COUNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE HEATH, DOCKET NUMBER
Appellant, DA-1221-12-0654-C-1
v.
DEPARTMENT OF THE ARMY, DATE: February 24, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
George Heath, Corona, California, pro se.
Norbert S. Walker, El Paso, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied the appellant’s petition for enforcement. For the reasons discussed below,
we GRANT the petition for review and REMAND the case to the regional office
for further adjudication in accordance with this Order.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant, who was a GS-09 Animal Health Technician at the agency’s
William Beaumont Army Medical Center in El Paso, Texas, has, as described
below, two distinct legal actions active before the Board, one involves the
agency’s two attempts to remove him, and the other involves this individual right
of action (IRA) appeal, which is before the Board pursuant to the instant petition
for enforcement.
¶3 On September 18, 2012, the appellant filed this IRA appeal in which he
argued that the agency took away his supervisory duties in retaliation for his
October and November 2011 disclosures of scientific misconduct. Heath v.
Department of the Army, MSPB Docket No. DA-1221-12-0654-W-1 (W-1 File).
The administrative judge denied the appellant’s request for corrective action.
W-1 File, Tab 39, Initial Decision (Dec. 13, 2012). The appellant filed a timely
petition for review, which the Board granted, remanding the IRA appeal to the
regional office based on its determination in Day v. Department of Homeland
Security, 119 M.S.P.R. 589 (2013), that pursuant to the Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, disclosures made
in the normal course of one’s job duties are not excluded from the definition of a
protected disclosure, Heath v. Department of the Army, DA-1221-12-0654-W-1,
Remand Order (Sept. 11, 2013).
¶4 In March 2013, during the adjudication of the appellant’s IRA appeal, the
agency proposed and effected the appellant’s removal based on misconduct that it
alleged occurred in February 2013, and the appellant filed a timely appeal. Heath
v. Department of the Army, MSPB Docket No. DA-0752-13-0408-I-1. A different
administrative judge reversed the appellant’s removal because the agency violated
the appellant’s right to due process when the deciding official considered ex parte
information in his penalty analysis. MSPB Docket No. DA-0752-13-0408-I-1,
Tab 71, Initial Decision (Sept. 12, 2013). The agency did not file a petition for
review. Instead, the agency issued an October 28, 2013 notice of proposed
3
removal on the same charges, 2 which it sustained in a January 17, 2014 decision,
and which the appellant subsequently appealed. Heath v. Department of the
Army, MSPB Docket No. DA-0752-14-0233-I-1. Also on October 28, 2013,
rather than return the appellant to the status quo ante following the reversal of his
removal on due process grounds, the agency retroactively placed him on
administrative leave pending the outcome of the second removal action. Id. 3
¶5 Meanwhile, in this IRA appeal, the administrative judge found on remand
that the agency took away the appellant’s supervisory duties in reprisal for his
protected whistleblowing activity, and ordered corrective action. Heath v.
Department of the Army, MSPB Docket No. DA-1221-12-0654-B-1 (B-1 File),
Tab 12, Remand Initial Decision (RID) (Jan. 27, 2014). Because neither party
filed a petition for review, the remand initial decision became the Board’s final
decision in this matter on March 3, 2014. RID at 13; see 5 C.F.R. § 1201.113.
The agency subsequently filed notices of compliance in which it explained that
because it had removed the appellant on January 17, 2014 (in the removal action
at issue in MSPB Docket No. DA-0752-14-0233-I-1), it could not restore the
appellant’s supervisory duties, but it could only ensure that his personnel record
reflected that he performed them, and, in that regard, the agency provided copies
of the appellant’s position description and of his performance evaluations for
2010-2012, indicating that he served as “Vivarium Operations Manager and
Supervisor,” B-1 File, Tabs 14-15. The appellant then filed this petition for
enforcement.
2
An agency may cure its violation of an employee’s right to due process and then take a
second removal action on the same charges. E.g., Lopes v Department of the Navy,
119 M.S.P.R. 106, ¶ 4 (2012).
3
A petition for enforcement of the initial decision in MSPB Docket No. DA-0752-13-
0408-I-1, in which, among other claims, the appellant challenges his retroactive
placement on administrative leave following the reversal of his removal, is currently
pending at the regional office. Heath v. Department of the Army, MSPB Docket
No. DA-0752-13-0408-C-1.
