MSPB: Issues of performance and misconduct may overlap #precedentialdecision

 

This is a Precedential Court Decision for readers tracking precedence and types of cases.
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-1686
MSPB Docket Number: DE-0752-19-0297-I-2
Issuance Date: October 29, 2021
Adverse Actions; Performance and Misconduct; Harmful Error; Penalty/Frequently Repeated Offenses

The petitioner was a Passport Specialist for the agency, who in 2016 served a 3-day suspension for making inappropriate comments at work, and in 2018 served a 5-day suspension for failure to follow instructions and failure to protect personally identifiable information. Nevertheless, the petitioner received a fully successful performance rating for calendar year 2018.

On May 9, 2019, the agency removed the petitioner based on four charges:

(1) failure to follow instructions (eleven specifications), (2) failure to protect personally identifiable information (one specification), (3) failure to follow policy (five specifications), and (4) improper personal conduct (one specification). Some of this conduct occurred during the 2018 rating period.

The petitioner filed a Board appeal, and the administrative judge issued an initial decision affirming his removal. The administrative judge credited the agency’s distinction between issues of performance and misconduct, the former involving employees who “can’t do” and the latter involving employees who “won’t do.” Finding that the charges “presented an issue of misconduct more than performance,” the administrative judge declined to consider the 2018 performance evaluation as a rebuttal to the charges. He found that the agency proved its charges and established nexus and that the removal penalty was reasonable under the circumstances. The initial decision became final, and the petitioner sought judicial review.

Holding: Issues of performance and misconduct may overlap. The existence of a fully successful performance evaluation does not necessarily bar discipline for matters covered by that evaluation, but it still must be considered in determining whether the employee committed the offenses charged and the reasonableness of the penalty imposed.

1. The court explained that performance and conduct issues “may overlap.” In this case, the petitioner’s performance plan required that he follow instructions, and some of the specifications under the failure to follow instructions charge occurred during the period covered by the 2018 performance evaluation. Therefore, the administrative judge should have considered that evaluation in assessing that charge.

2. Nevertheless, the administrative judge’s failure to consider the 2018 performance evaluation did not constitute reversable error because the petitioner failed to show that it likely affected the outcome of the Board’s decision. The petitioner did not dispute that any of the events underlying the charges occurred, and five of the eleven specifications of failure to follow instructions occurred outside the 2018 performance year.

3. Even assuming that the administrative judge erred in failing to consider the 2018 performance evaluation in assessing the penalty, the petitioner did not show harmful error. First, the deciding official considered the evaluation in reaching his penalty determination, in the context of his thorough Douglas factor analysis. Second, even if the evaluation suggested that the 2018 specifications of failure to follow instructions were not serious in and of themselves, their seriousness was magnified in light of the petitioner’s prior discipline for similar infractions and his continued failure to follow instructions after the 2018 appraisal period ended.

Read in full here.

 

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A Cautionary Tale: Divorce, Death and Survivor Benefits

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Via Beckstead v. Office of Personnel Management, 2020-1884 (Fed. Cir. Jan. 7, 2021) (MSPB Docket No. DE-0831-20-0119-I-1):
The court affirmed the administrative judge’s affirmance of OPM’s final decision denying the petitioner former spouse survivor annuity benefits. The court found that the survivor annuity election made during the petitioner’s marriage with the decedent terminated upon their post-retirement divorce and, despite the decedent’s receiving notice as required by statute of the election rights and obligations, no valid election was made or valid court order was issued granting the petitioner a former spouse survivor annuity.
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Background: Mrs. Beckstead was married to Lynn Beckstead (“Mr. Beckstead”) on February 4, 1965.
In 1971, Mr. Beckstead became a federal employee covered under the Civil Service Retirement System.
In 2007, he applied for retirement and elected a survivor annuity for his spouse, Mrs. Beckstead. Each year after Mr. Beckstead’s retirement, the Office of Personnel Management (“OPM”) sent him an Annual Notice of Survivor Annuity Election Rights (“Annual Notice”).
On December 3, 2009, Mr. and Mrs. Beckstead divorced. A state court in New Mexico issued a Default Decree of Dissolution of Marriage (“Divorce Decree”), which stated in relevant part that Mrs. Beckstead was entitled to:
Exactly one half (1/2) of any and all retirement benefits, 401(k) or other retirement account of [Lynn]. Such account(s) to be divided by Qualified Domestic Relations Order (QDRO). 
SAppx. 10. The Divorce Decree did not specifically provide for a survivor annuity, and no QDRO was issued while Mr. Beckstead was alive. Following the divorce, Mr. Beckstead did not notify OPM of the divorce and he never made a new election of a survivor annuity for Mrs. Beckstead.
Mr. Beckstead died on July 9, 2018, and Mrs. Beckstead applied for survivor annuity benefits thereafter. OPM informed Mrs. Beckstead that her application could not be processed because her Divorce Decree did not include the referenced QDRO.
On January 18, 2019, more than seven months after Mr. Beckstead’s death, the New Mexico state court issued a QDRO. SAppx. 24–26.
On March 19, 2019, OPM informed Mrs. Beckstead that she was not entitled to survivor annuity benefits because the QDRO was issued after Mr. Beckstead’s death. OPM then reconsidered and reversed its decision on the basis that the agency had failed to properly notify Mr. Beckstead of his rights to preserve the survivor annuity benefit after a divorce. SAppx. 32. Upon further review, however, OPM concluded that Mr. Beckstead had received notices informing him of his rights, but he did not elect a survivor annuity for Mrs. Beckstead after their divorce. Thus, on December 6, 2019, OPM confirmed its initial finding that Mrs. Beckstead was not entitled to former spouse survivor annuity benefits. SAppx. 35–36.
Read in full here (pdf).

