Curtis Kibler v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CURTIS KIBLER, DOCKET NUMBER

Appellant, DC-531D-15-0914-I-1

v.

DEPARTMENT OF THE ARMY, DATE: May 12, 2016

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Curtis Kibler, Stafford, Virginia, pro se.

Riva A. Parker, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his appeal of the denial of a within-grade increase (WIGI) for lack of

jurisdiction. For the reasons discussed below, we GRANT the appellant’s

petition for review, VACATE the initial decision, FIND that the Board has

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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jurisdiction, and REMAND the case to the regional office for further adjudication

in accordance with this Remand Order.

BACKGROUND

¶2 The appellant formerly was employed by the agency as a Human Resources

Specialist until he resigned, effective May 11, 2015. Initial Appeal File (IAF),

Tab 4, Subtab N. On June 29, 2015, he filed a Board appeal alleging that the

agency denied him a WIGI. 2 IAF, Tab 1 at 4. The appellant submitted a Standard

Form 50 (SF-50) denying his WIGI, effective March 23, 2015. Id. at 8. The

appellant contended that, as of March 23, 2015, the agency had neither

communicated to him that his performance was not at an acceptable level nor

issued him a current rating of record. IAF, Tab 4, Subtab A at 12. He further

claimed that the agency never informed him that it was denying his WIGI or of

his right to request reconsideration of the denial. Id. at 13. Finally, the appellant

asserted that the agency denied his WIGI in retaliation for his filing of a

grievance. 3 IAF, Tab 1 at 4, 6, Tab 4, Subtab A at 12-13.

¶3 The agency filed a motion to dismiss arguing that the Board lacks

jurisdiction over the appeal because the appellant did not first request that the

agency reconsider the WIGI denial. IAF, Tab 6 at 5-6. The agency asserted that

the appellant’s WIGI was due on May 5, 2015. Id. at 5. It further asserted that,

on March 23, 2015, the appellant’s supervisor generated an SF-50 to deny the

WIGI, which was not processed until May 12, 2015, one day after the appellant

resigned. Id. Finally, the agency asserted that, on the date of his resignation, the

2

The initial appeal also alleged involuntary resignation and enforced leave. IAF,

Tab 1 at 4, 6. Such claims are separately docketed as MSPB Docket No. DC-0752-15-

0915-I-1. The Board will issue a separate order regarding the appellant’s petition for

review of the initial decision in that matter.

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The appellant also asserted that the agency discriminated against him and subjected

him to a hostile work environment based on his race, sex, color, national origin, and

disability. IAF, Tab 4, Subtab A at 13-15. Such claims, however, are only related to

the alleged actions being adjudicated in MSPB Docket No. DC-0752-15-0915-I-1.

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appellant was still entitled to a WIGI. Id. The appellant did not respond to the

agency’s motion.

¶4 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 7, Initial Decision (ID) at 1. The administrative judge found that the agency

did not deny the appellant a WIGI prior to his resignation because it processed

and approved the SF-50 on May 12, 2015. ID at 3. The administrative judge

further found that the appellant did not contend that he requested reconsideration

of the WIGI denial and did not allege facts that would support a finding that the

agency improperly denied his request for reconsideration. ID at 3-4.

¶5 The appellant has filed a petition for review in which he reiterates his

arguments that the agency did not communicate to him that his performance was

not at an acceptable level, did not issue him a current rating of record, did not

inform him that it was denying his WIGI, and did not inform him of his right to

request reconsideration. Petition for Review (PFR) File, Tab 1 at 4-6. The

agency has opposed the appellant’s petition and submits for the first time an

SF-50 approved on January 5, 2016, cancelling the WIGI denial. PFR File, Tab 3

at 8. The appellant has filed a reply. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An employee under the General Schedule earns periodic increases in pay, or

WIGIs, as long as his performance is at an acceptable level of competence

(ALOC), he has completed the required waiting period, and he has not received

an equivalent increase in pay from any cause during that period. 5 U.S.C.

§ 5335(a); 5 C.F.R. § 531.404. To be performing at an ALOC, the employee’s

most recent rating of record must be at least fully successful or equivalent.

5 C.F.R. § 531.404(a).

¶7 If an agency determines that an employee is not performing at an ALOC

and, as a result his WIGI should be denied, it must issue the employee a negative

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ALOC determination. 5 C.F.R. § 531.409(e)(2). Pursuant to 5 U.S.C.

§ 5335(a)-(c), an agency is required to make an ALOC determination as of the

date the WIGI is due and failure to comply with this requirement is tantamount to

a WIGI denial. Martinesi v. Equal Employment Opportunity Commission,

24 M.S.P.R. 276, 280 (1984). The negative ALOC determination must be

communicated to the employee in writing as soon as possible after completion of

the waiting period, set forth the reasons for the determination and the respects in

which the employee must improve his performance to be granted a WIGI, and

inform him of his right to request reconsideration of the determination. 5 C.F.R.

