UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS F. SWEENEY, DOCKET NUMBER
Appellant, DC-0752-15-0060-I-1
v.
DEPARTMENT OF DATE: September 23, 2016
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas F. Sweeney, Frederick, Maryland, pro se.
Michael Doherty, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal 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 on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to 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. 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. Except as expressly MODIFIED by
this Final Order to address the appellant’s due process allegations, we AFFIRM
the initial decision.
BACKGROUND
¶2 The appellant was employed as a Developmental Air Traffic Control
Specialist (ATCS) at the agency’s Washington Air Route Traffic Control Center
(ARTCC). The agency’s training review board (TRB) met on December 6-7,
2012, to evaluate the training of several employees, including the appellant.
Initial Appeal File (IAF), Tab 18, Exhibit (Ex.) O. Although training deficiencies
were identified for the appellant, the TRB decided to continue his training but
with specific training recommendations to address his performance issues. Id.
The appellant’s training was subsequently suspended on February 22, 2013,
resulting in another TRB meeting on April 11, 2013. Id., Ex. P. The TRB
determined that the appellant’s deficiencies had not been resolved by the
additional training and that he could not achieve the necessary certification, and
thus, it recommended that his training be discontinued. However, the TRB
further recommended that the appellant “be given strong consideration for
reassignment to a lower level facility, as per agency directives.” Id.
3
¶3 The agency notified the appellant in a memorandum dated April 15, 2013,
that his training was being terminated due to unsatisfactory performance in Radar
Controller Training, Stage IV. IAF, Tab 16, Ex. D. The memorandum advised
the appellant that, in accordance with the Employment Policy for Air Traffic
Control Specialist in Training—EMP‑1.14—he could discuss the matter with the
Support Manager for Training and, within 7 calendar days from receipt of
notification, he could provide written comments regarding the proposed action.
Id.; IAF, Tab 15, Ex. G. The appellant filed a response, and the agency issued a
final determination on May 13, 2013, terminating his training at ARTCC. The
appellant submitted a request for reconsideration, which the agency denied,
noting that all TRB members had concurred with the decision to suspend his
training. IAF, Tab 15, Exs. K, M. The agency subsequently offered the appellant
reassignments to Atlantic City, New Jersey; Allenton, Pennsylvania; and
Falmouth, Massachusetts. IAF, Tab 2 at 28. The appellant’s regional National
Air Traffic Controllers Association was able to get a facility at Harrisburg,
Pennsylvania, added to the appellant’s list of options and he accepted the offer to
that location because it was closer to his home. IAF, Tab 16, Ex. B. In a
memorandum dated November 29, 2013, the appellant was offered an assignment
to the Harrisburg facility effective December 1, 2013. Id., Ex. A. The appellant
was advised that, if he declined the agency’s offer of reassignment, his removal
from the ATCS position and from the Federal service would be proposed. Id.
The appellant accepted the assignment, and he was reassigned to the Harrisburg
facility. Id.
¶4 The appellant filed a discrimination complaint with the agency, alleging
that he was discriminated against based on his sex because his training was not
conducted in accordance with Federal Aviation Administration (FAA) orders and
procedures and because the agency terminated his training, transferred him to a
lower-level facility, and reassigned him to a downgraded position. IAF, Tab 2
4
at 3. The agency issued a final agency decision in which it determined that no
discrimination had resulted. Id. at 36.
¶5 The appellant filed this appeal, alleging a reduction in grade and pay and a
denial of a within-grade increase (WIGI). IAF, Tab 1. The appellant also alleged
multiple deficiencies in the agency’s training program and asserted that the
agency’s actions were the result of discrimination. In addition, he alleged that
the agency’s decision to discontinue his training was tantamount to a constructive
removal. IAF, Tab 7 at 5.
¶6 The administrative judge issued an order to show cause, notifying the
parties of the elements and burdens of proof for establishing Board jurisdiction.
IAF, Tab 4. Because the appellant’s response raised a constructive removal
claim, the administrative judge issued a supplemental order to show cause to
address this claim. IAF, Tab 13. After providing the parties with the opportunity
to respond to the orders and without holding a hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 21, Initial Decision (ID) at 1, 11. Specifically, the administrative judge
found that the appellant failed to nonfrivolously allege that he had suffered an
appealable reduction in grade or pay or that he was denied a WIGI. ID at 6-10.