4
¶6 The administrative judge assigned to the second removal appeal affirmed
the agency’s action, MSPB Docket No. DA-0752-14-0233-I-1, Tab 20, Initial
Decision (May 14, 2014), and the appellant filed a timely petition for review. In
a separate nonprecedential remand order, we grant that petition for review
because the administrative judge improperly applied the doctrine of collateral
estoppel to the substantive charges therein. See Heath v. Department of the Army,
MSPB Docket No. DA-0752-14-0233-I-1, Remand Order (Feb. 24, 2015).
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 In the instant petition for enforcement, the appellant argued that the
agency’s act of ensuring that his performance evaluations reflected his
supervisory duties does not demonstrate compliance with the remand initial
decision. Enforcement File (EF), Tab 1. Citing to evidence already in the record,
see W-1 File, Tab 3, the appellant described a series of agency actions that he
claimed altered the roles, responsibilities, and lines of authority in his workplace,
and that he further claimed were “absolutely essential” to his subsequent
termination, EF, Tab 1 at 5-6. He argued that those actions represent “the Fruit
of a Poisonous Tree” and asserts that, to be in compliance, the agency would also
have to change “the erroneous and dishonest false construction of [his]
performance” that he claimed was also a result of illegal whistleblower
retaliation. Id. The agency responded, and the appellant filed a reply to the
agency’s response. EF, Tabs 4-5.
¶8 In her status conference summary, the administrative judge explained that,
because the agency had removed the appellant in a separate action prior to the
issuance of the remand initial decision, compliance with her order therein to place
him “as nearly as possible in the same situation he would have been had the
agency not retaliated against him for whistleblowing,” i.e., the status quo ante,
could only involve restoring him to his position in the event that he prevailed in
the appeal challenging his removal, not as a result of this IRA appeal. EF, Tab 7.
5
Thus, because the appellant was no longer an agency employee, the
administrative judge informed the parties that she “planned on issuing a decision
finding that the agency has shown by preponderant evidence that it has complied
with the Board’s final order” in this matter. Id. As noted above, the
administrative judge subsequently issued an initial decision in which she found
the agency in compliance with the Board’s final order. EF, Tab 12, Compliance
Initial Decision (CID).
¶9 In his petition for review, the appellant essentially argues that the proper
remedy for the reprisal found in this matter requires his exoneration from the
charges involved in his removal because those charges were illegally obtained
through the prohibited personnel practices found in this matter. Petition for
Review File (PFR) File, Tab 1. Thus, he contends that the agency’s removal of
his supervisory duties resulted in the charges for which he was subsequently
removed. Id. The agency responds in opposition. PFR File, Tab 4.
¶10 As noted above, the administrative judge found that the agency took away
the appellant’s supervisory duties in reprisal for his protected disclosures. RID.
However, because the appellant’s removal is not the personnel action at issue in
this IRA appeal, 4 the administrative judge could not have ordered the appellant’s
restoration in this matter. 5 Cf., Armstrong v. Department of Justice,
107 M.S.P.R. 375, ¶¶ 13, 34 (2007) (although an appellant who prevails in an
IRA appeal is generally entitled to status quo ante relief, the Board may not, in an
4
The record reflects that, in his Office of Special Counsel (OSC) complaint, the
appellant asserted that the agency took away his supervisory duties in reprisal for h is
protected disclosures. See W-1 File, Tab 3 at 94. The record does not reflect that the
appellant subsequently amended his OSC complaint to include his removal and so he
has not shown exhaustion as to that action.
5
Although the appellant argues that the removal of his supervisory duties was
instrumental in the charges that resulted in his removal, as noted above, his removal is
simply not at issue here, only the taking away of his supervisory duties. Such an
argument would instead be addressed appropriately as an affirmative defense in the
appellant’s pending removal appeal, MSPB Docket No. DA-0752-14-0233-I-1.
6
IRA appeal, review an allegedly retaliatory personnel action that the appellant did
not raise before OSC, and, regardless of the exhaustion issue, intervening events
may leave the Board without the authority to order the employee’s reinstatement).
Moreover, we agree with the administrative judge’s observation that the outcome
of the appellant’s second removal appeal, which the Board has remanded to the
regional office for further adjudication, controls the result in this matter in that, if
he prevails in that action and is restored to his position, the agency also would be
required to restore his prior supervisory duties. CID at 3; see Heath v.
Department of the Army, MSPB Docket No. DA-0752-14-0233-I-1, Remand
Order (Feb. 24, 2015).
¶11 Accordingly, we VACATE the compliance initial decision, and REMAND
the appellant’s petition for enforcement to the regional office for readjudication
following the adjudication of the appellant’s remanded removal appeal in Heath
v. Department of the Army, MSPB Docket No. DA-0752-14-0233-I-1.
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.