§ 531.409(e).

¶8 An employee may seek reconsideration of a negative ALOC determination

in writing within 15 days of receiving the determination from the agency.

5 C.F.R. § 531.410(a)(1). If the agency affirms its negative ALOC determination

on reconsideration, an employee may appeal to the Board. 5 U.S.C. § 5335(c);

5 C.F.R. § 531.410(d). Although generally the Board’s jurisdiction to review

negative ALOC determinations attaches only after the agency has issued a

reconsideration decision, see, e.g., Renshaw v. Department of the Army,

23 M.S.P.R. 441, 442-43 (1984), the Board has found that it also has jurisdiction

over an appeal absent a reconsideration decision if an agency fails to comply with

the requirement that it inform an employee of his right to reconsideration, see,

e.g., Martinesi, 24 M.S.P.R. at 280.

¶9 The appellant began his employment with the agency as a GS-12, step 1 on

May 5, 2014. IAF, Tab 6 at 29. Thus, 52 weeks later, he was due to receive his

WIGI to a step 2. IAF, Tab 6 at 34; see 5 U.S.C. § 5335(a)(1); 5 C.F.R.

§ 531.405. The agency asserts that, on March 23, 2015, the appellant’s

supervisor generated an SF-50 to deny his WIGI due to his poor performance, but

that, “[o]n the day he resigned, he was still due a WIGI” because the WIGI denial

was not processed until May 12, 2015, the day after the appellant resigned. IAF,

Tab 6 at 5. It is not clear whether the generation of an SF-50 on March 23, 2015,

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constituted a negative ALOC determination. Such a determination is to be based

on an employee’s most recent rating of record, and it appears that the appellant

received his first performance rating on May 8, 2015. 4 IAF, Tab 4, Subtab L; see

5 C.F.R. § 531.404(a) (referencing ALOC determinations as being based on the

employee’s most recent rating of record). Thus, the exact date of the WIGI denial

is unclear.

¶10 Nonetheless, it is undisputed that the appellant’s WIGI was denied. IAF,

Tab 6 at 6; PFR File, Tab 3 at 5. We find that the agency’s failure to notify the

appellant of the denial of his WIGI or his right to request reconsideration of that

determination is sufficient to establish Board jurisdiction. See Jack v.

Department of Commerce, 98 M.S.P.R. 354, ¶ 13 (2005) (determining that the

agency’s failure to provide written notification of the right to request

reconsideration cannot defeat Board jurisdiction); Worthington v. Department of

Agriculture, 43 M.S.P.R. 620, 625 (1990) (finding Board jurisdiction over the

merits of the appellant’s WIGI denial based on the agency’s failure to inform him

of his right to request reconsideration); Martinesi, 24 M.S.P.R. at 280 (stating

that an agency’s failure to comply with the requirement that it inform an

employee of his right to reconsideration of the WIGI denial is sufficient to allow

the Board to assume jurisdiction and to adjudicate the appeal on its merits).

The agency’s cancellation of the WIGI denial does not divest the Board of

jurisdiction or render the appeal moot.

¶11 In its response to the petition, the agency appears to argue that its

January 5, 2016 cancellation of the WIGI denial renders this appeal moot.

PFR File, Tab 3 at 6. The Board’s jurisdiction is determined by the nature of the

4

The appellant filed a grievance regarding the agency’s failure to timely place him on

performance standards in order for him to be rated during the normal performance

rating cycle. IAF, Tab 4, Subtab B. He prevailed on his grievance, and the agency

agreed to extend his performance rating cycle and rate him for the period of May 5,

2014, through March 3, 2015. Id., Subtab C. The performance evaluation for this

rating period is dated May 8, 2015, over a month after the appellant’s supervisor

allegedly generated the SF-50 to deny his WIGI on March 23, 2015. Id., Subtab L.

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action at the time the appellant filed his appeal. Rosato v. Department of the

Army, 111 M.S.P.R. 95, ¶ 4 (2009). An agency’s unilateral modification of its

action after an appeal has been filed cannot divest the Board of jurisdiction unless

the appellant consents to such divesture or unless the agency completely rescinds

the action being appealed. Id. For an appeal to be deemed moot based on such a

rescission, the appellant must have received all of the relief that he could have

received if the matter had been adjudicated and he had prevailed. Id. The Board

has held that for a WIGI denial appeal to be moot, an agency must return the

appellant to the status quo ante by cancelling the action, paying him retroactively

for the period of the denial, removing all references to the action from the

employee’s personnel record, and amending the ALOC determination and the

underlying performance evaluation. See Shaishaa v. Department of the Army,

58 M.S.P.R. 450, 452-53 (1992); Veal v. Department of the Army, 52 M.S.P.R.

66, 68 (1991). The agency has not submitted documentation to support a finding

that any of these actions have been taken. 5

¶12 Moreover, to the extent the appellant is raising an affirmative defense of

retaliation and a claim for compensatory damages, the agency’s rescission of the

action appealed, i.e., cancelling the WIGI denial, does not afford the appellant all

