and where midterm bargaining is
required." Given the statute's ambiguity on this matter, the Court says that FLRA
"is entitled to considerable deference when it exercises its 'special function of
applying the general provisions of the Act to the complexities' of federal labor
relations."
Among the arguments rejected by the Court, was the agency's contention that §
7114(a)(4)'s reference to "arriving at" an agreement precludes bargaining
intended to "supplement" the parties' basic agreement. In rejecting the agency's
claim that interpreting the statute to give unions the right to engage in midterm
bargaining would give unions an incentive to engage in piece-meal bargaining, the Court
asked:
Without midterm bargaining . . . will it prove possible to find a collective solution
to a workplace problem, say a health or safety hazard, that first appeared midterm? The
Statute's emphasis upon collective bargaining as "contributing] to the effective
conduct of public business," 5 U.S.C. § 7101(a)(1)(B), suggests that it would favor
joint, not unilateral, solutions to such midterm problems.
The Court also rejected the dissenting opinion's view of § 7106(b): in the Court's
view, section 7106(b) deals with the scope of bargaining, not with the timing of
bargaining.
National Federation of
Federal Employees, Local 1309 v. Department of the Interior et al., and Federal Labor
Relations Authority v. Department of the Interior et al., Supreme Court, Nos. 97-1184 and
97-1243, March 3, 1999.
Contact: cplmr@opm.gov or (202) 606-2930.
- The agency found the employee to be unsuitable for employment based on a background
investigation by the Office of Personnel Management (OPM). Almost four months later, the
employee filed an appeal with the full Merit Systems Protection Board, requesting a waiver
of the filing deadline and reversal of the unsuitability determination. The administrative
judge dismissed the employee's appeal as untimely filed.
While the full Board upheld the administrative judge's untimely holding, the Board held
that the administrative judge failed to consider whether the employee's appeal was
misdirected, but otherwise timely. In Hemphill v. OPM, the Board held that, in certain
circumstances, good cause existed for a late filing when the delay was caused by a pro se
appellant who submitted a misdirected appeal within the filing period and then filed the
appeal with the Board as soon as he learned of his mistake. In this case, the employee,
while acting pro se, sent a letter to the agency contesting its insuitability
determination. The agency, in turn, did not forward the letter to the full Board. Based on
this information, the Board found that the employee's letter constituted misdirected, but
otherwise timely, appeal. The Board held that the agency failed in its obligation to
forward the employee's letter to the Board as an appeal. Accordingly, the Board vacated
the initial decision and remanded the appeal for adjudication on the merits. King v. Justice, DE0731980403-I-1, March 31, 1999.
- In response to the administrative judge's acknowledgment order for evidence showing that
the appellant's appeal was timely or good cause existed for its untimeliness, the
appellant claimed that his union misinformed him regarding his right to both file a
grievance and a timely appeal with the Merit Systems Protection Board (Board). In
addition, the appellant argued that the ambiguous language regarding time limits in the
agency's decision letter confused him. The administrative judge dismissed the appeal on
the basis that good cause for the untimely filing had not been shown. On review, the full
Board disagreed with the administrative judge's finding. The Board held that although the
agency's decision letter was technically correct, it nonetheless was confusing due to its
ambiguity. The holding was further supported by the fact that union officials were
obviously also confused by the language used in the decision letter. Considering the fact
that the appellant promptly filed an appeal with the Board on the same day he sought legal
advice and the reasonable confusion of the appellant and union officials, the Board found
that the appellant showed good cause for the untimely filing and exercised due diligence
in filing the appeal under the circumstances. Lourie v.
Postal Service, BN0752980061-I-1, May 12, 1999.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- The Board found that in this removal case, stemming from charges of AWOL and failure to
follow instructions, the appellant's allegation that he had been discriminated against
because of his status as a disabled veteran raised an issue of first impression. The Board
noted that it had not yet issued a decision involving an affirmative defense arising from
a Uniformed Services Employment and Reemployment Rights Act of 1994 claim. The Board
remanded the case to the administrative judge, finding that the judge must inform the
appellant of the relevant burden of proof and the nature of the evidence required to prove
the affirmative defense. Morgan v. Postal Service,
DE0752980136-I-1, March 1, 1999.
