1. Susan Tsui Grundmann Chairman, U.S. Merit Systems Protection Board October 2, 2012

2.  MP 1 - Employment determined solely on qualifications  MP 2 - Fair and equitable treatment without discrimination  MP 3 - Equal pay for equal work  MP 4 - High standards of integrity, conduct, and concern for the public interest  MP 5 - Effective and efficient management of employees  MP 6 - Retention/separation based on performance  MP 7 - Providing employees with effective training and education  MP 8 - Protection from partisan politics  MP 9 - Protection from reprisal against whistleblowing

3. Serve as the guardian of Federal merit systems Adjudication Merit System Studies Review of Significant Actions of OPM

4.  Transparency – providing the public with information about agency activities  Participation – giving the public an opportunity to participate in policy-making  Collaboration – collaborating with all levels of government, stakeholders, and the public

5. Transparency Beyond Executive Order  Amicus Briefs  Oral Arguments  Formation of Decisions  Opinion & Orders  Non-Precedential Decisions  National Research Agenda  Outreach to Stakeholders  Overhaul of Adjudication Regulations

6. Pope v. U.S. Postal Service, 114 F.3d 1144 (Fed. Cir. 1997) An agency must prove by preponderant evidence that: ▶ Employee committed act as charged; ▶ Nexus between conduct and “efficiency of service”; ▶ Reasonableness of penalty (Douglas factors).

7.  Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009). Overruled Board precedent on comparators in different command chains.  Taylor v. Department of Veterans Affairs, 112 M.S.P.R. 423 (2009). Removal mitigated to 30-day suspension.  Woebcke v. Department of Homeland Security, 114 M.S.P.R. 100 (2010). Affirmed mitigation of removal to 14-day suspension.  Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010). Removal mitigated to 30-day suspension.  Suggs v. Department of Veterans Affairs, 113 M.S.P.R. 671 (2010). Removal mitigated to 30-day suspension.

8.  Burden of proof for agencies  Preponderance of evidence v. substantial evidence  No reasonable period of imp rovem ent required for Chapter 75 cases  No nexus requirement for Chapter 43 performance cases  No mitigation of penalty for Chapter 43 performance cases

9. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533 (2010) An agency must prove by substantial evidence that: ▶OPM approved its performance appraisal system; ▶Its performance standards are valid; ▶It communicated the performance standards to the appellant; ▶It notified the appellant that his performance was unacceptable and gave him a reasonable opportunity to improve; and ▶After the performance improvement period, the appellant’s performance remained unacceptable in at least one critical element.

10. Recent MSPB Decisions on Performance-based Actions ▶Adamsen v. Department of Agriculture, 563 F.3d 1326 modified by 571 – F.3d 1363 (Fed. Cir. 2009) – OPM must review and approve significant changes to an agency performance appraisal system ▶Adamsen v. Department of Agriculture, 116 M.S.P.R. 331 (2011) – Agency must prove OPM approval of change to appraisal system by substantial evidence; unsworn affidavits may not meet this standard. ▶Henderson v. National Aeronautics and Space Administration, 116 M.S.P.R. 96 (2011) – In a 5-tier rating system, an agency must inform employees, at a minimum, what they must do at the “needs improvement” level to avoid a performance-based action. ▶Van Prichard v. Department of Defense, 117 M.S.P.R. 88 (2011) – Backwards performance standards merely informing employees what they should not do are invalid. ▶Muff v. Department of Commerce, 2012 MSPB 5 (2012) – Agency must prove by substantial evidence that performance of critical element was unacceptable.

11.  Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) – Public employees have a property interest in their jobs and cannot be deprived of that interest without due process of law.  Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011) – Due process includes notice and an opportunity to respond not only to the reasons for taking the employment action but also to the reasons for the penalty selection.  Pickett v. Department of Agriculture, 116 M.S.P.R. 436 (2011) – Agency violated the appellant’s due process rights under Ward when it considered ex parte rumors that the appellant had held a gun to his wife’s head; the appellant had no prior notice that the agency would consider that matter its penalty selection.

12.  Department of the Navy v. Egan, 484 U.S. 518 (1988) – The Board cannot review the substance of a security clearance determination underlying an adverse action, but it may consider whether the appellant was afforded due process and any other required procedural protections.  McGriff v. Department of the Navy, 118 M.S.P.R. 89 (2012) – When an employee is indefinitely suspended pending the outcome of a security clearance determination, due process includes the right to respond to a deciding official with the authority to change the outcome.  Berry v. Conyers, No. 2011–3207 (Fed. Cir. 2012) – The Supreme Court’s decision in Egan pertains not just to positions requiring security clearances, but extends to noncritical sensitive positions as well.

13. Unauthorized Outside Employment, Unauthorized Outside Employment Prather v. Department of Justice, 117 M.S.P.R. 137 (2011 )  Issue -  DEA agent charged with providing false, misleading or inaccurate information in connection with his written requests for authorization to engage in outside employment.  Outcome -  Although appellant certified that outside employment in “Warrior School, LLC” would not conflict with this DEA duties and that use of government property was forbidden, he stipulated that he had repeatedly used his assigned official Government vehicle, agency weapons, and other equipment on Warrior School business.

14.  Unprecedented comprehensive review of all MSPB adjudicatory regulations  Internal review commenced in January 2011  Stakeholder comments and oral presentations on March 6, 2012  Proposed Rule published June 7, 2012  Received 105 pages of comments from 25 commenters  All documents related to the rulemaking available on MSPB’s website  Anticipate publishing Final Rule on October 1, 2012, to be effective 30 days thereafter  Proposed changes intended to:  ensure that MSPB regulations are in line with Board case law;  improve the clarity of the regulations;  make the regulations user-friendly, especially for pro se appellants;  incorporate greater transparency into the Board’s procedures where possible.  Board plans to remain open to further suggestions for improving its regulations and will seriously consider additional rulemaking proposals

15. Special Counsel v. Griener/Ogden City, 2011 MSPB 98 (2011); Special Counsel v. Mark, 114 M.S.P.R. 516 (2010)  Current law prohibits:  Political activity for Federally funded positions;  Political activity as defined as acts directed toward the success or failure of a partisan political candidacy, party, or political group.  Proposed changes in S. 2170 and H.R. 4152:  Provides more flexibility for penalty assessment for those who have violated the Hatch Act;  Permits state and local employees to be candidates for elective office despite receiving Federal funding.

16. By Phone (202) 653-6772 or 1-800-209-8960; V/TDD: 1-800-877-8339 (Federal Relay Service) By MailU.S. Merit Systems Protection Board 1615 M Street, NW, Washington, DC 20419 By e-Mail mspb@mspb.gov E-Appeal Online https://e-appeal.mspb.gov Open.gov www.mspb.gov/open MSPB Decisions ListServ - Click the “MSPB Decisions” tab on the homepage and the “Subscribe to MSPB Decisions ListServ” link in the left margin. MSPB Studies ListServ - Click the “MSPB Studies” tab on the homepage and the “Subscribe to MSPB Studies Listserv” link in the left margin.