The administrative judge also found that, absent an otherwise appealable action,
the Board lacked jurisdiction over the appellant’s claim of sex discrimination.
ID at 10. The appellant then filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tabs 1-2. The agency filed a response to the
petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, the appellant argues that the Board has jurisdiction over claims
filed by FAA employees, including performance-based actions taken under
5
chapter 43. 2 PFR File, Tab 1 at 4-5, 7. Specifically, the appellant appears to be
arguing that the termination of his training was such a performance-based action.
However, contrary to the appellant’s assertions, the agency did not take a
performance-based action under 5 U.S.C. § 4303 when it terminated his training.
Thus, those procedures are not applicable here.
¶8 The appellant also asserts that he provided evidence and argument below
showing that his reassignment, from the ATCS-2152-LG position at the ARTCC
to the ATCS-2152-GG position in Harrisburg, was a reduction in grade and that
the administrative judge erred in finding otherwise. PFR File, Tab 1 at 8-10.
The appellant argues that, because he was reduced in grade and pay, the
administrative judge erred by dismissing this appeal for lack of Board
jurisdiction. Id. However, as the administrative judge correctly found, there is
no evidence that the appellant was reduced in grade and pay. Moreover, the
administrative judge correctly found that, even if the appellant was subjected to a
reduction in grade and pay, the record reflects that the appellant voluntarily
accepted the reassignment in lieu of removal after he failed to complete the
agency’s training requirements. IAF, Tab 16.
¶9 To the extent the appellant reiterates his claim that his reassignment was
involuntary because agency policy did not provide him any option of remaining in
his current duty station after his training was terminated, PFR File, Tab 1 at 8-11,
we disagree. A choice between unpleasant alternatives does not render a decision
to accept the agency’s proposal involuntary. Soler-Minardo v. Department of
Defense, 92 M.S.P.R. 100, ¶ 9 (2002) (finding that the fact that the appellant was
faced with either a demotion or a possible removal did not render his acceptance
of the agency’s proposal involuntary). Here, the appellant does not submit any
evidence or argument suggesting that his acceptance of the reassignment to the
2
The appellant on review does not challenge the administrative judge’s finding that he
was not denied a WIGI, and we therefore need not disturb this finding.
6
ATCS‑2152-GG position was based on misinformation. Cf. Wright v.
Department of Transportation, 99 M.S.P.R. 112, ¶ 10 (2005) (observing that the
appellant’s assertion that he accepted a position based on agency misinformation
regarding the nature of the reassignment and its effect on his base pay constituted
a nonfrivolous allegation that the appellant’s reduction in pay was involuntary).
Thus, as the administrative judge correctly found, the appellant failed to
nonfrivolously allege that he suffered an appealable reduction in grade and pay.
¶10 The appellant also asserts that the agency engaged in ex parte
communications 3 in connection with the decision to terminate his training, and
thus violated his right to due process. The appellant asserts that he raised this
claim below and that the administrative judge failed to address it in the initial
decision. PFR File, Tab 1.
¶11 Pursuant to 5 U.S.C. § 7701(c)(2), an agency’s adverse action “may not be
sustained . . . if the employee or applicant for employment shows harmful error in
the application of the agency’s procedures in arriving at such decision[.]”
Reversal of an agency’s action is therefore required where an appellant
establishes that the agency committed a procedural error that likely had a harmful
effect on the outcome of the case before the agency. Goeke v. Department of
Justice, 122 M.S.P.R. 69, ¶ 7 (2015). Here, the record reflects that the appellant
attempted to file a new Board appeal concerning this same action by submitting a
pleading in which he raised due process arguments. IAF, Tab 19. Rather than
docketing this pleading as a new appeal, the administrative judge noted that the
appellant was alleging that the agency’s actions in this case resulted in due
process violations, and she entered the pleading into the record in the instant
appeal. IAF, Tab 20. However, while the administrative judge submitted the
3
An ex parte communication is a communication between one party and the
decision-maker where the other party is not present and not given the opportunity to
present his or her side of the argument. Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1372‑73 (Fed. Cir. 1999).
