Thaddeus A. Knight v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THADDEUS A. KNIGHT, DOCKET NUMBER
Appellant, AT-0353-23-0128-I-1
v.
DEPARTMENT OF JUSTICE, DATE: October 10, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jennifer Duke Isaacs , Atlanta, Georgia, for the appellant.
Angela D. Gerrits , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and find that the Board has jurisdiction over the restoration
appeal. We REMAND the appeal for the administrative judge to adjudicate the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
election of remedies issue and, depending on the outcome of that issue, to
adjudicate the merits of the restoration appeal.
BACKGROUND
The appellant joined the Federal Bureau of Investigation (FBI) as a Special
Agent in 1997. Initial Appeal File (IAF), Tab 10 at 5. He was in a car accident
while on duty in 2001, he suffered numerous injuries, and his claim for a
traumatic work-related injury was accepted by the Office of Workers’
Compensation Programs (OWCP). Id. at 5, 16. The appellant last worked at the
agency on November 11, 2002. Id. at 16. The record reflects that the appellant
resigned on December 4, 2012. Id. at 21. The appellant requested reemployment
at some point prior to November 15, 2021. IAF, Tab 1 at 26.
In December 2021, the agency made a conditional offer of a GS-11 step 10
Administrative Specialist position, which OWCP found was a suitable position,
and the appellant accepted the offer “under protest and duress.” IAF, Tab 1 at 20,
26, Tab 10 at 7. The appellant was required to undergo an FBI background
investigation, including a polygraph examination, but he did not pass the
polygraph examination. IAF, Tab 7 at 18-20, 26, Tab 10 at 7, 22-23. Because of
his failure to pass the polygraph examination, he was informed that he was
ineligible for employment at the FBI. IAF, Tab 1 at 25, Tab 10 at 7. On
October 5, 2022, OWCP informed the appellant that the agency was unable to
place him as an Administrative Specialist because he was “unable to pass a
background check.” IAF, Tab 10 at 23. A few days later, the appellant followed
up with the agency and requested that it complete his background investigation.
Id. at 22. On December 16, 2022, the appellant received a response, informing
him that he had been “found ineligible for employment with the FBI on 4/8/22.”
Id. at 24-26.
The appellant filed a Board appeal on December 19, 2022, alleging that the
agency violated his restoration rights. IAF, Tab 1. The administrative judge
3
dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID)
at 1. The administrative judge noted that the parties did not dispute that the
appellant was absent from his position due to a compensable injury, that
he recovered sufficiently to return to work, and that he had not been returned to
work. ID at 5. She also noted that the outstanding issue was whether the
appellant made a nonfrivolous allegation that the agency’s denial of restoration
was arbitrary and capricious. Id. The administrative judge found that the
agency’s failure to provide the appellant with an opportunity to rebut the findings
regarding the failed polygraph examination did not constitute a nonfrivolous
allegation that the denial of restoration was arbitrary and capricious. Id. In
pertinent part, she noted that the agency searched in the local jurisdiction for
available work, found a position for the appellant, and offered it to him. Id.She also noted that the polygraph examination results were a separate matter that
went beyond the agency’s restoration obligations, and the Board lacks the
authority to review the substance of the agency’s underlying security clearance
determination. ID at 6 (citing Department of the Navy v. Egan, 484 U.S. 518,
530-31 (1988)). The administrative judge ultimately concluded that the agency
met its restoration obligations when it offered the appellant the position, and
he did not make a nonfrivolous allegation that the denial of restoration was
arbitrary and capricious. Id. Finally, the administrative judge noted that the
appellant argued that the position offered to him was an “effective denial of
restoration,” but she stated that she need not address this argument because the
failed polygraph “rendered him ineligible to be employed by the FBI in any
capacity.” ID at 5 n.2.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has established Board jurisdiction over his restoration appeal. 2
To establish jurisdiction over a restoration appeal, a partially recovered
individual must make nonfrivolous allegations 3 of the following: (1) he was
absent from the position due to a compensable injury; (2) he recovered
sufficiently to return to duty on a part-time basis or to return to work in a position
with less demanding physical requirements than those previously required; (3) the
agency denied his request for restoration; and (4) the denial was arbitrary and
capricious. Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 12.