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MSPB Precedential Case: The Statutory Definition of a “Widow”

Posted: 2:14 am ET
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This is a precedential case worth noting via the U.S. Merit Service Protection Board:

Petitioner: Amanda E. Becker
Respondent: Office of Personnel Management Tribunal: U.S. Court of Appeals for the Federal Circuit Case Number: 2016-1365
MSPB Docket No. CH-0831-15-0280-I-1
Issuance Date: April 7, 2017

Case Report – April 14, 2017

The appellant filed an application with the Office of Personnel Management (OPM) seeking survivor benefits under the Federal Employees’ Retirement System (FERS) based on the Federal service of her late husband. OPM denied her application on the basis of its finding that she did not meet the statutory definition of a “widow” who may receive such benefits, which is defined at 5 U.S.C. § 8441(1) as the surviving wife of an employee who was married to the employee for at least 9 months immediately before his death, or who is the mother of children by that marriage. The appellant appealed OPM’s decision, and the administrative judge affirmed. During the proceedings, the administrative judge denied the appellant’s request for discovery regarding instances in which OPM may have waived the 9-month requirement and regarding whether OPM provided her late husband notice regarding the 9-month requirement. The appellant appealed the decision to the court, arguing that 5 U.S.C. § 8441(1) was unconstitutional and that the administrative judge improperly denied her discovery requests.

Holdings:

(1) The court found that 5 U.S.C. § 8441(1) does not violate the Constitution because there is a rational basis for Congress to use an imprecise set of criteria as a proxy to ensure that the marriage was entered into for reasons other than the desire to shortly acquire benefits.

(2) The court found that the administrative judge did not abuse her discretion in denying the appellant’s discovery requests because: (a) she had no reasonable belief that OPM has previously waived the 9-month requirement and, even if OPM had previously done so, it would still be required to follow the statutory requirements when reviewing the appellant’s application; and (b) there was no dispute that the appellant’s late husband submitted all of the election forms to ensure that she received survivor benefits and, even if he was unfamiliar with the statutory requirements contained in the election forms he signed, such fact would not provide a basis for waiving the requirements.

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FSGB and MSPB: Majority of the Grievance Cases Do Not Prevail

Posted: 12:21 am ET
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Via State/OIG’s archive: Review of the Department of State Disciplinary Process:

Foreign Service and Civil Service employees have the right to file a grievance to contest the penalty in the letter from the deciding official. Initially, the Grievance Staff reviews grievances for the Department and reexamines all case materials. The Grievance Staff reviews about 130 Foreign Service and 20 Civil Service grievances of all types each year. A deputy assistant secretary for DGHR makes a determination on each grievance. That agency-level decision can be further appealed through separate Foreign Service and Civil Service processes. Under 3 Foreign Affairs Manual (FAM) 4430, “upon request of the grievant, the agency shall suspend its action” in cases involving suspension, separation, or termination during the review process. This provision applies only to the Foreign Service.
[…]

Foreign Service Appeals Process

A Foreign Service employee may appeal an agency-level decision to the Foreign Service Grievance Board (FSGB), an independent grievance appeals forum established through the Foreign Service Act of 1980. Foreign Service employees facing separation on grounds of misconduct have a right to an automatic hearing before the FSGB. Attorneys or American Foreign Service Association representatives may represent the employee. The FSGB may uphold the agency-level decision, mandate a lesser penalty, or dismiss the case entirely. In 2013, it took an average of 43 weeks for the FSGB to process a case from filing date to final decision.

Foreign Service employees may request and the FSGB may grant “interim relief” (sometimes called “prescriptive relief”) to suspend disciplinary action while an appeal is in process.

The 1995 OIG audit of the FSGB, in addressing the perception that the FSGB routinely overturns the Department’s disciplinary actions, found that “the grievance system is used by a relatively small number of employees, the majority of whom do not prevail.”10 Data from the 2008–2013 FSGB annual reports indicate that this conclusion remains valid. During this 6-year period, the FSGB adjudicated 63 appeals of disciplinary actions. The FSGB partially upheld and partially reversed the Department in 15 cases and fully reversed the Department in only 4 cases. In eight cases, the nature of the FSGB’s decision is not reported in the annual report.

