UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT D. O'BRIEN, DOCKET NUMBER
Appellant, AT-0752-14-0640-B-1
v.
DEPARTMENT OF THE ARMY, DATE: February 23, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Adam Jerome Conti, Atlanta, Georgia, for the appellant.
Christopher M. Kenny, Fort Gordon, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the remand initial decision,
which reversed the appellant’s constructive removal. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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, 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 occupied a GS-13 Supervisory Security Specialist position at
the Dwight David Eisenhower Army Medical Center, which was designated as a
law enforcement officer position and was subject to random drug testing.
O’Brien v. Department of the Army, MSPB Docket No. AT-0752-14-0640-I-1,
Initial Appeal File (IAF), Tab 1. A urine sample that he provided on February 5,
2014, was certified by an agency Medical Review Officer (MRO) as testing
positive for codeine and morphine. Id. The appellant maintained that he had
codeine in his system because he had taken prescription cough syrup with codeine
a few days before the test and that codeine metabolized into morphine. Id. He
indicated during the investigation of the positive test result that he did not submit
his prescription for cough syrup with codeine because he had been told that the
agency would not accept a prescription that was more than 6 months old and his
prescription was written more than 6 months prior to the drug test. IAF, Tab 4
at 28. Subsequently, the appellant became aware that the agency proposed to
remove him based on the positive drug test result, and he resigned before
receiving the notice of proposed removal. IAF, Tab 9 at 11.
¶3 The appellant filed an appeal, alleging that his supervisor provided
inaccurate and misleading information that coerced his resignation. The
administrative judge found that the appellant failed to show that his resignation
3
was the result of coercion, and she dismissed the appeal for lack of jurisdiction.
IAF, Tab 12, Initial Decision at 6-8.
¶4 In his petition for review of that decision, the appellant asserted that, on
August 22, 2014, based on information that he learned during the August 18,
2014 Board hearing, he telephoned the agency’s drug testing laboratory to inquire
into the manner that his drug test had been processed. O’Brien v. Department of
the Army, MSPB Docket No. AT-0752-14-0640-I-1, Petition for Review File,
Tab 4 at 7-8. He said that the laboratory asked for copies of his prescriptions
regardless of how old they were, and he promptly provided them. Id. at 8. On
September 2, 2014, he received a copy of a Lab Results Report that reflected
negative results for his drug test based on the urine sample that he provided on
February 5, 2014. Id. at 27. With his petition for review, the appellant provided
an affidavit repeating that he did not provide any prescriptions during the
investigation of the positive test result because he had been wrongly informed
that he could submit only prescriptions that were less than 6 months old. Id.
at 15. He also provided a copy of the Lab Results Report showing negative
results, and a list of his prescriptions showing that he was prescribed
guaifenesin/codeine on August 31, 2011. Id. at 21, 27. The appellant asked the
Board to accept the affidavit, prescription information, and the September 2, 2014
Lab Results Report into the record as new evidence to show that he resigned
based on misleading information.
¶5 The Board found that the appellant’s new evidence constituted a
nonfrivolous allegation 2 of facts that, if proven, could warrant setting aside the
drug test carried out without the benefit of that prescription. O’Brien v.
Department of the Army, MSPB Docket No. AT-0752-14-0640-I-1, Final Order
(Feb. 10, 2015). The Board found further that the appellant’s assertion that he
2
Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven,
could establish a prima facie case that the Board has jurisdiction over the matter at
issue. Deines v. Department of Energy, 98 M.S.P.R. 389, ¶ 11 (2005).
4
was misled by the agency into failing to submit critical evidence, if proven, may
have affected the outcome of the investigation into his positive drug test. Absent
the appellant’s receiving misleading representation of a rule prohibiting
submission of prescriptions that were more than 6 months old, it appears that:
(1) he would not have received a positive drug test result; (2) the agency may not
have proposed his removal; and (3) he would not have felt pressured to resign.
The Board found that that was so, regardless of whether the agency was aware
that its statements were misleading. Id.; see Covington v. Department of Health
& Human Services, 750 F.2d 937, 943 (Fed. Cir. 1984). The Board remanded the
appeal to the Atlanta Regional Office to afford the appellant an opportunity to
prove his allegation of agency misrepresentation.
¶6 Based on the submissions of the parties on remand, the administrative judge
found that, although no agency employee misinformed the appellant as to the
6-month rule, his confusion came from the laboratory contracted by the agency to
perform the drug test and that, as an agency contractor, its actions can be imputed
to the agency. Remand File (RF), Tab 10, Remand Initial Decision (RID) at 5.
She found that the contractor’s actions created obvious confusion in that once the
appellant provided his prescription history to the contractor, it reversed its prior
test result. Id. Thus, she found that, absent the appellant receiving misleading
representation of the 6-month rule, he would not have received a positive drug
test result, the agency would not have proposed his removal, and he would not
have felt pressured to resign. Id.
¶7 In its petition for review of the remand initial decision, the agency asserts
that the administrative judge failed to properly weigh the affidavit of its Chief of
Pathology and Area Laboratory Services. Remand Petition for Review (RPFR)
File, Tab 1. 3 In the affidavit, the Chief of Pathology explained that legitimate use
3
In the remand initial decision, the administrative judge ordered interim relief. RID
at 7. Attached to the agency’s petition for review is certification by the Supervisory
Human Resources Specialist that the appellant has been placed on an interim
5
of a prescription drug is commonly understood to mean use of a prescription
medication pursuant to physician supervision and in accordance with a
physician’s direction. Id. The agency relies on regulations promulgated by the
Drug Enforcement Administration (DEA) and Georgia state law to set out the
time limits for refilling prescriptions for controlled substances such as codeine,
morphine, and other opiates. DEA limits refilling controlled substances to five
refills or 6 months, whichever occurs first, and may be dispensed for 6 months
from the date of issuance of the prescription. Also, Georgia law prohibits
dispensing controlled substances after 6 months from the date of prescription.
