Opinion

Rick Whitmire v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jun 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

holding that a Standard Form 50 is not a legally operative document that controls on its face an employee’s status

How later courts described this case

holding that a Standard Form 50 is not a legally operative document that controls on its face an employee’s status

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICK WHITMIRE, DOCKET NUMBER

Appellant, SF-0752-19-0524-I-1

DEPARTMENT OF THE NAVY, DATE: June 27, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Justin Prato , Esquire, San Diego, California, for the appellant.

Harold G. Murray , and Jennifer Eggers , San Diego, California, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal from Federal service for failure to meet a condition of

employment. On petition for review, the appellant argues that the administrative

judge should have applied a different standard when assessing whether his

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

removal promoted the efficiency of the service. Petition for Review (PFR) File,

Tab 1 at 5. Generally, we grant petitions such as this one only in the following

circumstances: 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 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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The administrative judge found that the agency proved its charge of failure

to meet a condition of employment due to the appellant’s failure to obtain and

maintain a commercial driver’s license (CDL), that the appellant failed to

establish his affirmative defense of reprisal, and that, in removing the appellant

from his position as a Materials Handling Inspector, the deciding official

considered all the relevant factors and exercised his discretion within the

tolerable limits of reasonableness. Initial Appeal File (IAF), Tab 16, Initial

Decision (ID) at 6-14. The appellant does not challenge these findings on review,

and we discern no error in the administrative judge’s findings on these issues.

We also agree with his conclusion that the agency proved that the

appellant’s removal promotes the efficiency of the service. ID at 12. On review,

the appellant argues that the administrative judge failed to consider this

requirement under the standard set forth in Vidal v. U.S. Postal Service,

79 M.S.P.R. 126, ¶ 4 (1998), which requires an agency to show that, when it

removes an employee from a job he is skilled in, places him in a job he cannot

handle, and then removes him from employment, there was a legitimate

management reason for the reassignment and that removal from that position

promoted the efficiency of the service more than would his retention in or return

to his former position. 2 PFR File, Tab 1 at 5-6.

We have reviewed the record below, and it does not appear that the

appellant asserted to the administrative judge that the standard set forth in Vidal

should be applied here. IAF, Tabs 1, 9. The Board generally will not consider an

argument raised for the first time on review absent a showing that it is based on

new and material evidence that was not previously available despite the party’s

due diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016).

The appellant has not asserted that this specific argument is based on new and

material evidence, nor has he explained why he could not raise it below.

PFR File, Tab 1 at 5-6. However, even in consideration of this argument, see

e.g., Fiacco v. Office of Personnel Management, 105 M.S.P.R. 193, ¶ 18 (2007)

(examining a newly raised argument on review when the particular circumstances

of the case warrant such an examination), we nonetheless find it does not provide

a basis to disturb the initial decision.

The cases that the appellant cites to support the application of the standard

set forth in Vidal are clear cases of employees being reassigned or promoted from

one position to another. See Vidal, 79 M.S.P.R. 126, ¶ 2; Majors v. U.S. Postal

Service, 3 M.S.P.R. 146, 147 (1980). Here, although the agency referred to the

appellant’s change in position description to account for the requirement that he

The agency’s response to the appellant’s petition for review appears to be untimely

filed by 11 days. PFR File, Tab 3 at 4. Included with its response is a request for leave

to file the response, wherein the agency notes that its late submission was caused by

“logistical and connectivity problems caused by [t]he COVID-19 Virus.” Id. We do

not address the timeliness of the agency’s response to the appellant’s petition for review

because we otherwise deny the appellant’s petition for review. Cf. Canoles v.

Department of the Air Force, 50 M.S.P.R. 374, 376 n. (1991) (finding that the Board

need not address the timeliness of the agency’s response to a petition for review when it

dismisses the petition as untimely filed), aff’d, 972 F.2d 1354 (Fed. Cir. 1992) (Table).

obtain a CDL as a “reassignment,” IAF, Tab 4 at 65, the facts do not support a

finding that the appellant was reassigned or promoted from one position to

another; rather, the position to which the appellant was assigned itself changed

through the addition of a new requirement, and the agency simply reissued a new

position description implementing that change and labeled it a reassignment. See

Grigsby v. Department of Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984) (holding

that a Standard Form 50 is not a legally operative document that controls on its

face an employee’s status). For example, the new position description form

issued by the agency indicated that it was implementing a “redescription.” IAF,

Tab 4 at 69. In a letter to the appellant explaining this “redescription,” the

agency stated that his position description included “changes” related to the CDL

requirement. Id. at 68. Additionally, in an email to the appellant’s union

representative explaining the change, a human resources specialist explained that

the applicable agency employees would have an “updated position” with

“[p]osition description changes” related to the CDL requirement. Id. at 40.

Moreover, the appellant has not asserted that any other aspect of his position

changed, apart from the CDL requirement, nor is there any evidence in the record

that, like the prior positions in Vidal and Majors, his prior position without the

new CDL requirement still existed after his “reassignment.”

Accordingly, we find that the facts in this case are not similar enough to

the facts presented in Vidal and Majors to warrant application of the efficiency of

the service standard set forth in those cases. See, e.g., Lopez v. Department of the

Navy, 108 M.S.P.R. 384, ¶¶ 27-28 (2008) (declining to apply the standard set

forth in Vidal and Majors when the facts are not sufficiently similar to the facts

presented in those cases). As such, we discern no error in the administrative

judge’s discussion of the efficiency of the service requirement.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the