Civil Service Appeals Process

Civil Service employees suspended for more than 14 calendar days or removed or reduced in grade or pay may appeal to the Merit Systems Protection Board (MSPB), an independent quasi-judicial agency established in 1979 to protect Civil Service employees. Employees covered by a collective bargaining agreement with the American Federation of Government Employees or the National Federation of Federal Employees may file a grievance under the agreement or appeal to the MSPB, but not both. The Civil Service appeals process has no mechanism for interim relief.

MSPB data concerning cases originating in the Department do not disaggregate appeals related to disciplinary matters from appeals of all types. However, relatively few Civil Service cases of all types originating in the Department reach the MSPB. In FY 2012, the MSPB received 29 appeals from Department Civil Service employees: 21 were dismissed for lack of jurisdiction or timeliness, and 4 were settled. The MSPB adjudicated only four and upheld the Department in all cases.

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Rainey v. @StateDept: Attention Whistleblowers — Rules and Regs Are Not Laws

Posted: 2:14 am ET
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Last year, we blogged about a decision by the Merit Systems Protection Board concerning a Whistleblower Protection Act case where a State Department employee, Timothy Allen Rainey, alleged that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations (FAR) and training certification procedures. See Rainey v. State Department: “Right-to-Disobey” (Precedential Decision).

On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board ruling in a precedent-setting opinion — agreeing that the term “a law” in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.

In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor’s order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. §  2302(b)(9)(D), which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word “law” in the “right-to-disclose” provision of the WPA, 5 U.S.C. §  2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term “a law” in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).

The Court writes:

Dr. Rainey makes a final argument that the FAR is a particularly important regulation that has the full force and effect of law and therefore should be regarded as “a law” within the meaning of section 2302(b)(9)(D) even if other regulations do not qualify as “laws” for purposes of that statute. The first problem with that argument is that substantive agency regulations that are promulgated pursuant to statutory authority typically have the “force and effect of law,” see Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979), so that feature does not distinguish the FAR from other more quotidian legislative rules. The second problem with the argument is that, as noted, there is nothing in the section 2302(b)(9) that even hints at a distinction between important regulations and less important regulations; to the contrary, the statute distinguishes between “a law” and “law, rule, or regulation,” and the FAR clearly falls on the “regulation” side of that divide.

What now?  Court says “Congress is free to alter the scope of the statute”:

Dr. Rainey’s arguments are heavy on policy reasons why Congress likely would not have wanted to confine the scope of section 2302(b)(9)(D) to statutes. Those policy considerations are not without force, and it may be that the statute should be extended to cover rules, regulations, and other sources of legal authority. If so, Congress is free to alter the scope of the statute. But we are not so free. Between the restrictive language chosen by Congress and the closely analogous decision of the Supreme Court in MacLean, we are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation.

This is bad.  So basically State Department employees will not be able to get whistleblower protection for refusing orders that violate rules or regulations in the Foreign Affairs Manual/Foreign Affairs Handbook.  If a supervisor orders an employee to break the rules/regs in the FAM/FAH, the employee must comply or be subjected to disciplinary action/s?  How nutty is that?

Click here to contact your congressional representatives.

Read the ruling below or read it via mspb.gov here (PDF). 

 

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Rainey v. State Department: “Right-to-Disobey” (Precedential Decision)

Posted: 1:49 am EDT
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The following is a decision from the Merit Systems Protection Board, and considered a precedential decision,  one that can be cited as authoritative going forward.

Appellant: Timothy Allen Rainey
Agency: Department of State
Decision Number: 2015 MSPB 49
MSPB Docket No.: DC-1221-14-0898-W-1 Issuance
Date: August 6, 2015
Appeal Type: Individual Right of Action Action
Type: Retaliation

Whistleblower Protection Act Jurisdiction

The appellant filed an Individual Right of Action appeal alleging that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations and training certification procedures. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s claim of retaliation based on refusal to violate acquisition regulations and training procedures did not amount to a nonfrivolous allegation that he refused to obey an order that would require him to violate a law.

Holding: The Board affirmed the initial decision.

1. While employees are protected from whistleblower retaliation for refusing to obey an order that would require a violation of the law under 5 U.S.C. § 2302(b)(9)(D), the Supreme Court made clear in Department of Homeland Security v. MacLean,135 S. Ct. 913 (2015) that this protection does not extend to violations of an agency regulation or policy.

The MSPB assumed the employee appeals function of the Civil Service Commission and was given responsibilities to perform merit systems studies and to review the significant actions of OPM. State Department’s civil servants have appeals rights in the MSPB.  The employee also has a right to request review of the final decision by the United States Court of Appeals for the Federal Circuit.

Text of full ruling is here – 2015 MSPB 49 (pdf).

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