In December 2011, the Board held oral arguments and asked OPM for an advisory opinion on, in pertinent part, the following issue:

Whether the Board has the authority, in a restoration appeal under 5 CFR 353.304(c), to enforce an agency's internal rule regarding a return to duty in modified assignments of compensably injured individuals.

5 CFR 353.304(c) permits "[a]n individual who is partially recovered from a compensable injury [to] appeal to MSPB for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration."

The Board reached its decision on February 24, 2012, in which a majority of the Board, Member Rose dissenting, answered the above issue in the affirmative. The Board's jurisdiction under 5 CFR 353.304(c) "may encompass a claim that an agency's violation of its internal rules resulted in an arbitrary and capricious denial of restoration." The Board's reasoning is lengthy, but worth a read here.

The Board further discussed the Federal Circuit's recent decision in Bledsoe v. MSPB, 659 F.3d 1097 (Fed. Cir. 2011), wherein the court held that, "in order to establish jurisdiction over a restoration appeal under [5 CFR 353.304(c)], an appellant must prove by preponderant evidence that: (1) He was absent from his position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part-time basis or return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious because of the agency's failure to perform its obligations under 5 CFR 353.301(d)." Noting that the court's decision is inconsistent with Board precedent requiring appellant's to raise nonfrivolous allegations, instead of preponderant evidence, of the above elements to establish jurisdiction, the Board overruled its precedent including Chen v. USPS, 97 MSPR 527 (2004).

The Board reversed the removal of a criminal investigator for conduct unbecoming and making false statements where the proposal to remove did not mention that agency's belief that appellant's conduct might raise Giglio issues, but the decision letter did list Giglio considerations as an aggravating factor. The Board found that "[t]he agency's reliance on Giglio issues in imposing the appellant's removal without providing him notice and anopportunity to respond to those issues cannot fairly be deemed cumulative or immaterial to the deciding official's decision. See Stone, 179 F.3d at 1376-77. Thus, the agency violated the appellant's due process rights by denying him notice of the specific information considered and an opportunity to respond." With that, the Board ordered that the agency cancel the removal and afford appellant a "new constitutionally correct removal procedure."

Facts: Complainant alleged sexual harassment when her supervisor (S1) asked if she could '"take him out sometime, and show him around, where she likes to go,' complainant responded that she would think about it, S1 asked her a few days later if she had thought about it," and she declined. For the next week, S1 asked complainant why she would not see him and that she not mention his invitation to his supervisor (S2). Complainant did tell S2, and shortly after, S1 apologized to complainant. Two months later, complainant's promotion was delayed for 6 months. Both S1 and S2 contended that complainant received her promotion when she was eligible.

Holding: Agency is liable for sexual harassment.

Reasoning: The Commission found complainant particularly credible because she kept a contemporaneous log of events and alerted S2 shortly after the alleged events. S1's admission that he apologized for asking her out also established that S1 knew his advances were not welcome. Finally, a third supervisor involved in complainant's hiring testified that all parties (including S1 and S2) understood that complainant would be eligible for promotion in May rather than November.

Facts: Complainant alleged discrimination based on race and in reprisal for prior EEO activity when employees wore Confederate flag t-shirts, and management delayed in taking action to stop them for two months. The agency dismissed for failure to state a claim, finding that the actions complained of where not so severe as to state a hostile work environment claim.

Holding: "Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation. While isolated incidents may not create a direct and personal deprivation sufficient to render an individual aggrieved, the Commission has held that, under certain circumstances, a limited number of highly offensive slurs related to a federal employee's race may in fact state a claim or support a finding of discrimination under Title VII. See Brooks v. Dept. of Navy, EEOC Request No. 05950484 (June 25, 1996), Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts." The Board further noted "there is scholarly support for Complainant's interpretation of the symbolism of the Confederate flag. See, e.g., James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols, 101 YALE L.J. 505 (1991)."

This one is not in the law or regulation, but the MSPB considers the abandonment of one's position, i.e. walking off the job and never returning without formally resigning, to be a voluntary act. The employee has, in effect, resigned without having completed the paperwork. You may simply separate the employee administratively without going through adverse action procedures.

The problem is that case law does not define how long somebody has to be gone before you can safely assume abandonment, rather than simply being AWOL. For those in the military, it is the difference between AWOL and desertion. Just because a military member runs off to North Korea without approved leave does not automatically qualify him or her for a charge under military law of desertion, as he or she would always argue that the intent was to return and he or she was AWOL-a far less serious charge under military law.

The same problem arises with civilians. An employee leaves, management removes the employee for abandonment without using adverse action procedures, the employee returns shortly thereafter and appeals alleging that management tried to circumvent adverse action procedures by removing him or her for what should have been AWOL.

Since the case law is hazy, the ironclad way to handle any abandonment situation is to simply process it as an adverse action for extended AWOL. It takes virtually no time, and since the employee is not in a paid status anyway, you are not spending any money beyond the hour or so of processing time it takes your personnel office. Do it like this:

We have looked at the actions that are and are not covered, so let us turn to which employees are covered.