7
pleading into the record, she neglected to address the appellant’s due process
arguments in the initial decision. Nonetheless, because we now address the
appellant’s due process arguments, the administrative judge’s failure to do so
was not prejudicial to the appellant’s substantive rights, and it provides no basis
for reversal of the initial decision. Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
¶12 The appellant asserted below and on review that the agency’s proposal
notice informing him that the TRB had recommended termination of his training
is a de facto decision notice, rather than a proposal notice, “because it was
obvious” from the notice that the decision already had been made to terminate his
training. PFR File, Tab 2; IAF, Tab 7 at 15. Specifically, the appellant argues
that the agency failed to provide him the opportunity to respond to the proposed
adverse action prior to receiving the de facto decision notice and prior to his
being placed in a duty assignment with the Plans & Programs Office. PFR File,
Tab 1 at 5‑6. Thus, the appellant contends that this resulted in the agency
violating both agency procedures and his due process right to a 30‑day advance
written notice of the agency’s action against him. Id.
¶13 It appears that the appellant’s argument is based on his belief that the
agency’s decision to terminate his training constitutes an appealable adverse
action. However, the Board’s jurisdiction is limited to those matters over which
it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In this case, the
Board does not have jurisdiction over an agency’s decision to terminate an
employee’s training. Nor does it have jurisdiction over the agency’s rules and
procedures for required training and the process and the implementation of those
procedures. Thus, any error by the administrative judge in failing to address this
argument is harmless, as it provides no basis for reversal of the initial decision.
8
¶14 In any event, even if we were to find that the Board has jurisdiction over
this appeal, we would find no merit to the appellant’s claim that the agency
violated his right to due process of law. Due process is a fundamental principle
of law that ensures that legal proceedings will be fair and that citizens will be
given notice of the proceedings and an opportunity to be heard before the
Government deprives them of life, liberty, or property. The U.S. Constitution
guarantees due process and applies to the property interest of public employment
in which the Government has demonstrated that there is cause to remove or
suspend an employee. See Gilbert v. Homar, 520 U.S. 924, 935-36 (1997)
(suspension); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541
(1985) (removal). The appellant seems to argue that, under the U.S. Court of
Appeals for the Federal Circuit’s decisions in Ward v. U.S. Postal
Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), his right to due
process was violated by ex parte communications between the TRB and the
instructors and supervisors who were interviewed by the TRB. PFR File, Tab 1
at 5-6. Ward and Stone stand for the proposition that a deciding official violates
an employee’s due process rights when he relies upon new and material ex parte
information as a basis for his decision on the merits of a proposed charge or the
penalty to be imposed. See Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 6
(2015). In this case, the appellant received a copy of the TRB report, along with
the April 15, 2013 memorandum from the Air Traffic Manager notifying him of
his training status being terminated due to unsatisfactory performance. The
memorandum advised the appellant that he could submit a reply within 7 days.
IAF, Tab 16, Ex. D. The appellant supplied a written response on April 23, 2013.
IAF, Tab 15, Ex. H. In his May 13, 2013 memorandum finalizing the decision to
terminate the appellant’s training, the Air Traffic Manager specifically mentioned
that he considered the appellant’s written reply. Id., Ex. I. In addition, the TRB
merely convened to consider and ultimately recommend terminating the
9
appellant’s training. IAF, Tab 18, Subtabs O, P. The TRB did not propose or
recommend discipline. Indeed, there was no proposed action or discipline in this
case. Rather, the appellant accepted a reassignment in lieu of a removal action.
Thus, the appellant was not deprived of any property interest. Therefore, whether
the agency committed harmful error or violated the appellant’s due process rights
by implementing its training requirements and TRB process is of no consequence
in this appeal.
¶15 Based on the foregoing, we discern no basis for disturbing the
administrative judge’s finding that the appellant failed to make a nonfrivolous
allegation of an involuntary reduction in grade or pay. See Henderson v.
Department of the Treasury, 61 M.S.P.R. 61, 65 (1994). Accordingly, the
administrative judge properly dismissed the appeal for lack of jurisdiction
without holding a hearing. See id. The initial decision, as supplemented by this
Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R.
§ 1201.113.
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:
U.S. 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
10
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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.