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WHISTLEBLOWER PROTECTION ACTSusanne T. Marshall, Member of the Merit Systems Protection Board, denied the Office of Special Counsel's (OSC) request for a fourth extension of the stay in this case of the appellant's termination during probation. Even though the agency had not objected to the stays, Member Marshall noted that it is the Board's obligation to "press" OSC to present corrective action cases in a timely manner. She concluded that, in the circumstances of the case, the previously-granted stays of the termination for more than five months was sufficient for OSC to complete its work. The appellant in this case argued that his termination was in reprisal for a grievance he had filed earlier. Special Counsel v. Department of Navy, CB1208990062-U-5, January 10, 2000.The Merit Systems Protection Board determined that the appellant in this case, a Social Security Administration Administrative Law Judge, did not make protected disclosures under the Whistleblower Protection Act when he complained about the amount of time it took for his agency to remove another administrative law judge from her position in his agency for being disruptive. The Board commented that, without more, the appellant couldn't "elevate" his disagreement with the agency's alleged delay in taking action against another employee into a "reasonable belief" that the agency was guilty of an "abuse of authority." Thus, the Board determined that the appellant's failure to be selected for a Chief Administrative Law Judge position was not in reprisal for his alleged whistleblowing. Pulcini v. Social Security Administration, DC1221980447-W-1, October 5, 1999. The appellant claimed the agency delayed processing his disability retirement in reprisal for his disclosures about environmental conditions at his work site. The Merit Systems Protection Board, however, concluded that the employee was unable to show that the personnel involved in the disability matter were aware of the appellant's whistleblowing and thus could not have reprised against him. The Board also concluded that the agency proved by clear and convincing evidence that the agency's processing of his Office of Workers' Compensation claim and his placement on Leave Without Pay would have been taken in the absence of the appellant's whistleblowing. Easterbrook v. Department of Justice, SF1221980701-W-1, January 18, 2000. The Merit Systems Protection Board's majority dismissed the appellant's petition for review of an administrative judge's decision that the appellant's complaints to his second-level supervisor about a number of perceived deficiencies in that supervisor's organization did not constitute protected disclosures under the Whistleblower Protection Act. The majority came to this conclusion because the complaints were to the person who had authority to correct the alleged deficiencies rather than someone outside the chain of command. Vice Chair Slavet concurred in the result but expressed strong and detailed reservations about two precedent decisions of the Court of Appeals for the Federal Circuit supporting this result. While noting that the Board is bound by the these decisions, Willis v. Department of Agriculture (141 F.3d 1139) and Horton v. Department of the Navy (66 F.3d 279), she commented that they are not consistent with the plain text of the Whistleblower Protection Act and its legislative history. Vice-Chair Slavet opined that Congress "did not intend" that a would-be whistleblower suspecting his supervisor of wrongdoing must take his concerns outside of the chain of command in order to gain protection. Huffman v. Office of Personnel Management, DC1221990178-W-1, December 14, 1999. WORK JURISDICTION#1. Work jurisdiction over laxative insertion. The FLRA found that a proposal requiring that only licensed staff be permitted to insert laxative suppositories is nonnegotiable because it affects the right to assign work. It rejected the union's claim that the proposal dealt with methods and means. [T]he requirement to assign only licensed employees the duty of administering certain medication involves who will perform work, not the way in which the work is performed or the tools and devices that may be used to accomplish the work.#2. Classification of positions. A proposal requiring the agency to change the title of employees from nursing assistants to nursing technicians, and to increase the employees' grades accordingly, is outside the duty to bargain because it deals with the classification of positions. #3. Staffing outside the unit. A proposal requiring the agency to increase the number of nursing assistant FTEs and to decrease the number of RNs at the activity is outside the duty to bargain because it would directly affect the conditions of employment of employees represented in a different bargaining unit. (The RNs are represented by the Georgia Nurses Association, a unit different from that represented by AFGE 1985.) #4. Skills test. A proposal requiring the agency to administer a test in order to determine whether employees are competent to administer suppositories interferes with the rights to assign employees and assign work, which include establishing the qualifications and skills needed for a position or duties and judging whether particular employees meet those qualifications. AFGE Local 1985 and Department of Veterans Affairs Medical Center, Dublin, Georgia, 0-NG-2409, November 30, 1999, 55 FLRA No. 184. CURRENT INTERVENTIONSListed below are decisions currently 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. Von Zemensky v. Department of Veterans Affairs, PH0351980078-I-1, April 28, 1999. On July 19, 1999, OPM intervened in a case involving the rights of Veterans' Affairs health care professionals hired under title 38 who are separated due to reductions in staff levels and/or resources. The initial decision which prompted OPM's intervention held that the agency's termination of the appellant's services due to a reduction in resources was invalid because the agency failed to provide the employee with reduction in force procedures established under 5 USC 3501-04 and 5 CFR part 351. This decision was issued following a remand from the full Board in February 1999 in which the Board held, in response to an interlocutory appeal, that title 38 employees were entitled to reduction in force procedures and rights laid out under title 5. OPM finds no reference within the reduction in force statute or the implementing regulations that would provide coverage for title 38 employees. Congress excluded those employees from the coverage of most of the personnel provisions that cover other employees, including RIF procedures and protections, and the current decision creates an erroneous interpretation of statute and OPM regulations. Contact: er@opm.gov or (202) 606-2920. 