James Nugent v. Department of Labor ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES NUGENT, DOCKET NUMBERS
Appellant, AT-0752-14-0261-I-1
AT-0752-14-0726-I-1
v.
DEPARTMENT OF LABOR,
Agency. DATE: December 1, 2014
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James Nugent, Alpharetta, Georgia, pro se.
Kristina Harrell, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision which
dismissed his joined appeals of his reduction in grade and pay for lack of
jurisdiction. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant served as a GS-14 Supervisory Manpower Development
Specialist. MSPB Docket No. AT-0752-14-0261-I-1, Initial Appeal File (IAF),
Tab 10 at 18. The appellant submitted a reasonable accommodation request for a
reassignment to a different position in late 2012, and, after communicating with
several agency officials about the parameters of his request, including the level of
position for which he wished to be considered and the geographic area to be
searched, the appellant applied for and received a noncompetitive appointment to
a GS-13 Apprenticeship and Training Representative position outside of the
reasonable accommodation process. Id. at 32, 34. Based on the appellant’s “own
review of personnel regulations,” he believed he was entitled to retained pay upon
his transfer to the GS-13 position, IAF, Tab 5 at 15, and, prior to accepting this
position, he explained to an agency equal employment opportunity (EEO)
employee that he would “attempt to independently reason with [agency] officials
on pay retention as the move is due to my medical condition,” id. at 20. Upon his
transfer to the lower-graded position, the appellant’s salary was reduced by
approximately $6,700. IAF, Tab 10 at 35.
3
¶3 After accepting the Apprenticeship and Training Representative position,
the appellant inquired into whether he was entitled to retained pay. Id. at 36-39.
Although the agency initially offered conflicting statements as to whether the
appellant was entitled to retained pay, IAF, Tab 6 at 4, Tab 10 at 39, 2 the agency
ultimately determined that he did not qualify for pay retention, and the appellant
filed the instant Board appeal alleging a reduction in pay
citing 5 C.F.R. § 536.103, IAF, Tab 1. During the course of the proceedings
below, the administrative judge determined that the appellant was also alleging
that he suffered an involuntary reduction in grade and pay when he accepted the
GS-13 position, and he docketed the appellant’s allegations as a separate appeal
and joined the appeals. IAF, Tab 20. The administrative judge then issued an
initial decision dismissing the appeals for lack of jurisdiction, finding that the
appellant voluntarily accepted the GS-13 position, that the agency did not cause
the appellant to accept this position by creating intolerable working conditions,
and that he failed to demonstrate that he was wrongly denied pay retention under
5 C.F.R. Part 536. ID at 11, 17. The appellant has filed a petition for review
challenging the administrative judge’s conduct during the course of the hearing.
Petition for Review (PFR) File, Tab 1. The agency has not filed a response.
¶4 We have considered the appellant’s arguments on review and find that they
present no basis to disturb the administrative judge’s initial decision. An
administrative judge has broad discretion to regulate the course of the
proceedings below and to conduct hearings, and we find no error in the
administrative judge’s conduct. See Thomas v. U.S. Postal Service, 116 M.S.P.R.
453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b). We note, moreover, that the
administrative judge’s decision to docket a separate appeal based on the
2
As the administrative judge properly noted, all of these statements were made after the
appellant accepted the reassignment to the lower-graded position and could not have
served as a basis for the appellant’s decision to accept the lower-graded position. IAF,
Tab 21, Initial Decision (ID) at 4.
4
appellant’s allegations of a possible separate appealable action is consistent with
the Board’s practice of not holding the pleadings and statements of pro se
litigants to the same standards as applied to attorneys. See Walters v. U.S. Postal
Service, 65 M.S.P.R. 115, 119 (1994). The administrative judge’s decision thus
reflects consideration of the appellant’s rights and did not harm or prejudice the
appellant. Additionally, to the extent the appellant’s argument on review implies
that the administrative judge was biased, we find no evidence in the record which
could overcome the presumption of honesty and integrity which accompanies
administrative adjudicators. See Fox v. Department of the Army, 120 M.S.P.R.
529, ¶ 46 (2014).
¶5 Although the appellant does not specifically challenge the administrative
judge’s jurisdictional dismissal of his appeals, we have reviewed the
administrative judge’s initial decision and find no error warranting reversal. The
record reflects that the appellant submitted a reasonable accommodation request
for a reassignment to another position and that he declined to be considered either
for positions below a certain level or for positions outside of his local commuting
area. IAF, Tab 5 at 10-11. The record further reflects that after his “own review
of personnel regulations,” the appellant concluded he would be entitled to
retained pay if he accepted a lower-graded position, and he voluntarily accepted
the lower-graded position without any assurance or representation from the
agency that he was entitled to retained pay. Id. at 15, 20. The Board does not
have jurisdiction over voluntary reductions in grade or pay. Harris v. Department
of Veterans Affairs, 114 M.S.P.R. 239, ¶ 8 (2010).
¶6 This case, moreover, is dissimilar from instances where the agency provided
incorrect advice to the employee which he relied upon to his detriment in making
his decision, see, e.g., Salazar v. Department of the Army, 115 M.S.P.R. 296,
¶¶ 9, 12 (2010). We find no basis to conclude that the agency’s EEO official, to
whom the appellant expressed his opinion, should have known that the appellant
was not entitled to retained pay and had a duty to correct his misapprehension.
5
See Drummonds v. Department of Veterans Affairs, 58 M.S.P.R. 579, 584 (1993)
(the agency had a duty to correct the appellant’s mistaken belief contained in a
letter of resignation that he could resign and simultaneously challenge a
demotion). Additionally, we find no evidence in the record that the agency
created intolerable working conditions such that the appellant had no choice but
to accept the transfer to the lower-graded position. See Peoples v. Department of
the Navy, 83 M.S.P.R. 216, ¶ 8 (1999); ID at 9 (explaining that the appellant only
complained of general incivility).
¶7 We further agree with the administrative judge’s findings that the appellant
failed to nonfrivolously allege that he was wrongly denied retained pay under
5 C.F.R. Part 536 and that the agency’s actions therefore did not result in an
appealable reduction in pay. See 5 U.S.C. § 7512(4) (reduction in pay is an
appealable adverse action under chapter 75); Broderick v. Department of the
Treasury, 52 M.S.P.R. 254, 258 (1992) (the right to appeal a reduction in pay has
been narrowly construed). As explained by the administrative judge, the Office
of Personnel Management’s (OPM’s) regulations outline the limited
circumstances under which an agency either must or may provide an employee
with retained pay. See 5 C.F.R. §§ 536.301-536.302; ID at 11-13. We agree that,
under the facts of this case, the appellant’s acceptance of a lower-graded position
falls outside of both the mandatory and permissive pay retention categories, and
we find that there was no legal authority for the agency to provide the appellant
with retained pay. We note, moreover, that OPM’s regulations expressly preclude
an agency from offering retained pay to an employee who is reduced in pay at the
employee’s request. See 5 C.F.R. § 536.102(b)(1); see also 5 C.F.R. § 536.103(defining “at the employee’s request” as a request “that is initiated by the
employee for his or her benefit, convenience, or personal advantage”). Consistent
with our decision above, we find that the appellant’s voluntary acceptance of the
lower-graded position also supports a finding that the appellant was reduced in
pay at his request. See ID at 14 & n.5.
6
¶8 For the aforementioned reasons, we find that the administrative judge
properly dismissed the appellant’s appeals of his reduction in grade and pay for
lack of jurisdiction. The appellant’s petition for review is DENIED and the
administrative judge’s initial decision is AFFIRMED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
7
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.