The agency argues that, given the Federal and state constraints, any possible use
of a scheduled substance by the appellant outside of 6 months from the date of the
prescription could not logically be in accordance with physician supervision and
at a physician’s direction, and representing that a rule prohibiting submission of
prescriptions that were more than 6 months old did not constitute misinformation.
¶8 The agency’s assertion on petition for review of the remand initial decision
is unavailing. The Federal and state statutes and regulations supplied by the
agency provide time limitations on dispensing and refilling prescriptions for
controlled substances. Here, there is no assertion that the prescription that the
appellant provided the contractor was in violation of any of these laws and
regulations. Nothing in the record contradicts the appellant’s statement that the
prescription that he provided to the contractor was written by a physician and
properly dispensed for the cough that he had at a time that he was recovering
from pneumonia in 2011. Further, nothing contradicts his statement that he did
appointment in the GS-13 position of Supervisory Security Specialist, effective
September 9, 2015, the date of the remand initial decision. RPFR File, Tab 1 at 9.
Also attached is a memorandum from the Commander of the Dwight David Eisenhower
Army Medical Center indicating that it was his determination that the appellant’s return
or presence in the workplace would be unduly disruptive and that therefore the
appellant had been placed on paid administrative leave for the period from
September 9, 2015, until the Board issues a final decision in this appeal. Id. at 10.
6
not finish the cough syrup properly dispensed under Federal and state law while
he had pneumonia, and he retained what remained. The agency provided no
evidence or argument to show that retaining the unused cough syrup was a
violation of statute or regulation. Further, nothing contradicts the appellant’s
statement that he used the cough syrup with codeine to quell an uncontrolled
cough, the symptom for which it was prescribed by his physician.
¶9 In his affidavit, the Chief of Pathology and Area Laboratory Services also
indicated that when a collected urine sample tests positive for a controlled
substance that may be lawfully prescribed and used, a determination must be
made whether the use of such controlled substances is legitimate. RF, Tab 8
at 361. It appears that in this case, such a determination is made by a MRO
employed by the agency’s drug testing service. It was an MRO from the drug
testing service who, in the process of determining whether the appellant
legitimately used the controlled substance that showed up in his urine sample,
erroneously informed the appellant that a prescription more than 6 months old
would not be considered. Absent such a prescription, the MRO reported a
positive drug test. PFR File, Tab 4 at 19. However, once an MRO 4 received the
appellant’s prescription for cough syrup with codeine, he determined that the
appellant’s use of the controlled substances codeine was legitimate, as reflected
in the Lab Results Report that he issued showing negative results. Id. at 27. We
find that the MRO’s erroneous statement that the drug testing service would not
consider a prescription that was more than 6 months old was misleading
information that rendered the appellant’s resignation involuntary.
¶10 The touchstone of the analysis of whether a retirement or resignation is
voluntary is whether the employee made an informed choice. Baldwin v.
4
For unexplained reasons, the MRO who conducted the initial determination whether
the appellant’s used of codeine was legitimate was a different MRO from the one who
conducted that determination after the appellant supplied his prescription for cough
syrup with codeine. PFR File, Tab 4 at 19, 27. Each of these individuals identifies
himself as an MRO. Id.
7
Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009). A decision made
“with blinders on,” based on misinformation or lack of information, cannot be
binding as a matter of fundamental fairness and due process. Id. An agency must
provide information that is not only correct in nature but adequate in scope to
allow an employee to make an informed decision. Id. This includes an obligation
to correct any erroneous information on which it has reason to know an employee
is relying. Id.
¶11 In short, the statement of the MRO who conducted the first determination
whether the appellant’s use of cough syrup with codeine was legitimate, gave the
appellant erroneous and misleading information that prevented the appellant from
making an informed decision about whether to resign. The agency violated its
duty in this case to assure that the MRO provided information that was correct in
nature and adequate in scope regarding what prescriptions would be considered to
allow the appellant to make an informed decision about whether to resign. As
noted, once the appellant submitted his prescription for cough syrup with codeine,
an MRO issued a negative drug test determination. There is no reason to believe
that the appellant would have resigned if he had known at the time of the initial
determination that his use of the controlled substance was legitimate. A decision
to retire made with blinders on based on misinformation or lack of information
cannot be binding as a matter of fundamental fairness and due process. Id. The
administrative judge properly found that the appellant established by
preponderant evidence that his resignation was pressured by the agency’s
misleading information and thus was involuntary.
¶12 Having found that the Board constructively removed the appellant and that
the Board has jurisdiction over this appeal, we further find that the constructive
removal must be reversed because the agency effected it without due process of
law. See Lohf v. U.S. Postal Service, 71 M.S.P.R. 81, 86 (1996).
8
ORDER
¶13 We ORDER the agency to cancel the appellant’s resignation and to restore
the appellant effective April 1, 2014. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶14 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶15 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶16 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶17 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
9
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the U.S. Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations
may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe
you meet these requirements, you must file a motion for attorney fees WITHIN
60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file
your attorney fees motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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).
10
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 U.S. 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 U.S. 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
2
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
Robert D. O'Brien v. Department of the Army
Combined Opinion