2. Calvin D. Uhlig v. Department of Justice, MSPB Docket No. SE0752950241-A-2, November 24, 1999. This case is one of those stayed a few years ago while the Supreme Court decided in Lachance v. Erickson that Federal agencies could discipline employees for misconduct and also for lying about the misconduct in the course of an agency investigation about the misconduct. In 1995, the appellant in Uhlig was removed from his Special Agent's position at the FBI for misuse of a vehicle and lying in an inquiry about the misuse. A Merit Systems Protection Board administrative judge upheld the vehicle misuse charge but dismissed the lying charge under Board case law later overturned by the Supreme Court. The case law had said that agencies could not charge an employee both with misconduct and lying about the misconduct. The agency went ahead with the lying charge because it knew that the Office of Personnel Management (the Office) was in the process of challenging the Board's position on this issue. The judge mitigated the removal to a 30-day suspension. The judge's decision was upheld by the full Board. Because the appellant retired before the Supreme Court's decision, the Board decided last July that the case was moot and that the appellant could request attorney's fees. As a result, the judge had never ruled on the lying charge and decided the attorney's fees only on the sustained charge of vehicle misuse and its mitigated penalty. The judge determined that the agency "should have known" it couldn't prevail on the lying charge because of the Board case law in effect at the time it removed the appellant. The judge awarded fees of more than $60,000. The agency has filed a petition for review with the full Board challenging the award of attorney's fees. In addition, the Office has filed a petition for review arguing that the appellant was not the "prevailing party" for purposes of being eligible for attorney's fees. The Office also argued that the judge's decision to award fees in the "interests of justice" is in error and violates law and Board precedent. Contact: er@opm.gov or (202) 606-2920. 3. Lachance v. White, MSPB Docket No. DE1221920491-B-1, August 25, 1994. On February 22, 2000, the Supreme Court denied the appellant's petition for writ of certiorari in this long-running whistleblower case. The Office of Personnel Management argued successfully before the Court of Appeals for the Federal Circuit that the Merit Systems Protection Board is required to use an objective rather than a subjective test in determining whether a potential whistleblower's disclosures of wrongdoing are "protected disclosures" under the Whistleblower Protection Act. The Federal Circuit overturned the Board's holding that an employee's subjective belief together with the subjective beliefs of others is sufficient to show that the employee had a "reasonable belief" that a disclosure evidences wrongdoing as required under the Act. Contact: er@opm.gov or (202) 606-2920. TOPICAL OVERVIEWCorrecting Improper Appointments or Promotions; the Role of Due ProcessQ. If an appointment or promotion was contrary to law, or obtained by fraud or misrepresentation, must the agency provide Chapter 75 due process when correcting it? A. Probably, if the employee has actually been appointed and entered on duty. Where the appointee has not completed all acts necessary for appointment to be considered final, s/he is not an employee with due process rights: see NTEU v. Reagan, 663 F.2d 239 (D.C. Cir. 1981). However, once the appointment/conversion/promotion has occurred, any action to demote or remove the individual must follow due process if it is to be valid. "Contrary to law" Several key cases were issued the same day: Travaglini v. Dept. Of Ed. 18 MSPR 127 (1983) [modified] 23 MSPR 417 (1984)]. Appellant had lacked the 3 years of specialized experience required for the GS-12 job into which the agency converted her (under Ramspeck) and OPM directed corrective action. The demotion to the GS-9 job for which she qualified was overturned by the Board on appeal because she was an employee within the definition of 5 U.S.C. 2105, and therefore entitled to the protections of Chapter 75, which she had not received. Padilla v. EEOC, 18 MSPR 121 (1983) Appellant's appointment resulted from the agency improperly eliminating a preference eligible with higher standing from consideration on an OPM-issued cert. OPM ordered that the preference eligible be offered the job and the appellant removed from it. Upon appeal, the Board found the appellant was an employee entitled to procedures applicable to probationers. She didn't get them; and the termination action was therefore fatally flawed and reversed. Garcia v. AF, 18 MSPR 142 (1983) Appellant's military service was not during the period specified in statute to qualify for his VRA appointment. The appointment was explicitly subject to OPM certification, which was not provided. In this case, the Board found the need for OPM approval made the appointment conditional (had not been made by someone with authority to make it), and it was OK for the agency to terminate the appointment as instructed by OPM. [But watch out for Jakes v. VA, 793 F.2d 293 (Fed Cir 1986). An improper VRA appointment was not void just because the agency found he had more education than the statute allowed at the time. Here, the same authority that made the appointment later sought to correct it, without any claim that the appointment was in some way conditional.] "Obtained by fraud or misrepresentation" The key case is Devine v. Sutermeister, 724 F.2d 1558 (Fed Cir 1983). The appellant obtained the job by falsifying employment forms, but that did not make the appointment void and therefore outside the procedural protections of Chapter 75, according to the Federal Circuit.
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 27 February 2001 |