- The appellant was an active member of the Army Reserves when he became employed with the
Uniformed Division of the U.S. Secret Service in 1987. Agency policy within the Secret
Service prohibits employees from serving in the active reserves and, after several
notifications from that agency to the Army, the appellant was transferred to inactive
status. The appellant claimed that his placement in inactive status was a violation of his
rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 and
filed a complaint with the Department of Labor, which denied his complaint. On appeal to
the Merit Systems Protection Board, the Board found that the appellant's placement in
inactive status with the reserves was a denial of a benefit of employment but also found
that the appeal was untimely since the agency policy and the appellant's employment with
the agency predated the passage of the Uniformed Services Employment and Reemployment
Rights Act of 1994. The appellant appealed the Board decision to the U.S. Court of Appeals
for the Federal Circuit which found error in the Board's determination that the
appellant's status in the Army Reserves constituted a benefit of employment from his
employer, the U.S. Secret Service. Examining the language of the act, the court stated,
"This language makes clear that the 'benefit of employment' that cannot be lawfully
deprived by an employer is one that flows as a result of the person's employment by the
employer in question." The court, therefore, remanded the case to the Board to
determine if the appellant had been deprived of any benefit of employment (in the control
of the Secret Service) that occurred since the passage of the Act. Thomsen v. Treasury, Appeal No. 98-3255, (Fed. Cir., March,
5, 1999).
- A term employee who received a separation reduction in force notice resigned to accept
another job. Nine months later, he filed an appeal with the Board alleging that the
resignation was involuntary and claiming that, due to his status as a veteran, the agency
failed to select him for permanent appointments that had been available prior to the
reduction in force. The Board found that the appellant made a prima facie case of
discrimination under the Uniformed Services Employment and Reemployment Rights Act of 1994
in that he identified himself as a veteran and alleged that the agency filled four
permanent vacancies with non-veterans prior to the RIF. The case was remanded to the
administrative judge with instructions to inform the appellant of the evidence needed to
prove his claim of discrimination. Finally, the Board found the appellant to have timely
appealed since the Act did not specify any time limits for filing an appeal and the
appellant filed his appeal prior to the Board's 1997 regulations imposing an 180-day time
limit. Martir v. Navy, SF0351980517-I-1, March 31, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- Several FAA activities were guilty of unfair labor practices when they refused local
union requests for information that was needed to administer a seniority system that the
local unions were authorized to administer under the terms of the national agreement.
(Article 83 of the agreement stated, in part, that seniority shall be determined "by
the Union at the local level" for purposes other than RIF.) FLRA rejected the
agency's claim that only information related to current bargaining was disclosable.
"It is a longstanding principle," said FLRA, " that the scope of the
information entitlement under section 7114(b)(4) of the Statute extends to the full range
of representational activity, not just the context of pending negotiations between labor
and management." Federal
Aviation Administration and National Air Traffic Controllers Association,
MEBA/AFL-CIO, et al., AT-CA-70058, February 26, 1999, 55 FLRA No. 44.
Contact: cplmr@opm.gov or (202) 606-2930.
- In this case, the appellant claimed that his nonselection for promotion to the GS-14
level in February 1990 was in reprisal for whistleblowing. The Merit Systems Protection
Board agreed with the appellant and ordered the agency to promote him retroactively to
that date as an appropriate remedy under the Whistleblower Protection Act. The Board also
reviewed the Back Pay Act and its legislative history and concluded that MSPB has
authority under the Act to provide "make whole" relief in such cases to include
back pay to appellants for retroactive promotions. Back pay awarded. Morgan v. Energy, DE1221950221-R-1, February 10, 1999.
- In this case, the Merit Systems Protection Board overturned its administrative judge who
dismissed the appellant's individual right of action appeal without a hearing after
finding, among other things, that the appellant's alleged disclosures amounted only to
policy differences with his supervisor and that they only represented his own personal
speculative views and were general and conclusory. The Board determined that the
appellant's submission constituted a nonfrivolous allegation of Board jurisdiction and
thus he was entitled to a jurisdictional hearing. The Board noted that its judge had also
erred in determining the reasonableness of the appellant's belief that his disclosures
were protected under the Whistleblowers Protection Act--an analysis that can only be made
after an appellant has been afforded a jurisdictional hearing. Chianelli
v. EPA, DE1221980173-W-1, February 26, 1999.
- A Merit Systems Protection Board administrative judge found that the agency had reprised
against the whistleblowing appellant when it decided to reassign another employee to a
vacant position in order to block the appellant's assignment to that position during a
reduction in force. The full Board in Washington, DC (Vice Chair dissenting on the Board's
jurisdiction), however, found that the agency had shown by clear and convincing evidence
that it would have reassigned the other employee to the vacant position in question in the
absence of the appellant's protected disclosures. The Board thus denied the appellant's
request for corrective action. Schmittling v. Army,
CH1221960362-W-2, March 11, 1999.
- Noting that consequential damages provisions are waivers of sovereign immunity and that
the scope of provisions that might provide waive governmental liability must be
interpreted narrowly in favor of the sovereign, the Merit Systems Protection Board held
that the consequential damages provisions of the Whistleblower Protection Act do not give
the Board authority to award nonpecuniary damages for mental distress. The Board found no
legislative history supporting a conclusion that the Act authorized damages for pain and
suffering. In the current case, the appellant had wanted damages for mental distress
related to the agency's reprisal against her for being a whistleblower. Kinney v. Agriculture, SE1221960569-P-1, March 16, 1999.
