Kibler v. Department of Army, DC-531D-15-0914-I-1

Decision Date12 May 2016
Docket NumberDC-531D-15-0914-I-1
CourtMerit Systems Protection Board
PartiesCURTIS KIBLER, Appellant, v. DEPARTMENT OF THE ARMY, Agency.

UNPUBLISHED

THIS ORDER IS NONPRECEDENTIAL [1]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 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 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 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, 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 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 7 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, ...

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