As noted above, the administrative judge found that the parties did not
dispute that the appellant was absent from his position due to a compensable
injury, he recovered sufficiently to return to work, and he has not been returned
to work. 4 ID at 5. The record does not support this finding. Rather, the agency
argued before the administrative judge that the appellant did not satisfy the first
three elements of his jurisdictional burden. IAF, Tab 7 at 10-11, Tab 13 at 9-11.
2
Before the administrative judge, the agency argued that the appeal was untimely filed.
IAF, Tab 7 at 7-8. The administrative judge did not address this issue in the initial
decision. We have reviewed, among other evidence, the agency’s April 11, 2022 and
December 13, 2022 correspondence with the appellant. IAF, Tab 7 at 15, Tab 10
at 24-26. In the absence of any final decision to deny restoration and trigger the
Board’s regulatory filing period, we find that the appeal was timely filed as measured
from the agency’s December 13, 2022 letter. Alternatively, even if the appeal was
untimely filed, we find that there was good cause to waive the filing deadline.
Importantly, none of the correspondence to the appellant was clear that the denial of
restoration was final, and none of the documentation contained a notice of Board appeal
rights.
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the
appeal. Id.4
Although the administrative judge stated that the parties did not dispute that the
appellant has not returned to work, we believe—consistent with the elements of the
appellant’s jurisdictional burden—that she meant to say that the parties did not dispute
that the agency denied his restoration request.
5
The agency did not file a cross petition for review. However, in its response to
the petition for review, the agency directs the Board to its motion to dismiss and
reply brief, it argues that the appeal should be dismissed because, among other
things, the appellant “failed to establish that he was separated from the position
due to a compensable injury or that he was recovered and able to return to duty,”
and it suggests that its offer of the Administrative Specialist position was not a
denial of restoration. PFR File, Tab 3 at 10 & n.2 (citing IAF, Tabs 7, 13).
Even if we consider these arguments, a different outcome is not warranted.
Regarding the first jurisdictional element, the agency asserted that the appellant
failed to prove that the recission of his conditional job offer was in any way tied
to his compensable injury but, rather, was due to his failure to obtain a security
clearance. IAF, Tab 7 at 10-11. This argument is not persuasive because the
position in question is the Special Agent position that the appellant once held, not
the Administrative Specialist position that he never held. Regarding the second
jurisdictional element, the agency asserted that the appellant did not show that
he was rated as a partially recovered employee by OWCP. Id. at 11. We
disagree. Notably, the appellant asserted in his equal employment opportunity
(EEO) complaint that “OWCP has determined that [he is] a partially recovered
employee,” and OWCP determined that the “FBI job offer [was] suitable.” IAF,
Tab 1 at 26, Tab 7 at 26-27. These statements satisfy the appellant’s burden to
make a nonfrivolous allegation regarding the second jurisdictional element.
5 C.F.R. § 1201.4(s). Regarding the third jurisdictional element, we find that the
agency’s decision to make and rescind a conditional offer for a position for which
the appellant was not qualified constitutes a nonfrivolous allegation of a denial of
restoration. Having determined that the appellant made nonfrivolous allegations
to satisfy the first three jurisdictional elements, t he remaining issue before us is
whether the appellant nonfrivolously alleged that the agency’s denial of his
restoration request was arbitrary and capricious.
6
The Board has held that a denial of restoration is arbitrary and capricious if
the agency fails to meet its obligations under 5 C.F.R. § 353.301(d), i.e., to search
within the local commuting area for vacant positions to which it can restore a
partially recovered employee and to consider him for such vacancies. Cronin,
2022 MSPB 13, ¶¶ 14, 20. A determination on whether an agency met its
obligations under section 353.301(d) will turn on whether it “ma[d]e every effort”
to restore a partially recovered employee “in the local commuting area” and
“according to the circumstances in each case.” Id., ¶ 21 (quoting 5 C.F.R.
§ 353.301(d)).