- Because the appellant had not shown that he had raised his claim of whistleblower
reprisal before the Office of Special Counsel, the Merit Systems Protection Board (MSPB)
dismissed his individual right of action appeal for lack of jurisdiction. In dicta, the
Board noted that there is no requirement that an agency official change a decision once he
or she learns that a person has engaged in whistleblowing and that, in cases where the
agency takes an action before the disclosure, the Board may find that the disclosure was
not a contributing factor in the action. Finston v. HCFA,
CH3443980562-I-1, March 17, 1999.
- The appellant was a member of the Senior Executive Service when he accepted voluntary
retirement and then complained that the agency had denied him performance bonuses and had
reassigned him in retaliation for whistleblowing. The agency unsuccessfully argued that it
could only "recommend" to higher levels in the agency whether bonuses could be
paid and therefore it was not liable under the Whistleblower Protection Act for the
appellant's failure to receive bonuses. The Board noted its responsibility in such cases
is to review the agency's actions or inactions and not to determine which agency official
is responsible for an action challenged. The Board remanded the case to one of its
regional offices to conduct a hearing on the merits of the appellant's claims. Worthington v. DOD, DC1221980644-W-1, April 26, 1999.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
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. Oral arguments in the case were
heard by the court on March 3, 1999.
On May 14, 1999, the court overturned the Board’s decision, finding that
the Board failed to properly evaluate whether the appellant had a reasonable belief that
his whistleblowing disclosures evidenced gross mismanagement by the agency. The court
commented that "if personnel management is to be undone by the Board, which of course
has no responsibility for the results of its orders, the bases for its action must be
thoroughly established." In this regard, the court stated that the proper test for
determining whether an individual has a "reasonable belief" is: "could a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee reasonably conclude that the actions of the government
evidence gross mismanagement?" The court noted that a purely subjective perspective
of an employee is not sufficient even if shared by other employees and further noted that
the Whistleblower’s Protection Act "is not a weapon in arguments over policy or
a shield for insubordinate conduct." The court remanded the case back to the Board
for an "evenhanded development of the record." 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. Oral arguments in the case were heard by
the court on January 6, 1999.
On May 20, 1999, the court agreed with the Office and held that the Board lacks
independent authority to set penalties when it sustains some but not all of an
agency’s disciplinary charges. While noting that the Board may independently reject
those agency penalties it finds abusive, the court said the Board "cannot disconnect
its penalty determination from the agency’s managerial will." In specific cases
where several charges are brought and the most egregious charges are sustained, the court
said that it is reasonable to presume that the agency itself would have imposed the same
penalty on the basis of the sustained charges that it chose on the combined charges. The
court stated that the limit on the Board’s mitigation authority is that there be a
nexus between the agency’s penalty choice and that of the Board. This nexus
requirement is met: (1) when all charges are sustained, the Board may mitigate to a
maximum reasonable penalty when the agency’s original penalty is too severe, (2) when
some charges are not sustained, the Board may mitigate to the maximum reasonable penalty
so long as the agency has not indicated that it desires a lesser penalty be imposed for
fewer charges, and (3) when the agency desires a lesser penalty, the Board must permit the
agency to impose the lesser penalty. The Board may accomplish this third requirement by
either remanding the case to the agency or through "some other procedure pursuant to
its rulemaking authority... that would, for example, set some reasonable time limit for
the agency to redetermine a penalty on the sustained charges so as to ensure that the
agency has sufficient opportunity to consider its options, while also ensuring that
resolution of an employee’s case is not unduly prolonged." The court remanded
the case to the Board for further proceedings consistent with the court’s decision.
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.
6. Office
of Special Counsel v. Department of Veterans Affairs, CB1214940005-C-1, April 26,
1999.
The Merit Systems Protection Board (MSPB) found that the Department of Veterans
Affairs reprised against the employee in this case for making a disclosure protected by
the Whistleblower Protection Act. The nature of the reprisal was a proposed reassignment
to Los Angeles from his job in the state of Washington, an actual reassignment to New
York, a failure to reassign him to Houston as he requested, and his proposed removal for
disability (this proposal was stayed pending consideration of the employee’s claim of
reprisal). The employee asked for and received approval to be carried in a sick leave
status after being reassigned to New York. After about a year, he went from a sick leave
status to workers compensation status and finally to an early voluntary retirement. The
Office of Special Counsel (OSC) argued before the Board that as corrective action for the
prohibited personnel practice (reprisal for whistleblowing), the employee should be
provided back pay for the period of time he was on workers compensation and that sick
leave used after his reassignment should be reinstated to him. The latter action would
require recomputation of his annuity, using the credited sick leave. The Board agreed with
OSC’s arguments and ordered the corrective action requested. On June 1, 1999, the
U.S. Office of Personnel Management (OPM) sought reconsideration of the Board’s
decision on the basis that OPM believes that the remedy violates the Back Pay Act and is
inconsistent with earlier decisions by the Board. With regard to the Back Pay Act,
OPM’s longstanding governmentwide regulations at 5 CFR Part 550 interpreting the Act,
which are entitled to administrative and judicial deference, provide that an employee must
be ready, willing, and able to work in order to receive the remedy of pay and benefits
under the Act. Specifically, the regulations state that when computing back pay, an agency
may not include "any period during which an employee was not ready, willing, and able
to perform his or her duties because of an incapacitating illness or injury."