5

It appears that the appellant is not entitled to back pay because his WIGI did not

become effective until after he resigned. A WIGI is effective on the first day of the pay

period following completion of the required waiting period. 5 U.S.C. § 5335(a);

5 C.F.R. § 531.412(a). It is undisputed that the appellant completed the required

waiting period on May 4, 2015. IAF, Tab 6 at 34. The first day of the first pay period

following May 4, 2015, was May 17, 2015, six days after the appellant’s May 11, 2015

resignation. See 2015 pay period calendar, available at

https://www.nfc.usda.gov/ppcalendar/ ppcal2015.htm#pp3 (last visited May 6, 2016).

Nonetheless, the agency has not submitted documentation showing the step and salary

to which the appellant was entitled at the time of his resignation. Guide to Processing

Personnel Actions, Chapter 31, Subchapter 31-7, available at

https://www.opm.gov/policy-data-oversight/data-analysis-documentation/ personnel-

documentation/#url=Processing-Personnel-Actions (last visited May 6, 2016) (stating

that if a WIGI is not processed before a separation, the step and salary to which the

employee was entitled should still be reflected on the SF-50 documenting the

employee’s separation).

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the relief that could have been available if he had prevailed in the appeal.

See Deas v. Department of Transportation, 108 M.S.P.R. 637, ¶¶ 11, 15 (2008),

overruled on other grounds by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294,

¶ 10 (2014); Antonio v. Department of the Air Force, 107 M.S.P.R. 626, ¶ 13

(2008); see also Hicks v. Merit Systems Protection Board, No. 2016-1091,

2016 WL 1105313, at *4 (Fed. Cir. Mar. 22, 2016) (explaining that under the

Whistleblower Protection Enhancement Act the Board may order corrective

action for whistleblower reprisal, to include an award of compensatory damages).

Where an appeal is not moot despite the cancellation of the action at issue, the

Board will determine whether there is jurisdiction and, if so, adjudicate the appeal

on the merits. Deas, 108 M.S.P.R. 637, ¶ 11. Because we find Board

jurisdiction, we remand the appeal for adjudication of the merits of the agency’s

WIGI denial and the appellant’s affirmative defense. 6 On remand, the

administrative judge shall allow the parties a reasonable opportunity to

6

The appellant also has filed an individual right of action (IRA) appeal concerning his

WIGI denial. Kibler v. Department of the Army, MSPB Docket No. DC-1221-16-0174-

W-1. In remanding this appeal for adjudication of the WIGI denial as a direct appeal

with an affirmative defense of whistleblower reprisal, we make no finding regarding the

effect of this decision on the appellant’s IRA appeal, which is pending in the regional

office, where the parties may raise any arguments on that issue. An employee who

claims to have suffered whistleblower reprisal regarding an action appealable to the

Board may elect to pursue a remedy through one, and only one, of the following

remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance

filed pursuant to the provisions of the negotiated grievance procedure; or (3) a

complaint following the procedures for seeking corrective action from the Office of

Special Counsel (OSC) under 5 U.S.C. §§ 1211-1222. Edwards v. Department of the

Air Force, 120 M.S.P.R. 307, ¶ 12 (2013); see 5 U.S.C. § 7121(g). Whichever remedy

is sought first is deemed to be an election of that procedure and precludes pursuing the

matter in either of the other two forums. Edwards, 120 M.S.P.R. 307, ¶ 12. Because

the appellant appears to have filed his Board appeal prior to his OSC complaint, his

subsequent pursuit of correction action through the procedures under 5 U.S.C.

§§ 1211-1222 does not affect the Board’s jurisdiction over this appeal.

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supplement the record and, if appropriate, afford the appellant a hearing on the

merits. 7

ORDER

¶13 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.

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There may be a question as to the timeliness of the appeal. However, where an agency

takes an appealable action without notifying the appellant of his appeal rights, the

appellant’s late filing may be excused, as long as he promptly filed the appeal upon

learning that he could do so. See Gordy v. Merit Systems Protection Board, 736 F.2d

1505, 1508 (Fed. Cir. 1984); Bushman v. Department of the Navy, 77 M.S.P.R. 411, 414

(1998). On remand, therefore, the appellant should be given an opportunity to establish

that his appeal was timely filed or that there is good cause for the delay in filing.