The administrative judge found that, although OWCP identified the
Administrative Specialist position as suitable for the appellant, the agency did not
act arbitrarily and capriciously in rescinding its job offer because the appellant
was unable to obtain the required security clearance. ID at 5-6. The
administrative judge also found that, because the appellant failed the polygraph
examination, he was “ineligible to be employed by the agency in any capacity.”
ID at 5 n.2.
We disagree with the administrative judge’s analysis of the fourth
jurisdictional element. Pursuant to 5 C.F.R. § 353.102(1), the term “agency” in
this context means “any department, independent establishment, agency, or
corporation in the executive branch.” The Department of Justice (DOJ) is the
agency in this case, not the FBI. See 5 U.S.C. §§ 101-105; see Farrell v.
Department of Justice, 50 M.S.P.R. 504, 510, 512 (1991) (finding that the entire
Department of Justice was the “agency” with the obligation to restore a partially
recovered former employee of the U.S. Marshals Service), overruled on other
grounds by Leach v. Department of Commerce, 61 M.S.P.R. 8, 13 (1994).
Although employment in the FBI in any capacity may require a security
clearance, there are DOJ positions outside of the FBI that do not have a security
clearance requirement. The agency has offered no justification for limiting its
search to FBI positions. Accordingly, we find that the appellant has made a
7
nonfrivolous allegation that the agency failed to satisfy its obligations under 5
C.F.R. § 353.301(d) and that the agency’s denial of restoration was arbitrary and
capricious. See Cronin, 2022 MSPB 13, ¶¶ 14, 20. We therefore find that the
appellant has established jurisdiction.
We remand the appeal for the administrative judge to evaluate the election of
remedies issue.
Our resolution of the jurisdictional issue, discussed above, does not resolve
all outstanding issues presented in this matter. For example, the record
reflects that the appellant filed his formal complaint of discrimination
on December 14, 2022, five days before he filed his Board appeal. IAF,
Tab 7 at 22-23. This complaint involved allegations that the appellant’s
restoration rights were violated when he was found ineligible for employment and
his conditional offer was rescinded based on the failed polygraph examination.
Id. The appellant also asserted that the agency’s action was based on age and
disability discrimination. Id. The agency argued below that the Board
appeal should be dismissed because he filed his discrimination complaint first.
Id. at 11-12. The administrative judge did not discuss this issue in the initial
decision. We do so now.
When an appellant has been subjected to an action that is appealable to the
Board and alleges that the action was effected, in whole or in part, because of
discrimination on the basis of race, color, religion, sex, national origin, handicap,
or age, he may initially file a mixed-case complaint with his employing agency,
or a mixed-case appeal with the Board, but not both, and whichever is filed first
is deemed to be an election to proceed in that forum. McCoy v. U.S. Postal
Service, 108 M.S.P.R. 160, ¶ 12 (2008); 29 C.F.R. § 1614.302(b); see also
Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 24 (stating that any restoration
appeal within the Board’s jurisdiction in which disability discrimination is
claimed is, by definition, a mixed-case appeal under 29 C.F.R. § 1614.302(a)(2)).
An election is not valid unless the agency has properly informed the appellant of
8
the election requirement and its consequences. Moore v. Department of Justice,
112 M.S.P.R. 382, ¶ 12 (2009); 29 C.F.R. § 1614.302(b). Once an appellant
makes an informed election to proceed through the agency’s EEO process, he is
bound to exhaust that process prior to filing a Board appeal. Checketts
v. Department of the Treasury, 91 M.S.P.R. 89, ¶ 5 (2002), aff’d, 50 F. App’x 979(Fed. Cir. 2002).
The record does not contain any documentation to show that the appellant
received a formal decision letter with the election of remedies notice required
under 5 C.F.R. § 1201.21 and 29 C.F.R. § 1614.302(b). Therefore, we remand the
appeal so that the parties can present evidence and argument in this regard and
the administrative judge can decide whether the appellant’s election to file a
formal EEO complaint was knowing and informed. If the administrative judge
determines that the appellant’s decision to file an EEO complaint was not
knowing and informed, then it was not valid, and the appellant should have
an opportunity on remand to choose between his EEO complaint and his Board
appeal. Depending on the outcome of these issues, the administrative judge shall
proceed to adjudicate the merits of the appellant’s restoration appeal.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.