Clearly, the appellant was not able to work during the period he received workers
compensation and during the sick leave period. Contact: er@opm.gov or (202) 606-2920.
A Handbook for Measuring Employee Performance:Aligning Employee
Performance Plans with Organizational Goals
OPM’s Performance Management and Incentive Awards Division has a new handbook
that will be extremely helpful to all performance managers. "A Handbook for Measuring
Employee Performance: Aligning Employee Performance Plans with Organizational Goals"
replaces OPM’s former publication entitled "Developing and Evaluating Elements
and Standards."
This handbook is designed for Federal supervisors and employees and presents an
eight-step process for developing employee performance plans that are aligned with and
support organizational goals. It also provides guidelines for writing performance elements
and standards that not only meet regulatory requirements, but also maximize the capability
that performance plans have for focusing employee efforts on achieving organizational and
group goals. The handbook provides advice and guidance for writing standards that can be
used for a sustainable performance-based action.
The methods presented in the handbook are designed to develop elements and standards
that measure employee and work unit accomplishments rather than other kinds of measures
that are often used in appraising performance, such as measuring behaviors or
competencies. Although this handbook includes a discussion on the importance of balancing
measures, the main focus here is to develop accomplishment measures. Consequently, much of
the information presented in the first five steps of this eight-step process applies
mainly when supervisors and employees want to measure results. However, the material
presented in Steps 6 through 8—about developing standards, monitoring performance,
and checking the performance plan—apply to all measurement approaches.
The handbook has four chapters plus appendices:
- Chapter 1 gives the background and context of performance
management that you will need to understand before beginning the eight-step process;
- Chapter 2 defines accomplishments— which is key to using
this handbook successfully;
- Chapter 3 includes a detailed description of the eight-step
process for developing employee performance plans that are aligned with and support
organizational goals; and
- Chapter 4 provides study tools, including a follow-up quiz
and a quick reference for the eight-step process.
- The appendices contain example standards for appraisal
programs that use either five, three, or two element levels to appraise performance.
The handbook will soon be available for downloading on the OPM Performance Management
Technical Assistance Center web pages at http://www.opm.gov/perform, so keep checking the
web site. For now, to get a copy call the Performance Management and Incentive Awards
Division at 202-606-2720.
- Atkins v. Commerce
- Bernstein v. Army
- Chianelli v. EPA
- Christofili v. Army
- Department of
Justice, Federal Bureau of Prisons
- DeVall v. Navy
- Devingo,
Walker, Spiro v. General Services Administration
- Doyle,
Illsely, Lee, Gomes v. General Services Administration
- Els v. Army
- Erickson v. Treasury
- Federal Aviation Administration and National Air Traffic Control
- Finston v. HCFA
- Gaffney, Tamburini, and
Pace v. Army
- Griffin v. General
Services Administration
- Haebe v. Justice
- Hamlett, Jr., et
al. v. Department of Defense
- Hogan v. Navy
- Hollingsworth v.
Defense Commissary Agency
- Jaramillo v. Army
- Joyce v. Department of
the Air Force
- King v. Justice
- Kinney v. Agriculture
- Lourie v. Postal Service
- Martir v. Navy
- Miller v. Postal Service
- Morgan v. Energy
- Morgan v. Postal Service
- National
Aeronautics and Space Administration
- National
Federation of Federal Employees, Local 1309
- Nelson v. Department of the
Navy
- Office
of Special Counsel v. Department of Veterans Affairs
- Pawn v. Agriculture
- Perrine v. General
Services Administration
- Peterson v. OPM
- Pugh v. Postal Service
- Schmittling v. Army
- Schoemer v. Army
- Special
Counsel v. Merrick Malone and Margie Utley
- Taylor v. OPM
- Thomsen v. Treasury
- U.
S. Information Agency and American Federation of State
- Vesser v. Office of
Personnel Management
- Waite v. General
Services Administration
- Walley v. Veterans Affairs
- Ward-Ravenel
v. General Services Administration
- West v. Gibson
- White v. Air Force
- Worthington v. DOD
- Worthington v. United States
- Wright v. Labor
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 Branch, 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.
Created 21 April 2000
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